PLJ 2007 Karachi 1
Present: Faisal Arab, J
ABDUL GHAFOOR--Plaintiff
versus
Syed JAWED HUSSAIN JAFFERY and another--Defendants
Suit No. 257 of 2002, decided on 21.8.2006.
Constitution of Pakistan, 1973—
----Art. 14--Civil Procedure Code (V of 1908), O.VIII, R. 10--Suit for damages--Determination of damages--Principles--Publication of libellous and defamatory material in newspapers--Duty of journalist, and publishers--Plaintiff filed a suit for damages against defendants, editor and publisher, and printer, for publishing defamatory reports against plaintiff--Allegations levelled against him and his family members were baseless, calculated to harm his good professional name and ridicule him in the eyes of public and bankers at large--Plaintiff claimed damages to the tune of one hundred millions rupees and sought permanent injunction against defendants--Validity--Defendants did not put up any defence nor filed written statement and entire case of plaintiff went unchallenged--Responsibility lay upon news reporter, journalist and publisher of a newspaper or periodical, to steer clear of prejudices and perversions and publish stories after due verification so that only truth was exposed and nothing else--Any false story published in newspapers was bound to humiliate and harm the goodwill and reputation of person targetted by such publication--Publication of accusatory and defamatory news items and stories without necessary verification was not only to be regarded as irresponsible professional conduct but if challenged in a Court of law the same was to be visited with monitary damages as well as restraint orders so that such conduct was discouraged and not repeated again--Unsubstantiated libellous material written or published against a person was not to be allowed to go unpunished--Art. 14 of the Constitution recognized and protected a right of a person that his dignity was not to be violated--Whenever a cause with regard to hurt or humiliation was brought before a Civil Court, it was bounden duty of Court to examine the allegations and if Court found them false and malicious or tainted with bad faith then defendant had to be visited with civil liability of compensating the plaintiff monetarily--Basis of quantifying damages to the extent claimed by plaintiff though had neither been given in plaint nor in affidavit in ex parte proof, but in case of defamation it was not necessary that exact amount of damages be determined through evidence--Plaintiff had to simply establish defamation and quantum of damages was to follow by applying rule of thumb--Quantum of damages in defamation cases was to be determined by one of the considerations that it was commensurate with financial strength of wrongdoer and position which the person wronged held in society--Financial position of defendant though did not come' on record but keeping in view the social standing of plaintiff and applying rule of thumb, rupees ten millions were determined as damages recoverable jointly and severally against defendants--Suit was decreed.
[Pp. 5, 6 & 7] A, B, C & D
PLD 1957 Lah. 283 rel.
Mr. Qayum Abbasi, Advocate for Plaintiff.
Nemo for Defendants.
Date of hearing: 17.3.2006.
Judgment
The plaintiff at the time of filing of present suit held the post of Chief of Human Resource Development in United Bank Limited. He worked in this position for several years. He also holds Masters Degree from the University of Durham, England and Masters Degree in Public Administration from the University of Southern California, U.S.A. The plaintiff had also held the post of Secretary and Executive Vice-President, Administration, of the Pakistan Banking Council for many years as well as the post of Company Secretary of United Bank Limited. On account of his academic qualifications and career experience, he claims to have acquired specialization and expertise in Human Resource Management.
The case of the plaintiff is that Defendant No. 1 who is editor and publisher of Sada-e-Bankaran, an Urdu language weekly newspaper, is in a habit of publishing provocative and incendiary news items and that he along with Defendant No. 2, who is printer of the weekly, have embarked upon a campaign of concerted and organized vilification of the plaintiff by.publishing series of false and defamatory reports against the plaintiff and his family members. In this regard several reports were published in weekly's issues of 16.7.2001, 23.7.2001, 20.8.2001, 3.9.2001, 10.9.2001, 22.10.2001 and 22.11.2001.
The contents of all the published reports in summarized form were to the following effect:--
(a) The plaintiff had shown undue favour to Mr. Ashraf Haider and Mr. Jauher Naqvi by extending illegal promotions to them on account of their involvement with the plaintiff.
(b) The plaintiff had been imported as Chief of Human Resource Development from Muslim Commercial Bank Limited and was receiving remuneration from both the banks.
(c) The plaintiff has illegally amassed property worth crores of rupees unjustly enriching him by obtaining the benefit of loans and other perquisites from UBL.
(d) As a result of the plaintiff's loyalty towards Mr. Zubyr Soomro, the ex-President of UBL, the current President of UBL was totally helpless before the plaintiff and is unable to function.
(e) The wife of the plaintiff was interfering in the affairs of UBL by pressurizing the plaintiff to appoint her close relative as Regional Operations Head, Karachi.
(f) The plaintiff had, through his manipulation and bad influence, become the half owner of UBL.
(g) The plaintiff has tarnished and blackened the name of the Head of Establishment Department, Mr. Mehboob Karim by having an audit conducted against him and has pressurized the Audit Chief to handpick a team of auditors so that the plaintiff is able to replace Mr. Mehmoob Karim with a nominee of his own choice.
(h) The plaintiff was deliberately manipulating and creating difficulties for the process of voluntary Separation Scheme and induction of new contractual employees.
(i) The plaintiff was deliberately creating hurdles in the payment of retirement dues to departing employees so that the affected employees would be .forced to commence actions in the Civil Courts and their eventual payments, when received, would be after a delay of many years.
(j) The plaintiff had been employed at UBL in breach of State Bank of Pakistan regulations and Ministry of Finance directives.
(k) The plaintiff was an accomplished flatterer and spy and was involved in covering up irregularities committed by the UBL administration of which he was a leader.
(l) Raja Maroof, the ex-auditor of UBL, was fully conversant with the alleged facts and has provided inside information to Defendant No. 1.
(m) The plaintiff minor son had killed two persons while driving a car belonging to UBL but in the use of plaintiff.
As the plaintiff felt humiliated on account of publication of allegations made in the above referred news reports, he served legal notice dated 24-12-2001 upon the defendants, terming the allegations as false and part of campaign of abuse and defamation on their part. The plaintiff therefore called upon the defendants to publish unqualified apology and claimed damages for causing harm to his reputation and that of his family.
None of the defendants responded to the plaintiff's legal notice. On the contrary, in the issue of 21-1-2002 the weekly further questioned the integrity of the plaintiff. The plaintiff then filed the present suit. In the suit the plaintiff termed all allegations made against him and his family members as baseless, calculated to harm his good professional name and ridicule him in the eyes of the public and banker at large. The plaintiff claimed damages to the tune, of one hundred million rupees and sought permanent injunction against the defendants so that defamatory news reports are not published against him in future.
The defendants were served through publication. No defence was put in by any of them and the entire case of the plaintiff went unchallenged. On account of defendants' failure to file written statement, though time given, they were debarred from defending the suit, hence the suit was listed for final disposal. The plaintiff then in support of his case filed affidavit-in-ex parte proof.
There is no denying the fact that it is always beneficial for the society that wrongful acts of a public functionary or of a person entrusted with duties to perform for the benefit of public are brought to the notice of the public for scrutiny so that they could be exposed, prosecuted and punished. One of the most effective tools for doing this is by publicizing it in the newspapers and periodicals. It is for this reason that press is considered to be the fourth tier of the State. On account of such status, heavy responsibility lies upon every news reporter, journalist and publisher of a newspaper or periodicals to steer clear of prejudices and perversions and publish stories after due verification so that only truth is exposed and nothing else. Any false story that is published in newspapers or periodicals is bound to humiliate and harm the reputation and goodwill of the person who is the target of such publication. Therefore it is the elementary duty of a journalist, a news reporter and a publisher to duly verify the story before its publication and shall also hear the version of the person to whom the story relates. After gathering necessary information and analyzing the respective versions of the story, if he deems appropriate to publish the same then the story should be published but the conflicting version should also be given the same prominence in the report as the main story. It is only after such exercise that the matter is left for the public to form its opinion on the story. Public should not be made to form an opinion with regard to stories which have not been duly verified and without knowing the version of the person against whom the new report is directed publication of accusatory and defamatory news items and stories without necessary verification would not only be regarded as irresponsible professional conduct but if challenged in a Court of law has to be visited with monetary damages as well as restraint orders so that such a conduct is discouraged and not repeated again. Thus the person who is harmed by the publication is compensated, though it is clarified that monetary compensation cannot erase the scar left by'any malicious campaign to humiliate a person and violate his dignity in the eyes of the public, his business circles, friends and relatives.
The conduct of Defendant No. 1, as an editor and publisher establishes the fact that while publishing the series of stories against the plaintiff, he was reckless and did not keep in mind the humiliation and harm that it caused to the plaintiff. He did not even bother to have plaintiff's views on the matter. All this leads to the assumption that it was a deliberate attempt to humiliate the plaintiff and ridicule him in the eyes of the public.
When unsubstantiated libellous material is written or published against a person to defame him in the eyes of his friends, relatives, business circles and public at large, then such acts cannot be allowed to go unpunished. No society can accept such a conduct. When an unsubstantiated and unverified allegation made against a person is published in a newspaper or a periodical, the malice and bad faith has to be presumed against those who are responsible for such publication. A civilized society never allows a person, having malicious intent to disgrace and defame anyone with impunity. It is the birth right of every person that his or her dignity is not violated and Article 14 of the Constitution recognizes and protects such right. Therefore, whenever a cause with regard to hurt or humiliation caused by the imputations to one's character is brought before a civil Court, it is the bounded duty of the Court to examine the allegations and if found false or malicious or tainted with bad faith, then the defendant has to be visited with civil liability of compensating the plaintiff monetarily.
In the present case plaintiff has been humiliated, not once or twice but through a campaign spread over several publications. The allegations against the plaintiff are quite serious and were not denied by either of the defendants when legal notices dated 24-12-2001 was served upon them. In fact they chose not to contest the proceedings. Thus this Court is left with no other option but to presume that allegations made against the plaintiff were neither duly verified nor plaintiff's view-point was taken before their publication. All allegations against the plaintiff therefore have to be regarded as malicious and tainted with bad faith. In view of the above, I hold that by publishing false accusations in the weekly Sada-e-Bankaran the reputation of the plaintiff and his family has been tarnished in the eyes of the banking circles, the general public and their friends and relations.
The plaintiff has claimed damages to the extent of hundred Million Rupees. The basis of quantifying damages to the extent of hundred Million Rupees has neither been given in the plaint nor in the affidavit in ex parte proof. However, in a case of defamation it is not necessary that exact amount of damages be determined through evidence. The plaintiff has to simply establish defamation and the quantum of damages would follow by applying the rule of thumb. In the case of Sharif v. Nawab Din reported in PLD 1957 Lah. 283 Mr. Justice Kaikaus, as he then was, held as follows:--
"If damages are to be assessed only if the exact amount is proved, no damages can ever be decreed. Damages have so many times to be awarded by the rule of thumb but the fact that the exact amount is not determinable can be no reason for dismissal of suit."
Applying the rule of thumb, the question still arises what should be the quantum of damages which a Court should award. One way of quantifying it is that it should be to an extent that a defendant must feel its financial pinch otherwise a rich man would defame and disgrace any person and in return would only be required to pay an amount as damages which for him is insignificant. Therefore, while determining the quantum of damages in defamation cases one of the considerations which should be kept in mind is that it should commensurate with the financial strength of the wrongdoer in addition to the consideration with regard to the position the person who has been wronged holds in the society. In the present case, on account of defendant's own failure to defend this suit, their financial standing has not come on record in order to determine the quantum of damages to be awarded against them keeping in mind wrongdoer's financial strength. However, taking into account eight separate defamatory publications against an educated and well-placed person who holds position of responsibility in the society, and, applying the rule of thumb, I determine a sum of Rs. 10,000,000 (Rupees Ten million) as damages recoverable jointly and severally against the defendants, which amount in my view would be sufficient to deter the defendants from repeating unsubstantiated defamatory allegations against the plaintiff in future and to certain extent compensate the plaintiff for the hurt and humiliation that he and his family has suffered. In addition to damages, the defendants are also restrained from publishing such news items against the plaintiff in future.
The suit damages is decreed in a sum of Rs. 10,000,000 (Rupees Ten million) with costs.
(Rafaqat Ali Sohal) Suit decreed.
PLJ 2007 Karachi 7 (DB)
Present: Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ.
ARDESHIR COWASJEE and 7 others--Petitioners
versus
KARACHI BUILDING CONTROL AUTHORITY (KBCA) through Chief Controller of Buildings, Karachi and 3 others--Respondents
C.P. No. D-1100 of 2002, decided on 8.10.2005.
(i) Constitution of Pakistan, (1973)—
----Art. 199--Sindh Buildings Control Ordinance, (V of 1979), Preamble--Karachi Building and Town Planning Regulations, Preamble--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Locus standi--Fundamental Constitutional "right of life"--Petitioners were aggrieved of the construction being raised by respondent--Plea raised by respondent was that the petitioners did not have locus standi to file Constitutional petition--Petitioners contended that they were residents of the locality and being citizens had a right to question unauthorized and illegal construction being raised in violation of rules and regulations as envisaged in Sindh Building Control Ordinance, 1979, and Karachi Building and Town Planning Regulations--Validity--Petitioners had the locus standi to file Constitutional petition, and the same was maintainable. [Pp. 8, 14 & 15] A & B
1999 SCMR 2089; 1999 SCMR 2883 and PLD 1993 Kar. 237 ref.
(ii) Sindh Buildings Control Ordinance, 1979 (V of 1979)—
----Preamble--Karachi Building and Town Planning Regulations, Preamble--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Violation of rules and regulations--Unauthorized construction--Respondent was constructing commercial building over residential plot, in residential area in violation "of rules and regulations--Plea raised by respondent was that the area where building in question was being constructed had been declared as commercial area and building wds being constructed in accordance with approved construction plan--Validity--Subject plot was commercialized after observing all usual formalities and permission was granted for construction as per approved plan--In view of the decision of City Council approving the commercial status of four major roads including the one on which the subject plot was located, the same was within the competence of City Council--High Court directed Building Control Authority to critically examine the construction raised or being raised to find out whether the same was in accordance with the approved plan, and deviations, if any, being not regularizable, would be removed/demolished by competent authorities--Constitutional petition was dismissed in circumstances. [P. 16] C
1998 MLD 1264; PLD 1994 SC 693; 1998 MLD 216; 1979 CLC 382; PLD 1992 SC 113 and PLD 2003 Kar. 423 ref.
2005 CLC 694 fol.
Mr. Naimur Rehman and Rizwana Ismail, Advocate for Petitioners.
Mr. Asim Mansoor Khan, Advocate for Respondent No. 1.
Mr. Abbas Ali, A.A.-G. for Respondent No. 2.
Mr. Manzoor Ahmed, Advocate for Respondent No. 3.
Mr. Munir A. Malik and Faisal Kamal, Advocates for Respondent No. 4.
Dates of hearing: 25, 26.11.2004, 1 and 3.12.2004.
Judgment
S. Ali Aslam Jafri, J.--The Petitioners Nos. 1 to 5 who claim to be public spirited citizens of Karachi having interest in preserving of natural and built environment of the city, in ensuring that buildings are constructed in accordance with law and regulations so that fundamental Constitutional "right of life" of all citizens is not violated, including Petitioners Nos. 6 to 8 who are neighbours, are aggrieved of fee construction of a building "World Trade Centre" on plot bearing No. FL-10/5, K.D.A. Scheme No. 5, Khayaban-e-Roomi, Clifton, Karachi. Their grievance is that Respondent No. 4 is raising a construction on the above referred plot which was meant for residential purposes, in violation of the rules and regulations by increasing the plot ratio from 1:2.3 to 1:3.5 even by elimination of the compulsory open space on all the sides for use of entire W.T.C. building as commercial, and construction of a basement at the rear of the plot attached.
It is contended that the plot in question was planned by K.D.A. as a residential flat-site and according to the K.D.A. Zoning Regulation, 1972 as applicable, the built up area of the plot ratio should be 1:2 and compulsory open space (COS) all around of 6 meter (20 feet), with permission to use 7.5% of the total built-up area as commercial shops on the ground floor. The plot in question was allotted in 1972 by K.D.A. to Hassan Associates, a developer/builder who constructed a ground + 10 floors + penthouse structure named "Hasan Terrace" comprising 40 flats, 2 penthouses, and some commercial shops on the ground floor. Such construction was approved by K.D.A. in 1974 and again in 1978.
It is further contended that in the year 1988 Respondent No. 4 Shah Feroz of Grand Liesure Corporation (GLC), acquired the residential apartments project and applied to the K.B.C.A. for conversion of the project into a fully commercial building called World Trade Centre (WTC), with increase in plot-ratio to 1:3.5 and elimination of the 20 feet COS all around. The said application was turned down by KBCA being in gross violation of the Ordinance, the Regulations 1979 and the applicable Zoning Regulations. However, in 1989 Respondent No. 4 applied to the Minister for Housing and Town Planning (Mr. Agha Siraj Durrani) against whom certain allegation of corruption have been made by the petitioners, for permission to convert and construct in violation of law, and for the reasons best known to GLC and the Minister, the rejection by the KBCA was overridden and permission was granted unlawfully "as a special case" and "in relaxation of rules". In support of such contention documents annexed with the petition as 4(a) to 4(d) have been filed by the petitioner. It is alleged that after obtaining formal approval from Respondent No. 1, GLC undertook partial additional construction including some sections of COS on the ground floor. However, in 1990 after the change of the Government, the approval accorded to 61 highrise/multi-storeyed building all over Karachi, including WTC, were cancelled by the Government. All efforts by GLC to have the 1989 KBCA NOC restored did not succeed and they were able to have an order of retention of existing building without any increase in plot ratio from the Additional Chief Secretary of Respondent No. 2.
The petitioners have further contended that in the year 1992 during the period of the then Chief Minister Jam Sadiq Ali the petitioners again applied for restoration of illegal 1989 NOC for commercialization, excess plot-ratio and coverage of COS which was done as appears from Annexures 4-E and 4-F which are photocopies of the summary submitted to the Chief Minister and orders passed thereon. The Respondent No. 4 thereafter completed construction in the COS at the front and sides of the project by increasing plot-ratio up to 1:2.3 by constructing about 22,0000 sq. feet extra. However, the rest of the construction at the rear of the ground floor and upper floor was not undertaken and according to the petitioners, the building plans approved by Respondent No. 1 consequently lapsed. Even the requisite "occupancy certificate" or "completion certificate" was not obtained before inducting occupants, contrary to Section 6(3) of the Ordinance. Again in 1997, GLC applied to Respondent No. 1 for approval of new/revised (but illegal) building plans, but it was not able to have them approved because the working of the KBCA at that time was under close scrutiny by various concerned citizens, professionals and NGOs, and the Government of Sindh had passed an administrative order on 20-7-1998 directing that no relaxation in plot-ratio was to be allowed on any plot in Karachi under any circumstances.
The petitioners further contended that on 29-3-2001 after the take over of the Military Government, the Governor (Muhammad Mian Soomro) initiated a so-called "Programme for the Economic Revival of Karachi" (PERK) and appointed Respondent No. 4 Shahid Feroz as Vice-Chairman who as such acquired a new political clout in the administrative systems of the province. A press clipping from daily 'DAWN Karachi dated 30-3-2001 has been filed as Annexurc `5'. In June, 2001 the Respondent No. 4 submitted a new building plan to Respondent No. 1 showing the entire WTC building as commercial; increase in plot-ratio to ambit 1:3.5 (although the covered area figures shown on the drawing are erroneous); elimination of the COS on all sides; and construction of a basement at the rear of the plot. Copies of four final revised plans have been filed as Annexure '6'. However, after much debate between Respondent No. I and KDA Master Plan, and Environmental Control (MPEC) the new unlawful building plans were illegally approved in late March, 2002 in violation of the order, the Ordinance, the Zoning Regulation, the Regulations 1979 and Regulations 2002, so also in contravention of the administrative order dated 20-7-1998 of Respondent No. 2. The construction thereafter recommenced in April, 2002, despite complaints sent by the petitioners to Respondent No. 1 which were turned down on a number of times by KBCA and the Government.
The case of the petitioners is that in the city of Karachi all changes, planning and zoning of area scheme like KDA Scheme No. 5, Kehkashan, Clifton, Karachi are by law required to go through a process that mandates technical justification of proposed change, including impact on the infrastructure, amenities and utilities in the locality; invitation and consideration of public objections to the proposed change/conversion, and approval by the MPEC Department of KDA. The said procedure has not been followed while granting permission to the Respondent No. 4.
The grievance of the petitioner is that unlawful construction will have (and is already having) an adverse effect on the environment of the locality, it will impose unbearable load on the infrastructure viz. parking, roads, traffic, garbage-collection etc. and amenities such as park, police stations etc. and utilities viz. electricity, water, sewerage, gas. Sketch of data giving a comparative of the actual requirements of the project under various conditions has been filed as Annexure-10 whereas photographs showing the existing traffic chaos around World Trade Centre before the excess area in the new first floor and rear grows floor is built have been filed as Anexure-11 whereafter the over built commercialized structure will exacerbate the overloading of infrastructure/amenities/utilities and congestion of roads/traffic.
It is urged that so-called "relaxation of rules" cannot be made by public functionaries like ministers and bureaucrats as it amounts to flouting of the law. The construction being in blatant violation of all relevant law, rules and regulations has been sought to be declared to be illegal, void ab initio and a nullity in the eye of law. A direction has been sought for demolition of the construction raised being in excess of 1:2 plot ratio. By way of interim relief the petitioners have prayed that respondents be restrained from raising any further construction or parting with the possession of the area already raised or creating any third-party interest. A restraint order has been sought against KBCA for issuing any regularization approved plans, "NOC for Sale" or "occupancy certificate" in respect of the building raised by Respondent No. 4. Petitioners have also prayed for a direction to respondents Nos.l and 2 to institute criminal prosecution proceedings against the builder and colluding politicians/ministers and Government/KBCA officials for their alleged corruption and fraudulent action as disclosed in the petition.
After service of notices counter-affidavit to the petition has been filed by Khalid Feroz, Director of Respondent No. 4, denying the allegations made in the petitioner and stating that Respondent No. 4 is a private limited company which owns Plot No. FL-10/5, KDA Scheme No. 5, Khayaban-e-Roomi, Clifton, Karachi, where construction has been raised as per law, rules and regulations. It is stated that petitioners particularly petitioner No. 2 are in habit of filing frivolous petitions to harass the builders as a result of which the construction activity in the entire town has come to a stand still. It is alleged that petitioner No. 1 patronizes Petitioners Nos.2 and 3 by utilizing print madia. He writes article in daily DAWN to blackmail in particular the builders of private enterprises, and no construction activity in the whole of town is allowed unless Ronald D'Souza is engaged as consultant and this is a way SHEHRI mints money. Preliminary objections have been taken by stating that petition is misconceived as it has failed to implead many of the persons against whom the relief has been sought; petition requires factual inquiry into the issues raised therein and unless the evidence is recorded no findings of the nature sought in the petition could be given; and the petition is barred by laches as well. It is also stated that existing building is being restructured with the approval of the competent authority and the petitioners have no locus standi to challenge and/or question such restructuring of the building. The case of the petitioners as discussed above has been denied in toto. It has been stated that plans were submitted before the competent authority, which have approved the same and increased the plot ratio from 1:2 to 1:3.5. Copy of letter dated 4-9-1989 from KBCA along with approved drawing for full commercial and additional construction have been filed and marked an Anenxure `C' to the counter-affidavit. It is not denied that initially KBCA did not accede to the request of Respondent No. 4 but the stand of the KBCA was subsequently undone by the competent authority on representation of the Respondent No. 4. It has been denied that minister of Pakistan Peoples Party permitted conversion and construction of the said premises as alleged by the said petitioners. Different documents filed by petitioners which include summary reflect that it was en-routed according to the procedure provided in law and thereafter the competent authority in KBCA passed appropriate orders for commercialization in terms of the provisions of KDA law and for approving the additional construction as per law. It is contended that the allegations against the minister named by the petitioners cannot be looked into as he has not been impleaded as a party in the petition. It has not been denied that the approved plan of the premises in question was initially cancelled but it has been clarified that it was due to some misconception on the part of authority concerned. Subsequently on the representation of the Respondent No. 4 cancellation order was withdrawn by the Government. It has been denied that Additional Chief Secretary reduced the plot ratio from 1:3.5 to 1:2 while recommending withdrawal of the cancellation order. It has further been urged that it is irrational, that once the plot used' is changed from residential to commercial, the plot ratio is increased in terms of the provisions of the relevant law and any administrative order has no applicability to undo a law. In any case Respondent No. 4 was communicated that competent authority has lawfully withdrawn the cancellation order dated 2-1-1992. Copy has been filed as Annexure 'D'. It has been denied that Respondent No. 4 has raised and/or raising construction in violation of the approved plan either in compulsory open space or otherwise. It has been stated that under the provision of regularization, once the plot use is changed from residential to commercial, the provisions with regard to compulsory open space as provided for FL site would not extend to the commercial plot. The present premises on which the construction has been raised is open to all the four sides and has no plot on any of its sides. Construction has been raised according to approved plan, as such allegations regarding violation are false. No breach of approved plans has been committed. The approved plan is well within the plot ration of 1:3.5. The Respondent No. 4 has not applied for obtaining occupancy certificate or completion certificate as there is no occasion for the same unless the building is entirely restructured. The entire premises is otherwise owned by Respondent No. 4 and the project of the nature which is being sold. It has been denied that the plot ratio was sought to be increased by approaching KBCA in 1991. Appointment of Mr. Shahid Peroz who was Director of Respondent No. 4 from 1988 to 1996 as Vice-Chairman of PERK has not been disputed and it is alleged that it is, due to personal grudge of the petitioners, with him that such false allegations have been made though he had no role to play and never misused his position. The permission granted to Respondent No. 4 is strictly in accordance with law and rules. It has been categorically pleaded that entire locality of Clifton qualifies for commercial use in view of the resolution which the governing body of the KDA has passed and the said resolution has not been withdrawn till date and holds the field. Under the law any party interested in change of use of the land can approach the KDA for commercialization subject to the prescribed fee provided in the said resolution. Copy of the resolution has been filed and enclosed as Annexure 'H & I'. The Respondent No. 4 has, therefore, prayed for dismissal of the petition being frivolous and vexatious.
Affidavit-in-rejoinder has been filed by Dr. Raza Ali Gardezi one of the petitioners reiterating the facts as stated in the petition. Denying the allegations made by Respondent No. 4 against some of the petitioners. Violaton in construction has been pointed out with reference to utilization of area in excess and it has been denied that the "Clifton area is itself commercialized". It has been urged that Resolution No. 215 dated 18-11-1990 of Governing Body of KDA is not a law, and the alleged "Competent Authority" has no powers to relax regulations by permitting the construction on the said plot on the basis of plot ratio 1:3.5 when it should not be more than 1:75.
Parawise comments have been filed on. behalf of respondent/KBCA. Preliminary objections have been taken that petitioners have no locus standi to file this petition which even otherwise suffers from laches. While tracing the history of the case, it has been stated that the subject plot is located on 200 feet wide road Khayaban-e-Roomi and it was allocated for the construction of flats and shops. Proposed building plan was approved in the year 1974 for ground + 10 + Penthouse, shops at front ground floor and residential flats on upper floors. The fully constructed building was commercialized by competent authority on payment of commercial charges in 1989 and revised approval was granted after commercialization with enhanced plot ratio 1:3.5 on 30-6-1990. After obtaining such approval, the owner converted the existing building for commercial in 1990 but the additional approved construction was not carried out at that time. Owner submitted revised approval on the basis of earlier approved area with plot ratio 1:3.5 and after clearance of Master Plan Department, the approval was granted for Basement + ground and first floor at rear open space on 12-3-2002 on usual terms and conditions. It was not denied that the subject plot is of PL category and was allotted for construction of residential flats and plot ratio 1:2 was applicable 7-1/2% shops at front side were allowed. The building plan was approved for ground + 10 + Penthouse + 7-1/2% shops on front at ground floor within the allowable plot ratio 1:2 with 20 feet compulsory open space around. It has been admitted that the entire building constructed as per approved building plan dated 28-8-1974 was purchased by Respondent No. 4 as the apartment building in 1989 which was commercialized by the then Chief Minister of Sindh by relaxing rules and enhancing plot ratio from 1:2 to 1:3.5. Requirement of compulsory open space was also relaxed on 28-8-1989. It has been contended that commercialization was done as per rules and procedures and Architect plan was approved accordingly with ratio to 1:3.5. It has not been denied that all NOCs as referred were cancelled in the year 1990 including that of the subject building but it was later restored on 2-1-1992 by the then Chief Minister on an appeal filed by Respondent No. 4. Public objections were invited by KBCA in this regard but `objections were not received from anyone including from the petitioners. Approval of revised proposed building plan has been admitted after clearance from Master Plan Department and Environment Control Department of KDA. It has not been denied that KBCA had restrained Respondent No. 4 from raising construction till final approval. Various allegations against the official of KBCA have been denied, and it has been prayed that the petition is liable to be dismissed as the petitioners are indulging in frivolous litigation due to which public exchequer has suffered great monetary loss.
Rejoinder to comments/counter-affidavit by respondent/KBCA has been filed on behalf of the petitioners reiterating the facts as mentioned in the petition and stating that neither the petitioner suffers from laches nor it can be said that petitioners have no locus standi. To show their bona fide intention and motives, the petitioners have referred to the litigation as a result whereof so many buildings constructed illegally and unlawfully and in violation of rules were ordered to be demolished by the Courts of the country up to the Hon'ble Supreme Court.
We have heard M/s. Naimur Rehman and Rizwana Ismiat learned counsel for the petitioners, Mr. Asim Mansoor Khan learned counsel for the Respondent No. 1, M/s. Munir A. Malik and Faisal Kamal learned counsel for the Respondent No. 4 and Mr. Abbas Ali learned Additional Advocate-General. With their able assistance we have examined the various documents placed on record by the parties in support of their respective contentions. We have also perused the report of the Official Assignee who was appointed to inspect the site, take photographs and submit his report after seeking assistance , of Architect/Engineer as to what extent the construction was raised on the subject plot. . -
Learned counsel for the petitioners in order to show that they have locus standi to file this petition have argued that petitioners being residents of locality and as citizens of Karachi have a right to question the unauthorized and illegal construction being raised in violation of the rules and regulations as envisaged in Sindh Building Control Ordinance, 1979 and Karachi Building and Town Planning Regulations. In support of his contention learned counsel has relied upon the cases reported as (1) M/s. Excell Building and others v. Ardeshir Cowasjee and others (1999 SCMR 2089), (2) Ardeshir Cowasjee v. Karachi Building Control Authority and others (1999 SCMR 2883), and (3) Ardeshir Cowasjee v. Multiline Associates Karachi and others (PLD 1993 Karachi 237), which also covers the objections regarding the locus standi of the petitioners in view of the rule laid down in the, above referred cases we are of the, considered view that this petition is maintainable and the petitioners have locus standi to file this petition.
With reference to the Authority of Chief Minister who cannot be allowed to ignore the requirement of law and statute and cannot use his power in arbitrary manner, learned counsel has referred to State v. Mazharul Haq (1998 MLD 1264) where the case reported as Shehla Zia v. Wapda (PLD 1994 SC 693) was followed. Learned counsel has also referred to State v. Abdullah Shah (1998 MLD 216), PMA v. Government of Sindh (1979 CLC 382), and Al Shafique Housing Society v. PMA (PLD 1992 SC 113). With reference to mandatory requirement of Zoning Regulations, 1972, which are part of the Regulations 1979, according to the terms of acution/allotment, learned counsel has referred to Rahmesh M. Udeshi v. The State (PLD 2003 Karachi 423). So far laches is concerned learned counsel again with reference to Multiline's case PLD 1993 Karachi 237, has argued that in the first instance there is no laches on the part of the petitioners, and even otherwise laches simpliciter is no ground for non-suiting a petitioner if the equities are not against him, as it is not the same thing as limitation.
In rebuttal Mr. Munir A. Malik learned counsel for the Respondent No. 4 who has mainly argued this case virtually on behalf of all the respondents has stated that the subject plot was commercialized after observing all usual formalities and permission has been granted for construction as per approved building plan. Learned counsel further argued that in view of commercialization of the plot, which is within the competence of authority, the ratio for construction shall change and the building plan now approved by the Authority is in accordance with such requirement of law, hence the petition is liable to be dismissed with special costs. ' .
This matter after being heard at length was reserved for orders. However, before the order could be dictated and announced Mr. Munir A. Malik learned counsel for the Respondent No. 4 after supplying a copy to the learned counsel for the petitioners, alongwith his statement has placed on record a copy of decision of City Council published in daily 'DAWN' Karachi dated June 28, 2005 granting/approving "Commercial Status" for major roads of city including Khayaban-i-Saadi, Khayaban-i-Roomi, Nishtar Road and Alamgir Road. In this contenxt learned counsel has also referred to the case reported as Irfan and 7 others v. KBCA and 5 others (2005 CLC 694) decided, by a Division Bench of this Court wherein it has been held as under:
".....the commercialization of plots on main Clifton Road was permitted by way of a resolution passed by the Governing Body of Karachi Development Authority and the process of commercialization of residential plots commenced from the year 1980 and onwards, as a result whereof a large number of plots in the vicinity on main Clifton Road stood commercialized. As observed by the Division Bench of this Court in Excell Builder's case and further reflected in para. 21 of this judgment by now a number of multistoreyed structures had been raised on main Clifton Road. Even from para. 18 of aforesaid judgment of Hon'ble Supreme Court it transpired that conversion of residential plot on main road into commercial plots were not found to be a questionable act. It was only observed that the Building Bye-Laws, Regulations etc. be not violated."
We have given due consideration to the arguments advanced by the learned counsel for the parties, the material placed on record and the law cited at the bar. Apart from the contention of Mr. Munir A. Malik that subject plot was commercialized after observing all usual formalities and such permission was granted for construction as per approved plan; in view of the decision of the City Council approving the commercial status of four major roads including Khayaban-e-Roomi on which the subject plots located, which is within the competence of City Council, position has changed. Grievance of the petitioners that conversion of land use in the plot from residential flat side to commercial is in violation of the applicable law and null and void ab initio stands vanished. No such relief can be granted in view of the conversion allowed by the City Council and despite copy having been supplied to the learned counsel for the petitioners of which an acknowledgement dated 1-7-2005 was obtained by the learned counsel for the Respondent No. 4, the petitioners have not challenged the said decision of the City Council by amending the petition, hence no relief can be granted under the circumstances. Obviously, as per rules and regulations governing the ratio of the area to be constructed, the same shall change in view of the change of the use of the subject plot. The other relief as sought except to the extent of violation, if any, in the approved building plan, is no more available to the petitioners. We are in respectful agreement with the view taken by another Division Bench of this Court in the case of Ifran and 7 others v. K.B.C.A. and 5 others (2005 CLC 694), and while dismissing the constitution petition we would direct the Karachi Building Control Authority to critically examine the construction raised or being raised as to whether the same is in accordance with the approved plan, and deviations, if any, being not regularizable, shall be removed/demolished by the competent authority within a period of three (3) months under intimation to this Court.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2007 Karachi 17
Present: Muhammad Moosa K. Laghari, J.
AMIR RAWAN and others--Appellants
versus
FACTORY MANAGER PHARMATEC (PAKISTAN) LIMITED, KARACHI and others--Respondents
Lab. A. Nos. 86 to 103 of 2005, decided on 13.10.2006
(i) Back Benefits--
----Owing to illegal act of respondent, appellants had become jobless and they had no means of earning--Plea was re-asserted in evidence and was not challenged in cross-examination--Non of the management witnesses asserted otherwise in their affidavits in evidence to controvert the claim of unemployment made by the workers--Appellants being entitled were allowed back benefits. [P. 24] F
(ii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----Ss. 10, 25-A & 48--Grievance petitions--Assailed--Employment on permanent basis--Relationship of employer and employee, its denial--Principle of natural justice--Appreciation of evidence--Grievance petitions were dismissed on the grounds that there was no relationship of employer and worker between the parties and that appellants were employed on daily wages basis through contractor and therefore, were not entitled to any relief--Held: Observation of the labour Court was manifestly misconceived, as there was no category of daily wager in Standing Orders Ordinance--It did not matter at all for the application of Standing Orders Ordinance, whether the wages were payable on hourly basis, daily basis, weekly basis or monthly basis--Main consideration is the nature of work for which a worker was employed--Evidence adduced on record made it crystal clear that respondents had not challenged any assertions made by the appellants in their affidavits in evidence--Certain forms of overtime filed with affidavits in evidence could not also be controverted--Further held: Consequent upon clear cut admission by respondent witness that "it is correct that applicants were employees of Factory Manager Pharmatec through contractor" there was no room for doubt that the appellants were the employees of the respondents and their termination was illegal and that they were removed for malicious reason. [Pp. 22 & 23] A, B & C
SBLR 2004 Sindh 614 and 2005 PLC 466, ref.
(iii) Law of Estoppel--
----Statutory right--Registration of trade union was declined by the Registrar on the ground that the appellants were not workers employed by the respondents, and such refusal by the registrar was not challenged, therefore, it would constitute a bar in agitating the individual grievance petitions, is obviously misconceived for the simple reason that statutory right provided by law to an individual worker could not be taken way by an act on the part of trade union, more particularly when its registration was conveniently declined by registrar on the application initiated by respondents. [P. 24] E
(iv) Malice--
----Respondents management took wavering pleas and could not produce reliable evidence to rebut the pleadings of the appellants--Acts on the part of the respondents appeared to be vindictive and tainted with malice--Respondents had produced a letter written by a witness addressed to Joint Director Labour, disclosing therein that some ex-workers of the contractor were attempting to form a fictitious trade union in order to black-mail and pressurize the management--Formation of the trade union was the main cause of annoyance of the respondents. [P. 23] D
(v) Re-instatement in Service--
----Judgment passed by Labour Court was set aside and the appellants were directed to be reinstated in service with immediate effect. [P. 24] G
Mr. Shahenshah Hussain, Advocate for Appellants.
Mr. Shahid Anwar Bajwa, Advocate for Respondents.
Date of hearing: 6.9.2006.
Judgment
Since all the appeals arise out of common order those are being disposed of by single judgment.
Through these appeals, the appellants have challenged order dated 28.4.2005 whereby the grievance petitions filled by the petitioners were dismissed by Labour Court No. III Karachi.
Briefly stated the case of appellants before the Labour Court was that they were employed on permanent basis in the respondent company and were working there since last many years. It was pleaded that the appellants, formed a trade union under the name and style of "Pharmatec Mehnatkash Union" and submitted the documents to the Registrar for its registration. The appellants claimed to be active members/office bearers of the newly formed trade union. As soon as they served notices upon the respondents under Section 10 of IRO 2002, the respondents called the appellants in their office on 1st December 2003 and by causing intimidation, pressure, coerced them to sign some pre-written/pre-typed papers and further threatened them of dire consequences, in case they declined to sign those papers. It is alleged that on their refusal, appellants/applicants were informed by the Manager of respondent company that they were removed from employment and need not report for duty from the next day. It was pleaded that without service of any written order or notice and without any opportunity of hearing, entry of appellants was banned in the factory, thus their termination was illegal.
Consequent upon service of grievance notice to the respondents, the applicants filed individual grievance petitions praying therein for re-instatement.
Upon service the respondent/management filed legal objections and reply statement. The respondents pleaded that the appellants/workers were engaged by M/s Sultan Brothers an independent contractor who was given some work on contract basis by respondent company as a measure of reorganization, as such the appellants were not employees of respondent company. It was further pleaded that neither a cause of action accrued to the applicants nor they had locus-standi to maintain their petitions. Further that none of their secured or guaranteed right was infringed. It was pleaded that some works of factory were given to the contractor and that they might have engaged some of the applicants, who in any case could not be deemed to be the employees of the respondent. Respondents accordingly prayed for dismissal of the appeals.
It appears that on the pleadings of the parties Labour Court framed following points for determination:--
Whether there exists relationship of master and servant between the parties ?
Whether applicants' services have been illegally terminated by the respondent company ?
Whether applicants are entitled for the relief claimed in this case ?
What should the order be ?
Each of the applicants/appellants appeared in the witness box as his own witness and was cross-examined, while M/s Ziaul Haq Factory Manager and Sultan Ahmed, contractor were tendered in evidence on behalf of the respondents and were duly cross-examined.
Learned Trial Court arrived at the conclusion that there was no relationship of employer and worker between the applicants/appellants and respondents and that the applicants were employed on daily wages basis through contractor and therefore were not entitled to any relief. Consequently the grievance petitions were dismissed.
Arguments were heard.
In support of appeals it was contended on behalf of the appellants that the termination of the appellants was tainted with malice, the contractor was a set-up witness and that the action of respondents was vindictive, the order passed by Labour Court was against evidence, illegal, illogical and this unsustainable.
Conversely it was argued on behalf of respondents that the applicants had no proof of employment with respondents, the registrar has refused to register the so-called trade union formed by the applicants which act has not been challenged before any forum, therefore, has attained finality. In any case the applicants were not employees of the respondents and the burden of proving such fact was upon the applicants/appellants, which was not satisfactorily discharged by them. It was further argued that the respondents have produced ample evidence to show that the applicants have no relationship whatsoever with the respondents. The applicants were employed by an independent contractor, besides that they were not employed on the job of permanent nature. In any case, the respondents were not responsible for the employment/wages of the appellant.
Good number of authorities was cited by each of the contesting parties in support of their contentions.
I have considered the arguments advanced before me, scanned the evidence adduced on record and have also sought guidance from the relevant case law on the subject besides the rulings cited before me.
It is the case of the appellants that they were employed by the respondents in the factory and were working there since last many years. They formed a trade union namely "Pharmatec Mehnatkash Union" and sent such intimation to the respondents. This act of the appellants/workers annoyed the respondents management and on receipt of such letters regarding formation of trade union they were removed from service, as they refused to sign some pre-typed papers. Accordingly with effect from 2nd December 2003, the appellants were not allowed to enter the factory. It is further case of appellants that contractor namely M/s. Sultan Brothers is fake person and so called agreement is fictitious documents.
Contrary to this, the case of respondents is that the appellants have no concern whatsoever with the respondents. It is their case that the respondents as a measure of reorganization have awarded some work on contract to M/s Sultan Brothers vide agreement dated 1st March 2001, which is a separate independent identity. It is further the case of respondents that the contractor engages/employees his own labour/workers to undertake the contractual work independently in the company premises according to requirement and specification of the respondent company. The wages to the labour are paid by contractor and work is also supervised by him.
In the written statement the respondents have stated that the applicants were engaged on daily wages basis by the contractor M/s Sultan Brothers who is independent employer in his own right.
In the written statement filed by respondents it is admitted that the appellants were working within factory premises of the respondents. It is also admitted in the written statement that the appellants/applicants were engaged on daily wages basis. The defence taken by the respondents is only to the extent that the applicants appellants were employed by the contractor and not by respondents. The agreement produced in evidence is of general nature as it does not provide any specific job to be done by contractor.
The respondents' witness namely Ziaul Hassan has expressly admitted in cross-examination that it is correct that the applicants were employees of respondent company but through contractor. He admitted that the attendance of workers for October and November contained signatures of Personal Manager of the Company.
Muhammad Sultan owner of contractor company who also appeared as a witness of respondent candidly admitted in cross-examination that he did not know any of the applicants. He further stated that he used to issue appointment letter whenever he appointed any worker. Mr. Ziaul Hassan a witness tendered in evidence on behalf of respondent stated in Para 6 of his affidavit-in-evidence that the applicants were engaged on daily wages basis by the contractor M/s Sultan Brothers who was independent employer in his own right. Witnesses reasserted the same plea in Para 8 of his affidavit-in-evidence stating that the applicants were engaged by the independent contractor and were not employees of respondent company. It is strange that contractor namely Muhammad Sultan also in Para 3 of affidavit-in-evidence though admitted that the applicants were engaged by M/s Sultan Brothers on daily wages basis to carry out the contractual job assigning in the factory premises of respondent. He in Para 6 of affidavit-in-evidence stated that the applicants alongwith few temporary workmen were paid off on 21.11.2003 by the contractor and Para 9 and 10 of affidavit-in-evidence deposed that the members and office bearers of Pharmatec Mehnatkash Union including applicants were engaged/employed by M/s Sultan Brothers on daily wages basis and were paid off on 21.11.2003. Whereas in cross-examination, he stated that whenever he appointed any employee he used to issue appointment letter and further refused to identify the applicants.
The Labour Court observed that since applicants were employed on daily wages basis they could not be termed as permanent employees and that there was no relationship of employer and employee between applicants and respondents.
To say the least, this observation is manifestly misconceived, as there is no category of daily wager in the Standing Order Ordinance. In my opinion it does not matter at all for the application of Standing Order Ordinance, whether the wages are payable on hourly basis, daily basis weekly basis or monthly basis. The main consideration is the nature of work for which a worker is employed. The applicants have asserted that they were employed on permanent basis.
The evidence adduced on record makes it crystal clear that respondents have not challenged any assertion made by the applicants in their affidavit-in-evidence. Certain forms of over time were filed alongwith affidavit-in-evidence of the applicants but they could not be controverted.
Consequent upon clear cut admission by respondent witness Ziaul Haq, who happened to the Notified Manager that "It is correct that applicants were employees of our company through contractor" there is no room for doubt that the applicants were the employees of the respondents, and their termination was illegal and that they were removed for malicious reason.
In the case of Dawood Cotton Mills SBLR 2004 Sindh 614 a learned Division Bench of this Court observed as under:
"Learned counsel indeed appears to be correct to the above extent and it needs to be seen in every case whether the person described as a contractor is really an independent contractor required to perform contractual obligations in relation to an establishment for which he has to employ workers to carry out duties under his own supervision and control or whether he acts as a mere agent of the owner of the establishment for supplying work force to the later. Such question have cropped up on several occasions and Courts have carefully gone behind paper arrangements described as "contacts" and at times it has been found that such "contracts" were merely designed to deprive workers of the rights and privileges that they would have enjoyed by virtue of being employees of the establishment. On other occasions the workers were found to be genuinely employed by independent contractors and owners of establishment were absolved of all liabilities".
Same view was followed in the case of Fauji Fertilizer Company Limited Vs. Sindh Labour Appellate Tribunal and others reported in 2005 PLC 466.
Admittedly the applicants were working within the precincts of factory and were engaged in the manufacturing process. Respondent management took wavering pleas and could not produce reliable evidence to rebut the pleadings of the applicants. The acts on the part of the respondents appear to be vindictive and tainted with malice. Respondents have produced R/4 alongwith their written reply, which is a letter written by witness Ziaul Haq addressed to Joint Director Labour (West) dated 6.12.2003 disclosing therein that some ex-workers of the contractor were attempting to form a fictitious trade union in order to black mail and pressurize the management, as they have received such letter. This shows that the formation of the trade union was the main cause of annoyance of the respondents.
The agreement claimed to have been executed with the contractor is absolutely silent about the nature of work to be performed by the contractor. This appears to be a spurious documents, having been manipulated by the respondents to avoid the compliance of labour laws. Under S.O 20 the respondents were liable for application of standing Orders, in which they failed.
The legal objections raised on behalf of the respondents to the effect that since registration of trade union was declined by the registrar on the ground that the applicants were not workers employed by the respondents, and such refusal by the registrar was not challenged therefore it would constitute a bar in agitating the individual grievance petitions is obviously misconceived for the "simple reasons that statutory right provided by law to an individual worker could not be taken away by any act on the part of trade union more particularly when its registration was conveniently decline by registrar on the application initiated by respondent.
For the forgoing reasons, the appals are allowed. Judgement passed by Labour Court is set aside and applicants are directed to be reinstated in service with immediate effect.
Regarding the back benefits, it may be observed that each of the applicants specifically pleaded that owing to illegal act of respondent, the applicants/appellants have become jobless and they have no means of earning. This plea was reasserted in Para 10 of affidavit-in-evidence and was not challenged in cross-examination. None of the management witnesses asserted otherwise in their affidavit in evidence to controvert the claim of unemployment made by the workers. In the circumstances appellants are entitled to back benefits. They are accordingly allowed back benefits also.
(Nadeem Jamal) Appeals allowed
PLJ 2007 Karachi 24 (DB)
Present: Anwar Zaheer Jamali & S. Zawwar Hussain Jaffry, J.
NAJMUL HASSAN ATA & 4 others--Appellants
versus
HABIB BANK LIMITED KARACHI through its PRESIDENT
& 5 others--Respondents
First Appeal No. 67 of 2005, decided on 31.8.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 58--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 22--Transfer of Property Act (IV of 1882), S. 58--Contract Act, 1872--S. 128--Contentions--Impugned judgment against her is unjustified inasmuch as she was not the original borrower but had executed some documents in favour of Bank to secure their payment from other appellants and respondents--He made reference to register mortgage deed--Personal guarantee and Memorandum of Deposit of Title Deed, which were executed by appellant--Contended that her liability for repayment of decreetal amount should have been restricted only to extent of liability created on her through these three documents, and nothing beyond that. [P. 26] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.XXI, R. 58--Transfer of Property Act, (IV of 1882), S. 58(f)--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 22--Contract Act, 1872, S. 128--Respondent initially instated that impugned judgment and decree passed against appellants is binding on her upto the maximum limit of decreetal amount, but he could not controvert the submission on behalf of appellants that the liability of appellants will be confined only to extent of liability created against her through the execution of these three documents. [P. 26] B
Mr. Mukhtiar Ahmed Kober, Advocate for Appellants.
Mr. Badar Alam, Advocate for Respondent No. 1.
None for other Respondents.
Date of hearing: 31.8.2006.
Order
This appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, is directed against the judgment and decree dated 18.7.2005 and 24.7.2005 respectively passed by Banking Court No. 1 at Karachi in Suit No. 607 of 2003. Against the same judgment another Appeal Being Ist Appeal No. 47/05, was preferred by Respondents Nos. 3 to 6, which was dismissed in limine vide order of this Court dated 30.8.2005, except for the sum of Rs. 28,980/- for which pre-admission notice was issued to the respondents in that appeal. Today when Ist Appeal No. 47/05 came up for hearing before us with reference to such limited controversy, highlighted in order dated 30.8.2005, we have dismissed the same in limine as per separate order passed in that appeal.
Mr. Mukhtiar Ahmed, learned counsel for appellants realizing this position has frankly conceded that Appellants Nos. 1 to 4 have no case to pursue this appeal as the judgment passed in Ist Appeal No. 47/05 dated 30.8.2005 read with order dated 31.8.2006 is squarely applicable to their case. However, with reference to the position of Appellant No. 5, Mst. Tajunissa Begum, who is now dead and is represented through her daughter Musrat Munir, he contended that the impugned judgment against her is unjustified inasmuch as she was not the original borrower but had executed some documents in favour of Respondent No. 1 Bank, to secure their payment from other appellants and Respondents Nos. 2 to 6. He made reference to registered Mortgagee Deed dated 13.9.1992. Personal Guarantee dated 3.9.1992 and Memorandum of Deposit of Title Deed which were executed by Appellant No. 5 Mst. Tajunissa, and contended that her liability for repayment of the decreetal amount should have been restricted only to the extent of liability created on her through these three documents, and nothing beyond that.
Mr. Badar Alam, learned counsel for Respondent No. 1 initially insisted that the impugned judgment and decree passed against Appellant No. 5 is binding on her upto the maximum limit of decreetal amount, but he could not controvert the submissions of Mr. Mukthtiar Ahmed that the liability of Appellant No. 5 will be confined only to the extent of liability created against her through the execution of these three documents. This being the position, the impugned judgment and decree can be executed against Appellant No. 5 only to the extent of her liability in view of the above referred three documents.
With the above observations, this appeal, otherwise having no merits, is dismissed in limine alongwith the listed application.
(Rafaqat Ali Sohal) Appeal dismissed
PLJ 2007 Karachi 26
Present: Gulzar Ahmad, J.
KHURSHEED AHMED--Plaintiff
versus
FAYYAZ AHMAD and 7 others--Respondents
Suit No. 95 of 2006 in CMA No. 547 & 548 of 2006, decided on 15.2.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Resjudicata--Suit for administration, partition and permanent injunction--Letter of administration in respect of the subject matter had already been granted by the District Judge against which an appeal was still pending--Held: Suit was hit by resjudicata. [P. 28] A
Mr. Saathi M. Ishaque, Advocate for Plaintiff.
Date of hearing: 15.2.2006.
Order
On 31.1.2006 the plaintiff's Counsel was asked to show as to how this suit was maintainable and the matter was adjourned to 10.2.2006. On 10.2.2006 learned Counsel made a statement before my learned brother Khilji Arif Hussain, J that in almost identical matter Being Suit No. 287/2005 was admitted by me. The matter was ordered to be placed before me. Mr. Saathi M. Ishaque was asked to show the copy of the order passed in Suit No. 287/2005. He however, showed me copy of cause list of 6.2.2006 in which Suit No. 287/2005 is showing to have been fixed before me. Learned Counsel did not show the order that may have been passed in Suit No. 287/2005.
I have heard the learned Counsel on the maintainability of Suit. It seems that SMA Bearing No. 219/2003 was filed in the Court of District & Sessions Judge, Karachi (Central) by the Defendant No. 1 in which the plaintiff was shown as respondent. The said SMA was granted by order dated 28.2.2004 (Annexure-D to the plaint) by which the Court allowed issuing of Letter of Administration in respect of the property to the petitioner namely the Defendant No. 1 while the plaintiff was appointed as guardian ad litem of the mentally retarded persons namely Naseer Ahmed, Muhammad Iqbal and Nasreen Begum. The plaintiff was aggrieved by this order and has filed a Miscellaneous Appeal No. 26/2005 in this Court under Section 384 of the Succession Act which is stated to be pending (Annexure-J to the plaint). The learned Counsel was asked as to what the precise grievance of the plaintiff is, he states that plaintiff is one of the legal heirs of deceased Ghulam Sarwar and that immovable property in respect of which the SMA was filed is in his possession and that the value in the SMA has been wrongly given that of Rs. 22,00,000/- (Rupees Twenty Two Lacs) though it is valuing Rs. 40 to 50,00,000/-. He states that pursuant to the grant of the Letter of Administration the Defendant No. 1 and the other legal heirs of the deceased are trying to dispossess the plaintiff and to sale the property. In substance the grievance of the learned Counsel appears to be relating to the SMA that was filed in the Court of District & Sessions Judge, Karachi (Central) in which Letter of Administration has been granted and the order granting such Letter of Administration has been challenged by way of an appeal which is stated to be pending in this Court. The learned Counsel states that he has made certain miscellaneous application in the appeal regarding the valuation of the property and for obtaining some other reliefs. He is unable to show that as to how in the face of pendency of an appeal, the suit can justifiably be maintained by plaintiff. He merely says that the suit has been filed only to obtain proper valuation of the property and also that the plaintiff be not dispossessed from the property. It may be noted that the property in question was subject-matter of SMA No. 219/2003 which has been disposed off and now the appeal in respect of it is pending in this Court and all matters relating to the subject property are to be dealt with and decided in the proceedings of the said SMA and the appeal arising from it. No justifiable reason or cause has been shown for the maintaining to the present suit. The suit is for administration, partition and permanent injunction. Letter of administration in respect of the subject property has already been granted by the District & Sessions Judge, Karachi (Central) which is the subject-matter of the Miscellaneous Appeal No. 26/2005 which is stated to be pending in this Court. In the face of the above proceedings, the maintainability of the present suit is wholly doubtful. No law has been shown by the learned Counsel for the plaintiff to support the same although he was aware that the question of maintainability of suit has already been raised by the Court. Consequently, the suit appears to be barred under the principles of res judicata as provided under Section 11 of the CPC as similar dispute has been decided between the parties in SMA No. 219/2003 and now an appeal is pending against it.
For the above reasons, the suit stands dismissed with no order as to cost.
All the pending applications are also disposed off accordingly.
(Javed Rasool) Petitions disposed of
PLJ 2007 Karachi 28 (DB)
Present: Mushir Alam & Azizullah M. Memon, J.
MUHAMMAD HANIF KHAN--Petitioner
versus
PROVINCE OF SINDH through SECRETARY LAND UTILIZATION DEPARTMENT SINDH SECRETARIAT KARACHI
and 8 others--Respondents
C.P. No. 1229 of 2005, decided on 11.5.2006.
(i) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 6 & 45--Constitution of Pakistan, 1973, Arts. 23 & 24--Valuable right guaranted--Notification--Objections inviting--No person could be condemned unheard, deprived of his property or divested of property without due course of law--Purpose of publication of Gazette Notification is to inform the person effected and public-at-large for the proposed acquisition of land for public purpose--Publication and circulation of official gazette is but limited and usually confined to meetthe statutory requirement of law. [P. 31] A & B
(ii) Notification--
----Essentials--It tends to communicate and dispense limited access circulation of official gazette/notification at times defeat the principles of natural justice and frustrate the very object of law--So it is essential to comply with requirement of natural justice, notification u/Ss. 4 and 6 of Land Acquisition Act, he issued and served upon the recorded owners or the affected person. [P. 31] C
(iii) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 6 & 45--Constitution of Pakistan 1973, Arts. 23 & 24--Fundamental rights--Valuable property right--No body could be deprived of it--Object of--One of the essential intrinsic requirements of principle of `natural justice' is to give proper and meaningful opportunity to the affected person to challenge and raise objection to the proposed or likely acquisition of land under the Land Acquisition Act, 1894--Petition disposed of. [P. 32] D
Mr. Farrukh Nasim, Advocate for Petitioner.
M/s Saalim Salam Ansari Mukhtiar Ahmed Kober & Irfan G. Ali, Advocates for Respondents.
Mr. Manzoor Ahmed, Advocate for CDGK.
Ch. Rafiq Rajveri, A.A.G. for Respondents.
Date of hearing: 11.5.2006.
Judgment
Mushir Alam, J.--Petitioner has impugned the notification dated 23.2.2005 under Section 4 of the Land Acquisition Act, inviting objections as to acquisition of Petitioner's land. Main thrust of the arguments of the learned counsel for the Petitioner appears to be that the Petitioner is the owner of the subject property, right was perfected pursuant to the orders passed in legal proceeding in Suit No. 1201/98.
It is stated that earlier attempt of the Respondent Numbers 8 and 9 to acquire the private property of the Petitioner was successfully defeated in Suit No. 1201/1998. Claim of the Petitioner was sustained in HCA No. 88/01, copy of the judgment is available at page 291.
It is urged by the learned counsel that, after being unsuccessful in attaining their designs to deprive the Petitioner from the subject property, Respondents Nos. 8 & 9 have used armed forces as a cloak and conduit to deprive the Petitioner of their property. According to him, impugned notification is motivated aimed at personal aggrandizement of officers of NLC. It is urged that, in terms of the notification, whereunder NLC was established, it is clearly specified that the NLC could acquire the land through specified mode namely rent, purchase or lease, as reflected in the orders of the Court available at page 207 @ page 221). It is stated that the land is being acquired in a dubious manner as no notice was issued to the Petitioner, impugned notification was got published in a surreptitious manner in gazette. According to the learned counsel such clandestine mode of acquiring the property is violative and prejudicial to the fundamental rights to property guaranteed in terms of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. It was urged that, rights as guaranteed under the constitution are jealously guarded by the Court. It is further urged that sufficient land in the vicinity and area around the Petitioner's land is available and resting with Provincial Government, which could have been easily acquired. It is urged that some of the officers of the NLC have made it a matter of ego, and at all cost want to deprive the Petitioner of his land. In support of his contention he has placed reliance on a case reported as Abdul Ghani and another v. Province of Baluchistan 2 and others PLD 1992 Quetta 63), the Court did not approve the land acquisition proceedings without service of Notice on the person effected. In another case reported as Mst. Surayya Aziz v. Collector, Lahore District, Lahore and 2 others (2003 CLC 1510), when the acquisition of land under MLO was successfully defeated, subsequent resort to acquire land under the Land Acquisition Act, was held to be motivated under the garb of public interest.
Dr. Farough, further points out that the limitation of 30 days to file objection had long lapsed as the Petitioner was not served any notice nor was aware of the impugned Notification.
Mr. Saalim Salam Ansari, learned counsel appearing for the Respondents Nos. 8 & 9 contended that no personal notice on the petitioner is required, the notification has been issued in due compliance of Section 4 of the Land Acquisition Act. When the attention of the learned counsel was drawn to Section 45 of the Land Acquisition Act, he conceded that no personal notice was served. He however, without contesting the matter further, on instructions submits that the Petitioner may file his objection within 30 days from today and controversy as to vires of notification and malafide could be raised and examined by the authority under the Land Acquisition Act.
Mr. Manzoor Ahmed learned counsel for CDGK is also of the similar view.
Right to property is valuable right guaranteed under Articles 23 and 24 of the Constitution of Pakistan. No person could be deprived of his property save in accordance with law. Land Acquisition Act, 1894 is one of such law under which a person could be deprived of his personal property, provided of course, it is acquired or sought to be acquired "for public purpose" and only in manner as provided therein. Action as to acquisition and or "public purpose" is justifiable. Publication of the Notification in the official gazettes, though sine qua non for assumption of jurisdiction under the Land Acquisition Act, it is first step towards acquisition. Purpose of publication of gazette Notification is to inform person affected and the public at large for the proposed acquisition of land for public purpose. It is now a settled principal of law that no person could be condemned unheard, and no person could be divested of property without due course of law, principles of natural justice is deemed to be imbedded and enshrined in every statute, unless expressly excluded. Where the recorded owner of the land, proposed to be acquired, is ascertained and is known, then notice to such person is necessary, publication of Notification in official gazette meets only the extrinsic and not the intrinsic requirement of law. It is common knowledge that publication and circulation of Official Gazette is but limited and usually confined to meet the statutory requirement of law. It has come to notice that, at times not many persons are aware of the important and valuable information that a Gazette Notification tends to communicate and dispense. Limited access and circulation of official gazette notification at times defeat the principal of natural justice and frustrate the very object of law. In order to comply with the requirement of principal of natural justice, at the time of publication and issuance of Notification under Section 4 and or 6 ibid notice under Section 45 of the Land Acquisition Act may also be served on the recorded owners or on the affected person.
Object of Land Acquisition Act, is not to deprive a person from his property right without due process of law. One of the essential intrinsic requirements of principal of natural justice is to give proper and meaningful opportunity to the affected person to challenge and object to the proposed or likely acquisition of land under the Act of 1894.
Since the Respondents have conceded to such right of the Petitioner, we do not deem it necessary to engage ourselves into controversy as raised in the petition as to vires of impugned Notification, therefore, the Petition is being dispose off in the following terms:--
(1) Petitioner shall file his objection to the impugned notification dated 23.2.2005 within 30 days from the date of passing of this order.
(2) Petitioner shall be entitled to challenge the impugned notification and may raise all objections as raised in this petition or any other objections as may be available to him under the law.
(3) The authority concerned shall pass appropriate speaking orders dealing with all objections as may be raised by the Petitioner, after providing opportunity of being heard to the Petitioner, personally or though his counsel/representative strictly in accordance with law.
(4) The authority shall decide the objections preferably not later than 60 days from the date of filing of the objections.
(5) Till passing of the order and or final determination of the rights of the Petitioner's subject to appeal as may be permissible under the law, the Respondents shall not take any coercive action against the Petitioner nor disturb his possession.
(6) Petitioner shall also not create any third party interest nor shall change the complexion of the property till final determination of controversy in Land Acquisition Act.
Petition in terms of the above disposed of with no order as to costs.
(Zulfiqar Ahmed) Petition disposed of
PLJ 2007 Karachi 33 (DB)
Present: Anwar Zaheer Jamali And Syed Zawwar Hussain Jaffery, JJ.
NESTLE MILK PAK LTD.--Appellant
versus
SINDH INSTITUTE OF UROLOGY and others--Respondents
H.C.A No. 271 of 2004, decided on 1.9.2006.
Pakistan Environmental Protection Act, 1997 (XXXIV of 1997)--
----S. 12--Easements Act, (V of 1882), S. 7--Civil
Procedure Code, (V of 1908), O.I, R. 8 & S. 151--Specific Relief Act, (I of 1877), Ss. 39, 42 & 53--Suit for declaration and cancellation of documents--Specified area for Education City'--Effect on environment and residents of area--Public interest litigation--Scope--Plaintiff/respondents
(Health & Educational Institutions) filed a suit for declaration and cancellation of documents against defendants/appellants, to the effect that a certain area, to be termed as "Education City", was to be reserved for the purpose of establishing health and educational institutions/projects and one of the defendants (water bottling company) had acquired land in
"Education City" in a legally defective manner--Plaintiffs averred in their suit that; defendant/company was setting up a water bottling plant over land in-question for their use of sub-soil water/aquifer in huge quantities; that act of defendant--Company was likely to cause scarcity of water for use of plaintiffs and other institutions to be set up in that area in future; that defendants project was in violation of S. 12 of Act, 1997--Defendant had not obtained any requisite permission under Canal and Drainage Act, 1873--Defendant, denied assertions of plaintiffs as to; any illegality committed by it in acquiring ownership of land; legality of title of plaintiffs in respect of land claimed by them; existence of "Education City" in the area; causing of any damage to sub-soil water/aquifer due to operation of their water bottling plant over its land--Construction of building and installation of plant by it over its land was in accordance with law; that it had obtained necessary permission from concerned Agencies including Environmental Protection
Agency; that project was intended to provide portable water to citizens of
Pakistan; that suit, which was allegedly not maintainable, was filed by plaintiff with delay and that under S. 7 of Easements Act, 1882, every owner of land had absolute right to enjoy and dispose of his immovable property, subject to any law, for the time being in force and while there was no law in Pakistan prohibiting defendant from using sub--soil water in quantity they needed to extract by installation of two tubewells in defendant`s own land--Validity--Held: Extraction of alleged brackish water from aquifer by defendant in huge quantities was not to disturb aquifer and environment of area and it was difficult to believe that having of land in area was to remain within their legal rights to extract such huge quantities of water on plea of being brackish without causing prejudice/harm to interests of other residents of the area, particularly when area in-question was situated in a country where natural source of water for aquifer i.e. raining, was negligible and highly insufficient--Plaintiffs were not responsible for delay in approaching the
Court, rather filing of written statement was delayed by defendant, so as to avail maximum benefit of order of the Court.
[P. 47] B & C
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2, S. 151--Pakistan Environmental Protection Act, 1997, S. 12--Area specified for education city--Plaintiffs/respondents had succeeded to make out prima facie case in their favour and had also met with other ingredients i.e. balance of convenience, irreparable loss and injury, which justified grant of interim injunction in their favour--Appeal was dismissed. [P. 47] A
Civil Procedure Code, 1908 (V of 1908)--
-----O.I, R. 8--Public interest litigation--Locus standi--Scope--Question of locus standi and personal grievance of plaintiffs in the form of filing suit, had lost its significance in view of the fact that already steps had been taken in the suit to bring it within the category of representative suit and controversies raised in suit were also in the nature of public interest litigation rather than to be confined to the interest of plaintiff. [P. 48] D
1995 SCMR 650; PLD 1993 Kar. 190; 2000 CLC 1276; 2002 PLC (C.S.) 889; 1978 1 All ER 625; AIR 1919 Patna 503; (1843-60) All ER Rep 77; (1895) AC 587; 2004 (1) KLT 731 (Kerala High Court); (1981) 2 Supreme Court Cases 205; (1997) Supreme Court Cases 388; (1983) 33 Cal. 3rd 419 (Supreme Court of California); 6 Cal. 3d 251 (Supreme Court of California); 2004 SBLR Sindh 763; 2001 YLR 1139); 34 LJCP 352; PLD 1978 Kesh. 157; PLD 2002 Lah. 555 and AIR 1937 Calcutta 245 ref.
PLD 1983 Kar. 387 and 1992 CLC 2540 rel.
Mr. Khalid Anwar, Advocate for Appellant.
Qazi Faiz Isa, Advocate for Respondents.
Anwer Mansoor Khan, A.-G., Sindh for Respondents No. 5 and 6.
Nemo for the remaining Respondents.
Date of hearing: 1.9.2006.
Order
Anwar Zaheer Jamali, J.--This High Court Appeal under Section 15 of Ordinance X of 1980 is directed against the order, dated 30th November, 2004, in Suit No. 567 of 2004, passed by learned single Judge of this Court, whereby he confirmed the interim order, dated 24-5-2004, as extended from time to time, passed on C.M.A, No. 3717 of 2004 by granting the said application and also dismissed C.M.A. No. 5343 of 2004 filed on behalf of the appellant.
"(a) Declare that the Defendant No. l has no right, title or interest in Na-Class No. 106, Deh Chuhar, Karachi;
(b) Direct the Defendant No. 1 to vacate possession of 20 acres of land in Na-Class No. 106, Deh Chuhar, Karachi and failing which eject the Defendant No. 1 therefrom with police aid;
(c) Cancel `Lease Agreement' dated 12-11-2003 and any all other documents of title in favour of Defendant No. 1;
(d) Declare that the Defendant No. 1 cannot build, construct or set up an industrial unit or factory in Deh Chuhar area;
(e) Restrain the Defendant No. l from building, constructing or setting up an industrial unit or factory in the Deh Chuhar area;
(f) Declare that the land situated in the area of Deh Chuhar, Karachi or in the Education City area can only be allotted for education and or health use;
Or alternatively, declare that the land situated in the area of Deh Chuhar, Karachi can only be allotted in accordance with the statement of conditions and applicable law, rules and condition;
(g) Direct the Defendants No. 2, 3 and 5 not to allot any land in Deh Chuhar or Education City area of Karachi for other than education or health purposes;
(h) Grant such other additional, further or better relief(s) as may be deemed appropriate by this Hon`ble Court in the facts and circumstances of the case; and
(i) Grant costs."
"Name of Institution Land in Acres
(1) Plaintiff No. 1 Sindh Institute of 100 acres
Urology and Transplantation
(2) Plaintiff No. 2 Aga Khan Hospital and 653 acres
Medical College Foundation
(3) Plaintiff No. 4. Shaheed Zulfiqar Ali 300 acres
Bhutto Institute of Science and Technology
(4) Sindh Madressahtul-Islam Board`s 200 acres
Quaid-e-Azam Public School
(5) Newports Institute of Communication 20 acres
and Economics
(6) Sir Syed University of Engineering and 200 acres
Technology
(7) Shaukat Khanum Memorial Cancer and 20 acres
Research Centre
(8) Ziauddin Medical University 25 acres."
It is also the case of Respondents No. 1 to 4 that they were given a clear understanding that the whole area to be termed as "Education City", located in Deh Chuhar, will be reserved for catering to acute public demand for and need of education and health and will not be permitted to be used for any other purpose and such understanding had prompted them to work out their strategy for huge investments in foreign exchange to manage their respective projects/institutions in the field of education and health care.
The grievance of the Respondents No. 1 and 4 against the appellant is that the appellant being motivated to increase profitability in their water bottling business have decided to set up a water bottling plant close to Karachi city, aimed at saving considerable transportation costs in supplying bottled water to Karachi city, in addition, by tapping into and making free use of sub-soil water "aquifer" lying underneath the education city area of Deh Chuhar. For this purpose, appellants have acquired land in the education city area after ban was imposed by Respondent No. 8 on 17-2-2003. To achieve their goal, they have acquired 20 acres of land in the education city area (Deh Chuhar) that too in a legally defective manner. The land was apparently allotted to them by Respondent No. 6 from Na-Class 108, Deh
Chuhar pursuant to letter, dated 25-10-2003 and he had issued such letter, dated 29-10-2003, mentioning therein allotment of 20 acres of land from
Na-class 108, Deh Chuhar, for industrial/commercial purposes. Later on, 99 years' lease was also granted to the appellant out of same Na-Class 108, but subsequently by some paper work Na-Class 108 was changed to Na-Class 106 and such corrigendum was issued by Respondent No. 7 illegally, and with mala fide intention. According to the further case of Respondents No. 1 to 4, the area of 20 acres so assigned to the appellant is carved out of the land measuring 300 acres out of Na-Class No. 106, Deh Chuhar earlier granted to Respondent No. 4, therefore, appellant cannot claim any right in the said land. It is also their case that in violation of Section 12 of the Pakistan Environmental Protection Act, 1997 and other laws the appellants have constructed and are setting up a water bottling plant over the disputed land for their use of sub-soil water/aquifer in huge quantities, which is likely to cause scarcity of water for use of
Respondents No. 1 to 4 and other institutions to be set up in that area. Such act of the appellant would be thus an exploitation of natural resources for their financial gains by tapping water from the aquifer through tubewells and draining out the same in a manner which will be hazardous and harmful to the interests of Respondents No. 1 to 4, other landholders and residents of the area. The appellants have also not obtained requisite permission under the
Canal and Drainage Act, 1873, and even for raising construction, they have not obtained any prior approval of building plans from KBCA and other concerned authorities. To substantiate their assertions the Respondents No. 1 to 4 placed on record documents Annexure A/I' toS' as per separate list filed with the plaint.
On the other hand, appellant/Defendant No. l in their written statement filed in Court on. 18-11-2004, apart from raising certain preliminary objections about the maintainability of the suit, strongly denied the assertions of the Respondents No. 1 to 4 as regards; any illegality committed by them in acquiring ownership/lease of 20.0 acres of land from Naclass No. 106, Deh Chuhar, Karachi; legality of the title of Respondents No. 1 to 4 in respect of the lands claimed by them existence of any Educational City in the area; causing of any damage to the aquifer due to the proposed operation of their water bottling plant over their 20.0 acres lease land from Na-Class No. 106, Deh Chuhar violation of any provisions of Environmental Laws, Canal and Drainage Act, and Building Bye-Laws of KBCA. They further pleaded that the whole process of purchase of 20.0 acres land and construction of factory building and installation of water bottling plant therein has been undertaken strictly in accordance with law, which will be beneficial for the residents of the area in many ways. Thus it had given no cause of grievance or locus standi to the Respondents No. 1 to 4 to agitate any grievance by way of this suit.
The plaint in the suit was accompanied with an application under Order XXXIX Rules 1 and 2 read with Section 151, C.P.C. being C.M. A. No. 3717 of 2004, praying therein for grant of following interim relief in the matter:
"For reasons stated in the accompanying Affidavit it is prayed on behalf of the Plaintiffs above named that this Honble Court may pending the disposal of this suit be graciously pleased to restrain the
Defendant No. l from raising any construction with a view to set up and operate a bottled-water factory in the Deh Chuhar area of Karachi, known asEducation
City`, as the same is contrary to educational and or health use, which such land can be used for."
In the supporting affidavit to this application submitted by Mr. Karim Hussain, the Project Director of Respondent No. 3, he reiterated in' detail the same facts as stated in the plaint. In addition to it, he further stated that Respondents No. 1 to 4, based on such facts, have strong prima facie case and balance of convenience in their favour, and they would suffer irreparable loss and injury in case the interim relief prayed for by them was not allowed till the final disposal of the suit.
In denial to the assertions of Respondents No. 1 to 4 on 9-8-2004 appellant filed counter-affidavit of Mr. Shahid Siddiqui, the Head of Corporate and Legal Affairs of Nestle Milkpak Ltd. He is his detailed counter-affidavit, besides refuting the factual assertions of Respondents No. 1 to 4 regarding any defect in the title of the appellant in respect of their 20.0 acres of land from Na-Class No. 106, Deh Chuhar or any adverse effect on the rights of Respondents No. 1 to 4 or of other people of the locality due to extraction of water from aquifer by the appellant, by installation of two tubewells and water bottling plant at site, also challenged the maintainability of the suit on various legal and factual grounds. To justify and substantiate the assertions of the appellants, alongwith the counter-affidavit of Mr.
Shahid, appellant also placed on record photostat copies of documents Annexures
A' toG`. which relate to their correspondence with Respondents No. 5 to 8, their lease agreement with Respondent No. 5, copy of C.P. No. D-1419 of 2002
(the petition filed by Respondent No. 4 against the appellant and Respondents
No. 5 to 7) etc.
On behalf of Respondent No. 5 their Deputy Secretary, from Land Utilization Department also filed his counter-affidavit on 31-8-2004, challenging the maintainability of the suit on various legal grounds and justifying grant of land to the appellant after completion of legal formalities.
In reply to such counter-affidavits submitted on behalf of the appellant and some other respondents. Respondents No. 1 to 4/plaintiffs submitted two affidavits-in-rejoinder of Mr. Karim Hussain Noor Muhammad, dated 17-8-2004 and 3-9-2004, each spreading over twenty typed pages accompanied with a bundle of other documents.
Moreover, on 9-4-2004 appellants counsel also moved an application under Order XXXIX Rule 4 read with Section 151, C.P.C., seeking vacation of order, dated 24-5-2004, which was again accompanied with the affidavit of Mr. Shahid Siddiqui, the Head of Corporate and Legal Affairs of the appellant. To such application, (C.M.A. No. 5343 of 2004), on 17-8-2004, a counter-affidavit was submitted by Mr. Karim Hussain Noor Muhammad. In addition to it, affidavit of Mr. Al Kazim Mansoor, Chief Executive Soilmat Engineers was also filed to highlight technical aspects of the project of the appellant and its expected consequences over the environment of the area. To counter such assertions on 7-10-2004 the appellant filed counter-affidavit of Dr. JEAN-LUC BONJOUR, Senior Hydro-geologist for "Nestle waters" based at France, wherein he narrated in detail the view point of the appellant in this regard. To such affidavit again another affidavit-in-rejoinder of Mr. Al Kazim Mansoor was filed on 20-10-2004, wherein he attempted to dislodge and refute, the assertions of the technical expert on behalf of the appellant. These counter-affidavits/rejoinders, spreading over dozens of typed pages, were accompanied with a bunch of further documents, to justify the reasoning procured from different sources.
The learned Single Judge while passing the impugned order seems to have made detailed examination of all such material placed before him and after hearing the learned counsel for the parties, has passed the impugned order assigning therein his reasons for the grant of interim relief in favour of the Respondents No. 1 to 4. It is against such order of the learned Single Judge granting C.M.A. No. 3717 of 2004 and dismissing C.M.A. No. 5354 of 2004 in Suit No. 567 of 2004 that the instant appeal has been preferred.
Mr. Khalid Anwar, learned counsel for appellant, arguing this appeal in a lucid manner, has made following submissions:--
(a) Respondents No. 1 to 4 have neither any locus standi nor they are aggrieved party against proposed extraction of water or the water bottling plant installed by the appellant over Na-Class 106 Deh Chuhar, as they do not hold any title documents in respect of respective lands claimed by them.
(b) There is no existence of any "Education City" as alleged by the respondents, as mere consideration or discussion on this subject at various governmental levels, would not substantiate such plea.
(c) The title of the appellant in respect of 20 acres of land from Na-Class 106. Deh Chuhar Karachi is based on a registered deed. In case there was any mistake in its identity/location or Na-Class number, necessary corrigendum has been issued by the official Respondent No. 7: correction in the lease documents has been accordingly effected; appellants are in actual physical possession of that land, therefore, the Respondents No. 1 to 4 have no right to dispute the title of the appellants over such land or even to its purpose of utilization.
(d) The extraction of underground brackish water by the appellant company at the depth of 600 to 700 ft., by way of installation of two tube-well will, in no manner, affect the aquifer or environment in the area, as alleged by the Respondents No. 1 to 4. To fortify this view, he made detailed reference to the counter affidavit of Dr. Jean-Luc Bonjour, Senior Hydro-geologist of the appellant-company and the documents annexed thereto. Learned counsel further made reference to illustration (g) to Section 7 of Easements Act, 1882 to show that every owner of land has absolute right to enjoy and dispose of his immovable property, subject to any law, for the time being in force, while there is no such law in Pakistan prohibiting the appellant from using the sub-soil water in the quantity, they need to extract by installation of two tube-wells in their own lands.
(e) Construction of the building and installation of plant by the appellant over their lands, are in accordance with law, and after obtaining necessary permission from KBCA and other concerned Government agencies, including Environmental Protection Agency.
(f) The case of COCA COLA Industries from Indian jurisdiction strongly relied by the learned single Judge in his impugned order, is distinguishable and has little relevancy to the controversy involved in the present case.
(g) The Respondents No. 1 to 4 while filing the instant suit have not approached the Court with clean hands as they have suppressed pendency of other Petition No. 1419 of 2003 and passing of interim order, dated 10-3-2004 therein, which had disentitled them from grant of any interim relief in the form as sought in the present suit.
(h) The project of the appellants, when in operation, will, on one hand, provide potable water to the citizens of Pakistan, more particularly of Karachi city, which are already short of such high quality drinking water and will also provide job opportunities to hundreds of people of that area, while grant of injunction will undermine all these beneficial aspects of appellants project.
(i) The case of the Respondent No. 4 (SZABIST) is distinguishable from the case of other respondents as their lands were cancelled vide letter, dated 30-10-2003. Though such action has been challenged by them through Constitutional Petition No. D-1419/03, but it is still pending for adjudication, with no final title in favour of Respondent No. 4.
(j) Institution of instant suit from the side of Respondents No. 1 to 4 was delayed, which is yet another ground, disentitling them for grant of interim relief. To fortify his submissions, learned counsel made reference to Section 7(g) of the Easements Act and also placed reliance on the following cases:--
(1) Walayat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650).
(2) Pakistan International Airlines Corporation v. Messrs Hazir (Pvt.) Ltd. (PLD 1993) Karachi 190).
(3) Pirjee Muhammad Naqi v. Messrs Pakistan State Oil Corporation (2000 CLC 1276).
(4) Muhammad Suleman v. Azad Government and 5 others (2002 PLC (C.S.) 889)
(5) Macshannon v. Rockware Glass Ltd. (1978) 1 All ER 625).
(6) Jahar Mal . G.M. Tritchard (AIR 1919 Patna 503).
(7) Chasemore v. Richards (1843-60) All ER Rep 77.
(8) Mayor and Co. of Bradford v. Pickles H.L. (E) (1895) AC 587.
In his reply arguments, Mr. Qazi Faiz Isa made detailed reference to the pleadings of the parties, affidavits, counter-affidavits, affidavits in rejoinder and bunch of documents placed on record by both the parties contesting the suit. He contended that except mere denial of appellant that no prejudice will be caused to the Respondents No. 1 to 4 and other residents of the area due to installation of water bottling plant by the appellant over their disputed 20 acres of land, all facts, figures and circumstances of the case, lead to an irresistible conclusion that tempted with financial benefits, the appellants are installing such water bottling plant in the area, which will deprive all other allottees/owners of the lands and residents of the area from the use of sub-soil water by destroying the aquifer and also the environment of the area. Learned counsel made specific reference to the affidavits and affidavits in rejoinder of Messrs Karim Hussain Noor Muhammad, Al-Kazim Mansoor and bunch of documents attached thereto, to highlight some technical aspect of the case relating to "aquifer" and to justify their conclusion adverse to the claim of appellant. Referring to page 765 of the Court file, which is typed page three of the affidavit of Dr. Jean-Luc Bonjour and its reply in the form of affidavit in rejoinder filed by Al Kazim Mansoor (page 781), learned counsel dilated upon the meaning of brackish water and argued that the appellants are trying to distort the facts/realities to take undue advantage of the situation. Replying to the plea of locus standi of the Respondents No. 1 to 4 in filing the present suit, he contended that the title of Respondents No. 1 to 3 in respect of their lands is clear and duly supported from the documents placed in the suit file and further due to stay order granted by this Court in favour of Respondent No. 4 in terms of the order, dated 10-3-2004 passed in C.P. No. D-1419 of 2003, their rights in respect of 300 acres of land granted to them earlier are also intact. He also made reference to the site sketch available at page 383 of the Court file to show the location of disputed land of the appellant, right in the heart of "Education City" and its shifting from other side of the area through manipulation and connivance with the official respondents. Replying to the submissions of Mr. Khalid Anwar that the appellant, a multinational company, is doing a better cause by installation of water bottling plant at their lands, thereby extracting and converting brackish water into drinking water, which otherwise could not be utilized for any purposes, learned counsel contended that if the appellant are so generous and serious to their cause to benefit the poor citizens of this country, they can install such water bottling plant at sea-shore to have availability of unlimited water resources for their plant. He stressed this fact to show and belie the claim of the appellant that in case the water extracted from the tube-wells installed by the appellant is not properly processed, it cannot be used for drinking purposes. Learned counsel also gave detailed figures of the proposed extraction of water on daily basis by the appellant (148 imperial gallons per minute) and its adverse effect, which could be caused to the aquifer in the area. Making reference to Section 7(g) of the Easements Act, learned counsel contended that such provision of law does not protect extraction of huge quantity of water for commercial use which will harm the interest of residents and landowners of adjoining areas as the aquifer, which is national asset/resource and is to be utilized for the benefits of all, will be damaged and further it will also ruin the environment of the area. Learned counsel also contended that the plea of locus standi of the Respondents No. 1 to 4 in filing of suit has even otherwise lost its significance being a suit in representative form under Order I, Rule 10 C.P.C. and in the nature of public interest litigation. Learned counsel also made reference to the letters/documents of Environmental Protection Agency and KBCA to show that these documents do not prove the claim of appellant that they have been permitted in a lawful manner for raising construction at site. In this context, he also made reference to the regularization of Buildings Ordinance of Sindh Government and the case of Ardeshir Cowasjee and others v. Province of Sindh (2004 SBLR Sindh 763) to show that how the construction of building raised by appellant after passing of order, dated 10-3-2004 in C.P. No. 1419 of 2003 could be considered by KBCA for regularization in the year, 2004. Replying to the question of delay, learned counsel again made reference to various documents available on record to show that the Respondents No. 1 to 4 have followed the course of filing of suit against the appellants at the earliest and there is no delay in filing of suit.
Making comparative study of the expected foreign investment to be made on behalf of Respondents No. 1 to 4 in comparison to the alleged investment of $10 million by the appellant, learned counsel contended that the whole alleged investment made by the appellant will be recovered within a short period of one year in case they are allowed to operate their water bottling plant in the area, but it will be at the heavy cost of environmental hazards and other losses to the local people, while on the other hand the future expected investment even only from the side of Respondents No. 1 to 4 will be 40 to 50 times more as detailed in the plant and other documents, therefore, the appellant should not be much worried about the welfare and betterment of the people of the locality and their employment as portrayed by them, which is nothing but crocodile tears.
Learned counsel replying to the other contentions of Mr. Khalid Anwar as regards suppression of material facts from the Court, while instituting the present suit, made reference to page 349 of the Court file to show that the reference of such order was duly made and noted by the Court while passing initial order in favour of respondents on 24-5-2004. Explaining the promptness in the institution of the suit, learned counsel particularly made reference to the Court order, dated 10-3-2004 allowing construction to the appellant, from which date within two months and fifteen days, the present suit was instituted. He also criticized the conduct of the appellant by showing that the counter affidavit to the injunction application C.M.A. No. 3717 of 2004, was submitted by the appellant after delay of 75 days, and written statement was filed after about five months, so that in the meantime construction work may be speeded up and completed. In the end, learned counsel placed reliance upon the following cases to add force to his submissions:--
(1) Perumatty Grama Panchayat v. State of Kerala-2004 (1) KLT 731 (Kerala High Court)
(2) State of Tamil Nadu v. Hind Stone (1981) 2 Supreme Court Cases 205
(3) M.C. Mehta v. Kamal Nath-(1997) 1 Supreme Court Cases 388
(4) National Audubon Society v. Superior Court-(1983) 33 Cal. 3rd 419 (Supreme Court of California)
(5) Marks v. Whitney-6 Cal. 3d 251 (Supreme Court of California)
(6) Ardeshir Cowasjee v. Province of Sindh (2004 SBLR Sindh 763)
(7) Shehri v. Province of Sindh (2001 YLR 1139)
(8) Gaved v. Martyn (34 LJCP 352)
(9) Gul Haider v. Asat (PLD 1978 Peshawar 157)
(10) Anjum Irfan v. Lahore Development Authority (PLD 2002 Lahore 555)
(11) Asrabulla v. Kiamatulla (AIR 1937 Calcutta 245)
Mr. Anwar Mansoor Khan, Advocate-General Sindh, on behalf of Respondents No. 5 and 6 strongly supported the impugned order of the learned single Judge and contended that the process of correction in the Na-Class number from 108 to 106, Deh Chuhar, undertaken by official respondents without prior approval of the Cabinet, is wholly illegal and unwarranted by law. When confronted with the map of the area, learned counsel conceded to the location of 20 acres of shifted land of the appellant being not only within the limits of purported "Education City" but from the same area of 300 acres, which was earlier allotted to the Respondent No. 4 and is now subject-matter of pending C.P. No. D-1419 of 2003. In the end, he contended that it is only the temptation of financial gains of the appellant-company, which is a commercial venture, that all things have been managed by them to the serious prejudice of the interests of the local people and of the Respondents No. 1 to 4 who have approached this Court with their genuine grievances against the appellant.
Mr. Khalid Anwar in his reply arguments again seriously questioned the legal rights of the Respondents No. 1 to 4 and contended that the observations made by the learned single Judge in his impugned order have no nexus to the controversy involved in the suit, therefore, without following the guidelines and well recognized principles for grant or refusal of injunction, much weight cannot be attached to such order, which is thus liable to be set aside. In the end, learned counsel contended that the documents produced by the appellant in relation to the environmental issue and approval of their building plans from KBCA etc. are valid documents, which entitles them for raising construction at site, which has already been completed. He also made reference to Article 140 of the Constitution of Pakistan to challenge the stand taken by the learned Advocate-General Singh, which according to him, is in conflict to the decisions of the Respondents No. 5 and 6, who are being represented through him.
Having heard, and noted above in detail, the respective contentions of the learned counsel and perused the bulky record available before us, we find, that, among others, following controversies of serious nature, relating to both, questions of law and facts, are involved in the matter, which would need thorough investigation and adjudication after recording of evidence and providing due opportunity of hearing to the parties in litigation.
(a) Whether Respondents No. 1 to 4 hold lawful title in respect of lands in Deh Chuhar, as claimed by them.
(b) What is the effect of pendency of Constitutional Petition No. D-1419 of 2003 in respect of 300 acres of land from Deh Chuhar earlier allotted to Respondent No. 4, out of which now 20 acres is subject-matter of dispute in the present suit.
(c) Whether the appellant is lawful owner/lessee of 20 acres of land from Na-Class 106, Deh Chuhar and change of location, if any, or number in their documents is lawful.
(d) Whether construction of building vis-a-vis its approval/regularization, installation of two tube-wells and a water bottling plant at site has been undertaken by the appellant strictly after meeting the requirement of various statutes applicable in this regard.
(e) Whether the extraction of aquifer water by the appellant in huge quantity will not affect or harm the rights of the Respondents No. 1 to 4 and other residents/owners of the land in Deh Chuhar, Karachi.
(f) Whether there is any substance in the plea of Respondents No. 1 to 4 about the commitment of Government of Sindh regarding "Education City" in the said area and if so, what will be its effect.
(g) Whether under the cover of easement right, the appellant can be permitted to extract huge quantities of water from the aquifer.
(h) Whether operation of water bottling plant of appellant will not be hazardous from environmental point of view.
Thus, at this stage, after going through the material placed on record and the case-law cited at the bar, we cannot resist but to say that the Respondents No. 1 to 4 have succeeded to make out prima facie case in their favour and have also met with the other ingredients; i.e. balance of convenience and irreparable loss and injury, justifying grant of interim injunction in their favour, as ordered by the learned single Judge through impugned order. Moreso, as in legal terminology connotation) "prima facie case" cannot be equated with "indefeasible case". If any case-law is needed to fortify this view, reference can be made to the case of Muhammad Matin v. Mrs. Dino Majekji Chinoy and others (PLD 1983 Karachi 387) and Mrs. Naz Shaukat Khan and 3 others v. Mrs Yasmin R. Minhas and another (1992 CLC 2540).
In the instant case, leaving part the expert opinion of Messrs Al-Kazim Mansoor and Jean-Luc Bonjoum in the form of their respective affidavits, carrying divergent views, documents produced in support thereof and their line of reasonings, which are yet to be tested at the gauge of cross-examination, it is hard to believe that extraction of alleged brackish water from the aquifer by the appellant in such huge quantities, as detailed by the Respondents No. 1 to 4 in their documents (about 148 imperial gallons per minute/306 million liters per year), not denied by the appellant, will not disturb the aquifer and environment of the area. It is also hard to swallow that party having only 20 acres of land in the area would be within their legal rights to extract such huge quantities of water on the plea of being "brackish" (which plea is yet to be proved) without causing harm/prejudice to the interest of other residents of the area, particularly when the area in question is situated in a country where natural source of water for aquifer, i.e. raining, is negligible and highly insufficient. The question of locus standi and personal grievance of the Respondents No. 1 to 4 for bringing the cause before this Court by way of suit has also lost its significance in view of the fact that already steps have been taken in the suit to bring it within the ambit of Order I, Rule 8, C.P.C., i.e., representative suit, and the controversies raised through this litigation, are also in the nature of public interest litigation, rather than confined to the interest of Respondents No. 1 to 4/plaintiffs.
It is pertinent to mention here that the site-sketch of the area placed on record by Respondents No. 1 to 4 relating to purported "Education City" and Na-Class No. 106 and 108, Deh Chuhar, Karachi, which is not a disputed document, shows existence of 20 acres of land claimed by the appellant from the same land, which was earlier granted to Respondent No. 4, and now subject-matter of pending Constitutional Petition No. D-1419 of 2003. It will also not be out of place to mention here that the learned Advocate-General Sindh has taken a firm stand before us, thereby disputing legality of the title of the appellant over 20 acres of land claimed by them from Na-Class No. 106, Deh Chuhar, contrary to the stand taken by Respondent No. 6 in their counter-affidavit filed in the suit. The plea of delay in approaching the Court, which has been urged to disentitle the Respondents No. 1 to 4 from grant of interim relief also has no force, as rightly replied by Mr. Qazi Faiz Essa. Record of the suit proceedings is clearly indicative of the fact that suit was filed by Respondents No. 1 to 4 within three months to the order, dated 10-3-2004 passed in C.P. No. D-1419 of 2003, whereby appellant was allowed to raise construction at their own risk, but written statement was delayed and filed by appellant on 18-10-2004. So as to avail maximum benefit of order, dated 10-3-2004. These are some of the material aspects of the case involved in the present appeal, which adversely affect the claim of the appellant and cannot be lightly brushed aside at this stage.
While going through the impugned order passed by the learned single Judge, we have further noticed that the learned single Judge has judiciously applied his mind to each and every relevant aspect of the matter and aptly discussed the case-law on the subject in his order to justify grant of interim relief in favour of Respondents No. 1 to 4. Mr. Khalid Anwar also could not pinpoint any material shortcoming, arbitrariness or illegality in the exercise of such discretion by the learned single Judge.
The case law cited by the learned counsel Mr. Khalid Anwar is also distinguishable and not of much help to the case of appellant.
In view of the above discussion, we find no legal infirmity to disturb the impugned order. Accordingly, this appeal is dismissed, however, with directions to the learned single Judge to expedite further proceedings in the suit and ensure its disposal within one year from the date of this order.
Before parting with this order, we would like to observe that we have refrained from entering into detailed, discussion with reference to some of the contentions raised before us by learned counsel for the parties so as to avoid prejudice to the case of either party in the suit at the time of further proceedings.
(Rafaqat Ali Sohal) Order accordingly.
PLJ 2007 Karachi 49
Present: Anwar Zaheer Jamali, J.
Mrs. TAHIRA DILAWAR ALI KHAN through Attorney
and 2 others--Petitioners
versus
Mst. SYEDA KANEEZ SUGHRA and 2 others--Respondents
Constitutional Petition No. S-291 of 2005, decided on 20.9.2006.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----Ss. 15--A & 15(vii)--Constitution of Pakistan
(1973), Art. 199--Transfer of Property Act (IV of 1882), Ss. 107 & 17--Registration Act (XVI of 1908),
S. 49--Jurisdiction of High Court--Scope--Bona fide personal need--Choice of--Scope--Lease in perpetuity--Applicability of Ss. 107
& 17 Transfer of Property Act, 1882 read with S. 49 Registration Act, 1908--Scope--Laches, principles of--Landlady filed ejectment petition regarding rented shop against tenant/petitioner on the ground of personal need of her son--Rent Controller ordered eviction of tenant on ground of personal need, which finding was maintained by First Appellate Court--Tenant had paid Pagri' amount to predecessor of landlady in the year 1968; that landlady was actually planning to dispose of rented shop; that landlady owned several other properties in the area and that tenancy agreement, a lease in perpetuity had been created in favour of tenant--Validity--Held: Owner of property had absolute right to deal with her property in the manner she liked and no clog, disqualification or adverse inference was to be drawn in the context of denied suggestion that landlady was planning to sell the rented shop nor it was to be made a ground for refusal of ejectment on plea of personal need, for S. 15--A of Ordinance, 1979 in such situation provided ample safeguard to interest of tenant in rented premises--No suggestions were made to landlady about vacation and availability of the other shops owned by her in adjacent area of rented shop--Even if landlady owned certain other shops at other locations, she was not required to decide the suitability of need of her son at the dictates of tenant or anybody else, as it was her absolute choice and prerogative--Engagement of landladys son in some temporary service/business to earn livelihood or to have some monetary gains was also not a disqualification for landlady to seek eviction of tenant from rented shop--Party was to succeed on the basis of his own evidence and not on the basis of weakness of evidence of other side--Tenant had approached High Court more than seven months after passing of judgment by First Appellate Court which fact suffered from laches--Constitutional petition thus was not maintainable--Power vested in High
Court under Art. 199 of Constitution was discretionary in nature and was to be exercised fairly and equitably in favour of party who approached Court with clean hands--Tenant having not come to Court with clean hands--Constitutional petition was dismissed. [Pp. 57 & 58]
B, D & E
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15(vii)--Pagri--Scope--Payment of Pagri to predecessor of landlady was not a hindrance in or bar against seeking eviction of tenant under
S. 15(vii) of Sindh Rented Premises Ordinance, 1979. [P. 59] F
Transfer of Property Act, 1882 (IV of 1882)--
----Ss. 107 & 17--Registration Act (XVI of 1908), S. 49--Enforcement of rights--Legal validity--Claim of lease in perpetuity in respect of rented shop in favour of tenant was not to be accepted on the basis of tenancy agreement for reasons, firstly, tenancy agreement being unregistered had lost its legal validity for enforcement of rights after expiry of one year as per Ss. 107 & 17 of Transfer of Property Act, read with S. 49 of Registration Act, secondly, claim of personal need had an overriding effect on such alleged terms of lease provided in tenancy agreement, being against public policy and provisions of Sindh Rented Premises Ordinance. [P. 59] G
Constitution of Pakistan, 1973--
----Art. 199--Sindh Rented Premises Ordinance, (XVII of 1979), S. 21--Constitution of Pakistan (1973), Art. 199--Constitutional jurisdiction of High Court--Scope----Reappraisal of evidence--Object--By conferring only one right of appeal under S. 21 of Sindh Rented Premises Ordinance, the legislature in its wisdom seemed to have tried to shorten span of litigation in rent cases--Interference by High Court under Art. 199 of the Constitution in judicial orders passed by Tribunals, merely on the ground that another view of the matter was possible, was not to serve any other purpose but to add to misery of prolonged litigation between parties and defeat the spirit and object of statute--High Court, in exercise of its jurisdiction under Art. 199 of the Constitution arising out of cases under Sindh Rented Premises Ordinance, 1979, did not act as a Court of second appeal and reappraisal of evidence was uncalled for even if on the' basis of evidence available on record some other conclusion was also possible--Constitutional jurisdiction was not to be exercised to appraise evidence and come to independent findings where findings of facts were recorded by authority below after giving good reasons in support of it--High Court had ample jurisdiction to refuse relief where its grant tantamount to injustice--High Court was not bound to grant relief to aggrieved person simply because he was legally entitled to the same, if grant of such relief was immoral, unfair or against dictates of good conscience and fairplay--High Court was not obliged to press into service its constitutional jurisdiction in every case in which illegality or void action or void order was impugned but Court was to see whether grant of relief prayed for fostered cause of justice or was to perpetuate injustice. [Pp. 55 & 56] A
PLD 2001 SC 415 and PLD 2005 Kar. 554 rel.
Evidence--
----Burden of proof--Burden of proof loses its significance after leading evidence by both parties and it is only a matter of preponderance of evidence which enables the Court to record correct conclusion on the basis of evidence led by both parties. [Pp. 57 & 58] C
1993 SCMR 356 rel.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Bona fide personal need--Equitable relief--Laches--Conduct of tenant--Tenant in another case had got certain premises on rent and while delivering back possession of them, he had admittedly charged huge amount from owner of property--Such fact, though not material to determine bona fides of claim of landlady in the present case which was to be adjudged independently, spoke volume about greed of tenant--Tenant in view of his conduct was disentitled to grant of relief under Art. 199 of Constitution which was purely equitable and discretionary in nature--Tenant, moreover, filed constitutional petition more than seven months after passing of judgment by First Appellate Court, therefore, same was hit by laches and was not maintainable in law.
[Pp. 59 & 60] H & I
2001 SCMR 1700; 2006 SCMR 152; 1986 CLC 448; 1987 CLC 686; 1989 CLC 287; 1995 CLC 1353; 1987 SCMR 2051; 1983 CLC 1905; 1980 SCMR 593; 1997 SCMR 1789; 1999 SCMR 1796; 2000 SCMR 1292; 2006 SCMR 1483 and 1993 SCMR 356 rel.
Mr. Mushtaq A. Memon, Advocate for Petitioners.
Mr. Zahid Marghoob, Advocate for Respondent No. 1.
Nemo for Respondents No. 2 and 3.
Date of hearing: 20.9.2006.
Order
Anwar Zaheer Jamali, J.--Petitioners, who are tenants in respect of Shop No. 20-A-1-1/6 (Old Shop No. 4) Commercial Area, Block No. 6, PECHS, Karachi, (hereinafter referred to as `rented shop') have preferred this Constitutional petition to assail the orders of Respondents No. 2 and 3, dated 30-3-2004 and 12-10-2004 respectively. By first order Respondent No. 2 had recorded findings on the point of personal need of the rented shop in favour of Respondent No. l and consequently ordered eviction of the petitioners from the rented Shop. By second order, dated 12-10-2004, the Appellate Court of 1st Additional District Judge, Karachi (East) had maintained such findings of the Rent Controller and dismissed the appeal of the petitioners, however, granting them eight months time to vacate the rented shop and hand over its possession to the Respondent No. 1.
Briefly stated, relevant facts of the case are that in the month of April, 2002, Respondent No. l filed Rent Case No. 142 of 2002 against the petitioners, seeking their eviction from rented shop, on the ground of personal bona fide need of her son Farhat Abbas son of late Ghulam Abbas and also due to unauthorized addition and alterations/structural changes carried out by the petitioners in the rented shop.
In their written objections, petitioners strongly denied these assertions of Respondent No. l. Further to counter the claim of personal need urged by Respondent No. l, they took the pleas of payment of Rs. 25,000 as good-will/Pugri to the predecessor of Respondent No. 1 in the year 1968. They also asserted that Respondent No. 1 is planning to dispose of the rented shop and for this purpose, in a mala fide manner, ground for personal need is urged in the ejectment application. As regards removing of intervening wall and making of structural changes, the petitioners pleaded that such exercise was undertaken with the written permission of the then landlady Mst. Rubab Begum in the year 1967/68. The petitioners further stated that Respondent No. 1 owned several other properties at Khada Market and Burns Road which fact has been suppressed by her, therefore, she is not entitled for their eviction from the rented shop on the purported claim of personal need of her son.
At the stage of evidence Respondent No. 1 Mst. Syeda Kaneez Sughra filed her affidavit-in-evidence before Rent Controller in the month of October 2002, whereafter she was cross-examined on 7-1-2004. On behalf of the petitioners, Petitioner No. 2 Noor Ali Khan filed his affidavit-in-evidence before the Rent Controller on 19-1-2004, whereafter he was also cross-examined on 27-1-2004.
After the conclusion of parties' evidence, arguments of learned counsel were heard by the Rent Controller. The Rent Controller had framed points for determination at the time of judgment and in view of her findings on Point No. 1, relating to the plea of personal need, in the affirmative she ordered eviction of the petitioner from the rented shop vide impugned judgment, dated 3-3-2004.
The appeal preferred by the petitioners being F.R.A. No. 113 of 2004 was heard by the 1st Additional District Judge Karachi (East), who maintained the findings of Rent Controller on both the points and consequently dismissed the appeal, however, considering the old tenancy of the petitioners and their running business in the rented shop. Appellate Court allowed them eight months time to vacate the premises and hand over its possession to the Respondent No. 1.
Perusal of case record reveals that after passing of judgment, dated 12-10-2004 by Respondent No. 3, the petitioners did not even bother to obtain its certified true copy for over two months and applied to obtain it on 22-12-2004. The certified true copy of the order seems to have been prepared on 28-12-2004 and delivered to them on 4-1-2006. Thereafter this Constitutional Petition has been filed by the petitioners on 31-5-2005 i.e. after more than seven (7) months and 15 days to the passing of the impugned judgment by the Respondent No. 3 and more than four months and 25 days from the date of obtaining its certified true copy.
I have heard the learned counsel at length.
Mr. Mushtaq A. Memon learned counsel for the petitioners has strongly contended that though the concurrent findings of the two Courts below i.e. Respondents No. 2 and 3, on the point of personal bona fide need of the son of Respondent No. 1 are against the petitioners, but such findings are the outcome of non-reading and misreading of evidence. He further contended that Respondent No. 1 has suppressed the facts of owning other shops at Burns Road, out of which two shops are lying vacant and these facts have disentitled the Respondent No. 1 from seeking eviction of petitioners from the rented shop. But the two Courts below did not care to go through all these material aspects of the case, which has resulted in gross injustice to the petitioners. In this context, he made specific reference to the affidavit-in-evidence of Petitioner No. 2 Noor Ali Khan, to show that his assertions in this regard, made in the affidavit-in-evidence remained uncontroverted/ unchallenged in cross-examination. He, therefore, contended that such unchallenged testimony of Petitioner No. 2 was sufficient to dislodge the claim of Respondent No. 1 on the ground of personal need. To fortify his submissions, learned counsel placed reliance on the following cases:-
(1) Mohammad Akther v. Mst. Manna and 3 others (2001 SCMR 1700).
(2) Allies Book Corporation v. Sultan Ahmad and others (2006 SCMR 152).
(1) Anisur Rehman v. Mst. Sharifa Khatoon and another (1986 CLC 448).
(2) Muhammad Aslam v. Muhammad Aslam (1987 CLC 686).
(3) United Bank Ltd. v. Ehsan Ellahi (1989 CLC 287).
(4) Montessori Home v. Muhammad Shekoh Salim (1995 CLC 1353).
(5) Shah Noor Fazal v. Ghulam Akber Mangi (1987 SCMR 2051).
(6) Province of Sindh v. Nisar Ahmed Khan (1983 CLC 1905).
Rs. 25,000 Pugri with further condition that he will not be ejected from the rented shop, and rate of rent will also not be enhanced. Therefore, ejectment application on the ground of personal need, was not maintainable in law.
(a) Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCMR 593). `
(b) Abdul Wahid Lehri v. Arbab Mir Nawaz and 3 others (1997 SCMR 1789).
(c) United Bank Limited v. Mrs. Alafia Hussain (1999 SCMR 1796).
(d) Miss Akhtar Qureshi v. Nisar Ahmed (2000 SCMR 1292).
(e) Hussaini v. Mukaram Ali (2006 SCMR 1483).
Before concluding his submissions, learned counsel also questioned the maintainability of this petition on the plea of laches on the part of petitioners in filing this petition. For this purpose, he made reference to the impugned order, dated 12-10-2004, granting eight months time to the petitioners for vacating the premises, making of application for obtaining certified true copy on 22-12-2004, and filing of this petition on 31-5-2005. He contended that the object of filing of this Constitutional petition is nothing except that petitioners want to knock out some heavy financial gains from Respondent No. 1, as was admittedly done by them while handing over vacant possession of another godown in the same building, by entering into compromise with the landlord of that godown.
I have carefully considered the submissions of both the learned counsel and perused the case record. Before proceeding further to examine the merits of the contentions raised by the learned counsel for the parties, it will be appropriate here to refer some judgments of this Court, amplifying the limited scope of exercise of Constitutional jurisdiction by this Court in the petitions, like the instant one. In the case of Secretary to the Government of the Punjab, Forest Department v. Ghulam Nabi and 3 others (PLD 2001 SC 415), it was held by the Hon`ble Supreme Court that Constitutional jurisdiction cannot be exercised to reappraise evidence, and come to its own independent findings, where findings of facts were recorded by authority below after giving good reasons in support of it. Referring to the plethora of case law, it was further observed that there is no cavil to the proposition that Superior Courts have ample jurisdiction to refuse a relief where granting it would tantamount to injustice, as High Court is not bound to grant relief to the petitioner simply because he was legally entitled to the same if the grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay. It hardly needs any elaboration that High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality, or void action or void order is impugned, but the Court is to see whether the grant of relief prayed for fosters the cause of justice or will it perpetuate injustice.
In the case of Messrs Mehraj (Pvt.) Ltd. (judgment authored by me) following observations were made with reference to exercise of Constitutional jurisdiction by this Court in the matter relating to rent cases under the Sindh Rented Premises Ordinance, 1979:
"In this context it may be observed that by conferring only one right of appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979 the legislator in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances interference by this Court in exercise of its Constitutional jurisdiction under Article 199, in the judicial orders passed by the Tribunals, merely on the ground that another view of the matter is also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of the statute."
This view is again affirmed in the case of Shamim Akhter v. State Life Insurance Corporation (PLD 2005 Karachi 554). Thus, it will be seen that while exercising its jurisdiction under Article 199 in the Constitutional Petition, arising out of cases under the Sindh Rented Premises Ordinance, 1979, this Court does not act as a Court of second appeal, and reappraisal of evidence is uncalled for, even if on the basis of evidence available on record some other conclusion was also possible.
As regards the plea of personal need of Respondent No. 1 for her son Farhat Abbas the case of Respondent No. 1 in her pleading is very specific. Relevant paragraphs of the rent application viz. Paragraphs No. 6 to 12 are reproduced as under:--
"(6) That the rented premises in occupation of the opponents is required by the applicant in good faith for her personal bona fide need and occupation to establish her son namely Farhat Abbas son of late Ghulam Abbas in her independent life.
(7) That the said son of the applicant would establish and run a Stationery Shop with General items and a Photostat Machine in order to earn his livelihood.
(8) That the applicant is a Govt. School Teacher to retire next year and is earning a nominal amount and in case the rented premises is given to the applicant`s son the same would prove monetarily beneficial for the applicant as well.
(9) That besides the pay of the applicant, the applicant is also getting a very low amount of normal rent in respect of Old Building situated at Burns Road and has no other source of income except as stated above.
(10) That the applicant`s son now aged about 21 years and his desires of getting his own business established in the rent premises.
(11) That the rented premises in occupation of the opponents is most suitable/fit place for the intended business of the applicant`s son.
(12) That the applicant requested the opponents on several occasion to realize the bona fide, genuine, subsisting need of the applicant but the opponents came out with a deaf ear, thereby adding to the misery of the plight of the applicant."
"(16) That the rented premises in occupation of the opponents is required by the applicant in good faith for her personal bona fide need and occupation to establish her son, namely, Farhat Abbas son of late Ghulam Abbas in his independent life. I produce herewith photocopy of my son`s Matric Certificate as Exh. C.
(17) That I say that I am in dire need of the premises and my need is a pressing one. I am an old lady not keeping good health. I have already produced my Medical Certificate as Annexure `D'."
"It is incorrect to suggest that I am owner of building at Burns Road. It is incorrect to suggest that I am owner of building at Khada Market."
But thereafter no further questions were asked to seek clarification of this position.
Further explaining the requirement of her son the Respondent No. 1 had stated that he was working in different companies temporarily to earn some money. She in her cross-examination also denied the suggestion of petitioners counsel that the rented shop in possession of the petitioners is not suitable for the business of her son or that she was negotiating for its sale. As a matter of fact suggestion in cross-examination put forward by the learned counsel for the petitioners that Petitioner No. 2 was offered for purchasing the rented shop for Rs. 8,00,000, and its denial by Respondent No. 1 contradicts the case of the petitioners that the Respondent No. 1 was planning to dispose of this shop. Leaving apart such suggestion, owner of the property has absolute right to deal with his/her property in the manner he/she likes and no clog, disqualification or adverse inference can be recorded by the Rent Controller in this context nor can it be made a ground for refusal of ejectment on the plea of personal need, as in such a situation Section 15-A of the Ordinance of 1979 provides ample safeguard to the interest of the tenant in the rented premises.
The submission of Mr. Memon as regards non-disputing of certain assertions of the Petitioner No. 2 in his affidavit, in the cross-examination, suffice it to observe that after leading of evidence by both the parties the burden of proof loses its significance and it is only a matter of preponderance of evidence which enables the Court to record the correct conclusion on the basis of evidence led by both the parties. If any case law is needed to fortify this view, reference can be made to the case of Mst. Zainab v. Majeed Ali another (1993 SCMR 356). Relevant observations read as under:
"It is true that a plaintiff is to succeed on the basis of his own evidence and not on the basis of weakness of the evidence of the defence, but at the same time it is also a well-settled proposition of law that a civil matter is to be decided on the basis of preponderance of evidence and the Court is to consider the entire evidence on record, whether it is of the plaintiff or of both in order to arrive at the correct conclusion. Once the evidence is brought on record, the question of burden of proof loses its significance."
(1) Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185).
(2) Messrs F.K. Irani and Co. v. Begum Feroze (1996 SCMR 1178).
The submissions of Mr. Mushtaq A. Memon as regards payment of Pugri by the petitioners predecessor; creation of lease in perpetuity vide tenancy agreement, dated 21-12-1967; and temporary engagement of the son of Respondent No. 1 to earn some livelihood (as admitted by the landlady in her cross-examination) as grounds for disqualification of Respondent No. 1 for seeking eviction of petitioners from the rented shop, have also no force as payment of Pugri, (though also disputed by Respondent No. 1) has not been accepted by the Superior Court as bar for seeking eviction of tenant under Section 15(vii) of the Sindh Rented Premises Ordinance, 1979. Similarly the claim of lease in perpetuity in respect of rented shop in favour of petitioners, cannot be accepted on the basis of tenancy agreement, dated 21-12-1967 for more than one reason. Firstly, the tenancy agreement being unregistered has lost its legal validity for enforcement of rights after expiry of one year (See Section 107 of the Transfer of Property Act and Section 17 read with Section 49 of the Registration Act). Secondly, the claim of personal need has an over riding effect on such alleged terms of lease provided in the tenancy agreement, being against public policy and the provisions of Sindh Rented Premises Ordinance; 1979. The engagement of Farhat Abbas, the son of Respondent No. 1 in some temporary service/business to earn his livelihood or to have some monetary gains, is also no disqualification for Respondent No. 1 for seeking the eviction of petitioners from the rented shop. If any case-law is needed to add force to this view reference can be made to the case of Fazal Azim and others v. Tariq Mahmood and another (PLD 1982 SC 218).
Thus, I am of the view that on an overall assessment of evidence the two Courts below i.e. Respondents No. 2 and 3 were justified in ordering the eviction of the petitioners from the rented shop and their findings to this effect are not open to question through this petition.
Apart from the cases discussed in this judgment, I have also carefully gone through the cases cited by both the learned counsel. In my opinion, in the facts and circumstances of the case, the cases cited by Mr. Mushtaq A. Memon are of help to the case of the petitioners, while the cases referred by Mr. Zahid Marghoob, do support the case of Respondent No. 1.
Another important aspect of the case which needs to be dilated upon, to reflect the conduct of the petitioners is that admittedly for vacating and delivering back the possession of another rented godown available with them in the same building, the Petitioner No. 2 had charged from its owner/landlord a sum of Rs. 6,50,000. This fact is confirmed from the undertaking on Oath given by Petitioner No. 2 on 21-5-1998 and the compromise application, dated 9-7-1998 filed in Civil Suit No. 438 of 1998. Such conduct of the petitioners, though not material to determine or judge the bona fide of the claim of personal need of the landlady for her son, which is to be judged independently, speaks volumes about the greed of petitioners and disentitles them from grant of any relief under Article 199 of the Constitution, which is purely equitable and discretionary in nature.
Considering the question of laches again it will be seen that after passing of impugned judgment by the Respondent No. 3 on 12-10-2004, as noted above, the petitioners/tenants having been given eight months time to vacate the rented shop, did not bother to even obtain the certified true copy of such judgment for a period of over two months and again after obtaining its certified true copy on 4-1-2005, they remained silent and waited for another period of over four months and 25 days, so that first they shall avail the benefit of eight months time granted to them by Respondent No. 3 at the time of passing of impugned judgment, and thereafter they shall again drag Respondent No. 1 to another round of litigation. It may be reiterated, that the powers vested with this Court under Article 199 of the Constitution are discretionary in nature, and are to be exercised justly, fairly and equitably, only in favour of a party, who has approached the Court with clean hands, else the Court can decline to exercise its powers/discretion in favour of a party, who has not approached this Court with clean hands. The facts stated above regarding the conduct of the petitioners, after passing of impugned judgment, dated 12-10-2004 by Respondent No. 3, and charging of handsome amount from another landlord for vacating other rented premises, clearly demonstrate their conduct that they have not approached this Court with clean hands. Moreover, filing of this Constitutional petition after more than seven months of the impugned judgment, dated 12-10-2004, also suffers from laches and thus makes this petition not maintainable in law.
Foregoing are the reasons for passing of short order. dated 11-9-2006, dismissing this petition in limine.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2007 Karachi 60
Present: Faisal Arab, J.
NEK MUHAMMAD and another--Petitioners
versus
STATE--Respondent
Constitutional Petition No. S-173 of 2006, decided on 28.8.2006.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 397--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Concurrent running of sentences awarded by different Courts--Relief of seeking concurrent running of subsequent sentences ought to be sought either before the Court which passed subsequent sentences or if denied by such Court, ought to be sought before higher forum where appeal or revision lay--Having not sought the remedy before higher forum and the sentences awarded in three cases having attained finality, petitioners in collateral proceedings could not agitate the matter, because finality was attached to all legal decisions, if not reversed or modified by higher forum provided under law, in such a situation a party in a case could not seek any relief through collateral proceedings, which was either denied to him or the party itself failed to seek such relief by impugning the order of the Court before higher legal forum in the same hierarchy--Where no appeal or revision was preferred, relief for seeking concurrent running of the subsequent sentences, could not be sought in any collateral proceedings as no other proceedings could be the substitute for an appeal or revision--All offences in the present case, though identical in nature, were committed with distinct and separate criminal objectives sought to be achieved at different points of time--Justification to seek concurrent running of all the three sentences, in circumstances, did not arise at all--Courts below did not have the discretion to order concurrent running of subsequent sentences--Constitutional petition was dismissed.
[Pp. 64 & 65] A & B
PLD 1950 Lah. 497; PLD 1977 Kar. 833; PLD 1986 Lah. 294; 1990 PCr.LJ 568 and PLJ 1978 Lah. 531 ref.
Petitioners in person.
Habibur Rehman Shaikh, A.A.-G. for State.
Hadi Bux Bhutt, Nizamuddin Baloch and Imdad Ali Awar as: Amicus Curiae.
Date of hearing: 30.5.2006.
Judgment
Through this petition, the petitioners seek concurrent running of their sentences awarded to them in three different cases by three different Courts.
Briefly stated, the facts of the case are that three separate F.I.Rs. at different point in time were lodged wherein it was stated that the present petitioners misappropriated stocks of grain issued to them from Government godown worth millions of rupees for delivery at three different places. On account of such misappropriations committed at three different points in time, the petitioners were prosecuted under each of the three F.I.Rs in three different Courts.
In the first case the petitioners were convicted by Judicial Magistrate. Kotdiji in Crime No. 158 of 1998 registered with police station Kotdiji. On 28-10-2000, the petitioners were awarded three years rigorous imprisonment with a fine of Rs. 5,000 each and in case fine is not paid the petitioners were to undergo further imprisonment for additional three months. The petitioners preferred appeal. In appeal, the 3rd Additional Sessions Judge, Khairpur vide his judgment dated 28-4-2004 maintained the conviction awarded by the trial Court. No further remedy was preferred.
In the second case the petitioners were convicted by Judicial Magistrate, Gambat in Crime No. 106 of 1998 registered with police station Ranipur. They were awarded two years rigorous imprisonment on 29.12.2003 by Judicial Magistrate Gambat. The petitioners preferred appeal before Sessions Court, Gambat. In appeal, the Additional Sessions Judge, Gambat vide his judgment dated 1-12-2005 maintained the conviction of the trial Court. No further remedy was preferred.
In the third case the petitioners were convicted by Judicial Magistrate. Khairpur on 31-10-2005 in Crime No. 143 of 1998 registered with police station Mirwah. They were awarded two years rigorous imprisonment and fine of Rs. 5,000 each and in case fine was not paid, the petitioners were to undergo additional imprisonment for one year. No appeal was preferred.
All the three convictions attained finality and the matter was not agitated further. It was only through an application dated 25-1-2006, which was converted into present constitutional petition that the petitioners seek the relief of concurrent running of their sentences awarded to them in the above mentioned three cases.
The relevant provision with regard to concurrent running of sentences is Section 397. This Section provides that when a person is sentenced at a time when he is already undergoing imprisonment, then his subsequent sentence is to commence upon the expiration of the earlier sentence unless the Court has specifically given directions that subsequent sentence to run concurrently with the previous sentence.
In the present case, after being sentenced by trial Court in one case or dismissal of their appeal by the Sessions Court in the two remaining cases, the petitioners did not prefer any further remedy. In such a situation the question which arises is whether the convicted persons in constitutional petition can seek directions from this Court that the three sentences awarded to them to run concurrently. In this regard it would be worthwhile to examine some of the judgments delivered on the point in issue.
In the case of Mian Gulzar Muhammad v. Crown reported in PLD 1950 Lahore 497 it was held:
"I hold that the accused was undergoing his first sentence when the second and third sentences were pronounced on him, and that consequently, where there is no order making them concurrent, they will be undergone consecutively. The petition is dismissed."
In the case of Zakir Ali v. The State reported in PLD 1977 Karachi 833 it was held as under:
"According to Section 397, P.P.C. where person is already undergoing a sentence of imprisonment is sentenced to imprisonment for another offence, the latter sentence is to commence after the expiration of the former sentence. Unless the Court otherwise directs. Since in the instant case the learned Sessions Judge has not directed that the sentence is to run concurrent with the sentence awarded in the injury case, by virtue of the provisions of Section 397, Cr.P.C, the sentence in this case is to commence after the expiry of the sentence in the injury case."
In the case of Muhammad Khan reported in PLD 1986 Lahore 294 it was held as follows:
"We, therefore, hold that the petitioner was undergoing his first sentence when the second, third and fourth were pronounced on him and that secondly, where there is no order making them concurrent, they will be undergoing consecutively. If it is held that the words "undergoing a sentence" mean that the sentence is being actually and physically undergone, the Courts would be driven to the adoption of farcical devices".
In the case of Abdul Hamid v. The State reported in 1990 PCr.LJ 568 it was held as follows:
"The rule laid down in Section 397, Cr.P.C. is that a sentence is to commence on the expiration of a sentence to which a person has been sentenced previously, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. Consecutive sentences is, therefore, the general rule while concurrent sentences is only an exception. Depending on the particular circumstances of a case, concurrent sentences may be awarded where the two offences are akin and intimately connected with each other, but not where there is no connection between the two. In the present case the two offences are not connected. They took place at different times and two different persons were killed at two different places and there was no connection of any sort between the two. Under these circumstances the sentence in this case cannot be justifiably ordered to run concurrently with the sentence in the other case."
Finally, in the case of Muhammad Yaqoob Tahir v. Superintendent, District Jail Rawalpindi reported in PLJ 1978 Lahore 531, it was observed at page 553 as under:
"In so far as the application of Section 397, Cr.P.C to the present case is concerned, it is obvious that the said section is not available. The provisions of Section 397, Cr.P.C. can be invoked by a Court awarding second sentence or a Court hearing an appeal and/or a revision arising out of a second conviction.
As already indicated there was no appeal or revision against the order passed in the case of absconcion. A proceeding under Section 561-A, Cr.P.C. cannot be the substitute for an appeal or revision and much less can it bypass the provisions regarding the same."
Coming to the facts of the present case, after being sentenced in three cases the petitioners were left with the remedy to file appeal in one case and revision against appellate orders in two cases before the higher legal forum. However, the petitioners failed to avail such remedy. On account of such failure, all subsequent sentences, none of which were ordered to run concurrently attained finality and in term of Section 397 Cr.P.C. all the three sentences if not ordered to run concurrently, have to run consecutively.
Thus the relief of seeking concurrent running of subsequent sentences ought to be sought either before the Court which passed subsequent sentence or if denied by such Court, ought to be sought before higher forum where appeal or revision lies. Having not preferred the remedy before higher forum and the sentences awarded in three cases having attained finality, the petitioners now in collateral proceedings cannot agitate the matter. This is for the simple reason that finality is attached to all legal decisions if not reversed or modified by higher forum provided under the law. In such a situation a party to a case cannot seek any relief through collateral proceedings, which was either denied to him or the party itself failed to seek such relief by impugning the order of the Court before the higher legal forum in the same hierarchy. Thus where no appeal or revision was preferred, the relief for seeking concurrent running of the subsequent sentences cannot be sought in any collateral proceedings as no other proceedings can be the substitute for an appeal or revision.
Another legal principle is also attracted to the present case, which warrant denial of the relief sought by the petitioners.
From the facts of all the three cases it is evident that though the nature of offences is the same i.e. misappropriation of government stocks of grain, but all the three offences cannot be said to be intimately connected with each other in order to describe them as part of a series of offences committed in the course of achieving a common objective. All the three offences were committed in order to achieve three separate objectives independent of each other i.e. misappropriation of stocks of food grain dispatched for three different places at three different points in time. As each of the three offences were committed to achieve three separate objectives though identical in nature and therefore, all three offences cannot be regarded as akin or intimately connected with each other. The discretion of the Court to direct running of subsequent sentence concurrently with earlier sentence is exercised not in a mechanical manner and is also not applied as a rule but only as an exception and only when the Court finds that all offences were committed in the course of realization of a common objective which a person wants to achieve at a particular point in time. Where a person commits a series of different offences to achieve his common objective then all offences committed in achieving such common objective are regarded as akin to each other or are intimately connected with each other. For example a person who plans to rob a bank, first disconnects electricity and telephone connections of the bank, kills its security guard, trespasses into the building, breaks the locker room and commits robbery and then abducts some of the bank officials in order to use them as human shields. From the commission of all such acts it can be seen that in order to achieve his main objective of robbing a bank, he has committed a series of offences. In such a case the Court awarding sentence for one of such offences can order that sentence awarded earlier for one of the series of such offences committed by the accused to run concurrently. In the present case all three offences though identical in nature were committed with distinct and separate criminal objectives sought to be achieved at three different points in time and therefore the justification to seek concurrent running of all the three sentences did not arise at all in the first place. In such circumstances, the Courts below did not had the discretion to order concurrent running of subsequent sentences had such relief been sought from them at the appropriate time.
In view of the above discussion, this Court has come to the conclusion that neither the relief of concurrent running of the sentences can be sought in collateral proceedings nor such relief was even available to the petitioners in the first place as all the three offences were distinct and separate and not part of the series of offences committed in the course of achieving a common objective. This petition therefore is dismissed.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2007 Karachi 65
Present: Nadeem Azhar Siddiqi, J.
Sardar M. SHAKOOR KHAN--Plaintiff
versus
PAKISTAN through Secretary, Ministry of Labour and Manpower, Government of Pakistan, Karachi and 2 others--Defendants
Suit No. 252 of 1983, decided on 5.8.2006.
Emigration Ordinance, 1979 (XVIII of 1979)--
----Ss. 12(3) & 25--Tort--Suit for damages--Illegal cancellation of its licence--Order of cancellation of plaintiff`s licence was declared by High Court to be without lawful authority and of no legal effect--Defendant Authority claimed protection under S. 25 of Emigration Ordinance--Held: Such action of defendant was illegal and could not be termed as done in good faith, thus, protection claimed would not be available.
[Pp. 66 & 69] A & B
Emigration Ordinance, 1979 (XVIII of 1979)--
----S. 12(3)--Civil Procedure Code, (V of 1908), O.I, R. 3 & O.XXVII, R.3--Tort--Suit for damages--Illegal cancellation of licence--Maintainability--Plaintiff had not sued such officials in their natural/individual names, but had sued them in their official capacity-- Such suit was not maintainable against such officials. [P. 69] C & D
PLD 1994 Kar. 388 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXVII, R. 3--Emigration Ordinance, (XVIII of 1979)--S. 12(3)--Tort--Suit for damages--Illegal cancellation of licence--Proof--Plaintiff had not specifically alleged to have suffered loss due to conduct of Government of Pakistan or that same had gained some thing due to cancellation of licence or that same had at any stage owned such illegal act of its Director-General--Plaintiff did not produce evidence to show that Government of Pakistan had ratified such act of its officials and had benefited therefrom--Suit as framed being non--maintainable under law was dismissed. [P. 70] E & F
PLD 1963 SC 627 and PLD 1965 (W.P.) Kar. 1 fol.
Mr. Rizwan Ahmed Siddiqui, Advocate for Plaintiff.
Syed Tariq Ali, Advocate for Defendants.
Date of hearing: 5.8.2006.
Judgment
The plaintiff has filed this suit for recovery of damages amounting to Rs. 40,00,000. The facts as pleaded in the plaint are that since 1977 the plaintiff was carrying on business of export of emigrant labour to the
Middle East. The plaintiffs licence was renewed from time to time and on 29-3-1979 with the promulgation of Federal
Ordinance XVIII of 1979. The plaintiff in April 19, 1979 made a complaint about the working of the Defendant No. 3, which annoyed him and the plaintiff was compelled to withdraw the said complaint and a fictitious complaint was manoeuvred against the plaintiff to the effect that the plaintiff had charged excessive sum from emigrant labour. The show-cause-notice was served on the plaintiff on 5-5-1979, which was replied. The licence of the plaintiff was suspended on 23-7-1979 the second show-cause-notice was issued on 28.7.1979.
The Defendant No. 1 cancelled the licence on 18-8-1979. The plaintiff preferred an appeal to the Defendant No. 1, which was turned down and the plaintiff filed a Review Petition on 13-11-1979, but the same was not accepted. The plaintiff has filed Writ Petition Bearing No. 414 of 1991 before the High Court of Sindh at
Karachi and the petition was allowed and the Defendant No. 2 was directed to renew the licence of the plaintiff forthwith. It was stated in the plaint that the licence remained cancelled for 30 months and the plaintiffs character for recruitment was damaged and the High Court restored the licence of the plaintiff, the plaintiff was not in a position to start his business for the next 10 months.
It was further stated that the plaintiff sent 244 persons abroad within eight
(8) months of the year, 1979 and also earned commission of
Rs. 2,12,706 and further the plaintiff was having a confirmed fresh demand of 183 persons in hand when the plaintiff`s licence was cancelled by the defendants. It was pleaded in the plaint that due to illegal and unlawful orders of the defendants the plaintiff not only suffered his reputation within the country and abroad, but also suffered losses from 18-8-1979 for the next 40 months during which the licence of the plaintiff remained suspended from 18-7-1979 to 14-1-1982. The plaintiff claimed that he was sending approximately 30 persons per month when his licence was cancelled and was earning Rs. 1450 per person and plus further sum of Rs. 500 from the employer as commission and if the licence of the plaintiff was not cancelled he would have sent approximately 1,200 persons abroad and would have earned a sum of Rs. 23,40,000. The plaintiff also claimed that he has suffered losses of 183 persons, for which, a confirmed demand was in his hand, when his licence was cancelled and on this account plaintiff has assessed his losses at Rs. 4,20,000 and also paid costs of litigation to the tune of Rs. 40,000 and special damages to the tune of Rs. 12,00,000. The plaintiff has also claimed to have issued notice under Section 80 of the C.P.C.
The notice was served and the written-statement has been filed by the Defendant No. 3 for self and on behalf of the defendants No. 1 and 2 as well. In the written-statement preliminary objections were taken with regard to the maintainability of the suit. It was also pleaded in the written-statement that no cause of action has been accrued to the plaintiff and that the suit is barred under Section 25 of the Emigration Ordinance, 1979. In the written-statement it was not disputed that the licence of the plaintiff was renewed till 31-12-1979 and that the plaintiff conducted business of 92 persons in 1977 and 39 persons in 1978. It was also not disputed that on promulgation of Emigration Ordinance, 1979 effective from 23-3-1979 the licence was issued for the year 1979. It is denied in the written-statement that the plaintiff was compelled to withdraw the complaint. Issuance of show-cause-notice dated 5-5-1979 was not denied. It was further stated in the written-statement that the licence was cancelled after giving opportunity of hearing to the plaintiff and filing of the appeal and review was also not denied. It was stated that the order dated 14-1-1982 passed by the High Court of Sindh at Karachi was implemented and the licence for the year 1982 was issued. It was further stated in the written-statement that the licence was cancelled for violation of Emigration Laws and the plaintiff himself is responsible for his misdoing and further if the plaintiff failed to get any business during the 1982 and department cannot be blamed. It was further pleaded that the cancellation orders were issued in good faith after due enquiry and no suit, prosecution or other legal proceedings, can lie against any person for anything which he has done in good faith or intended to be done in pursuance of Emigration Ordinance, 1979 or rules made thereunder. It was denied in the written-statement that the plaintiff was sending 30 persons abroad per month and it was also denied that the demand of 183 persons was in the hand of plaintiff when his licence was cancelled. The service of notice under Section 80 of the C.P.C. was also denied.
From the pleadings of the parties consent issues were framed on 5.5.1985, which reads as under:--
(1) Whether the suit as framed is maintainable at law?
(2) Whether the plaintiff is entitled to the damages as claimed by him in the suit?
(3) Whether the plaintiff has waived his claims by letter dated 15.11.1983 addressed to the Defendant No. 3 (Annexure-A to the Written-statement)?
(4) What should the Decree be?
The plaintiff has examined himself as Exh. 5. He has produced the documents from Exh. 5/1 to Exh.5/29 respectively. The plaintiff has also filed his additional affidavit-in-evidence and has produced certified copy of the judgment in C.P. No. 414 of 1982 and the copy of the petition.
On behalf of the defendant Ghulam Haider Khaskheli was examined as Exh. 6. He has produced the documents from Exh.6/1 to Exh.6/5 respectively.
My findings on the above issues are as under:-
ISSUE NO. 1:
The plaintiff has filed the suit for damages against the Defendant No. 1 and the officials of Defendant No. 1. The officials were sued in their official capacity and not in their individual names. The learned counsel for the plaintiff has submitted that the licence was cancelled on 18-8-1979 without any cause and justification and the same was declared illegal by the High Court of Sindh in C.P. No. 414 of 1981 by order dated 14-1-1982 and by order of the High Court the licence was renewed. He submits that due to illegal action of Defendants No. 2 and 3 the plaintiff could not continue his business for want of licence and had suffered financial losses and the defendants are liable to compensate him.
On the other hand learned counsel for the defendants submits that in view of Section 25 of the Emigration Ordinance, 1979, no suit, prosecution or other legal proceedings shall lie against any person for any thing which is in good faith done or intended to be done in pursuance of this Ordinance or any rule. He further submits that the licence was cancelled under Section 12(3) of Emigration Ordinance, 1979 and the same is protected under law and no suit can be maintained against the Federal Government and its officials. He further submits that even otherwise, the suit against the official designations is not maintainable and that only legal and natural person can be sued as defendants in terms of Order I, Rule 3, C.P.C.
I have considered the submissions of the learned counsel for the parties.
It is an admitted position that the licence was cancelled and the High Court of Sindh has declared that cancellation of licence was without lawful authority and of no legal effect and on the basis of order of High Court licence was restored. The order of the High Court has attained finality and the defendants in presence of order of High Court cannot seek protection under Section 25 of the Emigration Ordinance, 1979. The protection available under Section 25 is in respect of thing done in good faith and are lawful. The action which was declared illegal cannot be termed as done in good faith and the protection is not available.
The plaintiff though claimed damages has not sued the officials of Defendant No. 1 in their natural/individual names, but sued them in their official capacity. In the reported case of Mirza Abdur Rahim Baig v. Abdul Haq Lashari and others (PLD 1994 Karachi 388) a Sindh Bench of this Court held as under:
"As to the joinder of the Defendant No. 3 there is another serious defect. The rule is that in suits against Government officers for official acts, if they are intended to be made personally liable, the plaintiff must sue them in their individual or natural names, for public offices are occupied by different persons from time to time. Deviation renders the suit bad and liable to dismissal."
From the above, it is clear that the plaintiff has improperly joined the official defendants in their official capacity and the suit against them is not maintainable.
The other question is whether the Defendant No. 1 is liable for the tortious acts of its officers. The plaintiff has not specifically alleged that he has suffered any financial loss due to the conduct of Defendant No. 1. The plaintiff aggrieved due to illegal cancellation of his licence by Defendant No. 2 in exercise of his powers under Section 12(3) of Emigration Ordinance, 1979. There is no allegation in the plaint that the Defendant No. 1 has gained some thing due to cancellation of the licence or that at any stage the Defendant No. 1 has owned the illegal acts of Defendant No. 2. In the reported case of Pakistan v. Muhammad Yaqoob Butt and others (PLD 1963 Supreme Court 627) a full Bench of the Honourable Supreme Court of Pakistan has held as under:--
"The contention of learned counsel for the appellant has however to fail even apart from the above consideration. It is well-settled, and even learned counsel for the appellant is forced to concede that the Government would be liable if--
(i) it takes the benefit of property illegally detained by its servants; or
(ii) it had ratified the tortious act of its servants.
Neither of these propositions needs the support of elaborate reasoning. If the Government takes the benefit of illegally detained property it cannot be allowed to repudiate its liability and if it ratifies the act of its servant it adopts that act as its own. In fact, at least ordinarily, cases falling under the first class will be cases falling under the second class too, for, when Government takes the benefit of property it ratifies the act of its servant."
In another reported case of Government of Pakistan v. Sardar Muhammad Ali (PLD 1965 (W.P) Karachi 1) a learned Division Bench of this Court held as under:
"Thus now it is a well settled rule of law that the Government is not liable in tort for the wrongful acts of its servants or improper, conduct of its public servants unless those acts had been done under the orders of the government or had been subsequently adopted or ratified by it."
The plaintiff has not produced any evidence to show that the Defendant No. 1 has ratified the acts of Defendants No. 2 and 3 and have benefited from the illegal cancellation unless this is proved the plaintiff cannot maintain his suit for damages against the Defendant No. 1. In view of the above discussion, I hold that the suit, as framed, is not maintainable under the law.
ISSUES NO. 2 & 3:
In view of my findings on Issue No. 1 above, the discussion and findings on these issues are not necessary.
ISSUE NO. 4:
In view of my findings on Issue No. 1 the suit is liable to be dismissed and is accordingly, dismissed with no order as to cost.
(Rafaqat Ali Sohal) Suit dismissed.
PLJ 2007 Karachi 71
Present: Faisal Arab, J.
Messrs MARVI INTERNATIONAL through PARTNERS--Plaintiff
versus
MUHAMMAD ASLAM and 2 others--Defendants
Suit No. 655 of 2005 and C.M.A. No. 990 of 2006, decided on 25.9.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R.I I--Rejection of plaint--Court would take into consideration only averments made in plaint and documents annexed thereto. [P. 73] A
Partnership Act, 1932 (IX of 1932)--
----S. 69(2)--Civil Procedure Code, (V of 1908), O.VII, R. 11--Suit by unregistered firm--Registration of firm during pendency of suit--Amendment of plaint to substitute partner's names with that of subsequently registered firm--Validity--Institution of suit by unregistered firm would be void for being prohibited by mandatory provisions of S. 69(2) of Partnership Act, 1932--Registration of firm, after institution of suit, could not cure inherent defect of non-registration existing at the time of institution of suit--No power of condonation vested in Court to grant any relief to such defaulting firm--Such suit would still be liable to be declared as barred under S. 69(2) of the Partnership Act, 1932--Plaint was rejected in circumstances--Principles--Object of the bar contained in S. 69(2) of the Partnership Act, 1932 is based on the intention of the legislature that an unregistered firm must be subjected to a disability in order to compel registration and such intention should not be allowed to be thwarted or nullified by an interpretation which the words are not capable of bearing. The provisions of S. 69(2) of the Partnership Act are mandatory and there is no power of condonation vested in the Courts to grant any relief to a defaulting firm. The effect of such prohibition has to be determined at the very inception in the same manner, as the Courts do not take cognizance of a suit barred by limitation or of a suit suffering from a defect of jurisdiction in the form in which it is instituted. The registration after the institution of the suit cannot cure the defect of non-registration existing at the time of the institution of the suit--In the present case, the application filed under Order VII, Rule 11, C.P.C. was allowed as the suit is barred under S. 69(2) of the Partnership Act thus, the plaint was rejected. [P. 77] B & D
Partnership Act, 1932 (IX of 1932)--
----S. 69(2)--Provisions of--Provisions of Section 69(2) of the Partnership Act, 1932 are mandatory in character as they prohibit institution of a suit by a partnership firm unless it is registered. In case an unregistered firm files a suit, it would be rendered void and subsequent registration of the firm during the pendency of the suit will also not cure this inherent defect and the suit shall still be liable to be declared as barred under the provisions of S. 69(2) of the Partnership Act. [P. 77] C
Mr. Naved Ahmed Khan, Advocate for Plaintiff.
Mr. Abdul Qayyum Abbasi, Advocate for Defendant No. 2.
Mr. S. A. Samad Khan, Advocate for Defendant No. 3.
Date of hearing: 25.9.2006.
Order
When the present suit was filed on 19-4-2005, Amir Bux Bhutto and Abdul Rehman were the plaintiffs to the suit. In the plaint they showed themselves to be partners of Marvi International. Admittedly, at that time the said firm was not registered. In the plaint both the partners claimed that on 20-10-1991 they purchased the plot bearing No. C-37, Phase-1, SITE, North Karachi Industrial Area, Scheme No. 33, Karachi, admeasuring one acre, from the Defendants No. 1 and 2, the partners of another firm i.e. Komal Enterprises.
When the present suit was filed, an objection was raised by the office that as the suit has been filed by partners of an unregistered firm, the same is not maintainable under Section 69 (2) of the Partnership Act. In the wake of such objection, both the partners got the firm Marvi International registered on 27.4.2005 with the Registrar of Firms. They then moved an application under Order VI Rule 17 seeking amendments in the plaint to the effect that in their place, the name of the firm Marvi International be substituted as plaintiff. The application seeking amendment was allowed by this Court on 5-5-2005 subject to all just exceptions without notice to the defendants as by that time the suit was not yet admitted. On 11-5-2005, amended plaint was filed with the Marvi International as plaintiff to the suit. Summons was then issued to the defendants. The defendants filed their written statement wherein they took the same objection as to the maintainability of the suit. The defendants then also filed an application C.M.A. 290 of 2006 under Order VII, Rule 11 of the Civil Procedure Code, seeking rejection of the plaint on the ground that the suit filed by the partners of an unregistered firm is barred under Section 69(2) of the Partnership Act. This order shall dispose of C.M.A. 290 of 2006.
For the purposes of disposal of the application filed under Order VII, Rule 11, C.P.C., this Court shall take into consideration only the averments made in plaint and the annexures filed thereto.
Mr. Abdul Qayyum Abbasi, learned counsel for Defendants No. 1 and 2 argued that suit is barred under Section 69 (2) of the Partnership Act and such bar does not stand removed upon the registration of the firm during the pendency of the suit. He therefore submitted that notwithstanding the registration of the firm Marvi International after filing of the suit, the suit is still liable to be dismissed.
Learned counsel for the plaintiff Mr. Naveed Ahmed Khan on the other hand argued that from the contents of the plaint it is evident that Amir Bux Bhutto and Abdul Rehman have entered into the sale agreement with Defendants No. 1 and 2 and this they have done in their individual capacity and not as partners of Marvi International. He therefore contended that provisions of Section 69(2) of the Partnership Act are not attracted at all to the present case and the application filed under Order VII, Rule 11 is liable to be dismissed. He further argued that even otherwise, the registration of the firm during pendency of the suit cures the defect and therefore after registration of the firm the suit cannot be dismissed.
I shall proceed to first examine the argument of Mr. Naveed Ahmed Khan Advocate that the alleged agreement to purchase the suit plot was entered into by Amir Bux Bhutto and Abdul Rehman in their individual capacity and not as partners of a firm and if that is so then the provisions of Section 69(2) of the Partnership Act shall not be attracted.
Alongwith the plaint, sale agreement dated 20-10-1991 has been filed as Annexure P-2 wherein Amir Bux Bhutto and Abdul Rehman have been shown as partners of Marvi International. Annexure P-3 is public notice published in daily Jang on 4-10-2004 on behalf of Marvi International, inviting objections from the general public to the transactions between Marvi International and Komal International. Annexure P-10 is letter dated 11-10-2004 written by Marvi International to the Secretary, SITE, Karachi, informing him about the sale and seeking transfer of the suit plot in the name of the partnership firm. Annexure P-15 is another letter dated 22.10.2004 of Marvi International written to the Secretary, SITE intimating that the membership certificate of the firm shall be produced soon so that the suit plot could be mutated in the name of the partnership firm. Annexure P-18 is yet another letter dated 27-10-2004 of Marvi International to Chief Engineer, SITE wherein the firm has raised objection with regard to certain changes in the shape of the suit plot. All these documents which have been annexed to the plaint show that the purchaser of the suit plot was Marvi International and not Amir Bux Bhutto and Abdul Rehman.
Thus it has become quite clear from the plaint and its annexures that suit was filed for enforcement of the agreement to sell entered into by the firm Marvi International through its partners. Therefore the suit was undoubtedly for the benefit and in the interest of the firm and thus on behalf of the firm. What more is required to establish that partners entered into the sale agreement not in their individual capacity but on behalf of the firm when they themselves moved application for amendment of the plaint seeking substitution of their names with that of the firm.
This brings this Court to examine the question whether the bar contained in Section 69(2) stands removed upon the registration of the firm during the pendency of the suit. In support of this argument, Mr. Abdul Qayyum Abbasi has relied upon the case of Australasia Bank Limited v. A. Ismailji & Sons reported in PLD 1952 Lahore 314, PLD 1960 Karachi 774 and PLD 1968 Karachi 196.
In the case of Australasia Bank Ltd. v. A. Ismailji & Sons reported in PLD 1952 Lahore 314 at page 321 it was held as follows:
"The wordings of Section 69(2) of the Partnership Act lead to one and one interpretation only, that is, a suit brought by an unregistered firm on the basis of a contract shall not be instituted in any Court. A suit is instituted when a plaint is presented to a Court of competent jurisdiction. Section 69(2) of the Partnership Act forbids such a presentation of the plaint unless the plaintiff firm is registered in accordance with law. Wherever a different view has been taken, one has been consciously or unconsciously influenced by the supposed hardship or inconvenience that would be caused if the suit was not allowed to go on after the defect of non-registration had been cured. What appears to have been lost sight of is that there was no suit at all pending before the Court. In some cases, it was pointed out that no prejudice would be caused to the opposite party where the registration of the firm had been effected before the period of limitation had expired. Once that inroad was allowed to be made in the construction of Section 69 (2), the logical consequences, as pointed out by Ram Lall, J. in Nazir Ahmad v. People Bank of Northern India, AIR 1942 Lahore 289 would demand that even where the registration was made after the expiry of the period of limitation, the suit should not have been dismissed. This was carrying the matter too far and neutralizing what the legislature intended to emphasize that an unregistered firm should not be allowed to go to Court. The pertinent observations of their Lordships of the Privy Council in Bhagchand v. Secretary of State AIR 1927 PC 176, may be perused in this connection:
"The argument that a statutory provision as to procedure is subject to some exception of cases, where hardship or even irremediable harm might be caused, if it were strictly applied, might be used with equal cogency in connection with a Code fixing the admissibility of evidence or with a limitation section, recognizing rights but barring remedies. For this, however, there is no authority."
It cannot be denied, and has not been denied, that Section 69(2) of the Partnership Act read with an open mind prohibits the institution of a suit by an unregistered firm. It was only on the score of inconvenience or hardship that some other meaning was attempted to be put. This is in violation of the fundamental rules of construction. It would be profitable to refer to Maxwell on Interpretation of Statutes:
"A statute is the will of the Legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded `according to the intent of them that made it'. If the words of the statute are in. themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. The subject of all interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language used, so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it. When the intention is expressed, the task is one of verbal construction only; but when the statute expresses no intention a question to which it gives rise, and yet some intention must necessarily be imputed to the Legislature regarding it, the interpreter has to determine it by inference grounded on certain legal principles." Vide pages 1 and 2.
At page 3 it was observed:-
"The first and most elementary rule of construction is that it is to
be assumed that the words and phrases of technical legislation
are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning; and, secondly, that
the phrases and sentences are to be construed according to the
rule of grammar. From these presumptions it is not allowable
to depart where the language admits of no other meaning.
Nor should there be any departure from them where the
language under consideration is susceptible of another meaning, unless adequate grounds are found, either in the history or cause
of the enactment or in the context or in the consequences which would result from the literal interpretation, for concluding
that interpretation does not give the real intention of the Legislature.
\ \ \ \ \
"When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpretation. Absoluta sententia exponsitore non indiget. Such language best declares, without more, the intention of the Lawgiver, and is decisive of it. The rule of construction is `to intend the Legislature to have meant what they have actually expressed.' It matters not, in such a case, what the consequence may be. Where, by the use of clear and unequivocal language. capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous."
On the rules of construction enunciated above, it is not possible to give Section 69 (2) of the Partnership Act the meaning that the plaint might be presented, it might be treated as lying dormant and becoming active only after the firm has been registered and then it might be taken to relate back to the time when it was first presented. An unregistered firm could not bring the suit; the intention of the Legislature is quite clear that an unregistered firm must be subjected to a disability in order to compel registration and that intention should not be allowed to be thwarted or nullified by an interpretation which the words are not capable of bearing."
In the second cited case of United Cotton Factory, Hyderabad v. Ahmad Khan, PLD 1960 Karachi 774, the Division Bench of this Court at page 778 held as follows:
"The provisions of Section 69 of the Partnership Act are mandatory and there is no power of condonation vested in the Courts to grant to the defaulting firm in this respect any relief against the disability imposed by this section. The prohibition contained in the section is against the institution of the suit or the proceedings of the nature mentioned therein and its effect, therefore, has to be determined at the time of the institution of the suit or the proceedings. The section entails a disability on the part of a Court to take cognizance of the suit or proceedings from their very inception in the same way as it would not take the cognizance of a suit barred by limitation or of a suit suffering from a defect of jurisdiction in the form in which it is instituted. The view, which now firmly holds the field, is that the registration of a firm is a condition precedent to its right to institute a suit of the nature mentioned in Section 69(2) of the Partnership Act and that a registration after the institution of the suit cannot cure the defect of non-registration existing at the time of the institution of the suit."
In the third cited case reported as Province of West Pakistan v. Asghar Ali, Muhammad Ali & Co. PLD 1968 Karachi 196, the Division Bench of this Court at page 205 of the report held as follows:
"The prohibition in Section 69 of the Partnership Act is to the institution of the suit itself unless the firm is registered. The prohibition is express and mandatory. It prevents a Court from taking cognizance of a suit brought by an unregistered firm. There is a mass of case-law in support of this view, which is now well established. We do not, therefore, see how we can accept the contention that the subsequent registration of the firm during the pendency of the suit can validate the suit."
The first impression of this Court was that non-registration of a firm was a curable irregularity but after examining the above mentioned cases, which are also binding on this Court, this Court is left with no other alternative but to hold that the object of the bar contained in Section 69(2) of the Partnership Act is based on the intention of the legislature that an unregistered firm must be subjected to a disability in order to compel registration and such intention should not be allowed to be thwarted or nullified by an interpretation which the words are not capable of bearing. The provisions of Section 69(2) of the Partnership Act are mandatory and there is no power of condonation vested in the Courts to grant any relief to a defaulting firm. The effect of such prohibition has to be determined at the very inception in the same manner as the Courts do not take the cognizance of a suit barred by limitation or of a suit suffering from a defect of jurisdiction in the form in which it is instituted. The registration after the institution of the suit cannot cure the defect of non-registration existing at the time of the institution of the suit.
From the above discussion it is evident that the provisions of Section 69 (2) of the Partnership Act are mandatory in character as they prohibit institution of a suit by a partnership firm unless it is registered. In case an unregistered firm files a suit, it would be rendered void and subsequent registration of the firm during the pendency of the suit will also not cure this inherent defect and the suit shall still be liable to be declared as barred under the provisions of Section 69 (2) of the Partnership Act.
In view of the above discussion C.M.A. No. 990 of 2006 filed under Order VII, Rule 11 of the Civil Procedure Code is allowed as the suit is barred under Section 69 (2) of the Partnership Act. Consequently, the plaint is rejected.
(Rafaqat Ali Sohal) Plaint rejected
PLJ 2007 Karachi 78 (DB)
Present: Mushir Alam and Azizullah M. Memon, JJ.
MUHAMMAD QASIM and 26 others--Petitioners
versus
PROVINCE OF SINDH through Secretary, Land Utilization Department, Government of Sindh and 21 others--Respondents
Constitutional Petition No. 125 of 2004, decided on 22.3.2006.
Constitution of Pakistan, (1973)--
----Art. 199--West Pakistan Land Revenue Act, (XVII of 1967), Ss. 161 & 163--Constitutional petition--Land Grant Policy--Cancellation of allotment--Land in dispute was allotted to petitioners by the order of Chief Minister--Appeal was allowed on the ground that impugned allotment/grant was made in favour of petitioners in deviation of Land Grant Policy as petitioners were holding double allotment--Under Schedule to Land Grant Policy, land could have been granted for five years on Harap condition, whereas in the instant case, grant was made on permanent basis on the direction of the then Chief Minister--Petitioners were favoured by the Chief Minister for extraneous consideration--Petitioners were not able to demonstrate that conclusion drawn by Member Board of Revenue that petitioners having been granted land in more than one Deh were not eligible or qualified in terms of Land Grant Policy applicable in the case--Ill-gotten gain could not be allowed to be retained and Court would decline to interfere in exercise of Constitutional jurisdiction--Constitutional jurisdiction could be invoked in aid of justice and not to perpetuate injustice or to retain ill-gotten gain. [Pp. 81, 82 & 83] A, B & C
2001 SCMR 209; PLD 2000 Kar. 224; 2000 SCMR 907; PLD 1973 SC 236 and PLD 1975 SC 331 ref.
Mr. Bhimraj R. Mullani, Advocate for Petitioners.
Mr. Masood A. Noorani, Addl. A.-G. Sindh for Respondents No. 1 to 4.
Mr. Rustam Khan M. Talpur, Advocates for Respondents No. 5 to 18 and 20 to 22.
Date of hearing: 1.3.2006.
Judgment
Mushir Alam, J.--Petitioners have impugned the order dated 22.1.2002, passed by Member (Judicial) Board of Revenue, in appeal and order dated 22-4-2004, in Review Petition filed by the Petitioners.
Brief facts as gathered from the pleadings appear to be, the petitioners claim to be the Haris and residents of Deh Ahmed Rajo-5, Taluka Golarchi District Badin. It is the case of the petitioners that land in the Deh of their abode, was available for disposal. They being entitled thereto, were granted such land by the then Chief Minister of Sindh as communicated by the Member Board of Revenue through letter dated 3-9-1991. It however, seems that, subsequently, move for cancellation of the grant was made by the Additional Secretary to Chief Minister; consequently it was directed that land may be allotted in open Katcheri vide order dated 6-10-1991. It is the case of the petitioners that Ijazatnama was executed in their favour, therefore they challenged the orders of cancellation of disposal of the land in open Katcheri through Suit No. 77 of 1992. It is the case of the petitioners that the plaint was rejected and so also the appeal was dismissed on 12.12.1993. It further seems that the grant made in favour of the petitioners was cancelled vide Notification dated 29-5-1994, which was challenged through C.P. No. D-432/1994. It seems that, such cancellation Notification was withdrawn on 18-2-1997, therefore, petition was disposed off as infructuous on 2-4-1998. It seems that with the change of the Government, the cancellation Notification was withdrawn. However, this time the Divisional Commissioner was authorized to pass fresh orders of cancellation or restoration after hearing the parties under the Land Revenue Act. It appears that, Revenue Officer Kotri Barrage, made a Reference dated 28-9-1997, to the Commissioner Hyderabad, to examine the legality of grant allegedly made on political consideration. The Commissioner maintained the grant and disallowed the Reference of the Revenue Officer vide order dated 16.5.1998. It seems that the private respondents challenged the order in appeal under Section 161 of the Sindh Land Revenue Act. Appeal was allowed on 22-1-2002 on the ground that, impugned grants were made in deviation of Land Grant Policy as the petitioners are holding double allotment. Review was also dismissed on 22-4-2003.
It was contended by the learned counsel for the petitioners that, no appeal lies against the order passed in exercise of suo motu revisional jurisdiction and the learned Member (B.O.R.) failed to advert to such objection. It was urged that under the Amendment Ordinance, 1980, right of appeal under Section 164 in matter of suo motu exercise of power is not maintainable. In support of his contention reliance was placed on Government of the Punjab v. Hudabia Textiles Mills, Faisalabad 2001 SCMR 209. It was contended by learned counsel that remedy of the private respondent was available by way of suit or writ petition against the order of Commissioner upholding the grant dated 16-5-1998. According to the learned counsel for the petitioners, they are qualified to be granted such land under the Land Grant Policy for the year 1989. It was further urged that, the respondents are neither qualified nor entitled to the grant of land.
Learned counsel for the respondent Mr. Talpur urged that, petition is not maintainable. It was urged that the petitioners are beneficiary of political favoritism. He has drawn my attention to page 39 of the file, it is an application made by as many as 155 persons addressed to the then Chief Minister Sindh for the grant of land on Harap basis in relaxation of Policy 1989-90. It was urged that the application was signed by only one person. It appears that, on the application Secretary to the Government of Sindh, Land Utilization Department, issued directive dated 10-2-1992 to the Revenue Officer that, the directive of Chief Minister of Sindh dated 3-9-1991, be complied with, for the grant of land in favour of Noor Muhammad Jatt and 156 others in Deh Ahmed Rajo-5 Taluka Golarachi District Badin on Harap conditions, for agricultural purposes on permanent tenure at the rate on which their offer have already been recorded, which may be accepted as laid down in Policy notified on 4-12-1989. According to the learned counsel by one stroke of pen over three thousand acres of land was distributed as it was a personal property. It was further urged that when the Government was changed, such facts came to the notice of the authorities, the grant was cancelled on 29-5-1992. Learned counsel for the respondents further urged that, the private respondents joined all the proceedings filed by the petitioners but the Commissioner passed the orders dated 28-8-1992 without joining or any notice to the respondents. According to the learned counsel, it was order in original and not in exercise of suo motu jurisdiction, therefore, appealable before Member Board of Revenue. He placed reliance on judgment dated 30-5-1992 recorded in the case of Ali Muhammad and others v. Muhammad Bachal and others C.P. No. 154 of 1989. According to the learned counsel, the Additional Commissioner failed to take into consideration that double allotment has been made in favour of petitioners. It was urged that, the appellate authority minutely examined the record and noted that the petitioners' case is of double allotment, therefore, they do not qualify for the grant of land in accordance with relevant policy. According to learned counsel for private respondents, land was to be granted in accordance with policy. As per policy, the grant could not have been made for a period more than 5 years, whereas, in the instant case land has been permanently granted which was rightly cancelled. It was next urged by the learned counsel for the respondent that, the petitioners cannot be allowed to retain a political bribe or ill-gotten gain. He supported the impugned orders.
According to Mr. Masood A. Noorani, the learned Additional Advocate General, Sindh, the order passed by the learned Additional Commissioner could be treated as order in original and, therefore, in his view also the appeal was competently filed before Member Board of Revenue.
We have heard the arguments and perusal the record.
There is no dispute that the subject lands were granted to the petitioners on the directions of the then Chief Minister by a single stroke of pen in relaxation of the ban and conditions of statement of policy.
We have examined the orders impugned and found that, learned Member Board of Revenue at typed page 6 of the order in Review has meticulously and minutely examined the right and entitlement of the petitioners. He has given detail of the land granted to the petitioners in Deh Ahmed Rajo-5 Taluka Golarchi District Badin as well in Deh Oranga of Taluka Jati District Thatta. The conclusion drawn in order in Review appears at typed page 16 is as follows:--
"11. A careful study of the record reveals that the allotments/grants made to the applicants were illegal for the following main reasons:--
(i) The grants made to them were without bringing the land in schedule, without holding Katchary and without determining their eligibility and priority which violated Conditions No. 17(1), 7(3), 9(4), 9(1) read with 5 of the Land Grant Policy 1989.
(ii) Most of them were granted land in two different districts viz. Badin and Thatta which is violative of Condition No. 2(h) & 5 of the Land Grant Policy 1989."
(iii) Most of them were granted the land exceeding sixteen acres which is violative of Condition No. 6 of the Land grant Policy 1989."
Learned Member had meticulously examined the case as urged by the learned counsel for the petitioner before us today and in view of his conclusion dismissed the review application.
Without going into the merits of the case in depth, suffice to say that the petitioners were favoured by the then Chief Minister for extraneous consideration. Large number of persons were obliged to gain political favour and apparently to consolidate his political constituency. Learned counsel for the petitioners was not able to demonstrate that, the conclusion drawn by the Member Board of Revenue that the petitioners have been granted land in more than one Deh are not eligible or qualified in terms of Land Grant Policy applicable in instant case.
In a case reported as Abdul Haq v. Province of Sindh (PLD 2000 Karachi 224) a Division Bench of this Court confronted with some what similar controversy in the wake of exercise of power of the Chief Minister in para. 23 observed as follows:-
"23. In a Constitutional setup all the functionaries derive power and authority from the Constitution itself or from the law as may be framed by the Legislature. Obedience to the Constitution and law is the inviolable obligation of every citizen, higher the authority more the responsibility for such obedience and observance. Constitutional functionaries like Chief Minister take oath and swear allegiance to discharge their respective duties and to perform functions honestly to the best of their ability faithfully in accordance with the Constitution and the law in the interest, well being and prosperity of the country. Any failure, disobedience in the due observance and performance of such `inviolable obligation' may attract judicial superintendence, enforcement and correction by way of appropriate writ in Courts of law."
Such view was upheld in the case reported as Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907 while upholding the above referred case. At page 912 it was held that where the lease could not have been granted for more than 5 years, Chief Minister had no authority to grant extension of 30 years contrary to the relevant law.
In the instant case also, it appears that, as per
Schedule annexure A' to the Land Grant Policy the land could have been granted for 5 years on Harap conditions such Schedule is annexureA' to the petition at page 31, whereas, in the instant case admittedly the grant was made on permanent basis on the directions of the then Chief Minister. It is settled principle of law that writ jurisdiction could be invoked in aid of justice and not to perpetuate injustice or to retain ill-gotten gain. In a case reported as
Ronaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 apex Court observed at page 258 as follows:
"An order in the nature of writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
It was further held at page 259 as follows:
"In the same manner, in the instant cases, if the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in face done, that the orders of the Deputy Claims Commissioners verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the Officer on Special Duty, even though the latter was clearly without jurisdiction."
Therefore, contention of Mr. Mullani that the order passed by the Additional Commissioner dated 16-5-1998 restoring the grant could not have been challenged in appeal before Member Board of Revenue, in the light of the decision of the apex Court, cannot be sustained. The Petitioner was not able to show that the grant was made strictly in accordance with Land Grant Policy dated 4-12-1989. It is settled that ill-gotten gain cannot be allowed to be retained and even Court may decline to interfere in exercise of writ jurisdiction. Such proposition is also supported by Chief Settlement Commissioner v. Muhammad Fazil Khan PLD 1975 SC 331 and the case of Abdul Haq Indhar referred to above.
In this view of the matter the petition is dismissed.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2007 Karachi 83 (DB)
Present: Sabihuddin Ahmed, C.J. and Khilji Arif Hussain, J.
MUHAMMAD HANIF through Attorney--Appellant
versus
KARACHI BUILDING CONTROL AUTHORITY through Chief Executive and another--Respondents
High Court Appeals No. 163, 164, 167, 168 and 174 of 2004, decided on 7.9.2004.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Sindh Buildings Control Ordinance, (V of 1979), Ss. 6(2) & 7-A--High Court Appeal--Appellants who were purchasers of certain shops in a building constructed by respondent, were aggrieved by an order of Single Judge of High Court dismissing applications for interim relief seeking to restrain Authority from taking action under S. 7--A of Sindh Buildings Control Ordinance--Shops purchased/occupied by appellants were constructed by respondent in violation of approved plan and respondent could not honour its undertaking to remove objections of Building Authority--Nothing was available on record to show that appellants occupied respective shops only after an occupation certificate in terms of the provisions of S. 6(2) of Sindh Buildings Control Ordinance, was issued--Appellants being not innocent purchasers of shops, could be arrayed for the wrongs of respondent--Appellants could not acquire better rights than their predecessors and in any event when they chose to purchase properties without verifying compliance of requirements of law enacted more than 20 years ago, they could only blame themselves.
[Pp. 84 & 85] A, B & C
PLD 1994 SC 512 and 2000 SCMR 1748 ref.
Mr. Shahenshah Hussain and Rana Azeem, Advocate for Appellant.
Mr. Shahid Jamiluddin and Mr. Mansoor Ahmed, Advocates for Respondents.
Date of hearing: 7.9.2004.
Order
The appellants, who are purchasers of certain shops in a building known as `Trade Tower' on Abdullah Haroon Road, Karachi, appear to be aggrieved by an order of a learned Single Judge on the original side, dated 19-8-2004, dismissing the appellants' application for interim relief seeking to restrain the Respondent No. 1 from taking action under Section 7A of the Sindh Buildings Control Ordinance, 1979 ("Ordinance").
The relevant facts appear to be that a plan for construction of a ground plus six floor building as well as the basement, reserved for car parking, was granted to the Respondent No. 2 by the Respondent No. 1. It appears that subsequently three additional floors were constructed and shops were also constructed in the basement, which has been described by the appellant as "lower ground floor". It seems that the Respondent No. 2 sold different shops and offices in the building to several personal including the appellants. On 20-10-2003, a notice was served upon certain occupants to the effect that shops/offices/show rooms had been constructed in the basement approved for car parking and the occupants should remove the unauthorized structure within three days, failing which, inter alia, action under Section 7A of the Ordinance may be taken. It appears that subsequently upon the undertaking of the Respondent No. 2 dated 1-11-2003 to the effect that car parking space shall be provided on the roof of the buildings through a car lift or on the rear side of the adjacent plot. The premises was desealed by order passed on the same day.
Subsequently, the undertaking was never honoured and as such the Respondent No. 1, according to the appellants, threatened to demolish the shops/show rooms. The apprehended action was called in question in Suit No. 1188/03 and interim relief seeking to restrain the said respondent from doing so was sought. The application for interim relief, however, came to be dismissed by the impugned order.
Mr. Shahenshah Hussain, learned counsel for the appellants, attempted to argue in the first place that there was no basement in the approved plan and the lower ground floor, upon which the shops, purchased by the appellants, were located., could not be classified as basement. This contention was strongly denied by Mr. Shahid Jamiluddin, learned counsel for Respondent No. 1. However, we think it is not necessary to enter into this controversy at this stage. Evidently the approved plan did provide car parking space and it is not the `appellants' case that such space has been provided anywhere else in the building.
Moreover, there is nothing to show that the appellants occupied the building only after an occupation certificate in terms of the provisions of Section 6(2) had been granted.
The main thrust of the appellants' contention appear to be that the original plan was subsequently revised and three additional floors together with car parking space on the roof top was approved by the Respondent No. 1. The Respondent No. 1 has, however, asserted that while architectural approval for three additional floors was granted no final approval was accorded. In any event no provision for car parking space was made even in the revised architectural plan.
Mr. Shahenshah Hussain pointed out that in the written statement in HCA No. 163/04 the Respondent No. 1 has clearly stated that approval of three additional floors was granted in the revised plan, whereas in the counter affidavit such approval is stated to be confined only to "architectural approval". Nevertheless this aspect of the controversy also does not appear to be relevant for the purpose of this appeal because it is nowhere admitted by the respondent that any revision of plan in respect of car parking space was allowed. It may be added that in any event, as observed in the Hon`ble Supreme Court in Abdul Razzak v. KBCA PLD 1994 SC 512, their Lordship have held that the power of the Respondent No. 1 to allow revision of plan is a limited power and no such power for the purposes of regularizing extra floors can be exercised. Even when the legislature decided to enlarge the powers of the Respondent No. 1 to grant post facto approvals to such buildings vide the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, certain statutory factors on the powers of the Respondent No. 1 were laid down. Section 5, which seems to grant a blanket power to regularize illegally constructed building, contains a proviso to the effect that no building shall be regularized if it uses parking space for other purposes until such space is stored to its original position.
It may, therefore, be seen that it is not merely a question of fact whether revised plan allowing parking space at some other place was approved, but even under the law the Respondent No. 1 had no authority to revise a plan to such extent. We may also observe that acceptance of undertaking of the Respondent No. 2 for the purpose of desealing the premises was also totally illegal and appears to have been passed only with mala fide intention.
We are afraid the contention that the appellants are mere innocent purchasers of the shops/show rooms and should not be arrayed for the wrongs of the Respondent No. 2, cannot be sustained either. Indeed as held by the Hon`ble Supreme Court in Muhammad Saleem and others v. Administrator, Karachi Metropolitan Corporation 2000 SCMR 1748, the appellants cannot acquire better rights than their predecessors and in any event when they chose to purchase properties without verifying compliance of the requirements of law enacted more than 20 years ago, they can only blame themselves.
We would also share the views of the learned Single Judge with respect to the performance of the officers of the Respondent No. 1 and must express our anguish over the fact that no serious action appears to be forthcoming.
For instance we find no logical reason in evolving the procedure of issuing an architectural approval to a builder without finally approving the revised plan, which would only enable him to sell such property to innocent purchasers or create legitimate expectations.
In the circumstances we would dismiss these appeals and send a copy of this order alongwith that of the learned Single Judge to the Provincial Ombudsman to look into the question of extensive mal-administration prevailing in the Respondent No. 1. A copy of this order may also be forwarded to Chief Controller of Buildings, Karachi.
(Rafaqat Ali Sohal) Appeal dismissed
PLJ 2007 Karachi 86
Present: Faisal Arab, J.
Messrs MARKETING SERVICES INC., through President--Plaintiff
versus
Messrs JULLUNDUR PVT. LTD. KARACHI--Defendant
Suit No. 1191 of 2003, decided on 6.11.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XI, R.I--Object of--Interrogatories intended to be answered by plaintiff's witness and to be used as evidence--Interrogatories not to dispense with recording of evidence--Deposition taken in examination-in-chief to lose its evidentiary value if it did not pass the test of cross-examination--Scope--Plaintiff-company moved application for appointment of Commission to record evidence on interrogatories of its witness who was stationed abroad--Plaintiff, in this regard, appended with application a list of questions to be answered by plaintiff's witness and such answers were then to be sought to be treated as plaintiff's evidence--Defendant objected to grant of application on ground that as plaintiff had option to file proceedings either in Pakistan or abroad and he had chosen to file suit in Pakistan, therefore, plaintiff's witness had to appear before the Court to adduce evidence--Validity--Plaintiff's application was based on premise that answers to plaintiff's own questions were to be treated as plaintiffs evidence in the matter which meant that plaintiff's witness, after answering its own suggested questions was not to be submitted to defendant's cross-examination--Treating answers to questions suggested by plaintiff as evidence seemed to be quite absurd and alien to procedure of evidence--Such could never be the object of provisions relating to interrogatories as provided in Order XI, C.P.C.--Rule 1 of Order XI of C.P.C. provided that interrogatories were to be delivered to opposite party for examination so that those could be answered by it--Word "examination" used in Rule 1, Order XI does not mean `examination of a witness' as is done in examination-in-chief but it means perusal of interrogatories by opposite party which is called upon to answer them and deliver answers in writing to the party seeking interrogatories--Need to deliver interrogatories under Order XI, rule 1, C.P.C. may arise for the reason that plaint or written statement may not be disclosing actual nature of case and replies through interrogatories became necessary to particularize and identify the real nature and scope of controversy involved in the case--Such course saves time and expense as it prevents unnecessary and irrelevant evidence from being brought on record--Information thus collected through serving interrogatories on opposite party is then used to support one's case or to demolish the case of opposing party--Interrogatories are, however, not intended to dispense with requirement of recording of evidence of a party in the matter--Court whenever allowed a party to deliver interrogatories on opposing party, it did not mean that obligation to adduce evidence was dispensed with--Party answering interrogatories has to adduce evidence in support of its case--Party if allowed to answer its own suggested questions and use them as its evidence then it would mean that one's own answers given to one's own questions had to be treated as complete discharge of burden to adduce evidence in the matter--Such unacceptable interpretation would totally absolve a party from submitting itself to the test of cross-examination by opposing party--Even deposition taken in examination-in-chief loses its evidentiary value if it does not go through test of cross-examination--Interrogatories could not be suggested by a party to itself-- Interrogatories were meant to be served on opposite party and not on party which had itself suggested questions--Even interrogatories delivered by one party to be answered by opposite party were not to absolve the requirement of adducing evidence in the matter--Plaintiff could, however, seek permission of the Court to examine its witness on Commission on its own cost and expense either in Pakistan or abroad subject to right of defendant to cross-examine such witness--Application was dismissed. [Pp. 88, 89, 90 & 91] A, B, C, D, E, F & G
PLD 1988 Lah. 294 distinguished.
Mr. R.F. Virjee, Advocate for Plaintiff.
Mr. Tasawar Ali Hashmi, Advocate for Defendant.
Date of hearing: 6.11.2006.
Order
Faisal Arab, J.--The plaintiff company has moved an application i.e. C.M.A. No. 1403 of 2005 seeking appointment of Commission to record evidence of its witness namely Mr. Jim Dawkins, the President and Chief Executive Officer of the plaintiff company on interrogatories. In this regard a list of 33 questions has been appended with the application which the plaintiff seek to be answered by the plaintiff's witness and such answers are then sought to be treated as plaintiff's evidence.
The application is opposed by the defendant on the ground that the same is not maintainable in law. Defendant has also objected to the grant of application on the ground that as the plaintiff had the option to file proceedings either in the United States or Pakistan and that having chosen to file the suit in Pakistan, therefore, plaintiff's witness has to appear before this Court to adduce evidence.
It is surprising to note that the plaintiff has suggested questions to be answered by its own witness. The very word `interrogate' suggests a process of questioning with the view to gather information. This obviously can only be achieved by questioning someone else as one cannot interrogate itself to gather information. One already knows what he knows. After answering its own questions, these answers are then sought by the plaintiff to be treated as plaintiff's evidence in the case. Thus plaintiff's application under consideration is based on the premise that answers to plaintiff's own questions be also treated as plaintiff's evidence in the matter. In other words it means that plaintiff's witnesses after answering its own suggested questions shall not be submitting to defendant's cross-examination.
On the face of it, treating plaintiff's answers as plaintiff's evidence to the questions suggested by the plaintiff itself seems to be quite absurd and alien to the procedure of evidence. Such can never be the object of the provisions relating to interrogatories as provided in Order XI, C.P.C.
I have not been able to trace a single reported case that may have touched upon this aspect i.e. treating interrogatories as a substitute for recording evidence. Having found the question in hand as res integra, I shall proceed to examine the nature and scope of the provisions relating to interrogatories as contained in Order XI, Rule 1, C.P.C.
Order XI, rule 1, C.P.C. enables either party to a suit to seek leave of the Court to serve interrogatories on the opposing party for it to be answered. In rule 1 of Order XI it is mentioned that interrogatories are to be delivered to the opposite-party for examination so that they are answered by it. The word "Examination" in rule 1 of Order XI does not mean `examination of a witness' as is done in examination-in-chief but it mean perusal of interrogatories by the opposing party which is called upon to answer them and deliver the answers in writing to the party seeking interrogatories. The need to deliver interrogatories under Order XI, Rule 1 may arise for the reason that the plaint or the written statement may not disclose the actual nature of the case and the replies through interrogatories become necessary to particularize and identify the real nature and scope of the real controversy involved in the case. Thus need to serve interrogatories arise where the pleadings of either of the party are vague or deficient in material particulars. Such vague or deficient pleadings always give rise to certain questions, answers to which are considered necessary for removing ambiguities and achieving clarity in order to facilitate just and expeditious conclusion of the trial. Thus the provisions of Order XI, rule 1, C.P.C. entitle a party to seek answers from his opposing party with a view to ascertain what case the party seeking answers has to meet in evidence. Thus answers to interrogatories help in removing vagueness of the pleadings of an adversary and bring to the fore the real and pertinent issues on which evidence is to be adduced. It also saves time and expense as it prevents unnecessary and irrelevant evidence from being brought on record. The information thus collected through serving interrogatories on the opposite-party is then used to support one's case or to demolish the case of the opposing party.
Interrogatories are however not intended to dispense with the requirement of recording evidence of a party in the matter. Whenever a Court allows a party to deliver interrogatories on the opposing party it does not mean that the obligation to adduce evidence can be dispensed with. In any case the party answering interrogatories has to adduce evidence in support of its case.
The interrogatories under the provisions of Order XI, C.P.C. are also not meant to be answered by the party which has itself suggested the questions. It is specifically mentioned in Order XI, Rule 1 that interrogatories are to be delivered to the "Opposite parties". No principle of law allows a party to use its own answers as a substitute to the evidence which it is required to adduce at the trial. If a party is allowed to answer its own suggested questions and use them as its evidence then it would mean that ones own answers given to ones own questions have to be treated as complete discharge of the burden to adduce evidence in the matter. Such an unacceptable interpretation would totally absolve a party from submitting itself to the test of cross-examination by the opposite party. Law cannot envisage such an absurdity that would change the rules of evidence. It may be pointed out that even deposition taken in examination-in-chief looses its evidentiary value if it has not passed the test of cross-examination. In order for a deposition given in examination-in-chief to gain evidentiary value, the deponent has to submit himself to cross-examination by the opposing party. Neither any principle of law allows a party to answer the questions which it has itself suggested nor allows a party to treat answers given to its own questions as evidence and that too without passing the test of cross-examination.
As discussed above, either of the parties has the right to seek leave of the Court to deliver interrogatories on the opposing party but no such permission could be granted where a party itself has suggested questions to be replied by it and then such replies are used as a substitute to adduce evidence in the matter. Interrogatories cannot be suggested by a party to itself. Thus it is quite clear that interrogatories are meant to be served on the opposing party and not on the party which has itself suggested the questions.
Strangely enough, all answers to the 33 questions suggested by the plaintiff are already contained in the plaint which too is also on oath. Thus no useful purpose is being achieved by answering questions which already stand answered in the plaint. In any case, for a plea to become part of evidence it has to go through the test of cross-examination and this is exactly what is being avoided by the plaintiff in the present case by seeking answers to so-called interrogatories to be treated as its evidence. Even where interrogatories are properly served i.e. delivered by one party to be answered by the opposing party, this by itself does not absolve the requirement of adducing evidence in the matter. Where interrogatories have been sought and answered, even then failure of a party to adduce evidence in the case amounts to failure to establish its case, unless of course there is admission of the opposing party on record.
In support of his arguments that answers to interrogatories be treated as evidence, learned and senior counsel for the plaintiff Mr. R.F. Virjee has relied upon the case reported in PLD 1988 Lahore 294. In this case it was held that evidence of a person stationed in London can be recorded on Commission. There is no cavil with such a proposition. But here the plaintiff is seeking recording of evidence in USA with the rider that his answers to his own proposed questions be treated as evidence without subjecting his witness to cross-examination by defendant's counsel. The cited case therefore has no relevance for the purposes of deciding the application under consideration.
C.M.A. 1403 of 2005 is misconceived. The Plaintiff Company shall however be at liberty to seek permission of this Court to examine its witness on Commission at its sole cost and expense, either in the United States or any other place outside Pakistan, subject of course to the right of the defendant to cross-examine such witness. For the foregoing reasons, C.M.A. 1403 of 2005 is dismissed.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2007 Karachi 91 (DB)
Present: Sabihuddin Ahmed, C.J., and Ali Sain Dino Metlo, J.
IMDAD HUSSAIN-Petitioner
versus
PROVINCE OF SINDH through SECRETARY TO GOVERNMENT OF SINDH, KARACHI and 3 others--Respondents
Constitutional Petition No. D-24 of 2006, decided on 10.3.2006.
Per Ali Sain Dino Metlo, J., Sabihuddin Ahmed, C.J. agreeing.--
Constitution of Pakistan, (1973)--
----Art. 9--Term "life"--Scope, import and applicability--Term "life" used in Art. 9 of the Constitution of Pakistan, 1973 is of very wide import and includes all those rights which are necessary for living a quality life befitting human dignity, as such the term "life" cannot be limited to mere vegetative or animal life. [P. 94] A
Sindh Medical Colleges Act, 1987 (V of 1987)--
----S. 3--Constitution of Pakistan (1973), Arts. 9, 14, 18, 20, 37(c) & 199--Educational institution--Right of education--Vires of statutory rules--Candidate was given admission in medical college on Self Finance Basis--Authorities directed the candidate to furnish bank guarantee regarding college dues for five years--Demand of such bank guarantee was unreasonable, harsh and discriminatory, which was in fact to help the rich at the cost of poor--Validity--Right to education was a fundamental right covered by Arts. 9, 14, 18 and 20 read with 37(c) of the Constitution of Pakistan and, therefore, any unreasonable restraint, hindrance or condition on its exercise would be ultra vires the Constitution, irrespective of whether the same was imposed by an administrative or executive act, by some statutory rule or even by the statute itself--Condition of furnishing bank guarantee was unreasonable inasmuch as it was neither fair nor meant to achieve any useful purpose--Such condition placed the less opulent in disadvantageous position as compared to the more opulent; nor same was reasonable, in the sense that besides being unfair it served no useful purpose--High Court declared the condition of depositing of bank guarantee for five years' fee contained in prospectus to be unreasonable and unconstitutional and of no legal effect--High Court restrained the authorities from giving effect to the condition of furnishing of bank guarantee--Constitutional petition was allowed.
[Pp. 95 & 96] B & D
Per Sabihuddin Ahmed, C.J.--
Sindh Medical College Act, 1987 (V of 1987)--
----S. 3--Constitution of Pakistan, 1973, Art. 9--Right to life guaranteed--Ultra vires--Right of education is part of right to life guaranteed under Art. 9 of the Constitution of Pakistan and, therefore--S. 3 of the Sindh Medical Colleges Act, 1987 cannot be so construed as to enable the Government to make a rule permitting deprivation of a guaranteed fundamental right under the Constitution and, therefore, the stipulation in-question has to be treated as ultra vires the rule making power conferred by S. 3 of the Act. [P. 96] F
Constitution of Pakistan (1973)--
----Art. 199--Constitutional jurisdiction of High Court--Scope--Statutory rules--Judicial review--Statutory rules can always be questioned and struck down on the ground of being unreasonable. [P. 95] C
Per Sabihuddin Ahmed, C.J. agreeing with Ali Sain, Dino Metlo, J.
Sindh Medical Colleges Act, 1987 (V of 1987)--
----S. 3--Constitution of Pakistan (1973), Arts. 8, 22
& 199----Constitutional petition--Right of education--Statutory rules framed by Government in exercise of powers conferred by the statute' andbye--laws or regulations' made by any other authority--Distinction--Statutory rules, per se could`not be struck down on the grounds of unreasonableness--Principles--A statutory rule made by the Government itself in exercise of powers conferred by statute as distinguished from a bye-law or a regulation made by any other authority could not be struck down on the grounds of unreasonableness per se. A validly made rule under S. 3 of the Sindh Medical
Colleges Act, would remain effective unless it is found to be repugnant to the
Act itself. On the other hand, if regulations or bye-laws were to be made by any other subordinate authority they could always be struck down on the grounds of being unreasonableness.
[P. 96] E
PLD 1979 SC 1; PLD 2003 Lah. 752; PLD 1988 SC 416; PLD 1993 SC 473; PLD 1994 SC 693; PLD 1989 Kar. 404; PLD 1993 SC 341; PLD 1996 SC 324 and PLD 1999 SC 504 rel.
PLD 1961 (W.P.) Kar. 349; PLD 1981 Lah. 74; 2002 CLC 1819 and PLD 1993 SC 210 rel.
Mr. Asif Ali Abdul Razzak Soomro, Advocate for Petitioner.
Mr. Muhammad Qasim Mir Jal, A.A.-G. for Respondents No. 1
and 2.
Mr. Kamaluddin, Advocate for Respondent No. 3.
Mr. Khalid Anwar and Mr. Anwar Masnoor Khan (A.G.), Amicus Curiae.
Dates of hearing: 9 & 10.3.2006.
Judgment
Ali Sain Dino Metlo, J.--Petitioner Imdad Hussain Abbasi whose daughter Miss Benazir Abbasi was selected for M.B., B.S. course against one of the seats reserved for Institution Educational Assistance Programme (IEAP), also called as self-finance seats, for the year 2005-2006 in Chandka Medical College, Larkana, has challenged the condition of depositing bank guarantee for five years' fee as contained in paragraph 28 of the prospectus issued by the Liaquat University of Medical and Health sciences, Jamshoro, to which the college was affiliated. Under the said programme, a fee of Rs. 2,00,000 per year was payable on yearly basis, which the student (Miss Benazir Abbasi) had paid by the due date. According to the petitioner, the condition of furnishing bank guarantee in advance for fee of five years was discriminatory, unreasonable and unduly harsh. Discriminatory, in the sense that it helped the rich at the cost of the poor. For a common man banks provided the required guarantee only on his depositing the entire amount of five years' fee. A student, whose parents were not able to make arrangement of five years' fee in advance, had to lose his seat in favour of less meritorious student, whose parents were able to make the arrangement. Unreasonable, in the sense that in presence of condition of payment of fee on yearly basis there was no justification for obtaining bank guarantee. In the event of student's failure to deposit the yearly fee within time, the rules already provided adequate provision for striking out his/her name from the roll of the college/institution. Unduly harsh, in the sense that though the fee was payable on yearly basis, the parents of the students were required to deposit money equal to five years' fee in advance in bank for obtaining the guarantee and while the said amount remained deposited in the bank, they were required to pay fee from their pocket every year.
Prima facie the condition of furnishing bank guarantee, being unreasonable, was liable to be struck down in the light of the precedent of the case of Muhammad Iqbal Khan Niazi v. Vice Chancellor University of Punjab PLD 1979 SC 1 but after the promulgation of Sindh Medical Colleges Act, 1987, a doubt was expressed at the preliminary hearing as to whether the prospectus carrying force of statutory rules could be questioned on the touchstone of reasonableness. With a view to clarify the doubt Messrs. Khalid Anwar and Anwar Mansoor Khan were requested, to assist as amicus curiae. Both the learned amicus curiae supported petitioner's point of view and contended that statutory rules can always be questioned and examined on the touchstone of reasonableness and further contended that the condition in question being derogatory to the fundamental right of education was ultra vires the Constitution. In support of their opinion they relied upon various precedents, including the case of Ahmed Abdullah and 62 others v. Government of Punjab and 3 others PLD 2003 Lah. 752 in which Tassaduq Hussain Jillani, J. (as his lordship then was) speaking for the full bench observed that right to education was included in the right to life guaranteed under Article 9 of the Constitution.
Right to life guaranteed by the Constitution cannot be restricted to a right of bare breathing. The penal laws of the country already provided adequate safeguard against manslaughter and other offences affecting human body. The Constitution envisages establishment of a welfare state according to the norms of the modern civilized society and, therefore, its provisions, specially the provisions about fundamental rights, cannot be interpreted in a pedantic way. The term "life" used in Article 9 is of very wide import and includes all those rights which are necessary for living a quality life befitting human dignity. It cannot be limited to mere vegetative or animal life.
In his landmark judgment given in Ms. Benazir Bhutto's case PLD 1988 SC 416 Muhammad Haleem, C.J., (as his lordship then was) considerably enlarged the scope and meaning of liberties guaranteed under the chapter of fundamental rights and emphasized for interpreting them in the light of the principles of policy and the objectives resolution made substantive part of the Constitution in the shape of Article 2-A. Notwithstanding Article 30(2) according to which the principles of policy are not justiciable, they were regarded as conscience of the Constitution, containing solemn commitments with a vision to establish a welfare State according to the requirements of modern society and not mere hollow hopes or pious promises. According to his lordship the liberties guaranteed in the shape of fundamental rights, if purposefully defined in the light of the principles of policy and the objectives resolution, would serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority but also freedom from want, from poverty and destitution and from ignorance and illiteracy. There can be no use of freedom of press to an illiterate population. Availability of fundamental rights in the book of Constitution without their awareness will be of no use and awareness can be achieved only through education. Thus, the constitutional provisions regarding fundamental rights need to be widely interpreted so as to cover all those rights which may be necessary for their exercise i.e. without which they cannot be achieved.
In the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 it was observed that fundamental rights provided in the Constitution required to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with the vision to the future. In the famous case of Shehia Zia v. WAPDA PLD 1994 SC 693 Saleem Akhtar, J (as his lordship then was) after elaborately reviewing the views of American and Indian Courts was pleased to observe that the guarantees under the Constitution were of wide import enabling a man not only to sustain life but to enjoy it with human dignity which cannot be achieved without food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment. In the cases of Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404, Government of Balochistan v. Aziz Memon PLD 1993 SC 341, Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Shaikh Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 it was held that right of access to justice was also included in the right to life guaranteed by Article 9 of the Constitution. "
The importance of education can be visualized from the fact that the very first Qur`anic revelation (Surah XCVI) was for reading and writing and the Holy Prophet (p.b.u.h.) declared pursuit of knowledge obligatory upon every Muslim, male as well as female, even if one might have to go to China. Thus, from religious point of view also pursuit of education is one of the religious obligations of a Muslim, practice of which is guaranteed by Article 20 of the Constitution. Similarly, freedom of profession guaranteed under Article 18 cannot be enjoyed without technical and professional education vowed to be made generally available to all on the basis of merit under Article 37(c). In the modern civilized society, education is equally important for living a dignified life guaranteed under Article 14.
Viewed from all angles, it is abundantly clear that right to education is a fundamental right covered by Articles 9, 14, 18 and 20 read with Article 37(c) of the Constitution and, therefore, any unreasonable restraint, hindrance or condition on its exercise will be ultra vires the Constitution, irrespective of whether the same was imposed by an administrative or executive act, by some statutory rule or even the statute itself. In the present case, the condition of furnishing bank guarantee is unreasonable inasmuch as it is neither fair nor meant to achieve any useful purpose.
As regards the doubt about questioning statutory rules on the touchstone of reasonableness expressed at the preliminary hearing of the petition, it may be clarified that statutory rules can always be questioned and struck down on the ground of being unreasonable. In this regard reference may be made to the cases of Saleh Muhammad v. Traffic Manager, Karachi Port Trust PLD 1961 (W.P.) Kar. 349; S.M. Sharif v. Federation of Pakistan PLD 1981 Lah. 74; Muzzafar and others v. Evacuee Trust Properties through Deputy Administrator 2002 CLC 1819 (Lahore) and Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Ltd. and 3 others PLD 1993 SC 210. In the first case, a division bench of the erstwhile High Court of West Pakistan (Karachi Bench), while discussing grounds on which statutory rules and bye-laws could be treated as ultra vires, clearly held that the rules and bye-laws framed under a statute were liable to be struck down if they were found to be unreasonable and the same view has been reiterated in the remaining cases. A rule which is not fair and does not serve any useful purpose cannot be said to be reasonable. As mentioned above, in the present case the condition of furnishing bank guarantee was neither fair, in the sense that it placed the less opulent in disadvantageous position as compared to the more opulent, nor reasonable, in the sense that besides being unfair it served no useful purpose.
It was for the above reasons, recorded now, that we, by our short order dated 10-3-2006, had declared the condition of depositing bank guarantee for five years' fee contained in paragraph 28 of the prospectus, to be both unreasonable and unconstitutional and thus of no legal effect and had restrained the respondents from giving effect to it.
Before concluding, we gratefully acknowledge the assistance rendered by Messrs Khalid Anwar and Anwar Mansoor khan as amicus curiae.
(Sd.)
Ali Sain Dino Metlo, J
Sabihuddin Ahmed, C.J.--With profound respects I am doubtful whether a statutory rule made by the Government itself in exercise of powers conferred by statute as distinguished from a bye-law or a regulation made by any other authority could be stuck down on the grounds of unreasonableness per se. In my humble view, a validly made rule under Section 3 of the Sindh Medical Colleges Act would remain effective unless it is found to be repugnant to the act itself. On the other hand, if regulations or bye-laws were to be made by any other subordinate authority they could always be struck down on the grounds of being unreasonableness.
(Sd.)
Sabihuddin Ahmed, C.J.
(Rafaqat Ali Sohal) Petition allowed
PLJ 2007 Karachi 97 (FB)
Present: Sabihuddin Ahmed, C.J, Muhammad Mujeebullah Siddiqui and Mrs. Qaiser Iqbal, JJ.
SALEEM RAZA and 31 others--Petitioners
versus
STATE--Respondent
Constitutional Petition No. D-1258 of 2006, decided on 21.11.2006.
Per Muhammad Mujeebullah Siddiqui, J; Sabihuddin Ahmed, C.J. and Mrs. Qaiser Iqbal, J., agreeing.
Constitution of Pakistan, 1973--
----Art. 12--National Accountability Ordinance, (XVIII of 1999), S. 10(d)--Protection against punishment--Remission was denied--Effect--Denial of remission to convicts by virtue of S. 10(d) of National Accountability Ordinance, 1999 amounts to enhancement of sentence and terms is violative of provisions contained in fundamental rights guaranteed under Art. 12 of the Constitution of Pakistan. [P. 124] A
PLD 1965 (W.P.) Pesh. 31 fol.
Constitution of Pakistan (1973)--
----Art. 25--Reasonable classification--Determination--It is imperative to examine if classification is based on real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification is not arbitrary and without any substantial distinction. [Pp. 124 & 125] B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 170 & 204--National Accountability Ordinance, (XVIII of 1999), S. 18(g)--Referring a case regarding trial--Powers of--Object and comparison--Provisions of S. 18 (g) of National Accountability Ordinance, 1999, and Ss. 170 & 204, Cr.P.C. are aimed to provide protection to citizens from malicious and frivolous prosecution and to keep check on arbitrary prosecution of citizens. [P. 125] C
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 18(g)--Criminal Procedure Code (V of 1898), Ss. 170 & 204--Referring a case for trial--Distinction--No difference exists in the provision of S. 18(g) of National Accountability Ordinance, 1999, and Ss. 170 & 204, Cr.P.C., with the variation that there is no choice of forum in respect of cases and accused persons who are to be tried by virtue of the provisions under Ss. 170 & 204, Cr.P.C., while on account of the fact that offences triable under Ordinance, 1999, are mostly triable by other forums also--Power has been conferred on Chairman NAB or an officer authorized by him to decide whether or not the case is to be referred to an Accountability Court--If Chairman NAB or officer authorized by him decides that reference is not be made to Accountability Court then accused persons alleged to have committed offences are to be tried by forums other than Accountability Court. [P. 125] D
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 18(g)--Filing of reference--Conditions precedent--Scope--Two conditions are to be satisfied under S. 18(g) of National Accountability Ordinance, 1999, first that there is sufficient material to justify filing of reference and second the Chairman NAB or officer authorized by him decides that it would be proper and just to file reference, then only matter can be referred to Accountability Court--So far second condition of taking decision by Chairman NAB or officer authorized by him is concerned, there arc no guidelines for exercising of jurisdiction by him. [P. 126] E
PLD 1957 SC 157 fol.
Prevention of Corruption Act, 1947 (II of 1947)--
----S. 5--National Accountability Ordinance, (XVIII of 1999), S. 9(a)--Terms "corruption and corrupt practices" and "criminal misconduct"--Comparison--Not much difference exists in the definition of "criminal misconduct" contained in S. 5 of Prevention of Corruption Act, 1947 and "corruption and corrupt practices" defined in S. 9 of National Accountability Ordinance, 1999, however scope of S. 9 of Ordinance, 1999, is wider than S. 5 of Prevention of Corruption Act--While extending scope of corruption and corrupt practices envisaged u/S. 9 of National Accountability Ordinance, 1999, several offences punishable under P.P.C. with certain modifications have been added--Offences punishable under PPC and triable by the Courts specified in Second Schedule to Criminal Procedure Code, (V of 1898), have been made triable by Accountability Court, in some cases, in respect of public servant and in other cases by any person, public servant or a common citizen. [P. 126] F
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 9(a) & 10(d)--Prevention of Corruption Act (II of 1947), S. 5--Criminal Law Amendments Act (XLV of 1958), S. 5--Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S. 4--Constitution of Pakistan (1973), Art. 25--Reasonable classification--Doctrine of intelligible differentia--Applicability--Petitioners being convicts under National Accountability Ordinance, 1999 were denied remissions of their sentence--Contention of authorities was that petitioners belonged to different class of accused--Validity--If for the commission of same offences, accused persons were convicted by Courts other than Accountability Court, they were entitled to remission, while convicts under National Accountability Ordinance, 1999 for commission of same offences under similar set of circumstances would be deprived of remission on account of S. 10(d) of Ordinance, 1999--Public servants indulged in corruption and corrupt practices or criminal misconduct belonged to the same class--Merely on the basis of change of forum of trial or change of term defining offences, accused could not be termed as belonging to different class. [P. 127] G
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 218, 219, 469, 471, 472 & 477-A--Pakistan Criminal Law Amendment Act, (XLV of 1958), S. 5--Prevention of Corruption Act, 1947, S. 5--Offiences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S. 4--Reasonable classification--Applicability--As in respect of public servants found involved in corruption or criminal misconduct, offences punishable under Ss. 218 & 219, P.P.C. which are ordinarily triable by the Courts specified in Second Schedule to Criminal Procedure Code, (V of 1898), are also triable by Accountability Court--Punishment and nature of offences are still same--Similarly offences triable under Ss. 469, 471, 472 & 477-A, P.P.C. are triable ordinarily by Court specified in Second Schedule to Criminal Procedure Code, 1898, in appropriate cases by Special Courts under the Offences in Respect of Banks (Special Courts) Ordinance, 1984, and Special Judges appointed under Pakistan Criminal Law Amendment Act, 1958, as well as by Accountability Courts by virtue of S. 10 (b) of National Accountability Ordinance, 1999--Nature of offences are same and punishments provided are also the same--Special rules of evidence contained in National Accountability Ordinance, 1999, Prevention of Corruption Act, 1947, Criminal Law Amendment Act, 1958 and Offences in Respect of Banks (Special Courts) Ordinance, 1984, are also similar--Merely on account of change of forum one set of convicts under the same class not convicted by Accountability Court is entitled to remission and thus would serve out their sentence, much earlier than the other set of convicts in the same category or class convicted by Accountability Court--No intelligible differentia exists distinguishing one group of persons from other group of persons, and thus no reasonable classification permissible for such purpose--Merely on the basis of change of forum, classification cannot be held to be permissible as reasonable because such classification would not be based on any real and substantial distinction. [Pp. 127 & 128] H
Constitution of Pakistan (1973)--
----Art. 25--Reasonable classification--Principle of intelligible differentia--Applicability--Test for permissible classification is that differentia must have rational nexus to the object sought to be achieved by such classification. [P. 129] K
Constitution of Pakistan (1973)--
----Art. 25--Equality of citizens--Scope--Where legislature lays down law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating policy and purpose of law and laying down standards or norms for guidance of designated authority in exercise of its powers, no question of violation of Art. 25 of the Constitution arises--In case, however, the designated authority abuses its powers or transgresses the limit when exercising the power, the actual order of such authority and not the State would be condemned as unconstitutional. [P. 128] I
Constitution of Pakistan (1973)--
----Arts. 8 & 25--Fundamental rights--Inconsistency of laws--Discrimination--Scope--Where the State itself does not make any classification of persons or things and leaves it to the discretion of the Government or any authority to select and classify persons or thing's, without laying down any principle or policy to guide the government or authority in exercise of discretion, or a law is made by the State, whereby certain persons or group of persons are discriminated without any rational and reasonable classification and leaving the other groups of the same class, the denial of benefit, privilege or right to one group of persons and allowing same to the other group of persons would certainly be a discrimination between the persons or things similarly situated and consequently would be void on account of the provisions contained in Arts. 25(1) & 8 of the Constitution of Pakistan. [P. 128] J
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 12, 23, 25, 25-A, 31-D & Preamble--Keeping of accused in custody--Principles--Object and purpose of National Accountability Ordinance, 1999, is not to keep accused persons in custody for longer periods but main purpose is to recover outstanding amounts and State money misappropriated by persons prosecuted--Entire scheme of plea bargain, power to freeze property, holding transfer of property void, voluntary return, Constitution of Conciliation Committees for payment of loans, reference of cases to Governor State Bank and prior approval of State Bank are directed' towards not to keep accused persons in custody for a longer period. [P. 129] L
PLD 2001 SC 607 rel.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 21-F--National Accountability Ordinance, (XVIII of 1999), Ss. 9(a) & 10(d)--Remissions--Denial--Petitioners being convicts were denied remissions of their sentence--Contention of authorities was that a provision was also available in Anti-Terrorism Act, 1997--Validity--Merely a similar provision was contained in Anti-Terrorism Act, 1997, it would not provide any justification for upholding the provision of S. 10 (d) of National Accountability Ordinance, 1999--Object of enacting Anti-Terrorism Act, 1997, was entirely different from the object sought to be achieved through the enactment of National Accountability Ordinance, 1999--Provision in every law was to be construed on its own merits with reference to the particular law under consideration. [P. 129] M
Pakistan Prison Rules, 1978--
----R. 218--Criminal Procedure Code, (V of 1898), S. 401(1)--Constitution of Pakistan (1973), Art. 25--Remission--Types--Grant and denial--Principles--Classification of convicts--Remissions under Pakistan Prison Rules, 1978. are of two kinds; ordinary and special; it is provided in R. 218 of Pakistan Prison Rules, 1978, that special remission is awarded by Government on occasions of public rejoicing and is granted unconditionally under S.401(1), Cr.P.C. and is not governed by Pakistan Prison Rules, 1978 and under the proviso to S.401, Cr.P.C. there is no total denial of remission--Denial is only in respect of remission granted by Provincial Government under S.401, Cr.P.C. in respect of sentences awarded under Chapter XVI of Penal Code, 1860, and in respect of a class of criminals who committed offence in the name ur on the pretext of Karo Kari, Siah Kari or similar other customs and practices; in addition to the fact that under proviso to S.401, Cr.P.C, there is no total denial of remission, a reasonable classification based on intelligible differentia is available.
[P. 130] N
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 9(a) & 10(d)--Constitution of Pakistan (1973), Arts. 8(1), 12, 25 & 199--Constitutional petition--Remission, grant of--Vires of--Fundamental rights--Protection against confinement--Reasonable classification--Forum of trial--Petitioners being convicts were denied remission of their sentence--Plea raised by petitioners was that provision of S. 10(d) of National Accountability Ordinance, 1999, was ultra vires the Constitution of Pakistan--Validity--Denial of remission to said convicts had the effect of enhancing the punishment awarded to them--Such denial was discriminatory as it was not based on any reasonable and rational classification and was arbitrary in nature and was merely based on the basis of forum of trial--Mere forum of trial was not a reasonable and rational classification based on intelligible differentia--Denial of remission to such convicts under S. 10(d) of National Accountability Ordinance, 1999, has no nexus with the object of legislation and consequently it was violative of and repugnant to the provisions contained in Arts. 12 & 25 of the Constitution of Pakistan--Such provision of law was not permissible and could not be saved being patently violative of 'fundamental right guaranteed in the Constitution of Pakistan--Provision of S. 10(d) of Ordinance, 1999, was ultra vires the Constitution and was liable to be struck down being void under Art. 8(1) of the Constitution on account of being inconsistent with the right conferred by the Constitution of Pakistan--All persons convicted under National Accountability Ordinance, were entitled for such remissions in the same manner as persons convicted under other ordinary and special laws--Constitutional petition was allowed in circumstances.
[Pp. 130 & 131] O
Criminal Petition No. 59-Q of 2005; PLJ 2005 Cr. Cases Lahore) 354; PLD 1965 (W.P.) Pesh. 31; PLD 1957 SC 157 and PLD 12001 SC 607 rel.
Per Sabihuddin Ahmed, C.J., agreeing with Muhammad Mujeebullah Siddiqui, J.--
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 18 & Preamble--Constitution of Pakistan (1973), Art. 25--Reasonable classification--Keeping accused in custody--Petitioners being convicts under National Accountability Ordinance, 1999 were denied remission of sentences awarded to them--Flea raised by authorities was that reasonable classification of accused was available in S. 18 of National Accountability Ordinance, 1999--Validity--Reasonable classification could not be effected through conferment of unbridled power under S. 18 of Ordinance, 1999--Dominant object of Statute was to recover ill-gotten wealth rather than make people not in jails--Petitioners were entitled to remissions in circumstances.
[P. 132] P
SBLR 2003 Sindh 163 ref.
Petitioners in person.
Mr. Shafat Nabi Sherwani, DPGA and Akhtar Ali Mehmood, D.A.G. for Respondents.
Messrs Abdul Maroof, AIG (Legal) Sindh, Nusrat Hassan Mangan, Superintendent Central Prison Karachi and Imdad Mirza, Assistant Superintendent Central Prison, Karachi.
Date of hearing: 6.11.2006.
Judgment
Muhammad Mujeebullah Siddiqui, J.--The petitioners convicted by Accountability Courts and serving out their sentences in the Central Prison Karachi, have assailed validity and vires of several provisions contained in the National Accountability Ordinance, 1999, (hereinafter referred to as the NAB Ordinance,), on the ground that they are violative of the fundamental rights enshrined in the Constitutions, more particularly in Articles 12 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution).
However, at the time of arguments, the challenge has been restricted and canvassed to the validity and vires of Section 10(d) of the NAB Ordinance only.
The petitioners/NAB convicts submitted a representation addressed to the Chief Justice, which was treated as petition and was initially fixed before a Division Bench of this Court. Notices were issued to the petitioners and D.P.G. (Accountability) as well as to Advocate General, D.A.G., and President High Court Bar Association to assist the Court. On 20-9-2006 the matter was taken up by the Division Bench, in the presence of learned President, High Court Bar Association, the learned D.A.G., Abdul Jabbar Lakho, A.A.-G. and DPGA. The following order was passed:--
"Since a number of questions of public importance relating to the constitutional validity of different provisions of the NAB Ordinance, are involved, we would order that this matter be placed before a Full Bench to be constituted by the Chief Justice."
Notice was directed to be issued to the learned Attorney General as well.
We have heard the petitioners represented by petitioner Saleem Raza, Mr. Shafat Nabi Sherwani, learned DPGA and Mr. Akhtar Ali Mehmood, learned D.A.-G.
Petitioner/convict Saleem Raza submitted on behalf of the petitioners that prior to 23-11-2002 all the NAB convicts were entitled to remission in accordance with Chapter 8 of the Prison Rules. However, with the insertion of Section 10(d) in the NAB Ordinance, 1999, this right has been taken away. He contended that the provisions contained in Section 10(d) of the NAB Ordinance is violation of the provisions contained in Articles 12 and 25 of the Constitution. By implication it is retrospective in effect and is discriminatory as well. He further submitted that it is discriminatory for the reasons that NAB Ordinance is not the only law in the country dealing with the white-collar crime. He has maintained that the punishment for corruption and corrupt practices defined in Section 9 of NAB Ordinance is specified in Section 10(a) of the NAB Ordinance and the offences specified in the schedule to the Ordinance are punishable in the manner specified therein by virtue of the provisions contained in Section 10(b) of the NAB Ordinance. He has further submitted that all the offences referred to in Sections 9 and 10 read with schedule to the NAB Ordinance are not exclusively triable by the Accountability Court appointed under NAB Ordinance. The Accountability Court shall take cognizance on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him and not otherwise. He has argued that the offence is triable under the NAB Ordinance or by the ordinary Criminal Court as well as Special Judges Anti-Corruption Central and Provincial as the case may be. According to him Section 10(d) of the NAB Ordinance is discriminatory in the sense that if in respect of any person charged of committing offences coming within the purview of corruption or corrupt practices as well as specified in schedule are not referred by the Chairman NAB or an officer authorized by him, he/she shall be triable by the other Courts established under the law and in case of conviction the convict shall be entitled to "the remissions under the Prison Rules, Section 401, Cr.P.C. and Article 45 of the Constitution as well as Section 402(a), Cr.P.C. He has further contended that under the system of remission under Chapter 8 of the Pakistan Prison Rules, the remission is generally earned and it is not a mere concession. He has referred to Rule 199 of the Prison Rules, which defines the remission system. It is provided in this rule that remission system is arrangement by which a person sentenced to imprisonment for a period of 4 months or more may by good conduct and industry become eligible for release and a portion of his sentence ordinarily not exceeding one-third of the whole sentence has yet to run. He has further submitted that remissions are of two kinds ordinary or special. He has pointed out that ordinary remission is not earnable if a prisoner is convicted for offence committed after admission in prison or for an assault committed after admission to prison, on a warder or other officer, the remission awarded by Government under Section 401, Cr.P.C. awarded for blood donation, surgical sterilization and for passing examination. This provision is contained in Rule 202. He has further referred to Rule 215, wherein it is provided that a convict prisoner may appear in any of the examinations specified in the rules and shall on passing such examination be entitled to earn remission. It is further provided in Rule 220 that when a prisoner has earned such remission as entitled him to release, the Superintendent shall release him unconditionally. He has further submitted that he has been convicted and sentenced to serve out imprisonment for 5 years and he is in custody for the last about 4 years. All other convicts other than NAB convicts with similar sentence have been released much earlier, after serving out their sentence, after earning the remission but he is still rotting in jail. According to him, the convicts under similar circumstances, for similar offences, under similar circumstances, belonging to same class, when convicted by other Courts become entitled to be released on bail after remaining in jail for about 2 or 2 years, having been treated to have served out the sentence, after earning remissions, while the NAB convicts are denied this concession which have been convicted after 23-11-2002, when clause (d) of Section 10 was inserted in the NAB Ordinance. He has further stated that another convict namely Qurban Jatoi was convicted after insertion of this provision but he has been released after allowing remissions. He has placed reliance on a judgment of Hon'ble Supreme Court in Criminal Petition No. 59-Q of 2005, State through National Accountability Bureau v. Shaikh Abdul Sattar Lasi dated 1-2-2006. In this case the respondent was convicted by an Accountability Court and the conviction and sentence were upheld by Balochistan High Court and the Hon'ble Supreme Court. This conviction was recorded on 26-7-2001. Remission earned by him was withheld for the period from 2-12-2002 to 18-3-2005 on the basis of Section 10(d) of the NAB Ordinance. He filed writ before Balochistan High Court, which was allowed on the ground that amendment was prospective in nature and would apply to the cases of conviction after 23-11-2002. At the instance of NAB leave to appeal was sought from the Hon'ble Supreme Court which was not allowed. Reliance was also placed on a judgment of Lahore High Court in the case of Dr. Azhar Atta Malik v. Chairman NAB, PLJ 2005 Cr. Cases (Lahore) 354, and on an earlier judgment of Peshawar High Court in the case of Farid Khan v. The State PLD 1965 (W.P.) Peshawar 31. In the first case it was held by Lahore High Court that the right or concession available to a convict on the date of conviction can not be curtailed by a subsequent change in law. A Full Bench of the Peshawar High Court laid down that such right/privilege/concession as available to an accused at the time of occurrence/commission of offence could not be subsequently taken away.
Mr. Shafat Nabi Sherwani, learned D.P.G.A NAB, very candidly and frankly stated that there should be one set of rules only for every convict under any law. He was of the view that the forum of trial and the procedure may be different and the punishments under some laws may be more stringent, as compared to the other enactments but after conviction the convict should be governed under the Prison Rules and not under the law pertaining to conviction. He conceded that the effect of Section 10(d) of the NAB Ordinance is that it places the NAB convict in disadvantageous position. The persons convicted by other Courts under other substantive laws, awarded same punishment shall be entitled to release, much earlier than the NAB convicts and by implication it would amount to addition in the sentence awarded, because every convict is supposed to serve out the sentence in accordance with the law contained in the Prison Act and the Rules as well as in Article 45 of the Constitution and Section 401, Cr.P.C. He has further submitted that denial of remissions to the NAB convicts while allowing the same to persons convicted by other Courts for similar offence is discriminatory in nature and merely on account of forum of trial it is not a reasonable classification with the result that the provisions contained in Section 10(d) of the NAB Ordinance assailed in this petition is repugnant to and violative of the fundamental right of equal protection of law guaranteed under Article 25 of the Constitution and consequently should be declared void, as provided under Article 8 of the Constitution. He further stated that after conviction by the trial Courts the convicts should be dealt with in accordance with the Prison Rules and by recourse to the non obstante clause no addition should be made in the Prison Laws until and unless a reasonable and rational classification is given in any law.
However, Mr. Akhtar Ali Mehmood, learned D.A.G. argued that Section 10(d) of the NAB Ordinance is not violative of the provisions contained in Articles 12 and 25 of the Constitution. He submitted that the provision is prospective in effect and even by implication it is not retroactive. According to him if a reasonable classification is made out on intelligible differentia then a law is not to be declared as inconsistent, repugnant or violative of Article 25 of the Constitution. He submitted that mere reference to NAB Court by Chairman NAB or an officer authorized by him amounts to a reasonable classification. He further submitted that remission is a concession only under the Prison Rules and is not a right, therefore, the petitioners can not claim it and have no right to assail the validity and vires of Section 10(d) of the NAB Ordinance, whereby the remissions have been denied to them. When confronted with the judgment of Hon'ble Supreme Court in the case of Waris Meah v. The State, PLD 1957 SC 157, wherein the Hon'ble Supreme Court held that the law conferring discretion on a very wide character upon State authorities to act in relation to subject falling within the same class in three different modes varying greatly in severity, by furnishing no guidance whatsoever, in regard to the exercise of this discretion, the Act, on the one hand leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and on the other, prevents him from invoking his Fundamental Right to equality of treatment under the Constitution, he came with the plea that sufficient guiding principles are contained in Section 18 (g) of the NAB Ordinance and theretofore, the ratio of above judgment is not attracted. The learned D.A.G, was further confronted with the law laid down by the Hon'ble Supreme Court in Waris Meah's case that the duty of Courts for declaring a law inconsistent with the provisions of the 1956 Constitution cannot be performed so as to ensure that the law operate equally in relation to all persons within its mischief, if law itself provides for different options in relation to such persons, not in accordance with any principle expressed or implicit in law, not on the basis of any classification made or under the law, but according to unfettered discretion of one or more statutory authorities. In this case the Hon'ble Supreme Court further held that in the absence of any discernible principle guiding the choice of forum, the choice must always be in the judicial viewpoint, arbitrary to a greater or lesser degree. The Hon'ble Supreme Court further held that by use of unfettered discretion of statutory authorities thereby treating unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purpose of the law, the Act was discriminatory and inconsistent with the declaration of equality in Article 5(1) of the 1956 Constitution.
The learned D.A.G, insisted that the provisions contained in Section 18(g) of the NAB Ordinance, contained sufficient guidance providing reasonable classification to treat the NAB convicts a separate class, and, therefore, they were not entitled to remissions while serving out the sentences awarded to them by Accountability Courts.
He also maintained that the provision contained in Section 10 (d) of the NAB Ordinance is in conformity with the object of the law. However, the learned DPGA was of the view that the object of enacting NAB Ordinance was not to incarcerate the convicts for longer period but the object was to provide, effective measures for speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of properties, taking kickbacks, commissions for matters connected and ancillary or incidental thereto and to recover the outstanding amounts, from those persons, who have committed default in the re-payment of amounts of banks and financial institutions and to recover, the State money and State assets from those persons who have misappropriated or removed such money or assets through the corruption or corrupt practices and misuse of power or authority and after obtaining the above object to bring back the convicts in the main stream of the society allowing them to contribute in the development and betterment of the society. In this behalf, he referred to the Judgment of Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan, PLD 2001 SC 607 and several other judgments.
We have very carefully considered the contentions raised by the petitioners, learned DPGA and the learned D.A.G, and provisions of law referred to by them.
Before examining the provisions contained in Section 10(d) of the NAB Ordinance, we would succinctly narrate the principles governing the issues involving validity and vires of a law (including statute law) challenged with reference to Articles 12 and 25 of the Constitution. Article 4 of 1962 Constitution was similar to Article 12 of the 1973 Constitution. A law on the touchstone of this article came for consideration before a Full Bench of Peshawar High Court, in the case of Farid Khan (ibid) with reference to Section 57, P.P.C. A question was referred before the Full Bench with reference to the remissions ordinary or special and the remissions under Section 401, Cr.P.C. It was contended on behalf of the petitioner/convict, that under rules applicable at the time, the petitioner was convicted, there was no restriction on the total length of remission, but now remission has been limited, thus having the effect of imposing longer substantive punishment of imprisonment on the petitioner.
Anwar-ul-Haq, J., (as his lordship then was) speaking for the Full Bench observed that the Fundamental Right No. 4 on which reliance was placed did not apply in terms in the said case, for there was no question of imposing a greater punishment on the petitioner than was prescribed by law at the time the offence was committed. The penalty prescribed by law for the offence as committed by the petitioner remains the same. At the same time, however, his Lordship agreed that if new instructions has the effect of keeping prisons in custody for aggregate period of more than 20 years, including remissions, then it can be said that in practical effect the punishment imposed upon him has become greater than was prescribed at the time he committed the offence. It was further observed that the convict had completed an aggregate period of more than 20 years including remissions and he would have been entitled to be released on the completion of 20 years if the memorandum prescribing the new conditions was not issued. It was held that the result was that the prisoner was being compelled to undergo longer sentence in the aggregate period than prescribed at the time he committed offence or was convicted. It was further held that the result seems to be clearly against the spirit if not the term of the right embodied in fundamental right No.4 guaranteed by the 1952 Constitution. It was also observed that in the matter of the liberty of the subject it is the duty of the Court to ensure that not only the letter of law but also its spirit is observed. Consequently it was held that the memorandum assailed in the petition cannot be allowed to be operated retrospectively in the manner so as to authorize the detention of the convict for an aggregate period, including remission of more than 20 years.
As already observed earlier, this judgment was considered by the Hon'ble Supreme Court in the case of State through NAB v. Shaikh Abdul Sattar Lasi, and the ratio of this judgment was not disturbed.
This brings us to the principles governing the provisions pertaining to fundamental rights guaranteed under Article 25 of the Constitution relating to the equal protection of law. This Article enjoins that all citizens are equal before law and are entitled to equal protection of law, i.e., all persons subjected to law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. It must be amongst equals. The equality has to be between persons who are placed in the same set of circumstances. The guarantee of equal protection of the law requires that all persons shall be treated alike, under like circumstances and conditions. The Phrase "equal protection of law" envisaged by Article 25 of the A Constitution means that no person or class of persons would be denied the same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuit of happiness. Persons similarly situated or in similar circumstances are to be treated in the same manner. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine, provided, the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of legislation. It means that two sets of similar circumstances shall not have different legal effects, unless there is a difference of circumstances and the difference between the two sets is material enough to Support the discrimination.
Articles 8 and 25 of the Constitution were considered by the Hon'ble Supreme Court in the case of Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341. The Hon'ble Supreme Court considered the law laid down in the following cases;--
(1) Jibendra Kishore Achharyya Choudhry and others v. Province of East Pakistan PLD 1957 SC 9.
(2) Waris Meah v. State PLD 1957 SC 157.
(3) Bazal Ahmed Ayyubi v. The West Pakistan Province PLD 1957 Lah. 388.
(4) Zain Noorani v. Secretary of the National Assembly of Pakistan PLD 1957 Kar. 1.
(5) Malik M.Usman v. State PLD 1965 Lah. 229.
(6) East and West Steamship v. Pakistan PLD 1958 SC 41.
(7) F.B. Ali's case PLD 1957 SC 506.
(8) Fauji Foundation's case PLD 1983 SC 457.
(9) I.A. Sherwani's case 1991 SCMR 1041.
(10) Abdul Wali Khan's case PLD 1976 SC 57.
(11) Aziz Begum's case PLD 1999 SC 899 and
(12) Shirin Munir and others v. Government of Punjab PLD 1990 SC 295.
(13) Inam-ur-Rehman v. Federation of Pakistan and several judgments of the Supreme Court of India and deduced the following principles:--
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reasons for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable it should be based:--
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
"As the judgment from Indian jurisdiction have been considered in the aforestated judgments of this Court, we would not refer to them here. In all these authorities there seems to be a unanimity of view that although class legislation has been forbidden, it permits reasonable classification for the-purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rational relation to the object sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25."
(i) The presumption is always in favour of the constitutionality of a enactment, since it must be assumed that the legislature understands, and correctly appreciates the needs of its own people that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
(ii) The presumption may be rebutted in certain cases by showing that on face of the statute, there is no classification at all and no difference peculiar to any individual or class, and yet the law hits only particular individual or class.
(iii) The principle of equality does not mean that law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes or persons often require separate treatment.
(iv) The principle does not take away from the State the power of classifying persons for legitimate purposes.
(v) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
(vi) If a law deals with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
(vii) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis.
"Article 8(1 )(2) of the Constitution:
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void."
"Article 12(1) of the Constitution:
(a) for an act or omission that was not punishable by law at the time of the act or omission;
(b) for an offence by penalty greater than, or of a kind different from the penalty prescribed by law for that offence at the time the offence was committed."
"Article 25(1) of the Constitution:
Preamble to NAB Ordinance:
Whereas it is expedient and necessary to provide for effective measures for the detention, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking o kickbacks, commissions and for matters connected and ancillary or incidental thereto;
And whereas there is an emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to Banks, Financial Institution's Governmental agencies and other agencies;
And whereas there is a grave and urgent need for the recovery of State money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power of authority;
And whereas there is an urgent need to educate the society about the causes and effects of corruption and corrupt practices and to implement policies and procedures for the prevention of corruption in the society;
And whereas there is an increased international awareness that nations should co-operate in combating corruption and seek, obtain or give mutual legal assistance in matters concerning corruption and for matters connected, ancillary or incidental thereto;
And whereas it is necessary that a National Accountability Bureau be set up so as to achieve the above aims;
And whereas the National Assembly and the Senate stand suspended in pursuance of the Proclamation of the fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999, as amended;
And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action;
Now therefore, in pursuance of the aforesaid proclamation and Provisional Constitutional Order as well as Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance."
Section 5(g) of the NAB Ordinance.--"Court" means an Accountability Court which shall consist of a Judge who shall be appointed by the President of Pakistan, in consultation with the Chief Justice of the High Court of the Province concerned, on such terms and conditions as may be determined by the President."
Section 9. National Accountability Ordinance, 1999:
Corruption and corrupt practices:
(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices--
(i) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in Section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for-bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any persons; or
(ii) if he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or
(iii) if he dishonestly or fraudulently mis-appropriates or otherwise converts for his won use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or
(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other persons, any property, valuably thing, or pecuniary advantage, or
(v) if he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any assets or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income; or
(vi) if he misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority;
(vii) if he has issued any directive, policy, or any S.R.O. (Statutory Regulatory Order) or any other order which grants or attempts to grant any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person; or
(viii) if he commits an offence or wilful default; or
(ix) if he commits the offence of cheating as defined in Section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person; or
(x) if he commits the offence of criminal breach of trust as defined in Section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860) with regard to any property including money or valuable security entrusted to him by members of the public at large; or
(xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust as provided in Section 409 of the Pakistan Penal Code, 1860 (Act XLV of 1860) in respect of property entrusted to him or over which he has dominion; and
(xii) if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi); and
(b) All offences under this Ordinance shall be non-bailable and, notwithstanding anything contained in Sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.
(c) If after completing the investigation of an offence against a holder of public office or any other person, the Chairman NAB is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody."
Section 10, NAB Ordinance:--
Punishment for corruption and corrupt practices.--(a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamindars shall be forfeited to the appropriate Government, or the concerned bank or financial institution as the case may be.
(b) The offences specified in the Schedule to this Ordinance shall be punishable in the manner specified therein.
(c) The Federal Government may, by notification in the official Gazette, amend the Schedule so as to add any entry thereto or modify or omit any entry therein.
(d) Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentences."
S.No. Offences
Punishment
Rigorous imprisonment for a terms which may extended to fourteen years and fine.
Rigorous imprisonment for a term which may extend to five years.
(a) a complainant, witness or an accused person or any inquiry officer; and
(b) the investigator of the National Accountability Bureau or concerned agency.
Rigorous imprisonment for a term which may extend to five years.
Rigorous imprisonment for a term which may extend to five years.
Rigorous imprisonment for a term which may extend to ten years.
Rigorous imprisonment for a term which may extend to fourteen years.
Rigorous imprisonment for a term which may extend to fourteen years.
Simple imprisonment for one year, or fine, or both.
Simple imprisonment for two years or fine, or both and confiscation of property, if purchased.
Imprisonment of either description for seven years and fine.
Imprisonment of either description for three years, or fine, or both.
Imprisonment of either description for seven years or fine, or both.
Imprisonment of either description for seven years for fine.
Punishable for forgery of such documents.
Imprisonment for life or imprisonment of either description for seven years or fine.
Imprisonment of either description for seven years or fine, or both.
Section 14 sub-sections (a), (b) and (c):
(b) Wherein any trial of an offence punishable under Section 165-A of the Pakistan Penal Code (Act XLV of 1860) it is proved that any gratification other than legal remuneration or any valuable thing has been given, or offered to be given, or attempted to be given, by any accused person, it shall be presumed, unless the contrary is proved, that he gave, or offered to give, or attempted to give that gratification, or that valuable thing,, as the case may be, as a motive or a reward such as is specified in Sections 161 to 163 of the said Code, or, as the case may be without consideration or for a consideration which he believed to be inadequate.
(c) In any trial of an offence punishable under clause (4) of the sub-section (a) of S. 9 of this Ordinance, the fact that the accused person or any other person on whose behalf is in possession for which the accused person cannot satisfactorily account, of assets or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction therefor shall not be invalid by reasons only that it is based solely on such a presumption.
Section 18(a) and (g).
(a) The Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him.
(b), (c), (d), (e), (f) ...................................................
(g) The Chairman NAB or an officer of the NAB duly authorized by him shall appraise the material and the evidence placed before him during the inquiry and the investigation, and if he decides that it would be proper and just to proceed further and there is sufficient material to justify filing of a reference, he shall refer the matter to a Court.
Section 31-C, Court to take cognizance of offence with prior approval of the State Bank.--No Court established under this Ordinance shall take cognizance of an offence against an officer or an employee of a bank or financial institution for writing off, waiving, restructuring or refinancing any financial facility, interest or mark-up without prior approval of the State Bank of Pakistan."
Section 170(1). Cr.P.C.:
(2) ......................................................
(3) ......................................................
(4) ......................................................
(5) ......................................................
Section 204(1), Cr.P.C.:
(2) ................................................
(3) ................................................
Sections 4 and 5 Prevention of Corruption Act, 1947.
(2) Wherein any trial of an offence punishable under Section 165-A of Pakistan Penal Code it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by any accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 161 of the said Code, or as the case may be, without consideration or a consideration which he knew to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2) the Court may decline to draw the presumption referred to in either of the said sub-section if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.
(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Pakistan Penal Code or
(b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate , from any person whom he knows to have been or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or
(e) if he, or any of his dependents, is in possession, for which the public servant cannot reasonably account, of pecuniary resources or of property disproportionate to his known sources of income.
Explanation.--In this clause "dependent" in relation to a public servant, means his wife, children and step-children, parents, sisters and minor brothers residing with and wholly dependent on him.
(2) Any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
(3) In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused persons cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption.
(4) The provisions of this section shall be in addition to, and not in derogation of, any other law for the time being in force and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him."
Section 5(c) Prevention of Corruption Act.
5-C. Possession of property disproportionate to known sources of income.--(1) Any public servant who has in possession any property, movable or immovable, either in his own name or in the name of any other person, which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to the known sources of income of such public servant shall, if he fails to account for such possession to the satisfaction of the Court trying him, be punishable with imprisonment for a term which may extend to seven years and with fine, and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government.
(2) The reference in sub-section (1) to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law or to any rule or instrument having the source of law or by coercion, undue influence, fraud or misrepresentation, within the meaning of the Contract Act, 1872.
So far, the first contention on behalf of the petitioner that the effect of denial of remission to the NAB convicts by virtue of impugned Section 10(d) of the NAB Ordinance, amounts to enhancement of sentence and thus is violative of the provisions contained in fundamental rights guaranteed under Article 12 of the Constitution, it already stands covered by the Full Bench judgement of the erstwhile West Pakistan High Court Peshawar, Bench in the case of Farid Khan v. State (ibid). We are in respectful agreement with the view taken by the Full Bench in the above case.
Now we take up the contention pertaining to the validity of Section 10(d) on the point of being discriminatory and violative of the fundamental right of equal protection of law guaranteed under Article 25 of the Constitution. The principles governing the issue have already been laid down in the earlier judgments, which have been reproduced by us in the earlier part of this judgement. Mr. Akhtar Ali Mehmood, learned D.A.-G. has submitted that there is always a presumption in favour of the constitutionality of an enactment, we would reiterate that there is no cavil to the proposition. However, this principle is intimately connected with another principle that the presumption may be rebutted in the cases where it appears on the face of statute, that there is no classification at all and there is no difference peculiar to an individual or class and yet the law hits only a particular individual or class. While considering whether there is any reasonable classification it is imperative to examine if classification is based on some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification is not arbitrary and without any substantial distinction.
We are not persuaded to agree with the submission of learned D.A.-G. that sufficient guidelines are available in Section 18(g) of the NAB Ordinance, for making reference to a case to the Accountability Court by Chairman, NAB or an officer of the NAB duly authorized by him. By comparing Section 18(g) NAB Ordinance, with Sections 170 and 204, Cr.P.C. we find that these provisions are aimed to provide protection to the citizens from malicious and frivolous prosecution and to keep a check on arbitrary prosecution of the citizens. It is provided in Section 18(g) of the NAB Ordinance that the Chairman or the officer authorized by him shall appraise the material and the evidence placed before him during the inquiry and investigation, and if he decides that it would be proper and just to proceed further and there is sufficient material to justify filing of a reference, he shall refer matter to the Court. It is provided in Section 170, Cr.P.C. that if upon an investigation it appears to the officer Incharge of the Police Station that there is sufficient evidence or reasonable grounds as aforesaid, such officer shall forward the accused under custody to the Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial. Likewise it is provided in Section 204, Cr.P.C. that if in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, the Court shall issue the process. We would like to point out that the original Section 18(g) of the NAB Ordinance had vested the arbitrary and total unbridled authority in the Chairman, NAB for making a reference as it was provided that if he decides that it would be proper and just to proceed further he shall refer the matter to Accountability Court. However, subsequently better wisdom prevailed and the words "and there is sufficient material to justify filing of reference" were inserted by Ordinance No. XXXV of 2001, dated 10-8-2001. Nonetheless, the provision as it stands now has no much difference with the provisions contained in Sections 170 and 204, Cr.P.C. with the variation that there is no choice of forum in respect of cases and accused persons who are to be tried by virtue of the provisions under Sections 170 and 204, Cr.P.C., while on account of the fact that the offences triable under the NAB Ordinance are mostly triable by other forums also, therefore, the power has been conferred on Chairman NAB or an officer authorized by him to decide whether or not the case is to be referred to an Accountability Court. If the Chairman NAB or the officer authorized by him decides that reference is not to be made to the Accountability Court then the accused persons alleged to have committed offences are to be tried by the forums other than Accountability Court. Thus, under Section 18(g) of the NAB Ordinance, two conditions are to be satisfied first, that there is sufficient material to justify filing of reference, and, second, the Chairman NAB or the officer authorized by him decides that it would be proper and just to file the reference, then only matter shall be referred to the Accountability Court. So far, the second condition of taking decision by the Chairman NAB or an officer authorized by him is concerned, there are no guidelines as postulated by the Hon'ble Supreme Court in Waris Meah's case referred to above. We do not find any guidelines, for exercising jurisdiction by the Chairman NAB or an officer duly authorized by him, in Section 18(g) of the NAB Ordinance as contended by the learned D.A.-G., and consequently we hold that following dictum laid down by the Hon'ble Supreme Court in the Waris Meah's case is fully applicable.
There is also an unfettered choice to pursue the offence in any one of three different modes which vary greatly in relation to the opportunity allowed to the alleged offender to clear himself, as well as to the quantum and nature of the penalty which he may incur. The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial view, arbitrary to a greater or less degree. The Act, as it is framed, makes provisions for discrimination between the persons falling, qua its term, in the same class and it does so in such manner as to render it impossible for the Courts to determine, in particular case, where it is being applied with strict regard to the requirements of Article 5(1) of the Constitution.
In our view such a law has the effect of doing indirectly i.e. by leaving the discrimination within the unguided and unfettered discretion of statutory authority, what it could not do directly i.e. to treat unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purposes of the law, the Act is therefore, in our opinion, in relation to its discriminatory provisions inconsistent with the declaration of equal protection in Article 5(1) of the Constitution."
(Article 5(1) of the 1956 Constitution was identical to Article 25 (1) of the 1973 Constitution.)
A comparative examination of the provisions contained in the NAB Ordinance and the Prevention of Corruption Act, 1947, shows that there is not much difference in the definition of criminal misconduct contained in Section 5 of Prevention of Corruption Act, 1947 and the Corruption and corrupt practices defined in Section 9 of the NAB Ordinance. However, the scope of Section 9 of the NAB Ordinance is much wider than Section 5 of the Prevention of Corruption Act, 1947. Nonetheless, the provisions pertaining to illegal gratification etc., by the public servants in both the provisions are similar to a large extent. While extending the scope of corruption and corrupt practices envisaged under Section 9 of the NAB Ordinance, several offences punishable under Pakistan Penal Code with certain modifications have been added. Likewise several offences punishable under Pakistan Penal Code and triable by the Courts specified in Second Schedule to Criminal Procedure Code have been made triable by the Accountability Court, in some cases, in respect of public servant and in other cases by any person, public servant or a common citizen.
The provisions pertaining to the presumption contained in NAB Ordinance are also similar to the provisions contained in the Prevention of Corruption Act, 1947. The ordinary Criminal Courts and Special Courts Anti-Corruption (Central and Provincial) are also working and if the cases are not referred to the Accountability Court, the offences included in Section 9 and schedule under Section 10(d) of the NAB Ordinance are still triable by the said Courts and in fact the accused persons alleged to have committed such offence whose cases have not been referred to the Accountability Courts are facing prosecution in the said Courts. Thus, if for the commission of same offences the accused persons are convicted by the Courts other than Accountability Court, they are entitled to earn remission while the NAB convicts for commission of same offences under similar set of circumstances shall be deprived of the remission on account of Section 10(d) of the NAB Ordinance. It requires no emphasis that the public servants indulged in corruption and corrupt practices or criminal misconduct as the expression is used in the Prevention of Corruption Act, 1947, belong to the same class and merely on the basis of change of forum of trial, or change of term defining the offence, they could not be termed as belonging to a different class. The classification of persons or a class which is permissible and is not hit by the mandate of Article 25 of the Constitution, must be founded on reasonable distinction or reasonable basis, based on intelligible differentia and must not be arbitrary.
As in respect of public servants found involved in corruption or criminal misconduct, the offences punishable under Sections 218 and 219 P.P.C, which are ordinarily triable by the Courts specified in the Second Schedule to the Criminal Procedure Code are also triable by NAB Court. The punishment and the nature of offence are still same. Similarly the offences punishable under Sections 468, 471, 472, 477-A P.P.C. are triable ordinarily by the Court specified in Second Schedule to Criminal Procedure Code, in appropriate cases by Special Courts under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 and Special Judges appointed under Pakistan Criminal Law Amendment Act 1958, as well as by the NAB Court by virtue of schedule 10(b) of the NAB Ordinance. The nature of offences are same and the punishments provided are also the same. The special rules of evidence contained in NAB Ordinance, Prevention of Corruption Act 1947, Criminal Law Amendment Act 1958 and Offences in Respect of Banks (Special Courts) Ordinance 1984, are also similar. However, merely on account of change of forum one set of convicts under the same class not convicted by Accountability Court shall be entitled to remission and thus shall serve out their sentence, much earlier than the other set of convicts in the same category or class convicted by the Accountability Court. Result is too obvious that there is no intelligible differentia, distinguishing one group of persons from other group of persons and thus, there is no reasonable classification permissible for such purpose. Merely on the basis of change of forum the classification cannot be held to be permissible as reasonable because such classification shall not be based on any real and substantial distinction.
Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards or norms for the guidance of the designated authority in exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the State would be condemned as unconstitutional.
However, where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government or any authority to select and classify persons or things without laying down any principle or policy to guide the Government or authority in the exercise of discretion, or a law is made by the State, whereby certain persons or group of persons are discriminated without any rational and reasonable classification and leaving the other groups of the same class, the denial of benefit, privilege or right to one group of persons and allowing the other group of persons would certainly be a discrimination between the persons or things similarly situated and consequently shall be void on account of the provisions contained in Article 25(1) of the Constitution read with Article 8 thereof.
Another test for permissible classification is that the differentia must have rational nexus to the object sought to be achieved by such classification. For this purpose the object of the law creating differentia is to be examined. As rightly stated by the learned D.P.G.A. the object and purpose of enacting NAB Ordinance is not to keep the accused persons in custody for longer periods but the main purpose is to recover the outstanding amounts and State money misappropriated by the persons prosecuted. The entire scheme of plea bargain, power to freeze the property, holding the transfer of property void, voluntary return, constitution of Conciliation Committees for payment of loans, reference of cases to Governor State Bank of Pakistan and prior approval of State Bank, are directed in this behalf. The Hon'ble Supreme Court while examining various provisions of the NAB Ordinance in the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 S.C, 607, held that one of the purposes and object of the law was to recover the ill-gotten money. This object of the law has no nexus with the classification pleaded by the learned D.A.G, under Section 10(d) of the NAB Ordinance.
The learned D.A.-G., contended that similar provisions are contained in Section 21-F of the Anti-Terrorism Act, 1997, which provides that notwithstanding, anything contained in any law or Prison Rules for the time being in force, no remission in any sentence shall be allowed to a person, other than a child who is convicted and sentenced for any offence under this Act, unless granted by the Government.
We would not like to make any observation in respect of this provision for the reason that the possibility of assailing the above provision before any Superior Court, cannot be ruled out and any observation made by us in this judgement may adversely affect any subsequent proceedings. However, we would like to observe that merely because a similar provision is contained in the Anti-Terrorism Act, 1997, it will not provide any justification for upholding the provision under challenge. We will make a tentative observation to the effect that the object of enacting Anti-Terrorism Act, 1997 is entirely different from the object sought to be achieved through the enactment of NAB Ordinance and the provision in every law is to be considered on its own merits with reference to the particular law under consideration.
However, we would like to refer to the proviso to sub-section (1) of Section 401 Cr. P.C. inserted through Section 15 of Act No. 1 of 2005. This proviso contains that the Provincial Government shall have no power to suspend or remit any sentence awarded to an offender under Chapter XVI of the PPC, if an offence has been committed by him in the name or on the pretext of Karo Kari, Siah Kari or similar other customs or practices.
We find that the remissions under the Prison Rules are of two kinds ordinary and special. It is provided in Rule 218 of the Prison Rules that special remission is awarded by the Government on occasion of public rejoicing. It is granted unconditionally under Section 401(1) of the Criminal Procedure Code 1898 and is not governed by these rules. Thus, under the proviso to Section 401 Cr. P.C. there is no total denial of the remission. It is only in respect of remission granted by the Provincial Government under Section 401 Cr. P.C. in respect of sentences awarded under Chapter XVI of Pakistan Penal Code and in respect of a class of criminals who committed offence in the name or on the pretext of Karo Kari, Siah Kari or similar other customs and practices. In addition to the fact that under this proviso there is no total denial of remission, a reasonable classification based on intelligible differentia is available.
Under Rule 201-A which has been framed on the move of the Federal Government, it is provided that, "notwithstanding anything contained in these rules a person convicted under the charge of espionage/Anti State activities shall not be entitled to ordinary and special remission unless Federal Government or Provincial Government or competent authority makes a specific order in writing in this behalf".
Again in this provision there is a reasonable and rational classification specifying a class of persons and still leaving the discretion with Federal or the Provincial Government and competent authority. A similar provision has been inserted by the Punjab Government through Rule 214-A of the Prison Rules. The Punjab Government has deprived all the convicted persons for special remission or on premature release on parole if they are sentenced for drug/narcotics offences vide Home Department letter No. 14/1/93/MP, dated 27-1-1993. In this case also a classification has been made which is based on intelligible differentia. The remission has not been denied on account of mere forum of trial but on account of commission of offences pertaining to drugs and narcotics.
The entire discussion above, leads to the conclusion that Section 10(d) of the NAB Ordinance denying remission to the NAB convicts has the effect of enhancing the punishment awarded to the NAB convicts and further is discriminatory as it is not based on any reasonable and rational classification. It is arbitrary in nature and as argued by the "learned D.A.-G. is merely based on the basis of forum of trial. We do not find any force in the contention of learned D.A.-G. that mere forum of trial is a reasonable and rational classification based on intelligible differentia. The denial of remission to NAB convicts under Section 10(d) of the NAB Ordinance has no nexus with the object of legislation and consequently, we hold that it is violative of and repugnant to the provisions contained in Articles 12 and 25 of the Constitution. We are of the considered opinion that such provision of law is not permissible and cannot be saved being patently violative of the fundamental right guaranteed in the Constitution.
We hold that Section 10(d) of the NAB Ordinance, is ultra-vires the Constitution and is liable to be struck down being void under Article 8(1) of the Constitution on account of being inconsistent with the right conferred by the Constitution. We further hold that all persons convicted under the NAB Ordinance, would be entitled for such remissions in the same manner as persons convicted under the other ordinary and special laws.
After hearing the petitioners and the learned Advocates on 6-11-2006, the petition was allowed by short order, which reads as follows:--
Having heard the petitioner and the learned counsel we are of the view that Section 10(d) of the NAB Ordinance is ultra vires the Constitution and liable to be struck down and all prisoners convicted under the NAB Ordinance would be entitled to such remission as persons convicted under the ordinary law. At the same time we also find great force in the petitioner's contention that he was discriminated against inasmuch as another prisoner Qurban Jatoi convict of a NAB offence was given the benefit of remission. The Superintendent, Central Jail came up with the facile explanation that he was not aware of the provisions of Section 10(d) of the NAB Ordinance till the same were communicated to him by the Home Department in October, 2005 and, therefore, benefit of remission was given to the aforesaid Qurban Jatoi. We must express our pain and anguish at such a deplorable state of affairs and would direct that the copy of the orders may be communicated instantly to the Secretary, Home Department, and the Advocate-General Sindh, for taking appropriate action in ensuring that law must invariably be complied with.
At the request of learned D.A.-G., who states that the Federal Government intends to prefer leave to appeal against this judgment, let the effect of this judgment remain suspended for a period of two weeks from today".
The petition is allowed.
(Sd.)
Muhammad Mujeebullah Siddiqui, J
(Sd.)
Mrs. Qaisar Iqbal, J
I agree and have also appended a separate note.
(Sd.)
Sabihuddin Ahmed, C.J.
Sabihuddin Ahmed, C.J.--I am in complete agreement with the elaborate and erudite judgment proposed to be delivered by my learned brother, Muhammad Mujeebullah Siddiqui, J. By way of supplementing his conclusion I may refer to an earlier Division Bench judgment of this Court in Rauf Bakhsh Kadri v. The State SBLR 2003 Sindh 163 to which I happened to be a party . In this case, the validity of Section 18 of the NAB Ordinance was questioned on the ground that it conferred arbitrary powers upon the Chairman NAB to pick and choose persons for trial before Accountability Courts entailing higher punishment while the offences listed in Section 9(a) also constituted offences under other laws with lesser sentences. We found it possible to uphold the validity of the Ordinance by reading down some of the clauses and arrived at the following conclusion in para. 30:--
"30. For the foregoing reasons we are inclined to hold that the qualifications laid down in clause (ix) will also have to be read in the other clauses of Section 9(a). In other words the discretion of the Chairman NAB or an officer authorized by him to file a reference before the Accountability Court is not absolute or arbitrator. Such reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre-bargaining to the accused would be in the national interest. In the absence of such satisfaction a case could only be triable under the ordinary law."
(R.A.) Petition allowed
PLJ 2007 Karachi 133
Present: Zia Perwez, J.
MUSLIM COMMERCIAL BANK LIMITED--Appellant
versus
NAZIR AHMED PATHAN and another--Respondents
Labour Appeals No. 3 & 4 of 2005, decided 16.4.2007.
Industrial Relations Ordinance, 1969 (XXIII of 1969)--
----S. 25-A--Misconduct and misappropriation--Maintainability of--As soon as misappropriation of public money was established, the delinquent would be deemed guilty of embezzlement, therefore, no leniency in, such behalf can be shown to him--Respondents have been found misappropriating public money from the bank may be temporarily but as far as charge is stands established without doubt--No such misconduct as temporary misappropriation--Held: Grievance notice not in accordance with law as such grievance petition was not maintainable. [P. 137 & 138] A & B
Jurisdiction--
----Labour Court--Examine--Enquiry proceedings--Legality--Labour Court has jurisdiction to examine the cases as well as enquiry proceedings. [P. 138] C
Mr. Mahmood Abdul Ghani, Advocate for Appellant in both appeals.
Mr. Nizamuddin Baloch, Advocate for Respondent in both appeals.
Date of hearing: 1.3.2007.
Judgment
I intend to decide these appeals by this common judgment as the question of law and fact involved in each appeal is identical.
These appeals are directed against the impugned judgments of Sindh Labour Court-VII at Sukkur dated 30.6.2005 in Grievance Application No. 4 of 2003 and judgment dated 29.6.2005 in Grievance Application No. of 2003 allowing applications under Section 25-A of I.R.O. 1969.
Facts necessary for disposal of Labour Appeal No. 3 are that the respondent Nazir Ahmed Pathan while serving as Cashier at the Ghotki Branch of Muslim Commercial Bank Limited is alleged to have committed misconduct and misappropriation. An amount of Rs. 13049/- on account of telephone bills was received but was not credited in the account of Officer telephone revenue. The charge sheet was issued on 22.7.1997. In reply the respondent Nasir Ahmed took the defence that the amount was kept by him in his drawer from where it was stolen. On finding the reply to be unsatisfactory respondent was directed to participate in enquiry vide appellant's letter dated 31.7.1997.
Precisely stating facts of Labour Appeal No. 4 of 2005 are that the respondent Abdul Razak Pathan faced departmental proceedings in pursuance of letter containing charges dated April 1, 1997 wherein it was alleged that while discharging his duty as a Cashier at Adda Murid Shakh Branch of MCB Ltd., he pocketed a sum of Rs. 80,000/- On 2.2.1997 consumer Ali Nawaz who is maintaining PLS A/C 10 presented cheque amounting to Rs. 1,85,000/- for cash but instead of paying full amount, respondent paid him Rs. 105,000/- and ensured him that balance amount of Rs. 80,000/- has been credited to his account, but he did not issue cash credit slip of Rs. 80,000/- to the consumer, thus, he embezzled the said amount. On 7.2.1997 said Ali Nawaz issued cheque for Rs. 75000/- of his PLS A/C 10 which respondent posted in ledger against bogus/flying credit entry of Rs. 80,000/- in the account whereas no record of such entry of like amount existed in relative day book. In order to remove the evidence and detection of fraud, respondent torn out the half page of PLS A/C 10 in connivance of Manager Aijaz Ali Kalwar. It is also alleged that the respondent had also written a fictitious entry of Rs. 35000/- on 1.2.1997 in CD A/C 501 of Syed Ghulam Ali Shah and such entry was not recorded in relative day book.
The respondents participated in the enquiry proceedings where evidence was duly recorded after providing an opportunity of cross-examination to the respondents. Charges against the respondents were proved. Dismissal letters were issued to the respondents on 10.1.1997 and 31.7.1997 respectively. The respondents served grievance notices addressed to the General Manager, MCB Sukkur and President MCB followed by applications under Section 25-A of I.R.O. 1969.
After recording of evidence learned Labour Court declined to allow preliminary objections by the appellant and was pleased to order for reinstatement of the respondents. However, learned Court awarded penalty of postponement of promotion to the respondent Nazir Ahmed for a period of three years from the date when his promotion became due.
Heard learned counsel and perused the record.
Learned counsel for the appellant contended that the petitions of the respondents under Section 25-A of IRO 1969 are not maintainable as the respondents have failed to alleged in his grievance petitions or affidavit-in-evidence that their dismissal was in connection with any industrial dispute. On this proposition of law, learned counsel placed his reliance on the case of Trustees of the Fort of Karachi v. Muhammad Saleem (1994 SCMR 2215), Board of Governors Aitchison College Lahore v. Punjab Labour Appellate Tribunal and others (2001 SCMR 1928); that the respondents were allowed full opportunity to defend the charges against them and their replies to various charge-sheets were duly considered by the Enquiry Officer and employees never asked for further personal hearing. The Honourable Supreme Court in case of United Bank Limited V. Raja Ghulam Hussani (1999 PLC 106) was pleased to lay down principle that the domestic enquiry against employee could not be described as illegal or without jurisdiction in circumstances. Learned counsel further contended that the bank acts as custodian of the public money and the amount whatsoever is deposited, is required to be credited to the account of customers without any delay. No sooner the trust reposed by the customer on the bank is shaken the banks would not be in a position to run its business, therefore, for the reason that at a subsequent stage, the amount was deposited, would not constitute a mitigating circumstance in favour of the respondents to hold that they are entitled for re-instatement into service; that it is well settled that as soon as misappropriation of public money is established, the delinquent shall be deemed guilty of embezzlement, therefore, no leniency in this behalf can be shown to him. The misappropriated amount on irregularity big or small and past unblemished record is irrelevant. On this point, learned counsel placed his reliance on Izzat Baig Awan vs. Habib Bank Limited (2004 SCMR 98), Shahid Masood Malik vs. Habib Bank Ltd. And another (2003 T.A (service) 180), Janatha Bazar v. Secretary, Shahkari Noukarana Sangh (AIR 2000 SC 3129) and the unreported decision of this Court in C.A. 296 to 299 & 301 of 1992. Learned counsel further argued that the affidavit-in-evidence filed in Labour Court is also defective, as it nowhere mentions how much is in personal knowledge of the employee and how much based on in-formation or belief stating reasons thereof. In support of his contention, learned counsel placed his reliance on the case of and Habib Bakhsh Vs. Zahur-ul-Hasan (PLJ 1986 Karachi 190); that the notices of grievance were served on the General Manager, MCB who is not a legal entity. Likewise, grievance notices addressed to the President of the Bank were also illegal as he is not the appointing authority of respondents. The grievance notices not in accordance with law were thus, not maintainable. The bank employee should first serve departmental appeal before serving grievance notice. In the instant case no departmental appeals were served nor claimed hence even on this ground grievance petitions in Labour Court were not maintainable. On this point, reliance has been placed on Secretary, B. & R., Government of West Pakistan and four others vs. Fazal Ali Khan (PLD 1971 Kar. 625), Nagina Bakery vs. Sui Southern Gas Limited and three others (2001 PLC (C.S.). 760), Khushal Khan Vs. Muslim Commercial Bank and others (2002 SCMR 943), A.B.L. of Pakistan Vs. Sashir Khan (SBLR 2005 Sindh 1518), United Bank Ltd. and others Vs. Raja Ghulam Hussain and others (1999 PLC 106), 1985 CLC 1525 and Muslim Commercial Bank Ltd. I.I. Chundrigar Karachi Vs. Sindh Labour Appellate Tribunal Karachi and others (PLJ 1934 Kar. 269). Learned counsel went on to state further that the decision of the Labour Court is based on a decision of the Honourable Supreme Court reported in U.B.L. Vs. Iftikhar Hussain and another (2003 PLC (CS) 497), however, in cases of Karamat Hussain V. Mater and Power Development Authority (1998 SCMR 779) and Muhammad Riaz Vs. Sindh Labour Appellate Tribunal Karachi and others (1993 PLC 301) the superior Courts held that the list of acts or omission mentioned in the Standing Order 15 of Ordinance, 1968 are only enumerative but not extensive. Conduct which is prejudicial to good conduct is a misconduct in law as held by the Supreme Court in Karamat Hussain Vs. Water and Power Development Authority through Member (Power) WAPDA Lahore and another (1998 SCMR 779) and unreported decision of Honourable Supreme Court in C.P. 2636-L/2004 titled Shaukat Ali and others V. Allied Bank of Pakistan; that even the period of limitation would reckon for charge-sheet from date of detection of fraud or misappropriation as held by the Honourable Supreme Court in Muhammad Yousaf Khan Vs. Habib Bank Limited (2004 SCMR 149) and 2004 Tribunal Decision Labour 383. Lastly, learned counsel argued that in view of decision of the Honourable Supreme Court in Civil Appeal No. 46 of 2004 titled MCB V. Khushal Khan which is to the effect that if an employee is guilty of misappropriation of the amount his dismissal is to be maintained, the instant appeals may be allowed and impugned Judgment and reinstatement of respondents may be set-aside.
Mr. Baloch, learned counsel for the respondents submitted synopsis of written arguments therein he agitated that the grievance petitions were well within time; that in the evidence led before the Labour Court the charge-sheets were proved to be barred by time, therefore the belated charge sheets are also not sustainable under the law; that the respondent Nazir Ahmed had not misappropriated the amount of telephone bills and collected by hint from the consumers as the same remained lying in his drawer but was stolen by someone else. However, the said amount was paid by the respondent's uncle in the bank so also respondent Abdul Razak Pathan had also not caused any pecuniary loss to the bank, as such bank suffered no loss and no charge of misconduct has been established against them; that the learned trial Court following the dictum laid down in case of U.B.L. Vs. Iftikhar Hussain and another (2003 PLC (C.S.) 497) rightly reinstated the respondents into service. Hence, labour appeals are liable to be dismissed.
The grievance petitions and affidavits-in-evidence do not reveal that the respondents have been dismissed in connection with any dispute nor they have claimed that their dismissal related to any industrial dispute attracting provisions of Section 25-A of IRO 1969. Under the circumstances the petitions under IRO were not maintainable. In case of Board of Governors Aitchison College and Trustee of Port Karachi (supra), it has been held by the Honourable Supreme Court that an employee has to satisfy that he is worker or workman either under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or Industrial Relations Ordinance, 1969 and his grievance relates to Industrial dispute.
The ground raised by Mr. Mahmood Abdul Ghani learned counsel for the appellant as to the question of each branch of bank being a separate establishment for the purpose of attracting provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has been examined by the Apex Court in Appeal No. 206/1998 National Bank of Pakistan Vs. Punjab Labour Court and others. The business of Banking is based entirely upon trust and confidence and financial transaction call for much high degree of care in performance of duties by the employees of Bank. The Honourable Supreme Court in case of Izzat Baig Awan (supra) has been pleased to observe that the institution of bank is one of trust reposed by the public-at-large and they, in the peculiar nature of the duties of their employees, cannot afford the breach of trust by retaining in service people who are involved in criminal cases and whose absence therefrom, was not only obvious but unavoidable on the part of the official concerned.
Once a fact of misappropriation is proved against an employee the misconduct alleged against him stands irrespective of the quantum of amount. It is not necessary that only misappropriation of a large amount would attract the prescribed penalty of dismissal while lesser may not attract such penalty. The view taken by the Honourable Supreme Court of India in case of Divisional Collector, KSRTC V. A.T. Mane (AIR 2004 SC 4761) may be referred wherein it has been held that when a person is found guilty of mis-appropriating corporation's fund there is nothing wrong in the Corporation losing confidence or faith in such a person and awarding a punishment of dismissal.
Perusal of record reflects that notices of Grievance were served on the General Manager, in case of A.B.L. of Pakistan (supra) it has been held that grievance notice not in accordance with law as such grievance petition was not maintainable. In case of Muslim Commercial Bank, I.I. Chandrigar Road (supra) it has been held that each bank employee to prefer departmental appeal before invoking Section 25-A of Act.
The main thrust of Mr. Baloch, learned counsel for the respondents is that the Labour Court has rightly reinstated the respondents into service while following the dictum laid down in case of UBL Vs. Iftikhar Hussain (supra). In that case the allegation against an employee was that of violation the Staff Services Rules whereas in the instant case the charge of misappropriation and misconduct stands established against the respondents who misappropriated the amount and used for personal gain even temporary which constitutes criminal offence, thus the authority is quite distinguishable from the facts and circumstances of the instant cases.
The learned Labour Court granted relief to respondents on the premise that the bank had not suffered any pecuniary loss and the amount was deposited later on. It is to be observed that the bank acts as custodian of the public money and the amount whatsoever is deposited is required to be credited in the accounts of customer without any delay and no sooner the trust reposed by the customer on the bank is shaken the banks would not be in a position to run its business, therefore, merely for the reason that at a subsequent stage the amount, was deposited, would not constitute a mitigating circumstances in favour of the respondent to hold that he is entitled for reinstatement into service. It is settled that as soon as misappropriation of public money is established, the delinquent shall be deemed guilty of embezzlement, therefore, no leniency in, this behalf can be shown to him. In the instant cases as well as respondents have been found misappropriating public money from the bank may be temporarily but as far as charge is concerned it stands established without doubt. There is no such misconduct as temporary misappropriation. The charge is proved once misappropriation is established. The employers have the right to proceed according to law and award penalty as prescribed by law. Although the Labour Court has jurisdiction to examine the cases well as enquiry proceedings both on merits as well as to legality of the same but such examination would not amount to substitute the findings of Enquiry Officer on his own findings without any tangible material as has been held in case of Mukarram Shah vs. Sindh Labour Appellate Tribunal and others (SBLR 2004 Sindh 1565).
For the foregoing reasons, no ground for interfering with the findings of Enquiry Officer followed by letters of termination therefore made-out. Thus, both the appeals are allowed as a result whereof the judgment of Sindh Labour Court VII, Sukkur dated 29th June, 2005 and 30th June, 2005 are set aside and the parties are left to bear their own costs.
(N.F.) Appeals allowed
PLJ 2007 Karachi 139 (DB)
Present: Saiyed Saeed Ashhad, C.J. and Maqbool Baqar, J.
KADIR BAKHSH--Petitioner
versus
CHAIRMAN, WAPDA, LAHORE & 2 others--Respondents
Contl. P. No. D-663 of 2003, decided on 2.2.2005.
WAPDA Act, 1958--
----S. 14(1)(2)--Constitution of Pakistan, 1973, Arts. 9 & 199--Constitutional petition--Question of--High Tension electric wires over the land without permission--Infringement of legal right--Encroachment--Notice for removed High Tension electric wires--Refusal of--Maintainability--Respondents were required to obtain permission from the petitioner before installing High Tension electric wires over the land of petitioner--Power conferred is to be exercised in such manner as to cause the least interference with and the least damage to the rights of the owner thereof--Section 14(2) provides WAPDA to pay or tender payment for all necessary damage to be done to the owner of land--Installation of High Tension electric wires over the land of petitioner without any doubt infringed the right of petitioner for use of his land in a manner desired or chosen by him--Such exercise was done without notice--Petition allowed.
[P. 143] A & B
Constitution of Pakistan, 1973--
----Arts. 9 & 199--WAPDA Act, 1958, S. 14(1)--Constitutional petition--Question of--Installation of High Tension electric wires--Encroachments on personal rights of citizens--Create hazards of life--Violation of--Construction of any grid station, factory, power station or installation of High Tension electric wires would endanger the lives and curtail the rights of the people living in the vicinity thus violation of Constitution. [P. 143] C
Constitution of Pakistan, 1973--
----Art. 9--WAPDA Act, 1958, S. 14(1)--Entitlement to enjoy his personal rights--Right of citizen--Violation of fundamental right--Person was entitled to enjoy his personal rights and to be protected from encroachments from such personal rights, freedom and liberties--Any action taken which might create hazards of life would amount to encroachment on personal rights of a citizen to enjoy the life according to law--Held: Action of the respondents not only violated the fundamental rights of petitioner over his property but was also in violation of the Constitution--Petition allowed. [Pp. 143 & 144] D
Mr. Aziz A. Munshi, Advocate for Petitioner.
Mr. Nasir Rizwan Khan, Advocate for WAPDA along with Abdul Manan, Legal Clerk.
Date of hearing: 2.2.2005.
Order
Saiyed Saeed Ashhad, C.J.--In this Constitutional petition, the petitioner has sought the following reliefs:--
(i) Declaring that the installation of High Tension electric wires through the Petitioner's plot of land bearing Survey No.121, Deh Thatta, Taluqa and District Thatta by the Respondents No. 1 and 2 is illegal, unauthorised and mala fide.
(ii) Directing the respondents to remove the said High Tension electric wires from the petitioner's said land without further delay.
(iii) Cost of the petition.
(iv) Any other relief or reliefs which this Hon'ble Court may deem fit and proper under the circumstances of the case.
The brief facts of the case are that the petitioner is the owner of land bearing Survey No. 121, Deh Thatta, Taluqa and District Thatta on which the petitioner planned to construct a charitable hospital under the name and style of "SHAAFI HOSPITAL" the building plan of which was approved by the Thatta Municipality. The petitioner further submitted that on visiting his plot he found that Respondent No. 2 had erected polls near the petitioner and High Tension electric wires were passing through the centre of the petitioner's aforesaid land. It was submitted that Respondent No. 2 had illegally placed High Tension electric wires over his land without his permission, which amounted to infringement of the petitioner's legal right in respect of his land as well as encroachment. The petitioner approached Respondent No.2 for removal of the High Tension electric wires passing through his land, which were also creating hindrance in the construction of the proposed hospital but Respondent No. 2 refused to remove the same. A notice dated 25.04.2003 was addressed to Respondent No. 1 with a copy to Respondent No. 2 calling upon them to remove the said High Tension electric wires from the petitioner' said land but to no avail.
Comments were filed on behalf of the Respondents, wherein preliminary objections were raised with regard to the maintainability of the petition. On facts it was submitted that the High Tension electric wires were passing over the land of the petitioner for the last 20 years and he did not take any objection for the last 20 years. It was further submitted that there is a procedure for removal of the polls/High Tension electric wires for which an estimate was to be prepared, the petitioner was required to deposit the estimated shifting charges but the petitioner never bother to follow the procedure in spite of having been informed. It was denied that the passing of the High Tension electric wires over the land of the petitioner amounted to violating his fundamental right or any principle of natural justice.
Counter Affidavit was filed by the petitioner in reply to the comments filed on behalf of the respondents, wherein the statements made in the parawise comments contrary to the facts stated in the memo of petition were vehemently denied. It was stated by the petitioner that he contacted Syed Mushtaq Shah, Member of WAPDA Committee for removal of the High Tension electric wires in September, 2002 but no action was taken. It was also stated that the above act of the respondents did infringement of legal right to his land and also acted in breach of natural justice as no notice was given to him or he was heard before encroaching upon his land for installing High Tension electric wires.
We have heard the arguments of Mr. Aziz A. Munshi, advocate on behalf of the petitioner, Mr. Nasir Rizwan Khan, advocate on behalf of the respondents and have also perused the material on record.
The respondents had prepared the estimate of the cost/expenditure which would be required in shifting the High Tension electric wires passing over the land of the petitioner, which amounted to Rs. 90,670/-. On 16.10.2004 Mr. Aziz A. Munshi, the learned counsel for the petitioner for amicably settling the dispute had stated that the petitioner was ready and willing to bear 50% of the cost without prejudice to the other rights available to him in respect of damage or has caused to him by the illegal action of the respondents. Mr. Nasir Rizwan Khan, learned counsel for the respondents was asked to convey the above offer to the concerned authorities of the respondents and to submit their reply. The said offer was not accepted by the respondents, whereupon the petitioner withdrew his above offer and requested that the petition may be decided on merits. Subsequently, Mr. Nasir Rizwan Khan submitted that the estimated cost had been reduced from Rs. 90,670/- to around Rs. 60,000/- and that the petitioner should bear the same as it would be slightly in excess of Rs. 45,000/- which amount the petitioner was ready and willing to pay as 50% of the earlier estimated charges of Rs. 90,670/-. In this connection it is to be observed that after rejection of the offer of the petitioner by the respondents, the petitioner had withdrawn his offer and had requested for decision of the petition on merits.
First of all we would like to deal with the question of laches in filing the Constitutional petition. It was emphatically urged on behalf of the respondents that the petition suffered from laches as the above High Tension electric wires were installed over the land of the petitioner 20 years ago but he did not take any objection till 2002 when a legal notice was served by him on the respondents calling upon them to remove the High Tension electric wires passing over his land. In this connection it is to be noted that the petitioner had stated that he had no knowledge of installation of High Tension electric wires over his land as he never used to go there and made a visit to the land in 2002 when he had decided to construct a hospital whereupon he found High Tension electric wires passing over his land upon which he took up the matter with the respondents. Mr. Aziz A. Munshi submitted that in the circumstances the question of laches did not arise as the petitioner had no knowledge of the illegal act committed by the respondents over his land. It was further submitted that even if it be admitted for the sake of arguments that the petitioner had knowledge of installation of High Tension electric wires over his land then such installation constituted a continuing wrong, thus giving a cause of action to the petitioner on every day bill such `illegal' installation remained intact. In support of his above contention he placed reliance on the judgment in the case of Khuda Bux vs. Superintendent of Police, Badin & others, reported in PLD 1976 Karachi 1005. In this case a Division Bench of this Court held that an impugned order, which was in the nature of continues wrong would provide a cause of action continuously till such wrong continued to exist. We may also refer the case of Ardeshir Cowasjee and 10 Others vs. Karachi Building Control Authority, reported in 1999 SCMR 2883, wherein the Supreme Court observed that laches per se was not a bar to a Constitutional petition and the question whether a Constitutional petition suffered from laches would require examination on equitable principle and with reference to the facts of each case. The Supreme Court further held that laches of several years could be overlooked if the facts of the case and dictates of justice so warranted or the laches of few months might be fatal to a Constitutional petition. An examination of equitable principles with reference to the facts and circumstances of the present case, the delay of several years, which otherwise is not established in view of the stand taken by the petitioner, will have to be overlooked. In view of the above, we hold that the question of laches does not arise in the present Constitutional petition.
It is also to be noted that the land in question belongs to the petitioner and passing of the High Tension electric wires over his land amounted to infringement of his right to use the land according to his choice as it restricted the construction of a building other than a ground storey building. Such restriction amounted to restraint over the petitioner from using the land according to his choice and rendered the construction of a charitable hospital impossible. It is a fact that the respondents were required to obtain permission/no objection from the petitioner before installing High Tension electric wires over the land of the petitioner, which is a requirement of Section 14 of the WAPDA Act. 1958. Proviso to sub-section (1) of Section 14 of the WAPDA Act casts an obligation on WAPDA that for entering upon and surveying any land, erect pillars for the determination of intended lines of works, make borings and excavations and do all other acts which may be necessary for the preparation of any scheme which does not vest in the WAPDA, the power conferred by sub-section (I) of Section 14 is to be exercised in such manner as to cause the least interference with, and the least damage to the rights of the owner thereof. Sub-section (2) of Section 14 provides the WAPDA to pay or tender payment for all necessary damage to be done as aforesaid to the owner of the land. Installation of High Tension electric wires over the land of the petitioner without any doubt infringed the right of the petitioner for use of his land in a manner desired or chosen by him. It is also a fact that such exercise was done without notice and obtaining permission of the petitioner. It was submitted by Mr. Aziz A. Munshi that the High Tension electric polls and the High Tension electric wires passing over the land of the petitioner not only restricted the user of the plot in a manner desirable by the petitioner but also endangered the lives of the petitioner and others, who would be using the land, on account of the discharge of electromagnetic field or other such hazards due to the installation of High Tension electric wires, thus violating the provision of Article 9 of the Constitution, which guarantees that no person shall be deprived of life or liberty save in accordance with law.
The Supreme Court in the case of Ms. Shehla Zia and others vs. WAPDA, reported in PLD 1994 SC 693 was faced with the identical and similar issue whether construction of any grid station, factory, power station or installation of High Tension electric wires would endanger the lives and curtail the rights of the people living in the vicinity thus violating Article 9 of the Constitution. The Supreme Court answered in the affirmative and held that the extensive and wide meaning to the word `life' included all such rights which were necessary and essential for leading a free, proper, comfortable and clean life, and further that a person was entitled to enjoy his personal rights and to be protected from encroachments from such personal rights, freedom and liberties. The Supreme Court also held that any action taken which might create hazards of life would amount to encroachment on the personal rights of a citizen to enjoy the life according to law. In the circumstances the above action of the respondents not only violated the fundamental rights of the petitioner over his property as propounded in Article 9 of the Constitution but was also in violation of Section 14 of the WAPDA Act, 1958. The action of the respondents cannot by any stretch of imagination said to be proper and valid.
For the foregoing reasons and discussion, it was found that the Constitutional petition has force and merited consideration. By a short order dated 13.01.2005 it was allowed in terms of the prayers sought by the petitioner for the reasons to be recorded later. These are the reasons for the said short order.
(N.F.) Petition allowed.
PLJ 2007 Karachi 144
Present: Mrs. Qaisar Iqbal, J.
A.D. ABUBAKAR WEAVING, KARACHI--Appellant
versus
BANARAS KHAN--Respondent
Lab. A. No. 124 of 2006, heard on 1.12.2006.
Industrial Relations Ordinance, 2002 (XCI of 2002)--
----Ss. 46(5), 43(3) & 48--Question of--Back benefits do not automatically follow the order of reinstatement--Only restriction place on labour Court is that it cannot award compensation in addition to the reinstatement of a workman--Appeal disposed of.
[Pp. 146 & 147] A & B
1991 SCMR 2087 and 2006 SCMR 1751 followed.
Mr. S.M. Yaqoob, Advocate for Appellant.
Mr. Bacha Fazal Manan, Advocate for Respondent.
Date of hearing: 1.12.2006.
Judgment
Respondent was an employee of the appellant and was carrying on weaving work on the looms at the piece rate wages for different type/quality fortnightly at the rate of Rs. 3,000/- Appellant had admitted that respondent had worked as weaver commencing from the year 2002 on different periods. The respondent has urged that the appellant had terminated his services w.e.f. 11.7.2004, whereas this fact was denied by the appellant on the premises that the services of the respondent were not terminated, he was not interested in employment but wanted to extract the money from the establishment as spelled out from the proceeding before the Labour Department upon the termination of services, respondent has resorted to file Grievance Petition before the Labour Court, which was allowed with the direction for reinstate in terms of Section 46(5) Industrial Relations Ordinance, 2002. The appellant was directed to pay compensation equivalent to 12 months pay last drawn as well as back benefit from the date of the termination viz. 11.7.2004 till 25.3.2006.
Mr. S.M. Yaqoob, has contended that the trial Court has erred in law by granting two relief to the appellant simultaneously as under Section 46(5) Industrial Relations Ordinance, 2002, a work man is entitled to compensation in lieu of reinstatement, adverting to the word "Reinstatement", the reliance has been laid on the definition laid down as follows:
(1) Chamber's Twentieth Century Dictionary--Revised Edition with Supplement
Reinstate: To restore to or re-establish in a former station or condition.
(2) Black's Law Dictionary--4th Edition
Reinstate: To reinstall to re-establish; to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed. Collins v. U.S., 15 Ct. Cl. 22; Lowry v. Aenta Life Ins. Co., Tex. Civ. App., 120 S. W. 2d 505, 507.
(3) The New Webster Encyclopedic Dictionary--1980 Edition
Reinstate: To instate again; to place again in possession or in a former state.
(4) Words and Phrases Legally Defined, Butter worths--Second Edition
Reinstate: It appears to me that reinstatement involves putting the specified person back, in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his employment. [1943] 1 K.B. 462, per Tucker, J., at p. 466.
(5) Stroud's Judicial Dictionary--Third Edition
Reinstate: "Reinstatement" (Essential Work (General Provisions) Order, 1942): the natural and primary meaning to "to reinstate" as applied to a man who has been dismissed, is to replace him in the position from which he was dismissed and so restore the status quo ante the dismissal (Dixon v. Patterson), 1943, S.C. (J) 78, 83, and see Barr & Stroud v. Adair, 1945, S.C. (J) 23, 39). It is not sufficient merely to pay the man wages without providing him with work (Jackson v. Fisher's Foils, [1944] K.B. 462). He must be reinstated at the same place of work (Powell Duffrun, Ltd. v. Rhodes, [1946] 1 All E.R. 666].
S.M. Yaqoob, learned counsel for the appellant emphasized that the compensation was available to the respondent in lieu of reinstatement, whereas in para-2 of the written reply, it was specifically pleaded that the services of the respondent were never terminated by the respondent and establishment was ready and willing to continue with his services, on the point of back benefits, it is urged that the principle has been laid down in the case of Muhammad Bashir and others vs. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087) that back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set-aside; it is stressed that the burden to establish that the workman was engaged for employment during the period he remained out of service was on employer.
It is next urged that the trial Court has erred in granting two reliefs simultaneously to the respondent on the mere fact that the Labour Court was also vested power to award compensation did not take away its authority of reinstatement of a worker, only restriction placed on Labour Court was that it could be award compensation in addition to the reinstatement of the workman, as held in the case of Messrs Ashraf Sugar Mills Ltd. vs. Manzoor Ahmed (2006 SCMR 1751) that Industrial Relations Ordinance, 2002, is beneficial legislation enacted with the object of ameliorating the working conditions of workmen by providing necessary safeguards, legislature intended to enlarge jurisdiction and powers of Labour Court in order to strengthen them further, thus provisions of Industrial Relations Ordinance, 2002, are to be construed liberally so as to advance the remedy and to suppress the mischief."
Dilating on the point of compensation, it has been further laid down on Page No. 1754 of the case referred supra that only restriction placed on Labour Court is that it cannot award compensation in addition to the reinstatement of a workman. In the case of Messrs Elahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582 at page 683), it was held that the words "in lieu of" would mean "instead of", "in place of", "in substitution of" but they did not mean "in addition to".
It is explicity clear from the rule enunciated by the Apex Court that the trial Court has erred in law by granting simultaneously two reliefs to the respondent, however, at this stage, Mr. S.M. Yaqoob has contended that the appellant was ready and willing to accept the respondent as one of his employee.
Mr. Bacha Afzal Manan, learned counsel for the respondent has conceded to this effect, therefore, the respondent is directed to join the services with the appellant w.e.f. 11.12.2006.
Adverting to the question of the back benefits, which stressed has been laid by Mr. Bacha Fazal Manan, referring to the Grievance Petition and the affidavit-in-evidence filed by the respondent that respondent remained jobless w.e.f. 11.7.2004, did not carry out work for gain, in this context the onus is shifted upon the establishment to produce the evidence in rebuttal, however, Mr. S.M. Yaqoob has contended that from the day of filing of the written reply, the stand of the appellant was that the services of the respondent were not terminated as well as in the complaint filed before the Labour Department by the respondent, the plea of the appellant was consistent that they were ready and willing to accept the respondent as Weaver in the establishment although the establishment was not governed by the provision of Standing Order Ordinance 1968 as the strength of the employees was less than 15. Taking into consideration, the attending circumstances of the case, I am not inclined to grant back benefits to the respondent.
In view of the circumstances, impugned order is hereby set-aside with the direction to the respondent to join the appellant's establishment on 11.12.2006.
With the above modification Labour Appeal No. 124/2006, stands disposed of with no order as to costs, with the directions to the appellant to provide all legal facilities to respondent as admissible under the labour laws.
(M.S.A.) Appeal disposed of
PLJ 2007 Karachi 148
Present: Amir Hani Muslim, J.
M/s. KARACHI UNIQUE EXPRESS, KARACHI through its Managing Partner--Plaintiff
versus
M/s. KASB BANK LIMITED, KARACHI & 2 others--Defendants
Suit No. B-49 of 2007, decided on 23.4.2007.
Partnership Act, 1932 (IX of 1932)--
----S. 69(2)--Civil Procedure Code, (V of 1908), O. VII R. 11 & O. VI, R. 17--Application for seeking amendment of plaint--Question of--Whether an unregistered firm can file a suit against the third party--Held: At the time of framing of issues a preliminary issue shall be framed as to whether the partners of an unregistered firm can file a suit against the third party and arguments on this legal issue would be heard after settlement of issues--Plaintiff shall amend the title of the plaint. [P. 149] A
PLD 2003 Kar. 314; 1984 CLC 242 and 1985 CLC 2514, rel.
Mr. Saalim Salam Ansari, Advocate for Plaintiff.
Ms. Samia Durrani, Advocate for Defendants No. 1 and 2.
Mr. Tahawar Ali Khan, Advocate for Defendant No. 3.
Date of hearing: 23.4.2007.
Order
The Plaintiff, which is admittedly an unregistered firm, has filed the suit against the Defendants and an objection has been taken by the Defendants No. 1 and 2 that the suit is barred under Section 69(2) of the Partnership Act, 1932. The Defendants No. 1 and 2 have moved CMA No. 932/2007 under Order VII Rule 11 CPC for rejection of the plaint. During pendency of that application the plaintiff has made an application (CMA No. 929/2007) seeking amendment of plaint by substituting the name of the Plaintiff with that of its partners. Arguments on both these applications were heard at some length.
The question as to whether an unregistered firm can file a suit against the third party will remain open as the learned Counsel for the Plaintiff has relied upon a Judgment of the Division Bench of this Court titled as Ardeshir Cowasjee v. KBCA reported in PLD 2003 Karachi 314, wherein in identical manner the partners of an unregistered firm were allowed to be substituted in a suit filed by the unregistered firm. On the other hand, the learned Counsel for the Defendants No. 1 and 2 has relied upon the case of Abdul Hamid V. Riaz Brothers Commission Agents reported in 1986 CLC 242 and the case of Aslam Awan V. Ras Tariq Chaudhry reported in 1985 CLC 2514.
Under these circumstances, I allow CMA No. 929/2007 subject to all just exceptions, and dispose of CMA No. 932/2007 filed by the Defendants No. 1 and 2 with the observation that at the time of framing of issues a preliminary issue shall be framed as to whether the partners of an unregistered firm can file a suit against the third party and arguments on this legal issue would be heard after settlement of issues. The Plaintiff shall amend the title of the plaint.
Adjourned. Ad-interim order dated 27.11.2006 shall continue with the restriction contained therein. The other pending applications would be listed by the office on the next date.
(R.A.) Order accordingly
PLJ 2007 Karachi 149 (DB)
Present: Anwar Zaheer Jamali & Muhammad Athar Saeed, JJ.
Mst. SIKANDAR BIBI (WIDOW)--Petitioner
versus
Rao MUHAMMAD JAMEEL and 2 others--Respondents
C.P. No. D-64 of 2006, decided on 2.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Remedy of civil revision--It has not been availed for no valid reason, the provision of Art. 199 of Constitution, in the wake of availability of adequate alternate remedy, in normals course cannot be circumvented to defeat such statutory provision, and there seems to be no exceptional circumstances to overlook such aspect--Petition was dismissed. [P. 152] A
Mr. Ataullah Khan, Advocate for Petitioner.
Mr. Saathi M. Ishaque, Advocate for Respondent No. 1.
Date of hearing: 2.5.2006.
Order
Anwar Zaheer Jamali, J.--Petitioner Mst. Sikandar Bibi, who is stated to be the real mother of Respondent No. 1 has preferred this constitutional petition to assail the judgment and decree, respectively dated 29.9.2003 and 1.10.2003, passed by Respondent No. 3 in Suit No.593/2002, and also judgment and decree, respectively dated 9.12.2004 and 12.2.2005, passed by Respondent No. 2 in Civil Appeal No. 228/2003.
(a) By declaring the sale agreement dated 16.7.1965 and 10.1.1971 as forged and canceling the same, and direction the defendant to hand over the same to the plaintiff.
(b) By directing the defendant to hand over the peaceful vacant possession of the suit property i.e. House No.C-974, MAC-1, Gali No.33, Mehmoodabad No. 6, Karachi, approximately measuring 200 sq. yds. including shop to the plaintiff.
(c) By directing the defendant to pay the mesne profit to the plaintiff at the rate of Rs. 4000/- per month, since 01.01.2000 till 30-11-2002, and onwards.
(d) By granting permanent injunction restraining the defendant, his heirs, successors, administrators, attorneys, executors and person or persons working for him and on his behalf from selling, mortgaging and transferring the suit property to any person and creating the third party interest till the disposal of the suit.
(e) By awarding the cost of the suit. "
For grant of such reliefs, her case in the plaint was that in the year 1974 House No. C-974, Old No. 1068 and New No. 2938, admeasuring 200 square yards. Mehmoodabad No. 6, Main Road, Karachi, was gifted to her by her husband Hashmat Ali son of Ummed Ali, thus, she was lawful owner of this property and for that purpose, she had been pursuing her case before various forums, while the claim of Respondent No. 1 over this property was fraudulent and illegal.
On the other hand, Respondent No. 1 in his written statement has denied the ownership claim of the petitioner on the plea that in the year 1965 she has sold this property to her son-in-law Subhan Khan from whom the Respondent No. 1 has purchased it in the year 1971.
On the above pleadings of the parties, the Respondent No. 3 has framed following issues in the matter:--
"1. Whether the relief(s) claimed in this suit are time barred?
Whether the plaintiff is the owner of the house No. C-974, Old No. 1048, New No. 2935 in Street No. 33, Mehmoodabad No. 6, Karachi, measuring 240 sq.yds having been gifted to her by her husband Hashmat Ali?
Whether the defendant had purchased the suit property from one Subhan, who purchased the same from the plaintiff?
Whether the defendant is a trespasser/illegal occupant over the suit plot?
whether the plaintiff is entitled for the relief claimed?
What should the decree be?"
After recording of evidence adduced by the parties, all the issues framed in the suit were decided by Respondent No. 3 against the petitioner, vide his judgment dated 29.9.2003 and consequently, her suit was dismissed. The appeal preferred by the petitioner also met with the same fate and it was also dismissed.
A preliminary objection as to the maintainability of this petition has been raised by Mr. Saathi M. Ishaque, learned counsel for Respondent No. 1 on the ground that remedy by way of civil revision application under Section 115 CPC was available to the petitioner, but it was not availed, and even the copy of impugned judgment and decree passed by Respondent No. 2 was applied for in October 2005 and obtained in November 2005, while this petition has been preferred on 10.12.2005, after almost ten months, to overcome the question of limitation, involved in the filing of revision application.
In the context of such legal objection raised on behalf of Respondent No. 1 we have heard the learned counsel and perused the case record.
Mr. Ataullah Khan, learned counsel for petitioner, did not controvert that the remedy by way of civil revision application was available to the petitioner, which was not availed by her. However, he attempted to overcome the question of laches involved in the present petition, with reference to Article 203 of the Constitution of Pakistan and contended that in such circumstances this Court, being the highest Court of the Province and having supervisory jurisdiction, could overlook the question of laches and non-availing of adequate remedy by way of civil revision application under Order 115 CPC to foster the cause of justice.
We have taken care of such submission advanced by the learned counsel and perused the relevant record. The submission of Mr. Saathi M. Ishaque that the remedy of civil revision application under Section 115 CPC was available to the petitioner, but it has not been availed by the petitioner for no valid reason, is duly supported from the case record. In our opinion, the provisions of Article 199 of the Constitution, in the wake of availability of adequate alternate remedy, in normal course cannot be circumvented to defeat such statutory provision, and there seems to be no exceptional circumstances to overlook this aspect in the instant petition.
Besides, the findings on facts recorded by the Respondents Nos. 2 & 3 in their respective judgments seem to be based on proper appreciation of evidence and thus not open to scrutiny at this belated stage. The petition is accordingly dismissed.
(M.S.A) Petition dismissed
PLJ 2007 Karachi 152 (DB)
Present: Mushir Alam & Muhammad Athar Saeed, JJ.
MUHAMMAD AKBAR--Petitioner
versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ATA TURK AVENUE, NAB HEADQUARTERS, ISLAMABAD
and 2 others--Respondents
C.P. No. D-807 of 2006, decided on 19.6.2006.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 19(b)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Notice to appear before investigating officer alongwith original documents--No information--Relevance--Production of documents--Provision--Chairman NAB or an officer of NAB--Abundently requirements--Validity--Violation of provision--Chairman NAB or an officer of NAB may during the course of enquiry or investigation require any person to produce or delivery any document or thing that may be useful or relevant to enquiry or investigation--Notice must contain unnecessary information having nexus to impending inquiry or investigation to extract information from any person that may be neaded to investigate the matter as to violation of any provision of NAB Ordinance--Notice did not satisfy the requirement of S. 19 of the Ordinance--Held: Such bald notices cannot be sustained. [P. 154] A & B
Mr. Mahmood A. Qureshi, Advocate for Petitioner.
Mr. Shafaat Hussain Sherwani, Deputy Prosecutor NAB.
Date of hearing: 19.6.2006.
Order
Mushir Alam, J.--The petitioner has impugned notice dated 16th May 2006 under Section 19 of the National Accountability Ordinance, 1999 issued to the petitioner with directions to appear before investigating officer alongwith original title documents of his property detailed therein.
It is contended by the learned counsel for the petitioner that the property was acquired by the petitioner directly from the builder. He has been attending the office of NAB even prior to the issuance of the impugned notice, but nothing was divulged as to in what context or relation the document are required.
The Deputy Prosecutor General NAB contends that the notice was issued to call for the information within the contemplation if Section 19(b) of the Ordinance, 1999. It was contended that since investigation/enquiry against one Chand Muhammad Gori Ex-Sub-Registrar is being conducted by the Bureau and the documents are required to ascertain whether the property is benami property of said Chand Muhammad held in the name of the petitioner.
We have examined the impugned notice. It is observed that no information or relevance as to production of the document is made with reference to the nature of the enquiry that is in hand against said Chand Muhammad.
We have examined the provision of Section 19 of the Ordinance, 1999 which reads as follows:--
Power to call for information.--The Chairman NAB or [an officer of the NAB duly authorised by him] may, during the course of an inquiry [or investigation] [of an offence under this Ordinance]:
(a) ---------------------------------
(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry; [or investigation]
On bare perusal of sub-clause (b) of Section 19 it is abundantly clear that the Chairman NAB or an officer of the NAB may during the course of the enquiry or investigation require any person to produce or deliver any document or thing that may be useful or relevant to the enquiry or investigation. It is thus abundantly clear that notice must contain unnecessary information having nexus to the impending inquiry or investigation to extract information from any person that may be needed to investigate the matter as to the violation of any provisions of the NAB Ordinance. Impugned notice is a balds of any connection to the purported inquiry or investigation pending against Chand Muhammad. The impugned notice does not satisfy the requirement of Section 19 of the Ordinance, 1999, therefore, we are of the view that such balds notices cannot be sustained.
In view of the forgoing we are inclined to allow the petition. The respondent may, however issue any notices in conformity with Section 19 of the Ordinance, 1999 by giving relevant information connecting the required information with the enquiry or investigation that may be pending before the authority concerned.
Petition in terms of the above stands disposed of.
(R.A.) Petition disposed of
PLJ 2007 Karachi 154
Present: Qaisra Iqbal, J.
ABDUL AZIZ KHAN--Plaintiff
versus
IMRAN ZAHID & another--Defendants
Civil Suit No. 710 of 2006, CMA Nos. 4190/2006, 4988/2006, 4008 &
4009 of 2007, decided on 9.5.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Defendants were restrained from creating third party interest in respect of suit property subject to deposit of the balance sale consideration amount--Balance sale consideration amount were deposited--Interim order as granted earlier stands confirmed--CMA stands disposed off. [P. 155] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 51--Plaintiff has resorted to file application seeking direction to invest the deposit amount in any profitable scheme subject to final adjudication of the case. [P. 155] B
Mr. Saalim Salam Ansari, Advocate for Plaintiff.
Mr. Usman Sheikh, Advocate for Defendant No. 1.
Date of hearing: 9.5.2007.
Order
The plaintiff has proceeded to file suit for specific performance of the contract, declaration, possession, permanent injunction as well as for damages. It appears vide order dated 30.5.2006, defendants were restrained from creating third party interest in respect of suit property subject to deposit of the balance sale consideration amount. As a consequence of the above order the balance sale consideration amount of Rs. 6,30,000/- were deposited with the Nazir on 19.9.2006. Admittedly, Defendant No. 1 is in possession of the suit property, with the consent of learned counsel appearing for Defendant No. 1, interim order as granted earlier stands confirmed, consequently CMA No. 4190/2006 stands disposed of.
The plaintiff has resorted to file application seeking direction to the Nazir of this Court to invest the deposit amount of Rs. 6,30,000/- in any profitable scheme subject to final adjudication of the case. To safeguard the interest of the parties, Nazir is hereby directed to invest the sum deposited by the plaintiff in a profitable Government scheme. Orders accordingly.
At this juncture, Mr. Salim Salam Ansari has fairly conceded as the trial of the issues raised by the parties through the evidence to be led by the parties during the course of proceedings, consequently, application being not pressed is hereby dismissed. Parties are directed to file proposed draft issues within 10 days. Adjourned to 29.5.2007, for settlement of issues.
(R.A.) Order accordingly
PLJ 2007 Karachi 155 (FB)
Present: Anwar Zaheer Jamali, Muhammad Mujeebullah Siddiqui and Rahmat Hussain Jafferi, JJ
UMEED ALI and 12 others-Plaintiffs
versus
GOVERNMENT OF SINDH and others-Defendants
Suit No. Nil of 1998, decided on 19.12.2006
Court Fees Act, 1870 (VII of 1870)--
----S. 17 & Sched. I, Art. 1--Sindh Finance Ordinance (VII of 1977), S. 2--Sindh Finance Act (IV of 1990), Ss. 4 & 6--Constitution of Pakistan (1973), Arts. 2-A & 37(d)--Multifarious suits--Maximum court fee payable--Plaintiffs jointly maintaining one suit--Ends of social justice--Question posed in Reference for determination--Full Bench of High Court was affixing of maximum Court fee in a suit having different plaintiffs with distinct subjects--Chargeable--Reference to Arts. 2-A and 37 (d) of the Constitution was also pertinent, as by virtue of the same--State was obliged to promote ends of social justice by providing inexpensive and expeditious justice to every citizen of country--All questions proposed in reference were answered in affirmative by Full Bench accordingly. [P. 170] A
1993 SCMR 683 fol.
1984 CLC 2705; AIR 1953 Madras 888; AIR 1954 Madras 594; AIR 1954 Mad. 602; PLD 1988 SC 645; PLD 1994 SC 105; PLD 1993 SC 341; PLD 1996 SC 324; 1998 SCMR 1863; PLD 1999 SC 1126; PLD 1998 SC 1445; PLD 1999 SC 504; PLJ 1993 SC 141; PLD 1991 Kar. 178 and PLD 1986 Pesh. 72 ref.
PLD 1992 PSC 195 disting.
Mr. Shafi Muhammadi, Mr. Abid Akram, Mr. Munir A. Malik alongwith Mr. Adnan Chaudhry, Mr. B.M. Bangesh, Mr. Mazhar Ali B. Chohan, Mr. Amir Malik, Mr. K.A. Wahab, Advocates for Plaintiffs.
Mr. Anwar Mansoor Khan, A.-G. Sindh, Muhammad Ali Sayeed and Iqbal Kazi, Advocates as Amicus Curiae.
Date of hearing: 19.12.2006.
Order
Anwar Zaheer Jamali, J.--This Full Bench has been constituted to answer the questions proposed in the Reference dated 17.5.1999 made by our learned brother Ata-ur-Rehman, J. (as he then was), which reads as under:--
"These are three suits Bearing Nos. Nil of 1998 filed by Muhammad Hussain & 55 others, Chakar Khan and 25 others and Umed Ali and 12 others whereon the office inter alia, raised following objection:
"(1) The plaintiffs have been allotted separate leases hence separate court fees for each plaintiff to be filed or separate suit of each plaintiff to be filed."
(a) Court Fee (Sindh Amendment) Ordinance, 1977, reported in PLD 1977 Sindh Statutes 98; and
(b) Aslam Industries Ltd., Khanpur v. Pakistan Edible Corporation and others (1993 SCMR 683).
(i) Under Section 17 of the Court Fees Act, which deals with multifarious suits, the Court has to see as to whether a plaint embraces two or more "distinct subjects". The term "distinct subjects" according to the preponderant view from the Indian jurisdiction means "distinct causes of action." Accordingly, the Court docs not have to look into the number of parties but the number of causes of action;
(ii) under the said Section 17 the Court fee has to be calculated in a manner that the Court fee of every individual cause of action is to be then added up to together into an "aggregate amount" and then affixed with the plaint;
(iii) however, the above is subject to the rider that the maximum Court fee in any event cannot exceed Rs.15,000, since such is the maximum ceiling prescribed by Section 2 of the Court Fees (Sindh Amendment) Ordinance, 1977 (cited supra). Furthermore, the Supreme Court in the case of Aslam Industries (also cited supra) categorically holds that no doubt the exercise of calculating the aggregate Court fee in terms of different causes of action is to be undertaken u/S. 17, however, in no case such aggregate Court fee could exceed the maximum statutory ceiling i.e. Rs.15,000.
(iv) the decision of this Court authored by a Single Judge i.e. K.A. Ghani, J., as he then was, in Ava A. Cowasjee v. Nizam Shah, 1984 CLC 2705, which contains conclusions similar to the order of Mr. Abdul Inam, J., in Suit No. 1553 of 1997 has been disapproved or even tacitly overruled by the Hon'ble Supreme Court in Aslam Industries.
(v) the Court can examine the plaint and can determine as to whether the plaintiffs can jointly maintain a suit under Order I, Rule 1 of the CPC, however, once it is decided that under such provision of law a single suit is maintainable, the maximum Court fee cannot go beyond the statutory ceiling by Rs.15,000.
The learned counsel for the defendants contended that the order passed by the learned Single Judge was later on confirmed in High Court Appeal by a Division Bench of this Court. According to them, the two Courts considered the provisions of Section 17 and thereafter adjudicated upon the similar objection. They contended that there is no room left for not upholding the office objection. They, however, admitted that the two Courts have not considered the provisions of Court Fees (Sindh Amendment) Ordinance, 1977 and the case of Aslam Industries which has not cited with approval the view of the Single Judge of this Court in case of Ava A. Cowasjee.
I considered the arguments advanced by the learned counsel for the plaintiffs and defendants and heard both the parties at length on a number of dates. Prima facie, it is correct that none of the orders of the learned Single Judge in Suit No. 1553 of 1997 and of the Division Bench in H.C.A. No. 15 of 1998 have considered the Court Fees (Sindh Amendment) Ordinance, 1977, prescribing the maximum ceiling, and the Judgment of the Supreme Court in Aslam Industries. The learned counsel for the plaintiffs has vehemently made an attempt to persuade me that the orders of the Single Judge and the Division Bench are to be ignored as per incuriam, having been rendered in ignorance of statute and the binding pronouncement of this Court. In this regard, reliance is placed on the case of Abdul Razzak v. Collector of Customs (1995 CLC (Karachi) 1453) wherein it has been observed that judgments which are per incuriam do not bind any Court and "it mattes little that such Court itself be at the lowest rung in the hierarchy of Courts.' Be that as it may, the better course in the facts and circumstances is to refer the matter to the Hon'ble Chief Justice for Constitution of a larger Bench to resolve this issue. In doing so I am guided by the Hon'ble Supreme Court in Multi Line Associates v. Ardeshir Cowasjee (PLD 1995 SC 423 at pp.43 AA, 435B and 435C).
In the light of the above discussion, the matter is referred to the Hon'ble Chief Justice for Constitution of a larger Bench to resolve this controversy, which is of paramount public importance. The precise terms of reference are humbly proposed as follows:--
(i) Whether the term "subjects" appearing in Section 17 of the Court Fees Act, 1870 is amenable to the same connotation as the terms "cause of action"?
(ii) Whether the Court fee is to be calculated on the plaint or pleading in relation to "distinct subjects", irrespective of the number of parties to the case?
(iii) Whether the aggregate Court-fee calculated under Section 17 of the Court Fees Act, 1870 is subject to the maximum statutory ceiling of Court-fee of Rs. 15,000, prescribed for the Province of Sindh through The Court Fee (Sindh Amendment) Ordinance, 1977 reported in PLD 1977 Sindh Statutes 98 read with the decision of the Supreme Court in Aslam Industries Ltd., Khanpur v. Pakistan Edible Corporation and others, 1993 SCMR 683?
(iv) Whether the order of the learned Single Judge in Suit No. 1553 of 1997 dated 26-1-1998 and the order of the Division Bench in H.C.A. No. 15 of 1998 dated 3-4-1998, both of this Court, are not the correct pronouncements of law having been rendered in ignorance of the operative statute i.e. Court Fees (Sindh Amendment) Ordinance, 1977 and the Judgment of the Supreme Court in Aslam Industries, having the binding force of law under Article 189 of the 1973 Constitution?
The office is therefore directed to place these matters expeditiously before the Hon'ble Chief Justice for appropriate orders. The office is further directed also to place alongwith the files copies of the orders passed in Suit No. 1553/1997 and H.C.A. No. 15/1998."
It seems that other suits fixed alongwith this reference also involve similar controversy as regards payment of proper Court-fee, thus have been tagged with this reference.
With reference to the relevant facts of each case and in the context of various questions proposed in the reference, we have heard M/s. Munir A. Malik, Abid Akram, Shafi Muhammadi, B.M, Bungash, Mazhar Ali B. Chohan, K.A. Wahab, and Amir Malik, Advocates for plaintiffs in various suits, Mr. Anwar Mansoor Khan, Advocate General, Sindh, and M/s. Muhammad Ali Sayeed and Iqbal Kazi, Advocates as Amicus Curiae.
Mr. Munir A. Malik after making brief reference to the relevant facts of the case of Jamil Ahmed and others v. Province of Sindh and others, wherein he is representing the plaintiffs in the suit, has contended that the pith and substance of the controversy involved in this reference has been resolved by the Hon'ble Supreme Court of Pakistan in the case of Aslam Industries (Pvt.) Limited, Khanpur v. Pakistan Edible Corporation and others (1993 SCMR 683). To add force to his submission learned counsel has made reference to Paragraphs, 16 & 17 of the judgment in the said case which read as under:--
"16. Under Article 1 of the Schedule I of the Court Fees Act, VII of 1870 as amended by Section 8 of the Punjab Finance Act, XVI of 1973, the Court-fee payable on a plaint and other documents as is therein stated is as follows:--
S.No.
Article
Proper Fee
1
Plaint, written statement pleading a set-off or counter-claim or memorandum of appeal (not otherwise provided for in this Act) of cross-objection presented to any Civil or Revenue Court except those mentioned in Section 3.
Seven-and-half per centrum on the amount of value of the subject-matter in dispute subject to a maximum of fifteen thousand rupees.
Note:--The amount payable under this number shall be rounded to the nearest fifty paisas.
It is an admitted position between the parties that the suit of the appellant is of a multifarious nature and therefore one filed under Section 17 of the Court Fees Act, 1870. The only question therefore that arises is whether the plaint is one "not otherwise provided for in this Act", Schedule II of the Act does refer to certain plaints and memoranda of appeal in respect of certain suits and applications and petitions presented to Civil Courts and other office partaking of the nature of original proceedings and we have no reasons to doubt that the words "not otherwise provided for in this Act" apparently refer to the provisions made for plaints and memoranda of appeal in certain suits referred to in Schedule II. The instant suit not being one specially provided for in the Court Fee Act, would be governed by Article 1 of Schedule I of the Act.
The next question is whether the proviso in Article 1 of the Schedule I of the Court Fees Act limits the Court-fee chargeable on a plaint or memorandum of appeal of the nature mentioned in Section 17 and whether the case is taken out of the operation of Article 1 of Schedule I by being "otherwise provided for in this Act" that is to say provided for by Section 17. Schedule I and II deal leviability of Court-fees whereas the other provisions of the Act deal with changeability, computation, etc. The language of Article 1 of Schedule I clearly states that this Article will not apply to a plaint or memorandum of appeals "otherwise provided for in this Act". These words obviously refer to a provision in the schedules dealing with leviability. Thus a plaint or memorandum of appeal cannot come under the operation of Article 1 of Schedule I, if it falls under some other specific Article in any of the Schedules, Schedule II refers to certain plaints and memoranda of appeal in certain suits where specific Court fee is provided for. Section 17 of the Act makes no provision of this kind. It merely lays down a rule whereby aggregate amount of fee leviable on the plaint or memorandum of appeal in suits embracing separate subjects will have to be paid, but does not itself fix the amount of the Court-fee. Rather, it refers to other parts of the Act for the amount leviable i.e. to the Schedules, which deal with the subject. Section 17 is subject to the rules as to the amount of the fee which is stated in the Schedules. Thus, the Court-fee payable on a plaint in respect of a multifarious suit covered by Section 17, where the Court-fee is not otherwise provided for by the Act, would be Article 1 of Schedule I. Well, if this Article is applicable, it is to be applied according to its exact tenor. A maximum ceiling to Court-fee is provided on the documents listed in this Article, which includes a plaint. This would therefore apply, irrespective of the consideration whether Section 17 is applicable to the case. The ceiling overrides the rule contained in Section 17. Ava A. Cowasjee's case cited by the learned Deputy Attorney-General has failed to mention the intent of the Government to limit the fee leviable. Arbab Ghulam Ali Khan's case is in favour of the appellant. If the view as suggested by the learned Deputy Attorney-General is applied, it would, as observed by Stauart, . C.J. in Raghobir Sindh's case, "work so extravagantly as to make the Court-fee payable under it rather in the nature of a penalty." Even otherwise, a taxing statute must be construed in the light of what is clearly expressed and if the legislature wants to fix a maximum ceiling beyond which it does not want to recover Court-fees, true recognition must be given to that intent".
Making reference to the other cases viz. Ava A. Cowasjee v. Nasreen Nizam 1984 CLC 2705 and judgment dated 3-4-1998 in H.C.A. No. 15 of 1988, containing somewhat different view in the context of payment of Court fee, he urged that these judgments are per incuriam as the case of Aslam Industries Limited (supra), which is squarely applicable and covers the controversy as regards payment of proper Court-fee was not brought to the notice of learned Single Judge and the Division Bench passing such orders. While concluding his submissions, he submitted that it would entirely depend upon the facts and circumstances of each case that the question of payment of proper Court-fee will be decided on the basis of nature of multifariousness of causes of action, vis-a-vis subject-matter of dispute, and the causes of action accrued to the parties will be the real test to decide that if the relief(s) sought is to be granted on the basis of individual claims(s) of each plaintiff separately then the Court-fee would be separately payable by each plaintiff, but if the relief(s) claimed in the suit is such which is common to the interest of all the plaintiffs in the suit and grant of relief to one will be applicable in rem to the claims of other plaintiffs then maximum payment of Court-fee in the sum of Rs. 15,000 will suffice.
Mr. B.M. Bangush learned counsel for plaintiff in Suit No. 02/1999 (Haji Muhammad Ibrahim & others v. K.M.C. & others) made reference to the judgment in the case of Dr. Mahmood-ur-Rehman Faisal v. Secretary, Ministry of Law & Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and 6 others (PLD 1992 FSC 195) and contended that in view of this pronouncement by the Federal Shariat Court, no Court-fee could be charged on the plaint. However, learned counsel did not dispute that against such judgment appeal has been preferred before the Shariat Appellate Bench of Hon'ble Supreme Court, which is still pending and by virtue of filing of such appeal the operation of judgment in the case of Dr. Mahmood-ur-Rehman Faisal (Supra) is automatically suspended.
Other learned counsel appearing for the plaintiffs in various suits have adopted the above-noted submissions of the learned counsel.
Mr. Anwar Mansoor Khan, Advocate-General Sindh, in his arguments, also made reference to the case of Aslam Industries Limited (Supra), and other cases referred and discussed in Paragraphs 8,11 to 15 of the said case and contended that the question of payment of proper Court-fee in each case is to be determined on the basis of guidelines given in this judgment. For citing such cases and the contentions raised therein. Paragraph No. 8 of the judgment referred by learned Advocate General Sindh is reproduced as under:
"8. On behalf of the appellant it is submitted that without challenging in any way the facts that the suit in instance filed by the appellant was of a multifarious nature and that the aggregate amount of Court-fees to which the plaint in suit embraced separately the two subjects did work out to Rs. 30,000, but in view of the proviso to Article 1 of Schedule I of the Court Fees Act, 1870, as substituted by Section 8 of the Punjab Finance Act, 1973, the appellant is only liable to pay the maximum Court-fee provided therein which is Rs.15,000, and no further. In this connection the learned counsel for the appellant refers to Reghobir Singh v. Dharam Kaur ILR 3 All. 108, Kashi Prosad Singh v. Secretary of State for India-in-Council (ILR 29 Cal. 140 and C. P. Syndicate Ltd. v. Sardar Naurang Singh AIR 1950 Nag. 189".
"(7). There can be no question, in this case that S. 17 of the Act would govern, the case and the only question then is as to what is the correct interpretation of S. 17 of the Act with reference to the facts of the present case. S. 17 of the Act is to the following effect:
`Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate fees to which the plaint is or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act'."
This section relates to Court-fee payable in respect of multifarious suits. But unfortunately in the whole of the Act the word "subject" has not been defined, whereas in Ss. 7 and 13 of the Act, the words used are "suit embraces two or more distinct subjects". It is not, therefore, clear from the language of the section as such as to whether the word "subject" here means and includes subject-matter or whether it means something else. On a reading of the entire provisions of the Act as a whole I am inclined to the view that the terminology, namely, "distinct subjects" used in S. 17 of the Act should be interpreted to mean distinct subject-matter only, and it should also be understood to mean such subject-matters as are distinct but which can be clubbed together in a single suit. Otherwise if the words "distinct subject" in a very comprehensive sense, then the meaning of S. 17 would become absurd; for distinct categories of subjects could not be embraced in a single suit. Obviously the intention underlying this S. 17 seems to be to provide for suits which offend against the other provisions of the Civil Procedure Code, such as misjoinder of causes of action and so forth."
"Distinct subject" in S. 17, Court-Fees Act means distinct causes of action in respect of which separate suits should be filed but for the enabling provisions allowing them to be clubbed up in one suit. The distinctness or identity of the cause of action is the only criterion for the applicability of the section."
"it is not necessary to multiply cases, for it is now fairly well-settled that "cause of action" means the bundle of essential facts which is necessary for the plaintiff to prove before he can succeed in the suit. Or to put it differently, it refers "to the media upon which the Court arrived at a conclusion in his favour". To define it is comparatively easier but to apply it to the facts of each case is more difficult."
Concluding with his submissions learned Advocate-General submitted that the questions framed in this reference are thus required to be answered on the basis of guidelines given by our Apex Court in the case of Aslam Industries Limited (supra).
Mr. Muhammad Ali Sayeed learned senior counsel appearing as Amicus Curia highlighted the concept of access to justice as one of the fundamental rights for each citizen of this country, guaranteed under the Constitution. In this context, he made reference to the following cases:--
(1) Federation of Pakistan v. The General Public PLD 1988 SC 645.
(2) Government of Sindh and others v. Sharaf Faridi and others PLD 1994 SC 105.
(3) Government of Balochistan v. Azizullah Memon and 16 others PLD 1993 SC 341.
(4) Al-Jehad Trust through Raseesul Mujahideen Habib-ul-Wahabu-ul-Khari and others v. Federation of Pakistan and others PLD 1996 SC 324.
(5) Aftab Shaban Mirani v. President of Pakistan and others 1998 SCMR 1863.
(6) New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan PLD 1999 SC 1126.
(7) Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445.
(8) Sh. Liaquat Hussain and others v. Federation of Pakistan PLD 1999 SC 504.
(9) Sh. Riazuddin v. Aquilur Rehman Siddiqui v. and 4 others PLJ 1993 SC 141.
As regards the applicability of ratio of judgment in the case of Aslam Industries Limited (supra), learned counsel endorsed with respect the merits of the conclusion recorded in the said judgment of the Apex Court. In the end, Mr. Muhammad Ali Sayeed also made reference to the well-recognized rule of interpretation of fiscal statute that where, upon interpretation of any provision of law two equally logical conclusions are possible, then the one favourable to the subject is to be given preference over the other.
Mr. Iqbal Kazi the other learned senior counsel appearing as Amicus Curia, during the course of his arguments made specific reference to the judgment of the Division Bench of this Court in the case of Sindh High Court Bar Association Karachi and another v. Islamic Republic of Pakistan PLD 1991 Kar. 178, and contended that legally by virtue of Sections 4 and 6 of the Sindh Finance Act IV of 1990, the Court Fee (Sindh Amendment) Ordinance, 1977 has been repealed with effect from 1-7-1990, therefore, the earlier benefit available to the litigant public by limiting the payment of maximum Court-fee to Rs.15,000 was no more available, however, explaining the applicability and import of this judgment, learned counsel referred concluding paragraph 19 of the judgment to show that by this judgment. Court has held Sections 4 and 6 of the Sindh Finance Act, 1990 repugnant to the Injunctions of Islam and also violative of Articles 2-A and 37(d) of the Constitution and therefore, directed the office of the High Court and all the Courts subordinate to the Sindh High Court to ignore the amendments made by Sections 4 and 6 of the Sindh Finance Act, 1990, as a result whereof the earlier provisions of Court Fees (Sindh Amendment) Ordinance, 1977 are still being followed in Sindh. He also made reference to Para. 18 of the same judgment to show the legal difficulty faced by the Divisions Bench in declaring Sections 4 and 6 of the Sindh Finance Act, 1990 ultra vires to the Constitution. Learned counsel further made statement at the bar that the said judgment in the case of Sindh High Court Bar Association Karachi (supra) has been maintained by the apex Court, therefore, the provisions of Court Fees (Sindh Amendment) Ordinance, 1977 are still being applied by all Courts in Sindh for charging the maximum Court-fee in the sum of Rs. 15,000. In the end referring to the judgment in the case of Aslam Industries Ltd. (supra), learned counsel reiterated that the parties to the suit; subject-matter of litigation; the multifariousness of the causes of action; nature of reliefs claimed, and in that context the guideline given in this judgment, will be the relevant considerations to determine whether each of the plaintiff is required to pay separate Court-fee in the suit or payment of maximum Court-fee once would be sufficient on behalf of any number of plaintiffs in the suit, and such principle will be applied by the Courts keeping in view the peculiar facts and circumstances of each case.
We have carefully considered the arguments advanced before us by the learned counsel and also perused the relevant record.
As evident from the record, the basis for making of reference in hand dated 17-5-1999 by the learned Single Judge Ataur Rahman, J. (as he then was), are the judgments in the case of AVA A. Kowasjee v. Nasreen Nizam Shah 1984 CLC 2705, followed by another Hon'ble Judge of this Court Abul Inam, J. (as he then was) in his order dated 24.12.1997 in Suit No. 1553/1997, which order was also maintained by the Division Bench of this Court vide its order dated 3-4-1998 passed in High Court Appeal No. 15/1998. It seems that at the time of passing of two preceding orders in Suit No. 1553 of 1997 and H.C.A. No. 15/1998, learned counsel appearing in the matter had not brought to the notice of the Court the case of Aslam Industries (Pvt.) Ltd. Khanpur v. Pakistan Edible Corporation and others 1993 SCMR 683, a authoritative pronouncement of the Hon'ble Supreme Court of Pakistan, which is binding on all other Courts in Pakistan by virtue of Article 189 of the Constitution, and had already laid at rest the controversy from which the questions proposed in this reference application emanate. In Paragraph 15 of judgment in the case the Hon'ble Supreme Court had specifically taken notice of the earlier judgment in the case of AVA A. Kowasjee (supra) and observed under:--
"In AVA A. Kowasjee v. Nasreen Nizam Shah 1984 CLC 2705 a number of plaintiffs jointly sued a number of defendants for a number of reliefs arising out of one cause of action; each relief being claimed for damages accruing to different plaintiffs. The Court held that the suit embraced two or more distinct subjects. However, the Court repelled the plea that the proviso to Article 1 of Schedule I of the Court Fees Act was applicable, on the ground that it did not relieve the plaintiffs from liability to pay Court-fees separately on each of the distinct subjects merely because separate claims had been made by different plaintiffs. If however conceded that on each separate distinct subject, the maximum Court-fee payable separately would not be more than Rs. 15,000."
Further, taking into consideration several judgments from the Indian jurisdiction on the subject, the judgment of Peshawar High Court in the case of Arbab Ghulam Ali Khan v. Arbab Muhammad Hussain and 4 others PLD 1986 Peshawar 72, containing a contrary view to the one in the case of AVA A. Kowasjee (supra), and also taking into consideration the relevant provisions of the Court Fees Act, in Paragraphs 16 and 17 of the judgment (already reproduced above) Hon'ble Supreme Court has elucidated and amplified the relevant aspects which need careful consideration in each case for this purpose, and provided comprehensive guidelines for determining the issue of payment of Court-fee on that basis. It has also been observed at the bottom of paragraph 17 of the judgment that a taxing statute must be construed in the light of what is clearly expressed and if the legislative wants to fix a maximum ceiling beyond which it docs not want to recover Court-fees, true recognition must be given to that intent.
"18. Having reached the conclusion that Sections 4 and 6 of the Sindh Finance Act, 1990, are repugnant to the Injunctions of Islam and also violative of Articles 2-A and 37(d) of the Constitution, it has to be considered as to what relief can be granted in this petition under Article 199 of the Constitution. Till the Supreme Court gives its final verdicts on Constitutional provisions relating to Islamization of laws, it will remain doubtful whether a declaration can be given under Article 199 that a statutory provisions is void on the ground that it is repugnant to the Injunctions of Islam. Yet, to enforce its findings that Sections 4 and 6 of the Sindh Finance Act, 1990, are repugnant to the Injunctions of Islam and also violative of Articles 2-A and 37(d), the Court can certainly give appropriate directives to regulate its working and procedures and so also of the Courts subordinate to it.
(a) The concerned officers of the Sindh High Court will accept plaints, written statements, pleading, set-offs or counter-claims, memoranda of appeals or cross objections presented or filed in the Sindh High Court with Court-fees affixed on such documents payable under the Court Fees Act, 1870 (as applicable to the Sindh Province) ignoring its amendment by Sections 4 and 6 of the Sindh Finance Act, 1990, as if these two sections were not enacted;
(b) Similar directive be issued to all Courts subordinate to the Sindh High Court and exercising civil jurisdiction."
Thus the ratio of judgment in the case of Aslam Industries Ltd. is fully applicable and binding on all Courts in the Province of Sindh.
The submission of Mr. B.M. Bhangesh Advocate, with reference to the judgment of Federal Shariat Court in the case of Dr. Mahmoodur Rehman Faisal (supra) has also no relevancy/practical implication at this point of time, as its operation stood automatically suspended due to filing of appeal against such judgment before the Shairat Appellate Bench of Hon'ble Supreme Court of Pakistan, which is an admitted position.
The submission of Mr. Muhammad Ali Sayeed Advocate, with reference to the plethora of case law cited by him, highlighting the concept of Access to Justice as one of the fundamental rights, guaranteed for every citizen of this country, has also persuasive force for liberal application of the view taken by the Hon'ble Apex Court in the case of Aslam Industries (Pvt.) Ltd. Khanpur (supra).
In the context of chargeability of Court-fee in the Suits involved in this reference, a reference to Article 2-A and Article 37(d) of the Constitution is also pertinent, as by virtue of these Articles of the Constitution, State, is obliged to promote the ends of social justice by providing inexpensive and expeditious justice to every citizen of this country.
To sum up, following the guidelines given by the Apex Court in the case of Aslam Industries (Pvt.) Limited Khanpur v. Pakistan Edible Corporation and others 1993 SCMR 683, all the four questions proposed in this reference application are answered in the affirmative.
The reference made to this Bench is disposed of accordingly.
(R.A.) Reference allowed
PLJ 2007 Karachi 170 (DB)
Present: Rahmat Hussain Jafferi & Munib Ahmed Khan, JJ.
ZAHOOR AHMED SHEIKH and others--Petitioners
versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others--Respondents
Constl. P. Nos. D-2234, D-2246, D-2340, D-2344, D-2361 and D-2381 of 2006, decided on 17.1.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 169, 170 & 173--F.I.R--Registration--Administration of criminal justice--Provisions of--Principle--After registration of F.I.R. the police officer starts investigation for collecting evidence and completing the investigation, if investigating officer finds that there is no sufficient evidence collected against accused then he has to release the accused as provided u/S. 169 of Cr.P.C.--If he finds that there is sufficient evidence against the accused then he is required to submit the report within the meaning of S. 170 of Cr.P.C. [P. 177] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 17 & Chap. XIV, Part V--National Accountability Ordinance, (XVIII of 1999)--Provisions--Invstigation conducted under Ordinance--If they are not inconsistent with provisions of Ordinance, 1999--If any of the provisions of the Code is in conflict with any of the provisions of the Ordinance then the provisions of the Ordinance, 1999 would prevail otherwise the provisions of Cr.P.C. would apply with necessary adaptation and change in S. 17 of Cr.P.C. [P. 180] C
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 169 & 170--National Accountability Ordinance, 1999--Provisions--Applicability--Provisions are not in conflict with any provisions of the Ordinance--Therefore, they are applicable in the proceedings under the Ordinance but with necessary adaptation and changes. [P. 181] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 54--National Accountability Ordinance, (XVIII of 1999) Ss. 24 & 18--Power of arrest--Without warrant of arrest--Reference before NAB--Inquiry or investigation--Chairman NAB member of any other agency or authority or officer or servant of NAB are required and authorized to exercise all the powers of arrest, which are exercised by an officer-in-charge of police station--Under provisions of S. 54 of Cr.P.C. any police officer can make arrest without order from Magistrate and without warrant of arrest. [P. 192] P
Criminal Procedure Code, 1898 (V of 1898)--
----S. 54--Power of arrest--Reference before Chairman NAB--Fulfilling the conditions--Procedural requirement--Under the power of arrest, the Chairman NAB can deprive the liberty of citizens--It is to be safeguarded jealously and citizen should not be arrested without fulfilling the conditions of S. 54 Cr.P.C.--Conditions prescribed for exercise of such powers, including procedural requirement must be strictly followed. [Pp. 194 & 195] S
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 169 & 173(3)--Reference before NAB--Powers of--Forward the accused in custody to Accountability Court--Chairman NAB is required to forward the accused in custody to Accountability Court at the time of filing Reference or if the accused is released u/S. 169 Cr.P.C. or absconded then such facts should also be mentioned in Reference so that Accountability Court may exercise powers provided u/S. 173(3) of Cr.P.C. [Pp. 197 & 198] U
Interpretation of Statute--
----Intention of legislature is required to be implemented in letter and spirit by Courts and all authorities. [P.189 ] M
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 18(g)--Criminal Procedure Code, (V of 1898)--Ss. 169, 170 & 173--Scope and extent--Reference before Chairman NAB--Mode and procedure--Applicability--Proceedings on receipt of a reference from appropriate Government--After completing the investigation, the material is to be placed before Chairman NAB duly authorized who again has to form opinion as to whether the Reference is to be filed--Reference is the final opinion of Chairman NAB or any officer of the NAB dully authorized police officer is required to express his final opinion in shape of report, in the form prescribed by Government, which is commonly known as challan--Reference filed by Chairman NAB and challan filed by police are one and same except the form in which they are to be submitted before competent Court. [P. 179] B
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 18 & 17--Criminal Procedure Code, (V of 1898)--Ss. 169, 170 & 173--Reference before Chairman NAB--Mode and procedure--Custody of accused--Non-bailable offence--Provisions--Mandate of law--Chairman NAB or any officer of NAB duly authorized is required to forward the accused in custody in a case of non-bailable offence--Said provision is mandatory provision--Chairman NAB duly authorized release any accused person within the meaning of S. 169 of Cr.P.C. then such fact is required to be mentioned in Reference and if the accused is absconder and Chairman authorized forms such opinion after going through material placed before him then such fact is also required to be mentioned in Reference--Held: Chairman NAB duly authorized may request the Court for trial of absconder within meaning of S. 31-A of Ordinance as the concealing of accused or evading the service of non-bail offence warrants issued by Chairman NAB is an offence. [P. 184] E & F
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 18(e)--Criminal Procedure Code, (V of 1898)--Ss. 169, 170 & 173--Proviso--Completion of investigation--Time not fixed--Inquiry--Seventy five days was fixed--Intention of legislature--Time 14 days is provide to complete the investigation but no time is fixed for completing the inquiry or investigation as is clear from S. 18(F) of NAB Ordinance--Previously a time period of 75 days was fixed for such purpose but provisions was amended and inquiry or investigation is to be completed expeditiously as may be practical and feasible. [P. 186] G
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 18(e)--Criminal Procedure Code, (V of 1898)--Ss. 169, 170 & 173--Reference before NAB--Scope and extent--Mode and procedure--Pendency of inquiry or investigation--Period of 90 days is reasonable period--Inquiry or investigation is not completed--Principle--Legislature has fixed a period of 90 days for detaining an accused in NAB custody during pendency of inquiry or investigation--Ninety days period is a reasonable period where inquiry or investigation should normally be completed--In case the inquiry or investigation is not completed within 90 days from the date of proceedings as provided u/S. 18(e) then entire material be placed before Administration the Judge or Accountability Court, as case may be with Reference, who after examining the same can extend the time for completing the inquiry or investigation from time to time but such time should not exceed 15 days at a time and for every subsequent time, Court shall record reasons in writing.
[Pp. 186 & 187] H
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 18 & 17--Criminal Procedure Code, (V of 1898)--Ss. 169, 170 & 173--Chairman NAB or any officer of NAB duly authorized is required to comply with provisions of Ss. 169, 170 & 173 Cr.P.C. with necessary changes. [P. 188] I
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 18 & 17--Pakistan Penal Code, (XLV of 1860)--S. 166--Direction of law--Violative--Disobedience--Offence--Reference before NAB--If Chairman NAB duly authorized violates such direction then he is exposing himself to the provisions of S. 166 of PPC which provides that disobedience of direction of law is an offence. [P. 188] J
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 18 & 17--Criminal Procedure Code, (V of 1898)--Ss. 169, 170 & 173--Period of 30 days--Spirit of law--Provisions of law--Strictly compliance--Reference before NAB--Cases should be disposed of expeditiously within a period of 30 days--By not complying with provision of law is being frustrated--Spirit of NAB Ordinance--Chairman NAB duly authorized should strictly comply with provisions of Ss. 169, 170 & 173 of Cr.P.C. [P. 188] K
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 9(b)--Powers of arrest of Chairman NAB--Pendency of inquiry--Non-bailable offence--Legislature has made all the offences under NAB Ordinance has non-bailable and no Court has been given power to release accused on bail by invoking any provision of Cr.P.C. or any other law for the time being in force as provided u/S. 9(b) of Ordinance, 1999. [P. 189] L
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 18 & 24--Criminal Procedure Code, (V of 1898)--S. 54--Intention of legislature--Basic principles--Provisions of--High Court examined the relevant provisions of law and found that Chairman NAB or any specified persons have been given power to arrest a person involved in offence of NAB Ordinance--Such powers are available in provisions of Ss. 18 & 24 of Ordinance, 1999 and S. 54 of Cr.P.C. [P. 189] N
National Accountability Ordinance, 1999 (XVIII of 1999)--
[P. 192] O
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 18(b)--Criminal Procedure Code, (V of 1898)--S. 54--Reference before Chairman NAB--Scope and extent--Powers of Chairman NAB--Arrest of accused--Sufficient material--After receipt of information through any source as provided u/S. 18(b) Ordinance, 1999--Chairman NAB finds sufficient material in such information, he can arrest the accused person without order of Accountability Court or warrant of arrest if he finds no sufficient material but merely a suspects that the person is involved then he can defer the arrest of such person. [P. 193] Q
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 18(3) & 24(a)--Reference before Chairman NAB--During inquiry or investigation--Direction to arrest--Demonstrates--Intention of legislature--During the inquiry or investigation on account has not been arrested then he has been given power to issue direction that accused shall be arrested--Accused must be arrested of Court on fulfilment of the conditions of arrest and if the accused is not already arrested under general powers of arrest as provided u/S. 18 of the Ordinance, 1999, appear to be discretionary. [P. 193] R
Police Rules, 1934--
----R. 26.2--Power to defer the arrest of accused--Apprehension of abscondence--Bound to arrest--Validity--Police officer has also such powers to defer the arrest of a person merely on suspicion but can arrest him if there is apprehension of his abscondence--Such powers are available to police officer under Rule 26.2. Chapter XVI Volume III of Police Rules, 1934--Arrest can be deferred in the case where competent authority merely suspects without any tangible evidence against accused--But once some evidence is collected and suspicion turns into reasonable grounds then concerned officer is required and duty bound to arrest accused as law puts obligations upon him to so by making the offence non-bailable. [P. 195] T
Mr. Muhammad Nawaz Shaikh, Muhammad Zafar, Minhaj Farooqui, Saeed Akhtar Abbasi, Ghazi Qurban Hisbani, Iqbal Khurram, Shafaat Nabi Sherwani, DPGA, NAB for Petitioners.
Mr. I.A. Hashmi, M. Anwar Tariq and Ms. Ismat Mehdi as Amicus Curiae.
Date of hearing: 17.1.2007.
Order
Rahmat Hussain Jafferi, J.--This order will dispose of following preliminary point raised in the above matters:--
"Whether the Chairman NAB is required under the law to forward accused in custody or show him released or absconder in the Reference when it is filed before the Accountability Court."
After examining the references filed by the Chairman NAB in the above matters before the Accountability Court it was found that the References were filed without forwarding the accused persons in custody or showing them released or absconders, therefore, necessity arose to formulate the above point.
On the above point we have heard Mr. Shafat Nabi Sherwani, DPGA NAB. M/s. Muhammad Nawaz Shaikh, Muhammad Zafar, Minhaj Farooqui, Saeed Akhtar, Ghazi Qurban and Iqbal Khurram, Advocates for the petitioners and Mr. M. Anwar Tariq, Mr. I.A. Hashmi and Ms. Ismat Mehdi, Advocates who have assisted the Court as amicus curiae.
The learned DPGA, NAB has taken us to the provisions of Sections 17, 18 and 24 of the National Accountability Ordinance, 1999 (hereinafter referred to as the `Ordinance') and authority of the Hon'ble Supreme Court of Pakistan reported in the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 by referring to its paras. 257, 275 and 276. His main contentions are that the Chairman NAB has discretionary powers to arrest an accused person during the pendency of inquiry or investigation; that he becomes functus officio, with regard to arrest of the accused after completing the investigation; that it is not mandatory for the Chairman NAB to forward the accused person in custody in non-bailable cases at the time of filing of Reference, therefore, the Chairman NAB has discretionary powers to forward the accused in custody or otherwise. The amicus curiae M/s. M. Anwar Tariq and I. A. Hashmi are of the view that by virtue of Supreme Court's decision in the case of Khan Asfandayar Wali (supra) mentioned in paras. 275 and 276, no doubt the provisions of Section 18(g) of the Ordinance are made subject to Section 170, Cr.P.C. but no suitable amendments have been made in Section 18(g) as directed by Hon'ble Supreme Court of Pakistan and there is conflict between Sections 170, Cr.P.C. and 18(g) of the Ordinance, therefore, the provisions of NAB Ordinance would prevail, hence it is not necessary for the Chairman NAB to forward the accused in custody at the time of filing reference. Mr. I.A. Hashmi has further added that the provisions of the NAB Ordinance have overriding effect on any other laws for the time being in force. He has referred to the case Ahmed Siyal v. National Accountability Bureau 2004 SCMR 265. Ms. Ismat Mehdi, after referring to paras 275 and 276 of Khan Asfandyar Wali's case, submitted that the point has been finally decided by the Hon'ble Supreme Court of Pakistan; that the provisions of Section 18(g) of the NAB Ordinance are subject to provisions of Section 170, Cr.P.C.; that there is no conflict between both the provisions, therefore, the effect of the said observation has to be given and implemented in letter and spirit. She has further stated that under Section 170, Cr.P.C. the accused is required to be produced in custody in non-bailable offence and in bailable offence surety is to be taken to appear before the Court whenever so required by the police. Mr. Muhammad Nawaz Shaikh and other advocates have adopted the arguments of Mr. I.A. Hashmi.
We have given due consideration to the arguments, gone through the relevant provisions of law, the authority of the Hon'ble Supreme Court of Pakistan and found that under the criminal administration of justice, and Code of Criminal Procedure (hereinafter referred to as `Code') a criminal case is initiated on filing F.I.R. After registration of the F.I.R. the police officer starts investigation for collecting the evidence. After collecting the evidence and completing the investigation the Investigating Officer, if he finds that there is no sufficient evidence collected against the accused then he has to release the accused as provided under Section 169 of the Code. If he finds that there is sufficient evidence against the accused then he is required to submit the report within the meaning of Section 170 of the Code. In both the cases the police officer is required to submit a police report or challan as provided under Section 173(1)(a) of the Code in the form provided by the Provincial Government containing various columns. The similar point was discussed by the Hon'ble Supreme Court of Pakistan in the case of Habib v. State 1983 SCMR 370. Similar view as that of us was taken and at page 372 it was observed as under:--
"The steps to be taken by the Investigating Officer on the completion of the investigation are given in Sections 169, 170 and 173, which have to be read together in order to understand their true meaning. The steps prescribed are briefly, as follows:--
`If, on the completion of the investigation the Investigating Officer forms the opinion that sufficient evidence to justify forwarding the accused to Magistrate (for trial) is not forthcoming then, as provided under Section 169, Cr.P.C. if the accused is in custody he shall release him on his executing a bond with or without sureties, and direct him to appear, whenever required, before a Magistrate empowered to take cognizance of the offence on a police report.'
`Whenever it appears from a report submitted under this section that the accused had been released on his bond, a Magistrate shall immediately pass an order discharging of such bond, or otherwise as he thinks fit.'
The sub-section prescribes the course that a Magistrate may adopt when a report under Section 173, Cr.P.C. is received by him. When the report shows that the case is covered by Section 169, Cr.P.C. i.e. the
Investigating Officer has not found sufficient evidence against the accused person and if in custody he has been released on his own bond, the Magistrate may either; (i) accept the report relating to the lack of evidence and discharge the bond executed by the accused or (ii) act otherwise as he thinks fit,' that if he may disagree with the police as to lack of evidence against the accused and, notwithstanding the view of the Investigating Officer, summon the accused to be put on trial. In this behalf reference may be made to Falak
Sher and another v. The State PLD 1967 SC 425 and Muhammad Arif v. The State 1970 SCMR 178. It may be mentioned here that it is in the exercise of the power under this sub-section, permitting him to actotherwise as he thinks fit,' that a Magistrate is also empowered on an application by the Investigating
Officer to pass an order `cancelling' a case in which sufficient evidence is not forthcoming against an accused person. If, however, a report under Section 173, Cr.P.C. shows that the Police Officer has taken action under Section 170, Cr.P.C. and has forwarded the accused under custody for trial, the Magistrate shall proceed to take cognizance under Section 190(3), Cr.P.C.
The crux of the above-noted provisions, i.e. Sections 169, 170 and 173, is that whatever course the Investigating Officer adopts i.e. whether he acts under Section 169 or under Section 170, Cr.P.C. it is incumbent upon him to submit a `final report' under Section 173, Cr.P.C. with regard to the result of his investigation to a competent Magistrate and the said Magistrate shall, thereupon, take such action as he may consider proper under sub-section (3) of Section 173, Cr.P.C. or under Section 190, Cr.P.C. as the case may be."
In the NAB case the Chairman NAB starts proceedings on receipt of a reference from appropriate Government of a complaint or on its own accord about the offence under the Ordinance. Then he sends the matter for inquiry or investigation. After completing the investigation the material is to be placed before the Chairman NAB or any officer of the NAB duly authorized who again has to form opinion as to whether the Reference is to be filed or otherwise. If he forms opinion that Reference is to be filed then he is required to file Reference within the meaning of Section 18(g) before the Accountability Court. The Reference is the final opinion of the Chairman NAB or any officer of the NAB duly authorized. Under the Code, a police officer is required to express his final opinion in the shape of report, in the form prescribed by the Provincial Government, which is commonly known as `challan'. As such, the reference filed by the Chairman NAB and challan filed by police are one and same except the form in which they are to be submitted or filed before the competent Court.
In view of the decision of the Hon'ble Supreme Court of Pakistan given in the case of Habib (supra) final opinion of competent authority (Reference or challan) can be formed after going through the evidence collected during investigation and after deciding as to whether there is sufficient evidence against the accused justifying him to forward him for trial or there is no such evidence against the accused, justifying him to release him. Such decisions have to be expressed in the manner as provided under Sections 169 and 170 of the Code and final opinion is to be expressed in the manner provided under Section 173 of the Code by filing Reference or challan, as the case may be, because all three provisions are to be read together.
A perusal of the Ordinance reveals that no corresponding provisions as that of Sections 169, 170 and 173 of the Code are available in the Ordinance. Now it is to be seen whether the said provisions can be made applicable in the. proceedings under the Ordinance.
Section 17 of the Ordinance provides that provisions of the Code are applicable in the proceedings under the Ordinance if they are not inconsistent with the provisions of the Ordinance, 1999, the said section reads as under:--
"17. Provisions of the Code to apply.--
(a) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions of this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis, apply to the proceedings under this Ordinance.
(b) Subject to sub-section (a), the provisions of Chapter XXIIA of the Code shall apply to trials under this Ordinance.
(c) Notwithstanding anything contained in sub-section (a) or sub-section (b) or in any law for the time being in force, the Court may, for reasons to be recorded, dispense with any provisions of the Code and follow such procedure as it may deem fit in the circumstances of the case.
(d) Notwithstanding anything in Section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences."
"Mutatis mutandis.--With the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like. Housman v. Waterhouse, 191 App. Div. 850, 182 N.Y.S. 249. 251."
"169. Release of accused when evidence deficient.--If, upon an investigation under this Chapter, it appears to the officer in charge of the Police Station or to the police officer making the investigation that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial."
From the perusal of Sections 169 and 170 of the Code and provisions of the Ordinance, we find that said provisions are not in conflict with any of the provisions of the Ordinance, therefore, they are applicable in the proceedings under the Ordinance but with necessary adaptation and changes.
The provisions of Section 18(g) of the NAB Ordinance with reference to Section 170 of the Code were subject to interpretation by the Hon'ble Supreme Court of Pakistan in the case of Khan Asfandyar Wali (supra) at page 935 in paras 275 and 276 it has been observed as under:--
"275. The powers vesting in the Chairman NAB to release an accused from custody having regard to the gravity of the charge against him, favour the accused. However, while doing so, he is to record valid reasons in writing. As regards the vesting of powers with the Chairman NAB under Section 18(g) to refer or not a case to the Accountability Court after perusal of the material and evidence collected during inquiry or investigation, suffice it to say that this power corresponds to the normal powers vested in all police Officers or Officers of investigation agencies. Reference may be made to Section 170, Cr.P.C. which reads as under;
"170. Case to be sent to Magistrate when evidence is sufficient.--(1) If, upon an investigation under this Chapter it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer in charge of a Police Station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
(3) Omitted.
(4) Rep. By Code of Criminal Procedure (Amendment) Act (II of 1926), S.2.
(5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report."
Clearly, the existence of sufficient evidence is a condition precedent for the police acting under Section 170, Cr.P.C. and for making a request to the Magistrate to take cognizance of the offence. It is for the Officer in charge of a police station to decide whether there is sufficient evidence to justify the forwarding of the accused to the competent Magistrate. As stated above a corresponding provision is contained in Section 18(g) to which no exception can be taken subject to compliance with the procedure laid down in Section 170, Cr.P.C. so far as it is applicable. To this extent Section 18(g) be suitably amended."
From the above authority it is clear that the provisions of Section 18(g) have been made subject to compliance with the procedure laid down in Section 170 of the Code. The Hon'ble Supreme Court directed that to that extent Section 18(g) be suitability amended. It appears that Section 18(g) has not been suitably amended so as to make it in consonance under Section 170 of the Code.
After giving effect to the observations of the Hon'ble Supreme Court in the cases of Habib and Khan Asfandyar Wali it follows that after investigation of the case if the Chairman NAB or any officer of the NAB duly authorized finds that no evidence has been collected against the accused then he is required to release the accused within the meaning of Section 169 of the Code. If he forms such opinion then he is required to submit the reference before the Accountability Court for passing appropriate order in view of rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Habib v. State (supra). If the Chairman NAB forms opinion that there is sufficient evidence against the accused then he is also required to file Reference forwarding the accused in custody within the meaning of Section 18(g) read with Section 170 of the Code.
The Sections 169 and 170 of the Code with necessary adaptation and changes will read as under:--
"169. Release of accused when evidence deficient.--If, upon an investigation under the NAB Ordinance, it appears to the Chairman NAB or any officer of the NAB duly authorized and members of any agency or authority, officer or servant of the NAB making the investigation that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to Accountability Court, Chairman NAB or any officer of the NAB duly authorized shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct to appear, if and when so required, before Accountability Court empowered to take cognizance of the offence on a Reference and to try the accused or send him for trial.
(2) When the Chairman NAB or any officer of the NAB duly authorized forwards an accused person to Accountability Court or takes security for his appearance before such Court under this section, he shall send to such Court any weapon or other article which may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Court as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
(3) Omitted.
(4) Repealed by Code of Criminal Procedure (Amendment) Act (II of 1926), section 2.
(5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Accountability Court the original with his report."
From the above provisions with necessary changes it is the mandate of the law that the Chairman NAB or any officer of the NAB duly authorized is required to forward the accused in custody in a case of non-bailable offence. Thus, the said provision is mandatory provision. Furthermore, the word "shall" has been used before the words "forward the accused in custody to the Accountability Court with the Reference". The word "shall" clearly demonstrates that the public functionaries are required to perform their duties in accordance with law hence no discretion has been given to the Chairman NAB or any officer of the NAB duly authorized in performance of duties of forwarding the accused in custody to the Accountability Court alongwith Reference. If the Chairman NAB or any officer of the NAB duly authorized releases any accused person within the meaning of Section 169 of the Code then such fact is required to be mentioned in the Reference and if the accused is absconder and the Chairman NAB or any officer of the NAB duly authorized forms such opinion after going through the material placed before him then such fact is also required to be mentioned in the Reference. Furthermore, the Chairman NAB or any officer of the NAB duly authorized may request the Court for trial of absconder within the meaning of Section 31 (A) of the Ordinance as the concealing of accused or evading the service, etc. of non-bailable warrants issued by Chairman NAB is an offence.
Now it is to be seen whether any of the provisions of Section 173 of the Code is in conflict with any of the provisions of the Ordinance because the provisions of Sections 169, 170 and 173 of the Code are to be read together. Section 173 of the Code is as follows:--
"173. Report of police-officer.--(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall, through the public prosecutor,--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given:
Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer in charge of the Police Station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer in charge of the Police Station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial:
Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
(5) Where the officer in charge of a police station forwards a report under subSection (1), he shall alongwith the report produce the witnesses in the case, except the public servants and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial."
It will be noticed that the heading of Section 173, is in conflict with the provisions of the Ordinance, therefore, the words of heading "report of police officer" are required to be changed with the words "Reference of Chairman NAB or any officer of the NAB duly authorized". In sub-section (1) for the words "under this Chapter" are required to be substituted with the words "under NAB Ordinance, 1999" and for the words "without, unnecessary delay" are required to be changed with the words "expeditiously as may be practical and feasible" as mentioned in Section 18(f) of the Ordinance. In sub-section (1)(a) for the designation "Magistrate" the words "Accountability Court", for the words "police report", "Reference", for the word "Report", "Reference" are required to be substituted. After the words "the nature of the information" appearing in sub-section (1)(a) after putting comma (,) the words "the substance of offence or offences as the case may be" [Section 24(b) of the Ordinance] are required to be added. In sub-section (1)(b) the words, "in such manner as may be prescribed by the Provincial Government," are required to be omitted and after the words "action taken by him" the words "the officer of appropriate Government from where Reference was received" [Section 18(b)(i)] are required to be added.
In the proviso to sub-section (1) time of 14 days is provided to complete the investigation but no time is fixed for completing the inquiry or investigation as is clear from Section 18(f) of the Ordinance. Previously a time period of 75 days was fixed for such purpose but the provision was amended and the inquiry or investigation is to be completed expeditiously as may be practical and feasible. The word `expeditiously' referred to in Section 18(f) clearly demonstrates the intention of the legislature that inquiry or investigation is required to be completed in speed within shortest possible time depending upon the facts and circumstances of each case. The legislature does not intend that inquiry or investigation should be kept pending for unlimited period but it is to be completed within a reasonable period depending upon the facts and circumstances of each case. The legislature has specifically expressed its intention that it should be completed with speed. However, the legislature has fixed a period of 90 days for detaining an accused in NAB custody during the pendency of inquiry or investigation. It appears 90 days' period is a reasonable period where inquiry or investigation should normally be completed. Thus normally inquiry or investigation should be completed within a period of 90 days. In case the inquiry or' investigation is not completed within 90 days from the date of initiation of proceedings as provided under Section 18(e), then the entire material be placed before the Administrative Judge or Accountability Court, as the case may be, with interim Reference, who, after examining the same, can extend the time for completing the inquiry or investigation from time to time but such time should not exceed 15 days at a time and for every subsequent time the Judge or Court shall record reasons in writing. Therefore, necessary changes are required to be made in the proviso and by deleting the words which are not applicable.
Sub-section (2) of Section 173 of the Code is not applicable, therefore, the same is required to be omitted. In sub-section (3) for the word "report" the word "Reference" and for the word "Magistrate" the words "Accountability Court" are required to be substituted. In sub-section (4) for the word "report" the word "Reference" is required to be substituted and the comma (,) and words "on application," are required to be deleted in view of Section 24(b) of the Ordinance. The proviso to Section 4 is not applicable, therefore, it is required to be deleted. In sub-section (5) for the words "Officer in charge of a police station" the words "the Chairman NAB or any officer of the NAB duly authorized"; for the word "report" whenever appearing the word "Reference"; for the word "Magistrate" the words "Administrative Judge or Accountability Court" are required to be substituted.
After necessary adaptation and changes the Section 173, Cr.P.C. will read as under:--
"173. Reference of Chairman NAB or any officer of the NAB duly authorized.--(1) Every investigation under NAB Ordinance, 1999 shall be completed, expeditiously as may be practical and feasible, and, as soon as it is completed, the Chairman NAB or any officer of the NAB duly authorized, through the Prosecutor General or DPGA,--
(a) forward to an Accountability Court empowered to take cognizance of the offence on a reference, a reference setting forth the names of the parties, the nature of the information, the substance of offence or offences, as the case may be, and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and if so, whether with or without sureties, and
(b) communicate, the action taken by him to the officer of appropriate Government from where reference was received or to the person, if any, by whom the information relating to the commission of the offence was first given:
Provided that, where investigation is not completed expeditiously or as may be practicable and feasible from the date of forming opinion of initiation of proceedings as provided under Section 18(c), the Chairman NAB or any officer of the NAB duly authorized forward to the Accountability Court through the PGA NAB or DPGA NAB, an interim Reference stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim reference, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Omitted (not applicable).
(3) Whenever it appears from a Reference forwarded under this section that the accused has been released on his bond, the Accountability Court shall make such order for the discharge of such bond or otherwise as it thinks fit.
(4) A copy of any Reference forwarded under this section shall be furnished to the accused before the commencement of the inquiry or trial.
[Proviso omitted].
(5) Where the Chairman NAB or any officer of the NAB duly authorized forwards a Reference under sub-section (1), he shall, alongwith the Reference produce the witnesses in the case, except the public servants and the Accountability Court shall bind such witnesses for appearance before it or some other Court on the date fixed for trial."
Thus the Chairman NAB or any officer of the NAB duly authorized is required to comply with the provisions of Sections 169, 170 and 173 of the Code with necessary changes as mentioned above.
It is pointed out that it is the direction of law that the accused should be forwarded to custody at the time of filing Reference if the Chairman NAB or any officer of the NAB duly authorized violates such direction then he is exposing himself to the provisions of Section 166, P.P.C. which provides that disobedience of direction of law is an offence.
Furthermore, the scheme of the NAB Ordinance is that the cases should be disposed of expeditiously within a period of 30 days. By not complying with the above provisions of law the spirit of the law is being frustrated, therefore, in order to implement the spirit of NAB Ordinance the Chairman NAB or any officer of the NAB duly authorized should strictly comply with the provisions of Sections 169, 170 and 173 of the Code with above mentioned necessary changes read with sections/other provisions of the Ordinance.
Now, we will consider the powers of arrest of Chairman NAB or any officer of the NAB duly authorized by him during pendency of inquiry or investigation.
Before we discuss such powers it is pointed out that the legislature has made all the offences under the Ordinance as non-bailable and no Court has been given powers to release the accused on bail by invoking any provision of the Code or any other law for the time being in force as provided under Section 9(b) of the Ordinance that reads as under:--
"9(b). All offences under this Ordinance shall be non-bailable and, notwithstanding anything contained in Sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
When any offence is made non-bailable, then the accused is required to be arrested on fulfilment of certain conditions of law. However, he can be released from custody under the order of the competent Court. From the above provisions the legislature in clear, unambiguous terms and words, has expressed its intention that the person or persons involved in the offences of the Ordinance should be arrested, of course on fulfilment of conditions of arrest, and should remain in custody till final disposal of the case. Further, even the appellate Court's powers to suspend the sentence under Section 426 of the Code have been curtailed rather snatched so that the convict should remain in jail till final disposal of appeal. The basic principle of interpretation of statute is that the intention of the legislature is required to be implemented in letter and spirit by the Courts and all authorities. Nevertheless, the Ordinance is a sub-Constitutional statute which cannot override the Constitution but it is subservient to it, therefore, it cannot curtail the Constitutional powers of Court or any authority. Thus this Court being the Constitutional Court in exercise of its Constitutional powers under Article 199 of the Constitution, entertain the bail pleas of aggrieved persons.
Keeping in view the above basic principles and intention of the legislature we have examined the relevant provisions of law and found that the Chairman NAB or any other specified persons have been given powers to arrest a person or persons involved in the offence of the Ordinance. Such powers are available in the provisions of Sections 18 and 24 of the Ordinance and 54 of the Code. The relevant provisions of above sections are as under:--
Section 18(b), (c), (d) & (e) of the Ordinance:
(b) A reference under this Ordinance shall be initiated by the National Accountability Bureau on-
(i) a reference received from the appropriate Government; or
(ii) receipt of a complaint; or
(iii) its own accord.
(c) Where the Chairman NAB, or an officer of the NAB duly authorized by him, is of the opinion that it is, or may be, necessary and appropriate to initiate proceedings against any person he shall refer the matter for inquiry or investigation.
(d) The responsibility, for inquiry into and investigation of an offence alleged to have been committed under this Ordinance shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency or authority is required to do so by the Chairman NAB or by an officer of the NAB duly authorised by him.
(e) The Chairman NAB and such members, officers or servants of the NAB shall have and exercise, for the purposes of an inquiry or investigation the power to arrest any person, and all the powers of an officer-in-charge of a Police Station under the Code, and for that purpose may cause the attendance of any person, and when and if the assistance of any agency police officer or any other official or agency, as the case may be, is sought by the NAB such official or agency shall render such assistance provided that no person shall be arrested without the permission of the Chairman NAB or any officer of NAB duly authorised by the Chairman NAB.
Section 24(a), (b) & (c) of the Ordinance:
(a) the Chairman NAB shall have the power, at any stage of the inquiry or investigation under this Ordinance, to direct that the accused, if not already arrested, shall be arrested.
(b) If the Chairman NAB, or an officer of the NAB duly authorized by him, decides to refer the case to Court such reference shall contain the substance of the offence or offences as the case may be, alleged to have been committed by the accused and a copy of such reference shall be forwarded to the Registrar of the Court to which the case has been sent to try the accused, and another copy shall be delivered to the accused.
(c) The provisions of sub-section (a) shall also apply to cases, which have already been referred to the Court.
Section 54 of the Code:
first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;
secondly, any person having in his possession without lawful excuse the burden of proving which excuse shall lie on such person, any implement of housebreaking;
thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Provincial Government;
fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
fifthly, any person who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts escape, from lawful custody;
sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan;
seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Pakistan, which, if committed in Pakistan, would have been punishable as an offence, and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan;
eighthly, any released convict committing a breach of any rule made under Section 565, sub-section (3);
ninthly, any person for whose arrest a requisition had been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the other officer who issued the requisition.
A bare reading of Section 18(b), (c), (d) and (e) of the Ordinance reveals the scheme of the Ordinance. It provides that after the receipt of information of the commission of the offence through any source as mentioned in clause (b) if the Chairman NAB or any officer of the NAB duly authorized by him forms opinion to initiate proceedings against any person, then he-is required and duty bound to refer the matter for inquiry or investigation. The sole responsibility to conduct such inquiry or investigation rests upon the NAB authority. However, the Chairman NAB or any officer of the NAB duly authorized can refer it to any other agency or authority for doing the needful. In conducting such inquiry or investigation, the Chairman NAB, member of any other agency or authority or officer or servant of NAB are required and authorized to exercise all the powers of arrest, which are exercised by an officer-in-charge of a Police Station under the Code. Under the provisions of Section 54 of the Code any police officer can make arrest without order from Magistrate and without a warrant of arrest. Thus such officer of NAB or authorized officer can make arrest without the order of Accountability Court and without warrant of arrest. Nevertheless, except the Chairman NAB such powers of officers of other agency or authority or officers or servants of NAB have been curtailed as they cannot make such arrest without the permission of the Chairman NAB or any officer of the NAB duly authorized by the Chairman NAB. It follows that if any other officer, except Chairman NAB, during the course of inquiry or investigation after collecting material forms opinion that the accused is to be arrested, then such officer shall produce the material before the Chairman NAB to seek permission to arrest the accused. The Chairman NAB after perusing the material collected by the inquiry or investigating officer forms the opinion within the scope of first clause of Section 54 of the Code, he shall grant such permission so as to implement the intention of the legislature. If he cannot form such opinion then he shall defer to grant such permission till sufficient material is collected. No form of such permission is provided under the Ordinance, therefore, the Chairman NAB, may grant such permission in any form but it should be in writing. After receipt of such permission the concerned officer can make arrest.
As regards the powers of the Chairman NAB, after receipt of information through any source as provided under Section 18(b), the Chairman NAB, finds sufficient material in such information, he can arrest the accused person without the order of Accountability Court or warrant of arrest. However, if he finds no sufficient material but merely a suspects that the person is involved then he can defer the arrest of such person. Nevertheless, after collecting sufficient material he shall make arrest within the scope of Section 54 of the Code.
The legislature might have visualized that if for any reason, the Investigating Officer did not approach the Chairman NAB to grant him permission to arrest the accused, would it mean that the accused should move freely in spite of the fact that sufficient material was collected against him justifying his arrest, the legislature has taken care of it by giving new and additional power to the Chairman NAB in the shape of Section 24 to get the accused arrested. Under Section 24(a) of the Ordinance, if the Chairman NAB finds that during the inquiry or investigation an accused has not been arrested then he has been given power to issue direction that the accused shall be arrested. The words `shall be arrested' clearly demonstrates the intention of legislature that the accused must be arrested, of course on fulfilment of the conditions of arrest and if the accused is not already arrested under the general powers of arrest as provided under Section 18(e) of the Ordinance. However, to issue direction of arrest, the power of the Chairman NAB appears to be discretionary. How a discretionary power can be exercised? It will be discussed in the forthcoming part of the order, for exercise of such power only condition precedent to it is that the accused is not already arrested. If such condition is fulfilled then the Chairman NAB is required to issue such direction. No form of such direction is mentioned in the Ordinance, therefore, such direction can be issued in any form but it should be in writing to the authority or person to comply with the direction. This additional power has to be exercised by the Chairman NAB only.
Under clause (b), if the Chairman NAB decides to send the case to the Court for trial then a copy of the Reference containing substance of the offence or offences is required to be forwarded to the Court through its Registrar and another copy of the Reference is required to be handed to the accused. The word `deliver' appearing in the clause has been defined in the American Heritage dictionary as "To put into another's possession or power; surrender; hand over; to take to the intended recipient." Thus, for receiving the copy of the reference from the Chairman NAB or an officer of the NAB duly authorized by him, the presence of accused is necessary, if he is present, Reference is to be filed and if there is sufficient material against the accused justifying his arrest, then at this stage also he shall be arrested. This provision further supports that the accused is required to be in custody at the time of filing Reference, hence he is required to be forwarded in custody to the Court.
Under clause (c) the Chairman NAB can exercise the power of issuing direction that the accused shall be arrested, if he is not already arrested even after filing the Reference in appropriate cases.
The Hon'ble Supreme Court of Pakistan in the case of Asfandyar Wali (supra) has observed in para. 257 at page 929 that the power of arrest conferred under the provisions are part of normal powers conferred upon a police officer under the Code under Section 54 thereof.
It will be noticed that in Section 24(a) the phrase "shall have the power" has been used which appears to have given power to the Chairman NAB of discretionary nature. The said phrase has been interpreted in the book
"Principles of statutory Interpretation" by Justice G.P. Singh. The author after relying upon the decisions by the Supreme Court of India in the cases of Madasslal Fakir Chund v. S. Changdeo Sugar Mills AIR 1962 SC 1543, Chinnamar Kathiam v. Ayyayoo AIR 1982 SC 137 and Commissioner of Police v.
Godhandas Bhauji AIR 1952 SC 16 interpreted the words May';It shall be lawful'; `shall have power' and observed as under:--
"Ordinarily, the words May' andIt shall be lawful' are not words of compulsion. They are enabling words and they only confer capacity, power or authority and imply a discretion. They are both used in a statute to indicate that something may be done which prior to it could not be done. The use of words `shall have power' also connotes the same idea."
It is pointed out that under the powers of arrest the Chairman NAB can deprive the liberty of citizens, therefore, it is to be safeguarded jealously and citizen should not be arrested without fulfilling the conditions mentioned in any clause of Section 54 of the Code. Further, the conditions prescribed for the exercise of such powers, including procedural requirements must be strictly followed. At the same time the discretion does not mean that the Chairman NAB should conduct himself in a discriminatory manner but he should exercise such powers in a uniform manner keeping in view the facts, circumstances, evidence collected or material placed before him. Thus he should conduct himself justly, fairly, equitably, for the advancement of the purposes of the Ordinance in accordance with law and in conformity of the provisions of Section 24-A of General Clauses Act, 1897. It will be further noticed that the power of arrest, no doubt, apparently, is a discretionary power with the Chairman NAB but at the same time a duty is cast upon him to act in the manner, it is intended to achieve the objective of the Ordinance, intention of the legislature and to advance the cause of justice.
From the plain reading of Section 24(a) of the Ordinance and 54 of the Code an impression would be gathered that the police officer or the Chairman NAB is under an obligation and duty bound to arrest a person if he is involved in a non-bailable offence subject to the condition that the requirements of Section 54 are fulfilled. Nevertheless, if the Chairman NAB merely suspects of involvement of an accused he can keep it as secret and if there is no risk of absconding the accused, the Chairman NAB may defer making the arrest until the investigation is sufficiently completed but if any interference with the liberty of the accused person is necessary to prevent him from absconding and the facts justify arrest, the Chairman NAB shall arrest him. The police officer has also such powers to defer the arrest of a person merely on suspicion but can arrest him if there is apprehension of his abscondence. Such powers are available to a police officer under Rule 26.2 Chapter XVI, Volume III of Police Rules, 1934. It will be noticed that arrest can be deferred in the case where the competent authority merely suspects without any tangible evidence against the accused. But once some evidence is collected and suspicion turns into reasonable ground then the concerned officer is required and duty bound to arrest the accused as the law puts obligation upon him to do so by making the offence non-bailable.
The Hon'ble Supreme Court of Pakistan in the case of Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705 while dealing with the discretionary powers of public functionaries and interpreting the word `may' at page 715 observed as under:--
"It is fundamental principle that an authority enjoying the discretionary powers, exercises the same without any guideline but at the same time such authority must not exercise the discretion in an arbitrary and capricious manner. It may not be obligatory for the concerned authority to exercise the discretion in a particular manner but exercise of such power in an unreasonable manner is not proper and in such a case the order passed in discretionary jurisdiction is not immune from judicial review of the superior Courts. It is well-settled that word may' is discretionary and an enabling word and unless the subject-matter shows that the exercise of power given by the provision using the wordmay' was intended to be imperative for the person to whom the power is given, it might not put him under an obligation to necessarily exercise such power but if it is capable of being construed as referring to statutory duty, it will not be entirely for such person to exercise or not to exercise the power given to him under the law. The use of word may' in the statute in the plain meanings is to give discretion to the public authorities to act in their option in the manner in which such authorities deem proper but if the public authorities are authorized to discharge their functions in their option in a positive sense, the wordmay' used in the provision would be suggestive of conveying the intention of legislature of imposing an obligation. The word may' usually and generally does not meanmust' or shall' but it is always capable of meaningmust' if the discretionary power is conferred upon a public authority with an obligation under the law. The word `may' is not always used in the statute with the intention and purpose to give uncontrolled powers to an authority rather oftenly it is used to maintain the status of the authority on whom the discretionary power is conferred as an obligation and thus, the legislative expression in the permissive form, sometimes is construed mandatory. It is, however, only in exceptional circumstances in which a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory. This is an accepted principle of law that in a case in which the statute authorizes a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to act in the manner it is intended."
"If the condition in which the power is to be exercised in particular cases are also specified by the statute then, on the fulfilment of these conditions, the power conferred becomes annexed with a duty to exercise it in that manner."
"Where a power is reposed with a public officer for the purpose of being used for the benefit of persons specially pointed out with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised."
"There may be something in the nature of the thing empowered to be done, something is that object for which it is to be done, something in the conditions under which it is to be done, same thing in the title of the person or persons for whose benefit the power is to be exercised which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so."
It follows that when permissive words are employed by the legislature to confer a power on a Court or authority to be exercised in the circumstances pointed out by the statute, it becomes the duty of the Court or authority to exercise that power on proof of those circumstances. Thus, if the Chairman NAB or any officer of NAB duly authorized forms opinion on proof of circumstances mentioned in any clause of Section 54 of the Code it becomes his duty to arrest the accused.
After considering the material available on the record we are of the considered view that the Chairman NAB is required to forward the accused in custody to the Accountability Court at the time of filing Reference or if the accused is released under Section 169 of the Code or absconded then such facts should also be mentioned in the Reference so that the Accountability Court may exercise powers provided under Section 173(3) of the Code as directed by the Hon'ble Supreme Court of Pakistan in the case of Habib (supra).
The References that have already been filed in which the accused persons have not been forwarded in custody or shown released or absconded at the time of filing Reference, the trial Court shall take appropriate steps to procure their attendance as per law.
Copy of the order be sent to Chairman NAB, Administrative Judge Accountability Court, Karachi and all the Accountability Courts in Sindh for compliance.
(R.A.) Order accordingly
PLJ 2007 Karachi 198
Present: Zia Perwaz, J
ABDUL REHMAN--Petitioner
versus
Mst. HAKIM and another--Respondents
Const. P. No. S-58 of 2007, decided on 9.3.2007.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 5 & 10 [as amended]--Object and scope of amendment--Object of amendment in West Pakistan Family Courts Act, 1964, is to avoid delay in proceedings and to afford right and remedy available to wife seeking Khula' expeditiously. [P. 200] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Framing of issues--Question of--Powers of Family Court--Scope--Family Court has power to amend, modify and even reframe issues at any stage of proceedings. [P. 200] B
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 5 & 10(4)--Constitution of Pakistan (1973), Art. 199-- Constitutional petition--Dissolution of marriage--Khula'--Deposit of dower money--Grievance--After framing of issues, Family Court should not have dissolved the marriage on the basis of Khula'--Right to remarry--Validity--Object of such dissolution of marriage was to provide specific remedy without any undue delay so as not to keep the wife in a state where she might be deprived of her right to remarry while she was of marriageable age, in addition to mental agony and tension which was the objective to meet the ends of justice in the light of enactment--Even if the husband disputed receipt of dower the wife seeking relief by way of Khula' might deposit the amount of alleged dower in Court and the Court under the circumstances was required to allow dissolution of marriage on the basis of Khula' pending decision regarding controversy of the amount of dower to be adjudicated upon at later stage--Even a frivolous claim for dower amount could become a tool to defeat the objective for which the remedy was provided and thus could defeat the purpose of statute--High Court declined to interfere with the judgment and decree passed by Family Court--Petition was dismissed.
[P. 200] C, D & E
Mr. Muhammad Saleh Bhutto, Advocate for Petitioner.
Date of hearing: 9.3.2007.
Order
This petition is directed against the impugned judgment dated 10-12-2005 of 2nd Civil Judge and Family Judge, Pano Akil allowing Khula' application registered under F.C. Suit No. 1 of 2005.
Marriage of the petitioner with Mst. Hakim, Respondent No. 1 was solemnized in the year, 1999. Dower amount was fixed at Rs. 1,000. Pre-trial took place but failed on 8-3-2005. A demand of return of dower initially Respondent No. 1 denied to have received Rs. 1,000, therefore, learned trial Court proceeded with the framing of issues. However, on 25-10-2005 application was submitted on behalf of Respondent No. l for return of dower amount on the ground that in case trial was conducted it would be time consuming.
Contention of learned counsel is that after having framed the issues the trial Court could not have disposed of the case vide impugned judgment on the basis of application for allowing Khula' immediately after failure of pre-trial within the meaning of proviso 4 of Section 10 of the West Pakistan Family Courts Act, 1964.
Heard learned counsel and perused the record. The proviso 4 to Section 10 of the West Pakistan Family Courts Act, 1964 reads as follows:--
"If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix date for the recording of the evidence."
The only contention provided for dissolution of marriage on the basis of Khula' is the return of amount of dower, which was the only bone of contention in the above case. The object- of this amendment to the Family Courts Act, 1964 is to avoid delay in proceedings and to afford right and remedy available to the applicants seeking Khula' expeditiously.
As to the question of framing the issues, the issues are framed by the Court. The Court has power to amend, modify and even reframe the issues at any stage of the proceedings. The provisions of law are to be interpreted as in the manner as not to defeat the very object of the statute. In the instant case the object is to provide the specific remedy without any undue delay so as not to keep the wife in a state where she may be deprived of her right to remarry while she is of marriageable age in addition to the mental agony and tension which is the objective to meet the ends of justice in the light of enactment.
The arguments advanced before the Court are rather against this very principle. The application moved by the counsel for the applicant to payment/deposit the disputed amount of dower to Khula' is not barred by any law. In such cases even if the respondent disputes receipt of dower the applicant seeking relief by way of Khula' may deposit the amount of alleged dower in the Court and the Court under the circumstances is required to allow dissolution of marriage on the basis of Khula' pending final decision regarding controversy of the amount of dower to be adjudicated upon at later stage otherwise even a frivolous claim for dower amount would become a tool to defeat the very objective for which the remedy is provided and thus defeat the purpose of the statute.
Under the circumstances, no ground valid for interfering with impugned judgment is made out. The impugned judgment was announced on 10-12-2005 and challenged by the above petitioner after a period of 14 months which is even otherwise not maintainable as it suffers from the latches.
For the foregoing reasons, this petition is dismissed in limine.
(R.A.) Petition dismissed
PLJ 2007 Karachi 201
Present: Nadeem Azhar Siddiqi, J.
ALI NAWAZ--Applicant
versus
AZIZULLAH through Legal Heirs--Respondents
C.R. No. 38 of 2006, heard on 26.2.2007.
Cause of action--
----Meaning--Cause of action means giving rise for a claim or right of plaintiff against defendant enable a Court give its decision. [P. 203] E
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Contents of plaint--A plaint under O. VII, Rule 11 of CPC can be rejected, if came within the mischief of Order VII, Rule 11 CPC and for rejection the plaint--Contents of the plaint are to be seen and the contents of plaint has to treated as true on its face value. [P. 203] A
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Dismissal of plaint-Technical grounds-For want of betters particulars--Amend plaint--Validity--Plaint cannot be rejected on he basis of vagueness in pleadings or for want of better particulars and instead of maintaining the order of rejection of plaint thus Appellate Court should provide an opportunity to applicant to amend the plaint under O. VI, R. 17 CPC. [P. 203] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. VII, R. 11--Rejection of plaint--Contents of plaint--Cause of action--Factual controversy--Violation of--Provision--Concurrent finding--Revisional jurisdiction--Question of--Validity--Whether applicant will be able to prove the case at trial is irrelevant and cannot be considered for rejecting the plaint--Held: Concurrent finding of fact cannot be interfered in revisional jurisdiction--However, in arriving at a question of fact if Courts below have committed an error of law, as which caused grave injustice the High Court can interfere in revisional jurisdiction--Further held: Courts below have violated the provisions of Order VII, Rule 11 CPC has exercised jurisdiction which was not vested in them. [P. 203] F
Inquiry--
----Factual inquiry--Essential--Evidence--Validity--Factual inquiry cannot be undergone and the matter which requires evidence, cannot be considered. [P. 203] B
Plaint--
----Rejection of plaint--Lack of evidence--Prove in--Applicant has not produced documents in support of his case--Plaint cannot be rejected for want of evidence or prove in support of claim in the plaint.
[P. 203] C
Mr. Zulfiqar Ali Sangi, Advocate for Applicant.
Nemo for Respondents.
Date of hearing: 26.2.2007.
Judgment
The applicant has challenged order dated 20-11-2002 passed by the learned II Civil Judge and Judicial Magistrate Panoakil in Suit No. Nil of 2002 and order dated 24-12-2005 passed by learned District and Sessions Judge Sukkur in Civil Appeal No.78 of 2002.
The facts necessary for the disposal of the above revision are that the applicant has filed suit for recovery of Rs. 30,000 against the respondents pleading therein that he is the owner of the garden of dates which he had given on lease to the father of the respondents in consideration of Rs. 30,000, who even after taking all fruit failed to pay the amount and filed insolvency petition Bearing No. 26/2001 in which he had admitted an amount of Rs. 17,500. The insolvency petition was dismissed on 15-2-2002 and in June 2002 he expired leaving the above legal heirs. The suit was filed and the learned Civil Judge without admitting the plaint rejected the same vide order dated 20-11-2002. The applicant challenged the order by way of filing Civil Appeal No. 78 of 2002 which was dismissed on 24-12-2005. Hence the revision.
The learned counsel for the applicant submits that both the Courts below have wrongly assumed jurisdiction, which was not vested under them. He submits that plaint can only be rejected if come within the mischief of Order VII, Rule 11, C.P.C. He further submits that for rejecting the plaint the whole contents of the plaint have to be considered and for that purpose the contents of the plaint are taken to be true and the matter which require evidence cannot be considered. He further submits that factual investigation cannot be made while rejecting the plaint.
None was present on behalf of the respondents in spite of service.
I have heard learned counsel for the applicant and perused the record made available before me.
A plaint under Order VII, Rule 11, C.P.C. can be rejected, if came within the mischief of Order VII, Rule 11, C.P.C. and for rejecting the plaint, the whole contents of the plaint are to be seen and the contents of plaint has to be treated as true on its face value. The factual inquiry cannot be undergone and the matter, which requires evidence, cannot be considered. The trial Court has rejected the plaint merely for the reason that applicant has not produced documents in support of his case. The plaint cannot be rejected for want of evidence or prove in support of claim in the plaint.
The Appellate Court has also dismissed the plaint on the technical ground that sufficient particulars of the land and the transaction was not disclosed in the plaint. The plaint cannot be rejected on the basis of vagueness in pleadings or for want of better particulars, and instead of maintaining the order of rejection of the plaint thus the Appellate Court should provide an opportunity to the Applicant to amend the plaint under Order VI, Rule 17, C.P.C.
I have gone through the contents of the plaint and found that the same discloses a cause of action. The applicant states in the plaint that deceased owe amount to him and this is a factual controversy require evidence. The cause of action means giving rise for a claim or right of the plaintiff against the defendant, enable a Court give its decision. The question as to whether the applicant will be able to prove the case at the trial is irrelevant and cannot be considered for rejecting the plaint. Normally a concurrent finding of fact cannot be interfered in the revisional jurisdiction. However, in arriving at a question of fact if the Courts below have committed an error of law, which caused grave injustice the High Court can interfere in the revisional jurisdiction. The Courts below have violated the provisions of Order VII, Rule 11, C.P.C. and by rejecting the plaint not covered by the provisions of Order VII, Rule 11, C.P.C. has exercised jurisdiction which was not vested in them.
In view of the above the orders dated 20-11-2002 and. 24.12.2005 passed by the Courts below are set aside and this revision application is allowed. The case is remanded to the trial Court to admit the suit and to decide the same in accordance with law. Since the suit was filed in 2002. I direct the trial Court to proceed with the suit expeditiously without allowing unnecessary adjournments.
The parties are left to bear their own cost.
(R.A.) Revision accepted
PLJ 2007 Karachi 204 (DB)
Present: Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ
NAND LAL--Appellant
versus
STATE--Respondent
Crl. A. No. 367 of 2004, decided on 12.3.2007.
Drugs Act (XXXI of 1976)--
----S. 27(4)--Appreciation of evidence-- Benefit of doubt--Best piece of evidence--Ocular testimony--If the best piece of evidence available with the party was withheld from the Court, then the party had some motive behind such action--Witnesses had no opportunity to verify as to whether the property produced before the Court was the same property which was secured from the godown so as to connect same with accused--Prosecution having withheld said piece of evidence, adverse inference could validly be drawn in the case, which would materially and adversely affect the prosecution story--Property was not sent to Government Analyst to find out whether same was `drug' within the meaning of Drugs Act, 1976--Such aspect of the case had also adversely affected the prosecution case--Prosecution did not produce property, which was the basis on which case was initiated--Prosecution also did not produce expert's report to show that alleged property was the drug within the meaning of Drugs Act, 1976--Without such evidence solitary statement of Drugs Inspector on the subject, could not be safely relied upon--Ocular testimony was insufficient to convict accused--Drug Court did not take cognizance on the challan submitted by the police, but took cognizance on the direct complaint filed by the Drug Inspector after obtaining required permission from the competent authority--Prosecution having failed to prove case against accused beyond any reasonable doubt, he was entitled to the benefit of doubt, which was accordingly given to him.
[P. 206] A
1998 PCr.LJ 181; NLR 2000 Criminal 251 and
NLR 2000 Criminal 454 rel.
Mr. Wazir Hussain Khoso, Advocate for Appellant.
Mr. Habib Ahmed, Asstt. A.-G. for State.
Date of hearing: 7.3.2007.
Judgment
Rahmat Hussain Jafferi, J.--Brief facts giving rise to the present appeal are that on 18-2-2000 S.H.O. Iqbal Hussain of Police Station `C' Section, Sukkur received spy information about packing of illicit medicines in the Godown of the appellant situated near Al-Mustafai Hospital, Old Sukkur. On the said information S.H.O. went to the Divisional Inspector of Drugs Abdul Jabbar Kazi and informed him about the information. Thereafter, the Drugs Inspector and the police went to Mukhtiarkar, who was taken to supervise the raid. The police party alongwith Drug Inspector and Mukhtiarkar raised the Godown of the appellant and secured drugs, which were being packed in the cartons. The appellant was arrested and such mashirnama was prepared in presence of A.S.I. Abdul Rehman Kandhro and A.S.I. M. Moosa Memon. The appellant and the properties were brought to the Police Station where the Drugs Inspector lodged the F.I.R., which was recorded in 154, Cr.P.C. Book of Police Station.
On 22-1-2001 the Drug Inspector Abdul Jabbar Kazi lodged the written complaint before the Special Court Drugs Sindh, Karachi in respect of above mentioned incident. The Drug Inspector also obtained required permission for filing complaint, which was granted on 12.10.2000. The Drug Court took cognizance on the said complaint and issued process against the appellant. On 16-3-2001 the Drug Court framed the charge against the appellant for offence punishable under Section 27(4) of the Drugs Act, 1976. The appellant pleaded not guilty. The prosecution examined three witnesses. The appellant in his statement recorded under Section 342, Cr.P.C. denied all the allegations of the prosecution. The Drug Court after hearing the parties counsel and going through the evidence convicted the appellant for office punishable under Section 27(4) of the Drugs Act, 1976, sentenced him to suffer R.I. for 12 months and fine of Rs. 25,000 or in default thereof to suffer R.I. for three months with benefit of Section 382(b), Cr.P.C. under the impugned judgment dated 25-9-2004.
We have heard advocate for the appellant, A.A.-G. for the State and perused the record of this case very carefully.
The learned advocate for the appellant has argued that the Drug Inspector was not competent to lodge the F.I.R., as such, the proceedings before the Court were corum non judice. He has relied upon (1) 1998 P.Cr.LJ 181, (2) NLR 2000 Criminal 251 and (3) NLR 2000 Criminal 454. On merits he has stated that the property was not produced before the trial Court; that the property was not sent to the Government analyst to prove that the property allegedly secured from the godown was medicines or expired medicines, therefore, the prosecution has failed to prove the case.
Conversely, the learned A.A.-G. has stated that the trial Court did not take cognizance on the challan submitted by the police on the F.I.R. lodged by the Drug Inspector, but the cognizance was taken on the direct complaint filed by the Drug Inspector after obtaining required permission, therefore, the authorities relied upon by the learned advocate for the appellant are not applicable in this case. As regards the factual aspect of the case learned A.A.-G. conceded that the property was not produced before the Court or the same was sent to Expert to determine whether the property was medicine or expired medicine. However, he has stated that the ocular evidence is sufficient to convict the appellant.
We have given due consideration to the arguments, gone through the evidence with the assistance of the learned advocate for the appellant and found that the prosecution examined three witnesses viz. P.W.1, S.H.O. Iqbal Hussain, P.W.2 Additional S.H.O. Abdul Rehman, who acted as mashir of recovery and P.W.3 Drug Inspector Abdul Jabbar. They gave the same details of the incident as mentioned in the earlier part of the judgment, therefore, need not to be repeated. From the perusal of their evidence, it is clear that the prosecution did not produce the property before the trial Court. As such, on the above aspect of the case the best piece of evidence was the alleged property. It is well-settled principles of law that if the best piece of evidence available with the party is withheld from the Court then the party has some Sinster motive behind it, therefore, the presumption under Illustration `g' of Article 129 can fairly be drawn that if the said piece of evidence would have been produced it would have been unfavourable to the said party. In the present case, it has already been observed that the best piece of evidence was the property itself, which was withheld by the prosecution. The witnesses had no opportunity to verify as to whether the property produced before the Court was the same property, which was secured from the godown so as to connect the same with the appellant. As the prosecution has withheld the said piece of evidence, therefore, adverse inference can be taken in the case, which has materially and adversely effected the prosecution story.
Furthermore, the property was not sent to the Government Analyst to prove whether the property was the drug within the meaning of the Act or the same had expired. This aspect of the case has also adversely affected the prosecution case. Learned A.A.-G. could not controvert the above position.
From the above position, it is clear that the prosecution did not produce the property, which was the basis on which the case was initiated. Further the prosecution also did not produce the expert's report to show that the alleged property was the drug within the meaning of the Act, therefore, without such evidence of solitary statement of Drug Inspector on the said subject cannot be safely relied upon, therefore, the ocular testimony is insufficient to convict the appellant.
As regards the legal aspect of the case suffice it to say that the Drug Court did not take cognizance on the challan submitted by the police, but the Drug Court took cognizance on the direct complaint filed by the Drug Inspector after obtaining required permission from the competent authority, as such, the arguments of the learned advocate for the appellant on the said subject are without any force. The case laws cited by him are not applicable in the facts and circumstances of the case.
After considering the material available on the record, we are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, he is entitled to the benefit of doubt, which was accordingly given to him while passing short order dated 7-3-2007, by which we had allowed the appeal.
These are the reasons of our said short order.
(R.A.) Appeal allowed.
PLJ 2007 Karachi 207
Present: Maqbool Baqar, J
Messrs TIME N VISIONS INTERNATIONAL (PVT.) LTD.--Plaintiff
versus
DUBAI ISLAMIC BANK PAKISTAN LIMITED--Defendant
Suit No. 862 of 2006, decided on 30.8.2006.
Arbitration Act, 1940 (IX of 1940)--
----S. 20--Contract Act, (IX of 1872)--S. 202--Agency Agreement--Application to file in Court arbitration agreement--Power--Scope--Question of--Whether in terms of Clause 3 of agreement agency could be terminated by serving two months advance notice--Determination--Agency could be terminated by serving two months `advance notice' only after initial two years of creation of the agency--In view of Clause (17) which provides for a dispute resolution mechanism through arbitration in respect of agreement can only be decided by arbitration. [P. 218] C
Arbitration Act, 1940 (IX of 1940)--
----S. 20--Contract Act, (IX of 1882)--S. 202--Specific Relief Act, (I of 1877)--Ss. 12, 42 & 55--Agency agreement--Termination of agency--Premature--Arbitration clauses--Scope of--Agency in-question was not an agency coupled with interest--Agency did not attract exceptional status of irrevocability--Provisions of--Principle--Agency in-question is not an agency coupled with interest and therefore does not attract exceptional status of irrevocability as provided by Ss. 201 & 202 of Contract Act, which provides for termination of any agency by principal revoking his authority, an order restraining the defendant from revoking agency and forcing them to continue with relationship would not be justified, as even if arbitrators come to conclusion that termination of the agency would in terms of agreement be premature for want of requisite notice--Held: Plaintiffs may be duly compensated by awarding damages. [P. 219] D
Arbitration Act, 1940 (X of 1940)--
----S. 20--Contract Act, (IX of 1872), S. 202--Agency of Agreement--Termination of agency--Premature termination--Compensated in money terms--Financial liabilities--Multifarious litigation--Misconception of agreement--Validity--Agent can tie down his principal into an eternal bond by making investments when partner contributing a major part of capital of a firm and tying down his assets cannot do so--Held: Even if there has been premature or illegal termination of contract of agency, it can be compensated in money term--If such notice was not given, at the most plaintiff firm could claim damages from defendants and that by seeking declaration and permanent injunction, the plaintiff was in fact seeking specific performance of dealership which agreement was not an agreement which could be got specifically enforced through the Court and that if at all there was unlawful termination of sales/dealership agreement, the plaintiff firm could have only asked for damages--Termination of the agency at this stage would lend them into multifarious litigation is wholly un-founded and based on misconception--In event of termination of the agency the contract already made by plaintiff with third parties on behalf of plaintiff and in respect of all contracts that are on the books on the date of such termination of an agreement parties shall perform the duties and observe the covenant to be performed and absolved by them--Termination of the agency would be bound to perform their obligations in terms of agreement provided the same have been entered into with consent of the defendant and in conformity with various provisions of agreement in-question--Petition allowed. [P. 33-] F, G & H
Contract Act, 1872 (IX of 1872)--
----S. 202--Advertise Agency Agreement--Concept of an agency coupled with interest--Concept can be comprehended through illustration--Pre-existing interest of the agency in subject matter of agency which is sought to be protected through creation of the agency and not an interest arising therefrom--Concept can be comprehended through following illustration given in S. 202 of Contract Act. [P. 215] A
Contract Act, 1872 (IX of 1872)--
----S. 202--Arbitration Act, (X of 1940)--S. 20--Advertising Agency Agreement--Appointment as exclusive advertising agent for brands and advertising work--Scope of--Question of--Be terminated to prejudice of interest--Validity--Such contracts can be considered irrevocable, the most common examples of such contracts are when the owner of certain goods appoints his creditor as agent to sell the goods and recover the amount advanced or where the owner of immovable property, having agreed to transfer such property appoints, before formal title is passed the vendee as his agent to manage the property or effect the final transfer of title. [P. 217] B
Contract Act, 1882 (IX of 1882)--
----Ss. 201 & 202--Arbitration Act, (X of 1940)--S. 20--Agency agreement--Termination of agency--Notice--Damages--Validity-Where termination notice is not given as provided in the agreement, the plaintiff could only ask for damages and not for declaration and permanent injunction as such an agreement cannot be specifically enforced. [P. 219] E
1985 CLC 1522; 1973 SCMR 555 and 1997 CLC 1903 ref.
Mr. Abdul Hafeez Pirzada, Hasaamuddin and Abdul Sattar Pirzada, Advocates for Plaintiff.
Mr. Rasheed A. Razvi and Mahmood Mandviwala, Advocates for Defendant.
Dates of hearing: 24 & 30.8.2006.
Judgment
Through this order I propose to dispose of the main petition under Section 20 of the Arbitration Act, as well as the injunction application, being C.M.A. No. 4941 of 2006 filed by the plaintiff.
The relevant facts of the case in brief are that under and in terms of an Advertising Agency Agreement' executed between the parties on 15-10-2005, (The agreement') the plaintiff company, who are engaged in the business of advertising, and according to them, are providing a range of advertising services to several entities, were appointed by the defendant bank, as their exclusive advertising agent in Pakistan, for their brands and other advertising work for the period from 15-10-2005 up to 14-10-2006, and agreed to pay to the plaintiff a monthly retainership fees of Rs.6,75,000 (Rupees Six hundred and Seventy Five Thousand only). In terms of Clause 3 of the agreement, the relationship was to be renewed automatically after the initial period ending on 14.10.2006, for one more year i.e. up to 14-10-2007. It was further agreed that the agreement will continue to be renewed by the parties for subsequent years and the relationship will remain in force till such time as the agreement is revoked or terminated, as envisaged by Clause 4 of the agreement, which provides that the agreement can be terminated by either party only after serving two (2) months prior/advance notice. In addition to the retainer fee, the plaintiff, in terms of the agreement, is also entitled to commissions for the various services that the plaintiff was required to provide under the agreement and as enumerated under Clauses 5 and 6 thereof. Clause 17 of the agreement, by way of dispute, resolution, mechanism, provides that every dispute, difference or question, which may anytime arise between the parties thereto, or any person claiming under them, touching or arising out of or in respect of the agreement shall be referred to the arbitrators named therein.
Such arbitration to be conducted in accordance with the Arbitration Act, 1940.
It is claimed by the plaintiff that under Clause 3 of the Agency Agreement, the Agreement is valid up to 14-10-2007 (i.e. two years from the date of its execution) and that after such period of two years, the Agreement would continue to remain in force unless the same is terminated by one of the parties by serving on the other party a two months prior notice. It is further claimed that in view of the various Clauses of the Agreement, particularly, Clauses 2, 6 and 8.1, the agency is of the nature of an agency coupled with interest and cannot, therefore, in view of the bar as contemplated by Section 202 of the Contract Act, be terminated to the prejudice of such interest. It is then alleged that despite the above and without any cause or reason, the representative of the defendant has informed the plaintiff that the defendant is taking steps to terminate the Agency Agreement. It is further stated that the compensation offered by the defendant for such un-lawful breach of the Agreement, `to say the least being paltry' is, not acceptable to the plaintiff, as the proposed termination shall cause a tremendous and irreparable loss to the plaintiff. It is claimed that the plaintiff has incurred substantial expenditure and put in labour in fulfillment of its obligations under the Agreement, and in establishing a good-will for the defendant among its potential customers in Pakistan, and was allured to commit its capital on the assurances and guarantees of remuneration and fees embodied in the Agency Agreement, the defendant cannot therefore terminate the relationship at this stage. It is claimed that the plaintiff has been performing his obligations as an agent to the complete satisfaction of the defendant. Neither has the plaintiff defaulted in fulfilling any of its obligations under the Agreement, nor has there been any allegation of default on the part of the plaintiff. On the contrary, the defendant on several occasions commended the plaintiff performance. However, the defendant realizing its position of advantage, has in the most unscrupulous manner decided to engage the services of another entity and unlawfully discontinued its contractual relationship with the plaintiff.
Along with the main petition, the plaintiff have filed an application for restraining the defendant from acting in contravention of the Agency Agreement and from entering into an Agency Agreement with any other party. (C.M.A. No. 4941/2006).
Through their counter affidavit, the defendants have opposed the grant of interim relief as prayed for by the plaintiff. They have denied that the agency in question is coupled with interest. It is contended that by its very nature the relationship between the parties as created through the present agreement, does not create an agency coupled with interest. It is averred that the application is barred by Section 21 of the Specific Relief Act, as an agreement of the nature as in question is incapable of specific performance as monetary compensation is an adequate relief and also for the reason that the agreement is inherently revocable. It is pointed out that the agreement provides for termination through Clause 4, which envisages its termination by either party by serving two months prior notice. It is submitted that Section 202 of the Contract Act applies only where an agent has a pre-existing interest in the subject-matter of the agency, which is sought to be protected through the creation of the agency. It is further submitted that nature of an advertising agency and specially with the rights and obligations as created under the agreement in question can never create a proprietary interest sufficient enough to attract the provisions of Section 202 of the Contract Act. It is further submitted that admittedly the plaintiff is providing advertising services to various entities which is violative of Clause 5(iii) of the Agreement. It is claimed that the defendant is a subsidiary of the first Islamic Bank of the world, and has been recently established in Pakistan for providing and facilitating Islamic mode of financing and the interim injunction granted in this case on 26-6-2006 is effecting the entire marketing and business development of the defendant as a newly established Islamic Bank. It is claimed that the defendant has neither intended nor entered into any relationship of a permanent nature with the plaintiff. It is further claimed that in the event the interim injunction is allowed to continue the future operations and development of the defendant as a newly established Islamic Bank will suffer immensely and the defendant marketing and advertising will cease completely as marketing and advertising plays a crucial role in the development of the banking products. It is alleged that, owing to the unprofessional attitude of the plaintiff and by its attempt to forcibly continue the relationship, the defendant is suffering huge financial losses.
In their rejoinder to the defendant's counter affidavit, the plaintiff have claimed to have incurred huge expenditures, towards fulfillment of its obligations under the Agreement. It is also claimed that the plaintiff, for the benefit of the defendant, has engaged the services of several professionals with expertise in concept and creative development and client servicing for a period of two years. The plaintiff has further claimed to have executed several contracts with various parties for propagating the business of the plaintiff. It is submitted that unless the interim injunction is confirmed, the plaintiff shall be faced with multiplicity of proceedings and shall suffer irreparable losses. It is denied that the plaintiff committed any breach of any of its obligations under the Agreement. It is alleged that all the resources of the plaintiff have been diverted towards the furtherance of its contractual obligations and for the development of the defendant's business to their satisfaction.
Mr. Abdul Hafeez Pirzada, the learned counsel for the plaintiff in support of the plaintiff's plea for referring the matter to the arbitrators, submitted that in terms of Section 20 of the Arbitration Act, all that is required for such referral is that there should be an arbitration agreement between the parties and that a dispute has arisen between the parties and the Court to which application was made has jurisdiction in the matter. He submitted that the agency created under the agreement is in the nature of an agency coupled with interest, as the plaintiff in pursuance of the agreement, has incurred heavy expenditure by employing professionals to carry out their obligations in terms thereof. The learned counsel referred to Clauses 2, 6, 7 and 8.1, to show that the plaintiff is not only entitled to a monthly retainership fee but is also entitled to commissions for the various services that the plaintiff has rendered, and is obliged to render to the defendant, and submitted that in view of such financial interest also, the relationship cannot be denied its attribute of an agency coupled with interest and thus in view of the bar, as envisaged by Section 202 of the Contract Act, the agency cannot be terminated at the whims of the defendants. He submitted that in addition to the fact that the agency is coupled with interest and without prejudice to his contention that the agreement cannot be terminated to the prejudice of such interest, even in terms of the agreement itself, it cannot be terminated during the period up to 14-10-2007. He referred to Clause 3 of the agreement and submitted that after the initial one year period, ending on 14-10-2006, the agreement will automatically stand renewed for another term of one year up to 14-10-2007, and the parties may thereafter continue the relationship for subsequent years. He contended that from the language employed in Clause 3 of the agreement, it is clear that even in terms thereof the relationship is not terminable before 14-10-2007, and the termination through a two months advance notice as envisaged therein is only in respect of any further renewal of the agreement that the parties may agree to. However, the defendant in clear breach of the terms and even without any notice and/or justification, is admittedly contemplating termination of the agency. The learned counsel submitted that the plaintiff has not only employed several professionals in order to do the various jobs and provide various services to the plaintiff in terms of the agreement, but have, in pursuance of the agreement, entered into several agreements with various parties. He referred to sub-Clause (iv) of Clause 5 of the Agency Agreement which envisages outsourcing development of advertisement for the defendants, and submitted that in the event the agency is terminated prematurely, the plaintiff shall face multiple litigation and shall suffer irreparable loss. The learned counsel submitted that substantial amounts towards the various services provided by the plaintiff to the defendant are still outstanding and in the event of termination of the agency, the plaintiff shall also suffer loss of future retainership fee and commissions and requested that the matter may be referred to the arbitrators and the defendants may be restrained from terminating the agency till the making of the award. In support of his argument, Mr. Pirzada referred to the following cases:--
(1) Ghulam Ishaq Khan Institute of Engineering, Science and Technology and another v. M/s. Hassan Construction Co. (Pvt.) Ltd. Engineer and Consultants 1998 CLC 485.
(2) Manzoor Construction Co. Ltd. v. University of Engineering and Technology, Taxila 1984 CLC, 3342.
(3) Muhammad Younus and 2 others v. Abdul Ghaffar and others 1998 MLD 1622.
(4) M/s. Jamia Industries Ltd. v. M/s. Pakistan Refinary Ltd., Karachi PLD 1976 Kar. 644.
(5) Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784.
On the other hand, Mr. Rasheed A. Razvi, the learned counsel for the defendant submitted that no cause of action has accrued to the plaintiff for filing the present suit as the defendant have not terminated the Agency Agreement as yet. He further submitted that even otherwise the plaintiff, in the facts and circumstances of the case is not entitled to a declaration as they propose to seek through arbitration, as no perpetual relationship has been created between the parties under or in terms of the Agreement and the relationship between the parties does not attract the provisions of Section 202 of the Contract Act, so as to make it irrevocable. He submitted that Section 202 of the Contract Act only applies where an agent has a pre-existing interest in the subject-matter of the agency, and the agency, of the nature in question cannot, by any stretch of imagination, be deemed to be an agency coupled with interest. He submitted that the two elements as claimed by the plaintiff, namely expenses incurred by the plaintiff and the prospects of earning commissions and retainership fee are not of such nature so as to create interest as envisaged by Section 202 of the Contract Act. He submitted that the Agency Agreement itself provides for termination by serving two months advance notice as provided under Clause 4 of the agreement. Mr. Razvi relied on the following judgments:--
(i) Unreported judgment passed in Suit No. 388 of 2002 between ACB (Pvt.) Ltd. v. UPS Worldwide;
(ii) Pak National Construction Co. v. State Bank of Pakistan (PLD 1977 Karachi 838);
(iii) Jamia Industries v. M/s. Pak Refinery Ltd. Karachi (PLD 1967 Karachi 644);
(iv) Progressive Engineering Associates v. Pakistan Steel Mills Corporation Limited (1997 CLC 236);
(v) Roomi Ent. (Pvt.) Ltd. v. Stafford Miller Ltd. (2005 CLD 1805);
(vi) Huma Enterprises v. S. Pir Ali Shah & others (1985 CLC 1522);
(vii) World Wide Trading v. Sanyo Electric Trading Co. Ltd. & another (PLD 1986 Karachi 234);
(viii) Farooq & Co. v. Federation of Pakistan and others (1996 CLC 2030);
(ix) Business Computing Int. v. IBM World Trade Corporation (1997 CLC 1903);
(x) Philippine Airlines v. Paramout Aviation (Pvt.) Ltd. & others (PLD 1999 Karachi 227);
(xi) Muhammad Yousuf v. M/s. Urooj (Pvt.) Limited & another (PLD 2003 Karachi 16).
As regards the preliminary objection raised by Mr. Rasheed A. Razvi that since the defendant agency has not been terminated by the defendants as yet, no cause of action has accrued to the plaintiff for filing the present petition. It may be noted that the defendants have not denied the fact that they are/were in the process of termination of the agency. On the contrary they have submitted that they are being forced to continue their relationship with the plaintiff, through interim injunction and thus it can be seen that the termination of the agency is clearly in the offing. The dispute/controversy between the parties as has now emerged is regarding (i) the nature of the agency, as to whether or not the agency is coupled with interest, so as to attract the bar contained in Section 202 of the Contract Act. (ii) As to whether, in terms of Clause 3 of the agreement, the agency is terminable by either party, through a two months advance notice, or as to whether such termination is permissible only after a period of two years from its commencement i.e. after 14-10-2007 only.
The plaintiffs have attempted to attribute to the agency in question, the status of an agency coupled with interest, and thus claimed a bar to its termination, as contemplated in terms of Section 202 of the Contract Act, on the grounds that (i) they have made substantial investment in order to provide to the defendant the various services they were obliged to provide under and in terms of the agreement and towards fulfilling its obligation thereunder and (ii) agreement promises to them financial rewards by way of payments of retainership fee and commissions for the various services that they are obliged to provide under the agreement. It is contended that by virtue of the above, the plaintiffs acquired interest in the subject matter of the agency agreement.
The concept of an `agency coupled with interest' is a special concept. It envisages a pre-existing interest of the agency in the subject-matter of the agency which is sought to be protected through creation of the agency and not an interest arising therefrom. The concept can be clearly comprehended through the following illustration given in Section 202 of the Contract Act:--
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself, out of the price, the amount of his own advances, A cannot revoke this authority, nor is it terminated by his insanity or death.
The concept has been well illustrated at page 2036 of Halsbury's Laws of England, IVth Edn., Volume-1, in the following words:--
`868. Authority coupled with interest.--Where the agency is created by deed, or for valuable consideration, and the authority is given to effectuate a security or to security or to secure the interest of the agent, the authority cannot be revoked. Thus, if an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of securing some benefit to the donee of the authority, the authority is irrevocable on the ground that it is coupled with an interest. So, an authority to sell in consideration of forbearance to sue for previous advances, an authority to apply for share to be allotted on an underwriting agreement a commission being paid for the underwriting, and an authority to receive rents until the principal and interest of a loan have been paid off or to receive money from a third party in payment of a debt, have been held to be irrevocable. On the other hand, an authority is not irrevocable merely because the agent has a special property in or a lien upon goods to which the authority relates, the authority not being given for the purpose of securing the claims of the agent'.
In the case of M/s. Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation (1997 CLC 1903), Sabihuddin Ahmed, C.J. has dilated upon the scope and applicability of the concept of an agency coupled with interest in the context of Section 202 of Contract Act in the following words:--
`9. In our legal system, this concept has been stated in Section 202 of the Contract Act which reads as under:--
`Termination of agency where agent has an interest in subject-matter.--Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot in the absence of an express contract, be terminated to the prejudice of such interest.
It may be seen that the above Section lays down an exception to the general rules. A contract of agency by its very nature is personal to the parties and revocable at their volition subject to agreed terms. It does not create eternal legal relations. Under this section in certain exceptional circumstances, such contracts can be considered irrevocable, the most common examples of such contracts are when the owner of certain goods appoints his creditor as agent to sell the goods and recover the amount advanced or where the owner of immovable property, having agreed to transfer such property appoints, before formal title is passed, the vendee as his agent to manage the property or effect the final transfer of title. In such cases interest in the property has already been created in favour of another who is appointed agent primarily to secure such interest. The principal is precluded from revoking the authority of such agent unless otherwise agreed, because the main interest in the property is not retained by him but passed on to the agent. This concept has been lucidly explained by Tanzil-ur-Rehman, J., in the case of World Wide Trading Company v. Sanio Trading Company PLD 1986 Kar. 234 cited above to the following effect:--
`The interest of the agent, forming subject-matter of the agency, is to be some sort of an adverse nature qua the principal. So, according to the true construction and scope of Section 202 the agency can be said to be coupled with interest where the authority of an agent is given for the purpose of effectuating a security or of securing an interest of the agent. This can be inferred from documents forming the basis of agency or from the course of dealings between the parties and from the other surrounding circumstances.'
And further that:--
`I am unable to subscribe to the view that Section 202 gets attracted merely because the agent has acquired substantial interest in the returns arising from the agency. Apart from the observations in the cases of World Wide Trading Co. (PLD 1986 Kar. 234) and Farooq and Co. (1996 CLC 2030) cited above, a comparison between Sections 202 and 206 may clarify the legal position. Under Section 206 when the contract of agency does not contain a specific stipulation as to termination, it may be terminated upon reasonable notice. In the absence of such notice the damage resulting to one party must be made good by the other. If the principal terminates the agency without notice, he must compensate the agent. It obviously follows that the agent must be having an interest which must be compensated for. Therefore it is not possible to say that whenever an agent has an interest in the continuance of an agency Section 202 gets attracted. I am, therefore, clearly of the opinion that Section 202 applies only where an agent has a special kind of interest i.e. pre-existing interest in the subject-matter of the agency which is sought to be protected through creation of the agency and not an interest arising therefrom.'
His Lordship further held that substantial investment in the business of agency would not make the agency irrevocable.
The contention that since the agent had invested colossal amount of funds in setting up of office and necessary infrastructure, the agency was irrevocable, was rejected by Mian Allah Nawaz, J in the case of M/s. Farooq and Co. v. Federation of Pakistan and 3 others (1996 CLC 2030) in the following words:--
`As regards the contention that the petitioner had invested colossal amount of funds in setting up of office and necessary infrastructure and so the agency was irrevocable, suffice it to say that setting up of office and employment of necessary staff was essential for carrying on the business of the agency. These acts were not anterior to the contract. These were not consideration to any right of petitioner. Under no circumstances they can be considered as security for any interest of the agent under the agreement of agency. On this state of affairs, it is quite clear to me that the conditions postulated in Section 202 of the Act are not attracted to the facts and circumstances of the case in hand. Reference be profitably made to Palani Vannan v. Krishnaswami Konar AIR 1946 Madras 2036.'
In view of the foregoing it is now abundantly clear that the plaintiff cannot seek perpetuity of relationship on the ground that they have made huge investment or have incurred heavy expenditure or that continuity of the agency would earn them retainer fee and commission, and moreso for the reasons that the Agreement itself provides for its termination as envisaged therein. However, the question as to whether in terms of Clause (3) of the agreement, the agency could be terminated by serving two months' advance notice, only after the initial two years of the creation of the agency i.e. after 14-10-2007, would certainly require interpretation of the agreement itself, and which question, in view of Clause (17), which provides for a dispute resolution mechanism through arbitration in respect of every dispute, difference of question which may at any time arise between the parties, touching or arising out of or in respect of the agreement, can only be decided by the arbitrations, as in the words of Zaffar Hussain Mirza, J (as he then was), the scope of the powers conferred on the Court under Section 20 of the Arbitration Act is merely limited to determination of the factum of real dispute and no more. It is not for the Court to go into the question pertaining to the dispute raised or suggest the manner of decision thereof for that would amount to usurping the jurisdiction of the domestic tribunal constituted under the arbitration agreement [Jamia Industries Limited v. Pakistan Refinery Ltd. (PLD 1976 Kar. 644)]. Similar view has been expressed in Manzoor Construction Co. Ltd. v. University of Engineering and Technology, Taxila 1984 CLC 3347. I would therefore refrain myself from dealing into the controversy as to at what point in time the parties can exercise their option to terminate the agency, which forms, a real dispute amenable to arbitration only.
However, having come to the conclusion that the agency in question is not an agency coupled with interest and therefore does not attract exceptional status of irrevocability as provided by Section 202 of the Contract Act and in view of Section 201 of the Contract Act which provides for termination of an agency by the principal revoking his authority, an order restraining the defendant from revoking the agency and forcing them to continue with the relationship would not be justified, as even if the arbitrators come to the conclusion that the termination of the agency would, in terms of the agreement, be premature for want of the requisite notice, the plaintiffs may be duly compensated by awarding damages.
I am fortified in my view by the judgments in the cases of Huma Enterprises and 3 others v. S. Pir Ali Shah and others (1985 CLC 1522), wherein it was observed that even where termination notice is not given as provided in the agreement, the plaintiff could only ask for damages and not for declaration and permanent injunction, as such an agreement cannot be specifically enforced.
A reference to the case of West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi (1973 SCMR 555) may also be beneficial in the present context, where the Hon'ble Supreme Court held as follows:--
`Reading the three Sections (203, 205 and 206 of the Contract Act) together it seems to me evident that if the principal without sufficient cause revokes the agency before the expiration of the period mentioned in, the contract, he must make compensation to the agent. Furthermore, that unless reasonable notice is given of such revocation, the principal must make good the damage resulting to the agent.'
In the case of M/s. Business Computing International (Pvt.) Ltd. (supra), Sabihuddin Ahmed, C.J., whilst holding that making of substantial investments in the business of agency would not make the agency irrevocable, observed that, `It is difficult to see how an agent can tie down his principal into an eternal bond by making some investments when a partner contributing a major part of the capital of a firm and tying down his assets cannot do so. His Lordship further Held that even if there has been a premature or illegal termination of the contract of agency, it can be compensated in money terms. It would not be just and equitable to force a relationship upon the defendant who might have to incur further financial liabilities on account of the same, and dismissed the injunction application.
In Huma Enterprises and 3 others v. S. Pir Ali Shah and others (1985 CLC 1522), where the dealership/sales agreement was terminated by the principal purportedly acting in terms of the agreement, under which at the most three months' notice was required to be given. It was held that even if such notice was not given, at the most the plaintiff firm could claim damages from the defendants and that by seeking declaration and permanent injunction, the plaintiff was in fact seeking specific performance of the dealership/sales agreement which agreement was not an agreement which could be got specifically enforced through the Court and that if at all there was unlawful termination of the sales/dealership agreement, the plaintiff firm could have only asked for damages.
The plaintiff's apprehension that since in pursuance of the agreement they have entered into several contracts with third parties, the termination of the agency, at this stage, would lend them into multifarious litigation is wholly un-founded and based on misconception as Clause 4 of the agreement clearly stipulates that in the event of termination of the agency the contracts already made by the plaintiff with third parties on behalf of the plaintiff and in respect of all contracts that are on the books on the date of such termination of the agreement, the parties shall perform the duties and observe the covenant to be performed and absolved by them respectively, and therefore, the defendants even in the case of termination of the agency would be bound to perform their obligations in terms of such agreement provided the same have been entered into with the consent of the defendant and in conformity with the various provisions of the agreement in question.
In view of the foregoing, I allow the petition and direct the defendants to file the original arbitration agreement in Court within three days from today. The case will be put up for further orders in this behalf on 10-11-2006. The injunction application is dismissed.
(R.A.) Order accordingly
PLJ 2007 Karachi 221 (DB)
Present: Mushir Alam and Maqbool Baqar, JJ.
SHEHRI C.B.E.--Petitioner
versus
GOVERNMENT OF PAKISTAN and others--Respondents
Const. P. No. D-455 of 2005, decided on 25.10.2006.
Pakistan Environmental Protection Act, 1997 (XXXIV of 1997)--
----S. 12--Pakistan Environmental Protection Agency (Revenue of IEE and EIA) Regulations, 2000, Regln. 10--Principles--Connotation--Establishment of project not only for power generation but also for desalination of a massive quantity of seawater every day--Essential--Plant cannot be classified--Power generation plant--Ignoring its attributes of a desalination plant--Desalination plant can be classified Treatment plant--Treatment' means and includes a desalination plant, not only in the common usage of the term, but a desalination plant would clearly fall within the classification `treatment plant.
[Pp. 231, 233 & 234] A, D & E
2005 CLC 424;
Pakistan Environmental Protection Act, 1997 (XXXIV of 1997)--
----S. 12 & Preamble--Pakistan Environmental Agency (Revenue of IEE and EIA), Regulations,. 2000, Regln. 10--Term `treatment plant' cannot be given a restrictive meaning--Scope--Pakistan Environmental Protection Act, 1997, as declared in its preamble has been promulgated to provide for the protection, conservation, rehabilitation and improvement of the environment and for the prevention and control of pollution and promotion of sustainable development and for matters connected therewith and incidental thereto. [P. 232] B
Pakistan Environmental Protection Act, 1997 (XXXIV of 1997)--
----Ss. 5, 6, 8, 11, 12, 13, 16 & 17--Environmental protection--Object, purpose and applicability of Ss.5, 6, 8, 11, 12, 13, 16 & 17 of Act, 1997.
[P. 233] C
Pakistan Environmental Protection Act, 1997 (XXXIV of 1997)--
----S. 12--Pakistan
Environmental Agency (Revenue of IEE and EIA), Regulations, 2000, Reglns. 11, 10, 3 & 9--Establishment of a desalination plant--Implications--Desalination plant' falls in the category of atreatment plant'--Desalination plant--Appropriate mitigating measures are employed and adequate monitoring is implemental, and effective corrective measures are suggested and implemented after thorough assessment and evaluation of the project as required under S. 12, Pakistan Environmental Protection Act, 1997, may impair or damage the environment and therefore, in the context of Pakistan
Environmental Protection Act, 1997 also a desalination plant cannot be deemed to be a plant not falling into the category of a treatment plant. [Pp. 235 & 236] F, G, H & I
Pakistan Environmental Protection Act, 1997 (XXXIV of 1997)--
----S. 12--Establishment of Environmental Tribunals--High Court directed the Government of Pakistan to establish Environmental Tribunals as required in terms of. S.12, Pakistan Environmental Protection Act, 1997 at the earliest and preferably within two months from the date of the present judgment, so that, the issues such as raised in the present case may be decided expeditiously. [P. 237] J
Mr. Abdur Rehman and Rizwana Ismail, Advocates for Petitioner.
Mr. Makhdoom Ali Khan, Attorney-General and Dr. M. Usman, Advocates for Respondents Nos. 1 and 5.
Mr. Abbas Ali, A.A.-G. for Respondents Nos. 3 and 4.
Mr. Sohail H.K. Rana, Advocate for Respondent No.6.
Mr. Mahmood Mandviwala, Advocate for Respondent No. 7.
Date of hearing 25.10.2006.
Judgment
Maqbool Baqar, J.--The petitioner, through the instant petition, has challenged the decision of the Sindh Environmental Protection Agency, the Respondent No. 4, on the basis of Initial Environmental Examination (IEE), according its approval for the construction and operation of a Ninety four (94) Megawat (MW) natural gas fired power plant and three million (MGD) desalination plant on Plot No. DSL-1, along 80 feet wide Coastal Avenue, Phase VIII, Defence Housing Society, Karachi.
The aforesaid plant is being established by DHA Cogen Limited, the Respondent No. 7, a company formed by Defence Officers Housing Authority, the Respondent No. 5. In compliance of Section 12 of Pakistan Environmental Protection Act, 1997, (PEPA, 1997), Respondent No. 7, filed with the Sindh Environmental Protection Agency, the Respondent No. 4, an Environmental Impact Assessment (EIA), report (page 77 of the file). As required by Regulation 10 of Pakistan Environmental Protection Agency (Revenue of IEE and EIA) Regulations, 2000, (IEE and EIA Regulations) Respondent No. 4, through a notice published in the daily 'DAWN' of 19th December, 2004, requested all those interested to offer their written comments in respect of the EIA, within 30 days of that notice and notified 20th January, 2005 for public hearing in the matter, at its office in Karachi (page 75 of the file). In response, the petitioner, after obtaining a copy of the EIA from Respondent No. 4, filed its comments/objections to the said assessment on 15-1-2005 (Page 437 of the file). Since 20-1-2005 was declared a public holiday on account of Eid-ut-Azha the scheduled meeting could not be held, and according to the petitioner, upon inquiry they were informed by an official of the agency that the postponed meeting/hearing will be held sometime in February 2005, however, since no date was forthcoming, the petitioner, through letter dated 31-1-2005, inquired from Respondent No. 4 about the date of hearing, but there was no response, the petitioner on 12.3.2005 sent a reminder to Respondent No. 4, however, the same also remained un-responded. Subsequently the petitioner was informed by Respondent No. 4 that since Respondent No. 7 has approached the Respondent No. 4 and contended that the project did not require an EIA, as it fell in the category of the project that require only an initial Environmental Examination (IEE), the Respondent No. 4, after seeking advice from Pakistan Environmental Protection Agency, the Respondent No. 2, who upheld the contention of the Respondent No. 7, approved the project accordingly.
Mr. Abdur Rehman, the learned counsel for the petitioner, submitted that the Respondent No. 4, by approving the project on the basis of IEE instead of EIA, and without a public hearing, have acted contrary to the mandate of law. He submitted that the impugned decision is violative of the provisions of Sections 11 and 12 of PEPA, 1997 and regulation 10 of the IEE and EIA Regulations. The learned counsel submitted that in terms of Section 12 of `PEPA 1997' no proponent of a project which is likely to cause an adverse environmental effect is permitted to commence construction or operation of such project, unless he has filed with the relevant Government Agency (in the present case the Respondent No. 4), an EIA, whereas Regulation 4 of IEE and EIA Regulations, requires a proponent of a project falling in any category listed in schedule II of the said regulation, to file an EIA, and has made the provisions of Section 12 PEPA essentially applicable to such project. The learned counsel submitted that realizing the fact that since the project in question also comprises of a three (3) million gallons per day (MGD), sea water desalination plant, and 132 KV transmission line and a grid station are its integral parts, and is being constructed on a public beach, in close proximity to prime residential are of DHA, it clearly falls into categories. A.3, F and I, of schedule II, and in acknowledgement of the above, the Respondent No. 7, being the proponent of the project, submitted the EIA before Respondent No. 4, who in compliance of sub-section 3 of Section 12 of PEPA, 1997 and regulation 10 of IEE and EIA Regulation, through a public notice invited comments and notified a date for public hearing. He contended that in view of the foregoing and as required, in terms of Clause (b) of sub-section (2) of Section 12 PEPA 1997, it was incumbent upon Respondent No. 4 to have reviewed the EIA before according its approval, which review, in terms of sub-section (3) of Section 12, PEPA 1997, was essentially required to be carried out with the public participation. Mr. Rehman contended that Respondent No. 4, by purportedly approving the project on the basis of IEE, instead of EIA and by refusing to hold the public meeting have not only violated the provisions of Section 12 and regulation 10 of IEE and EIA Regulation, but the impugned decision is also violative of Article 9 of the Constitution and is against the principles of natural justice. He further submitted that the impugned approval/permission also violates the mandate of Section 11 of PEPA 1997, which provision prohibits discharge or emission of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the National Environmental Quality Standards (NEQS). The learned counsel submitted that the project site is in close, proximity to public recreation area and, just three (3) kilometers from mangroves of Creek club and residential areas, including a high-rise complex, and will have adverse Environmental effects by emissions from the co-generation and desalination, including particular matter, Nox and Cox discharges, and shall also result in disposal of liquid effluents from the gas turbine and desalination plants into the sea, including brine concentrate. Oxygen-deficient water, Biocides, chlorine, other chemicals, toxic metals, sealants and anti-foaming agents, as detailed in the petition. He submitted that out of the total intake of the seawater ninety per cent (90%) will be returned to the sea, in the form of brine, at 15 degree centigrade higher than the normal temperature. To substantiate his claim, the learned counsel referred to the technical feasibility study report submitted by Respondent No. 7 to NEPRA in respect of the project, which contains the above fact (at page 349 of the file) and contended that the above noted discharge and rise in temperature will adversely affect the marine life.
According to the learned counsel, the take over of the beach, which is a public property, for industrial use would deprive the citizens of Karachi of their right of un-fattered access to the beach. He submitted that right to life as guaranteed by Article 9, which includes entitlement to enjoy a good quality of life with amenities, facilities, clean and unpolluted environment, shall be severely impaired by the construction of the project in question and would thus result in violation of the mandate of the Constitution, and cause environmental degradation through non-observance of environmental laws. He submitted that the project is being constructed on a large tracts of land reclaimed from seawater, and claimed that such reclamation, disturbing the natural course of seawater, is only allowed for the purpose of construction of ports, harbours, jetties, wharves, quays, bridges and other such facilities and is not permissible for the purpose of setting up cogent/desalination plants. He submitted that the government holds title to the lands under the seawater. It is a title held in Trust for the people that they may enjoy the navigation of the waters, carry on commerce over them and have liberty of fishing therein, free from the obstruction or interference of private parties, and the abdication of the general control of the Government over lands under navigable waters is not consistent with the exercise of that trust which requires the Government to preserve such waters for the use of the public. He submitted that the doctrine of public Trust as guaranteed under Article 9 of the Constitution prevents the Government, or any public body, from compromising the rights of the people in respect of such lands, but is being compromised by setting up the project in question. In support of his contention counsel referred to the case of Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited and others 2005 CLC 424, wherein S. Ali Aslam Jafri, J (as he then was), held as follows:--
"24. It is well-settled that natural resources like air, sea waters, and forests are like Public Trust. The said resources being a gift of nature, they should be made freely available to every one irrespective of the status Doctrine of Public Trust' as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Even under the Islamic law certain water resources are to be protected from misuse and over exploitation. (Reference can be made to a discussion at page 37 of the bookEnvironmental Dimensions of
Islam' by M. IZZI DIEN."
Mr. Rehman also relied on Illinois Central R. Co. v. Illinois, 146 US 387 (1872), the case has been aptly summarized and discussed in an other case titled Appleby v. City of New York 271 U.S. 364 (1926) in the following words:--
"In Illinois Central R. Co. case, the validity of a grant by the Illinois Legislature to the Illinois Central Railroad Company of more than 1,000 acres in the harbour of Chicago in Lake Michigan was under consideration. It was more than three times the area of the outer harbour, and not only included all that harbour, but embraced the adjoining submerged lands which would in all probability be thereafter included in the harbour. It was held that it was not conceivable that a Legislature would divest the state of this absolutely in the interest of a private corporation, that it was a gross perversion of the trust over the property under which it was held, an abdication of sovereign governmental power, and that a grant of such right was invalid. The limitations on the doctrine were stated by Mr. Justice Field, who delivered the opinion, as follows, at page 452 (13 S Ct. 118): `The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purpose the Slate may grant parcels of the submerged land; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters, that any afford foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power, consistently with the trust to the public upon which such lands are held by the State. But that is a very different doctrine form the one which would sanction the abdication of the general control of the State over lands under the navigable waters of an entire harbour or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public. The trust devolving upon the State for the public; and which can only be discharged by the management and control of property in which the public has an interest cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only be observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled."
The above case is of no avail to the petitioner as the project land has been reclaimed along with the sea shore and as mentioned in the site plan is only ten (10) acres in measurement. It may be relevant to mentioned here that Navigable waters have been held to include the high seas, which begin at a line three miles offshore, reliance in this regard is placed on Reynolds v. Ingalls Shipbuilding Div. v. Litton Systems Incorporation C.A. Miss, 788 F 2d. 264, 268.
He submitted that the impugned order has been passed without informing the petitioner, regarding the fate of their objection or as to why the objections were not accepted or even considered. He submitted that the impugned decision is arbitrary and capricious and is contrary to the principles of structuring discretionary power and submitted that in terms of Section 24-A of the General Clauses Act, 1897, the agency was required to have exercise its power reasonably, fairly, justly and for the advancement and in the interest of preservation of environment, and ought to have passed a reasoned order.
On the other hand, Mr. Makhdoom Ali Khan, the learned Attorney General, who appeared for Respondent No. 5 also, submitted that in the first place, the project in question does not fall into any category enlisted in Schedule-II of the IEE and EIA Regulations, according to him, the classification of a project is based on its main activity, which in the present case, is power generation of a capacity of 94 mega watts, and desalination is a bye-product which is aimed at using heat energy generated from the power generation to make the project environmental friendly, and therefore it would not be appropriate to classify the project as a desalination plant and secondly, even if it is so classified, the project will still not fall within the definition of a treatment plant the removes waste. Regarding the transmission line and the grid station, the learned Attorney General submitted that the construction of the transmission line and grid station is not a part of the project and the power generated from the plant will be supplied to Karachi Electric Supply Corporation (KESC), at the inter-connecting point located at the site of the project and the construction of any connecting transmission line and grid station is a job to be undertaken by KESC, who shall own, and operate them, and as such, compliance with the legal requirements in respect thereto shall be made by KESC. He further submitted that since the project does not fall into any of the categories, enumerated in schedule-II, the Respondent No. 4 was not required either to treat the project, as that requiring an EIA, or to grant any hearing to the petitioner. He submitted that the petitioners have failed to correctly appreciate the nature of the project and the petition has been filed merely on the basis of `prima facie apprehensions' which are wholly un-founded. He submitted that the various apprehensions expressed by the petitioner regarding environmental degradation in their petition and reiterated by Mr. Rehman have been duly addressed through the counter affidavits filed by Respondents Nos.5 and 7. The learned counsel submitted that contrary to the petitioner's assertions, the project is being constructed at sea shore and at least five kilometers away from the closest public beach, known as sea view, and four to five kilometers away from the closest human settlement. There is no public recreation spot near the project site. He submitted that neither PEPA, 1997 nor any other environmental law prohibits construction of the project on the sea shore. There is no creek or estuary or mangroves in the vicinity of the project site. He submitted that contrary to the petitioner's claim, the construction of the project does not give rise to any genuine environmental concerns but is actually being constructed for the benefit of the people. However, the petitioner has failed to appreciate the nature of the project and its utility for the citizens of Karachi who suffer from short supply of drinking water and do not have un-interrupted access to electricity. The water consumed by a large number of the citizens of Karachi is the carrier of many water borne diseases such as hepatitis, gastroenteritis, typhoid, cholera, dysentery etc. The Respondent No. 5 as a responsible body, committed towards development of the area within its jurisdiction and in order to improve the lives of the residents of the area, and to provide to them the basis necessities of life, has, along with Respondent No. 7, undertaken the project. As regards, air emissions, he submitted that since only natural gas, which is universally accepted as the safest fuel available, will be used as fuel for power generation, the emission of CO will remain within the limiting values of NEQs and further use of low NOX burners associated with oxygen normalization and efficient combustion controls, as required in terms of the impugned order, will keep, the emissions of NOX within the limits of NEQs. The learned counsel pointed out that in terms of the impugned approval, Respondent No. 7 is essentially required to comply with the NEQs for industrial waste water and air emissions from the project, and to submit to Respondent No. 4, a quarterly report for the priority parameters of air emissions (CO, NOX). He further pointed out that monitoring of ambient air quality at the plant boundary and 500 meter radius shall be conducted on monthly basis for CO and NOX parameters during operation of the plant in order to observe incremental impact of the plant and the results shall be annexed with the quarterly monitoring reports, and that the impugned permission also requires that the brine generated from the desalination plant shall be discharged into the sea at an optimum design distance without addition of any chemical/pollutant so that it is diluted and total dissolve solid (TDS) contents in the particular area of the sea is not increased to any extent and that the below down of the power plant should be monitored before its disposal into the sea. The learned Attorney General submitted that contrary to the petitioners claim, none of the effluents as listed in the petition will be discharged from the desalination process, and thus the petitioner's purported concern regarding discharge of effluents is wholly un-founded. In addition to the above, the project will comprise a system to remove oxygen deficiency from the discharged water and the only chemical that will be used in the desalination process is an anti-sealant, Altreat 400, which is environmentally safe and has been certified as suitable for drinking water application and no effluents will, therefore be generated from this activity whereas the power plant has been designed with virtually zero below down and thus no effluents will be discharged from power generation activity also. Mr. Khan submitted that an undertaking may be recorded by this Court on behalf of the Respondents Nos.5 and 7 that the temperatures of residual seawater discharged into the sea will not go beyond 40 degree centigrade and that the discharge of brine shall not raise the salt level in the seawater. He submitted that the discharge water will pass through' a well designed and well constructed open channel significantly reducing the temperature to a level below that prescribed by the NEQs and will not result in a temperature increase of more than 3. Centigrade which is NEQ complaint.
The learned counsel further submitted that the seawater intake system has been designed to ensure that no fish of any size is entrained in this intake water channel. He pointed out that Respondent No. 7 has engaged the services of M/s. Aplha Laval and Siemens, who have substantial experience, and very high calibre experts to handle such projects world-wide and submitted that similar plants built in Turkey, UAE and Saudi Arabia have been found to be environmental friendly. Mr. Khan argued that in interpreting the provisions of the PEPA, 1997 and the fundamental rights as guaranteed by the Constitution, a balance must be found between the right to a healthy environment and the right to sustainable development, both of which are implicit in the right to life and it is also essential to maintain a balance between industrialization and ecology, an imaginary necessity to preserve the environment must not hamper real development. Development and environmental protection must progress together, indeed genuine as opposed to imaginary, environmental concerns must be given due weight in the construction of projects, but hypothetical and exaggerated environmental issues cannot be allowed to be raised to trump progress. He submitted that Respondent No. 4 has granted approval of the project only after review and scrutiny of the environment assessment and after having been satisfied with the mitigating measures to be adopted by the Respondent No. 7, the approval has been granted subject to observance of certain stringent conditions by Respondent No. 7 during the life of the project.
Regarding Mr. Rehman's contention that reclamation of land from the sea is not permissible for the purpose of establishing power generation and desalination plants as is being done in the present case, the learned Attorney General submitted that neither PEPA, 1997 nor any other law prohibits construction of the project on a land reclaimed from the seawater. He further submitted that the project is currently in the advanced stages of completion 90% of equipment, has been installed the remaining 10% of the equipment has already been shipped and is expected to reach Karachi within weeks, about 400 skilled workers, including international experts are working on the project. He submitted that any delay in the completion or commissioning of the project would prejudice not only the Respondents Nos.5 and 7 and other who are concerned with the project, but the delay would also severely affect the residents of DHA.
Concluding his argument, Mr. Khan submitted that the allegations made by the petitioner raise complicated and complex questions of facts which cannot be disposed of without recording evidence, the instant petition is therefore not maintainable, is liable to be dismissed.
Mr. Abbas Ali, the learned Additional Advocate General and Mr. Mahmood Mandviwala for Respondent No. 7 adopted the arguments of the learned Attorney General.
Heard the learned counsel and perused the record of the case.
The project in question, as can be seen from the EIA submitted by Respondent No. 7, comprises of a combine cycle power plant' of 94
MW power production capacity and a three (3) million imperial gallon per day
(MIGPD), desalination plant, being constructed on Plot No. DSL-1, Phase-VIII, Defence Housing Authority, and just about fifty (50) meter, away from the
Arabian Sea at a cost of 106.0 million US Dollars. In terms of Section 12 of
PEPA, 1997, an essential pre-requisite for establishing and operating a project, which is likely to cause an adverse environmental effect, is to file with the relevant environmental protection agency, an EIA, and the construction of such project can only commence, and the project can be put into operation only after the same has been approved by the said agency, after its evaluation on the basis of the EIA, whereas, in terms of sub-section (3) of Section 12 of PEPA, 1997, it is mandatory that review of an EIA be carried out with public participation. Regulation 4 of the IEE and EIA, Regulations, require a proponent of a project falling in any category listed in Schedule-II of the regulation, to file an EIA, the regulation also prescribes that Section 12 of
PEPA, 1997 shall apply to such project, Schedule-II of the IEE and EIA Regulations, containing a list of projects requiring and EIA, enlists, at Sr. F,water supply schemes and treatment plants of a total costs of Rs.25 million and above'. It is an admitted position that Respondent No. 7 as a proponent of the project in question has submitted an EIA with Respondent No. 4, who in turn through a notice published in the Daily `DAWN' of 19-12-2004, invited comments from the public, to be submitted within 30 days of the notice and fixed 20th
January, 2005, for public hearing on the comments. The notice was published to fulfil the requirement of sub-section (3) of Section 12 PEPA 1997 and
Regulation 10 of IEE and EIA Regulations. However, subsequently, the Respondent
No. 4, at the request of Respondent No. 7, and on the advice of Respondent No.
2 treated the project as falling in the category of projects enlisted in
Schedule I, and dispensed with the public hearings.
As per the petitioners, since the project comprises not only of a power generation plant of 94 MW capacity, which falls into a category of the projects enlisted in Schedule I, but also comprises of a desalination plant, which falls within the meaning of a treatment plant, enlisted at Sr. F of Schedule-II, and in addition to the above, since the project also involves construction of transmission lines of 132 KW and a grid station, it also falls into category listed at A of Schedule-II, "transmission lines (11 KV and above) and grid stations".
Regarding the above contentions, Mr. Makhdoom Ali Khan, submitted that since in the first place, the classification of a project is based on it, main activity, which in the present case, is power generation, and desalination is a bye-product; which is aimed at using heat energy generated from power generation to make the project environmental friendly, it would not be appropriate to classify the project as a desalination plant, and secondly, even if the project is so classified it would not fall within the definition of treatment plants.
We have, however, not been able to persuade ourselves to agree to the above submission for the reason that Respondent No. 7 has itself described the project as combined cycle power generation plant and 3 MIGPD, desalination plant', and rightly so as the project is obviously being established not only for power generation but also for desalination of a massive quantity of seawater everyday, and therefore cannot be classified as a power generation plant only, ignoring its attributes of a desalination plant.
As regards the controversy as to whether or not a desalination plant could be classified as a treatment plant, we may observe that the term treatment' means and include a desalination plant, not only in the common usage of the term, but as can be seen from the' following extracts from some authentic discussion, on the subject, a desalination plant would clearly fall within the classificationTreatment plant.
With reference to Treatment plants, the word `treatment' has been described by the New Encyclopaedia. Britannica (15th Edition), in the following words:-
`The term treatment may refer to a variety of processes, including long-period storage, aeration, coagulation, sedimentation, softening, filtration, disinfection, and other, physical and chemical processes. Water-treatment works include, different processes in varying combinations, (Emphasis supplied), depending primarily on the characteristics of the water source but also on intended use.'
Desalination process has been described by S. Mithra on the website `wiseGEEK' in the following words:--
`The desalination removes salt and other particulates from seawater, brackish water, and recovered wastewater, making it potable. It further says that through distillation and reverse osmosis, water treatment plants can remove most of the salt and impurities from saline water, providing a clean and ingestible, supply.'
O.K. Burros in his book, titled `The ABCs of Desalting', published by the International Desalination Association, Topsfield, Massachusetts, USA and sponsored by Saline Water Conversion Corporation (SWCC) describes desalting as a treatment process (Emphasis supplied). He says that desalting refers to a water treatment process (Emphasis supplied) that removes salts from water.
It is an elementary principle of interpretation that the words of a statute are first understood in their natural, ordinary or popular sense, and phrases ad sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. Equally recognized rule of interpretation of statutes is that expression used therein should ordinarily be understood in a sense in which they best harmonize with the object of the statute, and which effectuate the object of the Legislature.
In the context of the PEPA, 1997 and the relevant regulations also, the term `treatment plant' cannot be given a restrictive meaning so as to artificially exclude desalination plant from its meaning and scope. PEPA, 1997; as declared in its preamble has been promulgated to provide for the protection, conservation, rehabilitation and improvement of the environment and for the prevention and control of pollution and promotion of sustainable development and for matters connected therewith and incidental thereto.
As required in terms of Section 5 of PEPA, 1997, Respondent No. 2, the Pakistan Environmental Protection Agency, has been established by the Federal Government to exercise the powers and perform the functions assigned to it under the PEPA, 1997 and rules and regulations made thereunder. Similarly, in terms of Section 8 of the Act, Provincial Environmental Protection Agencies, have also been established to enforce PEPA, 1997. The Federal Agency in terms of Section 5(2) is headed by a Director-General and in terms of sub-section (3) is to be manned among others by technical staff, amongst the various functions of the agency as enumerated in Section 6 are to administer and implement the Act and the rules and regulations made, take all necessary measures for the implementation of the National Environmental policies, prepare and publish an annual National Environmental report on the state of the environment, and ensure enforcement of the National Environmental Quality Standards (NEQs), establish standards for the quality of the ambient air, water and land, and to establish system and procedures for surveys, surveillance, monitoring, measurement, examination, investigation, research, inspection and audit, to prevent and control pollution, and to estimate the costs of cleaning up pollution and rehabilitating the environment in various sectors, and to take or cause to be taken all necessary measures for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution and promotion of sustainable development. The agency may also undertake inquiries or investigation into environmental issues, either of its own accord or upon complaint from any person or organization. Section 11 of the Act provides that, subject to the provisions of the Act and the rules and regulations, no person shall discharge or emit or allow the discharge or emission of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the NEQs or, where applicable, the standards established under sub-Clause (I) of Clause (g) of sub-section (1) of Section 6. Under Section 16, the Environmental Protection Agencies may pass an environmental protection order, requiring the person responsible for the discharge or emission of any effluent, waste, air pollutant or noise, or the disposal of waste, or any other act or omission, likely to occur or which may have occurred, or which may be occurring, in violation of the provisions of the Act, to take such measures that the Federal or Provincial agency may consider necessary. Section 17 of the Act provides that whoever contravenes or fails to comply with the various provisions of the Act, including Sections 11 and 12, 13 or Section 16 or any order issued thereunder shall be punishable with fine which may extend to one million rupees, and for various other punitive actions as prescribed therein.
California Coastal Commission report on seawater desalination in California, in Chapter 3, dealing with potential environmental impact/coastal act issues states that all desalination plants use chlorine or other biocides, which are hazardous to marine resources. The report enumerates the following types of potentially adverse constituents and qualities generally discharged from desalination plants:--
`Salt concentrations above those of receiving waters (seawater salt concentration is about 35,000 ppm; desalination plants discharge brine with 46,000 to 80,000 ppm). Salt concentrations may be reduced by mixing desalination plant discharges with other discharges, such as wastewater--
-- temperatures above those of receiving waters (about 5 F increase at the point of discharge) for discharge) for discharges from distillation plants; (Source; Baum, 1991)
-- turbidity levels above those of receiving waters; Oxygen levels below those of receiving waters from deacration to reduce corrosion (distillation plants only)'
-- chemicals from pretreatment of the feedwater (these may include biocides, sulfur dioxide, coagulants (e.g., fcrri chloride), carbon dioxide, polycleclrolytcs, anti-sealants (e.g.. polyacrylic acid), sodium bisulfite, antifoam agents, and polymers);
-- chemicals used in flushing the pipelines and cleaning the memberances in RO plants (these may include sodium compounds, hydrochloric acid, citric acid, alkalines, polyphosphate, biocides, copper sulfate, and acrolein);
-- chemicals used to preserve the RO membranes (e.g., propylene glycol, glycerine, or sodium bisulfite);
-- organics and metals that are contained in the feedwater and concentrated in the desalination process; and
-- metals that are picked up by the brine in contact with plant components and pipelines.
Einav R, Harussi K, and Perry D., in their article,' The Footprint of the Desalination Process on the environment'. Desalination 152 (2002) pg 141-154 state that the process of desalination is also accompanied by adverse environmental effects and that these effects can be minimized by the appropriate planning. Most of the effects anticipated would then affect the local environment in the vicinity of the desalination plants. Desalination may have an impact on five domains: the use of the land, the groundwater, the marine environment, noise pollution, and finally the intensified use of energy. The impact on the marine environment takes place mainly in the vicinity of the concentrated brine discharge pipe. Even though the concentrated brine contains natural marine ingredients, its high specific weight causes to sink to the seal floor, without prior mixing. In addition, chemicals, which are administered to the water in the pre-treatment stages of the desalination process, may harm the marine life in the vicinity of the pipe's outlet. The actual placement of the discharge pipe may also damage sensitive marine communities. The articles extensively discuss the various aspects to the impact of desalination plant; on the environment.
It can thus be seen that desalination plant, unless appropriate mitigating measures are employed and adequate monitoring is implemented, and effective corrective measures are suggested and implemented after thorough assessment and evaluation of the project as required under Section 12 of PEPA Act, may impair or damage the environment and therefore, in the context of the Act also a desalination plant cannot be deemed to be a plant not falling into the category of a treatment plant.
As regards the transmission line, it can be seen, from the power purchase agreement between the KESC and Respondent No. 7, that though a transmission line between the project complex and KESC, grid station is agreed to be designed and constructed by KESC at its own expense, however, the second transmission line between the complex and one of the proposed grid stations in Phase-VIII shall be laid by the Respondent No. 7 at its own costs. It cannot, therefore, be said that Respondent No. 7 is not a proponent thereof.
From the foregoing discussion, it has now become clear that the project being composed of a desalination plant also, which plant clearly falls within the classification of a treatment plant, mentioned at Sr. F of Schedule II, is amenable to the various requirements as provided for under Section 12 of PEPA, 1997 and Regulations 3 and 10 of IEE and EIA Regulations, the project ought to have been evaluated on the basis of EIA and after hearing the petitioner who have submitted their comments, however, violating the mandate of law Respondent No. 4, on the request of Respondent No. 7 and on the advise/instructions of Respondent No. 2, treated the project as one falling under schedule I and approved the same. No justification or reason for such arbitrary and whimsical treatment are mentioned in the impugned order or the impugned advise. The Respondent No. 4 did not even inform the petitioner as to why their comments were not taken into consideration and why it was not felt necessary to hear them.
Environmental Impact Assessment as described in PEPA, 1997, involves an environmental study, comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations, and such other components as may be prescribed. In terms of Regulation 11, in evaluating a project, the agency is required to consult such committee of experts as may be constituted for the purpose and may also solicit, views of the sectoral Advisory Committee, and the Director-General may constitute a committee to inspect the site of the project and submit its report on such matters as may be specified and that the review shall be based on quantitative and qualitative assessment of the documents and the data furnished by the proponent, comments from the public and Government Agencies received under Regulation 10, and views of the committees. In terms of Regulation 9, the agency may also require the proponent of the project to submit such additional information as may be specified or may return the IEE or EIA to the proponent for revision, clearly listing the points requiring further study and discussions. It can thus be seen that the assessment involves an in-depth examination and incisive inquiry and cannot be dealt in a perfunctory, arbitrary and whimsical manner.
Indeed, as rightly submitted by the Attorney General, it is essential to maintain a balance between Industrialization and ecology and that development and environmental protection must progress together. It is in consonance with the above that PEPA, 1997 has been enacted and enforced and thus it mandate should be honoured in its true letter and spirit.
We are also fully conscious of the fact that the decision on the various allegations made and apprehension expressed by the petitioner regarding the environmental fall out of the project and refuted by Respondents Nos.5 and 7, would require an evaluation which may involve questions pertaining to the design, planning, equipments and various other technical aspect of the project, the processes involved, and many other such issues, which exercise can only be undertaken by Respondent No. 4.
In view of the foregoing the impugned decision is set aside, the matter is remanded back to Respondent No. 4, for evaluation of the project on the basis of the EIA submitted by Respondent No. 7, after detailed scrutiny of the report and after hearing the petitioners, the Respondent No. 4, shall decide the matter, preferably within 30 days from the date of receiving a copy of this order, and the petitioners shall fully co-operate with the Respondent No. 4, in its endeavour for an early disposal. However, keeping in view the fact that the project is being built to provide to a sizeable population, the basic amenities of life and is in the advance stage of its completion, involving about 400 workers. We would allow the Respondent No. 7 to continue the construction and erection of the project in consonance with their undertaking recorded in the earlier part of this judgment and strictly in compliance with the conditions imposed by Respondent No. 4, and at their risk as to cost and consequence and subject to the decision/orders that may be passed by Respondent No. 4 but with a caution that Respondent No. 4 shall decide the matter strictly on merits, in conformity with law, and without being influenced by this interim arrangement. The project shall not be put into operation till the decision by Respondent No. 4.
Before parting, we find it necessary to direct Respondent No. 1 to establish Environmental Tribunals as required in terms of Section 12 of PEPA, 1997, at the earliest and preferably within two months from today, so that, the issues such as raised in the present petition may be decided expeditiously.
The petition along with the pending applications stands disposed off in the foregoing terms.
(R.A.) Order accordingly
PLJ 2007 Karachi 237
Present: Khilji Arif Hussain, J.
SABA JAMIL and 3 others--Plaintiffs
versus
Mst. SULTANA WILAYAT and 4 others--Defendants
Suit No. 334 of 2001, decided on 27.3.2007.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Civil Procedure Code (V of 1908), O.XX, Rr. 13 & 18--Suit for partition and administration--Disputed property was purchased by the deceased in, his name--No point of time till the demise of the deceased owner, late husband was the owner of the property in-question--Statement of deceased owner allegedly relinquishing his right in the property in favour of late husband of the defendant admittedly purchased the property after selling his two properties in another city, in his own name, and till his death he used the property as owner--Late husband was the real owner of the property and (deceased owner) was benamidar owner--Acknowledgement of expenses incurred by him in development of the property he became owner of the same on the declaration of the deceased relinquishing his right in the property--Validity--Held: Section 52 Transfer of Property Act, required that right in case of tangible immovable property of the value of Rs.100 or more could be transferred only by a registered instrument--Value of property, in-question admittedly was more than Rs.100 and deceased had not transferred his right in the property in-question by executing registered instrument in this regard--Right in a property could be relinquished by a party if the deceased was owner of the property then the plea of defendant that deceased was the ostensible owner of the property and the real owner of the property was defendant's late husband would fall to ground--Some amount had been contributed by deceased which was his moral and legal obligation to help his father and family members to have better environment and accommodation, the same could not make the defendant husband as owner of the property--High Court, decreed the suit as prayed and final decree for sale of the property was ordered to be prepared, as properly could not be partitioned according to respective shares of the parties--Official Assignee was also directed to sell the property by inviting public offers--Parties, however, could participate in the auction to be held by Official Assignee/Receiver. [Pp. 242 & 243] A, B, D & E
2001 SCMR 1700; 1999 CLC 454; 1991 MLD 1182; 1999 CLC 404 and PLD 1982 SC 465 ref.
Benami Transaction--
----The word `Benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents--In it signifies a transaction which is real, "Benami" is also occasionally used, perhaps not quite accurately, to refer to a sham transaction--Fundamental difference between these two classes of transactions is that whereas in the former case there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none and the transferor continues to retain the title notwithstanding the execution of the transfer deed--"Benami transaction" it is necessary that property must have been purchased by the person from his own money, for his own benefit, and he exercises right of ownership from the date of purchase of property as his own in the name of benami. [P. 243] C
Mr. Yawar Farooqui, Advocate for Plaintiffs.
Mr. Kanwar Majid, Advocate for Defendants.
Date of hearing: 9.2.2007.
Judgment
Plaintiff filed suit for partition and administration of property Bearing No. B-63, Block 13-D1, Gulshan-e-Iqbal, Karachi.
Brief facts for the purpose of deciding the listed suit are that late Wilayat Hussain son of late Abdul Sattar, grandfather of Plaintiffs Nos. 2 to 5 and father-in-law of Plaintiff No. 1 died on 26-1-1993 leaving behind at the time of his death two sons namely Dr. Athar and Anwar. Plaintiff No. 1's husband Dr. Muhammad Athar later died on 27-1-1996 in Saudi Arabia whereas other son, husband, of Defendant No. 1, namely Anwar also died on 26-1-1997. The Defendant No. 1, widow of late Wilayat Hussain also died during pendency of the suit. Defendant No. 2 is the widow and Defendants Nos. 3 to 5 are sons and daughter of late Anwar. Property Bearing No. B-63, Block 13-D1, Gulshan-e-Iqbal, Karachi stand in the name of the deceased Wilayat Hussain at the time of his death and according to the plaintiff form parts of the estate left by the deceased and present suit has been filed to administer/partition/and or sale of the state of the deceased Wilayat Hussain.
Defendants Nos. 1 to 5 filed joint written statement and stated that late Wilayat Hussain was the real owner of the property in question as according to them he was ostensible owner and real owner was late Anwar, husband of Defendant No. 2. It was stated in the written statement that property in question was neither purchased nor completed by the exclusive resources of deceased Wilayat Hussain in his life time. In 1982 incomplete structure of the property in question was purchased by the deceased Wilayat Hussain for a total consideration of Rs. 4,05,000 out of which deceased Wilayat Hussain contributed
Rs. 2,00,000 after selling his property situated at Lahore and the remaining amount of Rs. 2,05,000 was contributed by the late husband of Defendant No. 2. Incomplete structure was completed from the funds of late Anwar Kamal.
On 22-4-2002 preliminary decree was passed and parties were directed to appear before the Nazir to carry out the inquiry as envisaged under Order XX, Rule 13, C.P.C. The parties were allowed to file affidavit in evidence of their respective witnesses with an advance copy supplied to the other side. On 1-7-2004 instead of Nazir, Official Assignee was appointed as Receiver and he conducted further proceedings in the matter in terms of order dated 22-4-2002.
An application, C.M.A. No. 4234/04, was filed by the defendants for framing of issues as regard ostensible ownership of late Wilayat Hussain and Anwar Kamal being real owner. The said application was dismissed on 24-3-2005 with an observation that in case defendants were able to demonstrate that subject property does not form part of the estate of the deceased such property shall be excluded while passing final decree.
Heard Mr. Yawar Farooqui, learned counsel for the plaintiffs, and Mr. Kanwar Majid, learned counsel for the defendants.
Mr. Yawar Farooqui learned Advocate for the plaintiff argued that the property in question, at the time of death of the deceased Wilayat Hussain, was in the name of late Wilayat Hussain as such formed part of the estate of the deceased and plaintiffs are entitled for their share which they inherited from late husband of the Plaintiff No. 1.
On the other hand, Mr. Kanwar Majid, learned counsel for the defendant, vehemently argued that the deceased Wilayat Hussain purchased property in question in the year 1982 in an incomplete shape and out of total sale consideration of Rs. 4,05,000 he paid a sum of
Rs. 2,00,000 after selling his property at Lahore and remaining amount of Rs. 2,50,000 was paid by the late husband of Defendant No. 2 who was employed in a shipping company and was drawing a handsome salary from there. Mr. Kanwar Majid, learned counsel for the defendants, argued that at the time when property was purchased deceased husband of Plaintiff No. 1 was studying in Allama Iqbal Medical College at Lahore. It was contended by the learned counsel for the defendants that incomplete structure was gradually completed, from the exclusive resources of the deceased husband of Defendant No. 2 and in support of his contention he relied upon letters addressed by late Wilayat Hussain Exhs.DW.21 and DW.3/22. It was contended by the learned advocate for the defendants that late Wilayat Hussain in the presence of his wife, defendants and other members of the family declared that late husband of Defendant No. 2 Anwar Kamal contributed major portion of the amount and he relinquished his right in the property whatsoever in favour of Anwar Kamal who would be the real owner of the deceased. It was urther stated that though Defendant No. 1 after filing affidavit-in-evidence has not appeared in the witness-box and died before cross-examination but the affidavit-in-evidence can be looked into. Learned advocate in support of his contention relied upon the cases of Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700, Sakhi Muhammad v. Muhammad Nazir Bashir 1999 CLC 454, Mst. Anwar Begum and 7 others v. Syed Muhammad Siddique and others 1991 MLD 182, M/s. Master Sons v. M/s. Ebrahim Enterprises and others 1999 CLC 404, Allah Din v. Habib PLD 1982 SC 465.
I have taken into consideration respective arguments advanced by the learned advocates for the parties, perused the record. It is not disputed by any one of the parties that the property in question at the time of demise of Wilayat Hussain was in his name. The case of the defendant is that late Wilayat Hussain purchased the property in the year 1982 after disposing of his property at Lahore for a total sale consideration of Rs. 4,05,000 out of which Rs. 2,05,000 was contributed by the deceased husband of Defendant No. 2 and further considerable amount was contributed by him for the purpose of construction and renovation of the property in question. According to the learned advocate for the defendants in all a sum of Rs.6,00,000 was spent/contributed by the deceased husband of the Defendant No. 2 on the property in question and real owner of the property is late Anwar Kamal son of deceased Wilayat Hussain. Defendant No. 1 though not appeared in witness-box for the purpose of cross-examination without going into the question that such evidence cannot be looked into in her affidavit in evidence while narrating the facts hereinabove stated that the property was purchased by the late husband of the Defendant No. 1 and some amount was contributed by late Anwar Kamal son of deceased Wilayat Hussain for the purpose of renovation etc., further stated that on 26-8-1988 on the 4th anniversary of grandson, the deceased acknowledged financial contribution of his elder son in presence of the family members and had declared that he had relinquished his right in the suit property in favour of Anwar Kamal and called him as real owner. Syed Muhammad Shakeel also filed his affidavit in evidence in which he stated that late Wilayat Hussain relinquished his right in the property in favour of Anwar Kamal and called him as real owner and himself to be ostensible owner asked Anwar Kamal to get the property transferred in his name as required by law.
From the said two affidavits-in-evidence at best one can say that deceased Wilayat Hussain at the best on 26-8-1988 made statement in presence of some family members that the deceased Anwar Kamal has contributed some amount towards construction/purchase of the property in question and he had relinquished his right in the property in question and asked Anwar Kamal to get the property transferred in his name.
The Defendant No. 2 in her affidavit-in-evidence narrated same facts referred hereinabove.
Agreement of Sale Exh.DW3 has been placed on record from which it appears that property in question was purchased for a total sale consideration of Rs. 4,05,000 on 25-4-1982 out of which a sum of Rs.55,000 was paid at the time of agreement and balance amount of Rs.3,50,000 was to be paid at the time of registration of sale-deed. The deceased as required under Rule 3(l)(a) of Government Servants (Conduct) Rules, 1964 submitted a statement in the year 1982-83, 1984,85 about his assets in which he declared value of the property in question as Rs. 2,50,000 and purchased by him by selling two properties at Lahore in consideration of Rs.2,38,000. Admittedly, late Wilayat Hussain died on 26-1-1993 and even if it is accepted as alleged by the defendants that at the time of anniversary of his grandson late Wilayat Hussain declared that he relinquished all his rights in the property in favour of Anwar Kamal and called him as real owner and asked him to get the property transferred in his name, no evidence has been placed on record that after announcement, allegedly made, the deceased late husband of Defendant No. 2 thereafter used the property as exclusive owner of the same. The Defendant No. 2 during his cross-examination stated that issue of the house was only raised on the birthday and not discussed subsequently. From the facts narrated hereinabove it appears that property in question remained in the name of the deceased till his death nor it was accepted that Anwar Kamal accepted the relinquishment of right by Wilayat Hussain and any step was taken right from August 1985 till death of Wilayat Hussain in 1993 for the transfer of the property in the name of Anwar Kamal. From the facts narrated hereinabove it appears:--
(i) That the property in question was purchased by the deceased in his name.
(ii) That the late husband of Defendant No. 2 had contributed some amount for the purpose of construction of the property in question.
(iii) That at no point of time till the demise of Wilayat Hussain late Anwar Kamal alleged that he is the owner of the property in question, even after alleged statement of deceased allegedly relinquishing his right in the property in favour of Anwar Kamal.
(iv) Admittedly, deceased purchased the property after selling his two properties at Lahore, in his own name, and till death used the property as owner.
Section 52 of the Transfer of Property Act required that right in case of tangible immovable property of the value of Rs.100 can be transferred only by a registered instrument. Admittedly value of the property is more than Rs.100 and deceased has not transferred his right in the property in question by executing registered instrument in this regard.
Is it the case of the defendant that late husband of Defendant No. 2 was the real owner of the property and his father was benamidar owner or is it the case of the defendants that due to expenses incurred in the development of the property he became owner of the same or that in acknowledgement of expenses incurred by him in development of the property he became owner of the same on the declaration of the deceased relinquishing his right in the property?
A right in property can be relinquished by a party if party has ^ that right and if deceased was owner of the property then the plea of Defendant No. 2 that the deceased was the ostensible owner of the property and the real owner of the property was late Anwar Kamal comes to ground.
The word `Benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for sample, when A sells properties to B but in the sale-deed mentions "X" as the purchaser. Here the sale itself is genuine but the real purchaser is B, "X" being his Benamidar. This is the class of transaction which is usually termed as Benami. But the word "Benami" is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former case there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none and the transferor continued to retain the title notwithstanding the execution of the transfer deed.
To constitute a transaction as "benami transaction" it is necessary that property must have been purchased by the person from his own money, for his own benefit, and he exercises right of ownership from the date of purchase of property as his own in the name of benami/ostensible owner.
It is not the case of the defendants that late husband of the Defendant No. 2 that the property was purchased by late husband of Defendant No. 2 for himself and benami in the name of the deceased Wilayat Hussain and for all practicable purposes right from the date of purchase of the property it was known to deceased that real owner of the property is deceased Anwar Kamal and he is only benamidar. It was also not the case of the defendant that from the date of purchase of the property till the death of the deceased Wilayat Hussain, late husband of Defendant No. 2 ever exercised his right as real owner of the property in question. Merely because some amount has been contributed by the late husband of Defendant No. 2 being the son of late Wilayat Hussain, which in my humble view was his moral and legal obligation to help his father and family members to have better environment and accommodation, the same cannot make deceased Anwar Kamal as owner of the property.
For foregoing reasons, suit is decreed as prayed and final decree for sale of the property be prepared, as property cannot be partitioned according to respective shares of the parties. Official Assignee who is Receiver of the property, is directed to sell the property by inviting public offers. The parties can participate in the auction to be held by the Official Assignee/Receiver. Various case laws relied upon by the learned advocate for the defendants; however, in view of the above, need not to be discussed in detail and are not relevant for the purpose of deciding the issue in the suit.
(R.A.) Suit decreed
PLJ 2007 Karachi 244
Present: Nadeem Azhar Siddiqi, J.
GHULAM SARWAR and others--Petitioners
versus
PROVINCE OF SINDH, REVENUE DEPARTMENT through Deputy Commissioner, Shikarpur and 2 others--Respondents
Civil Revision No. 136 of 1994, heard on 23.8.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Principles--Questions of fact--Limitation--Court though has power to reject the plaint without any application under O.VII, R. 11, C.P.C.--While rejecting the plaint under O.VII, R. 11, C.P.C. the controversial question of facts cannot be resolved and for that purpose the parties are entitled to lead evidence in support of their respective claims. [P. 248] B
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Rejection of plaint--Duty of Court to examine the plaint and reject the same suo motu. [P. 248] A
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Rejection of plaint--Factual controversy--Contents of the plaint are to be taken as true on its face value while rejecting the plaint--Plaintiffs had claimed that they were the legal heirs of the deceased who expired issueless and was actual owner of the land--Such being a factual controversy could not be decided summarily without allowing the parties to lead their evidence; question of limitation also being a mixed question of law and facts, issues could be framed in that regard and rejection of plaint was unwarranted--Judgments passed by Courts were set aside and the case was remanded to trial Court for deciding the same in accordance with law after framing the issues and after giving due opportunity to the parties to lead their evidence in support of their cases.
[P. 248] C, E & F
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Scope--Plaintiffs had clearly pleaded that cause of action had accrued to them on 8-10-1991 which had to be thrashed out after the evidence whether in fact the cause of action had accrued to the plaintiffs on that day or before that day--Trial Court was not justified in giving the findings that the knowledge of brother in a certain transaction of property definitely could be presumed to be the knowledge of his brother and his family members--Findings of trial Court being based on presumption and not on the basis of material available on record were liable to be set aside. [P. 248] D
Mr. A. M. Mobeen Khan, Advocate for Applicants.
Mr. G.D. Shahani, Addl. A.G. for Respondent Nos. 2 and 3.
Mr. Abdul Fattah Malik, Advocate for Respondent No. 3.
Date of hearing: 23.8.2006.
Judgment
Applicants have challenged the judgment dated 4-8-1994 passed by the learned III Additional District Judge, Shikarpur affirming the rejection of the plaint in first Class, Suit No. 189 of 1991 filed by the applicants/plaintiffs.
In short the facts as pleaded in the suit are that agricultural land measuring 66-31 acres situated in Deh Soomrani Taluka Lakhi District Shikarpur was originally belonged to Mehmood Ahmed and others who agreed to sell and Applicant No. 5 Zafar Ali and Muhammad Hassan Soomro agreed to purchase the said land in the sum of Rs.73,452 in equal share of 50 paisa each. Both the purchasers paid an amount of Rs.36,500 as earnest money by contributing equal amount towards the sale price and the balance was agreed to be paid at the time of execution of sale-deed. The sale-deed was registered on 27-1-1975 on receipt of balance consideration from the purchasers Zafar Ali and Muhammad Hassan Soomro. The sale-deed was however, executed in the name of Zafar Ali and his two brothers having 50 paisa shares in the land while the sale of remaining 50 paisas share was shown in the name of the Respondent No. 3 Irfan Atta. The revenue record was mutated accordingly. In the suit land to the extent of 50 paisa share in Survey No. 133 as shown in para. No. 1 of the plaint which was transferred in the name of Respondent No. 3 was the subject matter of the suit. It was pleaded in the plaint that Muhammad Hassan Soomro was the actual owner and was in possession and enjoyment till he died in January 1987 and the Defendant No. 3/Respondent No. 3 was a Benamidar in whose name the suit land was purchased by Muhammad Hassan Soomro.
It was further pleaded in the suit that the said Muhammad Hassan Soomro was real uncle of Applicants Nos. 1 to 9 and the real brother of Applicant No. 10 and he was unmarried and after his death the suit land was devolved into the appellants being surviving legal heirs of Muhammad Hassan and are entitled to inherit the same in equal share.
The Defendant No. 3/Respondent No. 3 has moved an application for partition of the suit land and the Respondent No. 2 issued notice to Applicant No. 1 and is bent upon to partition the land. It was further pleaded in the plaint that the Respondent No. 3 has denied the right and title of the applicants on the portion of the suit land, hence the suit was filed. It has been pleaded that the cause of action has been accrued to the applicants on 8-10-1991 when the applicants requested the Respondents Nos.2 and 3 from interfering with the possession and enjoyment of the suit land.
Along with the plaint an application under Order No. XXXIX, Rules 1 and 2, C.P.C. was filed by the applicants to which the Respondents Nos. 1 and 2 have filed their objections.
The Respondent No. 3 have filed an application under Order XXXIX, Rule 1 read with Section 151, C.P.C. praying therein for the appointment of a receiver in respect of the suit land. The plaintiffs/applicants filed counter affidavit to the said application.
The learned trial Court has heard both these applications together and by order dated 17-9-1992 dismissed the injunction application and rejected the plaint and no order has been passed on an application for appointment of a receiver. The learned trial Court has mainly rejected the plaint after considering the following grounds:--
(a) That the applicants/plaintiffs are not legal representatives of deceased Muhammad Hassan Soomro nor he has left any immovable property, thus the applicants/plaintiffs have no locus standi to file the suit.
(b) The applicants/plaintiffs have failed to prove the ingredients of benami transaction.
(c) The suit is time barred.
(d) The suit is under valued and insufficiently stamped.
The order was challenged by way of appeal before the District Judge, Shikarpur, who transferred the said appeal to learned IIIrd Additional District Judge, Shikarpur, who had dismissed the Appeal vide Judgment dated 4-8-1994.
Learned Appellate Court has held that admittedly Muhammad Hassan Soomro had not left any property hence its question of distribution into his legal heirs does not arise. Moreover the appellants have not established themselves to be the legal representatives of late Muhammad Hassan Soomro as required by law hence the appellants have no cause of action or locus standi to file the present suit. Although their suit is properly valued and stamped but is hopelessly time-barred.
The learned counsel for the applicants has contended that the learned Courts below have gone into factual controversy while rejecting the plaint under Order VII, Rule 11, C.P.C. He further submits that both the Courts below have assumed the jurisdiction which was not vested under them. He further submits that the controversy involved in the suit cannot be decided summarily without giving opportunity to the parties to prove their respective claims over the suit land. Regarding locus standi to file the suit and Benami transaction learned counsel for the applicants has pointed out that the applicants/plaintiffs have claimed that they are legal heirs of deceased Muhammad Hassan who was actual owner of the suit land and the Respondent No. 3 is only a Benamidar and this controversy cannot be decided without proper evidence, regarding limitation in filing the suit, he submits that it has been shown in the plaint that cause of action was accrued to the plaintiffs on 8-10-1991 within the period of limitation prescribed in Article 120 of the Limitation Act. Regarding undervalued he submits that on this ground the plaint cannot be rejected without first giving an opportunity to the applicants/plaintiffs to correct the value of the Suit and to pay the requisite Court-fees. He further submits that the Appellate Court has accepted that the suit was properly valued and stamped, therefore, he will not make any further submissions in this regard.
Learned counsel for the Respondent No. 3 Mr. Abdul Fattah Malik, has submitted that both the judgments have been passed properly after considering the pleadings of the parties. He further submits that admittedly the Respondent No. 3 is a recorded owner of the land and at the time of death of deceased Muhammad Hassan Soomro has not left any immovable property, which can be inherited by the applicants/plaintiffs, regarding Benami transaction he submits that deceased Muhammad Hassan Soomro during his life time had never claimed this property as his property and therefore even if the applicants/plaintiffs are his legal heirs they are not entitled to claim the suit land. He further submits that the suit was admittedly time-barred as the land was purchased sometimes in the year 1975 and the suit was filed in the year 1991 beyond the period prescribed by law and the plaint was rightly rejected. As far as the valuation of the suit is concerned he frankly conceded that the plaint cannot be rejected unless opportunity is afforded to the applicants/plaintiffs to correct the value and pay the Court-fees and further states that since the learned Appellate Court has held that the suit was properly valued he is not pressing this ground.
Learned Addl. A.-G. has submitted that this is a private dispute between the applicants and the Respondent No. 3, the official defendants have nothing to do with the dispute and they will abide by the decision whatever is passed by this Court. He further submits that the Respondent No. 2 under the law is authorized to effect the partition in respect of the agricultural land and according to their record of right the Respondent No. 3 is the owner of the suit land and such proceedings are pending before the Respondent No. 2.
I have heard learned counsel for the parties and perused the record made available before me.
No doubt the Court has the power to reject the plaint without any application under Order VII, Rule 11, C.P.C. it is the duty of every Court to examine the plaint and reject the plaint Suo Motu if the plaint comes within the mischief of Order VII, Rule 11, C.P.C.
It is now well-settled law that while rejecting the plaint under Order VII, Rule 11, C.P.C. the controversial question of facts cannot be resolved and for that purpose the parties are entitled to lead evidence in support of their respective claims. It is also well-settled law that while rejecting the plaint under Order VII, Rule 11, C.P.C. the contents of the plaint is to be taken as true on its face value. In the plaint the applicants/plaintiffs have claimed that they are the legal heirs of the deceased Muhammad Hassan Soomro who expired issueless and was actual owner of the suit land, this indeed a factual controversy and cannot be decided summarily without allowing the parties to lead their evidence. As far as the limitation is concerned it was held in number of cases that the question of limitation is a mixed question of law and facts and issue can be framed in this regard and rejection of the plaint is unwarranted.
In this case the plaintiff has clearly pleaded that the cause of action accrued to them on 8-10-1991 and this has to be thrashed out after the evidence whether in fact the cause of action was accrued to the plaintiff/applicants on that day or before that day. The learned trial Court was not justified in giving the finding that the knowledge of a brother in a certain transaction of property definitely can be presumed to be the knowledge of his brother and his family members. From this finding it is clear that the findings are based on presumption and not on the basis of material available on record.
In view of the above I am satisfied that both the learned Courts below have assumed their jurisdiction which was not vested in them and have wrongly rejected the plaint without giving opportunity to the parties to prove their cases by way of leading the evidence.
In view of the above discussion the judgments passed by the trial Court as well as Appellate Court are set aside and the case is remanded to the trial Court for deciding it in accordance with law after framing of the issues and after giving due opportunity to the parties to lead their evidence in support of their cases.
Since the suit pertains to the year 1991 learned trial Court is directed to proceed with the suit expeditiously without allowing unnecessary adjournments to the parties and will conclude the trial within next six months and report compliance to this Court through Additional Registrar.
(R.A.) Case remanded
PLJ 2007 Karachi 249 (DB)
Present: Nadeem Azhar Siddiqi and Munib Ahmad Khan, JJ.
IQBAL AHMAD and others--Petitioners
versus
GOVERNMENT OF SINDH through Secretary, Home Department, Karachi and others--Respondents
Const. P. Nos. D-94, D-97, D-99, D-101, D-102 and D-103 of 2007, decided on 30.3.2007.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Question of laches--Petitioners applied for the post of ASI--Cleared written test and interview/viva voco--Merit list was kept secret--Determination--Question of laches in petitions is always considered in the light of conduct of the person invoking the constitutional jurisdiction of High Court. [P. 252] C
Constitution of Pakistan, 1973--
----Art. 199--Applications were invited for appointment--Cleared written test, interview/viva voco--Merit list was kept secret--Entitlement for appointment--Question--Determination--Petitioners have cleared all tests but they have failed to produce any documents to show that they have cleared interview/viva voco and have been recommended for appointment and in absence of any proof in this regard they are not entitled for appointment. [P. 252] D
Constitution of Pakistan, 1973--
----Art. 199--Questin of laches--Equitable relief--Discretionary relief--Principle--Applications were invited for appointment--Cleared written test/interview and viva voco--Merit list was kept secret--Question of laches is to be examined on equitable principle for the reason that discretionary relief in exercise of Constitutional jurisdiction is always granted in the name of equitable relief, if equity leans in favour of petitioner the discretion is to be exercised in their favour. [P. 253] E
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Cause for enforcement of right--Premise of laches--Guilty of--Applications were invited for appointment--Cleared written test/interview and viva voco--Merit list was kept secret--Assailed--If Courts come to conclusion that equity leans in favour of such party--However, if Court find that party invoking writ jurisdiction of High Court is guilty of contumacious, lethargy, inaction, laxity or gross negligence in prosecution of a cause for enforcement of right, the Court would be justified in non-suiting such person on premise of laches. [P. 253] F
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Civil servant--Appointment--Cleared written test/interview and viva voco--Merit list was kept secret--Contention--Laps--Abandonment of right--No justification their 12 years long silence notwithstanding the fact--Requirement of job--Petitioners have themselves created a situation of abandonment of their right--Petitioners are guilty of contumacious lethargy, inaction, laxity and gross negligence in prosecution of a cause for enforcement of their rights--Petitiones were not diligent in safeguarding their interest and by their lapse a right has been created in favour of respondent and other persons who were appointed in place of petitioners and at such stage after lapse of twelve years it will not be in the interest of justice to direct the respondents to appoint the petitioners on the basis of advertisement as direction will hamper the working of the respondent--Held: No case for appointment has been made out--Petitions dismissed. [Pp. 253 & 254] G
Laches--
----Applied for post of A.S.I--Cleared written test as well as interview/viva voco--List was kept secret--Laches--Petitions were filed after about 12 year from the date of advertisement--Abandoned their right--Facts--Validity--Laches alone is not sufficient to dismiss the petitions if the petitioners have a good case on merits. [P. 252] A
Limitation--
----Bar of--Element of due diligence--In absence of a bar of limitation, the period within which such remedy is to be sought is to be reasonable one and element of due diligence is to be kept in mind--Held: Delay should never be such as to generate a belief or situation of abandonment of the right, because then vested rights come into operation and cannot be deviated from. [P. 252] B
Mr. Ali Azhar Tunio, Advocate for Petitioners (in C.Ps. Nos. D-94/2007, 99/2007 and 103/2007).
Mr. Aftab Ahmed Gorar, Advocate for Petitioner (in C.Ps. Nos. D-97/2007 and 101/2007).
Mr. Muhammad Saleed Jassar, Advocate for Petitioner (In C.P. No. D-102/ 2007).
Date of hearing: 30.3.2007.
Order
Nadeem Azhar Siddiqi, J.--In all the above petitions common question is involved as all the petitioners have prayed that they may be appointed as A.S.I, in Sindh Police.
The facts necessary for disposal of above petitions are that Deputy Inspector General of Police Larkana invited applicants for appointment of constables and Assistant Sub-Inspector vide advertisement published in daily `Jung' Karachi dated 4-5-1995. All the petitioners have applied for the post of A.S.-I. and have cleared physical test and were asked to appear in written test. All the petitioners have claimed that they have also cleared the written test as well as interview/viva voco and their names appeared in the final merits list but the said list was kept secret and persons of choice have been appointed ignoring the merit list.
Mr. Ali Azhar Tunio submits that the petitioners were ignored and the appointments were made in violation of the Police Rules, 1934 and the persons who were not qualified were appointed. He further submits that the petitioners were discriminated.
Mr. Aftab Ahmed Gorar, advocate submits that the persons who were appointed were not qualified and were appointed against the merit list and the appointments of those who were not qualified, is against the specific provisions of the Constitution.
Mr. Muhammad Saleem Jessar states that the appointments were made contrary to law and rules and the respondents have acted malafidely and without lawful authority in appointing those who names were not appearing in the merit list.
The learned counsel for the petitioners is C.P. No. 102/2007 has relied upon the following reported cases:--
(1) Government of Sindh v. Abdul Jabbar 2004 SCMR 639.
(2) S.A. Jameel v. Secretary Government of Punjab 2005 SCMR 126.
A question was put to the learned counsel regarding the long delay in filing the petitioners. The learned counsel for the petitioners state that number of petitions were filed which were allowed by the learned Benches of Sukkur Bench and Larkana Circuit and the order were upheld by the Hon'ble Supreme Court. They also submit that since the petitioners were approaching the different authorities and they kept them on hopes the laches will not be applicable. Mr. Ali Azhar Tunio also submit that the judgment of the D.Bs are binding and for taking contrary view the matter has to be referred to larger Bench.
We have heard the learned counsel for the parties and perused the record made available before us.
The advertisements for appointments were made in 1995. The last date for filing of application was 14-5-1995. The dates for physical test were from 16-5-1995 to 25-5-1995, the date for written test was 28.5.1995 and the dates for oral test were 5-6-1995 to 7-6-1995. All the petitioners claimed that they have cleared the written test and were called for interview/viva voco and have also cleared the interview/viva voce. In support of their claim they failed to produce any document. In the petitions the petitioners have stated that they were approaching various authorities but they were kept on hopes. The petitioners have failed to produce any documentary evidence to show that they have continuously approaching the authorities for their appointment and at no point of time have abandoned their right. These petitions are filed after about 12 years from the date of advertisement. We are conscious of the fact that laches alone is not sufficient to dismiss the petitions if the petitioners have otherwise a good case on merits. In absence of a bar of limitation, the period within which such remedy is to be sought is to be reasonable one and element of due diligence is to be kept in mind. The important fact is that delay should never be such as to generate a belief or situation of abandonment of the right because, then, vested rights come into operation and cannot be deviated from. Question of laches in petitions is always considered in the light of conduct of the person invoking the constitutional jurisdiction of High Court. The petitioners have to explain the reasons for not approaching the Court within reasonable time and in absence of any cogent explanation, the interference can be refused on the ground of laches.
The petitioners have stated that they have cleared all tests but have failed to produce any documents to show that they have cleared interview/viva voce and have been recommended for appointment and in absence of any proof in this regard they are not entitled for appointments. The other question is that the appointments were to be made in the year 1995 from amongst the persons who were aged between 18 to 28 years. If the ages of petitioners were treated as 18 years in 1995 after lapse of 12 years all of them have crossed the upper limit of 28 years and are not eligible for appointment.
We have examined the reported case in C.P. No. D-273 of 1999 authored by Mr. Justice Zahid Kurban Alavi (as he then was) and found that question of laches was not urged. The petition was mainly decided in favour of the petitioners on the ground that the respondents failed to produce the merit list and by drawing adverse presumption in terms of Article 129(g) of Qanun-e-Shahadat, 1984 the petition was allowed. In other petitions filed before Larkana Circuit, the petitions were allowed by a Bench in which one of us namely Nadeem Azhar Siddiqi, J was a member. It was held that since merit list was not produced, legitimate legal presumption under Article 129(g) of Qanun-e-Shahadat would be that respondents are withholding the list and had it been produced the same would have been unfavourable to them. Regarding laches it was held that Question of laches is to be examined on equitable principle for the reason that a discretionary relief in exercise of constitutional jurisdiction is always granted in the name of equitable relief, if equity leans in favour of petitioner the discretion is to be exercised in their favour. In the case reported as Government of Sindh v. Abdul Jabbar (supra) it was held that the petitioners were recommended by the Selection Committee, however, because of political pressure some other persons were appointed. This is not the case in hand. Neither the petitioners have claimed that they were recommended by the Selection Board nor any proof to this effect has been produced. In the reported case of S.A. Jameel (supra) it was held that if Courts come to the conclusion that equity leans in favour of petitioner, the Courts should exercise discretion in favour of such party. However, if the Courts find that party invoking writ jurisdiction of the High Court is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution of a cause for enforcement of right, the Court would be justified in non-suiting such person on the premise of laches. The question of laches was considered by the Hon'ble Supreme Court in its various pronouncement. In the case of Masooda Begum v. Government of Punjab PLD 2003 SC 90, the Hon'ble Supreme Court has held that the laches operate in equity and in case of laches, the dictates of justice and equity are to be weighed as the legitimate rights cannot be denied on the ground of laches unless it is found that it will cause injustice to the opposite party but, a person can be non-suited on the basis of laches if due to his negligence, rights were created in favour of opposite party. In this case all the petitioners alleged that they have fulfilled all the requirements of appointment in 1995 but they remain silent till 2007 the date of filing of the petition. The petitioners have failed to offer any explanation and justify their 12 years' long silence notwithstanding the fact that age factor is one of the requirement of the job. The petitioners have themselves created a situation of abandonment of their right. Further more the petitioners are guilty of contumacious lethargy, inaction, laxity and gross negligence in the prosecution of a cause for enforcement of their rights. From the fact of the case, it is also apparent that the petitioners were not diligent in safeguarding their interest and by their lapse a right has been created in favour of the respondents and the other persons who were appointed in place of petitioners (who are not before us) and at this stage after lapse of twelve years it will not be in the interest of justice to direct the respondents to appoint the petitioners on the basis of advertisement published in the year 1995 as the direction will hamper the working of the respondents. On merits, also we find that no case for appointment has been made out as the petitioners have failed to establish that they have cleared the interview/viva voce examination and were recommended for appointment of A.S.I.
As regards the contention of the learned counsel for the petitioners that the D.B. judgment is binding upon another D.B. is concerned, in fact there is no cavil with this settled principles of law. The question is whether we are deviating from the view of earlier decisions. In our view, we are not deviating from the earlier view in not condoning the laches as the petitioners due to their own conduct have not justified their long silence and inaction on their part. All the petitioners have claimed that they were approaching the authorities from time to time but no correspondence/document has been placed on record except in C.P. No. D-94/2007 one letter dated 14-11-1996 addressed to D.I.G. Larkana, has been produced which is not sufficient to condone the long delay.
By short order dated 20-3-2007, we have dismissed the petitions and above are the reasons of the short orders.
(R.A.) Petitions dismissed
PLJ 2007 Karachi 254
Present: Nadeem Azhar Siddiqi, J
IMAM BUX and others--Applicants
versus
DAIM and others--Respondents
C.R. No. 108 of 1988, heard on 18.8.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XIII, Rr. 1 & 4--Original postal receipts and acknowledgment--Not produced in evidence and exhibited--Evidentiary value--Non-production of documents according to provisions of C.P.C.--Irregularity--No doubt the documents have not been produced in Court as provided under O. XIIII, R. 4 of C.P.C.--Nothing in law to prevent Court from looking into such documents even if they were not exhibited, provided they have been placed on record by party concerned--Court not considering original documents available on record would commit an error. [P. 257] A & B
PLD 1961 (W.P.) BJ 96 rel.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 106--Notice--Necessity--Such notice would be necessary, when other party claims himself to be tenant. [P. 258] C
Pakistan Administration of Evacuee Property Act, 1957 (XII of 1957)--
----S. 16(a)--Decree of civil Court would be necessary to seek protection under S. 16(a) Act, 1957. [P. 258] D
Transfer of Property Act, 1882 (IV of 1882)--
----S. 54--Agreement to sell--Entitlement--Validity--Such agreement would not create any title or vested right in favour of vendee.
[P. 258] E
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R.17 & O. VIII, R.9--Plea not raised in written statement--Raised in amended written statement without leave of Court--Validity--Defendant could not change or alter plea raised in original written statement--New plea raised without permission of Court could not be considered and would be ignored. [P. 258] F
Syed Bahadur Ali Shah, Advocate for Applicants.
Nemo for Respondents.
Date of hearing: 18.8.2006.
Order
The applicants have challenged the judgment and decree dated 1-9-1988 and 10-9-1988 passed by District Judge Shikarpur in Appeal No. 21 of 1987 setting aside the judgment and decree passed by Joint Civil Judge Shikarpur in S. No. 19 of 1978 filed by the applicants.
The facts in short are that applicants filed S. No. 69 of 1970 renumbered as 1987 in respect of premises bearing C.S. No. A/80 situated at Bagerji, Taluka Sukkur which was purchased by him from Settlement authorities in open Katchahri. The applicants served notice upon the respondents claiming arrears of rent and vacation of premises.
The respondents filed written statement claiming that the property belongs to respondents, no notice under Section 106 of Transfer of Property Act was served and all the legal heirs of deceased were not made party to the proceedings.
The respondents have filed amended written statement and have set up a new defence by pleading that the property was originally belonged to Hindu Panjan Mal and the deceased Muhammad Azim purchased the same from above named Hindu through sale deed dated 3-11-1946 which was confirmed on 20-4-1965 by Deputy Custodian Evacuee Property Sukkur and since then the deceased was in possession as its owner.
The trial Court has decreed the suit vide judgment dated 2.6.1987 which was challenged by the respondents in Appeal No. 21 of 1987 which was allowed vide judgment dated 1-9-1988 hence the revision.
The learned counsel for the applicants has contended that the learned Appellate Court has allowed the appeal only on the paint of non-serving of notice under Section 106 of Transfer of Property Act, which findings are contrary to the evidence available on record. The learned counsel has pointed out from the judgment of the trial Court dated 18.10.1981 regarding serving of notice under Section 106 of Transfer of Property Act which reads as under:--
"The plaintiffs have produced copy of the notice and so also acknowledgment receipts and postal receipts. It is correctly addressed and properly posted. All these documents prove beyond doubt, that the notice was served upon the defendants. Moreover the assertions made by the plaintiffs in this respect in their examination-in-chiefs, stand unchallenged, as such these facts stand proved and admitted. There is nothing in rebuttal. The contents of this notice clearly proves that, it was for delivery of possession and recovery of rental dues. I hold that, the notice was served upon the defendants."
The above judgment was set aside by the High Court in C.P. No. D-21/85 and the case was remanded to the trial Court. I have perused the judgment of the appellate Court and found that the learned appellate Court has not touched the merits of the case and has only taken into consideration non-service of notice under Section 106 of the Transfer of Property Act. I have gone through the R&P of Suit No. 19 of 1978. In his evidence the applicant has not produced, the postal receipt and acknowledgment receipt however he has produced the copy of the notice which was produced under objection as the same was not signed by the advocate or his client. However, while going thorough the R&P I have found that original postal receipt and original acknowledgments were available on record of lower Court at Page Nos. 383 to 387. The applicants have also filed the certified copy of such receipts which are available in the file of this Court. The learned appellate Court has committed an error by not considering the documents which are available on record in original. No doubt the documents have not been produced in Court as provided under Order XIII, Rule 4, C.P.C. There is nothing in law to prevent the Court from looking into the documents even if they are not exhibited, provided they have been placed on record by the parties concerned. Non-production of documents according to provisions of C.P.C. is merely an irregularity. In the reproduced case of Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 (W.P.) BJ 96. It was held that documents are not exhibited but having placed on record by the plaintiff herself, are admissible in evidence and can be looked into.
Further more the learned appellate Court has also failed to take into consideration that service of the notice of the suit upon the respondents may be treated as notice for vacation of the premises. The notice under Section 106 is necessary when the respondents claim themselves to be the tenants. The respondents are not admitting themselves to be tenants but they also claim title of the property on the basis of alleged agreement to sale and confirmation of sale by Deputy Custodian Evacuee Properties Sukkur. Section 16(a) of Pakistan (Administration of Evacuee Property) Act (XII of 1957) provides as under--
"16 (1) -----------------------
(2) -----------------------
(3) -----------------------
(a) prevent a Civil Court from ordering specific performance of any agreement to sell or exchange immovable evacuee property where such agreement has been approved by the Custodian, or a Registering Officer from registering a deed of sale or exchange relating to such property where a certificate under Section 20 has been granted by the Custodian."
From the above provisions it is clear that the decree of a civil Court is necessary to seek protection. In this regard it is pertinent to point out that the respondents are claiming title of the property on the basis of an un-registered agreement. It is well-established principle of law that the sale agreement do not create any title or vested right in favour of the vendee. Further more this ground was not taken in the earlier written statement and was taken in the amended written statement without the permission of the Court. The respondents cannot change or alter the plea raised in the original written statement and if without permission of the Court some new pleas were raised the same cannot be considered and the same has to be ignored. In case the plea raised by the respondents is discarded they have no other defence and have also no justification to remain in possession of the property. The up shot of the above discussion is that the learned appellate Court has failed to exercise the jurisdiction vested under him properly and has committed an error of law by setting aside the judgment of the trial Court only on the basis of non-service of notice under Section 106 of the Transfer of Property Act. The judgment of the appellate Court is therefore, set aside and the revision application is allowed and the judgment and decree passed by the trial Court is upheld.
(R.A.) Revision accepted
PLJ 2007 Karachi 258 (DB)
Present: Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ.
REX TALKIES (PVT.) LTD. and another--Appellants
versus
SAMIR OOSMAN and 2 others--Respondents
C.M.As. Nos. 1607, 1641, 1749 of 2006 in High Court Appeal No. 122 of 1997, decided on 4.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 19, O. IX, R. 9, Ss. 107 & 151--Dismissal of appeal for non-prosecution--Application for restoration of appeal--Assailed--Interlocutory order remained pending for a period of almost nine years--Implementation of the action proposed in the impugned order was successfully avoided by the appellants--Proceedings of the case--Chequered history and salient features of the case were sufficient to demonstrate--No satisfactory explanation had been offered by the appellants absence of senior counsel pleaded by the appellants to seek recall of order of dismissal of appeal for non-prosecution, was just a pretext and misuse of senior counsel's name--Even when the senior counsel, was one of the counsel for the appellants the other counsel engaged by the appellants was bound to proceed with the appeal till such time he withdrew his power or it was revoked/cancelled by his client--When the appeal was dismissed for non-prosecution no plausible explanation was offered by the counsel for not proceeding with the appeal, and even after passing of such order till this date, he had not come forward to explain his position in this regard--Held: Conduct of counsel for not proceeding with the appeal on the date of its dismissal for non-prosecution, was deliberate and without any sufficient cause, therefore, it disentitled the appellants for any indulgence or lenient view in the matter--If appellants had suffered any loss due to such conduct of the counsel, option was available to them to sue the counsel for the damages, which they might have suffered due to such conduct of their counsel--When the appellants had engaged more than one counsel, then each of his counsel was bound to represent him, and failure of one of the counsel to appear in Court, even if explained, would not justify an order of restoration--Mere engagement of counsel by a party would not absolve him of his personal obligation to pursue the case vigilantly--Satisfactory explanation was to be offered both by the appellants and their counsel for seeking restoration of appeal--Law favoured adjudication of cases on merits rather than on technicalities, thus as far as possible, of course looking to "the facts and circumstances of each case, this should be the approach of all judicial forums--Nevertheless Court, in the exercise of discretion in this regard was required to be fair with the rival parties and to have rational balance in its approach in a way that no party should be allowed to misuse the indulgence or concession shown by the Court so as to make the whole system an abuse of process of law--Application for restoration of appeal was dismissed. [Pp. 265, 266, 267, 268 & 269] A, B, C, D, E & F
PLD 1963 SC 382; 1994 SCMR 1948; 2003 SCMR 1940, and 1974 SCMR 162 fol.
PLD 1966 SC 467; PLD 1965 SC 669; 1985 SCMR 2064; PLD 1992 SC 577; 1989 SCMR 2056; PLD 1988 Kar. 154; PLD 1990 Kar. 227; AIR 1940 All. 248; 1976 SCMR 366; 1982 SCMR 1229; 1984 SCMR 910; 1985 SCMR 333; 1994 SCMR 1948; PLD 2001 SC 49; 2001 CLC 1559; PLD 2006 Kar. 252; 35 1C Pat. 429; 2003 SCMR 194; PLD 1963 SC 382; 1994 SCMR 1948; 2003 SCMR 1940 and 1974 SCMR 162 ref.
PLD 1963 SC 382; 1994 SCMR 1948; 2003 SCMR 1940 and 1974 SCMR 162 ref.
Mr. Rasheed A. Razvi, Advocate for Appellants.
Mr. Bilal Shoukat, Advocate for Respondent No. 1.
Date of hearing: 4.4.2007.
Order
Anwar Zaheer Jamali, J.--By this order, we propose to dispose of above numbered three miscellaneous applications moved by the appellants.
First application, C.M.A. No. 1607 of 2006, is an application under Order XLI, Rule 19, read with Order IX, Rule 9 and Sections 107 and 151, C.P.C., seeking recall/review of the order dated 6-9-2006 and restoration of this appeal. Second application, C.M.A. No. 1641 of 2006, is an application under Order XLI, Rule 5, read with Sections 107 and 151, C.P.C. seeking suspension of operation of impugned order dated 30.6.1997 and restoration of status quo ante, pending disposal of this appeal. Third application C.M.A.No. 1749 of 2006, is an application under Section 151, C.P.C. whereby appellants have sought permission of this Court for placement of further affidavit of Mr. Mehboob Elahi, Director of Appellant No. 1, on record, for consideration of earlier application C.M.A. No. 1607 of 2006.
Notices of these applications were issued to the other side, whereupon detailed counter affidavits to C.M.As Nos. 1607/06 and 1641/06 have been submitted by the Respondent No. 1. Subsequently, counter affidavit to C.M.A. Nos. 1749 of 2006 has also been filed by the Respondent No. 1 on 31-10-2006. Rejoinder to such counter affidavits have been submitted by the appellants on 30-10-2006 and 2-11-2006, which are also available on record.
Briefly stated, the facts, relevant for disposal of these applications, are that after passing of impugned order dated 30-6-1997 on C.M.A. No. 2782 of 1997 in Suit No. 330 of 1995, which was an application under Order XXXIX, Rules 2(3), read with Section 151, C.P.C. and Sections 3 and 4 of the Contempt of Court Act, 1976, moved by the respondents, thereby ordering attachment of the disputed project of the appellants through Official Assignee of Karachi, with further directions for him to inform the Court as to the extent of violation and also issuing notice to Mr. Maqbool Elahi, Director of Respondent No. 1, to show-cause why action for dis-obedience of Court's order should not be taken against him, the instant appeal under Order XLIII was preferred on 4-7-1997.
The perusal of case record reveals that during the proceedings of this appeal on 8-7-1997, when the matter was fixed before the Court, at the request of Mr. Farogh Nasim, learned counsel for appellants, it was adjourned to 15-7-1997, on which date it could not be proceeded as one of the Hon'ble Member of the Bench was the same Hon'ble Judge, who had passed the impugned order. On 17-7-1997, this appeal was admitted to regular hearing and the operation of impugned order was suspended till next date of hearing, i.e. 24-7-1997. On 24-7-1997 case was adjourned to 26-8-1997 at the request of the learned counsel for respondents to enable him to file counter affidavit and interim order was extended till the next date of hearing. On 9-12-1997, C.M.A. No. 651 of 1997, an application under Order XLI, Rule 5 read with Section 151, C.P.C. was fixed for hearing before the Court, but due to the absence of parties, it was adjourned. Again, on 23-2-1998 when the same application came up for hearing, none was present and accordingly, case was adjourned to a date in office. On 16-3-1998, Mr. Irfan Aziz, holding brief for Mr. Farogh Nasim, learned counsel for appellants, had sought adjournment on the ground that the latter was busy before another bench. On 30-3-1998, case was adjourned to 22-4-1998 with the observation that C.M.A. No. 651 of 1997 will be heard alongwith main appeal. On 22-4-1998, when the case came up before the Court for hearing of application as well as regular hearing of appeal, no body was present for respondents, therefore, case was adjourned to a date in office. On 11-9-1998, arguments of learned counsel for the parties were partly heard and case was adjourned to 16-9-1998. On 16-9-1998, only counsel for respondents was present, thus, the case was adjourned to 25-9-1998. On 25-9-1998, though both the counsel for the parties were present, but the case was adjourned to 30-9-1998, on which date it was ordered by the Court that case may not be treated as part heard and it may be fixed according to roster. On 1-2-2000, at the request of Mr. Farogh Nasim, learned counsel for appellants, case was adjourned to a date in office. Again, on 21-9-2000, case was adjourned as Mr. Farogh Nasim, learned counsel for appellants, was stated to be on general adjournment. On 8-2-2001, case was again adjourned by consent as Mr. Farogh Nasim, learned counsel for appellants, was not available and his junior Ms. Farkhunda Jabeen was holding brief for him. On 23-8-2002 again Ms. Danyal Alam, a junior counsel of Mr. Farogh Nasim, learned counsel for appellants, was present and the case was adjourned. Similar was the position on 10-1-2003 when Ms. Farkhunda Jabeen, holding brief for Mr. Farogh Nasim, had requested for adjournment on the ground of latter's illness. On 17-3-2004, Ms. Farkhunda Jabeen from the office of Mr. Farogh Nasim, learned counsel for appellants, stated before the Court that this appeal will be argued by senior counsel Mr. Sharifuddin Pirzada, therefore, case was adjourned. On 18-10-2004, Mr. M.H. Javed Junior associate of Mr. Farogh Nasim, had left a chit that the latter was busy before another bench therefore, case was adjourned. On 6-12-2004 again Ms. Farkhunda Jabeen from the office of Mr. Farogh Nasim had made a statement before the Court that on behalf of appellants, case will be argued by the senior counsel Mr. Sharifuddin Pirzada, who was not present on that day, therefore, case was adjourned. On 16-5-2006 again Ms. Farkhunda Jabeen, holding brief for Mr. Farogh Nasim was present and the case was adjourned to a date in office. On 6.9.2006, when the case came up before this Court for hearing of listed application and regular hearing of the appeal, Mr. Farogh Nasim, one of the counsel appearing for the appellants, was present in Court, but he expressed his inability to proceed with the matter, therefore, following order was passed by this Court, whereby this appeal was dismissed for non-prosecution:
"6-9-2006.
Mr. Farogh Naseem, Advocate for the Appellant.
Mr. Kanwar Majid, Advocate for the Respondent.
Dr. Farogh Naseem, one of the counsel appearing for the appellant, is present in Court. He expresses his inability to proceed with the matter. Other counsel Mr. Sharifuddin Pirzada is not present today. Mr. Kanwar Majid, advocate for the respondent is present. Perusal of case record reveals that interlocutory order dated 30-6-1997 passed on C.M.A. No. 2782 of 1997 in Suit No. 330 of 1995 has been assailed through this appeal under Order XLIII, Rule 1, C.P.C. filed on 4-7-1997 and since then for one or the other reason, this matter has not proceeded.
In such circumstances we are not inclined to adjourn appeal, accordingly the same is dismissed for non-prosecution."
It is in the above background of this case that three listed applications have been moved by the appellants. In the first application (C.M.A. No. 1607 of 2006) it has been stated that the absence of the senior counsel on behalf of appellants was neither wilful nor deliberate and further the delay in the disposal of appeal could not be attributed to the appellants as on several occasions, adjournments were sought on behalf of respondents. It has also been stated in the application that no opportunity was given to the appellants as a last or final chance to engage new counsel, thus, the appellants were deprived of their right of natural justice. Lastly, it was contended that the Hon'ble Supreme Court of Pakistan has always preferred disposal of cases on merits and has discouraged dismissal of cases for non-prosecution and on technical ground, therefore, following such precedence, the order dated 6-9-2006 be recalled/set aside/reviewed and the appeal be restored to its original number. In the supporting affidavit to this application, filed by Mr. Mehboob Elahi, Director of the Appellant No. 1, he has stated in detail the facts and circumstances in which initially late Ghulam Hussain Abbasi and Mr. Farogh Nasim were engaged by him and later on Mr. Sharifuddin Pirzada was engaged alongwith Mr. Farogh Nasim. However, in the whole affidavit, he has not disclosed any reasons whatsoever about his own absence on the dates of hearing, particularly when show-cause notice was issued to him for proposed penal action for violation of earlier orders passed by the learned single Judge in suit No. 330 of 1995. In the other affidavit of Mr. Mehboob Elahi filed alongwith C.M.A. No. 1749 of 2006, he has further stated on oath that in the first week of September 2006, Mr. Sharifuddin Pirzada, one of the counsel engaged by him, was busy in marriage ceremony of his daughter and that on 6-9-2006 Mr. Sharifuddin Pirzada, who is also Senior Minister in the Federal Cabinet was at Islamabad for some urgent official work and from there, he rushed to Lahore in order to attend Valima of his daughter, scheduled on 7-9-2006. Thus, his absence from this Court on 6-9-2006 was not deliberate or wilful.
In the counter affidavits to the application of the appellants, it has been stated by the Respondent No. 1 that the facts stated by the appellants for seeking restoration of this appeal, are misleading and that the learned Senior counsel engaged by the appellants, never made his appearance in this appeal. Respondent No. 1 further stated that all the advocates, who had signed the vakalatnama on behalf of appellants were duly authorized to argue on their behalf, therefore, mere absence of the senior counsel on the relevant date was not sufficient for recalling of the order dated 6-9-2006. It has also been stated that the counsel present in Court on behalf of appellants (Mr. Farogh Nasim) was duty bound to proceed with the case, but despite shocking delay of almost ten years in the disposal of this appeal, preferred against an interlocutory order, he refused to proceed with the appeal for no valid reason. To sum up, the Respondent No. 1 has stated that no sufficient cause for the absence of the appellants and their counsel on the relevant dates was disclosed, therefore, no case for recall/review of the order dated 6-9-2006 is made out.
Mr. Rasheed A. Razvi, learned counsel for appellants, after making detailed reference to the facts of the case and proceedings in the present appeal, has contended that delay in the disposal of the appeal and non-proceeding of this appeal on every date of hearing cannot be attributed to the appellants, therefore, the order dated 6-9-2006 passed by this Court is extremely harsh, as it has deprived the appellants from seeking adjudication of the controversy involved in the appeal on merits. He further contended that indeed there is no plausible explanation about the absence of the appellants themselves on 6-9-2006, but in the presence of their counsel Mr. Farogh Nasim on such date of hearing, their presence was not required and in case for any reason Mr. Farogh Nasim has shown his inability to proceed with the case, proper course available to this Court, was that a direct notice should have been issued to the appellants to engage some other counsel, so that due opportunity of hearing was afforded to them. Learned counsel in this regard, made reference of following judgments of this Court and the Supreme Court of Pakistan:--
(1) PLD 1966 Supreme Court 467
(2) PLD 1965 Supreme Court 669
(3) 1985 SCMR 2064
(4) PLD 1992 Supreme Court 577
(5) 1989 SCMR 2056
(6) PLD 1988 Karachi 154
(7) PLD 1990 Karachi 227
In the end, summing up his submissions Mr. Razvi reiterated that due to the misconduct or negligence of the counsel, party should not be made to suffer, therefore, in the larger interest of justice, such conduct of the learned counsel may be condoned and full opportunity may be afforded to the appellants to contest the matter on merits.
Mr. Bilal Shoukat learned counsel for respondents, vehemently controverting the arguments of Mr. Rasheed A. Razvi, has contended that passing of order dated 6-9-2006 by this Court is result of sheer irresponsible and negligent conduct of the appellants as well as their counsel, as on one hand, appellants were not absolved of their own/legal obligation to pursue the appeal diligently even after engaging several counsel in the matter, while on the other hand, Farogh Nasim, learned counsel for appellants, who was twice engaged in the matter, as first vakalatnama was signed by him on 4th July, 1997 and second vakalatnama was filed by him on 18-3-1999, was present in Court all along, but for no valid reason, he had refused to proceed, with the appeal. He further contended that in the given facts and circumstances, for restoration of appeal or recalling of order dated 6-9-2006, provisions of Order XLI, Rule 19, C.P.C. were not attracted. In this regard, he has placed reliance upon one judgment of Indian jurisdiction reported as AIR 1940 Allahabad 248. Dilating upon the concept of sufficient cause, learned counsel further contended that the perusal of case record shows that the present appeal was instituted on 4-7-1997 alongwith the vakalatnamas of Mr. Ghulam Hussain Abbasi and Mr. Farogh Nasim and interim relief was granted in their favour on 17-7-1997, which continued to remain in operation to the prejudice of the interest of the respondents, but no efforts were made by the appellants for proceeding with the appeal. Making reference to the filing of vakalatnama of learned senior counsel Mr. Sharifuddin Pirzada in this appeal on 18-3-1999, Mr. Bilal Shoukat contended that after filing of this vakalatnama, it was again a joint vakalatnama of M/s. Sharifuddin Pirzada and Mr. Farogh Nasim, but not even once, the learned senior counsel had appeared in this case rather on various dates of hearing, adjournment were sought in the case, after the demise of Mr. Ghulam Hussain Abbasi, on the ground that Mr. Farogh Nasim was busy in other Courts or was ill, which clearly gives an impression that it was he, who was to proceed with this appeal. Even on certain dates request for adjournment on the ground of non-availability of the senior counsel Mr. Sharifuddin Pirzada was not made by any counsel from his office, but by the juniors of Mr. Farogh Nasim, while Mr. Farogh Nasim had not made any such statement before the Court about his inability to proceed with the case throughout the period of over nine years, except on 6-9-2006, which is sufficient to show that such was only a pretext for seeking further adjournment in the matter when he was called upon by the Court to proceed with the matter.
Replying to the arguments of Mr. Rasheed A. Razvi that law favours adjudication of cases on merits rather than on technicalities, therefore, further opportunity should be allowed to the appellants to contest this appeal on merits, learned counsel contended that exercise of discretion in this regard will entirely depend upon the facts and circumstances of each case and this proposition cannot be made applicable as thumb rules or rule of universal application. To fortify his further submission that absence of the appellants was also to be explained satisfactorily and mere negligent conduct of the appellants counsel will not absolve them of their own legal obligation to pursue the matter vigilantly, learned counsel has further placed reliance on the following cases:--
(1) 1974 SCMR 162
(2) 1976 SCMR 366
(3) 1982 SCMR 1229
(4) 1984 SCMR 910
(5) 1985 SCMR 333
(6) 1994 SCMR 1948
(7) PLD 2001 Supreme Court 49
(8) 2001 CLC 1559
(9) PLD 2006 Karachi 252
Referring to the particular cases,, where a party has opted to engage more than one counsel in the matter on its behalf, learned counsel made reference to the judgment in the cases of 35 1C Patna 429 and 2003 SCMR 194 to show that in such circumstances mere satisfactory explanation about the absence of one counsel, cannot be accepted as sufficient cause for restoration of appeal as the other counsel engaged in the matter was equally responsible for proceeding with the appeal. Lastly, learned counsel also made reference to the relevant provision of Sindh Chief Court Rules to add force to his submission that in case any of the counsel engaged by a party was not willing to proceed with the appeal for one reason or the other, the proper course available for him was to seek discharge of his vakalatnama but as long as his vakalatnama was intact, he was bound to proceed with the case while concluding his submissions, Mr. Bilal Shoukat also contended that the respondents have already suffered a lot due to the pendency of this appeal for almost ten years, and suspension of impugned order passed in their favour, therefore, grant of listed applications, will amount to giving further premium to the appellants for their own wrong at the cost of the respondents, which will be unjust, harsh and misuse of the process of law. He therefore, prayed for dismissal of C.M.A. No. 1607 of 2006 with costs.
In the context of detailed submissions made by the learned counsel, as noted above and the relevant facts of the case, which have also been noted in the preceding part of this order, we have carefully perused the case law cited at the bar. There is no cavil to the proposition of law canvassed in each judgment of the Hon'ble Supreme Court and the High Court cited by learned counsel for the parties, but their applicability is to be gauged looking at the peculiar facts and circumstances of each case. Admittedly, this appeal preferred against an interlocutory order remained pending for a period of almost nine years before its dismissal for non-prosecution vide order dated 6-9-2006 and during this long period, on the basis of interim order passed in their favour, the execution/implementation of the action proposed in the impugned order was successfully avoided by the appellants. A careful perusal of the proceedings of the case goes to show that all this was done by the appellant in a calculated manner to avail maximum benefit of the interim order, to the prejudice of the interest of the respondents, who are pursuing a cause of public interest viz. objecting to the raising of unauthorized construction.
The salient features of the case which lend support to our view may be summarized as under :--
(a) On 4-7-1997 this appeal was instituted in High Court against an interlocutory order dated 20-6-1997, passed on application under Order XXXIX, Rule 2(3) read with Section 151, C.P.C. and Sections 3 and 4 of the Contempt of Court Act, 1976, whereby the Official Assignee of Karachi was directed to attach the project of the appellants and to inform the Court as to the extent of violation, and notice was also to be issued to Mr. Maqbool Illahi, Director of appellant company to show-cause why action for dis-obedience of Court's order should not be taken against him. The operation of this order was suspended by this Court on 17-7-1997 and since then it remained suspended till the dismissal of this appeal for non-prosecution on 6-9-2006.
(b) On 8-7-1997, 15-7-1997, even before passing of interim order, this appeal was attended by Dr. Farogh Naseem Advocate, but no request for adjournment was made by him on the ground that this matter was to be proceeded by some other learned counsel.
(c) During the further proceedings of the case, particularly after the demise of Mr. G.H. Abbasi, another advocate for the appellants, on 1-2-2000, 21-9-2000, 8-2-2001, 23-8-2002 and 10-1-2003, all along either Dr. Farogh Naseem himself appeared in Court or his junior counsel represented him in Court and sought adjournments, but on none of these dates any request for adjournment was made, on the ground that the other Senior Counsel Mr. Sharifuddin Pirzada, engaged by the appellants in this appeal on 18-3-1999, will proceed with this matter.
(d) It was for the first time on 17-3-2004, when a junior counsel from the office of Dr. Farogh Naseem, made request for adjournment on the ground that Senior Counsel Mr. Sharifuddin Pirzada will argue this appeal on behalf of the appellants. Thereafter again on 18-10-2004 request for adjournment was made by the junior partner of Dr. Farogh Naseem, on the ground that Dr. Farogh Naseem was busy before another bench, while no explanation whatsoever was offered about the absence of Senior Counsel Mr. Sharifuddin Pirzada.
(e) On 6-12-2004 again the ground for adjournment urged on behalf of the appellants by the junior partner of Dr. Farogh Naseem was that this appeal will be argued by Mr. Sharifuddin Pirzada, who was not available on that date. However, nobody appeared in Court from the office of Mr. Pirzada to make such request.
(f) On 16-5-2006, again Ms. Farkhanda Jabeen was holding brief for Dr. Farogh Naseem, advocate for the appellant, (not for Mr. Sharifuddin Pirzada advocate) and by consent the case was adjourned to a date in office.
(g) From 18-3-1999 onwards, on none of the dates of hearing till the passing of order dated 6-9-2006 Mr. Sharifuddin Pirzada, Advocate appeared in this appeal or even any junior partner from his office placed his appearance in this appeal to show that it was only Mr. Sharifuddin Pirzada, who was to proceed with this appeal on behalf of the appellants.
(h) Admittedly, in this appeal Dr. Farogh Naseem was appearing for the appellants right from the date of its institution in the year 1997 and he had twice filed his vakalatnama for them. But at no point in time before passing of order dated 6-9-2006 he had bothered to move this Court for discharge of his vakalatnama, if he was directed by the appellants not to proceed with this appeal on their behalf or he was facing any other genuine impediment in this regard.
In our view, the chequered history of this appeal is sufficient to demonstrate that throughout its proceedings appellants were non-serious in seeking adjudication of this appeal on merits. Indeed, the order dated 6-9-2006 cannot be based or justified merely by looking at these salient features of this appeal but at the same time this Court while considering the question of exercise of its discretion, cannot remain oblivious of these facts.
Till this date no satisfactory explanation has been offered by the appellants or their counsel Dr. Farogh Naseem, that what were the compelling reasons due to which Dr. Farogh Naseem was unable to proceed with this appeal on 6-9-2006, except to delay the proceedings in the appeal. In our view it is palpably clear from the record that the absence of Mr. Sharifuddin Pirzada advocate, pleaded by the appellants to seek recall of order dated 6-9-2006 is just a pretext and misuse of his name. This fact further finds support from the record, which shows that the learned Senior Counsel Mr. Sharifuddin Pirzada has not come forward to support such plea of the appellants by filing his personal affidavit to the effect that it was he, who was to proceed with this appeal or that for this purpose he was contacted by the appellants to be present in Court on 6-9-2006 for proceedings with the appeal.
In our view, even when learned Senior counsel Mr. Sharifuddin Pirzada, was one of the counsel for the appellants the other counsel engaged by the appellants, namely Dr. Farogh Naseem was bound to proceed with the appeal till such time he withdraws his power or it was revoked/cancelled by his client according to rules. It is pertinent to mention here that on 6-9-2006, when this appeal was dismissed for non-prosecution, no plausible explanation was offered by Dr. Farogh Nasim for not proceeding with the appeal, and even after passing of such order till this date, he has not come forward to explain his position in this regard. In such circumstances, we have no option, but to hold that the conduct of Dr. Farogh Naseem for not proceeding with this appeal on 6-9-2006, was deliberate and without any sufficient cause, therefore, it disentitles the appellants for any indulgence or lenient view in the matter. In case, the appellants has suffered any loss due to such conduct of Dr. Farogh Nasim, option is available with him to sue him for the damages, which he might have suffered due to such conduct of his counsel.
Indeed, there is no cavil to this proposition of law that law favours adjudication of cases on merits rather than on technicalities. Thus, as far as possible, of course looking to the facts and circumstances of each case, this should be the approach of all judicial forums. One of the celebrated judgment on this point is the case of Imtiaz Ali v. Ghulam Ali PLD 1963 SC 382, which is followed by plethora of case law, some of which have been cited by Mr. Rasheed A. Razvi. Nevertheless, in the exercise of discretion in this regard the Courts are required to be fair with the rival parties and rational/balanced in their approach in a way that no party should be allowed to misuse the indulgence or concession shown by the Courts so as to make the whole system an abuse of process of law. Keeping in view this legal position, the principles for exercise of discretion propounded in the judgments in the cases of Ex. H.A.V. Mirza Mushtaq Baig v. Central Court Martial 1994 SCMR 1948, Hayat Khan and others v. Abdul Razzaq and others 2003 SCMR 1940, and Zulfiqar Ali v. Lal Din 1974 SCMR 162, are fatal to the case of the appellants. In the first case, where the constitutional petition filed by the petitioner was dismissed by the High Court for non-prosecution, and subsequently the restoration application was also dismissed. The Hon'ble Supreme Court of Pakistan dealing with the leave to appeal petition declined to interfere and held that even if the case papers were taken away by the client, the senior counsel, who was representing him, was duty bound to have appeared in Court till such time he had withdrawn his power or it was cancelled according to rules by his client. In the second case, it was held that when the appellant has engaged more than one counsel, then each of his counsel was bound to represent him, and failure of one of the counsel to appear in Court, even if explained, will not justify an order of restoration. In the last case, it was held by the apex Court that mere engagement of counsel by a party will not absolve him of his personal obligation to pursue the case vigilantly. It was further held that for seeking restoration of appeal, satisfactory explanation was to be offered, both by the appellant and his counsel.
From the above discussion, we are of the considered opinion that C.M.A. No. 1607 of 2006 is liable to be dismissed. Order accordingly.
As regards other two applications, C.M.A. Nos. 1641 of 2006, being an application for interim relief, is dismissed having become infructuous, while C.M.A.No. 1749 of 2006 for acceptance of additional affidavit, is allowed, as we have already taken into consideration such affidavit filed on behalf of the appellants.
(R.A.) Order accordingly
PLJ 2007 Karachi 269 (DB)
Present: Rahmat Hussain Jafferi and Maqbool Baqar, JJ
Hafiz ABDUL KHALIQUE SOOMRO and others--Petitioners
versus
GOVERNMENT OF SINDH through Secretary, Irrigation and Power Department, Karachi and others--Respondents
Const. P. Nos. D-940, D-961, D-974, D-976 of 2002, D-212 of 2003, decided on 22.3.2007.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Jurisdiction of High Court--Civil matter--Purpose--Limitation--Fundamental rights--Delay for laches--Bar--Constitution does not provide any limitation for filing the petition as fundamental rights can be forced at any time--Delay or laches on the part of the parties cannot be considered but it is settled that Constitutional petition has to be filed within a reasonable time, however, the delay is not an absolute bar. [P. 272] A
Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code, (V of 1908)--O. XLVIII, R. 1--Limitation Act, (IX of 1908), Arts. 5 & 162--Constitutional petition--Jurisdiction--Question of--Whether or not delay can be condoned--Eliminates chances of perpetual illegality--Principle of law--Validity--Constitutional jurisdiction is intended to foster justice, right a wrong, eliminates chances of perpetual illegality subject to Constitutional limitation, which is completely discretionary in nature--Basic principles of Constitutional jurisdiction all further proceedings are required to be examined on the touch stone of principles to achieve the objective of the Constitution--Discretion has to be exercised in consonance with well-known and well understood principles of law and principle laid down by superior Courts. [P. 278] E
Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code (V of 1908)--O. XLVII, R. 1--Limitation Act, (IX of 1908), S. 5--Decision in constitutional petition in a matter in civil rights--Time barred review application for condonation of delay--Valid grounds--Principle--Basic principles of Constitutional jurisdiction--Held: Condonation of delay has been sought on the ground of misconception of law--General law is that ignorance of law or misconception of law is not a valid ground for condoning the delay--In a very special case it can be considered on furnishing sufficient cause. [P. 278] G
Limitation Act, 1908 (IX of 1908)--
----Preamble--Scope of--Provisions of Limitation Act do not apply to Constitutional petition--Lapse of time that would have been considered as constituting delay--No hard and fast rule can be laid down in the matter and each case should be decided according to its circumstances without adhering to any fixed period, long or short.
[P. 275] B
Limitation Act, 1908 (IX of 1908)--
----Art. 162--Civil Procedure Code, (V of 1898)--O. XLVII, R. 1 & S. 114--Constitution of Pakistan, 1973--Art. 199--Decision in Constitutional petition--Review--Limitation--Applicable--As the petition was dismissed in exercise of original jurisdiction of High Court--Therefore, for reviewing the judgment Art. 162 of Limitation Act, will be applicable which provides that a review application can be filed within 20 days from the date of the order or judgment--Apparently the review applications have been filed beyond the period of limitation, hence same are time barred. [P. 278] D
Limitation Act, 1908 (IX of 1908)--
----S. 5--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Condonation of delay--Sufficient cause for enlargement of time--Application for condoning the delay--Validity--Held: Petitioner is required to explain the delay of each day by furnishing sufficient cause for enlargement of time and condonation of delay within the meaning of S. 5 of Limitation Act. [P. 278] F
Limitation Act, 1908 (IX of 1908)--
----Arts. 161, 162 & 173--Constitution of Pakistan, 1973--Art. 199--Civil Procedure Code, (V of 1908)--O. XLVII, R. 1--Decision in Constitutional petition in a matter in civil right--Time barred--Review application for condonation of delay--Principle--Art. 173 of Limitation Act, deals with the review of judgment except in the cases provided by Arts. 161 & 162 of Limitation Act--Law is settled but advocate did not conduct himself, if same is bona fide and made in spite of due care and attention, but mistake was result of negligence.
[P. 279] H
Interpretation of Statute--
----Statute must be read as a whole as words are to be understood in their context--Extension of rule of context permits reference to other statute in pari materia i.e. statute dealing with the subject matter or forming part of the system. [P. 277] C
AIR 1960 SC 260; PLD 1970 SC 1; 1980 SCMR 964; 1979 SCMR 52;
AIR 1917 Privy Council 156 and 1980 SCMR 332 ref.
Mr. Bhajandas Tejwani, Advocate for Petitioners.
Mr. Habib Ahmed, Asstt.A.-G., Sindh for Respondents.
Date of hearing: 9.3.2007.
Judgment
Rahmat Hussain Jafferi, J.--This order will dispose of review applications dated 9-8-2004 and applications for condoning the delay of filing such application filed in the Constitutional Petitions Nos. D-940, 961, 974, 976 of 2002 and 212 of 2003, as common , questions of facts and law are involved.
On 9-8-2004 the petitioner filed applications under Order XLVII, Rule 1, read with Section 151, C.P.C. for review of common judgment dated 11-5-2004 passed in the above constitutional petitions. Pending adjudication of the said applications, on 7-2-2005 the petitioner filed applications under Section 5 of the Limitation Act for condoning the delay in filing the review applications. The learned A.A.-G. has seriously raised objection on the point of limitation, therefore, without going into the facts and merits of the case we have heard advocate for the petitioner and A.A.-G. on the preliminary objection.
The learned advocate for the petitioner has argued that in the constitutional petition Limitation Act is not applicable and even if the same is applicable then the application will be governed by Article 173 of the Limitation Act; that the decision should be given on merits; that the parties should not be non-suited for technical reason; that the delay has been caused due to misconception of law as to whether Article 173 or 162 of Limitation Act will be applicable and that the party should not be made to suffer due to wrong advice of the advocate.
Conversely, the learned A.A.-G. has stated that the High Court in exercise of its original jurisdiction entertains the constitutional petition and decides the same, therefore, for reviewing the judgment. Article 162 of the Limitation Act will be applicable which provides 20 days time for filing the review application; that the time will run from the date of order or judgment; that Article 173 of the Limitation Act will not be applicable in the case in view of specific Article 162 of the said Act; that the allegation of wrong advice of the advocate to the petitioner as misconception of law has not been supported by the affidavit of advocate; that the applicant has not furnished sufficient cause to condone the delay.
At the outset, it is pointed out that there are two stages in dealing with the constitutional petition. There is no cavil to the proposition that the High Court in exercise of its original jurisdiction entertains the constitutional petition. In exercise of such jurisdiction, the High Court decides criminal, civil and other matters. In the petitions rights of civil nature are involved, therefore, the discussion will be keeping in view such rights.
The first stage of invoking the jurisdiction of the High Court in civil matter is the filing of petition. For that purpose petition will be governed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The Constitution does not provide any limitation for filing the petition as fundamental rights can be enforced at any time. Nevertheless, this does not mean that delay or laches on the part of the parties cannot be considered, but it is settled that the constitutional petition has to be filed within a reasonable time, however, the delay is not an absolute bar:--
(a) Where the delay is explained.
(b) In a petition for prohibition, where lack of jurisdiction is patent.
(c) Where an order, which professed to be final, was, in reality, provisional, or subject to revision, delay cannot be computed until the final order was made.
(d) Delay cannot be a bar where Government has been holding out hopes to the petitioner from time to time.
(e) Where the impugned order becomes vulnerable if it is continued beyond a temporary period, e.g., an order of requisition of a premises.
On the other hand, the Court would be more inclined to refuse relief under Article 199 on the ground of laches where, on account of the delay:--
(a) The opposite party has been induced to alter his position.
(b) Other interests have come into being.
(c) Where a suit, if brought on the same cause of action, would have been barred by limitation.
The consideration upon which the Court refuses to exercise its discretion where the petition is delayed is not limitation but matters relating to conduct of parties; and change in situation. The proper standard, however, seems to be whether in the circumstances of the case, the time that has elapsed can be said to be reasonable; or there is proper explanation for the delay, therefore, the reasonableness of the delay in filing a writ petition is to be assessed by the Court having regard to the facts and circumstances of each case. Thus, the refusal to entertain belated causes is only a rule of discretion, not of law. Reference is invited to Deddhan v. State of Maharashtra (AIR 1974 SC 259 (265).
It is pointed out that the question was raised before the Hon'ble Supreme Court of Pakistan in case of Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119, the Hon'ble Supreme Court did not decide the said question, but kept it pending with observation that it might be decided in a proper-case apparently at later stage. The relevant portion of the said observation is as under:--
"There is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on ground of limitation..........................
Before parting with this judgment it needs to be observed that although the question of applicability of the Article 181 of the Limitation Act to the filing of writ petition has not been argued at the bar, it might nevertheless require examination in a proper case. It has been held by the Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, that such proceedings before the High Court are of civil nature and C.P.C. applies except when excluded. Whether similar argument cannot be raised regarding limitation might need examination."
It was further observed that there is no law of limitation which may directly apply to the institution of writ petition, however, in the case of S.A. Jameel v. Secretary to the Government of Punjab, Cooperative Department 2005 SCMR 126 it was observed that if the High Court finds that the party invoking the constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution of a cause of fundamental right, it would be justified in non-suiting such person on the premises of laches. Thus, the Hon'ble Supreme Court of Pakistan instead of applying Limitation Act had applied the conduct of the parties while considering the laches and delay. The Hon'ble Supreme Court of Pakistan while giving distinction between the limitation and delay or laches observe as under:--
"Reverting to the question of laches not raised by the respondents but pointed out by the High Court of its own, it may be pertinent to observe that there is a marked distinction between delay in filing of a legal proceedings within the period specified under the provisions of Limitation Act, 1908 and undue time consumed by a party in filing of constitutional petition, for which no statutory period is prescribed under the law. In the former case, delay of each day is to be explained by furnishing sufficient cause of enlargement of time and condonation of delay within the contemplation of Section 5 of the Limitation Act whereas in the later case lapse of time or the question of laches is to be examined in equitable principles for the reason that the exercise of constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief. In case the Court come to a conclusion that equity leans in favour of the petitioner, the Court must exercise discretion in favour of such party. However, if the Court finds that the party invoking writ jurisdiction of the High Court is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution or a cause for enforcement of a right, the Court would be justified in non-suiting such person on the premise of laches. Indeed the issue of delay or laches is to be considered with reference to the facts of each case and no hard and fast rule can be laid down in this behalf. It was aptly observed by Ajmal Mian, C.J. (as his Lordships then was) in Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) Karachi 1999 SCMR 2883 that delay/laches of several years can be overlooked in a constitutional petition if the cause of the case and dictates of justice so warrant or the delay/laches of a month may be fatal to a constitutional petition."
From the above decision, it appears that the provisions of Limitation Act do not apply to the constitutional petition. Thus, the lapse of time that would have been considered as constituting delay, the proper view seems to be that no hard and fast rule can be laid down in the matter and each case should be decided according to its circumstances, without adhering to any fixed period, long or short.
The second stage of the petition starts after filing the petition which deals with the procedure for disposing of the petition. Without going into the elementary discussion on the subject the Hon'ble Supreme Court of Pakistan in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi PLD 1970 SC 1 dealt with the subject and observed at page 7 as under:--
"The writ jurisdiction under Article 98 of the Constitution, as already stated, is an original jurisdiction. Obviously, the jurisdiction under that Article pertains to civil as well as other matters. At the moment, I shall consider the nature of the proceeding arising out of a writ petition relating to a civil matter, as in the instant case. The proceeding taken for the enforcement of a civil right is a civil proceeding whatever may be the source of the Court's jurisdiction invoked for enforcement of such a right. According to Stroud's Judicial Dictionary `Civil Proceeding' is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see Bradlough v. Clarks 8 AC 354. Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is constitutional jurisdiction of an original kind. A civil proceeding in a Court of Civil jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of Section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excluded. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction."
Thus, a Constitution petition dealing with civil rights is of civil nature and C.P.C. applies except excluded. It was further observed at page 9 as under:--
"The result, therefore, is that such appeals which were hitherto competent under Sections 109 and 110 of the Code of Civil Procedure are no more allowed by the Code. That being so, the requirement of Clause (b) of Section 114 of the Code is satisfied in the case of an order made by a High Court in its writ jurisdiction in a civil matter. A review of such an order is, therefore, competent under Clause (b) of Section 114 of the Code of Civil Procedure. If this view be not correct, then, the High Court will be completely bereft of the power of review even in respect of a decree or order made under the provisions of the Code for the simple reason that, for the purpose of appeal, such a decree or order and an order made by a High Court in its writ jurisdiction in a civil matter, in view of Article 58 of the Constitution, stands exactly on the same footing. Thus, any view contrary to the view held as above will give rise to an absurd situation. The view taken by me as regards power of review also finds support from the dictum laid down by the House of Lords in the case of National Telephone Company Ltd. v. Postmaster-General 1913 AC 546. The dictum laid down in that case, in the word of Viscount Haldane, is as follows:--
"When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right to appeal from its decisions likewise attaches".
As the High Court has been found to have power under Clause (b) of Section 114 of the Code of Civil Procedure to review an order made in its writ jurisdiction in a civil matter, the appeal succeeds."
The above observations have been followed by the Hon'ble Supreme Court in another case of Pakistan Post Office (supra). Thus, in procedural matters the petition dealing with civil right or civil nature, the provisions of Civil Procedure Code would be applicable as far as they are applicable except excluded. In such a situation the provisions of Civil Procedure Code are to be taken and construed together with the Limitation Act because both the statutes are "pari materia".
It is well settled that the statutes must be read as a whole as words are to be understood in their context. Extension of this rule of context permits reference to other statutes in pari materia i.e. statutes dealing with the same subject-matter or forming part of the same system.
The meaning of the phrase "pari materia" has been explained in an American case United Society v. Eagle Bank (1829) 7 Connecticut 457 at page 470 in the following words:--
"Statutes are in pari materia which relate to the same person or thing, or to the sameclass of persons or things. The word "par" must not be confounded with the word "Simlis". It is used in opposition to it intimating not likeness merely but identity. It is a phrase applicable to public statutes or general laws made at different times and in reference to the same subject."
The pari materia statutes have been defined by Maxwell on the Interpretation of Statutes, Twelfth Edition at page 66 as under:--
"Statutes are said to be in pari materia when they deal with the same person or thing or class: it is not enough that they deal with a similar subject-matter.........
Lord Mansfield C.J. stated that rule as to the exposition of one Act by the language of another in this way: "Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other."
The Supreme Court of India in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 Supreme Court 1099 at page 1107 while dealing with the provisions of Civil Procedure Code and Limitation Act, treated them as pari materia and after relying upon Full Bench Decision of Madras High Court in the case of Kandaswami Pillai v. Kannappa Chetty AIR 1952 Madras 186 observed as under:
"It is well established that the Limitation Act, and the Code are to be read together, because both are statutes relating to procedure and they are in pari materia and, therefore, to be taken and construed together as one system as explanatory of each other."
Thus, in procedural matter where the provisions of Civil Procedure Code are applicable then those provisions are to be taken and construed together with the provisions of Limitation Act as one system and explanatory of each other.
As the petition was dismissed in the exercise of original jurisdiction of this Court, therefore, for reviewing the judgment Article 162 of the Limitation Act will be applicable which provides that a review application can be filed within 20 days from the date of the order or judgment. Apparently the review applications have been filed beyond the period of limitation, hence, the same are time barred.
The next question for consideration is whether or not delay can be condoned. It is pointed out that the constitutional jurisdiction is intended to foster justice, right a wrong, eliminates chances of perpetual illegality subject to constitutional limitations, which is completely discretionary in nature. Keeping in view the basic principles of constitutional jurisdiction, all further proceedings are required to be examined on the touchstone of said principles to achieve the objective of the Constitution. At the same time, the discretion has to be exercised in consonance with the well-known and well-understood principles of law and principles laid down by the Superior Courts.
For the purpose of condoning the delay we have to examine the cause shown by the petitioner. If the delay is sufficiently explained, then it can be condoned otherwise not.
Learned advocate for the petitioner has filed applications under Section 5 of the Limitation Act for condoning the delay. In such a situation, the petitioner is required to explain the delay of each day by furnishing sufficient cause for enlargement of time and condonation of delay within the meaning of Section 5 of the Limitation Act.
Keeping in view the basic principles of constitutional jurisdiction we have examined applications and their supporting affidavits. The condonation of delay has been sought on the ground of misconception of law. The general rule is that ignorance of law or misconception of law is not a valid ground for condoning the delay, however, in a very special case it can be considered on furnishing sufficient cause. Reference is invited to Sitaram Charan v. M.N. Nagrashana AIR 1960 SC 260.
In this connection, it is pointed out that the application under Section 5 of Limitation Act is supported by the affidavit of the petitioner Hafiz Abdul Khalique Soomro. The ground taken in the application for condoning the delay is legal ground. The petitioner might have been advised by his advocate. There is no affidavit filed by the advocate to support the above ground. However, the law on the subject is very clear, as the Hon'ble Supreme Court of Pakistan in the case of Hussain Bukhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1 clearly observed that the High Court in its original jurisdiction entertains the writ petitions. Article 162 of the Limitation Act deals with the review of judgment by High Court in exercise of its original jurisdiction. Thus, there is no ambiguity in the law, if both are read together. Article 173 deals with the review of judgment except in the cases provided by Articles 161 and 162 of the Limitation Act. Thus, the law is settled, but the advocate did not conduct himself diligently with care and caution. The mistake can be condoned, if the same is bona fide and made in spite of due care and attention, but the mistake was result of negligence.
The Hon'ble Supreme Court of Pakistan and Privy Council in the cases of (1) Sultan Jan Khan v. Islamic Republic of Pakistan 1980 SCMR 964, (2) Khalid Farooq v. Hakim Nazar Muhammad 1979 SCMR 52 and (3) Brij Indar Singh v. Lala Kanshi Ram AIR 1917 Privy Council 156 observed that mere mistake or ignorance of law is not per se sufficient reason for condoning the delay. It was observed that the petitioner was required to place material or evidence before the Court to show the sufficient cause in the case; that the petitioner had taken the plea of misconception of law, apparently the same arose due to advice of a counsel, therefore, petitioner was required to file affidavit of the said counsel and in the absence of the affidavit of such counsel the delay cannot be condoned. The Hon'ble Supreme Court of Pakistan in the case of Ali Khan v. Shah Zaman 1980 SCMR 332 further observed that where the counsel, who was alleged to have given wrong advice, did not submit an affidavit in that respect before the Court, the delay cannot be condoned.
Following the rules and principles laid down by the Hon'ble Supreme Court the case of the petitioner does not come or fall within very special case where ignorance of law or misconception of law can be considered as a sufficient cause for condoning the delay.
In the light of what has been discussed above the applications under Section 5 of the Limitation Act are dismissed. Consequently, the review applications are also dismissed being time-barred.
Above are the reasons of our short order dated 9-3-2007 by which we had dismissed the review applications alongwith applications under Section 5 of the Limitation Act.
(R.A.) Applications dismissed
PLJ 2007 Karachi 280
Present: Zia Perwaz, J
Messrs HOTEL METROPOLE (PRIVATE) LIMITED, KARACHI--Petitioner
versus
Messrs TRAVEL ADVISOR, through Proprietor
and 2 others--Respondents
Const. P. No. S-286 of 2004, decided on 5.4.2007.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----Ss. 2(h) & 15--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ejectment of tenant--'Hotel'--Connotation--Premises as a hotel'--Fact of ownership of a premises by a hotel--Property is owned by hotel who is landlord would not attract, the bar for the tenement to be dealt with as a hotel for purpose of S.
2(h) of Ordinance, 1979--Principles--Jurisdiction is barred if the premises is a hotel--The wordhotel', inter alia, means "an Inn; especially one of a superior kind", and the word "inn" inter alia, means "a dwelling place, habitation, lodging, a public house for the lodging and entertainment of travellers, wayfarers etc." [P. 282] A
Words & Phrases--
----Hotel is a building held out to the public as a place where all transient persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a well defined private group. [P. 283] B
Words & Phrases--
----Hotel is a place where lodging are let and where provisions are, to some extent, supplied. [P. 283] C
Words & Phrases--
----A hotel is an establishment held out by proprietor as offering foods, drinks and if so required sleeping accommodations, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received. [P. 283] D
Interpretation of Statute--
----Concept of hotel imports the idea of providing accommodation to travellers and guests. [P. 283] E
Interpretation of Hotel--
----Hotel is a building held out to the public as place where all transient persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a well defined private group. [P. 283] F
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----Ss. 2(h) & 15--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Ejectment of tenant--Hotel--Connotation--Premises in hotel--Relationship of landlord and tenant--Building is described as hotel or it happened to be a hotel does not mean that the application in respect of the eviction of a person who is the lessee in respect of a premises in the hotel cannot be maintained--Building was at one time a hotel or that it is described as hotel in the lease agreement does not take away the jurisdiction of the Rent Controller in so far there is a relationship of landlord and tenant between the parties--Agreement executed between the petitioner and respondent clearly created relation of landlord and tenant between the parties and as such the Rent Controller had the jurisdiction to decide the dispute raised before him. [P. 284] G
Hotel--
----Premises as a hotel-Constitute the criteria--Ejectment of tenant--It is therefore the purpose for which the premises was let out that constitutes the criteria to define a premises as a hotel--Fact of ownership of a premises by a hotel, unless the activities are those ancillary to the operation of a hotel as in the case of shopping malls etc. which makes some part of the hotel. [P. 284] H
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 2(h)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ejectment of tenant--Hotel--Connotation--Principle--It is therefore the purpose for which the premises was let out that constitutes the criteria to define a premises as a hotel--Fact of ownership of a premises by a hotel, unless the activities are those ancillary to the operation of a hotel as in the case of shopping malls which makes some part of the hotel--The property is owned by hotel who is landlord would not attract the bar for the tenement to be dealt with as a hotel for purpose of Section 2(h) of the Sindh Rented Premises Ordinance, 1979. [P. 284] I & J
F.R.A. No. 356 of 1982; Shorter Oxford English Dictionary; Black's Law Dictionary; Stroud's Judicial Dictionary; Hallsbury's Law of England; PLD 1989 SC 294; PLD 1987 Kar. 273; 1983 CLC 723; 1990 MLD 840; 2005 YLR 122; 1995 SCMR 313 and 1996 SCMR 771 ref.
Mr. Shehanshah Hussain, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 5.4.2007.
Order
This constitution petition is directed against the impugned judgment of First Additional District and Sessions Judge Karachi South in F.R.A. No. 1294 of 2001 dated 6-3-2004, upheld the order of learned Xth Senior Civil Judge, Karachi South in Rent Case No. 1730 of 1997 dated 24-12-1999.
Mr. Shehanshah Hussain, learned counsel for the petitioner has contended that both the Courts below have held that the premises being that of a Hotel are not within the jurisdiction of Rent Controller. Contention of Mr. Shehanshah Hussain, learned counsel for the petitioner is that the actual use of the premises is the fact which determines the question of jurisdiction. The mere fact that a large building belongs to hotel in which activities of a hotel are confined to specific area while in the remaining area of the commercial building a number of tenements have been rented out on monthly rent not involving any hotel activities. These are matters to be considered on the basis of evidence on record. Mere fact that the premises is owned by a Company having the name of hotel would not attract the bar contained in Section 2(h) of the Sindh Rented Premises Ordinance, 1979.
In support of his contention he has relied upon a judgment of this Court in F.R.A. No. 356/1982 dated 31-1-1985 between the same parties.
Heard the learned counsel and perused the record.
The provisions requiring consideration is Section 2(h) of the Sindh Rented Premises Ordinance, 1979, which reads as follows:--
(h) "Premises" means a building or land, let out on rent, but does not include a hotel;
Bare reading of the sub-section shows that the jurisdiction is barred if the premises is a hotel. According to shorter Oxford English Dictionary the word "hotel", inter alia, means "an Inn; especially one of a superior kind", and the word "inn" according to the same dictionary inter alia, means "a dwelling place, habitation, lodging, a public house for the lodging and entertainment of travellers, wayfarers etc.". According to Black's Law Dictionary "hotel" means as under:--
"Hotel is a building held out to the public as a place where all transient persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a well defined private group."
In Stroud's Judicial Dictionary it is stated to be a place where lodging are let and where provisions are, to some extent, supplied.
In Hallsbury's Law of England the following statement has been made:
"A hotel is an establishment held out by proprietor as offering foods, drinks and if so required sleeping accommodations, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the service and facilities provided and who is in a fit state to be received."
From the various definitions of the word "hotel" its ordinary grammatical meaning and as used in some of the statutes interpreted judicially the concept of hotel imports the idea of providing accommodation to travellers and guests. See PLD 1989 SC 294 (Zafar Ali v. Allah Bachayo), PLD 1987 Kar. 273 (Dur Muhammad and others v. Muhammad Qasim), 1983 CLC 723 (Allah Ditta and 2 others v. Walayat and others), 1990 MLD 840 (Abdul Hameed Khan and others v. Karimji Ebrahimji and others). Hotel is a building held out to the public as place where all transient persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a well defined private group. See 2005 YLR 122 (Abdul Malid v. Muhammad Arshad and sons), 1995 SCMR 313 (Shafiq-ur-Rehman v. Haji Agha Hassan), 1996 SCMR 771 (Muhammad Anwar v. Jamaluddin).
The above meanings specifically convey that for purpose of the definition of hotel certain activities and functions associated with the operation of hotel should be involved in connection with the premises rented out.
In the instant case a large building is stated to be owned by Messrs Hotel Metropole, which is a limited company and the landlord however, the activities pertaining to the maintenance above are running of a hotel are confined to specific area, whereas, the landlord has rented out several tenements on monthly rent as in any commercial building which do not attract any activity associated or ancillary to that of a hotel. In this regard reference may be made to the earlier decision of this Court in judgment dated 31-1-1985 in F.R.A. No. 356 of 1982, wherein it has been observed that the application was filed before the Rent Controller on the ground of default in payment of rent in respect of Room No. 255 situated on the second floor of the building known as Metropole Hotel Club Road, Karachi from 8-1-1980. The monthly rent in the application to be Rs.2000. In addition to monthly rent mentioned above it is alleged that respondent is also required to pay Rs.170 per month towards electricity charges which was subsequently raised to Rs.195 per month from November, 1980. Respondent did not appear before the Rent Controller and as such ex parte proceedings were taken against the respondent. The appellant submitted his ex parte proof on 10th November, 1981 in the form of affidavit sworn by one D.P. Patel the Executive Vice-President of the appellant alongwith the copy of the lease agreement which has been executed between the appellant and the respondent. The Rent Controller however, dismissed the application on the ground in view of the definition of premises given in Section 2(h) of the Ordinance the room let out to the applicant being part of the hotel the application is not maintainable under the Ordinance. The view taken by the Rent Controller is fully misconceived as mere fact that the building is described as hotel or it happened to be a hotel does not mean that the application in respect of the eviction of a person who is the lessee in respect of a premises in the hotel cannot be maintained. The application as framed does not show that the premises in occupation of the respondent is a part of the hotel. On the contrary to lease agreement executed between the parties clearly show that it was the case of a formal lease agreement in respect of a portion of the building which is as Hotel Metropole Limited. The facts that the building was at one time a hotel or that it is described as hotel in the lease agreement does not take away the jurisdiction of the Rent Controller in so far there is a relationship of landlord and tenant between the parties. The agreement dated 8-1-1980 executed between the appellant and respondent clearly creates relation of landlord and tenant between the parties and as such the Rent Controller had the jurisdiction to decide the dispute raised before him.
It is therefore the purpose of which the premises was let out that constitutes the criteria to define a premises as a hotel. The fact of ownership of a premises by a hotel, unless the activities are those ancillary to the operation of a hotel as in the case of shopping malls etc. which makes some part of the hotel.
It appears that both the two Courts below ignored the view of this Court with particular reference to specific nature of occupancy as tenant.
Mere fact that the property is owned by hotel who is landlord would not attract the bar for the tenement to be dealt with as a hotel for purpose of Section 2(h) of the Sindh Rented Premises Ordinance, 1979. For the foregoing reasons the petition is allowed. Case was remanded to learned Rent Controller for decision of the ejectment application on merits on the basis of evidence already recorded.
(R.A.) Case remanded
PLJ 2007 Karachi 285
Present: Gulzar Ahmed, J.
ALLIED BANK OF PAKISTAN LTD.--Decree-Holder
versus
FATEH TEXTILE MILLS LIMITED and 7 others--Respondents
Execution Application No. 69 of 2004, and C.M.A. No. 900 of 2006, decided on 2.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R.23-A & S.47--Money decree, execution of--Objection to--Consideration by executing Court--Essentials--Executing Court would be barred from considering' such objection--Principles--Satisfaction of decree--Deposit or furnish security--Objections to the execution of a decree are to be read in conjunction with the provision of S.47, C.P.C.--Scope of objection that can be raised in execution--Section 47 of C.P.C., empowers the executing Court to determine questions relating to execution, discharge and satisfaction of decree--Question is within the scope of that a Court is barred from considering such objections, unless judgment--Debtor makes compliance of O.XXI, R. 23-A, C.P.C. by depositing the decretal amount in Court or furnishes security for its payment. [P. 291] A
PLD 2006 SC 226 and 2001 YLR 837 rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 47 & O.XXI, Rr.2(3), 23-A--Money decree execution of--Part payment out of a Court to decree-holder--Execution petition for recovery of remaining decretal amount--Objection to execution by judgment--debtor--Prayer for recording--Validity--Judgment debtor's plea in substance was an objection falling within scope of S.47, C.P.C. which related to question of execution, discharge and satisfaction of a decree--Such objection and all other points raised by judgment debtor could be considered only when he deposited decretal amount in Court or furnish security for its payment--High Court directed judgment-debtor to furnish security in the sum of remaining decretal amount within specified time to the satisfaction of Nazir of Court. [P. 291] B
PLD 1995 Lah. 107; PLD 1976 Kar. 1133; 1992 CLC 1699; 2003 CLD 288; 2002 CLC 904; AIR 1929 All. 79; AIR 1939 All. 581; AIR 1962 Punjab 293; AIR 1963 Punjab 133; AIR 1938 Lah. 602; AIR 1938 Lah. 126; PLD 1977 Lah. 728; AIR 1954 Cal. 620; 1969 MLD 680; AIR 1964 Mad. Pra. 226; PLD 1988 Kar. 620; 1966 SCMR 237; AIR 1935 Lah. 589; AIR 1941 Lah. 149; AIR 1933 Mad. 28; AIR 1939 Sindh 243; AIR 1938 Rang. 353; PLD 1981 Kar. 398; 2002 CLD 218; 1995 SCMR 1431; PLD 1976 Kar. 458; PLD 1958 Dacca 179; 1994 CLC 2272; AIR 1956 MB 25; AIR 1926 All. 715; PLD 1963 Dacca 816; AIR 1951 Qrissa 291; AIR 1961 Punjab 439; AIR 1960 Punjab 459; AIR 1939 PC 80; AIR 1933 Pesh. 53; PLD 1951 Lah. 32; PLD 1958 Dacca 36; PLD 1961 SC 192; 1994 SCMR 349; AIR 1944 Cal. 53; PLD 1989 Kar. 102; AIR 1938 Rangon 328; AIR 1939 PC 86; AIR 1945 Mad. 161; AIR 1941 Bom. 302; AIR 1928 Cal. 527; PLD 1994 AJ&K 8; PLD 1964 Dacca 637; PLD 1956 Dacca 96; AIR 1928 Oudh 195; AIR 1925 Bom. 309; AIR 1933 Sindh 305; AIR 1934 All. 209; PLD 1982 Kar. 76; AIR 1960 Punjab 437 and AIR 1935 All. 513 ref.
PLD 2006 SC 226; 2001 YLR 837; 1970 SCMR 105 and PLD 1965 SC 139 rel.
Mr. Rashid Anwar, Advocate for Decree-Holder.
Dr. Farogh Naseem, Advocate for Judgment-Debtor.
Mr. Mansoorul Arifin, Amicus Curiae.
Date of hearing: 2.4.2007.
Order
By this execution application Decree Holder has sought execution of decree dated 29-8-2002 passed in Suit No. B-32/2002. The "Judgment Debtors have filed objections to the execution application. The suit was decreed in terms of the compromise arrived at between the parties through agreement dated 9-8-2002 wherein the Judgment Debtors have agreed to pay the Decree Holder an amount of Rs. 2,550,000,000. Such payment was to be made within 7 years starting from 1-1-2003 by down payment of Rs. 500,000,000. Rs. 100,000,000 vide Cheque No. 3461101 dated 30-9-2002, Rs.400 million by 12-10-2002 through sale of shares pledged with the bank and balance Rs.2,050,000,000 in equal quarterly instalments including mark up at 11% per annum as per schedule of the agreement starting from 1-1-2003. It is stated that as against the above decree the Judgment Debtors paid Rs. 604.784 Million but the remaining amount was not paid consequently this execution application is filed wherein the Decree Holder has sought execution of the decree for payment of Rs.2,481,013,802.21 with mark up at 11% per annum from 17-8-2004 till realization. As stated above the Judgment Debtors have filed objections to the execution application.
Mr. Rashid Anwar learned Counsel for the Decree Holder has contended that the objections filed by the Judgment Debtors cannot be considered unless the Judgment Debtors fulfil the condition precedent for considering of objections as provided under Rule 23-A of Order XXI, C.P.C. In support of his submission, he has relied upon the cases of Happy Family Associates v. M/s. Pakistan International Trading Company (PLD 2006 SC 226) Muhammad Jamil v. Haji Muhammad Din (PLD 1995 Lahore 107), Gul Muhammad Meer Bahar v. NLC (2001 YLR 837), Muhammad Yasin Khan v. Aftab Ahmed Khan (PLD 1976 Kar. 1133) Hanifa Begum v. Muhammad Qamar Zaman (1992 CLC 1699) Abdul Hameed v. Allied Bank of Pakistan (2003 CLD 288) and M/s. Naushera Bricks & Tiles (Pvt.) Ltd. v. Regional Development Finance Corporation (2002 CLC 904).
Dr. Farogh Naseem learned counsel for the judgment-debtors on the other hand has contended that the objections filed by the judgment-debtors may be treated as an application under Order XXI, Rule 2(3), read with Section 151, C.P.C. for recording satisfaction of the decree by way of an adjustment in writing. He has further contended that while treating the objections as an application for the satisfaction of the decree by way of an adjustment the Rule 23-A will not have application and there is no requirement for the judgment-debtors to make deposit or to furnish security in respect of the decretal sum. In support of his submissions he has relied upon the cases of Ganga Dihal Rai v. Ohdh Ram AIR 1929 All. 79, Abdi Hussain v. Kunj Behari Lal AIR 1939 All. 581, Chairman District Council Jhelum v. Ali Akbar 1970 SCMR 105, Nazeer Hussain Shah v. The State PLD 1965 SC 139, Ram Chand Gupta v. Wazir Chand AIR 1962 Punjab 293, Bholo Ram v. Kanhya AIR 1963 Punjab 133, Darumal v. Todar AIR 1938 Lah. 602, Murli Dhar v. Firm Bashesharlal Motilal AIR 1938 Lah. 126, Muhammad Tariq v. Mst. Fazeelat PLD 1977 Lah. 728, Ramnath Sarma v. Baidyanath Chatterjee AIR 1954 Cal. 620, Mrs. Zia Farhat v. Presiding Officer Special Court (Banking) 1969 MLD 680, The Allahabad Bank Limited v. Chairman Chaudhry AIR 1964 Mad. Pra. 226, Usman Hussain v. Habib Bank Limited PLD 1988 Kar. 620, Malik Gul Hassan and Company v. Allied Bank of Pakistan 1966 SCMR 237, Jagan Nath Charan Das v. Thakardas Kaliandas AIR 1935 Lah. 589, S. Udham Singh v. S. Atma Singh AIR 1941 Lah. 149, Ramanarasu v. Matta Vankata Reddy AIR 1933 Mad. 28, Lachhumal Morumal v. Attamahammad Khan Nabibaksh Khan AIR 1939 Sindh 243, VNA Firm v; Bank of Chettinal Ltd. AIR 1938 Rang. 353, Major (Red.) Ahmed Khan Bhatti v. Mst. Massed Fatmi PLD 1981 Kar. 398, Al-Huda Hotels and Tourism Company v. Paktel Limited 2002 CLD 218, Sandoz Ltd. v. Federation of Pakistan 1995 SCMR 1431, Province of West Pakistan v. Gammon's Pakistan Ltd. PLD 1976 Kar. 458, Nagendranath Majumdar v. Kshitish Chandra Ghose PLD 1958 Dacca 179, Banque Indosuez v. Banking Tribunal for Sindh and Balochistan 1994 CLC 2272, Todarmal Tejmal v. Chironjilal Gopilal AIR 1956 MB 25, Moti Shah v. Ghandharp Singh AIR 1926 All. 715, Muhammad Sama Mondal v. Muhammad Ahmed Shaikh PLD 1963 Dacca 816, Rajkishor Mohanty v. Banebehari Patnik AIR 1951 Orissa 291, M/s. Seghal Brothers v. Bharat Bank Ltd. AIR 1961 Punjab 439, Bharat Bank Ltd. v. M/s. Seghal Brothers AIR 1960 Punjab 459, Oudh Commercial Bank Ltd. v. Thakurain Bind Basni Kuer AIR 1939 PC 80, Ram Das v. Ali Bahadur AIR 1933 Pesh. 53, Haji Hafiz Abdul Shakoor Khan v. Administrator Municipal Committee, Multan PLD 1951 Lah. 32, Sultan Ahmed Sharif v. Mathura Mohan Chowdhury PLD 1958 Dacca 36, Islamic Republic of Pakistan v. Muhammad Saeed, PLD 1961 SC 192, Chaudhry Muhammad Nawaz v. Chaudhry Rehmat Ali 1994 SCMR 349, Girish Chandra Santra v. Purana Chandra Bhattachar Jya AIR 1944 Cal. 53 and Dr. Major Abdul Ahad Khan v. Muhammad Iqbal PLD 1989 Kar. 102.
Mr. Mansoorul Arfin, a learned senior counsel was appointed as amicus curiae to assist the Court in determining the question as to whether an objection filed to the execution application can be treated as an application under Order XXI, Rule 2(3), C.P.C. without making compliance of Rule 23-A of Order XXI, C.P.C.. Learned amicus curiae has contended that if the objection is considered to be an application under Order XXI, Rule 2(3), C.P.C. the same in terms of Article 174 of the Limitation Act has to be filed within 90 days from the date of payment or adjustment. He has further stated that apparently the condition provided in sub-rule (3) of Rule 2 of Order XXI, C.P.C. has not been complied with inasmuch as there is no adjustment made in writing to be recognized by the Court. He has also submitted that the question of considering the objection to be an application under Order XXI, Rule 2(3), C.P.C. will also attract the provision of Rule 23-A of Order XXI, C.P.C. and the Judgment Debtors will be required to fulfil this condition precedent. He has further submitted that in case the Judgment-Debtor does not file an application under Rule 2(3) of Order XXI, C.P.C. in 90 days and if the Decree Holder does not accept payment or adjustment, the remedy of the Judgment-Debtors is to file suit for recovery of money paid in terms of Rule 29 of Order XXI, C.P.C. He has also submitted that Rule 23-A will not be applicable if the application under Rule 2(3) of Order XXI, C.P.C. is filed in 90 days and has cited the case of Muhammad Jamil (supra).
Dr. Farogh Naseem learned counsel for the judgment-Debtors in respect of the point of limitation has relied upon the cases of Abid Hussain v. Kunj Behair Lal AIR 1939 All. 581 and A.T.N.A.T. Chokalingam Chettyar v. A.K.R.M.M.N.M.N. Naryana Chettyar AIR 1938 Rangoon 328.
Learned counsel for the Decree-Holder on the other hand has contended that the adjustment of the decree claimed by the Decree Holder cannot be considered because it is not certified. He has further contended that Rule 23-A will still be applicable and has relied upon Oudh Commercial Bank Limited (supra), Anath Nath Birwas Ddwarkanath Chakravati AIR 1939 PC 86, Chowdhry Abdul Sobhan Sahib v. Kanti Ramana AIR 1945 Mad. 161, Kirishna Govind Palil v. Moolhand Keshavechand Gujar AIR 1941 Born. 302 and Chaudhry v. Aliraja AIR 1928 Cal. 527. As regards the point of limitation, the learned counsel has relied upon the case of Dr. Major Abdul Ahad Khan (supra), Abdul Ghani v. Rasif Khan PLD 1994 AJ&K 8, Muhammad Ishaque Ali v. Heeralal Seraogi PLD 1964 Dacca 637, Makachhed Molla v. Abdul Jabbar Molla PLD 1956 Dacca 96, Fatimunissa v. Asghar Hussain AIR 1928 Oudh 195, Mehbunissa Begum v. Mehdunissa Begum 1925 Born. 309, Shiraldas Mohandas v. Lalchand Vallabdas AIR 1933 Sindh 305 and B. Mourari Lal v. Raghbir Saran AIR 1934 All. 209. Learned counsel has further submitted that no contract for settlement was concluded and there was no adjustment and that the alleged contract is void being without consideration and has relied upon the cases of Al-Huda Hotels and Toursim Company (supra), Messrs Shalsons Fisheries Limited Karachi v. M/s. Lohmann and Company PLD 1982 Kar. 76, S. Udham Singh v. S. Atma Sindh AIR 1941 Lah. 149. Mst. Bhagawani v. Lakhim Ram AIR 1960 Punjab 437 and Anarunchallam Chettyar and A.P. Bhagchi v. Mrs. F. Morgan AIR 1935 All. 513.
I have considered the submissions of the learned counsel.
Though the learned counsel for the parties have made extensive submissions on the merits of the execution application and on the objections/application, but before dilating upon such submissions, it appears that the question, as to whether the judgment debtors may be asked either to deposit the decretal amount in Court or furnish security for its payment in terms of Rule 23-A of Order XXI, C.P.C., needs to be examined first. The judgment debtors have filed objections which the learned counsel for judgment debtors submits that it may be treated as an application under sub-rule (3) of Rule 2 of Order XXI, C.P.C. with prayer that the decree stands satisfied by adjustment in writing. In the cases of Ganga Dehil Roi and Abid Hussain (supra) cited by the counsel for judgment debtors it has been held that an application by the judgment debtor praying for an adjustment to be recorded need not to be a document `separate' from the objections filed by him on the ground of such adjustment. Apparently, the observations in these two cases are that the application for adjustment and the objections in essence are one and the same document. In any case Section 47, C.P.C. also provides that all questions arising between the parties to the suit in which the decree was passed or their representative and relating to execution, discharge or satisfaction of decree shall be determined by the Court executing the decree and not by a separate suit. In the case of Happy Family Associates (supra), the Supreme Court of Pakistan has observed that the provision of Rule 23-A of Order XXI, C.P.C. is mandatory and the objection to the execution by judgment debtor cannot be considered unless the judgment debtor deposits the decretal amount in Court or furnish a security for its payment. In the case of Gul Muhammad Mir Bahar (supra) a learned single Judge of this Court noted the fact that the judgment debtor has filed objections to the execution application in the form of an application under Order VII, Rule 11, C.P.C. It was noted in the order that though there is nobody in attendance to prosecute this application but in view of Order XXI Rule 23-A, C.P.C. objections are not to be heard unless the judgment debtor deposits the decretal amount or furnishes security which ever ordered by the Court. In the case of Qadir Ahmed Siddiqui (supra) Mr. Justice Zaffar Hussain Mirza as a Judge of this Court made the following observations:
"6. On a careful examination of scheme of the Code of Civil Procedure, I am of the view that there is no warrant for the contention that Section 47 and Order XXI, Rule 23-A, C.P.C.. are to be read independent of each other or that Section 47 furnishes an independent right to remedy relating to execution of a decree. Section 47 is included in Part 2 of C.P.C. the main title of which is `execution'. This part deals with the procedure and powers of the Court in execution of a decree. Section 47 itself has been captioned with a sub-title: "Questions to be determined by Court executing decree". The section itself provides that all questions arising between parties relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by separate suit. From the bare reading of section and the scheme in which it is placed in the Code of Civil Procedure it is quite clear that Section 47, C.P.C. postulates the determination of questions relating to execution of a decree by the Court which is executing the decree. The words are not "the Court competent to execute the decree". It is, therefore, difficult to agree with the learned counsel or judgment-debtor that this section provides an entirely independent right to remedy as to questions relating to execution of the decree. The obvious intention was to exclude and bar the right to file a separate suit as to questions inter alia relating to the execution of a decree. In this view of the matter it is patently obvious that the provisions of Order XXI, C.P.C. which also relate to the execution of decree and provide for detailed procedure in that regard are to be read with Section 47, C.P.C. Rules 22 and 23-A pertain to the procedure for disposal of execution application. On a proper reading of the provision of the aforesaid rules it appears that the right to raise objection was substantively extended to the judgment-debtor under Rule 22 of Order XXI, C.P.C. and the scope of the objections that can be raised in execution is governed by Section 47, C.P.C. The objection as to the non-executability of the decree obviously relates to the execution of the decree and a Court would clearly be barred from considering the same under the provisions of Rule 23-A unless the judgment-debtor deposits the decretal amount in the Court or furnishes the security for its payment. The mere fact that in a case where the Court has not yet issued notice to the judgment-debtor or where no such notice is required to be given, would not entitle the judgment debtor to by-pass the provisions of Rule 23-A and be heard without compliance thereof."
Now the rule appears to be that the provisions of Order XXI, C.P.C. as it relates to the objections to the execution of a decree are to be read in conjunction with the provision of Section 47, C.P.C. which lays down the scope of the objections that can be raised in execution. Section 47 as noted above empowers the executing Court to determine questions relating to execution, discharge and satisfaction of decree. It bars a separate suit where question is within the scope of this Section that a Court is barred from considering such objections unless the judgment debtor makes compliance of Rule 23-A by depositing the decretal amount in Court or furnishes security for its payment. The plea of the judgment debtors, in substance is an objection which is within the scope of Section 47, C.P.C. as it relates to the question of execution, discharge and satisfaction of a decree which can only be considered when the judgment debtors deposit the decretal amount in Court or furnish security for its payment as provided in Rule 23-A of Order XXI, C.P.C. Having come to such conclusion, all other points raised by the learned counsel need not be considered at this stage but will be considered after the judgment debtors have made compliance of Rule 23-A. The judgment debtors are directed to furnish security in the sum of Rs.2,481,013,802.21 within one month from this order to the satisfaction of the Nazir of this Court.
I am grateful to the assistance which the learned amicus curie has extended during the course of hearing of this matter. Adjourned to a date in office.
(R.A.) Order accordingly.
PLJ 2007 Karachi 292 (DB)
Prensent: Muhammad Afzal Soomro and
Rahmat Hussain Jafferi, JJ.
HAKIM ALI--Appellant
Versus
Messrs PAKISTAN HERALD PUBLICATIONS (PVT.) LTD. through Chief Executive and 4 others--Respondents
High Court Appeal No. 324 of 2001, decided on 4.5.2007.
Defamation--
----Suit for damages--Appellant was engaged in business of real estate and was alleged in a news item--Appellant was arrested, suspected to be link between illegal immigrants--Report was published by respondents in contrary to F.I.R. which has caused the appellant's goodwill and reputation, in eyes of public-at-large to be furnished by publication of baseless story--Legal notice was given to respondents--Name of seekers abroad was concocted story to defame harass and turnish the reputation of appellant for ulterior motives which gave rise to cause for claiming damages--Validity--Sources of news item was the F.I.R. which was lodged against the appellant, with allegation that the appellant indulged in a business of trafficking and counterfeiting of passport/visa falling within the scope of offences punishable--If an offence is committed, it is committed against the society apart from concerned individual, therefore, the public has interest in the offence--The news item appears to be published for the public's beneficial purpose so as to save them from the persons who are in the business of trafficking and protect them from being deceived. [Pp. 294 & 296] A, B & E
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 85--Public document--If a public officer maintains a record then it would become the public record. [P. 296] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Qanun-e-Shahadat Order (10 of 1984), Art. 49--First Information Report--Public document--F.I.R. recorded by the police officer u/S. 154 Cr.P.C. is recorded by him in the discharge of his official duty by virtue of Art. 49 of Qanun-e-Shahadat Order, 1984, therefore, it is a public document. [P. 296] D
Public Purpose--
----Concept--Connotation--Benefit of community--Test--Question of--Determination--Test is the only way in which a line can be drawn to distinguish a public purpose from a private purpose--Difference between two can become recognizable and meaningful only if such interpretation is accepted. [P. 296] F
Publication--
----Purpose of--Beneficial consumption--Purpose of publication was primarily and predominantly one of the general interest of the community, therefore the publication was for the beneficial consumption of public in order to save them from being deceived.
[P. 297] G
Defamation--
----Question of rights of persons who occupy the public office and individual persons in respect of defamation is a completely difference subject which does not attract in present circumstances of the case when the news item is based on a public document which is the property of public and public have every right to know the contents of the public documents viz. F.I.R. [P. 297] H
PLD 2005 Kar. 399; SBLR 2006 SC 1616; PLD 1957 Lah. 283; PLD 1975 Kar. 556; PLD 1981 Kar. 515; PLD 1996 Lah. 410; PLD 1968 SC 25; PLD 2002 SC 514; 1985 SCMR 123; AIR 1952 SC 242 and AIR 1914 PC 20 ref.
Mr. Abid S. Zuberi, Advocate for Appellant.
Mr. Salahuddin Ahmed, Advocate for Respondents.
Date of hearing: 30.3.2007.
Judgment
Rahmat Hussain Jafferi, J.--The present appeal is directed against the judgment dated 12-9-2001 and decree dated 22-9-2001 passed by the learned Single Judge in Suit No. 154 of 1991 (Hakim Ali v. Editor, Dawn English Newspaper and others) by which the suit of the appellant for defamation and damages in the sum of Rs. 10,00,000 was dismissed.
Brief facts giving rise to the present Appeal are that the appellant was the director of the company namely Messrs Diamond Estate (Pvt.) Limited, engaged in the business of real estate and was alleged in a news item appearing in the daily
DAWN' English of 5-12-1990 and dailyDAWN' Gujrati of 6-9-1990 that the appellant was arrested, suspected to be a link between illegal immigrants and some agents settled in U.S. with International Passports of Pakistan, Srilanka, Iran and Bangladesh. The name of the appellant allegedly mentioned in newspaper report is Hakim Ali'. According to the appellant the report published by the respondents is contrary to the F.I.R. lodged, which has caused the appellant's goodwill and reputation, in the eyes of public at large to be tarnished by the publication of the said baseless story. It is stated that a legal notice was given on 26-12-1990 to the respondents seeking a contradiction to be published after confirmation from the contents of the F.I.R. Bearing No. 691 of 1990 dated 30-11-1990. According to the appellant the said contradiction never appeared in the newspaper. In view of the above, the name of the appellant having been placed as a link in the illegal export of the job seekers abroad was a concocted story to defame, harass and tarnish the reputation of the appellant for some ulterior motives which gave rise to cause for claiming damages. The appellant had sought damages to the extent of Rs. 500,000 from such publication namely the dailyDAWN' English and daily `DAWN' Gujrati and has sought that the publisher also pay the same.
The written statement to the suit was filed stating that the publication was in the name of Hakim Ali whereas the appellant was not Hakim Ali but `Hakim Ali' and the appellant had not pleaded innuendo which lead to identification of the alleged libel to him. The respondents, however, denied that any harm was caused to the appellant's reputation or goodwill on account of the impugned news report. It is pleaded that the report was published in good faith and was in fact fair comment on a matter of public interest and thereby no harm to reputation of the appellant was caused and that said story was not defamatory in any manner whatsoever, on the basis of the F.I.R. lodged.
Out of the pleadings of the parties, the trial Court framed the following issues:-
(i) Whether the impugned publication is referable to the plaintiff?
(ii) Whether the plaintiff has any cause of action against the defendant?
(iii) Whether the plaintiff is entitled to any damages, if so, to what extent?
(iv) What, if any, is the extent of liability of each of the defendants?
(v) Relief.
"Whether the news report published in newspaper daily DAWN' English and dailyDAWN' Gujrati has caused any defamation to the plaintiff?"
The additional issue was decided against the appellant. Consequently, the suit was dismissed.
We have heard the parties' advocates and perused the record of this case very carefully.
The learned Advocate for the appellant has argued that in the case of defamation against public functionaries and private persons the same is to be examined on different yardsticks; that the respondent did not lead any evidence; that the publication was based on investigation conducted by the respondent; and that the said investigation was false and the appellant has been defamed in the community. He has relied upon Wolston v. Reader's Digest Association, Inc. No. 78-5414, Mehmood Ali v. Network Television Marketing (Pvt.) Limited (PLD 2005 Karachi 399), Abdul Ghafoor v. Muhammad Hasan (SBLR 2006 SC 1616), Muhammad Sharif v. Nawab Din (PLD 1957 Lahore 283), Muhammad Ansar-ul-Islam v. Karachi Stock Exchange Limited, Karachi PLD 1975 Karachi 556 and Altaf Gauhar v. Wajid Shamsul Hasan PLD 1981 Karachi 515.
Conversely, the learned advocate for the respondents has stated that the appellant was required to prove express malice of the respondents against the appellant but no such fact has been proved by the appellant that the story published in the newspapers was based on the F.I.R. which was a public document; that the substance of libel is the sting of defamation and not the details; that the main story is based upon the F.I.R. which has not been denied by the appellant; that the sting of the news was the trafficking of human resources through various modes; that the public had interest in the matter which was reported to save the public; and that there was no enmity between the appellant and the respondents as admitted by the appellant in the cross-examination. He has relied upon Majid Nazami v. Muhammad Rashid PLD 1996 Lahore 410, Moosa v. Muhammad PLD 1968 SC 25, Muhammad Rashid v. Majid Nizami PLD 2002 SC 514, Majid Nazami v. Muhammad Rashid PLD 1996 Lah. 410 and Bashir Ahmed v. Ahmad-ul-Haq Siddiqui 1985 SCMR 123.
We have given due consideration to the arguments and found that the parties have admitted that the source of news item was the F.I.R. which was lodged on 30-6-1990 at Police Station Passport Cell, Karachi against the appellant with allegation that the appellant indulged in a business of trafficking and counterfeiting of passport/visa falling within the scope of offences punishable under Section 6(1)(g)&(h) of Passports Act, 1974 read with Sections 420/468/471, P.P.C. We have also gone through the news item and found that the said news item is based on the F.I.R. and the applications moved by the Investigating Officer before the Magistrate for obtaining remands as is clear from the impugned judgment. Under Article 85 of Qanun-e-Shahadat Order, 1984 if a public officer maintains a record then it would become the public record. The First Information Report recorded by the police officer under Section 154, Cr.P.C. is recorded by him in the discharge of his official duty by virtue of Article 49 of Qanun-e-Shahadat Order, 1984, therefore, it is a public document.
It is pointed out that if an offence is committed, it is committed against the society apart from the concerned individual, therefore, the public, has interest in the offence. The news item appears to be published for the public's beneficial purpose so as to save them from the persons who are in the business of trafficking and protect them from being deceived.
The expression "public purpose" as pointed out by Mahajan, J. in State of Bihar v. Sir Kameshwar Singh AIR 1952 SC 252 at page 311 is not capable of precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. However a broad test has been formulated by Judicial decisions, and it is that:
"Whatever furthers the general interest of the community as opposed to the particular interest of the individual must be regarded as a public purpose."
"the phrase, whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned."
G
H
(R.A.) Appeal dismissed.
PLJ 2007 Karachi 298
Present: Faisal Arab, J.
IRSHAD alias ABDUL RAHIM and 2 others--Applicants
versus
ASHIQ HUSSAIN--Respondent
C.R. Appl. No. 25 of 2005, decided on 27.4.2007.
Partition--
----Partition between co-sharers--Legal forum--Private arrangement or partition so arrived at between the co-sharers is honoured by them and acted upon for years together--Particular co-sharer is resected and recognized by other co-sharers as his exclusive share in properties. [P. 301] A
Co-sharer--
----Partition--Legal proceeding--Private arrangement--Where a co-sharer of private arrangement or partition of joint properties had disposed of his individual share to a third person, then such deposition is also to be given legal validity--Co-sharer may choose to exercise right of pre-emption, if available in law but it does not mean that co-sharers can question the right of co-sharer to deal with his specifically assigned share in any manner he likes--Any disposition of a share in joint property, which was assigned to a co-sharer under a private arrangement or partition cannot be questioned for want of formal decree of partition of a competent Court of law. [Pp. 301 & 302] B
Joint Properties--
----Co-sharer--Private arrangement or partition one may not rule out--Possibility--Divided among the co-sharers--A co-sharer may have been given a smaller or bigger share in a particular property to be owned and enjoyed by him towards his share on account of its location or monetary value, built up area or quality of land in comparison to other joint properties--Held: Co-sharer may be tempted to retract from private arrangement or partition arrived at earlier and seek de novo partitioning before a Court of law. [P. 302] C
Private partition--
----Validity--Private partition is legally recognized it is to be seen whether there is sufficient evidence on record to give legal validity to such private arrangement or partition. [P. 302] D
Civil Procedure Code, 1908 (V of 1908)--
----O.II, R. 2--Suit to include the whole claim--Scope of--Every suit must include all claims to which a plaintiff is entitled in respect of cause of action. [P. 303] E
Civil Procedure Code, 1908 (V of 1908)--
----O.II, R. 2(3)--Relief--Entitlement--Where a plaintiff is entitled to more than one relief in respect of a cause of action then he may sue for all or any of other relief but if he in his suit either omits or relinquishes any of the reliefs to which he was entitled to, then he shall not be permitted at any subsequent stage to sue for such reliefs.
[P. 303] F
Civil Procedure Code, 1908 (V of 1908)--
----O.II, R. 2--Object of--Cuase of action--Main object of Order II, Rule 2 CPC is to prevent a plaintiff to initiate multiple proceedings against a defendant on the basis of same cause of action and in case he had omitted to seek any relief based on same cause of action in one proceedings then in terms of Order II, Rule 2 CPC he is barred from seeking the relief or reliefs so omitted in any subsequent proceedings.
[P. 303] G
Kazi Munawar Ali, Advocate for Applicants
Mr. Naimatullah Soomro, Advocate for Respondent.
Date of hearing: 10.4.2007.
Judgment
Late Haji Abdul Rasool was owner of residential property bearing Plot No. 34, Soldier Bazar Saddar, Hyderabad measuring 2991 square feet. The Plot No. 34 contained two sub-plot numbers i.e. 34/1 and 34/2.
In the year 1966 late Haji Abdul Rasool built a new house on that portion of the property which comprised of sub Plot No. 34/1 leaving sub-Plot No. 34/2 as an open space. He died in the year 1973 leaving behind one widow Mrs. Qudsia, son Irshad alias Abdul Rahim and two daughters Shabana and Gulnaz. The first three of the four heirs are party to the present proceedings and are applicants in this revision. The fourth heir Gulnaz was Haji Abdul Rasool's daughter from his first wife and has not been made a party.
It has come on record that after the death of Haji Abdul Rasool, Gulnaz first rented out the sub-Plot No. 34/2 with some semi-pacca room constructed thereon to one Muhammad Ibrahim Soomro. If has also come on record that in the month of February, 1983 Gulnaz got married. After her marriage Gulnaz sold sub-Plot No. 34/2 to her tenant Muhammad Ibrahim Soomro on 9-7-1983 through a registered sale-deed by treating sub-Plot 34/2 as her 22 paisa share inherited from her late father. In the sale-deed it is stated as follows:
"The vendor has delivered the possession of the above said property viz. house numbered as 34/2 described herein above fully, to the purchaser, who hitherto before had been a tenant therein and henceforth the owner of the same."
After the above sale of Plot No. 34/2 in 1983 the applicants filed pre-emption suit Bearing No. 402 of 1983 in the Court of IVth Senior Civil Judge, Hyderabad claiming right of pre-emption against Muhammad Ibrahim Soomro. While the pre-emption suit was pending, Muhammad Ibrahim Soomoro sold Plot No. 34/2 to one Mst. Khadeja on 20-7-1985 who was also made a party to the suit upon such transfer. On 3-9-1986 Mst. Khadeja sold sub-Plot No. 34/2 to one Ghulam Mujtaba. On 6-12-1988 the pre-emption suit filed by the applicants was dismissed for non-prosecution. The order of dismissal of suit was not challenged any further by the applicants and it attained finality. After four years of dismissal of the pre-emption suit, Ghulam Mujtaba sold sub-Plot No. 34/2 to Ashiq Hussain on 11-11-1994, who is its present owner and respondent in the present revision.
In the year 1998 the present applicants initiated fresh proceedings by filing suit i.e. Suit No. 20 of 1998 against Ashiq Hussain seeking partition of Plot No. 34 on the ground that it is joint property of the applicants and Gulnaz is only 22 paisa shareholder in the properties left by late father. Ashiq Hussain was sued as he was current owner and occupier of sub-Plot No. 34/2. Gulnaz was not made a party to the partition suit.
The suit for partition was however dismissed by the learned Senior Civil Judge. The main reason which prevailed with the learned Senior Civil Judge was that specific area Comprising No. 34/2 was sold by Gulnaz to Muhammad Ibrahim Soomro and thereafter the Plot No. 34/2 changed several hands until it was purchased by Ashiq Hussain i.e. the respondent and that Plot No. 34/2 was even recognized in the records of Hyderabad Cantonment Board as a separate portion and therefore there already existed two separate plots bearing Plot Nos. 34/1 and 34/2. Learned Senior Civil Judge also relied upon the death certificate of Haji Abdul Rasool filed as Exh.94/C wherein his death was shown on Plot No. 34/1 meaning thereby that two separate plots already existed.
After dismissal of their partition suit, the present applicants preferred appeal before Additional District Judge, Hyderabad which too met the same fate, hence the present revision application.
It is contended by the learned counsel for the applicants that no formal partition of the property was made and all that was sold by Gulnaz was her undivided 22 paisa share in the joint property and, therefore, the applicants were entitled for a decree of partition which was wrongly refused by both the courts below. He referred to the recital in the sale-deed dated 9-7-1983 wherein it is stated that Gulnaz is owner of 22 paisa share in the joint property. The applicants counsel also contended that out of 2991 square feet of Plot No. 34 the area sold by Gulnaz is 931 square feet whereas her 22 paisa share comes to only 660 square feet.
On the other hand, learned counsel for the respondent argued that record shows that there existed private partition whereby Plot No. 34/1 was retained by the applicants and Plot No. 34/2 was exclusively given to Gulnaz towards her 22% share. He further argued that when Gulnaz sold Plot No. 34/2 to Muhammad Ibrahim Soomro, the only claim that was made by the applicants was their right of pre-emption to such sale which was exercised by filing pre-emption suit i.e. Suit No. 402 of 1983. The plea that sub-Plot No. 34/2 was exclusively handed over to the purchaser by virtue of sale-deed in absence of any partition between the co-owners was not taken in the suit. Learned counsel for the respondent further contended that though the distribution of sub-Plot No. 34/2 appeared to be disproportionate to the 22 paisa share of Gulnaz but the reason being that sub-Plot No. 34/1 comprised of build up building whereas sub-Plot No. 34/2 was an open space with only one katcha-pacca room.
I shall now proceed to examine the existence of any private arrangement or partition whereby sub-Plot No. 34/2 fell exclusively to the share of Gulnaz.
It is not unusual in our society that properties held in common at times are privately partitioned between the co-sharers without taking recourse to any legal forum, be it revenue or Civil Court. The private arrangement or partition so arrived at between the co-sharers is honoured by them and acted upon for years together. Individual holding of a particular co-sharer is respected and recognized by the other co-sharers as his exclusive share in the joint properties. Such private arrangement or partition if acted upon by the co-owners has to be recognized as lawful partition. In such eventuality the co-sharers who have recognized the private arrangement or partition and have also acted thereon for years together cannot then turn around and question the same by seeking fresh partition before any revenue or other appropriate judicial forum on the ground that no formal partition from a Court of law has been obtained. The private arrangement and partition deserves the same sanctity which a lawful contract deserves and should not be interfered with in any legal proceedings unless the private arrangement or partition is otherwise not legally permissible. Where a co-sharer of such private arrangement or partition of joint properties had disposed of his individual share to a third person, then such disposition is also to be given legal validity. Certainly any one or all of the other co-sharer may choose to exercise right of pre-emption if available in law but it does not mean that the co-sharers can question the right of a co-sharer to deal with his specifically assigned share in any manner he likes. Any disposition of a share in a joint property, which was assigned to a co-sharer under a private arrangement or partition cannot be questioned for want of formal decree of partition of a competent Court of law.
Under a private arrangement or partition one may not rule out the possibility that it is so divided among the co-sharers which may not reflect one's true percentage of share which he owns in the joint properties. An apparent disproportionate distribution may have taken place keeping in view various other factors prevalent at the time of distribution. A co-sharer may have been given a smaller or bigger share in a particular property to be owned and enjoyed by him towards his share on account of its location or monetary value, built up area or quality of land in comparison to other joint properties. Once distribution is carried out and acted upon by the co-sharers then any subsequent variation in their value would not warrant de novo distribution of shares. A particular business given to one co-sharer as his share may grow by geometrical proportions or value of a particular immovable property may enhance manifold than the value of properties belonging to other co-sharers. In such like events, a co-sharer may be tempted to retract from the private arrangement or partition arrived at earlier and seek de novo partitioning before a Court of law. Such redistribution of joint properties cannot be allowed on the ground that earlier private distribution was not carried out by taking recourse to a Court of law or is disproportionate to the actual share of a co-sharer.
It may be mentioned that before a private arrangement or private partition is legally recognized it is to be seen whether there is sufficient evidence on record to give legal validity to such private arrangement or partition. A written private arrangement or partition poses no difficulty and is to be given effect straight away. However, where there is nothing in writing about private arrangement or partition but has been carried out and acted upon for years together by all the co-sharers and the individual holder of a particular share in the joint property exclusively enjoyed the property falling to his share to the exclusion of all other co-sharers with the right to dispose it of, then such arrangement and partition, if established by conduct of the parties, has also to be given legal validity.
In the present case Gulnaz admittedly sold sub-Plot No. 34/2 to Muhammad Ibrahim Soomro in 1983, as is evident from the registered sale-deed dated 11-7-1983 wherein in its third convent it is stated that Gulnaz has delivered possession of Plot No. 34/2 to Muhammad Ibrahim Soomro. This sale transaction was challenged by the applicants in suit No. 402 of 1983 but only to the extent of claiming right of pre-emption. The fact that under the sale-deed the exclusive possession of the entire sub-Plot No. 34/2 was given by Gulnaz to Muhammad Ibrahim Soomro was not questioned in the pre-emption suit by the applicants. It is also noticeable that in the title of the said suit, the address of Muhammad Ibrahim Soomro is also shown as Plot No. 34/2.
It was in this pre-emption suit i.e. Suit No. 402 of 1983 that it was necessary for the applicants to question the entitlement of Gulnaz to sell Plot No. 34/2 if there was no private distribution among them as admittedly Gulnaz on her part treated sub-Plot No. 34/2 as her share by handing over its exclusive possession to Muhammad Ibrahim Soomro to the knowledge of the applicants. The applicants were even aware of the date of registration of the sale-deed in favour of Muhammad Ibrahim Soomro as is evident from paragraph 9 of the plaint filed in Suit No. 402 of 1983. Failure to question sale of Plot No. 34/2 attracted the bar contained in Order II, Rule 2 of Civil Procedure Code, which provides that every suit must include all claims to which a plaintiff is entitled in respect of a cause of action. Sub-rule 3 of Order II, Rule 2 provides that where a plaintiff is entitled to more than one relief in respect of a cause of action then he may sue for all or any of other reliefs but if he in his suit either omits or relinquishes any of the reliefs to which he was entitled to, then he shall not be permitted at any subsequent stage to sue for such reliefs. Thus it is quite evident that Rule 2 of Order II, C.P.C. was devised to prevent a party from splitting up its claims and remedies arising out of same cause of action against the same party or its successors. The main object of Order II, Rule 2, C.P.C. is to prevent a plaintiff to initiate multiple proceedings against a defendant on the basis of same cause of action and in case he had omitted to seek any relief based on same cause of action in one proceedings then in terms of Order II, Rule 2 C.P.C. he is barred from seeking the relief or reliefs so omitted in any subsequent proceedings. It is the communality of cause of action in the subsequent suit that bars its maintainability and the fact that the reliefs sought in both the suits are different is hardly of any legal consequence. The suit for partition filed in 1998 being subsequent and based on the same cause of action that resulted in the filing of earlier suit for pre-emption in 1983 is therefore, barred under the provisions of Order II, Rule 2, C.P.C.
Furthermore, the suit for partition filed by the applicants is also defective for want of necessary party i.e. Gulnaz. Neither Gulnaz and if she was dead at the time of institution of the suit her legal heirs were made party to the suit. Upon been inquired, the learned counsel for the applicants stated that Gulnaz died issueless but then her husband was also not made a party nor it has been established that her husband died during her lifetime though in paragraph 4 of the plaint filed in Suit No. 402 of 1983 it is stated by the applicants themselves that Gulnaz married in February, 1983.
On account of fact that Gulnaz or her legal heirs were not made party to the suit, the existence of private partition under any written instrument would never be known. However, one thing is certain i.e. the applicants did not object to the sale of Plot No. 34/2 by Gulnaz to Muhammad Ibrahim Soomro in 1983 and handing over of its exclusive possession to him. Upon such sale all that the applicants were interested was to exercise pre-emption rights that were though exercised by filing Suit No. 402 of 1983 but the said suit was not pursued to its logical conclusion and was dismissed for non-prosecution on 6-12-1988. Thereafter Plot No. 34/2 changed hands and respondent become it's fourth purchaser on 11-11-1994 through a registered sale-deed. It was as late as in 1998 that the applicants after 15 years of accrual of cause of action woke up from their slumber and filed suit for partition. All this leads to the presumption that though there was no formal partition and in the records Gulnaz held 22 paisa share in both the plots i.e. Plot No. 34/1 and 34/2 yet way back in 1983 Gulnaz was allowed by the applicants to retain Plot No. 34/2 towards her share and deal with it as she liked. The fact that Gulnaz's 22 paisa share was much bigger than the area of Plot No. 34/2 can be reconciled from the fact that Plot No. 34/1 was duly constructed portion as is evident from the building plans filed by the applicants themselves whereas Plot No. 34/2 was originally open space with a small Katcha-pacca room built subsequently and rented out by Gulnaz to Muhammad Ibrahim Soomro who later purchased it from Gulnaz in July 1983.
In view of the above discussion I find no legal justification to interfere with the concurrent findings of both the Courts below. The present revision application is therefore, dismissed in limine.
(R.A.) Application dismissed
PLJ 2007 Karachi 305
Present: Khilji Arif Hussain, J.
ARIF HASHWANI and 3 others--Plaintiffs
Versus
SADRUDDIN HASHWANI and 3 others--Defendants
Suit No. 1001 of 2004 and C.M.As. Nos. 600, 601, 1177, 1360 and 1361 of 2007, decided on 27.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 1--Particulars to be contained in plaint--Jurisdiction--Plaint should contain apart from the name of the Court, name, description of the plaintiffs, name and description of the defendant, then facts constituting the cause of action, facts showing that Court has jurisdiction and relief claimed by the plaintiffs. [P. 315] A
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 2--Pleading--Contain--Every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
[P. 315] B
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 1, O.VII, R. 2 & O.VII, R. 14--Production of evidence (recorded cassettes) alongwith plaint--Effect--Plaintiffs while giving description of the parties has to state concise material facts on which party pleading relies upon the purpose for his claim or defence which he wants to know what they are required to meet but not the evidence by which they are to prove--Recorded cassettes are not the basis of claim in the matter but can be a piece of evidence in support of the plaintiffs' claim in the matter and plaintiffs are not required in terms of O.VI, R. 2, CPC r/w O.VII, R. 1 CPC to disclose or produce the same alongwith the plaint. [P. 315] C
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 14--Production of documents on which plaintiffs sues--Plaintiffs are required to produce only those documents upon which plaintiffs sue against the defendant and other document in support of claim and are not the basis of cause need not to be produced alongwith plaint but plaintiffs if want to rely upon such documents evidence, whether in his possession or not has to disclose the same as documents relied upon in a list to be annexed with plaint. [P. 316] D
Civil Procedure Code, 1908 (V of 1908)--
----O.XII, R. 2 & S. 151--Non-production of documents--Effect of--Application for permission to bring on record audio/video cassettes--Entire transcript of the audio recording were brought on record by plaintiffs within a reasonable period of time and further cassettes and CD tapes were produced alongwith application u/O.XII, R. 2 CPC.
[P. 316] E
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 14(2)--Production of documents--List of other document--Memo of plaint as required--The party who failed to produce documents on the first date of hearing or if within the time granted by the Court then unless good cause has been shown for non-production of documents on the first date of hearing such documents cannot be allowed to be produced by the party, who failed to produce the same on the first date of hearing. [Pp. 316 & 317] F
Electronic Transactions Ordinance, 2002--
----Art. 70(8)(a)--Voice, sound and video--If the electronic information was denied by the party then documents must be proved. [P. 319] L
Electronic Documents--
----Audio, video records cassettes--CDs are admissible piece of evidence, however, the authenticity of same is always subject to proof in case the party against which it can be used disputed and or denied the authenticity and information contained in electronic documents.
[P. 319] M
Evidence--
----Criteria of evidence--Question--Whether tape-recorded evidence should be relied upon as an evidence or not--The best person who can make a statement about the authenticity of the conversation in tape--Whether voice in the record cassette is his voice or not, whether there was any editing in conversation or not can be decided. [P. 323] O
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--Not admissible piece of evidence--Audio-cassette--Question--Whether a party can be allowed to produce evidence become available because of modern device and techniques--Held: Unless the Court required if necessary such evidence cannot be allowed to produce in evidence and further that audio-cassette does not come with the definition of document and accordingly not admissible piece of evidence--In appropriate cases when party wants to produce evidence that may become available because of modern device, Court can allow to produce the same and it is not necessary that before allowing production of evidence become available due to modern device, Court has to pass some order and give reasons, why Court feels it necessary that evidence that becomes available because of modern device should be allowed to produce in evidence. [Pp. 317 & 318] G & H
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 2(c)--Production of evidence--Modern device--Identical--Principle--Evidence--Principle of production of evidence become available because of modern device and production of documents are almost identical--Art. 2(c) of Order, 1984 defines evidence includes all statements which Court permit or require to be made before it by the witness in relation to the matter of facts under the inquiry and all documents produced for inspection of Court. [P. 318] I
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 2(b)--Audio-recording, video recording--Reproduction--Illustration. [P. 318] J
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 73--Primary evidence--Amendment made in Art. 73 of Order, 1984--Important amendment made in Art. 73 of Qanun-e-Shahadat Order describing primary evidence and by new explanation, print out or other form of output of automated information system shall not be denied of status of primary evidence solely for the reasons that it was generated, set, received or stored in electronic form if the automated information system was in working order at all material times and for the purpose hereof. [Pp. 318 & 319] K
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 73--Preliminary evidence--Copy of audio-recording--Validity--Copy of an electronic generated information can be used as a preliminary evidence in view of the amendments made in Art. 73 of Order, 1984 an Electronic Transactions Ordinance, 2002--Nonetheless original by copy at least of mobile phone memory card admittedly empty and one can say that preliminary evidence has been destroyed and party is not in a position to produce the same and a such secondary evidence can be accepted in the matter. [P. 319] N
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 30--Automated information system--Admissible--To prove an admission--Statement oral or documentary which suggested any inference as to fact in issue or relevant facts which is made by any person and now by adding Explanation Article statement guaranteed by automated information system can also be used as an admission by any of the person. [P. 323] P
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 59--Preliminary evidence--Reproduction of electronic document--Admisisble evidence--Reproduction of electronic document--Opinion of a forensic witnesses relating to authenticity or integrity of electronic document made by or through any information system made admissible. [P. 323] Q
1986 CLC 1784; PLD 2003 Kar. 148; AIR 1956 Punjab 173; AIR 1968 SC 147; AIR 1974 Raj. 79; AIR 1976 Cal. 99; AIR 1985 Punjab and Haryana 128; 1993 PCr.LJ 2863 and AIR 1963 Punjab 298 ref.
1986 CLC 1784; PLD 2003 Kar. 148; AIR 1956 Punjab 173; AIR 1968 SC 147; AIR 1974 Raj. 79; AIR 1976 Cal. 99; 1993 Cr.LJ 2863; AIR 1975 SC 1788 and PLD 1976 SC 57 ref.
Miss Sana Minhas and Mr. Adnan Chaudhry, Advocates for Plaintiffs.
Mr. Iqbal Qazi, Liaquat Merchant and Zahid F. Ebrahim, Advocates for Defendants.
Dates of hearing: 27.2.2007, 7, 20, 22.3.2007.
Order
By an application under Order XIV(2) read with Section 151, C.P.C. the defendant requested that Issues Nos. 1, 2, 3 and 13 be heard and decided as legal issues in the first instance while decision on other factual issues be postponed. It was further requested that Issue No. 13 be heard and decided as preliminary issue, prior to Issues Nos. 1, 2 and 3 as the decision on this issue is crucial for further progress in the matter.
Another application under Section 151, C.P.C. (C.M.A. No. 601 of 2007) was filed by the defendant praying that the learned Commissioner Mr. Justice (Retd.) Saleem Akhtar may be directed not to permit the playing of video recordings/tape-recordings/audio compact discs or introduction of transcripts during the cross-examination of Defendant No. 1 pending the decision on the issue of admissibility of such recordings under Article 164 of the Qanun-e-Shahadat Order, 1984. Defendant No. 3 also filed application under Order XIV(2) read with Section 151, C.P.C. (C.M.A. No. 1360 of 2007) praying to decide Issue No. 13 as a preliminary issue and Issues Nos. 1, 2 and 3 as legal issues.
Notices were issued to the learned counsel for the plaintiffs, counter-affidavits and rejoinder affidavits have been filed by the respective parties.
Heard M/s Iqbal Qazi and Liaquat Merchant, learned counsel for Defendant No. 1, Mr. Zahid F. Ebrahim, learned counsel for Defendant No. 3, Miss Sana Minhas, learned counsel for Plaintiff No. 2 and Mr. Adnan Chaudhry, learned counsel for Plaintiff No. 1.
Brief facts for the purpose of deciding listed applications are that on 10-9-2004, the plaintiffs filed suit for declaration that they are shareholders of l/3rd shareholding of total paid-up capital of Defendant No. 2 and that Defendant No. 1 is a trustee for all intents and purposes of the shareholders including the plaintiffs for all the nominees of Defendant No. 2 and further sought declaration that the extraordinary general meeting scheduled for 14-9-2004 for removal of Plaintiffs Nos. 1 and 2 as directors, as illegal and mala fide.
On 3-6-2005 consent issues were filed by the learned counsel for the parties which were accordingly adopted with direction to file documents and list of witnesses within a week. Mr. Justice (Retd.) Saleem Akhtar was appointed as Commissioner to record the evidence of the parties and the parties were directed to file affidavits-in-evidence of their respective witnesses.
On 15-2-2006, an application under Order XXVI, Rules 2 and 4, C.P.C. was filed by the plaintiff that they have filed affidavits-in-evidence of foreign witnesses to whom plaintiffs proposed to examine as expert witnesses and since the said witnesses are unable to appear before the learned Commissioner in Pakistan, the learned Commissioner may be directed to record the cross-examination of said four expert witnesses at London, UK. The application was disposed of by the following consent order dated 17-3-2006:
(1) By consent this application is granted on the following terms:
(i) The learned counsel for the plaintiffs and the learned counsel for the defendants will cross-examine expert witnesses of respective parties, whose affidavits-in-evidence have already been filed by them; and
(ii) The learned counsel for the parties can cross-examine expert witnesses and on the evidence like video-recording, tape recording, audio compact disc, transcript, etc. filed before the learned Commissioner subject to admissibility of the said evidence, to be determined by the learned Single Judge at the time of arguments whether the said evidence is admissible in terms of Article 164 of Qanun-e-Shahadat. The video-recording, tape-recording, audio compact disc and transcript shall be separately marked as Exs. X-l, X-2, etc. till the issue about their admissibility is determined by the learned Single Judge.
Office is directed to forward a copy of this order to the learned Commissioner."
After recording evidence of plaintiffs and four (forensic) expert witnesses defendants' witness came in the witness box and during the cross-examination the plaintiffs wanted to contradict them with the audio-recordings, marked Exh.X by the learned Commissioner, in terms of order dated 17-3-2006.
The defendants filed listed applications praying that the issue pertaining to admissibility of audio video-recording be decided first as preliminary issue.
Apart from various issues framed by the Court, the issues, for which the defendants requested to decide as preliminary issues, read as under:
(1) Whether the suit is barred by limitation and is liable to be dismissed as such?
(2) Whether the plaint in suit is liable to be rejected under Order VII, Rule 11, C.P.C.?
(3) Whether the suit is barred in view of the decree passed in Suit No. 485 of 1975?
(13) Whether or not audio-tape and transcripts thereof of alleged conversations between the plaintiffs and the Defendant No. 1 and between the plaintiffs and Defendant No. 3 allegedly recorded by or under instructions of the plaintiffs are admissible in evidence?
The learned counsel for the parties argued that only Issue No. 13 may be decided as preliminary issue. `
Mr. Iqbal Qazi, learned counsel for Defendant No. 1, vehemently argued that the audio cassette/compact disc, which plaintiffs want to produce, are inadmissible evidence and cannot be introduced during the cross-examination of Defendant No. 1. It was contended by the learned counsel that video recording/tape-recording/audio compact disc can be easily manipulated and such evidence cannot be relied upon. The learned counsel contended that under Article 164 of the Qanun-e-Shahadat Order, 1984 only in such cases as Court considers appropriate, the Court may allow to produce any evidence that may become available because of modern devices or techniques and not otherwise, it was next contended by the learned counsel that Article 2(c) of Order, 1984 defines "evidence" and since video/audio-recording does not fall within the definition of Article 2(c)(ii) of the Qanun-e-Shahadat Order, 1984, the same cannot be treated as evidence as required under Article 164 of the Qanun-e-Shahadat Order, 1984. It was contended by the learned counsel that term "documents" as defined under Article 2(c)(ii) of the Qanun-e-Shahadat Order, 1984 should be something in writing, which can be seen. The learned counsel while relying upon Article 140 of the Qanun-e-Shahadat Order, 1984 argued that only the statement made by witnesses in writing or reduced into writing and relevant to the matter in question, only such material can be produced during cross-examination to contradict the witnesses by his writing. Since audio-cassette cannot be termed as a statement in writing such recording cannot be used for the purpose of contradicting the defendants' witness. The learned counsel further argued that the alleged audio cassette has been managed to create evidence in the suit before filing the same and in the affidavit in evidence filed by Plaintiffs No. 1 he has not mentioned about the same.
Mr. Iqbal Qazi, learned Advocate for the defendants argued that on reading Article 2 with Section 3(58) of General Clauses Act one can say that audio-cassette cannot be termed as "document". It was contended that original cassette has not been produced from which conversation in question was unloaded and on three different occasions the original cassettes were not produced and objected the production of the cassette in question on the ground that in the body of plaint, the plaintiffs have not disclosed any matter regarding conversation except relied upon audio-cassette.
The Defendant No. 1 served notice under Order XI, Rule 15, C.P.C. upon the plaintiffs calling upon them to produce audio-cassettes for their inspection but plaintiffs in reply refused to produce the same and in these circumstances defendants are left with no other option but to file written statement. It was contended by the learned counsel that under Article 164 of Qanun-e-Shahadat Order, 1984, only such evidence which is procured by modern device can be produced which party himself had recorded and produced the same at an earliest opportunity and further the authenticity of which is beyond any shadow of doubt and same is required by the Court. In support of his contention learned Advocate relied upon Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784, Sumitra Debi Kaur v. Calcutta Dyeing and Bleaching Works, AIR 1976 Cal. 99, and Zafar Iqbal and others v. Bashir Ahmed and another PLD 1988 SC 109.
Mr. Liaquat Merchant, learned Advocate for the Defendant No. 1, argued C.M.A. No. 601 of 2007 and argued that Article 164 of Qanun-e-Shahadat Order, 1984 is in two parts first that Court has to consider at an appropriate stage whether production of evidence as contemplated under Article 164 is required to be produced and only then can allow to produce any evidence that may have become available because of modern device. Learned Advocate heavily relied upon "comma" inserted by the Legislator before words "the Court may allow" in the said Article and argued that burden is upon the Court first to satisfy that in what circumstances evidence become available because of modern device should be allowed to produce in evidence. It was contended by the learned Advocate that by an amendment the legislation in England has been amended and definition of documents have been amended to include video-cassette, audio-cassette, and CD in the definition of documents whereas no such amendment has been made in Ordinance, 1984. It was contended that since the plaintiffs have failed to produce audio video-cassettes at the first available opportunity by presenting original recorded cassette in Court and authenticity of the same are not beyond shadow of any doubt and further the same has not been recorded by an independent person and were produced by expert witnesses after 22 months of filing of the suit the same cannot be accepted in evidence. It was contended that the plaintiffs did not refer about recording of conversation in the memo of plaint and only mentioned in this regard upon the documents relied. Learned advocate argued that by C.M.A. 1750 of 2005 filed on 15-3-2005 for the first time reference in respect of tape recorded cassettes were made by the plaintiffs after seven months of filing of the suit on 4-4-2005 and copies of audio tapes were filed. The plaintiffs filed affidavit in evidence in September, 2005 i.e. after one year of filing of the suit but did not tender the alleged cassettes alongwith his affidavit in evidence. An additional affidavit in evidence was filed on 29.10.2005 in which though the plaintiffs mentioned about the tape/audio-recording but did not tender the cassette even at this stage and for the first time the cassettes were produced by the expert witnesses during their evidence in May, 2006 i.e. after 22 months of filing of the suit. Learned advocate in support of his contention that cassette produced after 22 months cannot be accepted in evidence also drawn my attention to Order XIII, Rules 1 and 2, C.P.C. and argued that all documentary evidence has to be produced on the first hearing of the suit and since plaintiffs failed to produce the same they cannot be allowed to produce cassette in evidence after 22 months of filing of the suit. In support of his contention learned Advocate relied upon the case of Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784, Mst. Mariam Haji and others v. Mst. Yasmin R. Minhas and others PLD 2003 Kar. 148, Smt. Jogindar Kaur v. Surjit Singh 1985 Punjab and Haryana 128(b), Lachmandas v. Deepchand AIR 1974 Rajasthan 79, Sumitra Debi Kaur v. Calcutta Dyeing and Bleaching Works AIR 1976 Cal. 99, Ghulam Fatima v. Settlement Land Commissioner (Land) Lahore and others PLD 1968 SC 147, C.R. Mehta v. State of Maharashtara 1999 PCr.LJ 2863, Abdul Ghani Shaikh and others v. Syed Muhammad Raza and others AIR 1920 Patna 610 and Partab Singh v. State of Punjab, AIR 1963 Punjab 298.
Mr. Zahid F. Ebrahim, learned Advocate for Defendant No. 3 in support of his application being C.M.A. No. 1360 of 2007 and C.M.A.
No. 1361 of 2007 relied upon the arguments of M/s. Iqbal Qazi, and Liaquat Merchant, argued that only conversation of Defendant No. 3 in original has been produced and other conversation produced even through expert witnesses are copies of the original conversation.
Miss Sana Minhas, learned counsel for the Plaintiff No. 2, in reply argued that although defendant had served notice under Order XI, Rule 15, C.P.C. to produce the cassette but plaintiffs have rightly refused to produce the cassette relied upon by them, as cassettes were not mentioned in the memo of plaint and no reference has not been made in respect of the cassette in the plaint and only documents about which reference has been made either in the pleadings or in the affidavit, can be produced for inspection of other parties under Order XI, Rule 5, C.P.C.
In reply to the objections of learned Advocate for the defendants about delay in production of the cassettes it was contended by the learned counsel for the plaintiffs that there was no delay in producing the cassettes and same were produced at the earliest possible opportunity. Miss Sana Minhas, learned Advocate for the plaintiffs, relied upon Order VII, Rule 14(2) and Order XIII, Rules 1 and 2, C.P.C. and argued that only document on the basis of which suit has been filed are required to be produced in Court alongwith the plaint and the other documents as evidence, in support of the claim have to be mentioned in the list, to be added or annexed with the plaint, as documents relied upon. It was contended by the learned Advocate that the plaintiffs have produced transcript of audio-cassette three months prior to framing of the issues which was the first date of hearing. Audio-cassettes were produced on 15-3-2005 alongwith C.M.A. 1750 of 2005 and on 3-6-2005 it was ordered that the said application will be heard alongwith the main suit. It was contended that after issues were framed again copies of the transcripts were filed by the Plaintiff No. 1. In para. 37 of the affidavit in evidence, the plaintiff stated about the conversation recorded and produced the same as Exs.23-A to 23-F and as such there was no delay on the part of the plaintiffs in producing cassettes in question. Learned Advocate in support of her contention relied upon the case of Zafar Iqbal and others v. Bashir Ahmed and another PLD 1990 SC 109, and argued that in Article 164 of Qanun-e-Shahadat Order the Legislature used the word "evidence' and "evidence" as defined in Article 2 includes all types of evidence including documents, CDs etc., by which parties can prove their claim and relied upon the case of Don Basco High School v. The Assistant Director EOBI PLD 1989 SC 128, Mushtaq Ahmed v. The State 1991 SCMR 543, Ziauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and others AIR 1975 SC 1788, Haji Noor Muhammad and others v. Mst. Shaheed-un-Nisa 1989 MLD 3877 and Saifur Rehman Khan v. Shahbuddin 1995 MLD 1485.
Mr. Adnan Chaudhry, learned Advocate for the Plaintiff No. 1 relied upon the consent order passed on 17-3-2006 and argued that present application is premature and the question whether the cassettes should be accepted in evidence or not ought to have been decided in terms of the consent order at the time of final arguments and relied upon the definition of Article 2(e) of the Qanun-e-Shahadat Order which was added by Electronic Transmission Ordinance LI of 2002 and argued that electronic document includes, record, information, communication and transaction in the electronic forum and contended that the cassette, audio-tapes in view of the amendment made in the Qanun-e-Shahadat Order is admissible piece of evidence.
Mr. Iqbal Qazi and Liaquat Merchant, learned counsel for the defendants, in reply argued that in terms of Order VII, Rule 14 read with Order VII, Rule 1, C.P.C. since plaintiffs have not mentioned in the plaint facts relating to video-cassette, CD, or tape-recording which were admittedly in possession of the plaintiffs at the time of filing of the suit and has not sued on the basis of alleged admission made in the said tape cassette the plaintiffs cannot be permitted to produce the same in support of their claim now.
I have taken into consideration the respective arguments advanced by the learned Advocates for the parties, perused the record. Before I proceed to decide the issue in the matter I would like to briefly state the nature of dispute in the matter.
The plaintiffs filed suit on 10-9-2004 for declaration, injunction, specific performance and rendition of accounts in respect of the Company (Defendant No. 2) which was incorporated on 12-10-1972. The plaintiffs claimed one-third shareholding in the Defendant No. 2 company and New Jubliee Insurance Limited and in this regard family settlement was concluded between the parties. Due to some family disputes amongst the family members, the matter was referred for conciliation under the Ismaili International Conciliation and Arbitration Board and on its failure to amicably resolve the dispute, on 31-5-2002 two arbitrators were nominated one by Mr. Akbar Ali Hashwani and others by Defendant No. 1 who entered upon reference on 17-10-1992. On 27-7-2004 family settlement was concluded and the litigation pending before this Court as well as before other forums were to be withdrawn vide decree dated 18-7-2004. It was alleged in para. 15 of the memo. of plaint that at all times defendants fully acknowledged one-third entitlement of the plaintiffs in the shareholding of the Defendant No. 2 as heirs of their late father and by virtue of the compromise decree dated 24-12-1978 Mr. Akbar Ali Hashwani was appointed as guardian of the minor's properties and said guardian in all the cases relating to the family agreement, emphatically affirmed that the shares of New Jubilee Insurance Ltd. as well as total shares of Defendant No. 2 were to be divided into three equal parts. In para. 18 of the memo. of plaint it was alleged that on 3-8-2004 Defendant No. 3 Executive Director and Company Secretary of the Defendant No. 2 held meeting in the office of Defendant No. 1 and informed the Plaintiff No. 1 that the dispute between Akbar Ali Hashwani and the Defendant No. 1 has been settled out of Court and the latter also wants to settle the claim of the heirs of late Hassanali Hashwani (plaintiff) in respect of their share in Defendant No. 2 company. Defendant No. 3 further stated that he has been instructed by the Defendant No. 1 to offer to the plaintiffs a total of 766,666 shares out of total 60,00,000 shares of Defendant No. 1 which come to 12.78% of the total holding at a break-up value of Rs. 209 per share. In para. 19 meeting of Defendant No. 3 on 14, 19 and 21 August, 2004 have been mentioned in which he informed the plaintiffs that Defendant No. 1 wanted resignation of Plaintiffs Nos. 1 and 2 from the Board of Defendant No. 2 which plaintiffs refused to accept. On 3-6-2004 by consent of the parties Mr. Justice (R.) Saleem Akhtar was appointed as Commissioner to record evidence of the parties.
By this order I would like to decide the only question, whether at this point of time plaintiffs should or should not be allowed to play video recordings/tape-rccordings/audio compact discs or refer to the transcripts during cross-examination of Defendant No. 1.
The defendants questioned that plaintiffs cannot play recorded cassettes on the ground (1) that the plaintiffs has not filed recorded cassettes alongwith the memo. of plaint, (2) that the cassettes are not admissible piece of evidence, (3) there is no undue exclamation in respect of delay in the proceeding cassettes (4) original cassettes have not been produced and secondary evidence is not admissible.
The learned Advocates for the defendants objected the production of cassettes in question of evidence.
First question which requires to be decided in about effect if not producing the cassettes alongwith the plaint.
Order VII, Rule 1, C.P.C. provides that the plaint should contain apart from the name of the Court, name, description of the plaintiffs, name and description of the defendant, then facts constituting the cause of action, facts showing that the Court has jurisdiction and relief claimed by the plaintiffs. Order VI, Rule 2, C.P.C. required that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
On reading Order VII, Rule 1 read with Order VII, Rule 14 and Order VI, Rule 2, C.P.C. it appears that plaintiffs while giving description of the parties also has to state concise material facts on which party pleading relies upon the purpose for his claim or defence which he wants the other parties to know what they are required to meet but not the evidence by which they are to prove. The plaintiffs' claim, in the suit, is based upon family settlement between the parties and shareholding of Defendant No. 2 Company and the recorded cassettes are not the basis of the claim in the matter but can be a piece of evidence in support of the plaintiffs' claim in the matter and the plaintiffs are not required in terms of Order VI, Rule 2, C.P.C. read with Order VII, Rule 1, C.P.C. to disclose or produce the same alongwith the plaint. As regards Order VII, Rule 14, C.P.C. the plaintiffs are required to produce only those documents upon which plaintiffs sue against the defendant and the other documents in support of claim and are not the basis of the cause need not to be produced alongwith the plaint but the plaintiffs if want to rely upon any such documents, evidence, whether in his possession or not has to disclose the same as documents relied upon in a list to be annexed with the plaint.
As regards the question that the defendant has failed to produce the cassettes within a reasonable period of time it appears that the plaintiffs did not file, tape/audio recorded cassettes, CD and transcript alongwith other documents filed with the plaint but made reference to the same as documents relied upon. It appears that in their application being C.M.A. No. 1750/2005 filed on 15th March, 2005 plaintiffs produced copies of the tapes/audios CD alongwith their statement on 4th April, 2005 and same were produced by the expert witnesses in May, 2006 i.e. after 22 months of institution of the suit. As I have held hereinabove that the claim of the plaintiffs is not based upon audio/video tapes but they want to rely upon the same as a piece of evidence in support of their claim. On 3-6-2005 issues were framed by the Court and parties were directed to file documents within a. week in support of their respective claims and much before the passing of the order directing the parties to file documents in support of their respective claims. Plaintiffs have not only produced transcript of the audio-tapes in question but also produced the same in Court. The plaintiffs filed an application under Section 151, C.P.C. (C.M.A. No. 1750 of 2005) seeking permission to bring on record audio/video cassettes and it was ordered to be fixed alongwith the main case after recording of the evidence. It is not disputed by the defendants that the entire transcript of the audio recording were brought on record by the plaintiffs within a reasonable period of time and further cassettes and CD tapes were produced alongwith application under Order XIII, Rule 2, C.P.C.
The party who failed to produce documents on the first date of hearing or if within the time granted by the Court then unless good cause has been shown for non-production of the documents on the first date of hearing such documents cannot be allowed to be produced by the party, who failed to produce the same on the first date of hearing. Nonetheless in the matter the plaintiffs relied upon cassettes in question and specifically mentioned the same in the memo of plaint as required under Order VII, Rule 14(2), C.P.C. and further produced the same before the expiry of time for production of documents fixed by the Court. For the foregoing reasons, there was no delay in production of the documents by the plaintiffs.
In the case of Messrs Kamaran Industries v. The Collector of Customs (Exports) PLD 1996 Kar. 68, it was held that first hearing means at the time of framing of issues. The plaintiffs filed transcript of CD recorded cassettes with his Rejoinder to C.M.A. 6259 of 2004 in March, 2005. Audio CD filed in Court alongwith the statement dated 4.4.2005 supplied copy of the same to the defendants. The plaintiffs produced CD and its transcript before the first date of hearing and in any case before the time fixed by the Court at the time of framing of issues.
As I have already hereinabove observed that the plaintiffs' suit is based upon the family settlement and their entitlement of shares in the Company the plaintiffs filed documents in support of cause in the suit as Annexure la to 19 however documents which plaintiffs want to rely upon in support of their claim same have been mentioned on the foot-note of the memo. of plaint as documents relied upon viz. misc. documents, files, correspondences, documents filed before the arbitrators and in legal proceedings audio tapes.
As regards the objection of the learned Advocate for the defendant that the cassettes produced by the plaintiffs are not admissible piece of evidence. Learned Advocate for the defendants heavily relied upon Article 164 of Qanun-e-Shahadat Order, 1984 and argued that unless the Court required if necessary such evidence cannot be allowed to produced in evidence and further that audio-cassette does not come within the definition of document and accordingly not admissible piece of evidence.
In order to appreciate the respective contentions of the learned Advocates for the parties, I would like to deal with the question, whether under Article 164 Qanun-e-Shahadat Order a party can be allowed to produce evidence become available because of modern device and techniques. Article 164 of Qanun-e-Shahadat Order was introduced firstly in 1984 and prior to this repeal Evidence Act, 1872 does not specifically contemplate admissibility of evidence become available because of modern device and techniques. Heading of Article 164 "provided production of evidence that has become available because of modern device" but Article itself provided that in such cases as Court may consider appropriate the Court may allow to be produced any evidence that may have become available because of modern device or techniques. The Article does not require that only in the cases, where Court feels it necessary first then only Court can ask the parties to produce the evidence become available because of modern device, or techniques. What Article 164 of Order 84 required is that in appropriate cases when party wants to produce evidence that may become available because of modern device, Court can allow to produce the same, and it is not necessary that before allowing production of evidence become available due to modem device Court has to pass some order and give reasons, why Court feels it necessary that the evidence that becomes available because of modern device should be allowed to produce in evidence.
Principle of production of evidence become available because of modern device and production of documents are almost identical. Article 2(c) of Order 1984 defines evidence includes all statements which Court permit or require to be made before it by the witness in relation to the matter of facts under the inquiry and all documents produced for inspection of Court. Article 2(b) defines "documents" as any matter expressed or described upon any substance by means of letter, figure, or mark or by more than one of those means intended to be used or which may be used for the purpose of recording evidence in the matter. Although recording of evidence on phone or production of the cassette, are not specifically mentioned in the definition of documents but the Legislature while defining the "documents" clearly mentioned that same may means any matter expressed or described upon any substance by means of letter, figure, or mark or by more than one of these means. Audio-recording, video-recording in fact are marked upon the magnetic tapes which used for reproduction of voice/video. The illustration of Article 2(b) also illustrated any inscription on a metal plate or stone is a document and Magnetic tape in my humble opinion includes in the definition of documents.
The answer to the proposition becomes easier by incorporation of Electronic Transmission Ordinance LI of 2002 (hereinafter referred as Ordinance, 2002), by which sub-Clauses (e) and (f) of Article 2 has been added in Order 1984 and making expression "automated", "electronic", "information system", "electronic document", etc. as a piece of evidence. Article 46-A of Qanun-e-Shahadat Order was also added by Order LI of 2002 providing that a statement in the form of electronic documents generated, received or recorded by an automated information, system while it is in working order are relevant facts. Likewise, Article 59 of Order 1984 which relates to opinion of experts, the opinion of the experts as to the authenticity of integrity of electronic document made by or through any information centre was also made admissible.
Another important amendment made in Article 73 of Qanun-e-Shahadat Order describing "primary evidence" and by new explanation, printout or other form of output of automated information system shall not be denied of status of primary evidence solely for the reasons that it was generated, set, received or stored in electronic form if the automated information system was in working order at all material times, and, for the purpose hereof, in the absence of evidence to the contrary, it shall be presumed that the automated information system was in working order at all material times. Explanation 4, added by Ordinance 2002, a printout and other form of reproduction of electronic document, other than a document mentioned in the Explanation 3, first generated, set, received or stored in electronic form, shall be treated as primary evidence.
Article 70(8)(a) inserted by the Ordinance 2002 required that if the electronic information was denied by the party then documents must be proved. Electronic documents as defined in Ordinance, 2002, includes documents, records etc. in electronic form and "information" has been defined as voice, sound, video etc.
Article 2(1)(c) of Qanun-e-Shahadat Order, 1984 defines "evidence" but interesting to note that the Legislature has not defined that what he means by the evidence but said that evidence includes a statement that the Court permits or requires to be made and/or all documents produced. It is a settled principle of law that the word "include" is always used in "interpretation clause" in order to enlarge the meaning of the word and phrase occurring in the body of a statute and as such contention of the learned advocate for the defendants that CD recorded cassettes does not come within the definition of evidence/oral or documentary have no force. Even otherwise after the amendments of Qanun-e-Shahadat Order 1984 by Electronic Transactions Ordinance, 2002, electronic generated documents and information become admissible piece of evidence.
In my humble view audio, video-records cassettes CDs are admissible piece of evidence, however, the authenticity of same is always subject to proof in case the party against which it can be used disputed and or denied the authenticity and information contained in the said electronic documents.
Coming to the last contention of the learned Advocate for the defendants that cassettes are not the original copy of audio-recording but they are copy of copy suffice it to say that copy of an electronic generated information can be used as a preliminary evidence in view of the amendments made in Article 73 of Qanun-e-Shahadat Order by an Electronic Transactions Ordinance, 2002. Nonetheless original copy at least of mobile phone memory card admittedly empty, and one can say that the preliminary evidence has been destroyed and party is not in a position to produce the same and as such secondary evidence can be accepted in the matter.
The parties have examined forensic expert witness who had examined cassettes given to them and undergone lengthy cross-examination in respect of the authenticity of the cassettes. How far cassettes can be relied upon and whether there was any tampering in the cassettes produce by the expert-witnesses or not, I would not like to deal with, while deciding listed application, and confine myself only to the question whether such cassettes may allow to be played to contradict the defendants' witness with their previous statements.
Having said so, now, I would like to deal with case-law relied upon by the learned Advocates for the parties. In case of Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784, it was held that:--
(1) The tape-record had been prepared and preserved by the nephew of the petitioner. He is not an independent person and he does not belong to independent authority.
(2) The transcript from the tape-record was not prepared under independent supervision and control. The P.W. Haji Taj Din who prepared the tape-record stated in his affidavit that he handed over the cassette or tape-record to the petitioner. It was not annexed to the petition but it was produced before me by the witness himself.
(3) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(4) Accuracy of what actually had to be proved and satisfactory evidence, direct or circumstantial had to be there so as to rule out possibilities of tampering with the record.
(5) The witness who had made the tape-record was not part of his routine duties in relation to election speeches but it was actually made for the purpose of laying trap to procure evidence.
(6) The first respondent disputed that the tape-recorded voice was his and stated that there had been interpolation in the record.
In the case of Mst. Mariam Haji and others v. Mst. Yasmin R. Minhas and others PLD 2003 Karachi 148, learned Single Judge of this Court while holding that the photographs can be admitted in evidence held that due to advancement in the technology it has to be proved that the photographs are not manipulated and manoeuvred unless it is proved that the photographs are not manipulated it could not be allowed to be produced in evidence.
In the case of Rup Chand v. Mahabir Prashad AIR 1956 Punjab 173, it was held that expression "writing" appearing in Section 145 of Evidence Act, 1872 refers to the tangible object that appeals to the sense of sight and that which is susceptible of being reproduced by printing, lithography, photography etc. and it is not wide enough to include a statement appearing on tape which can be reproduced through the mechanism of a tape-recorder. It was further held that it is open to a person giving evidence in Court to produce instrument or device used in the commission of a crime and to exhibit maps, charts, diagrams, models, photograph and X-ray, when properly authenticated in issue and held that no rule of evidence which prevents a defendant who is endeavoring to shake the credit of a witness by proof of former inconsistent statements, from depositing that while he was engaged in conversation with the witness a tape-recorder was in operation, or from producing the said tape-recorder in support of the assertion that a certain statement was made in his presence.
In the case of Yousuf Ali, Ismail Ali Nagri v. State AIR 1968 SC 147, it was held that if the statement is relevant and accuracy of the recording must be proved by a competent witness and voices must be properly identified. One of the features of magnetic tape-recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution, the Court must be satisfied beyond reasonable doubt that the record has not been tampered with.
In the case of Lachmandas v. Deepchand AIR 1974 Rajasthan 79, it was held that, tape-recorded conversation should be placed on record at the earliest opportunity.
In the case of Sumitra Debt v. Calcutta Dyeing and Bleaching Works AIR 1976 Cal. 99, it was held that:
"Before any Court can accept the evidence of tape-record the Court must carefully consider the genuineness of the tape before it is accepted. Usually, as it is expected to be, the tape-recording of the voice is done without the knowledge and consent of the person concerned and very often he is being trapped unknowingly into it. Therefore, anything which is born of trickery or trapping or cunningness should be very cautiously and carefully considered by the Court before it is admitted and accepted. After all, ventriloquism is not very uncommon and before any Court can rely on a tape-record, the Court must carefully guard himself against all these possible tampering and manufacturing should look for independent corroboration and intrinsic evidence before he relies on the tape."
In the case of Smt. Joginder Kaur v. Surjit Singh AIR 1985 Punjab and Haryana 128, learned Judge after hearing the tape-recorded cassette did not rely upon the same for more than one reasons and not because tape-recorded cassette is admissible evidence on the contrary it was held that it is no doubt true that tape-recorded conversation is comparable to photographs and is admissible under section of the Evidence Act.
In the case of C.R. Mehta v. State of Maharashtara 1993 Cr.LJ 2863, it was held that tape-recorded evidence, if it is to be acceptable, must be sealed at the earliest point of time and not opened unless except order of the Court.
In the case of Partab Singh v. State of Punjab AIR 1963 Punjab 298, it was held that mechanical process of obtaining statements recorded on tape-recorder is fraught with possibilities of such tampering as a render a statement or conversation something quite contrary to what might have been stated by the speaker originally or in the first instance.
None of the case-law relied upon the learned counsel for the defendant is of any help to the issue in the matter. The ratio laid down in the above referred cases are that tape record cassettes are admissible piece of evidence, but while accepting the same, extra care is to be taken to declare and satisfy that the voice is of the person alleged, and there is no tampering in the recorded statement.
So far as the authenticity of recorded cassettes are concerned forensic experts has appeared in the witness-box and undergone lengthy cross-examination of the learned Advocates for the parties whether conversation in the recorded cassette should, be relied upon or whether same is in the voice of the defendants or whether there is tampering in it or not or whether any part of the conversation was erased while recording the same can be answered only after defendants make a statement in this regard.
In the case of Ziyauddin Burhanuddin Bukhari v. Brij Mohan Ramdas Mehra and others AIR 1975 SC 1788, the Hon'ble Indian Supreme Court held that recorded cassette can be relied upon it same has been prepared and preserved safely by a independent authority, the police, and not preserved by a party to the case; secondly, the transcript from the tape-records, shown to have been duly prepared under independent supervision and control very soon afterwards, made subsequent tampering with the cassettes easy to detect, and thirdly, the police had made the tape records as part of its routine duties in relation to election speeches and not for purpose of lying any trap to procure evidence.
The principle laid down in the above referred case is also not attracted in the circumstances of this matter as the criteria of evidence in the election disputes are different than the dispute between the two individuals even otherwise at this stage I am not deciding the question whether the tape-recorded evidence should be relied upon as an evidence or not but I am confining myself only to the extent whether to contradict the defendant same may be allowed to play before him or not. The best person who can make a statement about the authenticity of the conversation in tape is the defendant himself and the basis of his statement that there was any tampering whether voice in the record cassette is his voice or not, whether there was any editing in the conversation or not can be decided.
In the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57, the Hon'ble Supreme Court, accepted the tape-recorded speech as a valid piece of evidence as the concerned officer has identified the voice of the person speaking.
By adding Explanation to Article 30 of Qanun-e-Shahadat by Order 2002, statement generated by the automated information system made admissible to prove an admission made by the parties. Under Article 30 Qanun-e-Shahadat Order, 1984 admission, information is being defined as a statement oral or documentary which suggested any inference as to fact in issue or relevant facts which is made by any person and now by adding Explanation Article statement generated by automated information system can also be used as an admission by any of the person. In terms of Article 59 of Qanun-e-Shahadat Order, 2002 opinion of a forensic witnesses relating to authenticity or integrity of electronic document made by or through any information system also made admissible, from the Explanations 3 and 4 to Article 73 of the Qanun-e-Shahadat Order, 1984 relating to preliminary evidence, it is evident that printout or other form of reproduction of another electronic document be made admissible in evidence as preliminary evidence.
Electronic Transaction Ordinance, 2002 electronic document has been admissible as a preliminary evidence in a matter, and tentatively in my view reproduction of a electronic documents cannot be termed as copy or secondary evidence. Having said so even otherwise expert witness JP French Associates Forensic Speech and Acoustics Laboratory gave details of the origin, history and provenance of the recordings, as under:-
Event Recording First Second Transfer Third Transfer
No. Method Transfer
recorder CDs using computer as MP3 computer to
Philips CD files external hard
recorder drive
recorder
computer as wav computer to
file external hard
drive
computer as wav computer to external hard
file external hard drive to USB
drive memory stick
computer as wav computer to external hard
file external hard drive to USB
drive memory stick
computer as wav computer to external hard
file external hard drive to USB
drive memory stick
One of the expert witnesses in his statement in reply to a suggestion that the copies, duplicates cannot be authenticated and are normally not accepted by an International Investigating Agency replied as under:
"It is possible to examine copies recording and make comments on their contents however in conclusion drawn cannot necessarily be applied to original copies which they are copies of".
In this case Item 3 and 4 did not fall under the same category as copy tapes, there could be more accurately referred to a digital colons of the original recording. I cautiously would not like to discuss the question whether the cassettes examined by the expert witnesses cannot be termed as copy/secondary evidence or they are merely transfer of the information from one instrument to another instrument and leave it to be dealt with in detail at the time whether these cassettes can be relied upon or accepted, at the time of final arguments as parties agreed while passing order 17-3-2006.
What plaintiffs want by playing cassettes during the cross-examination of the defendant's witness is to contradict him with his previous statement only and it is for the defendant to make appropriate reply in regard to statement recorded on cassettes/CD and perhaps thereafter in the light of the reply by the defendant the Court can decide to what extent statement can be relied upon, keeping in view forensic expert evidence.
For the foregoing reasons, listed applications are dismissed, however, in case plaintiff decided to contradict the defendants' witness with conversation on the cassette then it is advisable that such question and reply be recorded on separate sheet and placed on separate folder so that at the time of deciding the Issue No. 3 if deem necessary learned Judge can look into the statement.
(R.A.) Applications dismissed.
PLJ 2007 Karachi 325 (DB)
Present: Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ.
GHULAM HUSSAIN BALOCH and another--Petitioners
versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 2 others--Respondents
Const. P. No. D-188 of 2007, decided on 4.5.2007.
Police Rules, 1934--
----Chapt. XXV, Rr. 25.2, 25.18 & 25.54--National Accountability Ordinance (XIII of 1999), Ss. 18 & 19--Constitution of. Pakistan (1973), Art. 199--Constitutional petition--Inquiry or investigation initiated against the petitioners by National Accountability Bureau--Validity--Chairman NAB had formed the opinion that any offence punishable under the National Accountability Ordinance, 1999 was committed by any person so as to empower him to initiate the inquiry or investigation in the matter--Silence on the part of the authorities in their comments on such very important aspect of the matter had adversely affected the entire process of inquiry and investigation--If there was no foundation of any allegation of commission of offence under the Ordinance then the superstructure made on such foundation was bound to collapse without any further action--Chairman NAB had ordered for inquiry or investigation by itself was not sufficient to order for inquiry unless it was mentioned that inquiry or investigation was required to be conducted in an offence, which was punishable under the Ordinance, 1999--None of the notices issued by the investigating officer to the petitioners and other persons had disclosed the nature and commission of any offence and the same were also silent on the subject--Said notices were vogue as no specific offence or specific charge against the accused had been mentioned in them, no required or specified information, particulars of documents or things required to be produced before the investigating officer had been mentioned therein--All the notices, thus, suffered from material irregularity and illegality and they could not be termed as legal notices within the meaning of S. 19 of the Ordinance, 1999--Notices were consequently declared as illegal by the High Court--If the Investigating Officer wanted any information, document, thing or to examine any person, then he could issue fresh notices keeping in view the observations of High Court in respect of exercise of such powers--Constitutional petition was disposed of.
[Pp. 334 & 338] A & J
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(a)(b)(c)--Constitution of Pakistan, 1973--Art. 199--Power to call for information from any person about any contravention of the provisions of National Accountability Ordinance, 1999--Such power elaborated with instructions and guidelines--A bare reading of provisions of S. 19(a)(b)(c) of Ordinance, reveals that if an inquiry or investigation is ordered in respect of offence punishable under the Ordinance by the Chairman NAB then during the course of said inquiry or investigation of such offence the Chairman NAB or any officer duly authorized by him is authorized to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions or any rule or order made thereunder--"Any person" would mean all persons including witnesses and accused from whom the information is required--Question arises as to what sort of information the person is required to furnish to the competent authority--Information would be in respect of offence alleged or any matter which can suggest that the provisions of the Ordinance, rule or order made thereunder have been contravened--For that purpose competent authority is required to ask any person from whom such information is required to provide information which has nexus with the above provisions--If a person does not know the point or allegation or offence or fact on which information is to be provided or the person against whom such information is required then how such person would `be in a position to help the competent authority, therefore, while calling the information from any person, the person must be informed the fact, point, allegation, offence, name of accused, specified matter, if any, concerning the matters of the provisions in the notice so that the person can furnish such information--If such specified information is of such a nature which, if furnished through any mode will serve the purpose, then such person should not normally be called to appear in person. [P. 335] B
National Accountability Ordinance, 1999 (XIII of 1999)---
----S. 19(a)(b)(c)--Constitution of Pakistan, 1973--Art. 199--Power to call for information from any person about contravention of the provisions of Ordinance, 1999--Constitutional petition--Improvements in the investigation process before the NAB authorities are basically carried out to facilitate all the concerned persons to give them due respect, not to harass them, to provide all reasonable facilities, relieve them within shortest possible time, without detaining them unnecessary or put any hardship to any person then in all fairness the person at the initial stage should not normally be asked to appear in petition and furnish such information, which otherwise, can serve the purpose by furnishing such information through any other manner--This does not mean that the authorities have no power to call such person, but in unavoidable circumstances where the presence of the person is necessary then the person can be called by signing reasons as required under S. 24-A of General Clauses Act, which stipulates that where any authority or officer is empowered to make order or give any direction, such power is required to be exercised reasonably, fairly, justly and for the advancement of the purpose of enactment and give reasons for making such order--Copy of such order should find place and be made available in the case diary. [P. 336] C
Constitution of Pakistan, 1973--
----Art. 199--National Accountability Ordinance, (XIII of 1999), S. 19(a)(b)(c)--Constitutional petition--Power to call for information about contravention of the provisions of National Accountability Ordinance--If a person is called then in the summons or notice the date, time `and place of his appearance should be specifically mentioned--After doing the needful an endorsement be made on the notice or summon showing the date, time and place of his appearance and the date, time and departure from the place to which he was summoned, which shall be delivered to the said person--All such orders mentioning such facts and information should be attached to the case diary--It is also pointed out that no avoidable trouble should be given to any person from whom information is called for or inquiries are made and no person should be unnecessarily detained.
[P. 336] D
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(b)--Power to require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation--Procedure amplified with directions and guidelines--Under Section 19(b), National Accountability Ordinance, 1999 person can also be asked to produce or deliver the document or thing which will help the Investigating Officer in the inquiry or investigation of the offence--Investigating Officer is also required to specify the offence, name of the accused person, particulars of the document or thing, if available or any document or thing concerning the offence and accused having nexus with inquiry or investigation, which is required to be produced or delivered in the notice--At the initial stage, normally the person should not be asked to `appear in person and to produce such document or thing for the simple reasons that when the document or thing is received by the Investigating Officer it will serve the purpose and if for any reason attendance of such person is required then he can be called by assigning valid and cogent reasons which shall appear in the case diary--The date, time and place of his appearance and production of the document or thing should be mentioned in the notice or summons--After appearance and doing the needful, an endorsement be made on the copy of notice or summons showing the date, time and place of his appearance and the date, time of his production of document or thing and departure from the said place which shall be delivered to the said person and the copy of such order shall be attached with the case diary. [P. 336] E
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(c)--Power to examine any person acquainted with the facts--Purposes of examination of witness, practice, procedure and safeguards for persons including accused detailed with guidelines--Under Section 19(c) National Accountability Ordinance, the normal practice is that the Investigating Officer normally records the statements of the witnesses at the place of incident without loss of time by personally going there--In the cases before the NAB Authorities, the statements can also be recorded at the place of incident or residence of the person--For any reason, if the Investigating Officer finds that the witness or any person should be examined at certain place then he can issue such summons or notice showing the name of accused and particulars of offence with date, time and place of his appearance--As soon as he appears before him then his statement should be recorded--After doing the needful, an endorsement be made on the copy of notice or summon, showing the date, time and place of his appearance and the date, time of his departure from the said place, which shall be delivered to the said person and such order should also be filed with the case diary.
[P. 337] F
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(c)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power to examine any person acquainted with the facts and circumstances--Purpose of examination of witness--Practice and procedure--It is not out of place to mention here that the concerned officer is authorized to record statements of witnesses, but he cannot force any of the witnesses to make a statement other than one which such witness voluntarily likes to make--Law does not permit such officer to beat the witness or confine him for the purpose or inducing him to make a particular statement--One of the purposes of examination of witness is to obtain evidence preliminary to arrest the accused. [P. 337] G
Constitution of Pakistan, 1973--
----Arts. 4, 13 & 199--National Accountability Ordinance (XIII of 1999), S. 19(c)--Constitutional petition--Protection to citizen--Treated according to law--Natural justice--Principles of criminal law--The words "any person" appearing in Section 19(c) of the Ordinance include the accused person also--Constitution gives guarantee to the citizen under Art. 4 that they will be treated according to law--Under Art. 13 protection has been given to the accused of an offence that he will not be compelled to be a witness against himself--It is also against the natural justice and principles of criminal law to compel a person to give evidence against himself in the offence instituted against him and then base the charge on such evidence--During the interrogation, the accused can refuse to answer only those questions which are incriminatory, but he is required to answer all other questions--The protection against self-incrimination is available to accused not only in respect of his words, but also on the use of documents, books, papers--Forcing a person to produce, deliver or turnover incriminating written materials is in effect requiring him to testify against himself--It is also against the guarantee provided under Art. 13 of the Constitution. [P. 337] H
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(b)(c)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power to examine--Purpose of--In the last half of the Seventeenth Century privilege against self--incrimination was well established in England--The adoption of privilege marked a great advance over earlier practices when suspects were not only required to give testimony against themselves, but were tortured to force them to do so--Privilege has been incorporated in the Criminal Procedure Code--It has been regarded as one of the great landmark in man's struggle to make himself civilized and assuming that a man is presumed to be innocent until proved `guilty--All the other protection facilities as discussed under clause (a) should also be provided to the persons in respect of S. 19(b)(c) of the Ordinance. [P. 338] I
116 U.S. 616 (1886), p.96 of Constitution of Pakistan, 1973 by Shaukat Mahmood ref.
Mr. Shaukat Hussain Zubedi, Advocate for Petitioners.
Mr. Shafaat Nabi Khan Sherwani, Deputy Prosecutor-General Accountability for Respondents.
Date of hearing: 4.5.2007.
Order
Rahmat Hussain Jafferi, J.--On 2-2-2007 the petitioners, who are husband and wife, filed the petition with the following prayer:--
(a) To declare that the Respondent No. 3 is not permitted under the law to harass or humiliate any citizen/petitioners under the cloak of National Accountability Ordinance, 1999.
(b) To declare that the Respondent No. 3 or any NAB Official is not permitted under the law to direct/compel attendance of any person under the garb of Section 19 of N.A.O. 1999.
(c) To refrain the Respondent No. 3 from harassing or humiliating the petitioners in any manner whatsoever.
(d) To direct the Respondent No. 3 to appear in person and explain the details of the inquiry so far conducted and what is its outcome with further direction to submit a copy of the enquiry report.
(e) Any other relief this Honourable Court may deem fit and proper in the circumstances of the case may also be granted.
The petitioners alleged that the Petitioner No. 1 was in the employment of Government of Sindh in Excise and Taxation Department. He retired as Excise and Taxation Officer on 9-11-2005 on attaining the age of superannuation. The Petitioner No. 2 being the wife of the Petitioner No. 1 is residing with her husband. After the retirement of Petitioner No. 1, the Secretary, Government of Sindh asked him to supply the following information through letter dated 13.1.2006:
(1) Permanent/temporary address.
(2) Passport No. (if any).
(3) Attested copies of Annual declaration of Assets form for all years.
(4) Details of Official/un-official bank accounts.
(5) Details of Loans, applied/availed during the service alongwith present status of the loans.
(6) Yearwise details of salaries and other benefits which were received during service.
(7) Names and particulars of children and dependents.
(8) National Tax No.
After supplying the said information to the Government, the officials of NAB authorities started harassing and humiliating the Petitioner No. 1 in various ways. The Respondent No. 2 through Shah Bharam, Junior Investigating Officer issued letters to the Petitioner No. 1 to attend before him and produce evidence whatsoever with him. The Petitioner No. 1 supplied the required information. He declared all assets and liabilities to the NAB authorities, but again the NAB authorities started issuing series of notices to him, his wife (the Petitioner No. 2), his children, his relatives and other persons. They complied with the directions, but the NAB authorities are still harassing the petitioners and their family members through various modes including issuing notices. Even after filing the petition the NAB authorities again started issuing notices to various persons including the petitioners, their children and relatives. The petitioners have filed the petition with the above mentioned prayers.
The respondents filed their comments in which they stated that the Chairman NAB ordered for initiating enquiry and investigation against the Petitioner No. 1 (without specifying the offence). They admitted the issuance of notices to the petitioners, their children and other persons. They also admitted that the persons to whom notices were issued appeared before them except the Petitioner No. 2, who avoided to appear before them. They further stated that the inquiry and investigation was conducted as per law and under Section 19 of the National Accountability Ordinance, 1999 (hereinafter referred to as the Ordinance) authorizes the Chairman NAB or any officer authorized by him to call any person for the purpose of inquiry and investigation, therefore, they have not committed any illegality in calling the required persons for enquiring into the allegations.
We have heard the Advocate for the petitioners, DPG for NAB and perused the record of this case very carefully.
The learned Advocate for the petitioners in the beginning very strongly argued that under Section 19 of the Ordinance the Nab authorities have no jurisdiction to call any person, but subsequently, when the section was read and interpreted in Court he conceded that the NAB authorities have power to call any person, but further added that the summonses or notices should specifically contain the allegation against the accused person or specify the information, which is required by the NAB authorities to be furnished or specify the document or article, which is required to be produced or specify that the statement of the person is required to be recorded; that the notices issued by the NAB authorities do not fulfil such conditions, therefore, a person cannot be called on vague notices. He has relied upon an unreported decision of this Court delivered in Constitutional Petition No. D-807 of 2006 (Muhammad Akbar v. Chairman NAB and others) decided on 19-6-2006.
Conversely, the learned DPG has stated that after the Chairman NAB referred the allegation against the Petitioner No. 1 to the Investigating Officers for holding inquiry and investigation, the Inquiry Officer started the inquiry and investigation; that under Section 19 of the Ordinance the Investigating Officer has power to call any person for the purposes mentioned thereunder. He has further stated that no harassment was caused to persons, who were called by the Investigating Officer. He has emphasized that the inquiries and investigations are being conducted through modern methods giving all facilities to all concerned including the witnesses, accused and ladies; that the ladies are examined in presence of another lady; that the persons are allowed to appear before them through their Advocates; that the special reforms have been undertaken in the investigation; that instead of prolonged probe of the complaints received, complaints are verified on clearly defined parameters and timelines; that the Investigation Wings in Regional Bureaus have been reorganized on the basis of departmental jurisdiction and to develop specializations within investigation functions; that the Investigation Wings have been allocated dedicated resources in terms of experts and legal consultants, etc; that Financial Crime Investigation Wings in the regions have also been reorganized on the lines of Investigation Wings with matching resources; that concept of team work has been introduced in the investigation work of the Bureau; that instead of single Investigating Officer working on a case a team of investigation has been constituted to minimize discretion and eliminate chances of misuse of authority by the Investigating Officer; that typical instances of misuse could occur in the areas of issuing summons, calling of information from other agencies, interviewing of the accused/witness, etc; that the said tactics have been checked through team work which has enhanced transparency, facilitate monitoring and control; that the investigation function has been split into three groups (1) the investigation process which starts with complaint, handling/verification, (2) issuing of summons to accused/witnesses etc. and (3) the hardcore inquiry/investigation itself; that previously these functions were concentrated in a single person, but in order to avoid misuse these functions now stand separated and three separate entities have been created to carry out these vital and sensitive tasks. He has further stated that new Investigation Rooms have been created with modem facilities keeping in view the requirement of the offence and investigation, where all due respect is provided to all the concerned persons, who appear before the Investigating Officer; that the proceedings are recorded through audio and video devices which protect the accused and Investigating Officers against baseless accusations of harassment and misuse of the authority. He has further restated that a Special Operation Wing has been created at NAB Headquarters for investigation of high profile cases. After giving the above details of the reforms carried out in the Investigation Wings he has stated that no harassment was caused to the petitioners. However, he has admitted that the notices issued to the petitioners and witnesses require further clarification where the alleged offence, required information, production of documents and other related matters should be specifically mentioned which are missing in the notices, therefore, there is need for improvement in that direction too.
We have given due consideration to the arguments, gone through the material available on the record and found that the comments filed by the respondents do not show the specific offence alleged against the Petitioner No. 1. The comments are silent as to for which offence Chairman NAB ordered for holding the inquiry or investigation. Under Section 18(c) of the Ordinance it is incumbent upon the Chairman NAB, after receiving the complaint in any of the manners provided under Section 18(a) to form his opinion as to whether the inquiry or investigation is required of be conducted in respect of alleged offence. For that purpose the Chairman NAB is first to examine whether any offence punishable under the Ordinance has been alleged in the complaint or ingredients of that offence have been mentioned so as to attract his jurisdiction. If, from the information or complaint received as required under Section 18(a) he is not able to form the opinion that the offence punishable under NAB Ordinance has been made out then he is not required to order for the inquiry or investigation. If such offence is made out only then he can exercise jurisdiction as provided under Section 18(c) of the Ordinance.
In the present case, there is no material before this Court whether the Chairman NAB had dealt with the above subject and had formed the opinion that any offence punishable under the Ordinance was committed by any person so as to empower him to initiate the inquiry or investigation in the matter. If such opinion would have been formed by the Chairman NAB then the comments should have disclosed such fact by specifying the said offence. The silence on the part of the respondents on this very important aspect of the matter adversely affect the entire process of inquiry and investigation. If there is no foundation of any allegation of commission of offence under the Ordinance then the superstructure made on such foundation is bound to collapse without any further action. In the comments, it has simply been mentioned that the Chairman NAB had ordered for inquiry or investigation which by itself is not sufficient to order for inquiry unless it is mentioned that inquiry or investigation is required to be conducted in an offence, which is punishable under the Ordinance. Further, none of the notices issued by the Investigating Officer to the petitioners and other persons disclose the nature and commission of any offence, but the notices are also silent on the subject.
As regards the powers under Section 19 of the Ordinance, it will be profitable to reproduce the said section which reads as under:--
"19. Power to call for information.--The Chairman NAB [an officer of the NAB duly authorized by him] may, during the course of an inquiry or investigation of an offence under this Ordinance or any rule or order made thereunder:--
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Ordinance or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation;
(c) examine any person acquainted with the facts and circumstances of the case;
(d) require any bank or financial institution, notwithstanding anything contained in any other law for the time being in force, to provide any information relating to any person whosoever, including copies of entries made in a bank's or a financial institution's books such as legers, day books, cash books and all other books including record of information and transactions saved in electronic or digital form, and the keepers of such books or records shall be obliged to certify the copies in accordance with; and
(e) where there is reasonable suspicion that any person is involved in or is privy to an offence under this Ordinance, the Chairman NAB may, with the prior approval in writing of the High Court concerned, direct that surveillance of that person may be carried out through such means as may be necessary in the facts and circumstances of the case and the Chairman NAB, may in this regard seek the aid and assistance of any Governmental agency and the information so collected may be used as evidence in the trial under the Ordinance:
Provided that the copies obtained or information received or evidence collected under clauses (d) and (e) shall be kept confidential and shall not be used for any purpose other than for legal proceedings under this Ordinance."
For the purpose of present case, the provisions of Section 19(a), (b) & (c) are relevant, therefore, discussion would be in respect of said provisions. A bare reading of the said provisions reveals that if an inquiry or investigation is ordered in respect of offence punishable under the Ordinance by the Chairman NAB then during the course of said inquiry or investigation of such offence the Chairman NAB or any officer duly authorized by him is authorized to call for information from any person for the purpose of satisfying himself whether there has been any contravention of provisions of the Ordinance or any rule or order made thereunder. In this clause, "any person" would mean all persons including witnesses and accused from whom the information is required. The question arises as to what sort of information the person is required to furnish to the competent authority. The information would be in respect of offence alleged or any matter which can suggest that the provisions of the Ordinance, rule or order made thereunder have been contravened. For that purpose competent authority is required to ask any person from whom such information is required to provide information which has nexus with the above provisions. If a person does not know the point or allegation or offence or fact on which information is to be provide or the person against whom such information is required then how such person would be in a position to help the competent authority, therefore, while calling the information from any person, the person must be informed the fact, point, allegation, offence, name of accused, specified matter, if any, concerning the matters of the provisions in the notice so that the person can furnish such information. If such specified information is of such a nature which, if furnished through any mode will serve the purpose, then such person should not normally be called to appear in person.
The improvements as pointed out by the learned DPG in the investigation process before the NAB authorities are basically carried out to facilitate all the concerned persons to give them due respect, not to harass them, to provide all reasonable facilities, relieve them within shortest possible time, without detaining them unnecessary or put any hardship to any person then in all fairness the person at the initial stage should not normally be asked to appear in person and furnish such information, which otherwise, can serve the purpose by furnishing such information through any other manner. This does not mean that the authorities have no power to call such person, but in unavoidable circumstances where the presence of the person is necessary then the person can be called by signing reasons as required under Section 24-A of General Clauses Act, which stipulates that where any authority or officer is empowered to make order or give any direction, such power is required to be exercised reasonably, fairly, justly and for the advancement of the purpose of enactment and give reasons for making such order. The copy of such order should find place and be made available in the case diary.
It is pointed out that if a person is called then in the summons or notice the date, time and place of his appearance should be specifically mentioned. After doing the needful an endorsement be made on the notice or summons showing the date, time and place of his appearance and the date, time and departure from the place to which he was summoned, which shall be delivered to the said person. All such orders mentioning such facts and information should be attached to the case diary. It is also pointed out that no avoidable trouble should be given to any person from whom information is called for or inquiries are made and no person should be unnecessarily detained.
As regards the clause (b) under which the Chairman NAB and an officer duly authorized by him, is authorized to require any person to produce or deliver any document or thing useful or relevant to the inquiry and investigation of the offence. Under this clause, person can also be asked to produce or deliver the document or thing which will help the Investigating Officer in the inquiry or investigation of the offence. Under this clause, the Investigating Officer is also required to specify the offence, name of the accused person, particulars of the document or thing, if available or any document or thing concerning the offence and accused having nexus with inquiry or investigation, which is required to be produced or delivered in the notice. Under this clause also at the initial stage, normally the person should not be asked to appear in person and to produce such document or thing for the simple reasons that when the document or thing is received by the Investigating Officer it will serve the purpose and if for any reason attendance of such person is required then he can be called by assigning valid and cogent reasons which shall appear in the case diary. The date, time and place of his appearance and production of the document or thing should be mentioned in the notice or summons. After appearance and doing the needful, an endorsement be made on the copy of notice or summons showing the date, time and place of his appearance and the date, time of his production of document or thing and departure from the said place which shall be delivered to the said person and the copy of such order shall be attached with the case diary.
As regards the clause (c), the Chairman NAB or any officer duly authorized by him is empowered to examine any person, who is acquainted with the facts and circumstances of the case having nexus with the inquiry or investigation of offence. Under this clause also, the normal practice is that the Investigating Officer normally records the statements of the witnesses at the place of incident without loss of time by personally going there. In the cases before the NAB authorities, the statements can also be recorded at the place of incident or residence of the person. For any reason, if the Investigating Officer finds that the witness or any person should be examined at certain place then he can issue such summons or notice showing the name of accused and particulars of offence with date, time and place of this appearance. As soon as he appears before him then his statement should be recorded. After doing the needful, an endorsement be made on the copy of notice or summons, showing the date, time and place of his appearance and the date, time of his departure from the said place, which shall be delivered to the said person and such order should also be filed with the case diary.
It is not out of place to mention here that the concerned officer is authorized to record statements of witnesses, but he cannot force any of the witnesses to make a statement other than one which such witness voluntarily likes to make. The law does not permit such officer to beat the witness or confine him for the purpose or inducing him to make a particular statement. One of the purposes of examination of witness is to obtain evidence preliminary to arrest the accused.
The words "any person" appearing in the clause include the accused person also. The Constitution gives guarantee to the citizen under Article 4 that they will be treated according to law. Under Article 13 protection has been given to the accused of an offence that he will not be compelled to be a witness against himself. It is also against the natural justice, and principles of Criminal Law to compel a person to give evidence against himself in the offence instituted against him and then base the charge on such evidence. During the interrogation, the accused can refuse to answer only those questions which are incriminatory, but he is required to answer all other questions. The protection against self incrimination is available to accused not only in respect of his words, but also on the use of documents, books, papers etc.
Forcing a person to produce, deliver or turnover incriminating written materials is in effect requiring him to testify against himself. Reference is invited to 116 US 616 (1886) as reported at page 96 of Constitution of Pakistan, 1973 by Shaukat Mahmood. It is also against the guarantee provided under Article 13 of the Constitution.
In the last half of the Seventeen Century privilege against self-incrimination was well-established in England. The adoption of privilege marked a great advance over earlier practices when suspects were not only required to give testimony against themselves, but were tortured to force them to do so. The privilege has been incorporated in the Criminal Procedure Code. It has been regarded as one of the great landmark in man's struggle to make himself civilized and assuming that a man is presumed to be innocent until proved guilty. All the other protection facilities as discussed under clause (a) should also be provided to the persons in respect of clauses (b) and ( c) of Section 19 of the Ordinance.
Rule 25.2 of Chapter XXV of Police Rules, 1934 require the Investigating Officer to show the date, time and place of appearance of any person called with the date, time and place of his departure from such place in the copy of notice, which is to be delivered to the person summoned and keeping the duplicate copy of such endorsement in the case diary. The Rule reads as under:-
"25.2. Powers of Investigating Officers.--(1) The powers and privileges of a police officer making an investigation are detailed in Sections 160 to 175, Criminal Procedure Code.
An officer so making an investigation shall invariably issue an order in writing in Form 25.2(1) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and the date and time of his departure from, the place to which he is summoned. The duplicate of the order shall be attached to the case diary.
(2) No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained.
(3) It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."
It is pointed out that under Rule 25.18 of Chapter XXV of Police Rules, 161, Cr.P.C. statement of a witness is recorded in the manner pointed thereunder, which reads as under:-
"25.18. Statement recorded under Section 161, Code of Criminal Procedure.--Statements recorded by an Investigating Officer under Section 161, Code of Criminal Procedure, shall not form part of the case diary prescribed by Section 172, but shall be recorded separately and attached to the case diary, the necessary number of copies being made the carbon copying process on case diary continuation sheets (Form 25.54 (1)). The number of statements attached to a particular case diary, and number of pages in each such statement, shall be noted in the case diary. An Investigating Officer, after examining a person orally or recording a statement under Section 161, Code of Criminal Procedure, shall make a brief note of the fact in his case diary."
Thus, the gist or brief note of the statement of the witness is required to be mentioned in the case diaries.
Police Rules deal with the preparation of record and filing of the case diaries. It will be advantageous to reproduce the said rules for the future guidance of the Investigating Officers, who are conducting the investigation of the cases with direction that the case diaries should be maintained in the said manner. The said Rules 25.54 and 25.55 read as under:
"25.54. Case diaries.--(1) Section 172(i), Code of Criminal Procedure, requires that a case diary shall be maintained and submitted daily during an investigation by the investigating officer. In such diary shall be recorded, concisely and clearly, the steps taken by the police, the circumstances ascertained through the investigation and the other information required by Section 172(i), Code of Criminal Procedure.
(2) Case diaries shall be as brief as possible; shall not be swollen with lengthy explanation and theories, and shall be written either in English or in simple Urdu.
Only such incidents of the investigation shall be included as have a bearing on the case.
(3) Detailed lists of stolen property, or of property seized in the course of a search, shall be entered in the first case diary submitted after the facts relating to such property were reported to, or discovered by, the Investigating Officer.
(4) The fact that copies of the record prepared under the provisions of Section 165 or 166, Code of Criminal Procedure, have been sent to the nearest Magistrate empowered to take cognizance of the offence shall also be noted.
25.54. Record of case diaries.--(1) Case diaries shall ordinarily be submitted in Form 25.54 (1) and each sheet shall be numbered and stamped with the station stamp. Two or more copies, as may be ordered, shall be made by the carbon copying process by the officer conducting the investigation. The officer writing a case diary shall enter in such diary a list of the statements, record under Section 161, Criminal Procedure Code, which are attached to such diary and the number of pages of which each such statement consists.
(2) The case diaries shall be sent from the scene of investigation to the police station without delay.
(3) On arrival at the police station the number and date of each case diary shall be recorded on the reverse of the police station copy of the first information report, and the date and hour of receipt shall be entered on each copy of the diary.
(4) The original shall be dispatched with as little delay as possible to the inspector or other superior officer as may be for copies. Orders for the disposal and record of case diaries space provided in the form on both the original and the copy or copies. Orders for the disposal and record of case diaries in the headquarter's office are contained in Rule 11.70. Also see Rule 27.38.
(5) A copy of every case diary shall be retained at the police station, a separate file being maintained for each case. Such files shall be destroyed in accordance with the periods fixed in sub-Rule 27.39(5).
(6) Copies of all orders received at a police station in connection with case diaries and the replies thereto shall be made on blank sheets of paper and shall be attached to the case diary to which they refer.
25.55. Files of case diaries.--(1) When a case is sent for trial the police station file of case diaries shall be forwarded with the challan to the Magistrate, and on completion of the trial shall be returned to the police station for record.
(2) Such files when received back at the police station, also files of other cases in which the final reports has been submitted, shall be filed at the police station in an annual bundle A in accordance with the serial number of their first information report.
(3) Copies of case diaries in pending cases shall be kept in files at the police station in a separate bundle B in accordance with the numbers of their first information reports.
(4) A list shall be kept in each bundle A and B of all the files contained therein, merely quoting the numbers of their first information reports. Should it be necessary to remove a file from the bundle the fact will be noted in the list."
Thus, the Investigating Officer is required to maintain the case diaries as shown above.
We have examined the notices issued to the petitioners, their children and relatives starting from 2-12-2005 till 5-3-2007 and found that these notices are vague, no specific offence has been mentioned in them, no specific charge against the accused has also been mentioned in them, no required or specified information, particulars of documents or things, which were required to be produced before the Investigating Officer have been mentioned, as such, all the notices suffer from material irregularity and illegality, because they cannot be termed as legal notices within the meaning of Section 19 of the Ordinance. The learned DPG has also admitted that necessary points are missing from the notices, therefore, they are required to be improved. Thus, the said notices are hereby declared as illegal. If the Investigating Officer wants any information, document, thing or examine any person then he can issue fresh notices keeping in view the above observation of this Court in respect of exercise of such powers.
In the light of what has been discussed above, the petition is disposed of in the above terms.
(R.A.) Petition allowed
PLJ 2007 Karachi 341
Present: Muhammad Moosa K. Leghari, J.
Mst. MASUDAH JAWAD through her Daughter--Appellant
Versus
STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and another--Respondents
Const. P. No. S-540 of 2006, decided on 1.6.2007.
Constitution of Pakistan, 1973--
----Art. 199--Sindh Rented Premises Ordinance, (XVII of 1979), S. 8--Constitutional petition--Fair rent--Determination--Landlord filed application before Rent Controller for fixation of fair rent but being not satisfied with the rent fixed--Appeal was preferred--Appellate Court allowed the appeal, enhanced the rate of rent and directed the tenant to deposit the arrears' at the rate of rent fixed, from the date of institution of the application--Plea raised by tenant was that as delay in deciding application for fixing the fair rent was caused by landlord, therefore, she be allowed to pay fair rent from the date of order passed by Appellate Court--Validity--Date for payment of fair rent was to be fixed according to the facts and circumstances of each case--No hard and fast rule existed that fair rent was to be paid from the date of institution of rent application--Although Rent Controller or for that matter Appellate Court were bestowed discretionary powers to fix fair rent from the date of institution of rent application or from the date of the order or even from a date in between the two events, however such discretion was to be exercised judiciously and reason should be assigned for fixing the fair rent from a particular date--Neither Rent Controller nor Appellate Court had assigned any reasons to justify payment of fair rent from the date of institution of rent application--High Court modified the judgment of Appellate Court and directed the tenant to pay fair rent from the date of the order passed by Appellate Court--Petition was allowed. [P. 345] A & B
2001 SCMR 671; 1994 SCMR 2115 and 2001 SCMR 1103 rel.
Mr. Muhammad Hanif Khatana, Advocate for Petitioner.
Mian Mushtaq Ahmed, Advocate for Respondents.
Date of hearing: 1.6.2007.
Order
Muhammad Moosa K. Leghari, J.--Through this Constitut-ional Petition, the petitioner has assailed judgment dated 21.9.2006 passed by V Additional District Judge, Karachi South whereby fair rent payable by the petitioner/tenant was fixed at Rs. 6400 per month from the date of institution of rent application viz. 3-2-1993 and has prayed for modification in the judgment to the extent that petitioner may be permitted to pay the fair rent at Rs. 6400 per month from the date of impugned judgment.
The relevant facts are; that the petitioner is the tenant of Respondent No. 1, State Life Insurance Corporation of Pakistan, in respect of Flat No. 19, ILACO House, Abdullah Haroon Road, Karachi for the last about 56 years. Previously the petitioner used to pay rent at the rate of Rs. 115 per month, however with mutual consent of the parties rate of rent was enhanced to Rs. 800 per month. Thereafter Respondent No. 1 filed Rent Case No. 176/1993 for fixation of fair rent at the rate of Rs. 8,000 per month. The petitioner contested the rent case and consequently the same was dismissed vide order dated 16-3-1998. However, on appeal the matter was remanded and ultimately the learned Rent Controller fixed the fair rent at the rate of Rs. 2,500 per month. Both, the petitioner as well as Respondent No. 1, challenged the said order in appeal before this Court. Subsequently, due to change in jurisdiction, both the appeals were transferred to District Court Karachi South. After conclusion of the arguments advanced by learned counsel for the parties, appeal filed by the petitioner was dismissed whereas appeal of Respondent No. 1 was allowed and the fair rent was increased to Rs. 6,400 per month from the date of institution of rent application viz. 3-2-1993. Hence this petition.
Admittedly the petitioner has not challenged the quantum of fair rent fixed by the appellate Court. The only prayer made by her is to, "modify the judgment to the extent that the petitioner shall pay fair rent fixed at the rate of Rs. 6,400 per month effective from 21-9-2006". In this view of the matter, the only point to be decided is, as to from which date the enhanced rent of Rs. 6,400 should be made effective.
According to learned counsel for the petitioner, Respondent No. 1 filed the rent case on 3-2-1993 and after a few months the petitioner filed her written statement, but Respondent No. 1 took about 13 months in filing affidavit in evidence. It is further pleaded that after completion of respondent's cross-examination on 27-11-1996, the petitioner filed her affidavit in evidence on 6-2-1997 i.e. after about two months. According to him, although the petitioner was regularly appearing for the purpose of her cross-examination but she could not be cross-examined as none was appearing on behalf of Respondent No. 1 with the result that on 13-12-1997 her cross-examination was marked as `Nil'. In this way, Respondent No. 1 lingered on the matter and delayed its disposal. It is further contended that again in the Appellate Court Respondent No. 1 adopted delaying tactics, inasmuch as written arguments on behalf of the petitioner were filed on 25-7-2002 whereas written arguments on behalf of Respondent No. 1 were filed on 15.3.2005 i.e. after about three years and after the written arguments of both the sides having been filed, Appellate Court took about one and a half year in passing the impugned judgment. He further contended that the petitioner is a widow of about 85 years of age and is dependant upon her son who works in abroad and she is not in a position to pay arrears of rent from the date of institution of rent case viz. 3-2-1993 as it comes to approximately Rs. 8,00,000, thus it is pleaded that the order of fixation of fair rent amounts to ejectment of the petitioner from flat in question.
Conversely, it was contended by learned counsel for Respondent No. 1 that no deliberate or intentional delay was caused by Respondent No. 1 and that ordinarily fair rent is to be fixed from the date of institution of rent application. In support of his contention, he relied upon two judgments of the Honuorable Supreme Court in the cases of Volkart (Pakistan) Ltd., Karachi v. Interavia Pakistan Limited, Karachi 2001 SCMR 671 and H. Cooper and others v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115.
In the case of H. Cooper and others (supra) the Honourable Supreme Court observed as under:-
"No date has been fixed for the payment of fair rent in Section 8 of the Ordinance. In Punjab Rent Restriction Ordinance and
N.-W.F.P. Rent Restriction Ordinance the fair rent shall be payable by the tenant from the date to be fixed by the Controller not earlier than the date of the application. A discretion has been vested on the Controller to fix the date for payment of fair rent keeping in view the circumstances of a particular case. The fair rent is to be fixed keeping in view the factors mentioned in Section 8 of the Ordinance."
It was further observed:
"We may, however, observe that in case the appeal is filed against the order fixing the fair rent, the Appellate Court is competent to fix a date for the payment of fair rent."
In the case of Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 the apex Court made following observations:
"So far as the law is concerned, Section 8 does not lay down any fetters on the power of the Rent Controller or the Appellate Authority to fix the fair rent from a particular date. It would thus, follow that very wide discretion has been conferred by law on the Rent Controller to fix the fair rent from the date of application or from the date of order and in suitable cases even from a date between the two events. The discretion vested in the Rent Controller as well as the Appellate Court is, however, not arbitrary or whimsical. Discretion in fixing the fair rent as well as the period from which it would be made payable is to be exercised judiciously with great care and caution, being in the nature of public trust. No inflexible rule of law could be laid down as to date of payment of fair rent because it would depend on the fact sand circumstances of each case."
Rs. 115 to Rs. 800 with effect from 1-7-1989 and after about 3 and a half years viz. on 3-2-1993 application for fixation of fair rent was filed praying therein for enhancing the rent from Rs. 800 to Rs. 8,000 which comes to Rs. 1,000 per cent. The petitioner claims to be an aged lady of about 85 years which fact has not been disputed. Besides, the learned counsel for Respondent No. 1 has not been able to successfully controvert the allegation of delaying the disposal of rent application and that of the appeal by Respondent No. 1.
It is also worth-noting that the learned Rent Controller had fixed the fair rent at the rate of Rs. 2,500 per month from the date of filing the rent application, however, the learned Appellate Court enhanced the fair rent from Rs. 2,500 to Rs. 6,400 although in the operative part of the impugned judgment Appellate Court observed that, "order of trial Court fixing fair rent at Rs. 2,500 per month is just and reasonable." Keeping in view the peculiar circumstances of the instant case, I am of the opinion that the ends of justice would meet if the petitioner is allowed to pay the fair rent at the rate of Rs. 6,400 per month from the date of the order passed by the Appellate Court viz. 21-9-2006.
(R.A.) Petition allowed
PLJ 2007 Karachi 346
Present: Mrs. Qaiser Iqbal, J.
SEZAI TURKES FEYZI AKKAYA CONSTRUCTION
COMPANY--Plaintiff
versus
BOARD OF TRUSTEES OF KARACHI PORT TRUST, KARACHI--Defendant
Suit No. 1058 of 2004, decided on 7.3.2007.
Arbitration Act, 1940 (X of 1940)--
----S. 26-A--Arbitration Amendment Ordinance (XII of 1981)--S. 3--Filing of award in Court by arbitrators to be made rule of the Court--Recording of reasons in support of award--Mandatory requirement--Power to remand--Limits on the standard of review--If arbitrators fail to provide the reasons Court has power to remand the award to the arbitrators and require them to provide further and sufficient details reasons in support thereof. [P. 356] G
Arbitration Act, 1940 (X of 1940)--
----Ss. 30 & 14--Filing of award in Court by arbitrators to be made rule of the Court--Share in property--Examine the evidence--Arbitartor ought to have given reasons for holding that plaintiff has 50% share in property in-question--It was incumbent upon arbitrator to examine the evidence before him after discussing the documents, if any, give the findings whether the plaintiff has any right in the property in-question or not. [P. 357] H
Arbitration Act, 1940 (X of 1940)--
----Ss. 30 & 14--Filing of award in Court--Rule of Court--Scope of--Contention--Role of the Court under Arbitration Act, is of supervisory nature and not that of the usual appellate powers under C.P.C. which are not available to Court. [P. 358] I
Arbitration Act, 1940 (X of 1940)--
----S. 15--Modification--Scope of--Award may be modified or corrected when it falls within the scope of S. 15 of the Arbitration Act, and it can be set aside. [P. 359] J
Arbitration Act, 1940 (X of 1940)--
----Ss. 30, 33 & 14--Filing of award in Court by arbitrators to be made rule of Court--Objection--Nature and scope--Illegality--However by a mere mention in the award that the parties had evidence before the Arbitrator, law does not raise a presumption that the evidence becomes a part of the award upon the scrutiny through an application u/Ss. 30 and 33 of the Arbitration Act, because the Court hearing objections for setting aside the award cannot convert itself into a Court of appeal over the decision of the arbitrators and cannot make a sifting investigation of the entire proceeding as to whether award suffered from any patent error, or legal infirmity--So far as the question of interpretation of the clauses in agreement is concerned--Held: Award should be construed liberally and the interpretation of any relevant clauses of the contract does not vitiate the award--Since both the parties to arbitration had pressed into service the provisions of certain clauses in the agreement, the clauses have been interpreted within the scope of reference, without interpreting the clauses the dispute referred to the arbitration could not be resolved.
[Pp. 359 & 360] K
Arbitration Act, 1940 (X of 1940)--
----Ss. 30 & 33--Filing of award in Court by arbitrators to be made rule of the Court--Objection--Legality--Determination of controversy between parties--Insufficiency of evidence--Misconduct--Court would have taken a different view on the basis of evidence as was on record of arbitration proceedings do not warrant interference with the award while deciding the objections u/Ss. 30 & 33 of Arbitration Act--No misconduct and illegality having been committed by arbitrators.
[P. 360] L
Arbitration Act, 1940 (X of 1940)--
----S. 29--Filing of award in Court--Rule of Court--Interest award of--Arbitrators have no powers to award interest beyond the date of decree. [P. 353] D
Breach of Contract--
----Damages--In absence of express or implied contract, or of usage of trade, interest cannot be allowed on damages for breach of contract.
[P. 354] E
Contract--
----Entitlement to interest--Plaintiff was not entitled to interest by way of compensation for breach of contract. [P. 353] A
Interest--
----Reflection--Award reflects that interest was granted from the date of the award until the payment of principle sum. [P. 353] B
Interest--
----Future interest--Award--Future interest with effect from the date of decree could not legally be awarded by arbitrator. [P. 353] C
Interest--
----Interest awarded on account of 92 days delay--Retention money--Interest could not have been awarded on the amount awarded on account of extra charges paid, on account of delay in reduction of performance guarantee, the interest awarded for 72 days delay in realizing 57% rentention money--The interest awarded to claimant in relation to 25% of the retention money, the interest awarded on account of 92 days delay in payment of local currency and on account of 124 days delays in payment of foreign currency--Interest awarded on account of with holding deducted from the inter payment of the claimant. [Pp. 354 & 355] F
PLD 1966 (W.P.) Kar. 412; 1980 CLC 470; 2002 SCMR 366; 2002 SCMR 1903; PLD 1996 SC 108; 1984 SCMR 597; PLD 2004 Lah. 722; 2004 CLC 1879; 2003 CLC 1780; 2002 CLC 159; PLD 1995 Kar. 301; PLD 1973 Kar. 413; 1980 CLC 1977; 1981 CLC 311; PLD 1980 Kar. 207 ref.
Mr. Bilal A. Khawaja, Advocate for Claimant.
Mr. Zahid Jamil, Advocate for Defendant.
Date of hearing: 7.3.2007.
Order
Pursuant to the provisions of Section 14(2) of the Arbitration Act, 1940 in the matter of Messrs STFA-Tamel Joint Venture and Karachi Port Trust a unanimous award dated 24th August, 2004 was filed in Court by the Arbitrators to be made rule of the Court.
Precisely the facts leading to the award are that Karachi Port Trust had floated a tender for the reconstruction of Berths Nos. 5 to 10 at the Karachi Seaport on 20-3-1994 Messrs STFA-Tamel a Joint Venture Company of Turkey, participated in the tender and out of the seven companies pre-qualified for the contract, its bid was accepted by the claimant who issued its letter of acceptance dated 5th July, 1995, whereby a contract price of Rs. 1,468,866,577 was confirmed which included 30% Foreign Currency payment. The claimant deposited with the respondent as stipulated in the contract two bank guarantees in the sum of US$ 1,439,947.63 and Pak Rs. 102,820,660.39. Consequent thereupon, an agreement dated 22nd July, 1995 was executed between the parties. The contract specified a period of 730 days for completion of work under the contract commencing from 12 days after the receipt of the letter of acceptance by the claimant. It is an admitted position that the work could not be completed within the period provided under the contract, and was delayed by 551 days. The claimant attributed the delay in completion of the work to the respondent which was vehemently denied by the respondent. Consequent thereupon various disputes between the parties with regard to the performance of the contract could not be resolved, the parties thus, invoked the arbitration clause and as a consequence thereof three arbitrators were appointed, one by each party and 3rd arbitrator was appointed with the consent of the two arbitrators. As a consequence of the arbitration proceedings, the award dated 24-8-2004 was filed. The award was pronounced by the Arbitral Tribunal in the following terms:--
(1) We allow 49 days time asked by the claimant in EOT-III request (29 days on account of partial handing over of the site; 16 days for stoppage of construction work on the section of quay wall capping and 4 days for the strikes).
(2) The respondents are directed to return Rs. 3,651,554.74 (Rs. 2,556,088 in local currency and US $35,796.63 in foreign currency) deducted as liquidated damages from the Retention Money of the claimant. The respondents will pay interest on the above amount at the rate of 12% per annum compounded per day of delay in terms of clause 60.3 from the date the Retention Money became refundable till the date of actual payment.
(3) The claimant is awarded Rs. 2,213,360 as overhead expenses for 22 days of strike (Rs. 1,549,352 in local currency and US $ equivalent to Pak Rs. 664,008 converted at the agreed contract rate of conversion). The claimant will be entitled to interest at the prevailing bank rate from the date of award till the amount is paid.
(4) The claimant is awarded Rs. 114,495 and US$ 14,980 on account of delay of 231 and 9 days respectively in reduction of Performance Guarantees. The claimant will be entitled to interest on the above amount according to prevailing bank rates from the date of award till the amount is paid.
(5) The claimant is awarded interest amounting to
Rs. 1,248,239 and US$ 13,466 respectively for 72 days delay in releasing the 50% of Retention Money. The claimant will be entitled to interest on the above amount according to prevailing bank rates from the date of award till the amount is paid.
(6) The claimant is awarded interest for 53 days delay in the release of 25% of the Retention Money amounting to Rs. 229,032 and US$ 2,417 respectively. The claimant will be entitled to interest according to prevailing rate of interest on the above amount from the date of award till the amount is paid.
(7) The claimant is awarded interest amounting to Rs. 265,054.62 on account of 92 days delay in payment of local currency portions of Bill Nos. 4/1, 5, 6, 7, 1, 6, SPC-5/2, 23, 40 and 45. The claimant is also awarded interest amounting to US$ 5,496.88 on account of 124 days delay in payment of foreign currency portions of Bills Nos. 2, 4/1, 4/2, 6, SPC-1, SPC-3, 18, 41, 43 and 45. The claimant will be entitled to interest on these amounts at the prevailing bank rates from the date of award till the amount is paid.
(8) The claimant is awarded Rs. 25,423,163 on account of adjustment in the contract price under 52.3 clause of the contract. The claimant will be paid Rs. 17,796,214.1 in local currency and US$ equivalent to Pak Rs. 7,626,948 converted at the agreed contract rate. The claimant will receive interest on these amounts according to prevailing bank rates from the date of award till the amount is paid.
(9) The claimant is awarded Rs. 131,849,668.25 on account of amendment of the co-efficient of the contract price adjustment formulae given in the contract. The claimant will be paid Rs. 92,294,768 in local currency and US$ equivalent to Pak. Rs. 39,554,900 converted at the agreed contract rate. The claimant will be entitled to interest on the above amount according to prevailing bank rates from the date of award till the amount is paid.
(10) The claimant is entitled for payment of US$ 187,466 by way of amendment of foreign exchange component out of the amount payable to claimant in Pak Rupees but the rate of conversion of Pak Rupees into dollar will be that which was prevailing on the date of letter of credit was established by the claimant for import of steel plates and 40 mm diameter reinforcing steel bars.
(11) The claimant is awarded a sum of Rs. 4,289,720 on account of Customs Duty, Sales Tax, Regulatory Duty and Additional Income Tax paid on the import of barge "Bahar Ann". The claimant will be paid Rs. 3,002,804 in local currency and US$ equivalent to Rs. 1,286,916 converted according to exchange rate mentioned in the contract. The claimant will be entitled to interest on this amount at the prevailing bank rate from the date of award till the amount is paid.
(12) The claimant is allowed interest amounting to Rs. 1,302,951 and US$ 30,625 calculated upto 28-1-2002 on the excess amount of withholding tax deducted from the interim payment of claimant. The claimant will be entitled to interest on the above amounts according to prevailing bank rates from the date of award till the amount is paid.
(13) The claimant is awarded cost of Arbitration proceedings amounting to Rs. 2,500,000.
(14) The counter-claim made by the respondent is rejected.
In response to the notice issued to the respondent objections have been filed by the respondent.
Learned counsel for respondent has assailed the award on the following points:--
(a) The arbitrators travelled beyond the reference and exceeded their power in awarding interest on most of the grounds specifically interest awarded from the date of the award till the date of decree also interest awarded beyond the date of decree.
(b) The arbitrators in allowing EOT-III wrongly reviewed EOT-III, as the arbitrators were aware that the decision of the Engineer in deciding EOT-I, EOT-II, the date of the performance of the completion of contract was extended upto 21st December, 1998. The arbitrators erroneously decided EOT-III in favour of the plaintiff award extension of 49 days.
(c) Arbitrators considered EOT-I and II past and closed transaction. The plaintiff did not adduce new evidence in support of EOT-III request. The Engineer vide letter dated 27-5-1997 left open the question considering certain grounds raised in EOT-I, EOT-II, Court is empowered to review whether fresh evidence was adduced in EOT-I and II and III on the ground of partial handing over and strikes.
(d) The plaintiff had claimed extension of time in the following manner:--
(a) Partial handing over (49 days).
(b) Escalation cost on account of delay in awarding contract; and
(c) Delay in payment of contractual claims.
(d) The finding that the liquidated damages be returned by the defendant given by the arbitrators was erroneous and a case of misconduct.
(e) Compensation for extension of time for 43 days strikes was reduced to 22 days whereas strikes had actually taken up only 20-49 days. Thus, by giving 22 days arbitrators had actually over-compensated the plaintiff.
(f) Arbitrators exceeded their reference by interpreting clause 10.1 of the contract thereby adding that it does not vest a discretion performance security from 10% of the contract price to 5% of the contract price, clause 10.1 was mandatory in nature, but was erroneously construed as discretionary by the arbitrators. The arbitrators have failed to specify the date on which the retention money was due to the plaintiff. Liquidated damages were returned to the plaintiff on the basis of calculation from the date of retention money becoming due without specifying the date in contravention of clause 60.12 of the contract as the arbitrators had awarded 12% compoundable interest on this amount. The arbitrators have misconducted by refusing to consider the evidence adduced by the respondent showing that the contract price did not reach the 15% of the contract price lit, the price being the one named in the letter of acceptance. The arbitrators had himself interpreted clause 52.3 of the contract viz. the purpose of the clause was not to enable the Engineer to compensate the party which may suffer on account of the variation. The arbitrators have failed to provide reasons for their finding that the plaintiff had a right to amend co-efficients and have merely recorded the letter dated 24-3-1999 written by the Engineer as an admission by the Engineer that plaintiff had the right to amend co-efficients. The arbitrators had awarded a change of foreign currency requirement on the basis that plaintiff had not been able to obtain the required steel plates from the local market and had to import the same from abroad. The arbitrators had contradicted themselves since they had replied that (the responsibility for the procurement of steel plates under the contract was that of the contractor/ claimant).
(g) The arbitrators did not consider the evidence when deciding Claim No. 9 holding defendant liable for the taxes the plaintiff had to pay due to dump barge "Bahar Ann" being unable to berth in the wharf before 31st December, 1995. The arbitrators had compensated the plaintiff for the deducting of the advance tax on the payment made to the plaintiff in compliance with legal and statutory requirements.
The claimant/plaintiff has filed reply to the objections filed by the defendant.
I have heard Mr. Bilal A. Khawaja and Zahid Jamil learned counsel for respondent.
Much of the emphasis has been laid by Mr. Zahid Jamil on the submission that the plaintiff was not entitled to interest by way of compensation for breach of contract. It is manifestly stressed that the plaintiff ought to have been allowed interest consistent with any express or implied terms of the contract or on the basis of any mercantile usage of statutory provisions. The award reflects that interest was granted from the date of the award until the payment of principle sum. The arbitrators under no circumstances were competent to award interest for the period beyond the date of passing of the decree for the simple reason that statutory provisions contained in Section 29 of the Arbitration Act provides so and vests this power in the Court who may order payment of interest from the date of decree deemed reasonable by the Court, to be paid on the principal sum as adjudged by the award and confirmed by the decree. From the above analogy it follows that the future interest with effect from the date of decree could not legally be awarded by the arbitrators. The arbitrators had exceeded the authority to award future interest for the period beyond the date of award and the date of decree. Referring to the award it is stressed that merely by inclusion of the question of interest payment in the issues settled on the pleadings of the parties influence cannot be drawn that parties had agreed to refer specifically the question of grant of interest. In this context reliance is placed on the case of A.Z. Company v. S. Maula Bukhsh Muhammad Bashir PLD 1965 SC 505.
The rule enunciated in the light of the dictum laid down by the Honourable Supreme Court the arbitrators could not have awarded interest from the date of the arbitration award till the date of the payment. Learned counsel for the plaintiff Mr. Khawaja Bilal has candidly conceded that the arbitrators had no powers to award interest beyond the date of decree and the award be modified to this effect.
The interest has been awarded by the arbitrators at the prevailing bank rate till the amount is paid. The contract does not specifically provide for interest being awarded at prevailing bank rate. Thus, arbitrators could not have awarded interest on this rate viz. till the date of the decree. In the case of Ghulam Abbas v. K.P.T. PLD 1987 SC 393 it has been laid down that:--
"In order to further examine this question it is necessary to analyze the nature of the right to interest in many claims before a Court of law and on the same analogy before the domestic forum of an arbitrator. The right to interest, for the period prior to the date of suit or prior to the reference to arbitration is a matter of substantive law, as contrasted with the power given to a Court of law under Section 34, Cr.P.C. or Section 29 of the Arbitration Act which is a statutory power within the domain of procedural law. The right to interest, for the period prior to the suit arises in one of the four following ways:--
(i) agreement, express or implied between the parties, (ii) mercantile usage, (iii) statutory provisions, (iv) interest may be also allowed on equitable grounds in proper cases.
In Messrs A.Z. Company v. S. Maula Bukhsh Muhammad Bashir PLD 1965 SC 505, the rule enunciated is that in absence of express or implied contract, or of usage of trade, interest cannot be allowed on damages for breach of contract. Therefore, liable to pay compensation for breach of contract claims could not be subjected to a further liability to pay interest as according to the case record (supra). The interest could not have been awarded by the arbitrators in view of the pronouncement reported in Messrs Ibad & Co. v. Province of Sindh through Secretary to the Government Commission and Works Department and 2 others PLD 1980 Kar. 207 and Messrs Alfa v. Nizam Deen and others 2001 CLC 289.
The interest could not have been awarded on the amount awarded on account of extra charges paid, on account of delay in reduction of performance guarantee, the interest awarded for 72 days delay in realizing 57% retention money. The interest awarded to the claimant in relation to 25% of the retention money, the interest awarded on account of 92 days delay in payment of local currency and on account of 124 days delay in payment of foreign currency, the interest awarded on account of withholding deducted from the inter payment of the claimant.
The award has been challenged by the respondent in terms of Section 30 of Arbitration Act which reads as under:--
"Grounds for setting aside award.--An award shall not be set aside except on one or more of the following grounds, namely:--
(a) that an arbitrator or umpire has misconducted himself or the proceedings;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Section 35; and
(c) that an award has been improperly procured or is otherwise invalid.
It is contended by the learned counsel for defendant that the arbitrators had misconducted by travelling beyond the scope of the reference. It is however, conceded that as the Court does not sit in appeal over an award while hearing Section 30 application it has no power to open the entire record of the proceedings and substitute its own finding with that of the arbitrator but the Court is empowered to look at the evidence and documents which are referred to in the award or such evidence that form part of the award to adjudge whether there is an error apparent on the face of the award.
Mr. Zahid Jamil has contended that a serious error is apparent on the face of the award as the total delay in the performance of the contract is 551 days EOT-I (198 Days) EQT-II (236 days) and EOT-III (496 days) awarded by the arbitrators total sums up (483 days) which leads to the gap of 68 days. The arbitral award, referred to letter dated 16th October, 1998, on the basis of which the arbitrators allowed the extension of 4 days due to strike which clearly shows that no four days extension of time was claimed but only 1-27 days were claimed. Since the document was the sole basis for the determination for extension of tune for strike only by the arbitrators whereas on actual number of days affected 1-27 days and not 4 days. The decision of the arbitrators to award 4 days extension in case of strike based upon the letter dated 16th October is an error on the face of award.
The stress has been laid on the case of Champsey Bhara & Company v. Jivarajh Baloo Spinning and Weaving Company Ltd. AIR 1923 PC 66, Privy Council laid down:--
"Where a cause of matters in difference is referred to an arbitrator, whether a lawyer or a layman, he is the constituted the sole and final Judge of all questions both of law and fact. The only exceptions to that rule are cases where the award is result of corruption or fraud and one other, which tough it is to be regretted is now firmly established viz. where the question of law necessarily arises on the fact of the award or upon some paper accompanying and forming part of the award."
This rule is followed in the case of Tribal Friends v. Province of Balochistan 2002 SCMR 1903 as well as in the case of Pakistan Steel Mills v. Mustafa Sons PLD 2003 SC 301:--
"We may mention here that the Court while examining the validity of an award does not act as Court of appeal. Therefore, a Court hearing the objection to the award cannot undertake reappraisal of evidence recorded by the arbitrator in order to discover the error or infirmity in the award. The error or infirmity in the award which rendered the award invalid must appear on the face of the award and should be discoverable by reading the award itself. Where reasons recorded by the arbitrator are challenged as perverse, the perversity in the reasoning has to be established with reference to the material considered by the arbitrator in the award."
Learned counsel for the defendant has contended that while awarding compensation for strikes the documents were misread by the arbitrators who held that the compensation could be awarded for 22 days while the plaintiff's claim could be only for 20-79 days. The calculation made by the Engineer in letter, dated 24th March, 1999 determining the amendments to co-efficients of the contract price the arbitrators adopted the calculation of the Engineer including the value of steel plates, awarded double compensation to the plaintiff for an increase in the price of steel by increasing in the exchange of cost of steel which tantamounts to double compensation on the part of the arbitrators. In the case of Ghulam Abbas v. KPT (supra) the principles laid down by the Supreme Court are bound to be followed by the arbitrators with regard to follow ordinary legal principle. The limits on the standard of review by a Court are laid through insertion of Section 26-A of Arbitration Act, 1940 by Section 3 of the Arbitration Amendment Ordinance (XV of 1981), which provides as a mandatory requirement for arbitrators to record reasons in support of the award. If arbitrators fail to provide the reasons Court has power to remand the award back to the arbitrators and require them to provide further and sufficient details/reasons in support thereof.
This view finds support from the case of Balwal Khan v. Muhammad Alam Khan PLD 1956 Lah. 494 and Muhammad Yousuf v. Gul Zaman 2004 MLD 735. After provided definition of what would constitute a reason, it is observed:--
"From the perusal of the award it appears that sole arbitrator has not given any reason to his award for his findings except that defendant failed to cross-examine the plaintiff's witnesses and their evidence, as such is un-shattered. In my opinion the learned arbitrator ought to have given reasons for holding that plaintiff has 50% share in the property in question. It was incumbent upon the arbitrator to examine the evidence before him after discussing the same and documents, if any, give the findings whether the plaintiff has any right in the property in question or not."
In my opinion the learned arbitrator ought to have given reasons for holding that plaintiff has 50% share in the property in question. It was incumbent upon the arbitrator to examine the evidence before him after discussing the same and documents, if any, give the findings whether the plaintiff has any right in the property in question or not.
Mr. Zahid Jamil has contended that in the award no reasons had been given by the arbitrators for extension of time granted on the ground of partial handing over, the arbitrators have observed, "There is nothing on record to show that the statement regarding strikes is not correct or that it did not affect the progress of the work as claimed by the claimant". While dealing with the interim and special certificates no finding has been recorded by the arbitrators. No reasons have been specified on the awarded compensation for the total strikes days, variation in the contract price were over or under 15%. Arbitrators have failed to provide reasons for holding that plaintiff had right to amend co-efficient, no reason as to why they choose a figure of 10% of the value of prevented works to calculate the value awarded to the plaintiff, thus, the arbitrators have failed to consider the crucial documents which tantamounts to misconduct of the proceedings justifying setting aside of the award under Section 30 of the Arbitration Act, 1940. In support thereof reliance has been placed on the case of Government of Pakistan v. Overseas Enterprises (Pvt.) Ltd. 1992 CLC 1139, Bawany Sugar Mills Ltd. v. Karachi Trading Agency 1987 MLD 3036, Director of Industries and Mineral Development v. Dadabhoy Hormusjee and Sons 1990 MLD 301 and Khalid Abbas v. Muhammad Farooq 2004 YLR 274 has laid down types of situations tantamount to misconduct for the purpose of Section 30 of Arbitration Act, 1940 enumerated as under:--
(a) neglect of duties and responsibilities by arbitrators;
(b) something contrary to what Courts of justice expect from them before allowing finality to their award;
(c) if arbitrator has refused to postpone a meeting for purpose of allowing a party to engage a counsel, when other party unexpectedly turns up with a counsel;
(d) if award is made without having heard all the evidence;
(e) if evidence of witnesses is recorded behind the back of a party;
(f) if a party has not been allowed reasonable opportunity of proving his case;
(g) if arbitrator has not brought to the notice of opposite party a document received by him from his adversary or not given him an opportunity of meeting the inferences deducible from them;
(h) if irregularities in the proceedings are proved, which amount to improper hearing of the matter in dispute;
(i) if finding is perverse or unsupported by evidence before him;
(j) if arbitrator decides a disputed question without going into evidence as in such a case he would be said to have decided blindly;
(k) if there is indication of gross negligence or recklessness on the face of record;
(l) if there is some mistake of fact, provided it is either admitted or at leas clearly beyond reasonable doubt.
It is urged by the learned counsel for defendants that arbitrator is a primary finder of law and fact between the parties to dispute on issue referred to by the parties. Wherein issue of law or contractual interpretation is not specifically referred to the arbitrators, the arbitrators will be deemed to have gone beyond the scope of reference. In support of the above contention reliance is placed on the case of Sadiq Muhammad Afzal v. Ministry of Industries PLD 1966 (W.P.) Kar. 412 and Barisons (Pak.) Ltd. v. Pakistan 1980 CLC 470.
Mr. Khawaja Bilal, learned counsel for the plaintiff, has contended that the role of the Courts under Arbitration Act, 1940 is of supervisory nature and not that of the usual appellate powers under C.P.C. which are not available to the Court. Award may be modified or corrected when it falls within the scope of Section 15 of the Arbitration Act, 1940 and it can be set aside, if attacked on the grounds in Section 30 as there is no provision of review of an award in the Act as laid down in the case of Messrs Waheed Brothers (Pakistan) Ltd. Lahore through Chief Executive v. Messrs Izhar (Pvt.) Ltd. Lahore through Managing Director 2002 SCMR 366, Tribal Friends v. Province of Balochistan (supra), Messrs Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC 108, Ashfaq Ali Qureshi v. Municipal Corporation of Multan 1984 SCMR 597, National Fibers Ltd. and another v. Pakistan through Secretary Privatization Commission, Ministry of Finance, Islamabad PLD 2004 Lah. 722 and Lahore Development Authority v. Messrs Faisal International Construction Corporation Ltd. 2004 CLC 1879. It is contended that if the arbitrators adequately considered and decided every item of the claim made by the parties and no misconduct was established against them then law would lean in favour of upholding such an award and avoid vitiating the same. In support thereof reliance is placed on Province of Punjab v. Sh. Fazalul Hussain 2003 CLC 1780, Board of Governors, Divisional Public High School, Lyallpur v. Sh. Fazal Hussain & Company 2002 CLC 159, Kashmir Corporation Ltd. v. Pakistan International Airlines PLD 1995 Kar. 301 and Messrs Hussain Textile Mills Ltd. Karachi v. Messrs Dada sons Limited, Karachi PLD 1973 Kar. 413.
From the award it appears that the claims were filed by the parties supported by documentary evidence, affidavits were filed, witnesses were duly cross-examined. The arbitrators had considered entire evidence, interpreted clauses 10.1, 44.4, 42.1 and 60.12. Explanation of the time urged in EOT-I and III, area in the proximity of berth 7 was made available in lieu of the area occupied by the power house. It had operated for only 70% contractual specified area. However by a mere mention in the award that the parties had evidence before the Arbitrator, law does not raise a presumption that the evidence becomes a part of the award upon the scrutiny through an application under Sections 30 and 33 of the Arbitration Act because the Court hearing objections for setting aside the award cannot convert itself into a Court of appeal over the decision of the arbitrators and cannot make a sifting investigation of the entire proceeding as to whether award suffered from any patent error, or legal infirmity, on the record. So far as the question of interpretation of the clauses in agreement is concerned it is settled principle that award should be construed liberally and the interpretation of any relevant clauses of the contract does not vitiate the award. Since, both the parties to arbitration had pressed into service the provisions of certain clauses in the agreement the clauses have been interpreted within the scope of reference, without interpreting the clauses the dispute referred to the arbitration could not be resolved.
Russell on Arbitration 22nd Edition, stressed that an award is final determination of a particular issue or claim in the arbitration and the arbitrators in consonance of the agreement arrived at between the parties can determine payment of money if payment is to be made by one party with reference to the other party.
Finding by arbitrators on claim which relates to question of facts and comes within the exclusive domain of arbitrators cannot be disturbed when sufficient reasons for coming to the conclusion have been furnished. Insufficiency of evidence, non-consideration of evidence, failure to take into account any evidence and even if a Court would have come to a different conclusion cannot be the ground for interference by the Court under Section 30 or any other provision of the Act. The above contentions are fully supported by various decisions of this Court in the cases of Qutabuddin Khan v. K.E.S.C. 1980 CLC 1977, The Premier Insurance Co. Pakistan Ltd., Karachi v. Ejaz Ahmed 1981 CLC 311, Province of Balochistan v. Haji Gul NLR 1982 AC 398 and Messrs Ebad & Company v. Province of Sindh PLD 1980 Kar. 207. Dictum laid down in these judgments is that, insufficiency of evidence or that the Court would have taken a different view on the basis of same evidence as was on record of arbitration proceedings do not warrant interference with the award while deciding the objections under Sections 30 and 33 of the Arbitration Act I am not sitting in appeal against the award given by the arbitrators. In my view the issue involved finally determined the controversy between the parties and cannot be set aside on the ground of insufficiency of evidence, non-consideration of any part of the evidence and failure to take into account any evidence. In my view the award is in clear terms, no misconduct and illegality having been committed by the arbitrators. For the reasons discussed above, the award is made rule of the Court excluding the award of interest on all counts. However, the defendant shall be liable to pay interest at the rate of 14% per annum from the date of the judgment till the date of realization of the entire amount.
(R.A.) Order accordingly
PLJ 2007 Karachi 361
Present: Nadeem Azhar Siddiqi, J.
MUHAMMAD ANAS KAPADIA and 19 others--Plaintiffs
versus
M. FAROOQ HAJI ABDULLAH and 5 others--Defendants
Suit No. 1251 and C.M.A. No. 7107 of 2005, decided on 5.8.2006.
Sindh Local Government Ordinance (XXVII of 2001)--
----S. 195--Sixth Sched. Items 24 & 25--Karachi Change of Lands Use and Master Planning Bye-Laws, 2003----Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--Sindh Chief Court Rules (OS), R. 76--Constitution of Pakistan (1973), Arts.9, 14, 23, 24 & 25--Suit for declaration, injunction and cancellation of document--Application for grant of injunction--Commercialization of a residential plot in residential area--Disputed plot was situated in a residential area and the plaintiffs were residents of the said area--Owner of the plot may be restrained from using the said plot for any other purpose except residential and restrain the authorities from commercialization and/or approving the plans for commercial buildings--Validity--Plot in-question, admittedly was situated in a residential area and plaintiffs were residents of the area--Plaintiffs had right to object construction of high rise building in their neighbourhood provided they established that their right of privacy, light and air would be disturbed--Proposed commercialization, apparently, was in violation of the clause of lease--Owner upto the date had not obtained any approval from the lessor and without its approval the authorities had issued NOC for change of lands use and demanded specified amount from the builder who deposited the same--No objection certificate, issued by authorities apparently, was in violation of lease conditions and the builder taking advantage of Bye-Laws 2003, could not violate the lease conditions--Breach of lease conditions had a direct bearing upon the vested rights of the plaintiffs and they had the right to object to the same and to protect their vested rights--Plaintiffs, apart from breach of lease conditions had also claimed violation of easementary rights, "and had provided the details of the same--Violation of easementary rights being independent from the violation of lease, that construction of high rise commercial building in the vicinity of a recognized residential area, without providing necessary infrastructure, would not be in the interest and welfare of plaintiffs--If the injunction application was refused the process of commercialization would be completed and the plaintiffs will suffer as after commercialization and construction of building the builder might create third party interest and it would be difficult to reverse the position and bring it to the position as on the date of filing of the suit--Corpus of the dispute was to be preserved during pendency of the proceedings so that if any decree was passed the same could be executed--Plaintiffs having succeeded to make out a prima facie case for grant of injunction as prayed and balance of convenience also being in their favour, they would suffer an irreparable loss and injury in case such injunction was refused--Application for grant of injunction was allowed by the High Court.
[Pp. 365, 366 & 369] A, C, D & E
PLD 1994 SC 512 and 1996 CLC 417 ref.
(ii) Constitution of Pakistan (1973)--
----Arts. 8 to 28 of Chapter I--Every citizen has right to live in a peaceful environment, clear atmosphere and the right to have protection from encroachment on privacy and liberty--Any law, in so far as it is inconsistent with the rights conferred by Chapter I of Constitution of Paksitan, 1973 shall, to the extent of such inconsistency, be void.
[P. 366] B
Ms. Rizwana Ismail, Advocate for Plaintiffs.
Mr. Manzoor Ahmed, Advocate for Respondent No. 3.
Mr. Abid S. Zuberi, Advocate for Respondent No. 6.
Date of hearing: 5.8.2006.
Order
The plaintiffs by filing this suit has challenged the proposed commercialization of Plot No. 9, Block 3, Modern Cooperative Housing Society, Karachi, and have also challenged the Change of Land Use and Master Planning Bye-laws, 2003 framed by City District Government Karachi under the provisions of Sindh Local Government Ordinance, 2001. The case of the plaintiffs is that Plot No. 9, Block 3, Modern Cooperative Housing Society, Karachi, (hereinafter referred to as the said plot) is situated in a recognized residential area and the plaintiffs are the residents of that area from 25/50 years and that the residence of Plaintiff No. 3 is adjacent with the said plot and the residence of Plaintiff No. 7 is situated two to three bungalows away from the said plot. The society where the said plot is situated is purely a residential society and the lessee is bound by the covenants of the lease which can neither be altered nor it could be changed. It was stated in the plaint that as soon as the plaintiffs came to know about the conversion and commercialization of the residential house they sent complaint dated 29-8-2005 to the official defendants and a legal notice was also sent to Defendant No. 1. It was further stated in the plaint that the conversion/commercialization and/or construction of multi-storeyed building on the said plot the original low density residential character of the neighbourhood would be completely destroyed and the same would result in violation of the civil statutory and constitutional rights of the plaintiff to life, as enshrined in Articles 9, 14, 23, 24 and 25 of the Constitution. The proposed conversion and construction will also violate the easementary rights and being a source of perpetual nuisance for the plaintiffs. It was further pleaded that no permission has been sought from Defendant No. 5 and public objections have not been invited.
Along with the plaint application (C.M.A. No. 7107 of 2005) under Rule 76 of the Sindh Chief Court Rules (O.S.) read with Order XXXIX, Rules 1 and 2 was also filed wherein it has been prayed that the Defendant No. 1 (Owner) may be restrained from using the said plot for any other purpose except residential and restrain the official defendants from commercializing and/or approving the plans for commercial building.
After service of summonses and notices counter-affidavit has been filed by Defendant No. 6 only. In his counter-affidavit the Defendant No. 6 has taken technical objections with regard to the maintainability of suit and that the plaintiffs have no cause of action and that the plaintiffs have not come to the Court with clean hands. On merits it has been stated that the Defendant No. 6 is the purchaser of the plot from legal heirs of late Haji Abdullah, the plot was leased by President of Pakistan through Ministry of Works. The said plot measuring 1000 sq. yds. is situated on 200 feet wide Shaheed-e-Millat Road, which was vide City Council Resolution No. 383 dated 6-1-2004 was declared as commercial road pursuant to the commercialization policy and the procedure for conversion of plot from residential to commercial was provided in the policy named as Land Use and Master Planning Bye-Laws, 2003. The Defendant No. 6 vide letter, dated 14.10.2004 applied to Defendant No. 4 for permission to convert the plot from residential to commercial. The CDGK, KCHS Union and Modern Cooperative Society approved and forwarded the plan to Master Plan Group Offices, CDGK, for approval and a public notice was issued in Daily Nation and Jasarat on 17-5-2005. No objections were received from the alleged plaintiffs. The Master Plan Group Offices vide certificate/letter dated 29-6-2005 gave its approval to the change of land use and the Defendant No. 6 was asked to pay conversion fee of Rs. 8 million and TPS fee of Rs. 1,00,000 for processing. The next step after the approval of NOC is the approval of the lessor (Defendant No. 5). It was further stated in the counter-affidavit that number of plots in the said area have been commercialized in accordance with law including Plot No. 3, Block 3, Modern Cooperative Housing Society, and Plots Nos. 2 and 3 have also been commercialized. It was further stated in the counter-affidavit that the area is not purely residential as number of buildings exist in the same locality and that the said plot is situated on a declared commercial road and there are no restrict covenants and the matter of restrict covenants is between the lessor and the lessee and the plaintiffs have no right in respect thereof. Clause 7 of the lease-deed clearly provides that the land can be converted by the lessor and the construction to be carried out on the said plot will be governed under the Sindh Building Control Ordinance, 1979, and the Karachi Building and Town Planning Regulations, 2002. It has been submitted that no fundamental rights of the plaintiffs are being violated and the conversion was in accordance with law and the building to be constructed shall be strictly in accordance with the approved plan. Defendant No. 6 has prayed for dismissal of the application.
The plaintiffs have filed rejoinder to the counter-affidavit filed by Defendant No. 6 wherein it has been submitted that bye-laws are beyond the scope of statute and are contrary to the lease grant conditions, the Town Planning Act, 1915, the Regulations, 2002 and in violation of vested rights and natural justice. The detailed procedure given in the CDGK Policy ignores the Town Planning Statute and technical justification that need to be made before the proposed change of land use is put to public in their favour.
The Defendant No. 3 filed written statement and challenged the maintainability of the suit. In their written statement the Defendant No. 3 submitted that KCHS gave its NOC and forwarded the plans to Master Plan Group of Offices, CDGK. The plot in-question is not the only plot commercialized. The plot is situated on 240 feet wide Shaheed-e-Millat Road, which is one of the 17 roads declared open for commercialization and front facing plots on 17 roads can be converted into commercial by adopting prescribed procedure and on payment of prescribed fee. It was pleaded in the written statement that provision of development of infrastructure in the conversion/change of land use policy has been provided. It has been provided that 37.5% revenue generated by the conversion/change of land use will be utilized in the same locality of converted plots with the consent of the concerned U.C. Nazim and 27.5% revenue will be utilized for development works in other remaining agencies and 10% amount will be used in other areas.
Ms. Rizwana Ismail, learned counsel for the plaintiffs, has contended that the commercialization of a residential plot is subject to the easementary rights of neighbours and vested rights acquired by the neighbours by lapse of time cannot be taken away by subsequent legislation. She further submits that no commercialization can be initiated without first obtaining the consent from the lessor. She further submit that the Bye-Laws of 2003 is beyond the powers vested in the City District-Government Karachi and the bye-laws cannot be framed. She further submits that without providing infrastructure which is required for multi-storeyed building NOC for commercialization has been granted which is in violation of the fundamental rights of the plaintiffs. She further submits that the plaintiffs have made out a prima facie case and are entitled to the injunction as prayed.
On the other hand Mr. Abid S. Zuberi, learned counsel for Defendant No. 6, has submitted that the Bye-Laws 2003 has been lawfully framed by the City District Government Karachi and the proceedings for commercialization have been lawfully initiated in terms of the said Bye-laws. He challenges the locus standi of the plaintiffs to file the suit and to object the commercialization. He contended that the said plot is situated on a declared commercial road and the plaintiffs cannot object the commercialization of the plot. He referred clauses 4 and 7 of the lease (Annexure "CA-3" to the counter-affidavit) which provide that the plot will be used for residential purpose only and shall not be used for any other purpose except with the previous consent in writing of the lessor. He further submits that no objection can be taken to interfere with the administrative functions of public functionaries. He further submits that in case of any violation of the lease only lessor can challenge the same and not by the other residents of the area. He further submits that mere apprehension of nuisance due to lack of amenities cannot form the basis for grant of interim relief. He further submits that unless the law is declared ultra vires it has to be given effect and no injunction can be granted.
Mr. Manzoor Ahmed, learned counsel for Defendant No. 3, adopted the arguments of Mr. Abid S. Zuberi and submits that the conversion was allowed strictly in terms of Bye-Laws, 2003 and the plaintiffs have no right to object the conversion.
I have heard the learned counsel for the parties, perused the record and gone through the judgments cited by the learned counsel.
From the perusal of the pleadings and the arguments advanced by the learned counsel it appears that the said plot is situated in residential area and the lease was executed for the purpose of using the said plot as residential.
The learned counsel have argued at length in respect of various aspect of the case and cited number of case-law in support of their contentions. The issues involved in this case are complicated questions of law and facts and cannot be decided without evidence. The plaintiffs apart from other pleas claim violation of their easementary rights, which cannot be decided without evidence. The plaintiffs also claimed that the Change of Land use Bye-Laws, 2003 is in violation of fundamental rights guaranteed in the Constitution.
It is the right of every person to live in a peaceful environment, clear atmosphere and the right to have protection from encroachment on privacy and liberty. Any law insofar as it is inconsistent with the rights conferred by Chapter 1 of the Constitution of Pakistan, 1973, shall to the extent of such inconsistency be void. However, at this stage it will not be appropriate to give any findings in this regard. Presently the issue before me is whether the plaintiffs have made out a prima facie case and the balance of convenience is in their favour. Admittedly, the said plot is situated in a residential area and the plaintiffs are residents of the said area. The plaintiffs have right to object construction of high rise building in their neighbourhood provided they establish that their right of privacy, light and air will be disturbed. Apparently, the proposed commercialization is in violation of clause 7 of the lease which reads as under:
"The said plot, and the buildings, or erection built thereon from time to time shall be used for residential purposes only, and shall not be used for any other purpose except with the previous consent in writing of the lessor."
Admittedly till today the Defendant No. 6 has not obtained any approval from the lessor i.e. Defendant No. 5 and without its approval the Defendant No. 2 vide its letter dated 29-6-2005 (Annexure "CA/13" of the counter-affidavit) has issued NOC for change of land use and demanded a sum of Rs. 81,00,000 from Defendant No. 6, who deposited the same on 27-9-2006. The bye-laws framed by Defendant No. 2 do not provide for any approval from the lessor. Apparently the NOC issued by Defendant No. 2 is in violation of lease conditions and the Defendant No. 6 taking advantage of Bye-Laws, 2003 cannot violate the lease conditions. As far as the contention of Mr. Abid S. Zuberi that only lessor can object the violation of lease conditions, it is suffice to say that the breach of lease conditions has a direct bearing upon the vested rights of the plaintiffs and they have right to object the same and to protect their vested rights. Apart from breach of lease conditions the plaintiffs have also claimed violation of easementary rights and in Para. 6 of the plaint have also provided the details of the same. The violation of easementary rights are independent from the violation of lease. Tentatively, it can be said that construction of high rise commercial building in the vicinity of a recognized residential area without providing necessary infrastructure will not be in the interest and welfare of the plaintiffs. In the case of Abdul Razzak v. Karachi Building Control Authority and others PLD 1994 SC 512 the Honourable Supreme Court has held as under:--
"(21) It may be mentioned that framing of a housing scheme does not mean simpliciter, levelling of land and carving out of plots, but it also involves working out approximate requirements of water, electricity, gas, sewerage lines, streets and roads etc. If a housing scheme is framed on the assumption that it will have residential units 1 +1. But factually the allotees of the plots are allowed to raise multi-storeyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. This is what has happened in Karachi. Without any planning and without expanding the provisions of the above items of public utility services, the people were allowed to erect multi-storeyed buildings having shops and flats. In consequence thereof everyone living in Karachi is suffering. There is scarcity of water, some people even do not get drinking water. The above other items of the public utility services are short of demand. Roads and streets are normally flooded with filthy and stinking water on account of choking and overflowing of sewerage lines. To reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure the adherence to the Regulations. However, it may be clarified that it may not be understood that once a scheme is framed, no alterations can be made. Alterations in a scheme can be made for the good of the people-at-large, but not for the benefit of an individual for favouring him at the cost of other people. It may be stated that under Article 30 of the Order, the K.D.A. has been empowered to execute the following types of schemes--
(a) a general improvement scheme;
(b) a re-building scheme;
(c) a re-housing scheme;
(d) a street scheme;
(e) a deferred street scheme;
(f) a development scheme;
(g) a housing accommodation scheme;
(h) a town expansion scheme;
(i) a zonal plans scheme;
(j) a transport, scheme;
(k) a drainage and sewerage disposal scheme;
(l) a scheme for the redistribution of sites; and
(m) health and welfare scheme;
The above scheme include re-framing of schemes."
In this case also without providing any infrastructure necessary for high rise commercial building NOC was issued by Defendant No. 2. It is necessary to mention here that neither Defendant No,2 has filed any reply to the injunction application nor submitted any document to show that necessary infrastructure has been provided.
In the reported case of Messrs Continental (Pvt.) Limited v. Government of Sindh through Secretary, Housing Town Planning Department, Karachi and another 1996 CLC 417 a learned Division Bench of this Court has held as under:--
"....It would be pertinent to observe that one of the prime duties of every Government is to ensure requisite provision of water, sewerage, a pollution-free environment etc., without which any residential project will not only be incomplete but will also add to the magnitude of the problems of the residents of area or locality. As such it will be in public interest not to permit any residential scheme to assume a size and dimension which is in flagrant disregard of the availability of utilities. One will certainly notice mushroom growth of high-rise buildings in Karachi predominantly motivated by, Commercial considerations which without being equipped with necessary amenities had intensified the every growing miseries of the urban population."
Mr. Abid S. Zuberi has contended that the Bye-laws, 2003 are not in conflict with SLGO, 2001 and unless the law is declared ultra vires it has to be given effect and no injunction can be granted. He relied upon the cases of Federation of Pakistan v. Aitezaz Ahsan PLD 1989 SC 61 and Ejaz Ali Jatoi v. Liaquat Ali Khan Jatoi 1993 SCMR 2354. At this interlocutory stage it is not proper to discuss the vires of the Bye-Laws, 2003. He further submits that no injunction can be granted under Section 56(d) of the Specific Relief Act to interfere with administrative functions. The Court can interfere if the exercise is arbitrary, mala fide or without jurisdiction. The public duties have to be exercised in the interest and welfare of the public. If the public functionaries acted in violation of their duties and acted unjustly the same can be interfered. The officials of Defendant No. 2 without taking into consideration the lease conditions and without approval of the lessor allowed change of land use. While allowing change of land use the objections filed by Shehri on 24-5-2005 received by Nazim Secretariat UC-7 was not considered at all. The public notices inviting public objections were published in Daily Nation and Jasarat. These dailies hardly have any readership in Karachi. Bye-Laws 2003 provides publication at two stages, one under Bye-laws 3-2 at the time of applying for change of use and the other under Bye-laws 3-3 calling public objections. The publications were made only once ignoring the bye-laws.
At this stage if the injunction application is dismissed the process of commercialization will be completed and the plaintiffs will suffer as after commercialization and construction of building the builder may create third party interest and it will be difficult to reverse the position and bring it to the position as on the date of filing of the suit. The corpus of the dispute is to be preserved during pendency of the proceedings so that if any decree is passed the same can be executed.
Considering all the above aspects of the case I am satisfied that plaintiffs have succeeded to make out a prima facie case for grant of injunction as prayed. The balance of convenience is in their favour and they will suffer an irreparable loss and injury in case such injunction is refused.
In view of the above the listed application (C.M.A. No. 7107 of 2005) is allowed and the injunction is granted as prayed.
(R.A.) Application allowed
PLJ 2007 Karachi 369
Present: Mushir Alam, J.
MUHAMMAD MUNIR and 20 others--Plaintiffs
versus
CITY DISTRICT GOVERNMENT, KARACHI through District
Co-ordination Officer and 6 others--Defendants
Suit No. 1221 of 2004, decided on 29.11.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2--Regl. 18-14.2--Specific Relief Act (I of 1877), Ss.42 & 55--Suit for declaration and injunction--Conversion of residential property into commercial and building of multi-storeyed building was purportedly allowed in violation of law, rules and regulations applicable thereto by the City District Government--Plaintiffs, residents of the concerned area, in their application under O.XXXIX, Rr. 1 & 2, C.P.C., had prayed for injunctive relief against construction of multi-storeyed building--Validity--Held: If the building was allowed to be constructed, it would give rise to more complication rather than resolving, most likely third party interest, if created, would seriously affect the existing position and give cause to multiplicity of proceedings--Plaintiffs, were able to make out prima facie case and balance of inconvenience tited in favour of the plaintiffs, it was therefore, in the fitness of things that the controversy be resolved on merits--Ad interim order passed earlier was confirmed by High Court. [Pp. 373, 374 & 375] A, B, C & D
PLD 1973 Note (Kar.) 130; 1979 CLC 252; 2005 CLC 759; 1995 CLC 1453; PLD 1989 SC 61 (64); 1993 SCMR 2350 ref.
Ms. Rizwana Ismail, Advocate for Plaintiffs.
Mr. Manzoor Ahmad, Advocate for Defendants Nos. 1(i) to (v).
Mr. Ghulam Moinuddin, Advocate for Defendant No. 1(iii).
Mr. Faisal Siddiqui, Advocate for Defendant No. 1(v).
Mr. Khaleeq Ahmed, Advocate for Defendant No. 2.
Mr. Anwar Tariq and Rehman Malik, Advocates for Defendant No. 7.
Mr. Ahmed Pirzada, Addl. A.-G. and Raja Sikander Khan Yasir for K.B.C.A.
Date of hearing: 29.11.2006.
Order
Mushir Alam, J.--In instant suit for declaration and injunction, plaintiffs in all 21 in number, all residents of Jinnah Cooperative Housing Society have impugned the action of the Defendants Nos. 1 to 3 whereby, conversion of residential property into commercial was allowed purportedly in violation of law, rules and regulations applicable thereto.
Along with the suit, plaintiff filed C.M.A. No. 7512 of 2004 (under Order XXXIX, Rules 1 and 2, C.P.C.) and prayed for the injunctive relief against construction of high rise. Defendant No. 7 filed C.M.A. No. 39, under Rule 4, C.P.C. seeking vacation of restraining order and C.M.A. No. 8038 of 2005 under Order VII, Rule 11, C.P.C. seeking rejection of plaint. Through instant Order I intend to decide all the three applications.
Brief facts leading to suit and listed applications appears to be that all the plaintiffs are residents of Jinnah Cooperative Housing Society. Admittedly, the area wherein the plaintiffs reside including the subject plot is residential. The lease contains restrictive covenant running with the land. It appears that the Defendant No. 7 who succeeded Defendants Nos. 4 to 6, the previous owner of the plot in-question, had applied and secured all the approval for the conversion and construction of multistorey building.
Plaintiffs on acquiring knowledge that, the Defendant No. 7 has applied for the conversion of the subject residential property into commercial and had already obtained NOC from the Society, lodged their joint protest dated 24-5-2004, with the Defendants Nos. 1, 3 to 6, Nazim of UC No. 7, Jamshed Town, acting on behalf of the Defendant No. 1 Nazim called all the plaintiffs, who appeared on the given date and objected to the proposed conversion, excepting the Defendant No. 7 is the beneficiary who had applied for the conversion. It is the case of the plaintiffs that the Defendant No. 1 without deciding the objections and assigning any reasons allowed the conversion of a residential property into commercial. Only beneficiary to the conversion is the Defendant
No. 7.
Defendants Nos. 1, 2, controvert the claim of the plaintiff in written statement. It was pleaded that due procedure was followed. Conversion was allowed as per Commercialization Policy of CDGK approved vide City Council Resolution No. 383, dated 6-1-2004. It was further pleaded that the subject property is situated on Shaheed-e-Millat Road, which was already commercialized through Notification dated 12.2.1998 (correct date of Notification is stated to be 16-2-1998 at page 277 of the file) Defendant No. 7 has filed counter-affidavit to the injunction application. On 10-1-2005 Deputy Controller of Buildings-1, filed a statement placing on record Architectural approval of Basement + Ground + Loft + 8 + Part 9th floor.
Ms. Rizwana, learned counsel for the plaintiff contended that, the entire area where the plaintiff resides and the subject property is situated is declared residential area. It was urged that all the leases of the residential plots including subject plot contain restrictive covenant providing for ground plus one floor residential accommodation, which condition is binding on the entire set of lessees and so also, on the grantor of lease. It was urged that change in land use could not be allowed without following the requirement of Town Planning Act of 1915 and Building and Town Planning Regulations, 1979 succeeded by KB&TP Regulations, 2002 as amended. In support of her contentions, reliance was placed on the case of Nooruddin v. Gul Bano PLD 1973 Note (Kar.) 130 at page 199. In cited case conditions of Sanads read with Collector Circular restricting height was enforced, this case was followed in the case of Nooruddin v. Amanullah D. Dharani 1979 CLC 252.
Learned counsel in her support further relied upon Schedule
3-B read with Appendix "D", Serial No. 27 of Regulations, 2002. It was further urged that Regulations 18-4 and Regulation 18-5 of the KB&TP Regulation, 2002 as amended were violated.
Ms. Rizwana vehemently argued, the defendants are relying on the judgment passed in C.P. 936 of 2004 now reported as S.M. Aslam v. KBCA 2005 CLC 759, which, judgment was procured by misrepresentation by the parties therein. It was stated that the judgment is based on purported notification dated 20-7-1998, which was never published. To buttress her argument she has relied on letter, dated 6th April, 2005 addressed to Mr. Abbas Ali, Additional Advocate-General by the Section Officer Services General Administration and Coordination Department, Government of Sindh, confirming that neither of the two notifications were received for publication in the official Gazette. Mr. Abbas Ali, Additional Advocate-General had placed copy of said letter on the record. According to Ms. Rizwana, judgment in C.P. 936 of 2004 is per incurium as it is based on invalid notification, therefore, not binding and should be ignored in support of her contention reliance was placed on the case of Abdul Razzak v. The Collector of Customs 1995 CLC 1453.
Ms. Rizwana further contended that the JCHC is a notified scheme, it cannot be changed save in accordance with Section 46(1) of the Town Planning Act of 1915. It was urged that the Commercialization Policy is beyond the scope of SLGO, 2001 and in conflict with Town Planning Act, 1915 and so also KB&TP Regulation, 2002 as amended. According to her Government of Sindh in terms of Section 192, SLGO, 2001 has power to issue rules and bylaws, but in the instant case commercialization notification is issued by the CDGK, that too is not gazetted.
It was, therefore, contended that the conversion being violative of land grant condition, beside violative of applicable law and KB&TP Regulations. No commercial or high rise building could be permitted. Plaintiffs have prayed for confirmation of ad interim orders. Ms. Rizwana has relied upon plethora of judicial presents in support of her pleas.
Mr. Faisal Siddiqui learned counsel for the CDGK, denied the allegation that no hearing was given to the petitioners, it was contended that notices inviting public objections were published in newspapers on 13-6-2004 and 14-6-2004 available at pages 165 and 167 of the file. Plaintiffs were heard and reasoned order, dated 22-9-2005 was passed available at page 115 of the file. It was contended that all the concern of the plaintiffs as regard burden or strain on existing amenity and utility services were duly taken care of. It was argued that, it is first time civic agency has acted responsibly.
Mr. Faisal, urged that the "Change of Land Use and Master Planning Bye-Laws 2003"; adopted vide Resolution 383 dated 6-1-2004, were framed under Section 192(2) of the SLGO, 2001 and not under Sindh Building Control Authority Act, 1979 or under Sindh Town Planning Act, 1915.
Mr. Malik, learned counsel for the Defendant No. 7 urged that the conversion has been allowed by the competent authority, complexion of the entire area has changed. It was contended that there is no, conflict between KB&TP Regulations, 2002 and Change of Land use and Master Planning Bye-Laws, 2003. It was urged that law should be allowed to operate until it is declared ultra vires. In support of his contention, reliance is placed on Atezaz Ahsan's case reported in PLD 1989 SC 61(64) and Jatoi's case reported in 1993 SCMR 2350. It was urged that planning and development of the city is the function and domain of the City District Government under Section 14 of the SLGO, 2002 read with Item No. (vii), of the 1st Schedule thereto and not that of the Provincial Government.
I have heard the arguments and perused the record.
Much emphasis was laid on the fact that the property is situated on Shaheed-e-Millat Road since declared commercialized per notifications and that the road has been commercialized.
The plaintiffs made serious dispute and challenged to the validity of notification. To resolve it, the Court vide order, dated 7-4-2005 and 13-4-2005 directed the Additional Advocate-General Sindh and Mr. Manzoor Ahmed, the Principal Law Officer of CDGK to place the correct position as regards subject notifications. Mr. Abbad Ali placed on record letter dated 16-4-2005 addressed to him by the Section Officer, Services, General Administration and Coordination Department, Government of Sindh, which reads as follows:--
Subject: Suit No. 1221 of 2004, Muhammad Munir v. Province of Sindh.
I am directed to refer to your letter No. AG-1183 of 2005 dated 11-4-2005 on the subject noted and to state that the Notification No. PA/DS(B)/SGA&CD/4496/98 and PS/DS(B)/SGA&CD/ 4808/98, dated 20-7-1998 were not available in the record of this department. However, copy(ies) of the same have been obtained from your office.
(2) Both the notifications are not endorsed for publication to Superintendent, Sindh, Government Printing Press.
(Sd.)
Ali Ahmed Baloch
Section Officer (General)
Mr. Manzoor Ahmed was not able to refute such position he however, stated that the same were sent for publication. Therefore, prima facie, the defendants cannot rely on the Notifications to claim commercialization. It may however, be observed in the case of S.M. Aslam v. KBCA 2005 CLC 759, the issue as to publication, implication, validity or otherwise of the subject notifications was neither raised nor considered and case was decided on the assumption that the Notifications were validity issued. The judgment in the referred case is sub judice before the apex Court, it would not be apt to make any observation.
Since the question of validity of subject notification has been raised in instant matter, it was examined. In terms of Article 40(3) of the then K.D.A. Order, 5 of 1957, for a Notification to be effective and lawful, application in the official Gazette is a condition precedent, which admittedly was not done. I am extremely doubtful as to the effect and validity of notifications, without being gazetted as per requirement of Article 40(3) of K.D.A. Order. For reference one may see K.M.C. v. Messrs S.N.H. Industries (Pvt.) Ltd. 1997 SCMR 1228. The issue needs serious examination as large number of cases would be affected. I leave it open to be decided at trial.
As regards contention of learned counsel for the petitioner that the lease contain restrictive covenant, though not disputed, but the fact that terms and conditions of lease has not been placed on record. Even the contesting defendants have not filed the written statement. What is the effect of the restrictive covenant, it implication on the over all scheme and how far it bind and restrict the respective residents and owner of the property in any particular scheme cannot be examined and thrashed out at this interlocutory stage, such question requires detail examination both on facts and law.
There seems to be no dispute that the subject plot was originally a residential plot over which ground plus one floor was permissible. Admittedly objections were invited and even the plaintiffs were given audience, by the Nazim UC-7, Jamsheed Town. Grievance of the petitioners is that no justification or decision on the objections raised by the plaintiff were made and simply in a mechanical manner permission for the high rise was given behind the back of the plaintiff. My attention was drawn to the NOC dated 22-9-2004, whereby the CDGK has granted conversion of land use on the application of the owner of the plot such NOC does not deal with the objections of the plaintiff, though it was argued that objection of the plaintiff were considered and taken due care of. Serious questions as to applicability of Town Planning Act, 1915 and Karachi Building and Town Planning Regulations, 2002, nothing has been placed on record to show that full technical justification of the proposed land use, in the light of planning of the area, commercial facilities in the vicinity, traffic flow and other relevant factors as to availability of enhanced utilities and sustainable infrastructure were undertaken or not as required under Regulation No. 18-4.2 of KB&TP Regulations, 2002.
Serious disputed question of facts and law are involved in instant matter. Under given facts and circumstances, if the building is allowed to be constructed, it would give rise to more complication rather than resolving, most likely third party interest would be seriously affected and give cause to multiplicity of proceedings. Plaintiffs were able to make out prima facie case and balance of inconvenience tilt in favour of the plaintiffs. In my humble opinion it is in the fitness of the case that the controversy be resolved on merits. Accordingly ad interim orders passed earlier are confirmed. C.M.A. No. 39 under Rule 4, C.P.C. seeking vacation of restraining order and C.M.A. No. 8038 of 2005 under Order VII, Rule 11, C.P.C. seeking rejection of plaint filed by the Defendant No. 7 are consequently dismissed. Let the Defendant No. 7 and other defendants also file written statement and the matter be set down for striking out issues. If the parties concede controversy could be decided on the basis of documents, after admission and denial of documents is carried out.
(R.A.) Order accordingly
LJ 2007 Karachi 375
Present: Mrs. Qaiser Iqbal, J.
Mst. SHEHAR BANO through her husband--Plaintiff
versus
Mst. BADRUNNISA and 5 others--Defendants
Suit No. 969 of 2005, decided on 7.5.2007.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 22, 12 & 54--Suit for specific performance of the contract--Damages and injunction--Execution of sale agreement--Receipts of earnest money were admitted--Defendant had shown herself to be absolute owner, whereas property had devolved upon her and her five sons, another sale-deed thus was required to be executed by the parties which was done--Defendants had failed to deliver photocopies of the title documents enabling the plaintiff to proceed with the registration of conveyance deed which in fact was the liability of defendants--Onus to prove--Plaintiff had breached the terms of the agreements did not stand discharged from the defendant's evidence--Agreements having merged, were sought by plaintiff to be acted upon--Parties thus were under obligation to fulfil its covenants--Defendants having not discharged their obligations, sale-deed could not be finalized--Defendants thereafter, had breached the terms of the agreements the effect of which was that plaintiff's suit was maintainable. [Pp. 380 & 381] A, B, C & D
Specific Relief Act, 1877 (IV of 1877)--
----Ss. 22 & 12--Specific performance of agreement to sell--Relief of specific performance of a contract--Discretionary in nature and is to be exercised judiciously, equitably and on well recognized judicial considerations as required by S. 22 of Specific Relief Act--Where facts and circumstances of the case that it was within the knowledge of defendant, that she was not the only surviving legal heir of her deceased husband, there was no justification on her part to execute sale agreement claiming to be sole owner of the property--However through a subsequent agreement the defendants had agreed to abide by the terms of the contract--Careful scrutiny of the evidence of the defendants in juxtaposition to the evidence of the plaintiff revealed that plea of defendants of breach of agreement by the plaintiff was not established and evidence equitably made out the transaction of sale. [P. 381] E
Specific Relief Act, 1877 (I of 1877)--
----Ss. 22 & 12--Suit for specific performance of agreement to sell--Exercise of jurisdiction--Nature and scope--Court declining to exercise discretion to grant specific performance of contract--Principles--Section 22 of the Specific Relief Act, had given illustrations which are not exhaustive to demonstrate in which cases the Court may decline the exercise of power to grant of specific performance of a contract where the circumstances, under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiff's part and when the performance of the contract would involve some hardship to the defendant which he did not foresee when his non-performance of the contract would involve in such hardship on the plaintiffBreach of the contract is attributed to the defendants, relief of specific' performance being an equitable relief can only be refused if the equities in the case are against the plaintiff. [Pp. 381 & 382] F
Specific Relief Act, 1877 (I of 1877)--
----Ss. 22 & 12--Suit for specific performance of agreement to sell--Exercise of jurisdiction--Nature and scope--Court while refusing to grant a decree for specific performance to a plaintiff must find something in the contract of the plaintiff which entitles him to grant of equitable relief for specific performance of contract, which cannot be refused merely because it is lawful for the Court to refuse it--Court may properly exercise discretion to decree specific performance when the plaintiff has done substantial acts or suffered losses in consequences of a contract capable of a specific performance.
[P. 382] G
1999 SCMR 2189 ref.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 22 & 12--Suit for agreement to sell--Time not essence of the contract--Plaintiff was not guilty of misconduct as the defendant had categorically stated on oath that she was prepared to sell the property on the prevalent market rate to the plaintiff--Intention of the parties could be gathered from the terms of the contract and the facts of the case--Mere stipulation of a specific time in the contract for its performance would not necessarily mean that time was of the essence of the contract--Contentions of the defendant that the contract stood cancelled for non-performance by the plaintiff of his part of contract within stipulated period was not tenable in circumstances. [P. 382] H
PLD 1962 SC 1 ref.
(v) Contract Act, 1872 (IX of 1872)--
----Ss. 22 & 12--Suit for specific performance of agreement to sell--Time essence of the contract--Requirements--Intention to make time essence of the contract must be expressed in unmistakable language or it may be inferred from what passed between the parties but not after the contract is made. [P. 382] I
(vi) Specific Relief Act, 1877 (I of 1877)--
----Ss. 22 & 12--Suit for agreement to sell and damages--Plaintiff who was a bona fide purchaser for valuable consideration, had failed to adduce cogent evidence to substantiate his claim for damages or any penalty, he was therefore, entitled to specific performance of the agreement only--Suit of plaintiff was decreed. [P. 382] J & K
1999 SCMR 2189 and PLD 1962 SC 1 ref.
Mr. Abdul Karim Siddiqui, Advocate for Plaintiff.
Mr. Amjad Ali, Advocate for Defendant.
Date of hearing: 7.5.2007.
Order
Mrs. Qaiser Iqbal, J.--The plaintiff has filed suit for specific performance, of the contract, damages and permanent injunction against the defendants.
Succinctly, the facts of the case are that Defendant No. 1, negotiated the sale of House No. B-179/2004, K.D.A. Scheme 19, Khudadad Colony, Karachi, hereinafter referred as to "disputed property" being exclusive owner entered into a sale agreement dated 28.2.2005 Exh.P.2 in consideration of Rs. 33,50,000, a sum of Rs. 3,50,000 was advanced admittedly to the Defendant No. 1 at the time of the execution of the sale-deed and balance sale consideration was required to be paid on execution and registration of conveyance deed, Defendant No. 1, has assured the plaintiff to deliver the requisite documents of title, certificates and clearance of all charges and taxes to enable the plaintiff to prepare sale-deed, it was revealed that the disputed property stood in the name of Abdul Waheed, husband of the Defendant No. 1, upon his death property has devolved upon Defendants Nos. 1 to 6, the plaintiff was obliged to pay Rs. 1,00,000 for the purpose of procuring the mutation on 16-4-2005 and another sum of Rs. 1,00,000 was paid on 3-6-2005, Exh.P.8 another agreement of sale was executed on 15-6-2005, whereas balance amount was deposited in Court after filing of the suit. It is alleged defendants had contravened the conditions of the agreement did not supply requisite document for preparation of conveyance deed, resulted into exchange of correspondence ultimately suit was filed for specific performance, damages and injunction."
In the joint written statement, defendants admitted execution of sale-deeds, having received a sum of Rs. 5,50,000 towards advance out of total consideration of Rs. 33,50,000. It is averred that the Defendant No. 1 had served a legal notice upon the plaintiff about the cancellation of the sale agreement and forfeiture of the earnest money, replied by the plaintiff, the defendants had denied that the disputed property stood in the name of their predecessor after earnest money was advanced to the Defendant No. 1, another agreement dated 15-6-2005, was executed on the request of the plaintiff that he shall pay balance sale consideration on 5-7-2005, in terms of covenant No. (10) of the agreement, not complied with, the mala fide intentions plaintiff has set up a false story of non-performance of the contract stood cancelled after the expiry of the stipulated period, on the basis of the pleadings, following issues were framed:--
(i) Whether the plaintiff has breached the terms of the agreement dated 28-2-2005 and 15-6-2005? If so, its effect?
(ii) What amount the plaintiff has paid to the defendants?
(iii) Whether the plaintiff is entitled to the specific performance of the agreements?
(iv) What should the decree be?
I have heard Messrs Abdul Karim Siddiqui and Amjad Ali, learned counsel appearing for the parties, my findings on the above issues are as, follows:--
Issue No. 1. The plaintiff has relied upon contract dated 28-2-2005, Exh.P.2 executed with Defendant No. 1 in respect of disputed property in consideration of Rs. 33,50,000 out of which Rs. 3,50,000 were paid, required to be concluded on 3-6-2005, consequent thereupon, plaintiff served a legal notice upon the Defendant No. 1, Exh.P.6 disclosing the Defendant No. 1, offered to sell the property through misrepresenting herself as sole and absolute owner of the property stood in name of her husband, Abdul Waheed, upon his death, it has devolved upon the defendants as his surviving legal heirs, co-owners of the property. The Defendant No. 1, was not competent to execute the sale-deed. Second sale-deed dated 15-6-2005, Exh.P.8 was executed by the defendants, contract was required to be concluded on 5-7-2005, the Defendant No. 1 served a legal notice dated 12-7-2005 Exh.P.9.
Learned counsel for the plaintiff has contended that Exh.P.2 was executed on 28-2-2005, whereby the vendee was required to pay balance sale consideration on or before 3-6-2005, vendor undertook to deliver complete and vacant possession free from all claims, liens, charges and encumbrances. Balance sale consideration was required to be paid on the execution of conveyance deed, upon its registration before the Sub-Registrar. Later, it was revealed that property was owned by late Abdul Waheed, husband of Defendant No. 1, devolved upon his legal heirs, therefore, for the purpose of procuring the mutation of property, the plaintiff had paid substantial amount on 16-4-2005, through Exh.P.4, another sum of Rs. 1,00,000 was paid for the purpose of preparation of sale-deed, consequently agreement dated 15-6-2005, Exh.P.8 was executed by the defendant, contain clauses (8) and (10), which are as follows:--
"(8) That the vendors further agree and undertake to complete all title documents upto date of the said property at their own risk and cost within agreed time period for final payment.
(9) ........................................
(10) that in case the vendee fails to pay the balance amount to the vendors within stipulated time period the advance money shall be forfeited and in case of denial by the terms and conditions of this agreement or refuse/cancel the agreement the vendors shall pay the double amount of advance to the vendee."
It is further contended that the time was not the essence of the contract, Exh.P.8 required to be completed on 5-7-2005, defendants with the mala fide intention served a legal notice dated 12-7-2005 upon the plaintiff Exh.P.9 to malign and forfeit earnest money on account of non-payment of balance sale consideration within the stipulated period viz. 5-7-2005, which was promptly replied by the plaintiff's counsel Exh.P.10, dated 15-7-2005, whereby the defendants were called upon to supply the title documents for execution of the sale-deed and payment of balance sale consideration, the defendant's Advocate replied Exh.P.13, alleging that balance sale consideration was not ready with the plaintiff.
Mr. Amjad Ali, learned counsel for the defendant had contended that agreements dated 28-2-2005 and 15-6-2005, were executed between the parties, the plaintiff had failed to fulfil the requirements of Clause No. 11 of the agreement dated 15-6-2005, therefore, contract was cancelled and earnest money was forfeited.
I have given anxious consideration to arguments advanced at bar.
The defendants did not deny execution of sale agreements Exhs.P.2 and P.8, on the contrary, Mst. Badrunnissa, in the cross-examination has admitted the sale consideration amount, payment of earnest money at the time of execution of sale agreements and subsequent advances. At the time of execution of Exh.P.2 she had shown herself to be the sole and absolute owner, whereas property had devolved upon her and five sons, another sale-deed Exh.P.8 was required to be executed by the parties, she had delivered all the title documents to Tariq Akbar, though she has furnished explanation about her competency to execute first sale agreement on behalf of her sons being legally authorized. She has further admitted in cross-examination to have received Rs. 3.50,000, Rs. 1,00.000 and Rs. 1,00,000 on different dates total Rs. 5,50,000 from the plaintiff.
It transpires that the sale agreement Exh.P.2 could not be acted upon on account of concealment of the factum of co-owners/legal heirs of Abdul Waheed. Moment this fact came to the knowledge of the plaintiff, Exh.P8 was executed defendants had fraudulently procured money from the plaintiff for getting their names mutated in the Government record, mutation was effected on 4-12-2003, much prior to the execution of sale agreements, contract explicitly reveals time was not the essence as contended by the learned counsel for the defendant, by way of execution on sale agreements and correspondence exchanged, the defendants themselves had extended time, which cannot be limited to 5-7-2005, defendants did not fulfil their obligation to deliver photo copies of the title documents enabling the plaintiff to proceed with the registration of conveyance deed, which in fact was the liability of the defendants.
Onus to prove that the plaintiff had breached the terms of the agreements does not stand discharged, from the defendant's evidence, Exh.P.2 had merged in P.8 on its execution, sought to be acted upon parties were under obligation to fulfil its covenants, defendants did not discharge their obligation, therefore, sale-deed could not be finalized. In this view of the matter, defendants had breached the terms of the agreements. Issue No. 1 is answered accordingly.
Issue No. 2. It is an admitted position on the part of the defendant that the plaintiff had paid Rs. 5,50,000 on various dates apparent from Exhs.P.3, P.4, P.5 to the defendants towards part sale consideration, in view of specific admission by the Defendant No. 1, in her evidence, Issue? No. 2 is answered in affirmative.
Issue No. 3. It is contended by Mr. Amjad Ali, learned counsel for the defendant that after cancellation of the sale agreement executed between the parties forfeiture of earnest money defendants had entered into a sale agreement with one Muhammad Ishaq son of Abdul Hameed, transaction was cancelled by Muhammad Ishaq. Defendant No. 1 has admitted in her cross-examination that she was willing to sell property to the plaintiff at the prevalent market rate which suggests that the story of sale agreement with Muhammad Ishaq has been manipulated with ulterior motives.
It is well-settled law that relief of specific performance of a contract is discretionary in nature, required to be exercised judiciously, equitably and on well recognized judicial considerations as provided under Section 22 of the Specific Relief Act. In the present case, the facts and circumstances lend support to the plaintiff's case that ii was within the knowledge of Defendant No. 1, that she was not the only surviving legal heir of her deceased husband, there were no justifications on her part to execute sale agreement being sole owner of the property. However, through subsequent agreement P. 8 and defendants had agreed to abide terms of contract. On careful scrutiny of the evidence of the defendant juxtaposition to the evidence of the plaintiff, I am not prepared to accept the plea of defendant about the breach of agreement by the plaintiff. The evidence on record equitably makes out the transaction of sale, it may further be noticed that Section 22 of the Specific Relief Act and given illustrations, are not exhaustive to demonstrate in which cases the Court may decline the exercise of grant of specific performance of a contract (i) where the circumstances, under which the contract is made are such to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiff's part and (ii) when the performance of the contract would involve some hardship to the defendant which he did not foresee when his non-performance of the contract would involve in such hardship on the plaintiff. In the present case, breach of the contract is attributed to the defendants, in my view, relief of specific performance being an equitable relief can only be refused if the equities in the case are against the plaintiff. In this context reliance is placed on the case of Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 it was held by their Lordships of the Supreme Court that the Court while refusing to grant a decree for specific performance to a plaintiff must find something in the contract of the plaintiff which entitles him to the grant of equitable relief for specific performance of contract, which cannot be refused merely because it is lawful for the Court to refuse it, Court may properly exercise discretion to decree specific performance when the plaintiff has done substantial acts or suffered losses in consequences of a contract capable of a specific performance". The circumstances of the present case show that the plaintiff was not guilty of misconduct as the Defendant No. 1 has categorically stated on oath that she was prepared to sell the property on the prevalent market rate to the plaintiff. The intention of the parties can be gathered from the terms of the contract, the facts and circumstances of the case, mere stipulation of a specific time in the contract for its performance does not necessarily mean that time was the essence of the contract, the contentions of the defendant's counsel that the contract stood cancelled for non-performance by the plaintiff of his part of contract within the stipulated period is not tenable. It has been ruled by Honourable Supreme Court in case of Abdul Hamid v. Abbas Bhai alias Abdul Hussain Sodawaterwala PLD 1962 SC page 1 that ("an intention to make time the essence of the contract must be expressed, in unmistakable, language, it may be inferred from what passed between the parties, before but not after the contract is made"). The plaintiff is a bona fide purchaser for valuable consideration. So far as penal, and damages for breach of contract are claimed against the defendants, plaintiff did not adduce cogent evidence to substantiate the claim, hence disallowed.
In view of the above discussion, plaintiff is entitled to the relief claimed, Issue No. 3 is answered accordingly.
Issue No. 4. The upshot of above discussion is that plaintiff's suit is decreed against the defendant for specific performance of the contract Exh.P.8 dated 15-6-2005 parties are left to bear their own cost.
(R.A.) Suit decreed
PLJ 2007 Karachi 383
Present: Mushir Alam, J.
IMDAD--Applicant
versus
MAQSOOD AHMED and 5 others--Respondents
C.R. Appln. No. 1 of 2005, decided on 23.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 6(1)(9)--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance of agreement to sell--Ex-parte proceeding--Scope and extent--High Court was also not convinced that signature in the NIC, sale agreement and power of Attorney were of one and the same person--There being no jurisdictional error in the judgments and decrees recorded by Courts below, the revision was dismissed.
[P. 386] D
Specific Relief Act, 1877 (I of 1877)--
----S. 12--O. IX, R. 6(1)(a)--Suit for specific performance of agreement to sell--Powers of Court to proceed ex parte--Scope and extent--Word `may' occurring in O.IX, R.6(l)(a), C.P.C.--Signature of purported attorney--Connotation--Indeed Order IX, Rule 6(l)(a). C.P.C. empowers a Court to proceed ex-parte and pass the judgment and decree even without recording evidence--Use of word "may" indeed confers discretion on Court to pass decree without recording evidence--Such power is to be exercised badly and without application of mind--Such discretion must be exercised judiciously and fairly and not arbitrarily or in fanciful manner--Court of law is not expected to shut its eyes and mechanically pass the judgment and decree invariably in favour of plaintiff--Such power also envelopes power to pass judgment and decree to dismiss the suit as well--Plaintiff has to stand on his own legs to satisfy the conscience of the Court as to existence of any right, sufficiency or otherwise of evidence, bar of limitation--In ex-parte proceedings Courts are expected to be more conscious and not to mechanically pass the judgments and decrees in favour of plaintiffs--Plaintiff claimed agreement of sale on the strength of purported power of attorney to be executed in favour of defendant which power of attorney was not produced before trial Court--It was produced in Appellate Court--Appellate Court took judicial notice of the fact that signature of the purported attorney on the power of attorney, purported sale agreement and so also on the purported NIC did not tally--Therefore, the authority of defendant to enter into transaction on behalf of the other defendants was not established--Consequently, the appeal did not find favour with the Appellate Court. [Pp. 385 & 386] A, B & C
1987 MLD 868; PLD 1994 SC 501; 1999 SCMR 900 and PLD 1978 SC 89 ref.
1999 SCMR 900 and PLD 1978 SC 89 ref.
Mr. Kamaluddin Ahmed, Advocate for Applicant.
Mr. Masood A. Noorani, Addl. A.-G. Sindh.
Date of hearing: 23.4.2007
Order
The applicant has impugned concurrent judgment and decree of Courts below. It appears that applicant Imdad filed the suit for Specific Performance of contract in respect of land measuring 92-39 acres situated in Deh 107 Nusrat Taluka and District Nawabshah, total value of the land is shown to be Rs. 5,68,000 under the agreement of sale dated, 22-3-2000. It was claimed that Defendant No. 1 had received Rs. 4,50,000 and balance consideration of Rs. 1,18,000 was agreed to be paid after Fouti Khata Bdal from the name of father of Defendants Nos. 2 to 4 in the record of rights. It is stated that on stipulated date i.e. 15-6-2000 when the plaintiff contacted the Defendants Nos. 1, 15 days time was requested but he failed to turn up therefore, the suit was filed.
It seems that the defendants were not served in regular mode and the learned trial Court effected the service through publication. The plaintiff filed the affidavit in evidence and so also one of the witnesses Anwar Ali reiterating the facts as narrated above. Learned trial Court took into consideration the fact that the plaintiff claims to have entered into sale agreement in respect of the properties succeeded by Defendants Nos. 2, 3 and 4 through his attorney Maqsood Ahmed. The Court took note of the fact that neither the power of attorney was produced along with plaint nor in the evidence. It was not known whether the power of attorney is registered or otherwise. Court also considered that neither the Notary Public and Oath Commissioner were examined nor it was established to the satisfaction of the learned trial Court that whether Defendant No. 1 had any authority on behalf of the Defendants Nos. 2 to 4. Court on consideration of the fact that merely because it being ex parte, will not strengthen the case of the plaintiff who has to stand on his own legs. Consequently, the suit was dismissed vide judgment and decree dated 31-10-2003. Appeal was preferred. Respondent was again served through substitute mode. The learned trial Court concluded that appellant has failed to discharge his burden on account of execution of sale agreement as required by law. The appellant has not led required evidence with regard that competent person had entered into sale agreement with him. Neither he has examined the marginal witness nor produced any documentary evidence to show that he has paid sale consideration to the owner of the suit land. It appears that power of attorney was produced before the Appellate Court. The Court examined the signature of the purported attorney Maqsood Ahmed, Respondent No. 1 herein, on the NIC and agreement of sale, and his signature on the purported special power of attorney. The Court took judicial notice and observed the dissimilarity in the signature of Maqsood Ahmed on NIC, purported sale agreement and on purported power of attorney. Consequently, the appeal was also dismissed vide impugned judgment, dated 3-11-2004.
Mr. Kamaluddin, learned counsel for the applicant contended that it is ex parte proceeding. Statement of applicant was contained on oath and so also his evidence had gone unrebutted. It was urged that there was nothing in rebuttal therefore, suit ought to have been decreed, which power is conferred on Court in terms of clause (a) to sub-rule (1) of Rule 6 of Order IX, C.P.C. He has placed reliance on the case of Korangi Feed Limited v. Muhammad Yousaf Omer 1987 MLD 868 Karachi in cited case it appears that the learned trial Court dismissed the suit on the ground that promissory note has not been tendered in respect of the agreement of sale. The dismissal was set aside and the Court concluded that Courts could have passed an ex parte decree. Under Order IX, Rule 6(a), C.P.C. and the photo copy should have been admitted in evidence. Mr. Kamal has further placed reliance on the case of Jameel Ahmed v. Saifuddin PLD 1994 SC 501 to support his contention that decree could have been passed on the basis of averments made in the plaint or in affidavit in proof filed by the plaintiff in ex parte proof.
I have heard the learned counsel and perused the record.
Indeed Order IX Rule 6(l)(a), C.P.C. empowers the Court to proceed ex-parte and pass the judgment and decree even without recording evidence. Use of word "may" cited in sub-rule 6(l)(a) indeed confers discretion in Court to pass decree without recording evidence. It would be anomalous to say that such power is to be exercised badly and without application of mind. It is now well-settled that discretion must be exercised judiciously and fairly and not arbitrarily or in fanciful manner. (One may refer to 1999 SCMR 900 and PLD 1978 SC 89). The Court of law is not expected to shut its eyes and mechanically pass the judgment and decree invariably in favour of plaintiff. Such power also envelopes power to pass judgment and decree to dismiss the suit as well. The Plaintiff has to stand on his own legs to satisfy the conscience of the Court as to existence of any right, sufficiency or otherwise of evidence, bar of limitation or otherwise. In ex parte proceedings Courts are expected to be more conscious and not to mechanically pass the judgments and decrees in favour of plaintiffs.
Admittedly, the applicant/Plaintiff claims agreement of sale on the strength of purported power of attorney said to be executed to Respondents Nos. 2 to 4 in favour of Respondent No. 1, which power of attorney was not produced before the learned trial Court. It was produced in the Appellate Court, the Appellate Court took judicial notice of the fact that signature of the purported attorney on the power of attorney, purported sale agreement and so also on the purported NIC do not tally. Therefore, the authority of the defendant/Respondent No. 1 to enter into transaction on behalf of the Respondents Nos. 2 to 4 was not established. Consequently, the appeal did not find favour with the learned Appellate Court.
In order to satisfy myself, as suggested by Mr. Kamaluddin, learned counsel for the appellant, I have also examined the signature of the purported attorney Maqsood Ahmed, on the NIC, agreement to sell and power of attorney. It is noted that signature of purported attorney on NIC is clearly read as "Maqsood Alam", which name is also mentioned in sale agreement and so also power of attorney however, signature reads as "Maqsood Ahmed". Even his name in entire pleading is described as "Maqsood Ahmed". In sale agreement "d" in Ahmed on margin of each page in the form of loops upward and side way and falling down in a hook form. In purported power of attorney "d" in Ahmed ends up more in the form of Omega. Both the legs in "A" are distinctly separate whereas in sale agreement it is joined in Oval form. I am thus, not convinced that signature in the NIC, Sale agreement and power of attorney are of one and the same person.
I see no jurisdictional error in the Judgments and Decrees recorded by Courts below, therefore, the revision is dismissed.
(R.A.) Petition dismissed
PLJ 2007 Karachi 386 (DB)
Present: Mushir Alam and Muhammad Afzal Soomro, JJ.
TANVEER AFZAL KHAN--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Works, Government of Pakistan, Islamabad and 6 others--Respondents
Constl. P. Nos. D-1662 and D-1480 of 1999, decided on 27.2.2007.
Constitution of Pakistan (1973)--
----Art. 199--Cooperative Societies Act, (VII of 1925), S. 54-A--Constitutional petition--Cancellation of allotment--Allotment of plot in-question in favour of petitioners having been cancelled by authorities--Assailed--Condition precedent or basic eligibility for allotment of plot in-question was to be an employee of Federal Government and member of Pakistan Employees Co-operative Housing Society--One of the petitioners was neither a Federal Government employee nor he was member of the Society--Other petitioners who was also neither Government employee nor member of the Society, claimed to have purchased plot in-question from the allottee of the plot--Allotment of plot in favour of original allottee/vendor having been cancelled under the recommendation of Martial Law Enquiry, no rights in respect of the plot were conveyed to the petitioners--Both petitioners being not entitled to allotment of respective plots, their allotments were rightly cancelled by authorities--Parties, in circumstances could avail remedy in civil Court as could be permissible under the law--Society was directed, not to create any third party interest over the plot in-dispute for three months--None of the party was interested to enforce its right over the subject plot and no restraining orders were received by the Society from the Court--Society would be at liberty to dispose of the plot in dispute strictly in accordance with the list of eligible members on merit and seniority. [Pp. 390, 393 & 394] A, B, C & D
PLD 1969 Kar. 474 rel.
Mr. H.A. Rehmani, Advocate for Petitioner (in Constitutional Petition No. D-1662 of 1999).
Mr. Saifuddin, Advocate for Respondent No. 1 (in Constitutional Petition No. D-1662 of 1999).
Syed Mehmood Alam Rizvi, Standing Counsel for Respondent No. 2 (in Constitutional Petition No. D-1662 of 1999).
Mr. Ali Muhammad Memon, Advocate for Respondent No. 3 (in Constitutional Petition No. D-1662 of 1999).
Mr. Ali Mumtaz Shaikh, Advocate for Intervenor (in Constitutional Petition No. D-1662 of 1999).
Mr. Ali Mumtaz Shaikh, Advocate for Petitioner (in Constitutional Petition No. D-1480 of 1999).
Syed Mehmood Alam Rizvi, Standing Counsel for Respondent No. 1 (in Constitutional Petition No. D-1480 of 1999).
Mr. Saifuddin, Advocate for Respondent No. 2 (in Constitutional Petition No. D-1480 of 1999).
Mr. Ali Muhammad Memon, Advocate for Respondent No. 4 (in Constitutional Petition No. D-1480 of 1999).
Date of hearing: 27.2.2007.
Order
Mushir Alam, J.--M.I.T. report dated 10-10-2003 has come up for consideration. Along with the report, decision of the sub-committee as approved by the Managing Committee of the PECH Society dated 1-10-2003, has also been filed. Objections have been filed by the petitioner Aqeela Begum. Decision of the Managing Committee of the Society and the objections of the petitioners in both the petitions were heard at length.
The petitioner Mst. Aqila Begum in C.P. No. D-1662 of 1999 and Tanveer Afzal through one Rashid Masood in C.P. No. D-1480 of 1999, both the petitioners claimed their rights and titles over Plot No. 68/l-F, measuring 200 square yards in Block No. 6, PECHS Karachi. They have impugned the Memorandum, dated 14-8-1999 issued by Pakistan Employee Cooperative Housing Society Ltd., PECHS, Karachi, whereby the allotment of the subject plot was cancelled.
It seems that earlier also, the parties had impugned the cancellation of plot in C.P.D-57 of 1989, which is the foundation of instant proceedings. The learned Division Bench passed the following order in C.P. No. D-57 of 1989 on 28-11-1989:--
"In our view, the present petition may also be disposed of on the same terms and conditions except with the additional condition, namely, that the PECH Society will also decide the question, whether the Respondent No. 4 (i.e. Rashid Masood) is entitled to retain the plot or the plot is to be given to the petitioner in case it is held that the cancellation of the allotment was not covered by MLO-34. The other aforesaid conditions are as follows:--
(i) That both the parties shall maintain status quo as obtaining today, and
(ii) That Respondent No. 1 after hearing the petitioners will decide the question, whether the petitioners' cases were covered by the recommendation of the Enquiry Committee and, whether any action is warranted keeping in view the facts of the case and principles of nature justice.
(iii) The petitions stand disposed off with no order as to costs.
(Sd.) Ajmal Mian, Chief Justice
(Sd.) Mukhtar Ahmed Junejo, Judge
"Therefore, objections filed by the Society that allotment in favour of Mst. Aqila Begum's allotment merely on the ground that she is not a member of the Society cannot be sustained."
The Court further observed that through Memorandum 14-8-1999 the PECH Society did not adhere to the direction contained in the remand order for hearing the parties. The PECH Society was directed to decide the controversy, in respect of subject plot, between both the petitioners after issuing notice to them in terms of remand order, already reproduced above.
As regards Mst. Aqila Begum, it was opined as follows:--
"Mst. Aquila Begum is petitioner through her attorney, Mr. Aijaz-ul-Yaqeen, in C.P. No. 1662 of 1999. She is neither a member of the Society nor she was/is a Federal Government Employee. As such as per Bye-Laws of the PECHS and the Licence Agreement executed by the Federal Government neither she can become a member of the Society nor she is eligible for allotment of the plot in PECHS.
As per conditions of the judgment in Constitutional Petitions Nos. 57 of 1989 and 3-4 of 1985 though her case is not covered directly as the Martial Law Enquiry Committee had limited scope of enquiry but the spirit of the recommendations was that illegal allotments should not be allowed to continue. Allotment to Mst. Aquila Begum, in view of Bye-Laws and Licence Agreement was illegal.
The second condition of the judgments is that "Whether any action is warranted keeping in view that facts of the case and the principles of natural justice". The Committee has consensus of the opinion that in view of facts of the case and principles of natural justice, plots in PECHS should be allotted strictly in accordance with the terms of License Agreement to the members of the Society on its roll and no non-member should be allotted plot by depriving the members of the Society. If allotment to non-member is legalized it will amount to opening a gate of irregularities. As such the Plot No-68-l-F, Block-6, PECHS, Karachi, should not be restored to Mst., Aquila Begum."
As regards petitioner Tanveer Afzal (in C.P. No. 1480 of 1999), it was opined that "he is neither member of the PECHS nor is a Federal Government Employee. He claims to have been purchased the Plot No. 68-1-F, Block No. 6, PECHS, Karachi from Mr. Rashid Masood who was allotted the said plot. The plot of Mr. Rashid Masood was cancelled under the recommendation of Martial Law Enquiry in 1983. Whereas, Mr. Tanveer Afzal claims to have purchased Plot No. 68-1-F, Block No. 6, PECH Society from Mr. Rashid Masood. It was, concluded that no rights were conveyed to Tanveer Afzal.
In nutshell conclusion of the enquiry is that neither the petitioner Mst. Aqila Begum (in C.P. No. D-1662 of 1999) nor, Tanveer Afzal (in C.P. No. D-1480 of 1999) are entitled for allotment of the subject plot.
Mr. H.A. Rehmani learned counsel for petitioner in C.P. No. D-1662 of 1999 filed objection to the compliance report filed by PECH Society on 1-10-2003. It was contended that the Society has travelled beyond the remand order, dated 28-11-1989. According to the learned counsel, the Society could not decide the eligibility or otherwise of the petitioner. It was contended that this Court in C.P. No. D-1662 of 1999 decided the issue of eligibility. Mr. Rehmani relied on the judgment recorded in Muhammad Mushtaqeem Khan v. PECHS Limited in C.P. No. D-902 of 1983 (unreported) and PECH Society and Pakistan Employees Cooperative Housing Society, Ltd. Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474. According to him, issue whether the petitioner Aqeela Begum was member or otherwise of the Society cannot be reopened. According to Mr. Rehmani, the compliance report amounts to contempt and the PECH Society cannot from a different opinions than what has been formed by the Court of law; under given circumstances of the case. He has placed reliance on case cited as suo motu Revision No. 1 of 2001 wherein Capital Development Authority deferred with interpretation placed by Honourable Supreme Court by using intemperate language The Honourable Supreme Court deprecated such conduct, however, in view of the unconditional apology no action was taken.
Mr. Ali Mumtaz Shaikh learned counsel appearing for Tanveer Afzal the petitioner in C.P. No. D-1480 of 1999, contended that petitioner Tanveer Afzal is not claiming the said plot directly but through member of Society Rashid Masood. According to him, the cancellation under MLO 34 was revoked on 24-12-1985, therefore, his case is on the better footings and is entitled for the subject plot, he being in possession of title documents. He stated that petitioner Mst. Aqila Begum does not even possess the basic eligibility to qualify for the purpose of allotment of the plot of the PECH Society directly.
Mr. Ali Muhammad Memon learned counsel for Respondent No. 3 Khalil Ahmed in C.P. No. D-1662 of 1999 contended that PECH Society has given its opinion and this Court can do nothing more, best course is to leave the parties to contest the claim in civil proceedings.
Mr. Saifuddin learned counsel for PECH Society contends that the allotment made in favour of Mst. Aqila Begum was result of favouritism. She was not an employee of the Federal Government, a condition produced or basic eligibility to become member of the society to be eligible to be allotted a plot in the PECH Society. Mr. Saifuddin learned counsel for the PECH Society, though conceded that her case was not covered under the Martial Law Enquiry Committee, but urge that the very foundation to be eligible for direct allotment of a residential plot was missing. Mr. Saifuddin, laid emphasis on the first remand order passed in C.P. No. D-57 of 1989, as reproduced above, to urge that remand order was wide in its scope. It was directed if case of petitioner is not covered by MLO 34 then other conditions are to be followed namely; (1) the petitioner shall be heard, (2) whether any action is warranted in view of the facts of the case and principles of natural justice.
Mr. Saifuddin, therefore, urged that under the Principal "licence agreement" between the Government of Pakistan and PECHS, any person who is not an employee of Federal Government could not be allotted any residential plot. He has drawn our attention to clause 1 of the Licence Agreement, which, inter alia, provides that the plot could be allotted to bona fide member on its roll in the manner approved by its Managing Committee. He has urged that the observation of this Court to the effect that "objection filed by the Society that allotment in favour of Mst. Aqila Begum cannot be refused merely on the ground that she is not a member cannot be sustained" was made on the basis of misreading of two judgments of the learned Division Bench of this Court, one in the case of Muhammad Mushtaqeem Khan v. PECHS Limited in C.P. No. D-902 of 1983 (unreported) and PECH Society and Pakistan Employees Cooperative Housing Society Ltd. Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474. It was urged that in both the cases Licence Agreement was not considered and in the case reported in PLD 1969 Kar. 474 it was not a case of residential plot. Mr. Saifuddin, relied upon recent pronouncement dated 8-12-2005 of learned Single Judge in Suit No. 1228 of 1989 Dr. Aftab Shah v. PECHS and others, in the referred case plaintiff claimed to have acquired allotment of residential plot on payment of valuable consideration. PECHS claimed that allotment was procured through collusion between the plaintiff and the then Administrator Mr. Rajper, evidence, was recorded. In paragraph 15 of the referred case it was held as follows:--
"To seek a lawful allotment of a residential plot in Defendant No. 1 Society a person must possess two basic qualifications. He must be an employee of Federal Government and must be a member/shareholder of the Defendant No. 1 Society. These qualifications are clearly spelt out in the Licence Agreement and byelaws of Defendant No. 1 Society as referred above. Thus, it was the proof of these two qualifications, which alone would have entitled the plaintiff to seek allotment in his name. Not only that the plaintiff admittedly did not possess these qualifications, he himself destroyed his own stand of being a member of the society to that of a non-member who has simply entered into a contract with the Defendant No. 1 Society. When one stand is taken at one point of time and a different stand at another, and both stands do not reconcile with each other then this act by itself lead to the presumption that such person does not have a genuine cause of action. The conflicting stands amount to destroying ones own cause of action and therefore, the entire foundation of plaintiffs claim is to be treated as false."
We have heard the learned counsel for the respective parties, perused the record and case-law cited at bar.
We have examined case reported in PLD 1969 Kar. 474, it was noted that indeed the case pertains to amenity Plot No. 2 Block 2, PECH Society. We have also called for the file of C.P. No. D-902 of 1983 to examine the contention of Mr. Saifuddin. It was noted that the Employees of PECH Society, who were allotted plot on the site, now well-known locality Mehmoodabad, filed large number of petitions. Licences were executed in their favour, plans were approved. However, subsequently, show-cause notices were issued for cancellation as the allotments were found to be irregular on the ground that allottee though employees of the Society were not its members. Learned Division Bench considered large number of cases and in view of the facts that the plots were allotted bona fide and in good faith, by the then Administrator in 1970 in consideration of fact that area abutting Mehmoodabad was not favoured and the members were not interested to take the plots in said locality. Secondly the licence agreements were executed, plans were approved, and after 10 years of lease the society could not have cancelled the plots and such right alone could be exercised by the Ministry of Works for the Federal Government for breach of subject licence.
In the instant petitions, facts are distinguishable; the Court merely remanded the matter to the PECHS to decide the same in accordance with remand order as reproduced above. It is not disputed that the PECH Society decided the matter after hearing both the petitioners.
There is nothing on record to show that the petitioner or her husband was a Federal Government Employee, the very foundation to be eligible for membership of the PECH Society is lacking. No licence has been executed, in her favour. Mr. Saifuddin is right in urging that allotments of 75 persons were cancelled including that of petitioner through impugned notice dated 8-11-1977. If the petitioner is given any premium for the wrong then there will be no room left for the society to check nepotism and favouritism by the Management of the PECH Society and the Administrator appointed. We are inclined to favour such view. Maximum efforts are to be made to maintain and preserve corpus of the society established to rehabilitate specified class or category of person. Allotment of plots to person must have nexus with the avowed object of the Society to provide shelter to their eligible members who may be entitled for allotment subject to fulfilment of basic qualifying and eligibility criteria.
Under the circumstances, the opinion recorded by the PECH Society is taken on record. Admittedly the petitioner is not member of the Society, do not fall under 54-A of the Cooperative Society Act, 1925, no avenue remains open under the Cooperative Society Act to refer the matter to the Society to decide her claim for wrongful act of the then Administrator. In all fairness, since the amount has been paid against the plot, petitioner if so chooses may file suit to claim enforcement of her claim or for damages as the case may be. However, in case the petitioner does not opt for any other remedy, the society in equity is directed to refund the amount received from the petitioner, immediately with mark-up at the rate of 10% from the date of receipt by the Society till the date amount is refunded.
As regard the case of petitioner, Tanveer Afzal is concerned; his claim is also shrouded in dispute. He claims that Martial Law Regulation was recalled. Society disputes such claim according to Mr. Saifuddin such documents are not available on the record of the Society and appears to be fabricated. The controversy as to whether the Martial Law Order was recalled or otherwise, in the wake of allegations and counter allegations cannot be decided in exercise of discretionary jurisdiction. We have both the petitioners if they so choose to agitate and establish their respective entitlement and claim in Civil Court.
Under facts and circumstances, both the parties are left to avail of the remedy in Civil Court as may be permissible under the law. However, looking at the peculiar circumstances of the case, we would direct the Society not to create any third party interest over the subject plot for three month. In case none of the party is interested to enforce its right over the subject plot and no restraining orders are received by the Society from any Courts, Society would be at liberty to dispose of the plot strictly in accordance with the list of eligible members on merit and seniority. In event there is tie or further dispute as to priority then advisable course of auction amongst such members may be explored.
The reference is accordingly taken on record.
(R.A.) Order accordingly
PLJ 2007 Karachi 394
Present: Khilji Arif Hussain, J.
KARACHI CADET SCHOOL through Proprietor--Plaintiff
versus
Messrs COMTECH through Proprietor and another--Respondents
Suit No. 780 of 1997, decided on 22.12.2006.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 54--Suit for declaration, damages, recovery of amount--Documents on record had established beyond any shadow of doubt that though defendant had received specified amount for supply of computers and printers but had failed to deliver the same--Plaintiff due to failure of defendant to supply computer, had to pay specified amount to Modaraba Company to settle the dispute as per terms of lease agreement which amount defendant ought to have paid to the plaintiff--Suit was decreed with interest. [P. 396] A
Mr. Arshad Mubeen, Advocate for Plaintiff.
Nemo for Defendants.
Date of hearing: 7.11.2006
Judgment
Khilji Arif Hussain, J.--The plaintiff filed suit seeking declaration that notice dated 28-4-1987 issued by Defendant No. 2 is void and declared that the defendant is liable to pay the plaintiff an amount of Rs. 10,00,000 damages suffered to the plaintiff and directing the Defendant No. 1 to supply 22 Computers and Printers in the alternatively to return the amount of Rs. 19,89,416 with 18 per cent interest thereon from the date of receipt of the said amount till payment. Notices/summons were issued to the parties and Defendant No. 1 was declared ex parte on 31-5-1999. Vide order, dated 31-1-2002.
On the basis of pleading following issues were framed:
(1) Whether the notice dated 28-4-1997 issued by the Defendant No. 2 was bad in law and affected the reputation and caused damages to the plaintiff?
(2) Whether the defendants are liable to pay damages? If so, what is the quantum?
(3) Whether the Defendant No. 1 is liable to supply computers and printers as per agreement, dated 9-9-1996?
(4) Whether the plaintiff is in the alternative entitled for refund/ return of Rs. 19,89,460?
(5) Whether the plaintiff is entitled for the reliefs claimed?
(6) What should the decree be?
On 31-5-1997 plaintiff withdraw the suit against Defendant No. 1 and accordingly plaintiff was directed to file affidavit in ex parte proof, the plaintiff filed affidavit in ex parte proof along with documents in support of its claim.
Heard Mr. Arshad Mubeen learned Advocate for the plaintiff and my findings on the issues are as under:--
Issue No. 1
Since the plaintiff has withdrawn the suit against Defendant No. 1 there is no need to give any finding on this issue.
Issues Nos. 2 to 4.
The plaintiff school in order to provide better facilities to his students agreed to provide computers and printers to their students and staff members to be used at their residence after purchasing the same on fund leasing basis from Modaraba Companies. The said amount was to be recovered by the plaintiff from the students and staff members from the tuition fee/salaries in instalments. Messrs First Allied Bank, Modaraba agreed to provide a sum of Rs. 19,89,416 for leasing payable in five years to purchase computers/printers to be provided to the interested students and staff members. A sum of Rs. 16,13,480 was paid to Defendant No. 1 under Cheque No. 964447 dated 12-12-1996 by the Modaraba Company and balance amount of Rs. 3,75,936 was paid by the plaintiff from his own resources under Invoice No. Com-1285/96 dated 4-12-1996. The defendant failed to supply any computer resulting that the plaintiff has to pay the amount of Rs. 21,10,000 from his own resources to settle the dispute with the Modaraba Company who had filed the Suit No. 15 of 1998 (Execution No. 137 of 1998) against the plaintiff for the recovery of the amount disbursed by them.
Along with the affidavit-in-evidence plaintiff produced lease financing document, purchase order dated September 9, 1996 Exh.P.1/7 for Rs. 1,989,416 in respect of 22 IBM compatible computers. Invoice dated 4-12-1996 a cheque of Rs. 16,13,480 issued by Allied Bank of Pakistan Ltd. in favour of Defendant No. 1, letter dated 26-1-1997 addressed by the Modaraba Company to Defendant No. 1 confirming that they paid a sum of Rs. 16,22,000 but the Defendant No. 1 failed to deliver the equipment despite lapse of considerable time. From the documents on record it is established beyond any doubt that though Defendant No. 1 has received a sum of Rs. 19,96,560 for the supply of 22 computers and printers but failed to deliver the same. The plaintiff due to failure of defendant to supply computer has to pay a sum of Rs. 21,10,000 to Modaraba company to settle the dispute as per terms of lease agreement which amount defendant ought to have to pay to the plaintiff. Accordingly, plaintiff's suit is decreed in a sum of Rs. 21,10,000 with interest at the rate of 12% per annum from the date of filing of the suit till realization with costs.
(R.A.) Suit decreed
PLJ 2007 Cr.C. (Lahore) 1
[Rawalpindi Bench Rawalpindi]
Present: Syed Shabbar Raza Rizvi, J.
SARDAR SAJJAD HAIDER KHAN and 2 others--Petitioners
versus
HABIBULLAH AAMIR, ADDL. SESSIONS JUDGE ATTOCK and another--Respondents
Crl. Revision No. 185 of 2006, decided on 13.7.2006.
Illegal Dispossession Act, 2005 (XI of 2005)--
----Ss. 3 & 4--Criminal Procedure Code (V of 1898), Ss. 265-K, 439 & 561--Application u/S. 265-K dissmissed by trial Court--Assailed--Question whether complaint u/S. 3 of Illegal Dispossession Act could be filed directly before the Session Judge or should be routed through Magistrate u/Ss. 190(2) & 193 Cr.P.C.--Held: Session's Court is competent to entertain and try the complaint, the Court may take cognizance himself as mentioned in S. 4 of the Illegal Dispossession Act--Complaint filed under the Act does not require to be routed through a Magistrate u/Ss. 190(2) & 193 Cr.P.C. [P. 4] A & B
PLD 1973 SC 49 and 1964 SC 673, ref.
Mr. S. M. Ayub Bukhari, Advocate for Petitioners.
Date of hearing : 13.7.2006.
Order
This criminal revision has been fled for quashment of proceedings pending before Respondent No. 1, Habib Ullah Aamir, ASJ, Attock.
Respondent No. 2 Muhammad Munir son of Muhammad Rafiq filed a complaint against the petitioners under Illegal Dispossession Act, 2005 before the learned Sessions Judge, Attock. The same was entrusted to ASJ, Mr, Sajid Mehmood Chatha. On application of the Petitioners, the case was transferred and entrusted to Mr. Habib Ullah Aamir, ASJ Attock. The Petitioners filed an application under Section 265-K, Cr.P.C. which was dismissed vide the impugned order dated 6.7.2006.
The petitioners filed the present criminal revision which consists of full eight pages. The criminal revision is full of accusations and insinuations both against the respondents as well as learned Judges. However, petitioner's main contention is that the complaint under Illegal Dispossession Act, 2005 cannot be filed directly before the learned Sessions Judge. It should be routed through the learned Magistrate as contemplated under Sections 190(2) and 193, Cr.P.C., thus, the complaint pending before the learned Addl. Sessions Judge was incompetently filed. He also contended that his application under Section 265-K, Cr.P.C. was also illegally and incompetently dismissed. In addition to that, he contended that proceedings pending before the learned Addl. Sessions Judge should be declared unlawful and without jurisdiction and be quashed.
To meet the points raised by the learned counsel for the petitioners, a brief analysis of the Illegal Dispossession Act, 2005 [hereinafter called Act] would be expedient. This Act consists of 9 Sections . Section 1 deals with short title, extent and commencement. Section 2 defines different words employed in the Act. Section 3 says that no one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property. Sub-clause (2) of Section 3 provides for a punishment for an offender who contravenes the provisions of sub-section (1) of Section 3. Section 4 provides that notwithstanding anything contained in the Code or any law, the contravention of Section 3 shall be triable by the Court of Sessions on a complaint. Under Section 5, the Court may direct the officer-in-charge of a police station to investigate the complaint and forward the report within 15 days to the Court. This section further provides that on taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within 60 days. Section 6 empowers Court to attach the property until final decision of the case. Section 7 empowers Court during the trial to pass an interim order and put the owner is possession of the disputed property. Section 8 empowers court, on conclusion of trial, if the Court finds that an owner was illegally dispossessed, etc. restore the property to the owner. Section 9 provides that unless otherwise provided in this Act, provisions of Code of Criminal Procedure shall apply to proceedings under this Act.
The brief resume of the Illegal Dispossession Act, 2005 clearly shows that it is a special law and the procedure is also provided therein. However, the provisions of the Code shall apply to the proceedings under this Act, wherever required.
The contention of the learned counsel for the petitioner that Sessions Judge can only try the complaint under Section 4 if it is routed through a Magistrate following the provisions of Section 190(2) and 193, Cr.P.C. are not tenable. Any complaint which discloses contravention of Section 3 is triable by the Court of Sessions as it is clearly provided in Section 4 of the Act. Section 5 further clarifies the provisions as it requires that upon a complaint, the Court may direct the officer-in-charge of the police station to investigate and complete the investigation and forward the same within 15 days to the Court. If the Sessions Judge was not required to entertain complaint or try the complaint directly, he would not have conferred upon powers mentioned in Section 5 of the Act. Sub-section (2) of Section 5 further provides that on taking cognizance of a case, the Court shall proceed with the trial on day to day basis, and shall decide the case within 60 days and for any delay, sufficient reasons shall be recorded. As it is clear from Section 4, the Court of Sessions takes cognizance on a complaint directly filed to it, therefore, the provisions of Section 190(2) and 193 are not applicable in any case filed under the Act which is a special law. There are number of judgments on the subject that when on a subject special law is provided, provisions of special law shall prevail upon provisions of general law. For convenience, PLD 1973 SC 49 and 1964 SC 673 are referred to.
In Muhammad Younas Vs. Shahid Cheema and two others, 2006 P.Cr.LJ 636, the learned Single Bench of this Court held that under Section 4 (1) the offence regarding contravention of Section 3 is exclusively triable by the Court of Sessions on a complaint. The same judgment further provides that Section 5 of the Act provides the procedure to deal with the complaint under sub-clause (1) thereof on a complaint to direct the officer-in-charge of the police station to investigate and complete investigation and forward the same within 15 days to the Court. The same judgment further notes that under the Act, the Court has to first refer the matter to the SHO concerned for investigation into the matter and after receipt thereof cognizance will be taken by the Court. Therefore, the above judgment also strengthen my humble view that collective reading of Sections 4 and 5 of the Act leaves no doubt that the intention of the law makers is that the complaint is to be filed directly to the sessions Court and he is required to take cognizance on such report, thereafter, try the complaint on the basis of evidence/material collected by the SHO. Provisions of Sections 190(2) and 193, Cr.P.C. have no relevance, at all, when a complaint is filed under the Illegal Dispossession Act, 2005. In another case, Capt. M.S. Aslam Vs State, PLD 2006 Karachi 221, the learned Court held as under:
"The learned counsel further failed to appreciate that Section 5 of the "said Act" lays down a procedure to be adopted by the Court of sessions upon a complaint and provides that upon a complaint the Court may direct the officer-in-charge of the police station to investigate and complete the investigation and forward the same within 15 days to the Court".
"Except as otherwise expressly provided by this Code or by any other law for the time being enforced, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under Section 190 (2)".
The reading of Section 193 indicates that a Court of Sessions can take cognizance directly if it is expressly provided by the Code or by any other law for the time being enforced. The Illegal Dispossession Act, 2005 is a law for the time being enforced in the country. It may be recalled and reminded that Act was enforced on 6.7.2005.
Consequent to the above discussion and also on the basis of the above enumerated reasons, I hold that if a person has a grievance as mentioned in Section 3 of the Illegal Dispossession Act, 2005, the Sessions Court is competent to entertain and try the complaint, the Court may take cognizance himself as mentioned in Section 4 of the Act or entrust the same to an Additional Sessions Judge. He shall generally follow the procedure provided in the Act itself, however, the provisions of Code of Criminal Procedure shall be applicable during the proceedings but subject to the provisions of the Act. It is further held that a complaint filed under the Act does not require to be routed through a Magistrate under Section 190(2) and 193, Cr.P.C. This is also clear form the simple reading of Section 193, Cr.P.C.
In view of the above, this criminal revision is dismissed.
(Malik Sharif Ahmed) Revision dismissed.
PLJ 2007 Cr.C. (Lahore) 5
Present: Sardar Muhammad Aslam & Syed Shabbar Raza Rizvi, JJ.
DR. QAISAR RASHID--Appellant
versus
FEDERAL SECRETARY MINISTRY OF FOREIGN AFFAIRS, GOVERNMENT OF PAKISTAN, ISLAMABAD--Respondent
Crl. A. No. 815 of 2006 in Cr. Or. No. 935-W of 2005 in W.P. No. 18609 of 2004, decided on 29.5.2006.
Constitution of Pakistan, 1973—
----Art. 199(5)--Territorial jurisdiction--Appellant had entered into a contracts with a private institution in Berlin, Germany, who was required to issue appellant a research experience certificate which was denied, appellant filed writ petition which was disposed of with direction to secretary foreign affairs--According to appellant order of Court was not honoured by the foreign office criminal original hence was totally misconceived on appeal Division Bench agreed with order of single bench and held, the institution was based outside territorial jurisdiction of High Court and it was not a person as defined in Art. 199(5) of Constitution--As regard treaty unless same was incorporated into the law so that it become part of Municipal laws of the Country, no Court shall have jurisdition to enforce any right arising therefrom. [Pp. 7 & 8] A & B
Mr. Asad Ullah Javaid, Advocate for Appellant.
Date of hearing : 29.5.2006.
Order
Syed Shabbar Raza Rizvi, J.--This appeal is filed against order of the learned Single Bench passed in Criminal Original No. 935-W/2005 on 19.9.2005 in Writ Petition No. 18609/2004.
The brief facts leading to the present appeal are that the appellant had entered into a contract with a private institution in Berlin, Germany; "German Arthritis Research Center (DRFZ)". According to the learned counsel, the said Centre was required to issue appellant a research experience certificate. According to the learned counsel for the appellant, he was denied the said certificate, whereupon, the appellant filed Writ Petition No. 18609/2004 which was disposed of with direction to the Secretary Foreign Affairs. The direction reads as under:
"---the office to send a copy of this order alongwith petition as well as its annexure to the Secretary Foreign Affairs, Islamabad, who will look into the grievance of the petitioner and sympathetically will make his best efforts to get redress the grievance of the petitioner from the Institute of German Arthritis Research Centre (DRFZ) Berlin Germany through Pakistan Embassy at Germany".
According to the learned counsel for the appellant, the above mentioned order of this Court was not honoured by the Foreign Office, hence appellant had to file Criminal Original No. 935-W/2005 on 19.9.2005.
The Foreign Office submitted parawise comments alongwith a letter from the Institute in the Criminal Original No. 935-W/05. On 20.4.2006, learned Single Bench of this Court decided criminal original in the following words:
"The direction issued by the learned Bench vide order dated 12.11.2004, while disposing of writ petition, was duly complied with by the respondents. The Ministry of Foreign Affairs did call upon the Embassy of Pakistan in German Democratic Republic, which in turn, wrote to the Institute. Response of Institute was also brought on record. In these circumstances, when direction given by this Court has been duly complied with, the Ministry of Foreign Affairs cannot be called upon once again, to secure a certificate for the petitioner. The Ministry of Foreign Affairs or Embassy of Pakistan was not under any obligation to approach a private foreign institute for issuance of a certificate to petitioner whether he was entitled or not, to have received such a certificate."
The Hon'ble Single Bench further declared that the criminal original was, under the circumstances, totally misconceived.
We agree with the order of the learned Single Bench passed in Criminal Original No. 935-W/2005 for the following reasons, that;
The appellant entered into an agreement for certain training with a private institution which is based in Germany. Two points are important to note, i.e. agreement with a private institution; secondly, in a territory which is not a part of the Province (Pakistan). This Court can issue Mandamus only to a "person" who performs functions in connection with affairs of Federation, Province or a Local Authority. The definition of "person" is given in Clause (5) of Article 199 itself, which does not include a private institution. The other requirement or condition precedent is that such person must be based within territorial jurisdiction of this Court. Under Article 175 of the Constitution, every Province has a separate High Court. Following the above constitutional mandate, Lahore High Court has its jurisdiction within the Province of the Punjab and also within the territory of Federal Capital Islamabad, under special arrangement. Germany, of course, is out of territorial jurisdiction of Lahore High Court, therefore, no writ can be issued in this matter.
Constitutional jurisdiction or jurisdiction of judicial review by this Court is exercised under Article 199 of the Constitution and not under any other instrument. The Lahore High Court is a creature of Constitution of Pakistan, thus, it can only exercise powers which are conferred upon it by or under the Constitution.
The Hon'ble Supreme Court of Pakistan while examining the provisions of Article 199 of the Constitution observed as under:
"A perusal of the above sub-clause (a)(i) of the above Article indicates that a High Court has power to issue a direction to a person performing within its terroritial Jurisdiction functions in connection with the affairs of the Federation, a Province or a Local Authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do. Similarly, under sub-clause (a)(ii) a declaration without lawful authority or of no legal effect can be given by a High Court in respect of any act done or proceedings taken within its territorial jurisdiction by a person performing functions in connection with the affairs of the Federation, a Province or a Local Authority." (Sandalbar Enterprises Pvt. Limited vs. Central Board of Revenue and others, PLD 1997 SC 334).
Examining the facts and circumstances of the present case in the light of above finding made by the Hon'ble Apex Court, will show that the said institution is based outside territorial jurisdiction of this Court and it is also not a "person" as defined by Article 199 of the Constitution itself in Clause (5) of the same Article.
"Admittedly, in Pakistan, the provisions of the Treaty were not incorporated through legislation into laws of the country, therefore, the same did not have the effect of altering the existing laws, as such, rights arising therefrom called treaty rights cannot be enforced through Court as in such a situation, the Court is not vested with the power to do so. It may be significantly mentioned here that according to Article 175(2) of the Constitution of Islamic Republic of Pakistan, no Court has any jurisdiction unless conferred by or under any law or the Constitution, therefore, treaty unless was incorporated into the law so that it become part of Municipal Laws of the Country, no Court shall have jurisdiction to enforce any right arising therefrom". (Societe Generale De Surveillance S.A. Vs. Pakistan, through Secretary, Ministry of Finance, Revenue Division, Islamabad, 2002 SCMR 1694).
(Malik Sharif Ahmed) Appeal dismissed.
PLJ 2007 Lahore 10
[Multan Bench Multan]
Present: Fazal-e-Miran Chauhan, J.
PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through its EXECUTIVE ENGINEER, MEPCO LTD., MULTAN--Petitioner
versus
M/s. HUSNAIN INDUSTRIES (PVT.) LTD. through the M.D., MULTAN and 4 others--Respondents
W.P. No. 436 of 2005, decided on 13.6.2005.
(i) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (I of 1983)--
----Arts. 9(1), 10(3)--Constitution of Pakistan (1973), Art. 199--Jurisdiction of the Wafaqi Mohtasib--Constitutional petition--Objection that since the matter was subjudice before the Electric Inspector, jurisdiction of Wafaqi Mohtasib is barred/ousted under proviso A of S. 9(i) of Ordinance, 1983, was laid down--Held: No reference was pending before any Court of competent jurisdiction, Judicial Tribunal or Board." [P. 14] A
(ii) Electricity Act, 1910 (IX of 1910)—
----S. 36--Constitution of Pakistan (1973), Art. 199--Legal character of an Electric Inspector--Under the Electricity Act, 1910, the legal character of an Electric Inspector is not that of Court--He does not act as a Court under the Arbitration Act the role assigned to the electric inspector is to determine the dispute under the Electricity Act. [P. 14] B
(iii) Electricity Act, 1910 (IX of 1910)—
----Ss. 36 & 52--Constitution of Pakistan, 1973 Art. 199--Arbitration Act, 1940, S. 52--Under Section 52 of the Electricity Act or the same has already been decided by him. [P. 14] C
(iv) Constitution of Pakistan, 1973—
----Art. 199--Establishment of Office Wafaqi Mohtasib (Ombudsman) Order (I of 1983), Art. 32--Constitutional petition--Maintainability--Principle of laches and gross negligence--Alternate adequate remedy--It is declared that Writ Petition is hit by principles of laches--Petition dismissed.
[P. 15] D
1974 SCMR 82; 1974 SCMR 38; PLD 2003 SC 123 & PLD 2004 SC 127 ref.
Mr. Muhammad Ashraf Sh., Advocate for Petitioners.
Malik Muhammad Latif Khokhar, Advocate for Respondent No. 1.
Ch. Saghir Ahmad, Standing Counsel with Haq Nawaz, Asstt. Wafaqi Mohtasib, Regional Office, Multan and Muhammad Sabir, Electric Inspector, Multan.
Date of hearing: 17.5.2005.
Order
Through this writ petition the petitioner has challenged the order dated 24.6.1998 passed by the Electric Inspector, Multan Region and order dated 20.2.1999 passed by the learned Advisory Board Govt. of Punjab, Irrigation and Power Department by which the application of the Respondent No. 1 consumer has been concurrently allowed and uphold.
Brief facts of the case are that Respondent No. 1 is the consumer of petitioner (Wapda) running a Ghee Mills by using allotted Account No. 5121-959200 B-2 with sanctioned load fo 209 KW. All electric energy consumption bills were paid regularly and no arrear whatsoever was outstanding aginst the respondent. In the month of September, 1996, the Revenue Officer (P), WAPDA, Mumtazabad, Division, Multan issued electricty bill amounting to Rs. 604607/- against consumption of units of 5391 to the Respondent No. 1. Respondent No. 1 approached E.D.O. (L) WAPDA Mumtazabad Sub-divisions, Multan to enquire about the issuance of such excessive bill of Rs. 6,04,507/-. Respondent was informed that in the month of August, 1996, a Surveillance Team checked the meter of the Ghee Mills and found the meter slow @ 56.86%. The respondent challenged the report of the Surveillance Team, but he was directed to first deposit the disputed bill and then his grievance will be looked into by the petitioner, failing which his meter may be disconnected. Left with no option, the Respondent No. 1 deposited the disputed amount in favour of the petitioner and also requested to re-check the meter in presence of the respondent. As a result thereof, the working of the meter was found in-different and slowness was charged for the period May, 1996 to September 1996 and was found accurate during October, November, December 1996. As the behaviour of the meter was changed the metering equipment was ordered to be replaced and respondent consumer was allowed a refund of Rs. 5,97,181/- in the term of report of Surveillance Team. Being dissatisfied with the report, the Respondent No. 1 preferred an application, and under Section 26(2) Electricity Act, 1910 before Electric Inspector, Multan Division, Multan Respondent No. 2.
The Electric Inspector after soughting reply, and record from the petitioner, hearing both the parties, and going through documentary evidence of both parties by his a very detail and elaborated order, declared that SDO of the petitioner played a drama of losses MLJ reading, just to cover up their losses and prove slowness. Meter of the respondent was not found to be slow in the said period. He directed the petitioner to refund the payment received as detection bill and also to serve Respondent No. 1 with bill for the month of September, 1996 as reading recorded by the KW meter actually and with actual multiplying factor.
The petitioner preferred appeal before Respondent No. 3 (Advisory Board, Govt. of Punjab etc.) The respondentBoard dismissed the appeal of the petitioner, and decision of the Electric Inspector was upheld by order dated 20.2.1999. After 20.2.1999 petitioner filed this writ petition on 29.12.2004 challenging the order dated 24.6.1998.
It is argued by the learned counsel for the petitioner that respondent paid the electricity bill, raised in view of the decision of the accredited authority of the department conveyed dated 8.8.1996 without any protest. The checking was carried out in presence of consumer, who also participate in test check but he refused to sign the report. Thereafter respondent was estopped to assail the same before Electric Inspector, request of consumer/respondent when acceded to recheck of meter by detective staff, there was no bonafide and lawful excuse to agitate the verdict of the 2nd report dated 24.12.1996. It is further argued that Respondent No. 2 (Electric Inspector) had no jurisdiction to determine the dispute. It was only Civil Court which has the jurisdiction to entertain and decide dispute involving monitory matter. Respondents Nos. 2, 3 did not adopt the procedure and decided the matter simply on the basis of the reports submitted, without checking the metering equipment. The law prescribes that, the thing to be done in accordance with the manner envisaged by law. The proceedings conducted by Respondent No. 2 are violative of Section 2.6(6) of Act of LX 1910. It was mandatory for Respondents Nos. 2 and 3 to convey the decision to licensee but they failed to convey the decision. The petitioner came to know when he received notice from the office of Wafaqi Mohtisab for implementation of the decision of the Respondents Nos. 2, 3. That without approaching the Civil Courts by filing suit for recovery and by affixing Court fee of Rs. 15,000/-, the consumer is not entitled to recover the amount. The consumer moved Respondent No. 4 illegally for recovery of alleged claim. Even otherwise Respondent No. 4 has no jurisdiction to take cognizance in the matter, which remains pending before the competent forum under the Electricity Act, 1910. There is further remedy under the law after decision of Electricity Act 1910, Respondent No. 4 is not the executing agency. There is a limitation imposed u/s 10(3) of Order 1 of 1983. Any claim beyond three months is not sustainable. The claim of the Respondent No. 1 is four year old and was barred by law and was to be subjudice before proper forum. That under Article 9 of the Wafaqi Mohtasib (Ombudsman) Order (PO 1 of 1983) matter pending before same Court or tribunal etc, were kept out of the jurisdiction of Ombudsman under Article 10(1) of Order 1 of 1983. The complaint of a person is competent and not that of a company, even otherwise respondent is estopped by his own conduct after the elapse of 6 years.
On the other hand, learned counsel for the Respondent No. 1 argues that both decisions dated 24.6.1998 of the Electric Inspector and that of the Advisory Board dated 20.2.1999 are being challenged after elapse of almost 5 years is hit by principal of laches. That the Electric Inspector and Advisory Board decided the matter after hearing both the parties, the Advisory Board rejected the appeal filed by the petitioner holding that Respondent No. 1 was entitled to be refund of Rs. 6,04,607/- charged as an amount of 56.86% slowness of the meter for the month of May 1996 to September 1996, because in the opinion of the committee the meter was defective during May 1996 to September 1996, and the same became correct and was declared not slow from October 1996 onward.
The Advisory Board rightly declared that the meter remains accurate during May 1996 to 31.12.1996, and the checking made by the petitioner/appellant in August 1996 declaring the meter to be slow to the extent of 56% was not correct, and decision of Electric Inspector dated 24.6.1998 was upheld and appeal of WAPDA was rejected on 20.2.1999. The petitioner remains silent and no remedy by way of filing writ was availed against the order of Electric Inspector and of Advisory Board Act, which attained finality. Now this writ petition, filed, challenging the order of Respondent No. 2 & 3 is hit by laches. The delay has not been explained. The impugned order passed by the competent authority was perfectly legal and had been passed in lawful exercise of authority and jurisdiction, and does suffered from any infirmity either in law and equity. High Court shall decline to interfere with such order in exercise of extra ordinary constitutional jurisdiction. He further argues that petitioner is guilty of gross negligence and laches is not entitled to the equitable relief. One, who seeks equity, must show that equities lean in his favour. The explanation, given in the application for condonation of delay is not explanatory. "And does not warrant condonation of delay. The explanation put forth does not inspire confidence. As has been held in L.H. Shaikh vs. General Manager, Karachi Telecommunication Region and others (1974 SCMR 82). Misplacement of file in the office of the petitioner is not supported by any document showing that any action was taken against such official held responsible for such misplacement. The Government is in no better position, then other, litigant is such matter. In civil matter, delay in filing appeal or petition, save in exceptional cases, shall not be lightly condoned, as a valuable right had accrued to the other party, who cannot be deprived of that except for very substantial reason. To make department of Govt. exception to this rule would be placing premium on negligence and want of proper diligence in public officer. As has been held in Chief Settlement and Rehabilitation Commissioner and another vs. Ghulam Ghaus etc. (1974 SCMR 38) and Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore vs. Syed Ashfaque Ali and others (PLD 2003 SC 123). It is further argued that an alternate adequate remedy by way of filing of representation to the President under Article 32 of the Establishment of Wafaqi Mohtasib (Ombudsman) Ordinance I of 1983 is available to the petitioner. The writ petition is pre-mature and the same may dismissed on this score only. Reliance is placed on Pakistan Railway vs. Abdul Barik Khan and others (PLD 2004 SC 127).
I have heard the learned counsel for the parties at the limine stage. The argument advanced by the learned counsel for the petitioner mainly revolves around the jurisdiction of the Wafaqi Mohtasib. It is argued that, since the matter was subjudice before the Electric Inspector, the jurisdiction of Wafaqi Mohtasib is barred/ousted under proviso A of sub-section (1) of Section 9 of Ordinance 1 of 1983.
Proviso A of sub-section (1) of Section 9 laid down that:
"Mohtisab shall not have any jurisdiction to investigate or inquires into any mark which is, a; are subjudice before a Court of competent jurisdiction or judicial tribunal or Board in Pakistan on the date of the receipt of the complaint, reference or motion by him".
From the bare perusal of the above proviso-A it is clear that jurisdiction to investigate or inquire into any matter is barred only when the dispute referred through the complaint, reference or motion to the Wafaqi Mohtisab the same is pending adjudication before a Court/Judicial Tribunal or Board. Here in the present case, the dispute was referred to the Electric Inspector, whose decision was not being implemented by the petitioner, respondent moved a complaint to the Wafaqi Mohtisab on 9.8.2004. On this date, when the complaint was filed no reference was pending before any Court of competent jurisdiction, Judicial Tribunal or Board.
Under Section 36 of the Act 1910 the Federal Government may by notification in official Gazette, appoint duly qualified person to be Electric Inspector or Provincial Government may, by notification in official Gazette, appoint duly qualified person to be Electric Inspectors within such area as may be assigned to them respectively. The Electric Inspector has been assigned an important role so far as determination of dispute arising under the Act, 1910. In deciding the case under the Electricity Act, 1910, the legal character of an Electric Inspector is not that of Court. He does not act as a Court under the Arbitration Act. The role assigned to the Electric Inspector is to determine the dispute under the Electricity Act.
Under Section 52 of the Arbitration Act where any matter is by or under this act directed to be determined by arbitration, the matter is referred to the Arbitrator nominated by the Provincial Government in this behalf. Its means that the appointment of Electric Inspector under the Electricity Act, (under Section 36) is not that of an Arbitrator. Meaning thereby, the Electric Inspector so nominated by the Federal Government or Provincial Government does not act as a Court or an Arbitrator. Thus, the proceedings pending before Electric Inspector are not proceedings pending before a Court or Tribunal creating bar on the jurisdiction of Ombudsman conferred under Article 9 of the Ombudsman Ordinance, 1983. Thus, the objection raised had no force that Ombudsman has no jurisdiction to entertain the complaint/reference, where the matter was pending before the Electric Inspector or the same has already decided by him.
Conversely, learned counsel for the respondent argued that the Writ Petition filed by the petitioner is premature, the decision of the Electric Inspector for he refund of excess amount received by the petitioner was upheld by the Advisory Board on the appeal filed by the petitioner. Thereafter, the petitioner kept silent and never agitated the dispute before any Court of competent jurisdiction. Through this writ petition, the petitioner has challenge the order of Ombudsman by which the petitioner is directed to comply with the orders the Electric Inspector dated 24.6.1998 confirmed by the Advisory Board on 20.2.1999. If the petitioner feels aggrieved of the orders of Ombudsman he had a remedy under Section 32 of the Wafaqi Mohtisab Ombudsman Ordinance, 1983 to make a representation to the President of Pakistan. Here in this case the petitioner without availing the remedy available under the law has filed the writ petition challenging the jurisdiction of Ombudsman to decide the complaint filed by the respondents. Hence, the writ petition be dismissed being premature.
He further argues that the petitioner who is guilty of gross negligence and laches is not entitled to equitable relief. One, who seeks equity must show that equity leans in his favour. In the present case, the order of Electric Inspector dated 24.6.1998 directed refund of amount received illegal by the petitioner was upheld by the Board by dismissing the appeal of petitioner on 20.2.1999 and after elapse of more than 4 years the present writ petition has been filed which hopelessly time barred and is hit by laches.
The explanation given in the application for condonation of delay is not self-explanatory and does not inspire confidence. The misplacement of file in the office of the petitioner is not supported by any evidence showing the bona fides of the petitioner. The Government is not in a better position then the ordinary litigants in such matter. Since, no plausible explanation has been given for not filing the writ petition within the reasonable time. It is declared that writ petition is hit by principle of laches.
For what has been discussed above, the writ petition is dismissed in limine being not maintainable.
(Mehmood Ahmed Alvari) Petition dismissed.
PLJ 2007 Lahore 16
Present: Mian Saqib Nisar, J.
D.G. KHAN CEMENT COMPANY LTD., LAHORE through its
COMPANY SECRETARY--Appellant
versus
MONOPOLY CONTROL AUTHORITY through its
CHAIRMAN, ISLAMABAD--Respondent
Monopoly Appeal No. 2 of 2005, decided on 26.7.2006.
Monopolies and Restriction Trade Practices (Control and Prosecution) Ordinance, 1970—
----Ss. 20, 12, 3--Civil Procedure (V of 1908), S. 100--Cement price was increased--Public out cry appeared in press--Suo muto notices to manufacturers u/S. 14--Violation--Special enquiry conducted by authority which resulted in order impugned--Authority concluded there had been cartel--U/s 12(1)(c) ordered the manufacturers to back the cartel manufacturers filed appeal u/S. 20 of the Ordinance--Held:
(i) Authority had to adjudicate upon whether there had been violation of relevant provision of Ordinance--There is close identity between S. 20 of the Ordinance, 1970 and S. 100 of C.P.C--Appeal against the order of authority also lies on question of law.
(ii) Authority has a general statutory duty to ensure that there is no violation of S. 3 of Ordinance.
(iii) Competition means and requires the free interplay between the suppliers and consumers of goods in a market environment--Authority must establish that all of various ingredients of an unreasonably restrictive trade practice as envisaged by deeming provisions contained in Section 6(1).
(iv) On bare reading of S. 6(2) of Ordinance provides that if the clauses specified there are fulfilled in relation to an agreement to which sub-section (1) applied, then that agreement shall not be deemed to be an unreasonably restrictive trade practice--Agreement must be found to exist on an objective assessment of all the facts--If no agreement can be found the matter ends--No need to take recourse to sub-section (2).
(v) Agreement specified in Section 6(1) exists in order to attract the deeming provisions--If it exists, would be violation of Section 3 and offender liable to penalty u/S. 19 of Ordinance.
(vi) Prices rose in parallel does not establish that there existed a cartel among the appellants in violation of S. 6(7), there was no basis for authority to contend that there has been a "planned" or "systematic" increase in the prices or existence of "cartel".
(vii) Authority is the regulator and restorer of competition and not of prices by confusing two functions and powers, the authority has asserted a power that does not vest in it under law. Section 12(1)(c) in terms of which the authority has purported to take this action does not confer such power on the authority--Authority's direction is on face of it inconsistent with the concept of market competition and with the Authority's fundamental statutory duty to protect the same--Appeals allowed. [Pp. 24, 28, 29, 30, 32, 35, 45, 47, 48 & 49]
A, B, C, D, E, F, G, H, I, J, K, L, M & N
M/s. Munib Akhtar and Salman Akram Raja, Advocates for Appellant.
Dr. Danishwar Malik, DAG & Ms. Saleema Munawar, AAG Respondent.
Date of hearing: 3.7.2006.
Judgment
Mian Saqib Nisar, J.--By means of this common judgment, I intend to dispose off the connected appeals which are mentioned in the appendage attached herewith, all of which arise under Section 20 of the Monopolies and Restrictive Trade Practices (Control and Prevention Ordinance, 1970 (herein after referred to as the Ordinance). The appellants are all cement manufacturers and each is aggrieved by an order dated 27.10.2005, made against it by the Monopoly Control Authority (herein after referred to as the respondent or the Authority) under Section 12 of the Ordinance. The orders are identical in all material respects and hence the appeals have been heard and are being disposed off together.
Briefly stated, the Authority's case is that in May, 2003, there was a public outcry appearing in the national press against cement price increases from the second week of May onwards. Responding to the public outcry, the respondent decided to take suo muto notice of the same under Section 14 of the Ordinance, which enables the Authority to conduct, on its own motion, special enquiries into any matter relevant to the purposes of the Ordinance; information was, among others, called for from the cement manufacturers and on the basis of the facts and figures collected, the Authority concluded that there was every reason to believe that there had been a violation of Section 3 read with Section 6 of the Ordinance, and that it would be in the public interest to initiate appropriate action. (I will examine the various provisions of the Ordinance being referred to in detail later in this judgment). Accordingly, show-cause notices were issued to the cement manufacturers, being about 18 manufactures in all. The show-cause notices were identical in all material respects and it will be convenient to refer to only one such notice, being Show Cause Notice No. 49 of 2003-2004 issued to one of the appellants, M/s. D.G. Khan Cement Company Ltd. (hereinafter referred to as D.G Khan Cement). The notice recited the fact that a special enquiry had been conducted by the Authority in the circumstances mentioned above, and a copy of the investigation report was attached thereto, The notice stated that the Authority was prima facie of the view that there had been an agreement for the purposes of fixing the selling price of cement and limiting the quantity and means of production thereof, which constituted an unreasonably restrictive trade practice under Section 6(1) of the Ordinance, and which was prohibited under Section 3 thereof. The cement manufacturer was asked to show-cause as to why action under Section 11 read with Section 12(1) of the Ordinance, should not be taken against it.
A joint reply was submitted on behalf of 14 of the cement manufacturers, including all of the present appellants and hearings in the matter were held on 25.10.2003 and 1.11.2003. Thereafter, there was a long gap and further hearings were held on 8.8.2005 and 1.9.2005. Finally, the orders dated 27.10.2005, were issued by the Authority. For convenience, reference shall be made to the order issued against D.G. Khan Cement (hereinafter referred as the Impugned Order). While the Impugned Order, will need to be examined in detail, its findings may be briefly noted at this stage. The Authority found that the prices of cement had fallen from October, 2002 to April, 2003 and concluded that while there had been no cartel up to April 2003, with effect from May, 2003, there was indeed a cartel, which unjustifiably increased the cement prices in a planned and systematic manner. The Authority took exception to the fact that although the Government had given substantial relief in central excise duty in the Federal Budget of 2003, the benefit thereof had not been passed on to the consumers. The Authority also concluded that the capacity utilization in May 2003 remained low. It is therefore, concluded that there had been a cartel, i.e. an agreement among cement manufacturers, to fix the prices and under utilize the capacity, which amounted to an unreasonably restrictive trade practice in terms of Section 6(1) of the Ordinance. The Authority therefore, in exercise of its powers under Section 12(1)(c) ordered the manufacturer to break the cartel, desist from indulging in restrictive trade practices and cartel like behaviour in the future and to immediately reduce the price of cement being sold by it by an amount as calculated by the Authority (which, in the case of D.G. Khan Cement, was Rs.60 per bag).
As noted above, the cement manufacturers, being aggrieved by the orders of the Authority, filed the instant appeals, under Section 20 of the Ordinance, Being appeals as of right, and also matters of first impression, which are of importance and interest in the field of anti monopoly law, the appeals were admitted to regular hearing. The respondent Authority put in appearance and filed the parawise comments in each case (which are the same in all material respects), alongwith supporting documents and material. Again, for convenience, reference will be made to the record of Appeal No 2/2006 i.e. the appeal filed by D.G. Khan Cement. I am informed that since the cement manufacturers have officers in different parts of the country, similar appeals are also pending before the Rawalpindi Bench of this Court, as well as the Sindh and Peshawar High Courts.
The appellants were represented by Mr. Munib Akhtar and Mr. Salman Akram Raja, Advocates, Opening the appellants case, Mr. Munib Akhtar, submitted that the impugned order was without jurisdiction and that the Authority had acted in fundamental misconception of the relevant provisions of the Ordinance and its statutory powers thereunder; he further contended that the impugned order was based on conjecturers and surmises and was speculative in nature. According to him, there had been a complete mis and non-reading of the record. Learned counsel submitted that it was clear from the record that the concern and focus of the Authority was the increase in prices in May, 2003, and nothing else as a result of public outcry. In this connection, he made reference to the opening para of the investigation report of the special enquiry, the opening para and para 2 of the show-cause notice and paras 4 and 5, of the impugned order. According to the learned counsel, the jurisdiction of the Authority was concerned only with price fixation and to ensure that prices were fixed competitively. Its powers did not extend to price control or regulation, which was the domain of an altogether different law. i.e the Price Control and Prevention of Profiteering and Hoarding Act, 1977. The learned counsel contended that the Authority had acted in a manner to control or bring down the prices from what was regarded as too high a level. Thus the Authority clearly acted beyond its jurisdiction and powers.
Elaborating his submissions, Mr. Munib Akhtar submitted that the jurisdiction of the Authority was only with reference to preventing and unreasonably restrictive trade practice, which is defined in Section 2(n). As per definition, the jurisdiction of the Authority, to ensure that there was no prevention or lessening of or harm or danger to competition. Mr. Munib Akhtar further contended that Section 6(1) provided that an unreasonably restrictive trade practice shall be deemed to have been resorted to or continued (as presently relevant) only if there was an agreement to fix the price. Thus the jurisdiction of the Authority was confined only to preventing price fixing agreements. As long as prices were being competitively determined, it was irrelevant for the purposes of the Ordinance and outside the scope of the Authority's powers, whether prices were rising or falling or were high or low. Thus according to the learned counsel, inasmuch as it was obviously concerned only with reducing the cement prices, it regarded as having become too high, the Authority had fundamentally misconceived its powers and stepped beyond the scope of its jurisdiction.
Mr. Munib Akhtar, contended that it was important to note that the Authority accepted that prior to April, 2003, there was no cartel and prices were being determined competitively. With regard to May and June, 2003, the Authority had held that there was a "planned" and "systematic" increase in cement prices, which proved the existence of a "cartel". It was However, according to the learned counsel, accepted by the Authority that the prices did not rise to a single level or by the same amount; all that was alleged was that there had been a parallel price increase, which did establish or prove the cartel. In the context of the cartel, Mr. Munib Akhtar pointed out that the impugned order simply stated that a "good number" of cement manufacturers had formed the cartel to increase the prices without establishing the number or identity of the alleged cartel members. According to him, this was sufficient in itself to vitiate the impugned order since no agreement, as required in terms of Section 6 (1), could at all be spelled out in such circumstances. Mr. Munib Akhtar further contended that the Authority's case was based on mere conjecture and surmises. Elaborating this point, the learned counsel contended that the Authority had merely looked at the rising prices and held that the prices were "planned" and "systematic" and concluded that the cartel or agreement, stood established. however, the "planned" or "systematic" increase was the very thing that the Authority has to establish, since to simply assert that there was a "plan" to increase prices in a "systematic" manner, was simply to assume the very thing that had to be proved, namely the existence of the cartel or agreement. Mr. Munib Akhtar contended that the onus lay squarely on the Authority to establish that there had been a violation of the Ordinance, and it had to establish that all the ingredients of a violation of Section 6 (1) existed and had been made out.
Mr. Munib Akhtar, submitted that the only factor that the Authority had invoked and which it claimed, established the cartel, was the parallel increase in prices in May, 2003. According to the learned counsel, as a matter of law, a parallel increase in the prices in and of itself was not, and could not be regarded as being, sufficient to establish a cartel. Reliance in this regard was placed on the case law developed in the American jurisdiction in the context of the US Sherman Act of 1890, and a number of decisions were cited. Reference was also made to certain decisions from the Indian jurisdiction. It was contended that Section 6 (1) of the Ordinance was similar in nature and therefore, ought to be interpreted and applied in a similar manner. I will examine the submissions made in this regard, the case law referred to and the principles sought to be derived from the same, by the learned counsel in detail later on in the judgment.
On the factual side relating to the price increase, learned counsel contended that the Authority's allegation that the reduction in excise duty of Rs. 12 per bag was not passed on to the consumers, was factually incorrect on the face of the record. According to the learned counsel, prices did fall in the post budget period. In the case of DG Khan cement, learned counsel referred to the table of prices from February, 2003 to June, 2003, as reproduced in the Authority's own parawise comments. According to the learned counsel, the table clearly showed that in June, the price fell from Rs. 215 to Rs. 205 in the immediate post budget period. Mr. Munib Akhtar also contended that the Authority had relied on average monthly prices in the impugned order. It was submitted that averages are not reliable and there could be a lot of variation in the actual statistics and figures. Again referring to the price table in the Authority's own parawise comments, it was contended that throughout the period (February-June, 2003), there was lot of fluctuation in the prices. In March, the prices rose quite sharply and yet, for this period, there is no allegation of a cartel. Even in June, the prices rose in the first few days, but then fell continuously. Thus, according to Mr. Munib Akhtar, an examination of the actual data, as opposed to the average numbers relied on by the Authority, contradicted the Authority's contention that there had been a "planned" or "systematic" "increase" in prices. In this connection, Mr. Munib Akhtar submitted that the price levels reached in May/June, 2003 were infact no different from the price levels that had previously been reached in October, 2002. Thus, in the case of D.G Khan Cement, as per the impugned order, the October 2002 price was Rs. 196 per bag, whereas the June, 2003 price was only Rs.199. The situation was similar in the case of other cement manufacturers as well. Thus according to the learned counsel, all that happened was that prices went into a dip in the post-October 2002 period, fell to very low figures and then rose to the previous levels. In respect of the October price levels, there was no allegation of any cartel/conspiracy, i.e. it was accepted that these prices were reached competitively through market conditions. It could not therefore, according to the learned counsel, be accepted that the May/June, 2003 price movements were a results of a cartel.
With regard to the increase in prices in May, 2003, Mr. Munib Akhtar also submitted that a number of factors were cited by the cement manufacturers to explain the increases, which were listed in para (ix) of the investigation report. A detailed explanation was also given in the reply to the show-cause notices as to how and why the prices had moved in the post October 2002 period, and how, as a result of price leadership, prices rose in May, 2003. Reference was also made in this context to the huge and mounting losses of the cement industry. Yet according to the learned counsel for the appellants, all of these factors/explanations were simply ignored by the Authority. Thus on the basis of all the foregoing contentions, it was submitted that the case against the appellants is one of the complete mis and non-reading of the evidence and material.
As regards the allegation of under utilization of capacity, Mr Munib Akhtar contended that the allegation was only against "some" manufacturers, who allegedly did so but who were never identified or established. It was contended that the Authority was only trying to lend support to a non-existent case by referring to capacity utilization and hence no reliance could be placed on its vague and unsupported surmises and conjectures. It was also submitted that the allegations of capacity utilization being "low" or "very low" in the various impugned orders were completely self contradictory and the allegations were being leveled in a haphazard and random manner, clearly establishing that the allegations were being made mechanically and without proper application of mind.
Coming finally to the operative part of the impugned order, Mr. Munib Akhtar submitted that the Authority's direction to the cement manufacturers to reduce the prices of cement being sold by a specified amount was in the nature of price fixation. It was contended that price fixation was beyond the jurisdiction and remit of the Authority. Learned counsel also submitted that the conclusion of the Authority that the amount of unjustified price increase as determined by it, remained incorporated in the appellant's respective price from May/June 2003 to October, 2005 could not be sustained in law. It was therefore, prayed that the appeals be allowed.
Mr. Salman Akram Raja, supported the contentions advanced by Mr. Munib Akhtar, and also cited certain American and Indian decisions to further explain and elaborate the contention that simply because prices increased in parallel could not in itself establish the existence of a cartel. Learned counsel also submitted that during the course of proceedings, before the Authority, at least one application had been made by the cement manufacturers to produce witnesses and although there was ample powers vested in this regard in the respondent under Section 15 of the Ordinance, it failed to do the needful. It was contended that there had therefore been a material denial of the right of a full and fair hearing before the Authority. Learned counsel also submitted that a great deal of material and evidence had been produced alongwith with the written reply to the show-cause notices which, it was submitted, satisfactorily explained both the increase in prices and the position with regard to the capacity utilization by the cement manufacturers over the relevant period. He referred in detail to the annexures to the written reply. In addition, Mr. Salman Raja also urged a constitutional point that had been strongly contended before the Authority, but had been rejected by the latter in the impugned order. It was submitted by learned counsel that the constitution of the Authority and the proceedings before it were ultra vires, because it was the exercise of judicial powers by an administrative authority contrary to the principles established by the Supreme Court in the case reported as Mehram Ali and Others Vs Federation of Pakistan (PLD 1998 SC 1445). It was contended that judicial power could only; be exercised by and before a judicial forum duly appointed in the manner envisaged by the Supreme Court. It was submitted that the proceedings before the Authority were not in the nature of determining or implementing policy, but rather of a judicial nature, since the Authority was required to gather evidence in respect of the matters being examined by it and then decide the same by applying the relevant applicable legal provisions. The Authority in other words, had to adjudicate upon whether there had been a violation of the relevant provisions of the Ordinance and if it found that the law had been flouted, it also had the power to impose a penalty. It was submitted that the proceedings both as to form as well as substance were judicial in nature and hence such a power could not be exercised by an administrative authority.
Before proceeding further, it will be convenient to dispose off the constitutional point raised by Mr. Salman Raja. During the course of his submissions, it was queried whether such a point, i.e. challenge to the vires of the Ordinance, could at all be raised in an appeal under the same or whether separate proceedings in the nature of a writ petition ought to be filed. Mr. Salman Raja, was prepared to make submission on the query. It was however, pointed out on behalf of the Authority, and accepted by Mr. Raja that one of the appellants (DG Khan Cement) had earlier filed a writ petition (being W.P No 2521/2005), in this Court, in which essentially the same points had been canvassed. This petition was dismissed in limine by an order dated 13.9.2005. Mr. Salman Raja submitted that an appeal had been filed in the Honourable Supreme Court of Pakistan, against the dismissal of the writ petition. Since this Court, has already dealt with the issue and the matter is now pending before the apex Court, it is in the fitness of things that nothing further be said on the issue in these appeals. Mr. Salamn Raja however, wished to reserve his right to take up the issue should there be further proceedings emanating from the present appeals, and his right to do so is reserved accordingly.
The respondent/Authority was represented by Dr. Daneshwar Malik, the learned Deputy Attorney General. He submitted that while the American and Indian decisions cited on behalf of the appellants were perhaps of some academic interest and value, the matter had to be decided within the four corners of the Ordinance itself and the provisions therein contained. The learned DAG referred to the preamble of the Ordinance. He also referred in this connection to In re: Islamization of Laws PLD 1985 FSC 193 where , at page 219, the Federal Shariat Court cosnidered the provisions of the Ordiannce on the touchstone of the Injunctions of Islam. The Federal Shariat Court concluded that the Ordinance advanced the purposes and objectives of Shariah. The learned DAG referred to the various provisions of the Ordinance, including in particular Sections 3 and 6. He emphasized that the Ordinance required an elaborate procedure to be followed before an order under Section 12 could be made and in the present case, all the requirements and formalities had been duly complied with. There had thus been no denial of a proper opportunity of hearing or any other defect in the proceedings. Reference was made to Section 2 and the various definitions therein contained, in particular the definition of the term agreement. It was submitted that this term was defined in broad terms and thus any understanding or arrangement would be regarded as an agreement under the Ordinance. In this context, the learned DAG also referred to certain law dictionaries with regard to the definitions of the various terms used in the Ordinance. It was next submitted that Section 3 laid down the general rule that an unreasonably restrictive trade practice was prohibited. With reference to Section 6, it was submitted that the appellants had only referred to sub-section (1) thereof, whereas the section had to be read in totality. In particular, reference had to be made also to sub-section (2) thereof.
Elaborating his submissions, the learned DAG contended that in terms of sub-section (1) of Section 6, it was not only merely a price increase, but other factors also which could result in an unreasonably restrictive trade practice being deemed to exist. He submitted that sub-section (1) raised a rebuttal presumption with regard to the various situations provided for in its different clauses and once such a presumption was raised, the onus lay on the other side to show whether their case came within the ambit of sub-section (2). It was only if this onus was discharged that the agreement could be regarded as not being deemed to be an unreasonably restrictive trade practice. It was contended that all that the Authority had to do was to make out a prima faice case, and if it did so, then the matter came within the scope of sub-section (1) raising the rebuttal presumption referred to earlier. The learned DAG submitted that the Authority had been able to make out a case in terms of sub-section (1) and there were a number of factors on the basis of which an agreement under sub-section (1) could be and had been, properly inferred. It was therefore, for the appellants to satisfy the authority and the Court in the present appeals, that their case came within the provisions of sub-section (2). This it was contended that they had failed to do, and hence the Authority had rightly concluded that there was a cartel, which had raised the prices in violation of the law.
As regards the factual, aspect of the matter, it was submitted by the learned DAG that there were different factors, which entitled the Authority to infer that there was a violation of sub-section (1) and on the basis of which, it was entitled to infer that an agreement or cartel existed. Firstly, there had been a great public outcry at the increase in prices in May, 2003 especially in the national press. Secondly, the Authority had received a number of complaints from different persons with regard to the increase in the price and also from other concerned quarters such as builders, etc. Thirdly, there was the circumstance of the fall in capacity utilization. It was submitted that the increase in prices was an admitted position. The learned DAG submitted that any or all of these factors were such as were sufficient to establish the existence of the cartel. These matters could not be ignored by the Authority and it had to act to ractify the situation and alleviate the plight of the people. It did so, and the onus then shifted on the cement manufacturers to justify their actions under sub-section (2) of Section 6. They failed to do so, and the Authority was justified in making the orders against them. It was accordingly prayed that the appeals be dismissed.
In reply to the submissions made by the learned DAG, the learned counsel for the appellants submitted that the interpretation being given to Section 6 was incorrect. In particular, it was submitted that sub-section (2) was a concept well known to this branch of the law, namely that of "gateways". I will examine this aspect of the submissions in detail later on in this judgment. In addition, learned counsel also took issue with the other submissions made by the learned DAG.
It will be convenient at this stage to gather at one place the various provisins of Ordinance, which were referred to by learned counsel for the parties and which are necessary to consider in order to properly understand and determine the issue that have been raised. The following provisions of the Ordinance, insofar as is presently relevant, need to be examined.
Definitions:-(1). In this Ordinance, unless there is anything repugnant in the subject or context:--
(a) "agreement" includes any arrangement or understanding whether or not in writing and whether or not it is or is intended to be legally enforceable;
(k) "trade" means any business, industry, profession or occupation relating to the production, supply or distribution of goods, or the control of production, supply or distribution of goods, or to the provision or control of any service;
(l) "trade practice" means any act or practice relating to the carrying on of any trade or business;
(n) "unreasonably restrictive trade practice" means a trade practice which has or may have the effect of unreasonably preventing, restraining or otherwise lessening competition in any manner;
Under concentration of economic power etc, prohibited:- There shall be no undue concentration of economic power, unreasonable monopoly power or unreasonably restrictive trade practices.
Unreasonably restrictive trade practices:--
(1) Unreasonably restrictive trade practices shall be deemed to have been resorted to or continued if there is any agreement:-
(a) between actual or potential competitors for the purpose or having the effect of--
(i) fixing the purchase or selling prices or imposing any other restrictive trading conditions with regard to the sale or distribution of any goods or the provision of any service;
(ii) dividing or sharing of markets for any goods or services;
(iii) limiting the quantity or the means of production, distribution or sale with regard to any goods or the manner or means of providing any service;---
(2) No such agreement as is referred to in sub-section (1) shall be deemed to constitute an unreasonably restrictive trade practice if it is shown--
(a) that it contributes substantially to the efficiency of the production or distribution of goods or of the provision of services or to the promotion of technical progress or export of goods;
(b) that such efficiency or promotion could not reasonable have been achieved by means less restrictive of competition; and
(c) that the benefits from such efficiency or promotion clearly outweigh the adverse effect of the absence or lessening of competition.
(2) Before making an order under sub-section (1), the Authority shall--
(a) give notice of its intention to make such order stating the reasons therefore, to such persons or undertakings as may appear to it to be concerned in the contravention to show-cause on or before a date specified therein as to why such order shall not be made; and
(b) give the persons or undertakings and opportunity of being heard and of placing before it facts and material in support of their contention.
(3). An order under sub-section (1) shall have effect notwithstanding anything contained in any other law for the time being in force or in any contract or memorandum or articles of association.
(c) in the case of unreasonably restrictive trade practices--
(i) require the person or undertaking concerned to discontinue or not to repeat any restrictive trade practice and to terminate or modify any agreement relating thereto in such manner as may be specified in the order;
(ii) require the person or undertaking concerned to take such action specified in the order, as may be necessary to restore competition in the production, distribution or sale of any goods or provision of any service.
Explanation:--In the case of unreasonably restrictive trade practices, where any party to any such practices does not carry on business in Pakistan, the order of the Authority shall be with respect to that part of such practices as it carried on in Pakistani.
(2). Where the Authority receives from not less than twenty five persons a complaint in writing of such facts as constitute a contravention of the provisions of Section 3, it shall, unless it is of opinion that the application is frivolous or vexatious or based on insufficient facts, conduct a special enquiry into the matter to which the complaint relates.
(3) If upon the conclusion of a special inquiry under sub-section (1) or sub-section (2), the Authority is of opinion that the findings are such that it is necessary in the public interest so to do, it shall initiate proceedings under Section 11.
(a) that the order is contrary to law or to some usage having the force of law;
(b) that the order has failed to determine some material issue of law or usage having the force of law;
(c) that there has been a substantial error or defect in following the procedure provided in this Ordinance, which may possibly have produced error or defect in the order upon the merits.
The present appeals have been filed under Section 20 of the Ordinance. An examination of this section, indicates that it is based on, and indeed is identical to Section 100 CPC, which provides for second appeals, against decrees of Civil Courts. As is well known a second appeal under Section 100 lies only on questions of law. The scope and extent of scope of Section 100 and the sort of questions and issues which are regarded as questions of law for purposes of that Section are well settled by numerous decisions of the Supreme Court and the High Courts. In my view, it is clear from the close identity between Section 20 of the Ordinance and Section 100 CPC that an appeal against an order of the Authority also lies only one questions of law. Furthermore, the sort of questions and issues which should be regarded as questions of law under Section 20 of the Ordinance are essentially the same on which a second appeal can be taken under Section 100 CPC. The principles established for the proper application and interpretation of Section 100 can therefore, be adopted and applied for purposes of Section 20 of the Ordinance as well.
As noted by the learned DAG, Section 3 is one of the most important provisions of the Ordinance. It prohibits and renders unlawful, any undue concentration of economic power, or unreasonable monopoly power, or unreasonably restrictive trade practices. Each of these is a distinct category of undesirable situation and proscribed circumstances and each is separately defined and dealt with in the Ordinance. Since the present appeals are confined to unreasonably restrictive trade practices, nothing more need be said in this judgment with regard to the other two categories prohibited by Section 3. Section 10 of the Ordinance, lays down the functions of the Authority "to make such orders and to do all such things as are necessary for carrying out the purposes of this Ordinance". Thus the Authority has a general statutory duty to ensure that there is no violation of Section 3 by any person or persons, and it has been empowered accordingly.
An unreasonably restrictive trade practice is defined in Section 2 (m), but in order to properly appreciate this definition, it is necessary also to
examine the concepts of trade and trade practice, both of which are also defined terms. Trade is defined in broad terms, and it is not in dispute that the cement industry is a trade within the meaning of Section 2 (k). Section 2 (1) defines a trade practice. Though exhaustive, the definition brings within its ambit both an act (i.e a single or isolated instance or event), and also a practice (i.e. a trade custom or usage or acts or events or series of acts or events undertaken with some degree of regularity, continuity or repetition) in relation to the carrying on of a trade or business. If the definition (Section 2 (n) of an unreasonably restrictive trade practice is now examined, it will be found to comprise of two main components: (a) there must be a trade practice, and (b) such trade practice must or must have the effect of unreasonably preventing, restraining or otherwise lessening competition in any manner. Obviously, both components must exist for a finding of an unreasonably restrictive trade practice to be recorded. looking at the second component of the definition, it is clear that this itself has two requirements: (i) the trade practice must prevent, restrain or lessen competition, and (ii) it must have this effect in any unreasonable manner or to an unreasonable degree. The term competition is not as such defined in the Ordinance and it is not necessary for me to exhaustively examine this concept in context of monopoly law (or anti trust law as it is known as in American jurisprudence). It is sufficient to note for present purposes that competition means and requires the free interplay between the suppliers and consumers of goods in a market environment. The actions and decisions of the buyers and sellers (such as the price demanded for the commodity by the suppliers or accepted by the consumers, the quantity to be supplied or consumed, etc) must be set purely by market forces and conditions. The market itself may of course, be subject to regulation by the state. For example, a retail market where foodstuff and other perishable items are sold may be subject to local regulations as to timings, hygiene requirements, specifications as to weights and measures to be used, etc. The requirement of competition under the Ordinance focuses on the actions and decisions of those who act in, or in relation to , the market as the suppliers and consumers of goods. These actions and decisions must be solely controlled by the market forces and conditions as prevailing from time to time. It is also important to keep in mind in this context that the requirement as to competition is not limited to the immediate or actual market participants. To revert to the example just given, the suppliers would not just the shopkeepers in the retail trade, but also their wholesale suppliers and the persons from whom the wholesellers acquire the goods, etc.
Ordinarily, if the Authority is of the view that there has been or is likely to be a breach of Section 3, it must establish that there exists, or will exist, an unreasonably restrictive trade practice. Out differently, the Authority must establish that all of the various ingredients of an unreasonably restrictive trade practice as discussed above have been made out. Section 6 (1) however, contains a deeming provision with regard to unreasonably restrictive trade practice. Once it is shown that a situation as contemplated by that sub-section has arisen, the law deems that an unreasonably restrictive trade practice exist, i.e. has been resorted to or is being continued. The existence of a sub-section (1) situation is in and of itself a contravention and violation of Section 3 by virtue of the deeming provision. The principles applicable to the interpretation of deeming provisions are well known and reference may be made to Mehreen Zaib un Nisa vs Land Commissioner Multan and Others (PLD 1975 SC 397 at 433-34). Once a deeming provision is attracted, the Court must not let its mind boggle at the consequences that may flow from or be ancillary to such deeming and is required to recognize and give effect to the same. however, the Court is entitled to ascertain the purpose and scope of the deeming provision, i.e as to how and between whom is the deeming provisions attractive or made applicable. Finally for the deeming provisions to be applicable, all the conditions laid down in the relevant provisions must be fulfilled before it can be regarded as having taken effect.
Since Section 6 is central to the present appeals, it is necessary to examine its provisions in some detail. Sub Section (1) contains three clauses, the first two of which also contain certain sub clauses. Although, the present appeals are concerned solely with sub clauses (i) and (ii) of clauses (a), the principles that I am about to discuss apply; generally to all the clauses of sub-section (l). The first requirement for the deeming provision to become applicable is that there must be an agreement. This is the most basic requirement, and without there being an agreement, Section 6 (1) can have no application at all. In the first instance, therefore, the agreement must be established. Indeed, if it is asserted that sub-section (l) applies to any situation, what is being asserted is nothing more than that there exists an agreement of the sort referred to in that sub section. The requirement as to the existence of any agreement, is therefore, central to a proper appreciation and correct application of Section 6.
In my view, three primary questions arise in relation to an agreement under Section 6 (l): (a) what is the nature of the agreement; (b) among whom must the agreement subsist or exist and (c) how is the agreement to be established?. As to the first question, the answer is contained in the definition given in Section 2 (a) of the Ordinance. As is immediately apparent, the law has defined the expression in very broad terms. The definition is inclusive and not exhaustive. It includes any arrangement or understanding. It does not need to be in writing and it does not even have to, or be intended to, be legally enforceable. Thus the meaning of agreement in the Ordinance goes far beyond (although it certainly includes) that which is contained in the Contract Act, 1872. While there must necessarily be a meeting of minds for there to be an agreement at all, it can be of the most informal or casual nature for purposes of Section 2 (a).
As to the second question noted above i.e. among whom must the agreement subsist or exist, the answer is contained in sub-section (1) itself. Clause (a) relates to a certain group of persons, namely "actual or potential competitors". Clauses (b) and (c) apply to certain types of groups or persons in specified situations or relationship. Clause (b) applies to a "a supplier and a dealer of goods" where the agreement is being entered into for purposes of fixing minimum resale prices. Clause (c) applied to agreements between "suppliers or buyers" where the agreement is being subjected to the additional conditions of the sort specified in that clause.
The third question is as to how is the agreement to be established, and as will become clear shortly, it is the most contentious issue for purposes of the present appeals. Obviously, such an agreement can be established by direct evidence. However, it is in the very nature of things that agreements of the sort covered by Section 6 (1) are born in darkness and remain shrouded in secrecy. Direct evidence of such agreements would invariably be rare. In my view, given the definition of agreement in Section 2 (a) and the purpose and scope of the Ordinance, especially the prohibition of unreasonable restrictive trade practice, an agreement in terms of Section 6 (1) can be established indirectly, i.e through circumstantial evidence. More particularly, it can be inferred from the facts and circumstances of the particular situation that it is being examined. I may note that this point was not seriously disputed by the learned counsel for the appellants. There is needless to say no direct evidence of any agreement in the present case, and it was common ground between the parties that if at all any such agreement existed (which was of course, asserted by the Authority and denied by the appellants). It could only be inferred from circumstantial evidence. The crucial question therefore, is as to what were, in the facts and circumstances of the present case, the permissible inferences that could be drawn form the record, and did those inferences establish, in law and infact and agreement of the nature covered by sub-section (l). This is the exercise that would invariably have to be carried out, whenever there is an assertion that there exists an agreement of the nature covered by Section 6 (l).
The policy reasons behind deeming agreements of the nature covered by sub-section (l) of Section 6 to be unreasonably restrictive trade practices are clear. These agreements invariably have such a deleterious and harmful effect on competition that the mere existence of such an agreement is sufficient to condemn it. The most obvious example, which infact is the very situation with which the present appeals are concerned, is a price fixing agreement between actual or potential competitors. Such an agreement, if found to exist, is the very anti thesis of competition, and indeed its very purpose is to negate competition, and indeed its very purpose is to negate competition. By deeming such agreements to be unreasonably restrictive trade practices, the law obviates the need for an enquiry or finding into whether the particular agreement in question "has or may have the effect of unreasonably preventing, restraining or otherwise lessening competition in any manner". Those who enter into such agreements do so at their own peril: the law will deem that they have acted in an unlawful manner. The law however, also recognizes that while this broad approach of condemning such agreements out of hand is generally desirable, there may yet exist some agreements, which require a different response. It is in this connection that, according to learned counsel for the appellants, which require a different response. It is in this connection that, according to learned counsel for the appellants, the provisions of sub-section (2) of Section 6 have been enacted, and it is this point, which now needs consideration.
On a bare reading, sub-section (2) appears to be essentially in the nature of an exception to sub-section (1). It provides that if the clauses specified therein are fulfilled in relation to an agreement to which sub-section (1) applies, then that agreement shall not be deemed to be an unreasonably restrictive trade practice. It is important to note that the three clauses of sub-section (2) are cumulative, i.e. all must be shown to exist before this sub-section can take effect. The learned DAG submitted the the proper interpretation of the two sub sections was that all that was required was for the Authority to be satisfied that there was a prima facie case made out in terms of sub-section (l). Such satisfaction raised a rebuttable presumption that the deeming provisions of sub-section (l) had become applicable. It was then for the other side to rebut the presumption by establishing that the provisions of sub-section (2) were applicable. In my view, this is not a correct interpretation of the two sub sections. It is clear form the opening words of sub-section (2) that it applies only to an "agreement as is referred to in sub-section (l)". If no such agreement exists, then sub-section (2) can obviously have no application at all. Sub Section (1) itself does not state that an agreement must exist to the Authority's satisfaction or use some such subjective language. It simply deems an unreasonably restrictive trade practice to have been resorted to or continued, if an agreement of the nature covered by the sub-section (l) is found to exist. The test must therefore be objective, i.e the agreement must be found to exist on an objective assessment of all the facts and circumstances. It no agreement can be found, either as a matter of law or on the facts on the basis of such an objective assessment, the matter ends and there is no need to take recourse to sub-section (2).
The proper interpretation of Section 6, therefore, is that it contains a two stages process. In the first instance, an agreement be established in terms of sub-section (1). Such an agreement may be admitted or found (objectively) to exist in the facts and circumstances of the particular situation being examined. It an agreement is so found to exist, the deeming provisions of sub-section (l) become applicable. If this stage is crossed, only then would the matter move to the second stage, namely that of determining whether the conditions of sub-section (2) are made out. If the conditions of the latter sub-section (2) are found to be attractive (i.e all of its clauses held to apply), then the deeming provisions of sub-section (1) would be negated.
It appears that the provisions similar to sub-section (2) of Section 6 are well established in this branch of the law, and were known as `gateways'. These provisions reflect the policy of the law noted above, namely that while agreements of the sort hit by the deeming provisions of sub-section (1) were generally to be condemned as being unreasonably restrictive trade practices, in certain situations, such agreements had to be allowed to stand. In effect, the disadvantages or harmful effects of such an agreement are outweighed by the benefits obtained by letting it stand. One example will suffice to illustrate the point. Suppose the Pakistani exporters of a particular commodity enter into a price fixing agreement e.g agree not to sell their product abroad at less than the price agreed upon. Obviously, such an agreement is precisely that sort of arrangement to which sub-section (1) (a) (i) applies, namely an agreement between actual or potential competitors to fix the selling price of goods, such an agreement would therefore, ordinarily be deemed to be an unreasonably restrictive trade practice and stand condemned accordingly. However, recourse may be possible in such a situation to sub-section (2). In the example, being considered, the clauses would apply if following conditions are found to exist: (a) the agreement promotes the export of goods form Pakistan; (b) such promotion could not have ben achieved by means less restrictive of competition i.e. without the agreement; and (c) the benefits of such an agreement (i.e the promotion of exports) clearly outweigh the adverse impact on competition (i.e that the selling prices being charged by the exporters are not being set by market conditions). If these conditions are fulfilled; then the agreement will not be deemed to be an unreasonably restrictive trade practice i.e will be allowed to stand and continue.
With reference to the concept of "gateway", learned counsel for the appellants relied on a decision of the Supreme Court of India reported as Mahindra and Mahindra Ltd. Vs Union of India (AIR 1979 SC 798). The Supreme Court there examined the various provisions of the Indian Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Indian Act). The authority under the Indian Act is known as the Monopolies and Restrictive Trade Practice Commission (hereinafter after referred to as the Indian Commission). Section 37 of the Indian Act enables the Indian Commission to inquire into any restrictive trade practice and if the Indian Commission is of the opinion that such practice is prejudicial to the public interest, then the Indian Commission is empowered to pass orders similar in nature to those that can be made by the Authority under Section 12 of the Ordinance. With regard to Section 38 of the Indian Act, the Supreme Court of India observed at pg. 807.
"Section 38, sub-sec. (1) enacts that for the purposes of any proceedings before the Indian Commission under S.37, a restrictive trade practice shall be deemed to be prejudicial to the public interest unless the Indian Commission is satisfied of any one or more of the circumstances set out in that sub-section and is further satisfied after balancing the competing considerations, that the restriction is not unreasonable. These circumstances specified in sub-section (1) of S. 38 render a trade practice permissible even though it is restrictive and provide what have been picturesquely described in English law as "gateways" out of the prohibition of restrictive trade practices.
"There is also another infirmity in validating the Order dated 14th May, 1976. We have already pointed out and that is clear from the decision of the Court in the
Telco case that in an inquiry under S.37 the Indian Commission has first to be satisfied that the trade practice complained of in the application is a restrictive trade practice within the meaning of the expression as defined in
Sec. 2 (o) and it si only after the Indian Commission is so satisfied, that it can proceed to consider whether any of the gateways provided in S.38 (l) exists so that the trade practice, through found restrictive, is deemed not to be prejudicial to the public interest and if no such "gateways' are established, then only it can proceed to make an order directing that the trade practice complained of shall be discontinued or shall not be repeated. There are thus two conditions precedent, which must be satisfied before a cease and desist order can be made by the Commission in regard to any trade practice complained of before it. One is that the Commission must find that the trade practice complained of is a restrictive trade practice and the other is that where such finding is reached, the Indian Commission must further be satisfied that none of the gateways pleaded in answer to the complaint exists. Here in the present case the appellant did not appear at the hearing of the inquiry and no
gateways' were pleaded by it in the manner provided in the Regulations and hence the question of the Commission arriving at a satisfaction in regard to thegateways' did not arise. But the Indian Commission was certainly required to be satisfied that the trade practices complained of any the Registrar were restrictive trade practice before it could validly make a cease and desist order." (emphasis added).
In my view, under the Ordinance, as in the
Indian Act, the onus lies on the
Authority to establish that an agreement of the nature specified in Section 6 (1) exists in order to attract the deeming provisions thereof. This assessment must be made on an objective basis since the Ordinance, unlike the Indian Act, does not use subjective language that the Authority must be so satisfied (or any such similar words).
This position is also clear from general principles, since it is the Authority that is asserting the positive (i.e that an agreement exists), whereas the persons alleged to have entered into such an agreement are asserting the negative (that such an agreement does not exist). Clearly the burden of establishing that an agreement exists, must lie on the party making the positive assertion. Furthermore, the agreement, if it exists, would be an unlawful act, being violative of Section 3, and the offending persons would be liable to penalties under Section 19 of the Ordinance. The burden of discharging the onus of sub-Section (1) of Section 6 must therefore lie squarely on the Authority. Once this burden is discharged, and an agreement is found to exist, then if at all a sub-Section (2) defence or justification is pleaded, the onus lies on those who entered into the agreement to establish that the ingredients of the gateway' have been made out. The position under the Ordinance is therefore unlike that in the Indian Act, where the onus lies on the Indian Commission in both instances. Under our law, the onus shifts from one side to the other, starting in the first instance (i.E sub-section (1) by being on the Authority and then moving onto the opposite parties, if agateway' (i.e sub-section (2) defence is pleaded.
In the present case, the appellants have not pleaded any sub-section (2) defence. It is therefore, not their case that the provisions of the "gateway" are attracted. Rather, the appellants contend, as noted above, that no agreement at all as specified in sub-section (1) is made out and hence thee is nothing that can be deemed to be an unreasonably restrictive trade practice. The matter must therefore, be examined and determined with reference to Section 6 (1) and the onus of establishing an agreement in terms thereof lies on the Authority.
According to learned counsel for the appellants, the key finding in the impugned order is contained in the following passage which appears in para 6 thereof:-
"There was ostensibly no cartel till April 2003, but thereafter w.e.f May, 2003 by mutual understanding between good numbers of cement manufacturers to unjustifiably increase the prices, the planned increase took place. It is not essential that price should rise by exactly same amount on same day to prove existence of a cartel. A substantial price increase in systematic manner in a given period of time by a good number of units in a particular filed does prove cartel or unity for the purpose. If reverser is held to the case, the purpose of anti cartels laws can very conveniently be defeated by cartel participants by deliberately keeping some margins/differences in the increase or prices and periods thereof. This can't be permitted. All laws are to be interpreted in a manner so as to help furtherance of their objectives".
Learned counsel for the appellants submitted that the only material on which the alleged cartel was abased was the increase in prices and nothing more. There was nothing to show that the price increase was systematic or planned. Learned counsel submitted that this was infact the very thing, which had to be established, since a systematic or planned increase could come about only if there was an agreement, which was denied. Furthermore, neither the number nor the identity of the alleged conspirators was established. All that the Authority alleged was that a "good number (and not all) of cement manufacturers had colluded. There was no specific allegation against any cement manufacturers that it had colluded with any other. It was submitted that no agreement could at all be made on such a basis.
The learned DAG on the other hand, contended that the Authority was justified and entitled in coming to the conclusion that there existed a cartel or agreement on the basis of the price increases. The position of the Authority, therefore, was that the agreement (or cartel as it is referred to in the impugned order) could be established indirectly and inferred from the facts and circumstances of the case, the most important of which was that in May, 2003 there was admittedly a parallel increase in prices charged by the cement manufacturers.
In essence, the point in issue between the parties can be stated as follows: the Authority contends, and the appellants deny, that a parallel increase in prices over a given period is in and of itself sufficient material from which an agreement or cartel can legitimately be indirectly inferred. It is pertinent to note that, as is clear from the passage from the impugned order reproduced above, the Authority does not contend that the prices rose by the same amount or to the same level. The prices of the various cement manufacturers were at different levels and remained so, rising by different amounts and on different dates. Thus, there was a parallel increase in prices, i.e there was a general upward movement over the same period of time. The question is whether it was permissible both as a matter of law as well as infact for the Authority to infer from the parallel price increase that there existed an agreement or cartel to which Section 6 (1) applied.
In order to support their case that as a matter of law no agreement could at all be inferred, learned counsel for the appellants rely heavily on American case law as developed in the context of the US Sherman Act of 1890. Section 1 of this Act, in material part, states as follows: "Every contract, combination in the form of trust or otherwise; or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal". According to the learned counsel; the US Supreme Court developed two rules to test agreements on the touchstone of the Sherman Act, one known as the per se rule and the other as the rule of reason. Agreements that came within the ambit of the per se rule were ipso facto illegal, i.e the mere existence of such an agreement condemned it as being violative of the Sherman Act. Agreements that fell within the rule of reasons were examined to determine whether, in the facts and circumstances of the particular case, it could be reasonably inferred that the agreement in question was in restraint of trade. If so, then (but only then) the agreement was unlawful.
Under American case law, price fixing agreements fall squarely within the ambit of the per se rule. Reference in this contest was made to a decision of the US Supreme Court reported as Kiefer-Stewart Co v Joseph E. Seagram & Sons, Inc. & others (1951) 340 US 211), where at pg 213, the Supreme Court observed:
"We reaffirm what we said in United States. vs Socony-Vacuum Oil Co. 310 US 150, 223: "Under the Sherman Act, a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se".
In my judgment, the deeming provisions of Section 6 (1) of the Ordinance correspond to the per se rule developed by the American Courts, i.e there are certain categories of agreements the very existence of which violative of law, being Section 3 in the case of the Ordinance, and Section l in the case of the Sherman Act. The price fixing agreements condemned out of hand under Section 6 (1) (a) (i) under the deeming provisions of the Ordinance correspond closely to the price fixing agreements declared to be per se illegal under the Sherman Act. It is important to keep in mind that any price fixing is unlawful both under the Ordinance and in terms of the per se rule. It is entirely irrelevant whether the prices are rising, falling, remaining steady, high, low or at any level in between. If they are being fixed (and the amount by which the fixation takes place is likewise irrelevant) in any manner by agreement between actual or potential competitors, they are unlawful. It follows that in my view, and notwithstanding the submissions in this regard made by the learned DAG American case law can be usefully examined to determine the crucial question at hand, namely whether a parallel increase in prices is in and of itself sufficient to establish an agreement that is violative of law. Before proceeding further, it may be noted that in American jurisprudence, price fixing agreements are divided into different types, such as horizontal price fixing, vertical price fixing, predatory pricing etc. Horizontal price fixing is a price fixing agreement or cartel between actual or potential competitors. Vertical price fixing in a price fixing agreement between producers and wholesalers or distributors, or between producers and retailers, or between wholesalers or distributors and retailers. Predatory pricing is a price fixing agreement between competitors designed to eliminate other competitors from the market. As is obvious, the sort of agreement or cartel with which the present appeals are concerned would be regarded as horizontal price fixing.
The first case that needs to be considered in United State v New York Coffee and Sugar Exchange and others (1924) 263 US 611. In that case, sugar futures were traded on the defendant exchange and the prices so established determined the prices of sugar in the open market. It was alleged that there was, over the relevant period, a violent rise in the prices on the exchange without any economic justification or explanation whatsoever. As a result, the prices of sugar in the open market also rose sharply. The US Government contended that the exchange and its members had colluded (i.e entered into a price fixing arrangement) to drive up prices on the exchange (and thus in the open market) in violation of the Sherman Act. This contention was repelled by the US Supreme Court, and it was held as follows at page 620:--
"There is not the slightest evidence adduced to show that the two corporate defendants, or any of their officers or members, entered into a combination or conspiracy to raise the prices of sugar. The circumstances upon which the government placed its case where a violent rise in the price of sugar without any economic justification or explanation, lasting two months or more... The defendants suggest that this was due to a popular misconstruction of the regular monthly report of the Department of Commerce...Whether these circumstances were sufficient to explain in full the violent rise in the price of sugar, we need not discuss. The government case fails because there is no evidence to establish that the defendants produced, or attempted to produce, the disturbance of the market".
Part of the Authority's case, as made out in the impugned order is that there was no valid justification for the price increases of May, 2003, and that in fact the overall cost of production prior to that date had been falling. Learned counsel for the appellants contend on the basis of the foregoing decision that even if no justification is forthcoming, a price increase in itself cannot establish a cartel or conspiracy in terms of Section 6 of the Ordinance.
The next case to be considered. Theatre Enterprises, Inc. V. Paramount Film Distributing Corporation and others (1954) 346 US 537 is one of the leading decisions of the US Supreme Court in this area of antitrust law. Learned counsel for the appellants contend that the Supreme Court established the basic principle as follows (at pp.540-541):--
"The crucial question is whether respondents' conduct towards petitioner stemmed from independent decision or from an agreement, tacit or express. To be sure, business behaviour is admissible circumstantial evidence from which the fact finder may infer agreement...But this Court has never held that proof of parallel business behaviour conclusively establishes agreement or, phrased differently, that such behaviour itself constitutes a Sherman Act offense. Circumstantial evidence of consciously parallel behaviour may have made heavy inroads into the traditional judicial attitude towards conspiracy; but "conscious parallelism" has not yet read conspiracy out of the Sherman Act entirely".
The US Supreme Court thus established a broad principle of "conscious parallelism" i.e, of any business behaviour of actual or potential competitors that occurs in parallel. A parallel increase in prices is but one example of such "conscious parallelism". It appears that the US Supreme Court was of the view that although an agreement violative of the Sherman Act could certainly be indirectly inferred from circumstantial evidence, parallel behaviour in and of itself was insufficient to conclude that a violation of the law had occurred. It is interesting to note that respondents before the Supreme Court had apparently be found guilty of illegal conduct violative of the Sherman Act in any earlier case and the previous conduct of the respondent was sought to be relied on by the appellant. However, the Supreme Court held that such previous conduct could not be adduced in evidence to establish a violation of the law in the case before the Court.
The next case is a 1986 decision of the US Supreme Court reported as Matsushita Electric Industrial Co. Ltd. And others V Zenith Radio Corporation and others 475 US 574. This was a case of predatory pricing. The grievance was that Japanese television manufacturers had entered into a price fixing agreement to ensure that prices in the US market were so low that American producers of televisions were driven out of the market. This was therefore, a case of price parallelism, but one where prices were being driven down, rather than up. The Court observed at pg 588:--
"...antitrust law limits the range of permissible inferences from ambiguous evidence in a & 1 case. Thus in Monsanto Co. vs. Spray-Rite Service Corp. 465 US 752...we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy...To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of & 1 must present evidence "that tends to exclude the possibility" that the alleged conspirators acted independently. 465 US at 764...Respondents in this case, in other words, must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed respondents".
The Court also observed at pg. 593 that "In Mosanto, we emphasized that Courts should not permit fact-finders to infer conspiracies when such inferences are implausible, because the effect of such practices is often to deter procompetitive conduct". The Court hald that the evidence produced was insufficient to make out any case for collusion.
"Tacit collusion, sometimes called oligopolistic price coordination or conscious parallelism, describes the process, not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a profit maximizing, supra competitive levels by recognizing their shared economic interests and their interdependence with respect to price and output decisions".
The Supreme Court held that evidence presented was insufficient, as a matter of law, to sustain a claim of collusion. Learned counsel for the appellants also relied on certain decisions of the US Courts of Appeals. One case cited was a 2003 decision of the 11th Circuit Court of Appeals reported as Williamson Oil Company Inc. and other v Philip Morris USA and others. This was a case of horizontal price fixing in which cigarette manufacturers were accused of having colluded to fix cigarette prices at unnaturally high levels. The Court of Appeals observed that there was basic distinction between "collusive price fixing, i.e "meeting of the minds" to collusively control prices, which is prohibited under the Sherman and Clayton Acts, and "conscious parallelism" which is not". After a detailed analysis, the Court held that as a matter of law, three conditions had to be fulfilled to indirectly or inferentially establish a price fixing agreement. Firstly, a pattern of parallel behaviour had to be established. Secondly, in addition to the parallel behaviour, one or more "plus factors" had to be shown to exist, which factors must tend to exclude the possibility that the alleged conspirators acted independently. The existence of such a plus factor i.e factor in addition to the parallel business behaviour, generated an inference of illegal price fixing. Thirdly, if the first two conditions were fulfilled, the alleged conspirators could "rebut the inference of collusion by presenting evidence establishing that no reasonable factfinder could conclude that they entitled into a price fixing conspiracy". The Court of appeal concluded that the evidence presented in the case before it was insufficient to establish a price fixing agreement.
"Because the evidence of conscious parallelism is circumstantial in nature, Courts are concerned that they do not punish unilateral, independent conduct of competitors...they therefore, require that evidence of a defendant's parallel pricing be supplemented with "plus factors"...The simple term "plus factors" refers to "additional facts or factors require to be proved as a prerequisite to finding that parallel action amounts to a conspiracy...They are necessary conditions for the conspiracy inference...They show that the allegedly wrongful conduct of the defense was conscious and not the result of independent business decisions of the competitors. The plus factors may include, and often do, evidence demonstrating that the defendants: (1) acted contrary to their economic interests, and (2) were motivated to enter into a price fixing conspiracy".
"...similarity in the sale of standardized products does not alone make out a case of collusive price fixing, the reason being that competition will ordinarily cause one producer to charge about the same price charged by any other".
Learned counsel submitted that the product in question in the present appeals, i.e cement, was also a standardized product and therefore, the parallel price movement of cement could not in and of itself sustain a charge of collusion or the formation of an unlawful cartel.
The reliance was also placed on a decision of the US Court of Appeals, for the 10th Circuit reported as Cayman Exploration Corporation v United Gas Pipe Line Company (1989) 873 F.2d 1357. In this case also, there was an allegation of horizontal price fixing. With regard to this allegation, the Court of Appeals observed at pg. 1361:--
"Cayman did not identify the alleged conspirators, when or how they functioned, or the nature and extent of United's participation in the alleged conspiracy. Moreover, Cayman failed to allege any facts which would support an inference that the alleged actions by gas transmission companies would be contrary to their economic interest absent an agreement we hold that the district Court properly concluded that Cayman's amended complaint did not state a claim of horizontal price-fixing".
In my view, the following principles are deducible from the foregoing decisions of the US Supreme Court and various Courts of Appeals:--
(1) An agreement violative of the Sherman Act can be established either by direct evidence or can be inferred indirectly from the facts and circumstances of the case before the Court. Business behaviour is admissible circumstantial evidence from which a cartel can be inferred.
(2) While an agreement can be indirectly inferred, the alleged conspirators must at least be properly identified and there must be some indication of when or how they functioned.
(3) Parallel business behaviour, or conscious parallelism is not in itself sufficient to indirectly establish an agreement in violation of the Sherman Act. Parallel business behaviour can be of various sorts, and a parallel movement in prices is one example of conscious parallelism. Parallel business behaviour is all the more possible in the case of standardized is all the more possible in the case of standardized products where it is expected that prices will ordinarily tend to move in parallel. Furthermore, in a concentrated market, where there are relatively few sellers, conscious parallelism is also to be expected.
(4) If there are certain factors, referred to as "plus" factors, in addition to, and over and above, parallel business behaviour, then a presumption arises that there has been unlawful price fixing and in such a situation, a violation of the Sherman Act can be indirectly inferred. The "plus" factors may include evidence demonstrating that the conspirators acted contrary to their economic interests and were motivated to enter into a price fixing conspiracy. The nature of a "plus" factor must be such as it tends to exclude the possibility that the alleged conspirators acted independently.
(5) If parallel business behaviour and "plus" factors are found to exist, the alleged conspirators can nonetheless rebut the inference of collusion by presenting evidence establishing that it could not reasonably be concluded that they entered into a price fixing conspiracy.
I have already held that an agreement under the Ordinance and for the purposes of Section 6 (1) can be indirectly inferred from the facts and circumstances of the situation. In my view, parallel business behaviour or conscious parallelism is not in itself sufficient to lead to or permit an inference that a price fixing agreement or cartel exists. There must be shown to exist factors in addition to, and over and above the conscious parallelism for the existence of a cartel in violation of Section 3 read with
Section 6 to be established. Obviously, the Authority must identify and particularize the "plus" factors on which it seeks to rely in addition to the parallel business behaviour. If such "plus" factors do exist in addition to parallel business behaviour, it would be open to the alleged conspirators to present material to show that it cannot be reasonably inferred by the Authority that they have entered into a price fixing conspiracy. They would be entitled to rebut the inferences being drawn from the parallel business behaviour and the "plus" factors. The reason is that the matter is being determined not on the basis of direct evidence, but on deductions being indirectly made and inferred from the facts and circumstances of the case. It is possible in such a situation that Authority may misread or draw the wrong conclusions from the circumstantial material and it is only right for the alleged conspirators to be entitled to present material to rebut the inferences. If the alleged conspirators fail to present any such material or the material presented is found to be deficient or unconvincing, then it can legitimately be inferred from the parallel business behaviour and the
"plus" factors being relied upon that an agreement exists which is violative of Section 6(1) of the Ordinance, and that there has thus been a violation of Section 3 thereof. I may clarify that the entire exercise as aforesaid is to be carried out exclusively with reference to, and within the ambit of Section 6 (1). Once such an agreement has been legitimately inferred, and is therefore, deemed to exist, it may still be open to the conspirators to rely on the gateway' contained in Section 6 (2). However, as explained above, the onus (and it is a heavy burden to discharge) would lie on them to establish that their situation comes within all three of the clauses of the latter provision and it is only then that they would be entitled to rely on thegateway'.
It is in my view important to keep in mind that the price fixing agreement which can be condemned under the deeming provision of Section 6 (1) is not limited to price increases only. Section 6 (1) applies to any price fixation, regardless of whether the prices are being increased, reduced or have remained steady, and whether the level is high or low. If the submissions made by the learned DAG are accepted, then any price change or movement could be held to constitute a price fixing cartel. At any time that the prices moved in parallel, the Authority would be able to claim that a cartel existed and that the Authority was entitled to take action in the matter. It is a matter of common experience that the prices of most commodities tend to fluctuate and such changes usually occur in parallel, and this is certainly true for standardized products, which are (if at all) differentiated only by the public perception of their brand names or trademarks. Prices, especially of essential items (e.g food supplies such as tomatoes and onions during the season), can change suddenly and for no apparent reason, rising and falling frequently and sometimes on a daily basis. If it is held that price change is itself sufficient to establish a cartel, then the Authority would virtually at any time be able to declare a violation of Section 3 read with Section 6. All it would need to do is point to the parallel price movement (regardless of whether the prices were be rising or falling) and claim that a cartel existed. This would confer an unfettered discretion and power on the Authority to take action at its own sweet will and at a time of its own choosing. Such a view cannot be countenanced by the law and is, in my judgment, flatly contrary to the provision of the Ordinance. This would convert the Authority into a price regulator, which is clearly beyond the remit of its powers and jurisdiction under the Ordinance. The Authority is not concerned with the level of prices as such nor does it have any statutory power to determine whether prices are reasonable or too high or too low. Its jurisdiction is confined only to ensuring that there is proper competition, i.e that prices are being determined by market conditions and not fixed collusively. Unless therefore, there is additional material or evidence, the parallel change in prices cannot by itself establish that there has been collusion or cartelization. In this connection, I was referred to a decision of the Indian Commission in Alkali and Chemical Corporation of India Ltd. Vs Bayar (India) Ltd. (1984) 3 Comp LJ 268. The Indian Commission also accepted that price parallelism does not by itself establish a cartel violative of the Indian Act, and relied upon the decision of the US Supreme Court in the Theature Enterprise case (supra). With reference to the specific case before it, the Indian Commission held at pg. 277:-
"We must admit that the price parallelism practiced extensively coupled with only a feeble attempt on the part of respondent at justification of parallel price increase, does appear highly suspicious and we find it hard to believe that the frequent and equal increases in prices could have been carried out without some prior understanding. Suspicion, however, strong is no substitute for proof. While dealing with circumstantial evidence, the Courts have first to se as to which of the various circumstances alleged, are established to be true and then to see whether such of the circumstances as have been established to be true inevitably lead to the sold and certain inference of culpability. While assessing the inferential effect of the proved circumstances, the Courts have to extremely chary and guard themselves against the tendency to jump to conclusion on insufficient or inadequate circumstances by supply missing links". (emphasis is mine).
In my view, the principles established by the American Courts, and followed and adopted by the Indian Commission, establish the necessary framework and lay down the correct approach to be taken for a proper interpretation and application of the deeming provisions of Section 6 (1) of the Ordinance. The Authority has acted on the basis of a complete misunderstanding of the Ordinance and has misapplied the relevant provisions.
The mere fact that the prices in May, 2003 rose in parallel does not therefore, in my judgment, establish that there existed a cartel among the appellants in violation of Section 6 (1). There was no basis whatsoever on which the Authority could contend that there had been a "planned" or "systematic" increase in the prices, and it was insufficient to simply rely upon the price increase itself as establishing the existence of a cartel. In this context, there is an additional infirmity, which in my view, is fatal to the case put forward by the Authority. As pointed out by the learned counsel for the appellants, the Authority has not specified or identified the alleged conspirators. When referring to the price increases, the Impugned Order merely states that "a good number" of the cement manufacturers were involved in the cartel, but the actual conspirators are never identified. In my view, no agreement can legitimately be spelt out in such circumstances. While an agreement can certainly be inferred circumstantially as held above, it is at the very least necessary for the Authority to particularize the parties thereto and identify the participants in the conspiracy and to show when or how they functioned. If the Authority fails to do so, then no agreement can be found to exist. In the present case, there is no specific allegation at all against any particular cement manufacturer that it was a participant in the alleged cartel. Furthermore, the Authority fatally undermines its own case by subsequently referring in the Impugned Order to "some" cement manufacturers having acted together with respect to capacity underutilization. Thus, although orders were passed against nearly all the cement manufacturers, the finding actually recorded by the Authority is only that "a good number" of (unspecified) cement manufacturers increased prices in parallel and that only "some" (again unidentified) cement manufacturers underutilized their plant capacities. There is, to say the least, a great difference between "all", "a good number" and "some" and the failure on the part of the Authority to keep this basic distinction in mind clearly indicates that in fact the Authority did not have any knowledge of the identity of the alleged conspirators, nor did it even bother to carry out such an exercise, which was required under the Ordinance. The Impugned Order, is self-contradictory on the face of it, since the cartel is at once and the same time supposed to between "a good number" of cement manufacturers and/or "some" of the manufacturers. No agreement within the meaning of Section 2 (a) can be spelt out in such circumstances.
The conclusion purported to be drawn by the Authority in the impugned orders are also not supported by the record of the case. In the impugned order issued against D.G Khan Cement, the Authority has in para 6 purported to "adjust" the central exercise duty relief given in the 2003 Budget because, it is stated, the relief "was not passed on to consumers". Yet, this assertion is contradicted by the table of prices given by the Authority itself in its parawise comments. There, the price of cement charged by D.G. Khan Cement is shown as Rs. 215 per bag for the first 6 days of June, and then with effect form June 7th, the price is shown as dropping to Rs.205 per bag, a level which is maintained up to June 22nd, whereafter the price is shown as dropping further to Rs.199 per bag. The situation is similar in the case of other cement manufacturers. Thus, it is clear from the Authority's own statements that the budgetary relief in central exercise duty was infact passed on to the consumers. The conclusions drawn in this regard in the Impugned Order are thus directly contradicted by the record. In any case, even if the relief is central exercise duty had not been passed on to the consumers by some or all of the cement manufacturers, it is not clear to me why that would show the existence of a cartel in violation of Section 6 (1). It is surely a business decision to be taken by the cement manufacturers in the light of market conditions whether, and if so, to what extent, the relief is to be passed on to the consumers. It would normally be expected that there would be some fall in prices in such a situation and that is in fact what the record established. The conclusions to the contrary drawn by the Authority are clearly unsustainable.
There is also another very important aspect of the matter, which is the acceptance by the Authority that prior to April, 2003, there was no cartel or collusion in violation of the Ordinance. This is expressly stated in each impugned order, and is a point, which is confirmed by the Authority in its parawise comments. In the case of D.G. Khan Cement, in para 3 (s) of the parawise comments, the Authority clearly states as follows: "The fact is that there was no cartel before May, 2003 and the manufacturers followed their independent strategies". As pointed out by the learned counsel for the appellants, the table of prices set out in the Authority's parawise comments clearly shown that there was a lot of price variation and fluctuation in the months leading up to May, 2003. In March, prices did rise and there was a general upward movement. There was thus, throughout the period, prior to the Authority's impugned action, a parallel price movement of the same nature as took place in May, 2003. Furthermore, in June, the prices began to fall, a fact which appears to have been ignored or misunderstood by the Authority. Yet, it is only the May, 2003 price increase that is condemned by the Authority as certelization. Those that occurred prior thereto are accepted, and attributed to market conditions. It is also pertinent to note that
even as per the impugned orders, the price levels in October, 2002 were at about same level as the prices after the May, 2003, increase (and in some cases, were even higher). Yet, no action was earlier taken by the Authority. In my opinion, this contradiction clearly establishes the point made earlier in the judgment, i.e that if a mere change in prices is sufficient to spell out a cartel, then the matter is at the unfettered discretion and sweet will of the Authority. It can at any time condemn a price movement as violative of the Ordinance, or leave it undisturbed as a mere market fluctuation, and justify its action or inaction accordingly. In the present case, price movements, including increases, prior to May, 2003, were accepted by the Authority as responses to market conditions and "independent strategies" of the cement manufacturers, and yet, the price increase of May, 2003, was held to establish a cartel. Price changes of the same nature and magnitude as took place in May, 2003, were earlier accepted and passed unnoticed and without action, whereas the situation that prevailed in that month was condemned as proof of cartelizaton. It seems that infact, the Authority was only reacting to the public outcry in May, 2003. The Authority simply acted as a price regulator to bring down the prices to what it regarded as a "reasonable" level acceptable to the public. As already held, this was clearly beyond its jurisdiction and powers and outside the scope and ambit of the Ordinance. The Authority is the regulator and restorer of competition and not of prices and price levels as such. By fundamentally confusing two entirely separate and distinct functions and powers, the Authority has asserted a power that does not vest in it under law.
The Authority also appears to have ignored altogether, the various factors stated in detail by the cement manufacturers as explaining the price increases and capacity utilization. These factors included the concept of price leadership, seasonal factors and changes in the demand and supply conditions. The Authority was bound to consider the same and if it was not convinced by the submissions that had been made before it in this regard, to given its reasons for rejecting the case put forward by the cement manufacturers. It is also to be noted that while the Authority concluded that the cost of production had been falling over the relevant period, it did not take into consideration the contrary submissions made by the appellants in this regard. In any case, as held by the US Supreme Court in the New York Coffee and Sugar Exchange case (supra), the fact that there is no ready explanation forthcoming for the increase in prices in not in itself sufficient to conclude that a cartel or conspiracy existed in violation of the law.
The factors relied upon by the learned DAG, to justify the Impugned Order included the great public outcry, especially in the national press, at the increase in prices in May, 2003, and complaints received by the Authority with regard thereto from various persons and concerned quarters such as builders, etc. These factors appear to have impelled the Authority to take action to bring down cement prices from what was obviously regarded by it as too high a level to a range believed to be more "reasonable" and acceptable. As I have said, this was a fundamental misconception of the powers and jurisdiction of the Authority and resulted in a complete transformation of its role from a regulator of competition to a regulator of prices without any warrant in law.
Learned counsel for the appellants in this regard, referred to the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (hereinafter referred to as the 1977 Act). Section 3 (1) of this Act, empowers the Federal Government, for purposes of ensuring equitable distribution of an essential commodity and its availability at fair prices, to issue and order (to be published in the official Gazette) regulating the price, production, movement, supply; distribution, sale, etc of the essential commodity. Cement is, or at any rate was, one of the commodities specified in the schedule to the 1977 Act, as an essential commodity. The important point is that if the Authority was allowed to take action at any time there is a price change unacceptable to it (on the basis that such a price change can in and of itself establish a cartel), then there would essentially be no difference between the power exercised by the Authority under the Ordinance, and the power exercisable by the Federal Government under the 1977 Act to regulate prices. Indeed, in the operative part of each impugned order, the Authority has purported to fix the price of cement for each manufacturer by requiring it to reduce its price, as prevailing on the date of the order by the amount specified in the order which amount, according to the Authority, represents the "unjustified increase" in the cement price in May, 2003. (As noted above, D.G. Khan Cement is required to reduce its price by Rs.60 per bag). This, in my judgment, is nothing other than price fixation or regulation which is beyond the scope and remit of the Ordinance and indeed, is the very anti-thesis of that law, since the price is being fixed by the administrative fiat and not market conditions. Section 12 (1) (c) in terms of which the Authority has purported to take this action, does not and cannot confer any such power on the Authority. The purported action taken by the Authority is therefore, unlawful and contrary to the provisions of the Ordinance. The Authority has also held with reference to the "unjustified increase" that "it remains incorporated in undertaking's selling price till now notwithstanding some fluctuations during the intervening period". To take the example of D.G. Khan Cement, the Rs.60 per bag "unjustified increase" is regarded by the Authority as somehow remaining part of the manufacturer's cement price from May, 2003, till October, 2005 (i.e up to the issuance of the Impugned Order), although the Authority concedes that the cement price did undergo "some fluctuations" during this period. I can find no warrant for this extra-ordinary conclusion either in law or the record. There is no conceivable basis on which the Authority's conclusion can be supported. Furthermore, the order to reduce the price by the amount specified by the Authority is itself unenforceable. Suppose that a manufacturer does comply with the Authority's order. For how long is a manufacturer required to keep its price artificially depressed by the amount directed by the Authority?. There is nothing in the impugned order that would prevent a manufacturer from reducing its price in purported compliance of the order and then raising it the next day. In my view, there is an even more fundamental defect in the order in this regard. A direction to reduce the price by an amount fixed by the Authority is itself a negation of competition since the prices would not then be set by market conditions, but would be at a level mandated by the Authority. The Authority's direction is therefore, on the face of it inconsistent with the concept of market competition and with the Authority's fundamental statutory duty to protect the same. The Impugned Order is therefore, unsustainable in law on this point as well.
The learned DAG had also referred to the capacity underutilization as a factor which justified the Authority in concluding that a cartel existed to increase the prices in May, 2003, I have already dealt with one aspect of this part of the Impugned Order, namely the Authority's failure to identify and particularized who among the cement manufacturers were "some" of the alleged conspirators in this regard. Learned counsel for the appellants submitted in this regard the Authority had characterized the capacity utilization of each cement manufacturer as "low" or "very low" in a random and haphazard manner and without any basis or proper application of mind. For example, the capacity utilization of D.G Khan Cement was stated to be 68 %, which was regarded as "low". The capacity utilization of Pioneer Cement Ltd, on the other hand, was 71 % and this was regarded as "very low". To my mind, there is force in this submission on behalf of the appellants. There does not appear to have been any proper application of mind in the present case by the Authority. No basis is shown as to how or why some capacity utilization is characterized as low and other as very low. In addition, it is also the case that the record relied upon by the Authority in this regard itself shows great variations in capacity utilization. Annexure ll to the report to the special enquiry is a table showing the industry wide capacity utilization from July, 2002 to June, 2003. An examination of this Annexure indicates that the capacity utilization changed considerably from month to month and rose and fell regularly, sometimes by substantial amounts. In my view, therefore, it cannot be concluded from the fact that capacity utilization fell in May, 2003, as compared to the previous month that there was a cartel to increase the prices as held by the Authority.
The upshot of the foregoing discussion is that in my view, the impugned orders are not sustainable either in law or on the basis of the record and material as available before the Authority. The appeals are therefore, allowed and the impugned orders are set aside and quashed. There will however, be no order as to costs.
(Malik Sharif Ahmed) Appeals allowed.
PLJ 2007 Lahore 50
[Multan Bench Multan]
Present: Maulvi Anwarul Haq, J.
HAMID BAKHSH (deceased) through his Legal Representatives and others--Appellants
versus
HUSSAIN BAKHSH (deceased) through his Legal Representatives and others--Respondents
RSA No. 13 of 1996, heard on 12.9.2006.
Civil Procedure Code, 1908 (V of 1908)—
----S. 100--Second appeal--Wakq property--Held: There was no house, shop or land was Waqf in the name of Khanqah--There was no written waqfnama but the Ihata of Khanqah whereas Roza, Majliskhana, graveyard, veranda, Courtyard and Kothris were used by the visitors without paying any charges--The property was within the bounds of the shrines and was being used for the purposes of the shrine since time immemorial--Appeal dismissed. [Pp. 52 & 53] A, B & C
Ch. Abdul Hakim & Mian Habib-ur-Rehman Ansari, Advocates for Appellants.
Mirza Aziz Akbar Baig, Advocate for Respondents.
Date of hearing : 12.9.2006.
Judgment
On 21.12.1954 Makhdoom Hussain Bakhsh, the predecessor in interest of the respondents filed a suit against the appellants. It was stated in the plaint that the Darbar Hazrat Hafiz Muhammad Jamal Ullah Sahib (hereinafter to be referred to as the said shrine) is located in Daulat Gate, Multan City. It is a sacred place where the disciples of the saint used to visit. The Darbar is in an Ihata where there is the Mazar of the said saint, there are Kothris, Verandas, Majlis Khana, a graveyard and adjacent towards the North of the Khanqah is a Sarai and then there is a Mosque. All this property is fully described in the heading of the plaint. All this property is a private Waqf. The Waqf is administered by a Sajjada Nashin who is also the Matwali who manages the same. The first Sajjada Nashin and Matwali was Makhdoom Ghulam Sarwar son of Mian Mehr Ali and thereafter the office is continuing in his generation inasmuch as the son of the Sajjada Nashin assumes the office on his death, Makhdoom Ahmad Yar, Sajjada Nashin and Matwali, was the father of the said plaintiff who died on 14.9.1953 and the plaintiff became the Sajjada Nashin and has been accepted as such by the respectables and the disciples and is performing his duties as such and is in control of the said property. It was then stated that the several items of the shrine detailed in para-4 of the plaint, are in the house where Ahmad Yar used to live with Defendant No. 3, his widow. However, when the defendants were called upon to return the said items, they refused. It was then explained that Defendants Nos. 1 and 2 were the consanguine brothers of the plaintiff while Defendant No. 3 is a step-mother while Defendants Nos. 4 and 5 are the brothers of Defendant No. 3. They have started denying that the plaintiff is the Sajjada Nashin and Matwali and have started interfering with the affairs of the shrine. With these averments, a declaration was sought that the plaintiff is the Sajjada Nashin and Matwali of the said shrine and is entitled to remain in possession and control of the same and to receive the income of the shrine and the defendants be restrained from interfering with his said functions. The Defendant No. 1, on the one hand and the remaining defendants, on the other, filed separate written statements in which it was objected that the plaintiff is not in possession whereas the defendants are in possession except the Mosque. The plan of the property was stated to be incorrect. On merits, it was stated that the saint was not a collateral of the defendants. He was married in their family and died issueless. He was accordingly buried in the property owned by them defendants. The land underneath the shrine is personal property of all the parties and in their possession. In the same breath, it was stated that income of the shrine is received by them. Similarly, it was stated that the Sarai is their personal property. Regarding the Mosque, it was stated that it has no connection with the shrine. It was then stated that there is no Sarai. The Sajjada Nashin is appointed by the brotherhood and the Sajjada Nashin in office. The shrine and the other property is in possession of the defendants and they are receiving the income while the Sajjada Nashin supervises their functions. Now it was admitted that Mian Ahmad Yar was the Sajjada Nashin but it was stated that he appointed Defendant No. 1 as a Sajjada Nashin and the brotherhood endorsed the said decision and as such he is performing the functions of the Sajjada Nashin. The items mentioned in para-4 of the plaint were also stated to be personal property and not Waqf property. Issues were framed. Evidence of the parties was recorded. The learned trial Court partly decreed the suit inasmuch as a decree for possession of shrine, Majliskhana, Tajjar, and Hujras of the Mosque, a Shamyna and a Ghilaf was passed in favour of the plaintiff and against the defendants who were also restrained from interfering with the rights of the plaintiff to manage the shrine and other property attached to it and also receiving offerings at the Shrine. This was done vide judgment and decree dated 13.10.1958. Both the parties filed first appeals which were heard together by a learned Additional District Judge, Multan. Vide judgment and decree sated 14.2.1996 appeal filed by the plaintiff was allowed while the one filed by the petitioners was dismissed. The result was that the suit was decreed as prayed for.
Learned counsel for the appellants contends that the evidence on record has been mis-read by both the learned Courts below while passing the impugned judgments and decrees. According to them, there was no Waqf and no Waqf property ensued. They particularly draw my attention to documents Ex. P. 26 and 28 to urge that the entire suit property was the private property of the parties and not Waqf property. The learned counsel for the respondents, on the other hand, contends that, admittedly, the entire property is within the Ihata of the said shrine and preponderance of the evidence on record rather admitted position is that the same is being used for purposes of shrine, particularly with reference to the Sarai and the Langarkhana while the remaining property comprises of the Mazar, Mosque and the graveyard. According to him, no question of law arises in this R.S.A.
I have gone through the records as noted by me in order dated 19.7.2006. With agreement of learned counsel for both the parties, this appeal has been heard on the basis of paper book printed under the orders of this Court while the initial first appeal was filed here.
Now Ex.PW-13/1 available at pages 234 to 271 of the said paper book is the Fard Intikhab Jamabandi of Village Tarf Khalsa. Now I find that the said parties are recorded in the column of ownership. However, so far as the suit property is concerned, it is recorded to be Ghair Mumkan Ihata Khanqah Qabristan, Ghair Mumkan Sarai, Ghair Mumkan Rasta, Ghair Mumkan Arazi Qabal-i-Tameer, Ghair Mumkhan Masjid and Ghair Mumkan Qabristan. Now Ex. P. 26 is an application filed by the said Makhdoom Ahmad Yar before the Nazim Auqaf. The learned counsel for the appellants refers to para-2 of the said application to urge that there was no Waqfnama and that it is a private Waqf. Now nothing turns on the same for the reason that the said Makhdoom stated in the said application filed in the year 1952 that he is the Sajjada Nashin which, in any case, is an admitted fact and that the said office is coming since generations in the progeny of Makhdoom Mehr Ali for more than hundred years. If at all the contents of the said application support the plaint. Similarly, so far as Ex.P. 28 is concerned, this is also a statement of said Makhdoom Ahmad Yar. The learned counsel points out that Makhdoom stated that no house, shop or land is Waqf in the name of he said Khanqah. However, I find that the said statement is to be read as a whole. Now the said Makhdoom while stating that there is no written Waqf but he explained that the Ihata of Khanqah measures 2 kanals whereas there is a Roza, Majliskhana, graveyard, Veranda, courtyard, four Kothris for the visitors, a Sarai towards North on one Baigha and that there are 15 Kothris and 3 Verandas, Kothris and these are used by the visitors without paying any charges. To my mind, this document also fully supports the judgment recorded by the learned Additional District Judge.
This Court also appointed a Local Commissioner who inspected the site and filed a report with a plan and according to the said report as well all that property is within the bounds of the said shrine.
Now I have also gone through the evidence and I find that the same has been properly read by the learned Additional District Judge, while modifying the decree passed by the learned trial Court. There is no denial on record that the said property is not being used for the purposes of the said shrine since time immemorial. Having, thus, gone through the records, I do not find any question of law arising in this R.S.A. while the learned counsel for the appellants failed to point out any mis-reading or non-reading of the evidence on record by the learned Additional District Judge. Needless to state that the matter of the appointment to the office of Sajjada Nashin had been decided in favour of the respondents by both the learned Courts below concurrently and they have held the respondents to be entitled to receive the income of the shrine. The R.S.A. accordingly is dismissed but without any orders as to costs.
(Fouzia Fazal) Appeal dismissed.
PLJ 2007 Lahore 53 (DB)
Present: Nasim Sikandar & Sh. Azmat Saeed, JJ.
G.R. SYED--Appellant
versus
MUHAMMAD AFZAAL--Respondent
RFA No. 269 of 2006, decided on 7.9.2006.
Civil Procedure Code, 1908 (V of 1908)—
----O. XII, R. 6--Suit for specific performance of agreement to sell--During trial respondent filed application under O. XII, R. 6 C.P.C. seeking that the suit be decreed on prayed for as issues raised could be decided without recording of evidence as the essential facts were admitted between the parties--Trial Court accepted the application and decreed the suit--Appellant contended that grant of exemption/adjustment by L.D.A. was a mandatory pre-condition for the specific enforcement of agreement to sell--All the essential facts were admitted as evident from written statement--O.XII R. 6 C.P.C. were squarely applicable and rightly applied by trial Court--Held: Appellant entered into agreement to sell receipt of part payment also admitte--Appellant was that grant of adjustment/exemption was a mandatory pre-condition validity and specific enforcement of agreement and in the absence thereof suit could not have been decreed--Where an agreement to sell provides for the obtaining of a NOC/permission the same is condition subsequent and does not make the agreement void--Where such condition is not a mandatory legal necessity for the performance of agreement, it can be waived by the party deriving benefit therefrom--Appeal dismissed.
[Pp. 57, 60 & 61] A, B & C
Civil Procedure Code, 1908 (V of 1908)—
----O.XII, R. 6--Balance payment--Determination--Respondent was not required to make balance payment till condition subsequent of obtaining adjustment/exemption was satisfied or waived by respondent--Respondent could not be penalized or derived of his remedy of specific performance for not making the payment of balance payment on date fixed. [Pp. 61 & 62] D
2003 SCMR 1261, 2001 SCMR 1053, 1973 SCMR 225, 1987 CLC 2131, 1987 SCMR 1850, PLD 1964 SC 807 & 1992 SCMR 1629, relied upon.
Ch. Mushtaq Ahmad Khan, Advocate for Appellant.
Syed Najm-ul-Hassan Kazmi, Mr. Ali Akbar Qureshi, Advocates for Respondent.
Date of hearing: 24.7.2006.
Judgment
Sh. Azmat Saeed, J.--This Regular First Appeal is directed against the judgment and decree dated 5.5.2006 passed by the Civil Judge 1st Class, Lahore.
Brief facts leading to the filing of this appeal are that the respondent filed a suit for specific performance against the appellant alleging that the appellant is owner of land measuring 2 kanals Bearing Khasra Nos. 2935/1 and 2935/2, Mauza Bhaikeywal, Lahore situated in Plot No. 60-E, M.A. Johar Town, Lahore and had executed an agreement to sell on 4.3.2003 in respect of the said land in favour of the respondent for a total consideration of Rs. 1,10,00,000/- out of which a sum of Rs. 10,00,000/- was paid by the respondent to the appellant as earnest money/advance payment at the time of the execution of the agreement. It was contended that, it was further agreed between the parties that the appellant would obtain adjustment/exemption of the land in question from the Lahore Development Authority and thereafter transfer the same to the respondent and receive the balance agreed consideration. It was also agreed that in case of any shortfall in the area of land pursuant to such adjustment/exemption, the same shall be made good by the appellant from other land owned by him situated in the vicinity. It was also alleged in the plaint that on 27.5.2003 a further agreement was executed inter se the parties whereby the appellant received a further sum of Rs. 17,00,000/- from the respondent and handed over the possession of the property in dispute to the respondent. On the failure of the appellant to execute the sale-deed and to inform the respondent about the status of exemption/adjustment by the Lahore Development Authority, the respondent filed the suit for specific performance against the appellant.
The appellant entered appearance and filed his written statement admitting his ownership of the land in dispute and did not specifically deny the execution of the two agreements and payment of consideration. However, preliminary objections as to the maintainability of the suit and absence of cause of action were, inter alia, raised. It was also contended that the requisite exemption/adjustment had not been granted by the Lahore Development Authority. The appellant also stated that the respondent had failed to make payment of the balance consideration within the due date. On the divergent pleadings of the parties issues were framed. Subsequently,, it appears from the record that additional issues were also framed by the trial Court no two separate occasions. Thereafter the appellant filed an application under Order VII Rule 11 of the C.P.C seeking rejection of the plaint on the ground that as the requisite exemption/adjustment had not been granted by the Lahore Development Authority, hence the suit for specific performance was devoid of any cause of action and the respondent was only entitled to compensation of double the advance money. The said application was resisted by the respondent who also filed an application under Order XII Rule 6 of the C.P.C. seeking that the suit be decreed as prayed for as the issues raised could be decided without recording of evidence on the basis of law applicable as the essential facts were admitted between the parties. The trial Court after hearing the parties dismissed the application under Order VII Rule 11 of the C.P.C filed by the appellant and accepted the application under Order XII Rule 6 of the C.P.C filed by the respondent and thereby decreed the suit as prayed for vide the impugned judgment and decree dated 5.5.2006.
The learned Counsel for the parties have been heard and the record requisitioned from the trial Court has been perused.
It is contended by the learned Counsel for the appellant that the grant of exemption/adjustment by the Lahore Development Authority was a mandatory pre-condition for the specific enforcement of agreements to sell and in the absence thereof no decree for specific performance could have been passed. It is further contended that even otherwise issues had been framed by the trial Court which could only be decided after the recording of evidence and the suit could not have been summarily decreed as the provisions of Order XII Rule 6 of the C.P.C. were not attracted and the trial Court has erred in referring to and relying upon the pleadings and applications of another suit which had not been produced in evidence nor the appellant confronted therewith. In support of his contentions the learned Counsel has placed reliance upon the judgments reported as Qureshi Muhammad Anwar & 6 others v. S. A. Qureshi & 3 others (1994 CLC 733), Macdonald Layton & Company Pakistan Limited v. Uzin Export-Import Foreign Trade Co. & others (1996 SCMR 696), Muhammad Ishaq & another v. Mst Sufia Begum (1992 SCMR 1629), Federation of Pakistan through Cabinet Secretary to the Government of Pakistan, Cabinet Secretariat, Islamabad & 2 others v. Ally Brothers & Company (Pak). Limited through Managing Director/Chief Executive and another (2001 MLD 1615), Muhammad Zahoor & another v. Lal Muhammad & 2 others (1988 SCMR 322) and an unreported judgment of the honourable Supreme Court of Pakistan passed on 14.11.202 in Civil Appeal No. 1527 of 1999 titled "Rashid ur Rehman Khan v. Riaz Mubarik".
The learned Counsel for the respondent controverted the contentions raised on behalf of the appellant. It was contended that all the essential facts were admitted between the parties as is evident from the written statement filed by the appellant as well as the application under Order VII Rule 11 of the C.P.C. It was contended that agreements to sell, payment of consideration and transfer of possession are not disputed and the absence of the grant of adjustment by the Lahore Development Authority does not denude the agreements of their legality or obstruct the specific enforcement thereof. It is further contended that in fact such adjustment has since been accorded in principle by the Lahore Development Authority. Adds that in the fact and circumstances of the case the provisions of Order XII Rule 6 of the C.P.C. were squarely applicable and rightly applied by the trial Court by decreeing the suit in favour of the respondent. In support of his contentions the learned Counsel for the respondent has placed reliance upon the following judgments:-
(i) Amir Bibi through Legal heirs Versus Muhammad Khurshid & others (2003 SCMR 1261), (ii) Sami ul Haq Versus Dr. Maqbool Hussain Butt & others (2001 SCMR 1053)
(iii) Abdul Karim Versus Muhammad Shafi & another (1973 SCMR 225), (iv) Sheikh Mahmood Ahmad Versus Dr. Ghaith Pharaon & 3 others (1987 CLC 2131).
(v) Mst. Taj Bibi & another Versus Muhammad Akbar & 6 others (1987 SCMR 1850)
and
(vi) Mrs. Anwara Chowdhury Versus M. Majid & others (PLD 1964 Supreme Court 807).
Order XII Rule 6 of the C.P.C empowers the Court to pass a judgment on the basis of admissions made by the parties to their pleadings or otherwise at any stage of the proceedings without waiting for the determination of any other question that may arise between them.
The Sindh High Court in its judgment reported as Sheikh Mahmood Ahmad v. Dr. Ghaith Pharaon & 3 others [1987 CLC 2131 (Karachi)] with reference to Order XII Rule 6 of the C.P.C. was pleased to hold as follows:-
"It is again manifestly clear that the above reproduced rule permits any party, at any stage of a suit, where admissions of fact have been made, either on pleadings, or otherwise, to apply to the Court for such judgment as upon such admission he may be entitled to. The admission need not, therefore, necessarily be made only in the pleadings. By laying down "or otherwise" the legislature has not restricted the admission only on the pleadings. These words are, in my opinion, of general application and there is no justification on the basis of the language used in Rule 6 of Order XII to confine them to the admissions made in the pleading only as the learned Counsel for the defendant desires me to do".
In the L.D.A. case reported as Lahore Development Authority through its Director-General & another v. Mian Riaz Ahmad & others (1987 SCMR 1850) the honourable Supreme Court of Pakistan declined to interfere in a judgment passed on the basis of Order XII Rule 6 of the C.P.C.
"In view of the provisions as contained in Order VII, Rule 6 a Court is competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each but such power is not unfettered and the admission on the basis whereof a decree is sought must be specific, clear, unambiguous, categoric and definite. It is bounden duty of the Court to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. It would, however, be discretionary for the Court to accept or reject such application".
The upshot of the above discussion is that the trial Court is empowered to pass a decree summarily on the basis of admissions made in the pleadings or otherwise. Such admissions must be specific, clear, unambiguous, categoric and definite and even in the presence of such admissions it is the discretion of the Court whether to pass a decree or reject the application under Order XII Rule 6 of the C.P.C.
Thus, at the very outset, it is imperative to determine and identify the facts which are specifically, clearly, unambiguously, categorically and definitely admitted by the appellant as only such facts would be relevant for the application or otherwise of Order XII Rule 6 of the C.P.C. A perusal of the written statement reveals that the fact that the appellant is the owner of the land in dispute is admitted. With reference to the rest of the contentions in the plaint, there is a denial simplicitor portraying a text book example of an evasive denial in terms of Order VIII Rule 5 of the C.P.C. Para 2 of the plaint wherein the factum of the agreements, payment of consideration and handing over possession etc. is mentioned, has been responded to in one sentence i.e. "the contents of Pare No. 2 are not correct, hence denied". However, in preliminary objection No. 1 it has been contended that the respondent has failed to pay the balance amount within the stipulated period, hence the suit is liable to be dismissed. Subsequently, the appellant filed an application under Order VII Rule 11 of the C.P.C. wherein admissions have been made in Paras Nos. 2 and 3 thereof which are reproduced as follows:-
"2. That inspite of best efforts and endeavour of the petitioner the petitioner had failed to get the necessary exemption/adjustment etc, for the L.D.A. whereas the last date agreed upon between the parties for the execution of requisite sale deed was 31.12.2003, and in this situation the only remedy available to the plaintiff/respondent as explained in the agreement to sell is that he could demand double of the advance amount. The copy of the disputed agreement to sell is annexed herewith for the perusal of this honourable Court, as such, in the light of this submission the filing of the titled suit for specific performance is uncalled for and is not maintainable because the petitioner/defendant Court not get the necessary exemption/adjustment, enabling the petitioner to execute the requisite sale-deed.
That it is also admitted fact that unless and until the disputed plot is exempted/adjusted in favour of the petitioner by the L.D.A. The petitioner is not in a position to execute the requisite the sale deed so the only remedy available to the plaintiff/respondent is to demand double the advance amount i.e. Rs. 27,00,000/- + Rs. 27,00,000/- = Rs. 54,00,000/- from the petitioner".
A perusal of the aforesaid reveals that it is an admitted fact between the parties and not disputed by the appellant that he is the owner of the land measuring 2 kanals Bearing Khasra Nos. 2935/1 and 2935/2, Mauza Bhaikeywal, Lahore situated in Plot No. 60-E, M.A. Johar Town, Lahore. It is an admitted fact that the appellant entered into an agreement to sell the said land to the respondent for a total consideration of Rs. 1,10,00,000/- and a sum of Rs. 10,00,000/- was paid at the time of execution of the agreement. It is also an admitted fact that subsequently further a sum of Rs. 17,00,000/- was also received by the appellant from the respondent by way of part payment. It is also an admitted fact that at the time of execution of the agreements the land in dispute had not been adjusted or exempted in favour of the appellant who had undertaken to have the needful done from the Lahore Development Authority prior to its transfer to the respondent. It is also an admitted fact that the balance consideration had not been paid by the respondent to the appellant at the time of institution of the suit. However, the record reveals that the said amount has since been deposited in the Court pursuant to the order of the Trial Court granting a temporary injunction under Order XXXIX Rules 1 and 2 of the C.P.C. It may be noted that the aforesaid facts had not been disputed by the Counsel for the appellant before this Court.
The contention of the learned Counsel for the respondent that the Lahore Development Authority in principle had agreed to exempt the plot is disputed by the appellant, hence cannot be taken into consideration for the adjudication of the lis at hand at this stage. Similarly admissions, if any, made by the appellant in the previous round of litigation are also irrelevant for the purposes of Order XII Rule 6 of the C.P.C.
In the above perspective it is necessary to examine whether the suit filed by the respondent could be decreed as prayed for by applying the law to the clearly and unambiguously admitted fact as set forth in para 12 above, while taking into account the legal objections raised by the appellant both before the trial Court and before this Court.
The main thrust of the contentions of the learned Counsel for the appellant was that the grant of adjustment/exemption was a mandatory pre-condition for the validity and specific enforcement of the agreements sued upon and in the absence thereof suit could not have been decreed and in fact should have been dismissed. In support of his contentions the learned Counsel has very heavily relied upon the judgment of this Court in Qureshi Muhammad Anwar's case (Supra) (1994 CLC 733) of which he himself incidentally is the author. The said case pertains to the specific performance of an agreement to transfer lease hold rights of the land, the ownership whereof vested in Federal Government through the Director Military Land and Cantonments and the agreement was subject to the permission of the owner which apparently was granted subject to change in the terms and conditions of the lease. In the above context it was held that specific performance could not been granted in the absence of such permission or the grant of such permission subject to the dis-advantage to the vendor of the lease hold rights. In the unreported judgment of the honourable Supreme Court passed in Civil Appeal No. 1527 of 1999 relied upon by the learned Counsel for the appellant the permission or N.O.C. from the Government of Pakistan through the Military Estate Officer was necessary for transfer of lease hold rights and such N.O.C. had not been issued. The agreement for sale or transfer of such lease hold rights between private individuals was held to be frustrated and not specifically enforceable.
In respect of a suit for specific performance of an agreement to sell pertaining to property situated within the cantonment limits requiring issuance of a `No Objection Certificate' the honourable Supreme Court of Pakistan in its judgment reported as Muhammad Ishaq & another v. Mst. Sufia Begum (1992 SCMR 1629) was pleased to hold as follows:--
"7 From the resume of the law as above stated, it is clear that the said condition in the agreement for sale that the vendor would secure the No Objection Certificate from the Military authorities was not a condition precedent to the said agreement, but rather a condition subsequent. It was an internal condition not affecting the agreement. The condition had the effect of releasing the vendees from their obligation to accept the sale-deed if the No Objection Certificate was not obtained by the vendor and thus annulling the agreement for sale.
8. ....As regards the question whether the condition subsequent was waived by the both the parties mutually or by the vendees, they being the parties in whose favour the condition was inserted, the documents exhibited by both the parties show that it was not so waived. The last notice Exh. P.W. 2/3 sent on behalf of the vendees on 3.7.1978 to the vendor refers to the need of such a No Objection Certificate. Reasonable time having expired on 14.6.1978 much before the issue of this notice, no waiver took place before the agreement became impossible of performance".
In the judgment reported as Abdul Karim v. Muhammad Shafi & another (1973 SCMR 225) as decree for specific performance of the contract pertaining to property situated in the cantonment was upheld where a N.O.C. had not been applied for and neither been granted nor refused. In the judgment reported as Manzoor Hussain & 3 others v. Wali Muhammad & another (PLD 1965 Supreme Court 425) the honourable Supreme Court was pleased to hold as follows:--
"The scheme of the Foreign Exchange Regulation Act, therefore, is not to forbid the making of a contract but merely to insist that the contract shall be performed in a particular manner, namely, by taking the necessary permission of the competent authority. It cannot, therefore, in the circumstances, be said that a contract which violates any of the terms of the Foreign Exchange Regulation Act is ex facie or ab initio void or comes within the mischief of a contract prohibited by Section 23 of the Contract Act. It is now well-settled that the provisions of Section 23 of the Contract Act have to be construed strictly and the Courts should not invent new categories or new heads of public policy in order to invalidate a contract".
The upshot of the above discussion is that where an agreement to sell provides for the obtaining of a N.O.C/permission, the same is a condition subsequent and does not make the agreement void ab initio/violative of Section 23 of the Contract Act or otherwise. Where the agreement cannot be performed or consummated without such condition subsequent as a consequence of operation of law or otherwise, the denial of such condition subsequent would result in the frustration or the agreement. Where such permission is granted but subject to such terms and conditions which are patently disadvantages to the vendor or the vendee the agreement may subject to its own peculiar circumstances cease to be specifically enforceable. Where such condition subsequent is not a mandatory legal necessity for the performance of the agreement, it can be waived by the party deriving benefit therefrom.
The instant case does not relate to the transfer of leasehold rights in the cantonment requiring a N.O.C from the owner. It is an admitted fact between the parties that the appellant is the owner of the land in dispute (pare 1 of the written statement). The possession of the property vested in the appellant who transferred the sale to the respondent. The appellant contracted to sell the said land to the respondent after its adjustment/exemption from the Lahore Development Authority. In fact the appellant was under a double obligation; firstly, to obtain its exemption/adjustment of the land and, secondly, to transfer the same to the respondent on the receipt of balance consideration. The respondent in his application under Order XII Rule 6 of the C.P.C. has specifically and unequivocally relinquished his claim against the appellant with respect to obtaining and procuring adjustment/exemption of the land from the Lahore Development Authority. He has abandoned any right of compensating on account of such failure and sought the transfer of the land on an "as is where is" basis. Incidentally in the prayer clause of the plaint a decree had been sought in respect of land Bearing Khasra Nos. 2935/1 and 2935/2, Mauza Bhaikeywal, Lahore which Bears Plot No. 60-E, M.A. Johar Town, Lahore only and no prayer for its exemption or adjustment has been made. It is not the case of the appellant that there is any legal impediment to the transfer of the rights of the appellant on an "as is where is" basis without adjustment/exemption by the Lahore Development Authority especially as its possession was with the appellant and subsequently transferred to the respondent. Such request for adjustment/exemption has admittedly not been declined by the Lahore Development Authority. If any loss is occasioned by any act or omission of the L.D.A. or if the entire property in dispute is not existed or exempted, as the case may be, it shall be on the account of the respondent and no liability in this behalf shall visit the appellant, who can, therefore, have no bona fide grievance in this behalf. In short, in the instant case, the condition subsequent which was not mandatory stood waived by the respondent for whose benefit it had been inserted. Consequently the suit was neither pre-mature nor barred by law and liable to be decreed on the basis of the admissions on the record. Furthermore, in view of the said unequivocal and clear admission, evasive written statement and the nature of the defence eventually taken, this Court has no hesitation in holding that in the facts and circumstances of the case the provisions of Order XII Rule 6 of the C.P.C. were not only applicable but discretion to apply the same has been rightly exercised by the trial Court.
In view of the above, no further triable issue remained outstanding between the parties. Issues Nos. 2, 3, 4-A. 4-B and 4-C are squarely covered by the said finding. It is settled law that in the facts and circumstances of the case the respondent was not required to make the balance payment till the condition subsequent of obtaining the adjustment/exemption was satisfied or waived by the respondent. Thus, the respondent could not be penalized or deprived of his remedy of specific performance for not making the payment of the balance payment on the date fixed.
In view of the above, this appeal is hereby dismissed and the judgment of the trial Court is upheld with the observations as aforesaid. The parties are left to bear their own costs.
(Malik Sharif Ahmed) Appeal dismissed.
PLJ 2007 Lahore 62
Present: Muhammad Akhtar Shabbir, J.
MAMOONA SAEED--Petitioner
versus
GOVERNMENT OF PUNJAB through SECRETARY, HOME DEPARTMENT, CIVIL SECRETARIAT, LAHORE
and 2 others--Respondents
W.P. No. 8613 of 2006, decided on 28.8.2006.
Punjab Maintenance of Public Order Ordinance, 1960—
----Ss. 3 & 5--Constitution of Pakistan, 1973, Arts. 9 & 10--Violation of fundamental rights--Detention order--Assailed--Question the vires of the detention order passed by Secretary to the Government of Punjab, Home Department, detaining the detenue for 30 days grounds of detention enumerates in petition--Objected to the maintainability of W.P. same filed without exhausting alternate remedy--Order of detention has been passed by the respondent on the receipt of a letter in a mechanical manner on the ground that detenue if not arrested or detained would law and order--Detention order of detenue has been passed on general terminology of acting "in a manner prejudicial to public safety and maintenance of public order" without specifying the actual guilt or crime--Order not only unconstitutional, but also offended against the basic principles of teaching of Islam--Grounds of detention can also be examined the material on which the satisfaction of the detaining authority is based--All the grounds of detention appearing on the detention order issued by Home Secretary were without any substance--Vague, based upon presumption and speculation--Further held: Detaining authority has failed to "satisfy" itself for passing the preventive detention order of the detenue keeping in view the criteria laid down by Superior Court. [Pp. 68 & 72] A & B
PLD 1988 Lah. 333, PLJ 1991 Kar. 136 (DB) relied upon. PLD 1973 K 344, PLD 1997 Pesh 148, 2005 MLD 1771, PLD 2006 Lah. 108, PLD 2005 Lah. 370 ref.
Mr. Nazeer Ahmad Ghazi, Advocate assisted by Mr. Rafique Javed Butt, Ch. M. Zafar Iqbal and M. Anas Bin Ghazi, Advocates for Petitioner.
Mr. Muhammad Hanif Khatana, Addl. Advocate General for Respondents.
Date of hearing : 28.8.2006.
Order
This writ petition has been filed to call in-question the vires of the detention order passed by the Secretary to Government of the Punjab, Home Department, dated 9.08.2006 detaining the husband of the petitioner Hafiz Muhammad Saeed, Ameer Jamat-ud-Dawa, Pakistan for 30 days. The grounds of detention on the basis of which the order has been passed enumerated as under:--
(i) That you have been inviting and holding meetings with different elements of society and instigating them to defy the lawful order of the government which will result in disruption of peace and may result in serious law and order situation.
(ii) You are a fire brand speaker and there is credible information that you will deliver inflammatory speeches for instigating the general public in violation of restriction order under Section 144 Cr.P.C.
(iii) That your activities have been found prejudicial to the public safety and maintenance of public order.
(iv) That continuance of your above mentioned activities are likely to create unrest in the public and threat to the law and order situation, thus giving rise to a situation prejudicial to the public safety and maintenance of public order.
The learned counsel for the petitioner contended that there is no substantial material or evidence before the detaining Authority to substantiate the grounds of detention of the detenu and that the order is based on vague grounds, speculations, and presumptions only. Further contended that the detention order supplied to the detenu is not signed by the competent Authority. The liberty of the respectable citizen of the country has been curtailed by the respondents on the basis of mere report of the C.C.P.O. Lahore and the Authority has not applied its mind while passing the impugned order. Further contended that the petitioner's organization has applied to the district administration for holding of procession/metting in respect of the Independence Day celebration, which was accepted by the District Coordination Officer, Lahore on 8.8.2006 and thereafter on the said date the No Objection Certificate issued by the D.C.O was recalled without any reason which establish the malafide of the respondents. Further contended that the police report is not sufficient to detain a free person of a free country. Further contended that the detention order was passed by the respondents to certain the detenu from holding the public meeting with regard to the Independence Day/14th August and that event has passed, now no reason exists for detention of the detenu. Further contended that the detenu has preferred a representation, which has not been decided as yet. Further contended that the petitioner has no option but to knock the constitutional jurisdiction of this Court for redressal of his grievance in respect of infringement of his fundamental rights. Learned counsel for the petitioner based his arguments on the judgments passed by this Court as well as by the apex Court.
On the other hand, learned Addl. Advocate General Punjab at the very outset objected to the maintainability of the writ petition on the ground that the petitioner has filed this petition without exhausting the alternate remedy available under the law. He relied on the case of Wealth Tax Officer and another Vs. Shaukat Afzal and 4 others (1993 SCMR 1810), Muhammad Siddiq Khan Vs. District Magistrate (PLD 1992 Lahore 140), Maulana Muhammad Azam Tariq Vs. The District Magistrate, Jhang and 2 others (2001 P Cr.LJ 1727), and Sheikh Rashid Ahmad Vs. D.M. Rawalpindi etc. (2004 PLJ (Lahore) 1221). Further contended that the impugned order has been passed by the respondents on the basis of the information and material referred by the C.C.P.O Lahore and if the detention has not been passed, the activities of the detenu would have prejudiced the public safety and maintenance of public order and that the detenu who is a fire brand speaker could instigate the general public in violation of the restriction order under Section 144 Cr.P.C.
I have heard the learned counsel for the parties and perused the record.
The detenu has been detained in exercise of the powers conferred upon the government under Section 5 of the Punjab Maintenance of Public Order Ordinance, 1960 which is reproduced as under for further guidance and ready reference:--
"(1) Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety (or public interest) or the maintenance of public order, it is necessary so to do, may by order in writing, give any one or more of the following directions, namely, that such person--
(a) shall not enter, reside or remain in any area that may be specified in the order;
(b) shall reside or remain in any area that may be specified in the order;
(c) shall remove himself from, and shall not return to, any area that may be specified in the order;
(d) shall conduct himself in such manner or abstain from such acts, as may be specified in the order; and
(e) shall enter into a bond, with or without sureties for the due observance of the directions specified in the order.
(2) An order under sub-section (1) made by the District Magistrate shall not, unless Government by special order otherwise directs, remain in force for more than three months from the making thereof.
(3) Government may at any time cancel or vary any order made by the District Magistrate under sub-section (1).
(4) An order under clause (a) of sub-section (1) made by Government may specify as the area to which the order relates, the whole province or any part thereof, and an order made by the District Magistrate may specify as such area they whole district or any part thereof:
Provided that no such order made by Government shall direct the exclusion or removal from the province of any person ordinarily resident in the province and no such order made by the District Magistrate shall direct the exclusion or removal from the district of any person ordinarily resident in that district.
(5) Where an order has been made under sub-section (1), the Authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so:
Provided that the Authority making any such order may refuse to disclose facts which such Authority considers it to be against public interest to disclose.
(5-a) Where a representation is made to Government against an order passed under sub-section (1), Government may, on consideration of the representation and after giving the person affected an opportunity of being heard, modify, confirm or rescind the order.
(5-b) No order under clause (b) of sub-section (1) shall have effect for a period exceeding three months unless the Board constituted under sub-section (5) of Section 3 has reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for the making of such order; and the provisions of sub-sections (5-b), (5-c), (5-d), (5-e) and (5-f) of Section 3 shall, mutatis mutandis, apply to the reference made to the Board in regard to any such order.
(6) An order made under sub-section (1) shall remain inforce for such period not exceeding two years as may be specified in the order".
Article 9 of the Constitution provided that "No person shall be deprived of life or liberty save in accordance with law". Article 10 of the Constitution enshrines that "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice". Where a person detained is aggrieved of his act of detention that it was not justified in law, that person has the right to invoke the jurisdiction of the High Court immediately for restoration of his liberty, which is basic fundamental and birth right and where an order passed by an executive Authority detaining a particular person is challenged before the High Court in exercise of its extra-ordinary constitutional jurisdiction, it would be by means of judicial review and it is not an appeal or revision. The right of a person to a petition for "habeas corpus" is a high prerogative right and is a Constitutional remedy for all matters of illegal confinement. The impugned order detaining the detenu is a preventing order to prevent or restrain the detenu from the activities, which could prejudicial to the public safety and maintenance of public order in the Province of Punjab (District Lahore).
The superior Courts have laid down requirements for passing of a preventing detention order, which has to satisfy the following requirements:--
(i) The Court must be satisfied that the material before the detaining Authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention;
(ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid;
(iii) that initial burden lies on the detaining Authority to show the legality of the preventive detention, and
(iv) that the detaining Authority must place the whole material, upon which the order of detention is based, before the Court "notwithstanding" its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide.
In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the Authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention had been strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as my be"; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the Authority prescribed by law; that the grounds of detention are not irrelevant to the aim and object of this law and that the detention should not be for extraneous consideration or for purposes which may be attacked on the ground of malice. The above mentioned criteria has been laid down by the Honourable Supreme Court of Pakistan in the case of Federation of Pakistan through Secretary, Ministry of Interior, Islamabad Vs. Mrs. Amatul Jalil Khawaja and others (PLD 2003 S.C. 442).
Two grounds of detention of the detenu are that:--
(i) You are a fire brand speaker and there is credible information that you will deliver inflammatory speeches for instigating the general public in violation of restriction order under Section 144 Cr.P.C.
(ii) That your activities have been found prejudicial to public safety and maintenance of public order.
That Jamat-ud-Dawa had applied to the D.C.O. for holding a public meeting/procession, which was granted on 8.8.2006. It would be appropriate to mention here that this permission and No Objection Certificate granted by the D.C.O on 8.8.2006 in favour of Jamat-ud-Dawa for holding of a procession and public meeting has been recalled on 8.8.2006 on the same day by the said Authority. The meeting or procession was not held by the detenu's organization and that period has already passed. It is not an allegation or ground that the detenu is a fire brand speaker. It is a qualification of a person and not a disqualification. There is no material available before the detaining Authority nor any such material/evidence was produced before this Court how the activities of the detenu were found prejudicial to the public safety and maintenance of public order. These are the vague grounds and it is established law by the superior Courts that when one of the grounds of detention was vague. It would prove fatal for the entire detention order and mere fact that some other ground was lawful could not validate an invalid detention order. Reference in this context can be made to the cases of Gulzar Ahmad Vs. District Magistrate and another (1988 PCr.LJ 1790), Arbab Akbar Adil Vs. Government of Sindh through Home Secretary, Government of Sindh, Karachi (PLD 2005 Karachi 538) wherein it has been held by the Division Bench of the Karachi High Court that if out of several grounds even a single ground is not sustainable in facts and law the entire detention order would be held to be invalid and not sustainable in law.
"Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety and maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as my be prescribed under sub-section (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, extend from time to time the period of such detention, [for a period not exceeding six months at a time. And the same word used in Section 5 sub-section (1) that the Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety [or public interest] or the maintenance of public order, may issue direction for his detention or to reside or remain in an area that may be specified in the order".
Satisfaction of the detaining Authority can be reviewed and examined by the Court to the effect that whether the "satisfaction" about the existence of the requisite condition is a "satisfaction really and truly" existing in the mind of the detaining Authority or one "merely professed by the detaining Authority". A duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court, to "satisfy itself that he is not being held in custody without lawful Authority or in an unlawful manner". It has been held by the Honourable Supreme Court of Pakistan that this Constitutional duty cannot be discharged merely by saying that there is an order which says that he is being so detained. If the mere production of an order of detaining Authority, declaring that he was so dissatisfied, was to be held to be sufficient also to "satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty. So in such circumstances, it would not be unreasonable for the Court, in the proper exercise of its Constitutional duty, to insist upon a disclosure of the material upon which the Authority had acted so that it should satisfy itself that the Authority had not acted in an "unlawful manner". Reference in this context can be made to the cases of Mir Abdul Baqi Baluch Vs. The Government of Pakistan through the Cabinet Secretary (PLD 1968 S.C. 313) and Ashutash Lahiry Vs. The State of Delhi and another (A.I.R. 1953 S.C. 451).
The reasonableness of the grounds of detention can also be examined while exercising Constitutional jurisdiction. Order of detention must show on the face of it that the detaining Authority is satisfied to the effect specified under the relevant detention law and if there is no record of satisfaction of the detaining Authority the order of detention can be declared to have been passed without lawful Authority and ab-initio void and to satisfy itself the High Court while exercising its Constitutional jurisdiction, can examine the material on which the satisfaction of the detaining Authority is based to determine whether the same was sufficient for the satisfaction of the detaining Authority. So much so where a privilege is claimed by the detaining Authority with regard to some material or document even then the High Court would be competent to examine the document or material regarding which privilege is sought in order to determine as to whether such privilege is being claimed in advisedly, lightly or as a matter of routine. Reference in this context can be made to the cases of National Bank Vs. Faridsons Limited (20 DLR (S.C. 249), Liaqat Ali Vs. Government of Sindh through Secretary, Home Department and another (PLD 1973 Karachi 78) and Government of Sindh through The Chief Secretary, Karachi and 4 others Vs. Raeesa Farooq and 5 others (1994 SCMR 1283).
One of the ground for detention of the detenu is that "You have been inviting and holding meetings with different elements of society and instigating them to defy the lawful order of the Government which will result in disruption of peace and may result in serious law and order situation". In support of this ground of detention that how many meetings were held with the different elements of society and in what and in which manner he has instigated them to create law and order situation and it was prejudicial to the public safety and maintenance of public order. This opinion can only be formed on the basis of some evidence or record. To satisfy the detention order and such material so badly lacking in the present case. Learned Addl. Advocate General appearing to defend the detention order has miserably failed to produce or refer any piece of evidence or material before this Court to justify this ground of detention of the detenu. Ground No. 4 of the detention order "that continuance of your above mentioned activities are likely to create unrest in the public and threat to the law and order situation, thus giving rise to a situation prejudicial to the public safety and maintenance of public order" is also linked with the above mentioned ground. All the four grounds of detention appearing on the detention order issued by the Home Secretary of the Government of the Punjab are without any substance, evidence and record.
So much so, learned Addl. Advocate General was asked to point out any public meeting or procession held by the detenu in the near past from the date of detention order which created unrest, law and order situation among the masses, could not respond. No such material was available in the record except of the C.C.P.O Lahore, which is only the mere opinion of the Police Officer and not supported by any other material or the evidence. All the grounds of the detention enumerated in the detention order passed by the respondents are vague, based upon presumptions and speculations. It is sufficient to infer that the detaining authority has not applied its mind to satisfy itself for issuance of detention order of the detenu.
In the case of Khan Ghulam Muhammad Khan Loondkhawar and others Vs. The State (PLD 1957 (W.P). Lahore 497) a Division Bench of this Court had declared that where there is no record of satisfaction of the detaining Authority, the order of detention is ab-initio, void. This principle laid down has been upheld and maintained by the High Courts of this Country as well as the Honourable Supreme Court of Pakistan in cases where the Court is satisfied that a person is being held in custody without lawful authority, the only course open to the Court is to set him at liberty and to hold otherwise would not only be against the spirit underlying Article 199(1)(b)(i) but would also "sin" against the fundamental rights enshrined in Articles 9 and 10 of the Constitution. Reference in this context can be made to the case of Noor Hussain Vs. Superintendent, Darul Aman, Multan and 2 others (PLD 1988 Lahore 333).
The instant petition has been filed by the petitioner rebutting the allegations of detention of the detenu and supported by the affidavit of the petitioner. No counter affidavit has been filed on behalf of the respondents controverting the allegations made in the petition besides the report of the C.C.P.O. Lahore, there is no material available with the Addl. A.G. to support the allegations on the basis of which the impugned order of detention has been passed, which is wholly vague in nature and no particulars or instances have been quoted in the letter of the C.C.P.O. Unless and until details are stated in the grounds of detention, it is not possible for any detenue to effectively meet bald allegations made against him. In the absence of any material on record in support of vague allegation and also because of there being no denial of any assertion made in the petition, the impugned order would be unsustainable in law. Reference in this context can be made to the case of Abdul Haque alias Dost Muhammad Vs. District Magistrate and Deputy Commissioner Naushahro Feroze, and 3 others (PLJ 1991 Karachhi 136 (DB).
As to the objection of the learned Addl. Advocate General that the alternate remedy has not been exhausted by the petitioner or the detenu by filing a representation to the Government, it would be suffice to observe that the representation to the Government against the detention order passed by the Government itself is not an adequate remedy. There is no cavil with the fact that sub-section (6-a) of Section 3 of the Maintenance of Public Order Ordinance, 1960 provided a remedy but certainly in the absence of any requirement that the Government shall consider the representation this cannot be considered to be an `adequate' remedy in matters which concern the liberty of subject/citizen of the country. Reference in this context can be made to the case of Abdul Hamid Khan Vs. The District Magistrate, Larkana, and 2 others (PLD 1973 Karachi 344) wherein it has been observed that "it is true that the provision authorises the detenue to make a representation to Government and also require the Government to afford him the earliest opportunity of being heard, before deciding to modify, confirm or rescind the order" but no time for decision of the representation has been provided under the law, therefore, the representation would not be an adequate remedy. Reference in this context can be made to the cases of Masal Khan Vs. District Magistrate, Peshawar and 3 others (PLD 1997 Peshawar 148) and Rao Shahid Ali Khan Vs. Secretary Home Department, Government of Punjab, Lahore and 4 others (2005 MLD 1771).
The most important aspect of the case is that the Provincial Home Secretary has filed the parawise comments and has expressed his views to justify the impugned order and the decision of the representation by him, thus, filing of the representation would be a futile effort, therefore, the petitioner can invoke the Constitutional jurisdiction of this Court. Reference in this context can be made to the cases of Mulazim Hussain Shah Vs. Province of Punjab through Secretary Home Department, Government of Punjab, Lahore and 2 others (PLD 2006 Lahore 108) and Abu Bakar Muhammad Raza vs. Secretary to Government of Punjab, Home Department and 3 others (PLD 2005 Lahore 370).
This petition was filed by the wife of the detenu and she cannot file a representation. However, the detenu himself has filed a representation on 10.08.2006. During the arguments the learned Addl. Advocate General sought adjournment to have instructions from the concerned quarters with regard to the decision of the representation and today he has placed on record a copy of the order dated 26.08.2006 passed by the Secretary, Government of the Punjab, Home Department wherein he has rejected the representation being devoid of merits. From perusal of this order, it reveals that the same stand taken in the reply has been repeated in the said order. It is further stated that the petitioner's organization "Jamat-ud-Dawa" has again applied for a public meeting to be held on 06.09.2006, which will disturb the public peace and tranquility. This was not the reasonable ground for rejection of the representation of the detenu. The D.C.O. or the Goverment is empowered to refuse to grant the permission to the petitioner's organization for holding the public meeting but it does not appeal to a prudent mind that the detenu is holding a meeting just to instigate the public-at-large and to create the law and order situation. The other aspect is that if the petitioner holds the meeting without the permission and in violation of Section 144 Cr.P.C., he is liable to be prosecuted under Section 188 P.P.C. defying the enforcement of Section 144 Cr.P.C. There is no fresh material or evidence placed before the Home Secretary on the basis of which he has rejected the representation filed by the detenue. In this order same old grounds for detention have been narrated by Respondent No. 2.
In view of the above discussion, it is held that the detaining Authority has failed to "satisfy" itself for passing the preventive detention order of the detenue keeping in view the criteria laid down by the superior Courts of the country on the basis of the evidence in support of the grounds of detention mentioned in the detention order.
The detenu has been deprived of his fundamental rights as enshrined in Articles 9 & 10 of the Constitution and if such type of case is placed before the High Court, the High Court will take the notice of the same and exercise its powers to issue the writ when the violation of fundamental rights of a citizen of the country is involved. The detenu is a free citizen of a free country and he has a right to move freely according to his own wishes. If an allegation qua a detained person is leveled that his acts would be prejudicial to the public order then it must be shown that the act or activity is likely to effect the public-at-charge, therefore, it follows that where an act is concerned with an individual and does not amount to be prejudicial to the public peace and cannot fall within the ambit of Section 3 of the Ordinance. In the present case, only the acts of detenu have been said prejudicial to the public order but not the activities of his organization. If the detenu has held a meeting with different people of the society, the concerned authorities must have collected some evidence to connect the detenu with such type of activities, therefore, when an act which concern only to an individual, it does not amount to an activity prejudicial to the public peace and tranquility and cannot fall within the ambit of Section 3 of the Maintenance of Public Order. Reference in this context can be made to the case of Mrs. Arshad Ali Khan Vs. Government of the Punjab through Secretary, Home (1994 SCMR 1532).
For the foregoing reasons, I find that the order of detention of the detenu does not fulfill the requirements of law and criteria laid down by the superior Courts to keep a citizen of the country under detention for a certain or indefinite period. Therefore, this writ petition is accepted. The impugned order of detention dated 09.08.2006 passed by Respondent No. 2 detaining the detenu Hafiz Muhammad Saeed is declared to have been passed illegally and not sustainable in law, hence set aside, the detenu shall be set at liberty forthwith if not required in any other case.
(Malik Sharif Ahmed) Petition accepted.
PLJ 2007 Lahore 73
Present: Sh. Azmat Saeed, J.
Ch. NAZIR AHMAD and 2 others--Petitioners
versus
PROVINCE OF PUNJAB through DISTRICT OFFICER (REVENUE)/COLLECTOR, LAHORE and 5 others--Respondents
W.P. No. 2079 of 2006, decided on 8.9.2006.
Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975)—
----S. 3--Punjab Land Acquisition Act, 1894, S. 5-A--Constitution, 1973, Arts. 23 & 24--Punjab Private Site Development Schemes (Regulation) Rules, 2005, R. 3(2)(g)--Transferring property to journalist foundation--Validity--Land subject-matter of Constitutional petition is evacuee land--Property in question could either be allotted to occupant or be disposed of through public auction--Act of respondents of transferring the property to the journalist foundation for the establishment of Journalist Housing Colony is illegal--In pursuance of the Punjab Journalists Housing Foundation Act, 2004 a housing scheme has been floated in the greater public interest--Petition were in occupation of land in dispute or where bona fide purchaser--Private land owners challenged the validity of notification under S. 4 of the land Acquisition Act, 1894 and the conditions, precedents for acquisition provided by Punjab Journalists Housing Foundation Act, 2004 not complied with Punjab Private Site Development Schemes (Regulation) Rules, 2005 have been violated--Acquisition of land is not a public purpose. [Pp. 81 & 82] A & B
1992 SCMR 1652, 1997 SCMR 503, 1991 CLC 456, 1985 CLC 2228, 1986 SCMR 188, PLD 1964 SC 536, PLD 1976 Lah. 747, PLD 1983 SC 457, PLD 1958 Dacca 280, AIR 1956 SC 294, PLD 1975 SC 37 A.G. Punjab placed rel.
PLD 1983 Lah. 552, PLD 1987 Pesh. 68, PLD 2004 Lah. 47, 2001 CLC 1853 (Pesh), 2001 YLR 3367, 1991 CLC 1001.
Constitution of Pakistan, 1973—
----Arts. 23 & 24--Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, S. 3--Scheme of Management and Disposal of Available Urban Properties, 1977, Para 30--Violation--Operation of law land in-question was "building site" situated within municipal limits and land in-question became available in terms of S. 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) was to be transferred to the Provincial Government in terms thereof and thereafter dealt with by the Provincial Government under a scheme to be prepared by it--Individual interest must given way to the interest of community or a part thereof and a part of the community must given way to the interest of the entire community--The individual can be deprived of his property for the purposes of providing housing to a specified class of citizens or any law or act in this behalf will not offend against Art. 24 of the Constitution--Further held: Project Housing Colony for Journalists under the auspices of the Punjab Journalists Housing Foundation established under the Punjab Journalities Housing Foundation Act 2004, is a public purpose and in the public interest both in the terms of the Punjab Land Acquisition Act 1894 and Paragraph 30 of the Scheme for the Management and Disposal of Available Urban Properties 1977 and the transfer or acquisition of land for the said purpose is not violative of Arts. 23 and 24 of Constitution of Pakistan 1973--Petitions dismissed.
[Pp. 83, 84, 85 & 87] C, D & E
Mr. M. Shahzad Shaukat, Advocate for Petitioner.
Mr. Aftab Iqbal Ch., A.G. Punjab & Malik Zafar Iqbal Awan, Addl. A.G. Mian, Qamar-uz-Zaman, Advocate for L.D.A.
Mr. Shahid Azeem, Advocate for City Distt. Govt.
Date of hearing : 28.7.2006.
Judgment
Through this consolidated judgment it is proposed to dispose of Writ Petitions Nos. 2079/2006, 5346/2006, 2589/2006, 2594/2006. 8173/2006, 3971/2006 and 5875/2006 filed before this Court to challenge the proposed establishment of Journalist Colony on land situated in Mauzas Rakh Chhabeel, Kot Dhun Chand, Bagrian Syedan and Mauza Harbanspura, Tehsil Cantt., District Lahore by the respondents.
Writ Petitions Nos. 2589/2006, 5875/2006, 3871/2006 & 2594/2006.
The land subject matter of the aforesaid Constitutional petitions is admittedly evacuee land. It is contended on behalf of the petitioners that the said land was allotted to various claimants by the Settlement Department. The said allotments came for scrutiny before the honourable Supreme Court which was pleased to declare the said allotments as illegal and without lawful authority vide its judgment reported as Muhammad Ramzan and others v. Member (Rev)/CSS and others (1997 SCMR 1635). It is alleged, that it was directed that the land in question be disposed of in accordance with a scheme framed by the Settlement Authorities. The petitioners who have filed that aforesaid constitutional petitions including, one in a representative capacity, claim that the land in question has been purchased by the petitioners and other occupants from ostensible owners thereof through registered sale-deeds and others documents. It is further contended that a large number of people are in occupation of the said land including the petitioners who have raised construction thereupon and private housing schemes have been established which are at various stages of development, hence are entitled to land in their occupation as bona fide purchasers. In the above prospective, it is contended, that the Chief Minister of the Punjab approved a summary dated 11.11.2004 directing that the petitioners and other occupants of the land who were "bona fide purchasers" would be adjusted on the land in their occupation and, therefore, the respondents cannot now gift away the land for the establishment of a Journalist Colony to the prejudice of the rights of the petitioners and other occupants. In the alternative it is contended that in terms of the Scheme for the Management and Disposal of Available Urban Properties dated 31st January, 1977 issued pursuant to Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 the property in question could either be allotted to the occupants applying under the said scheme and in terms thereof or be disposed of through unrestricted public auction, therefore, it is alleged, in the facts and circumstances of the case, the property in dispute could either be allotted to the petitioners and other occupants or disposed of through unrestricted public auction and the act of the respondents of transferring the property to the Journalist Foundation for the establishment of a Journalist Housing Colony is wholly illegal. In support of their contentions the learned Counsels have relied upon the judgments reported as Muhammad Ramzan and others v. Member (Rev)/CSS and others (1997 SCMR 1635) and Mian Atta Ullah v. Lahore Development Authority Tribunal & 5 others (1996 CLC 1943).
The respondents upon notice have filed their parawise comments/written statements.
The learned Advocate-General Punjab has also been heard along with the Additional Advocate-General Punjab as well as Counsels for the other respondents.
Neither in the comments nor at the bar the factum of the summary dated 11.11.2004 (copy thereof is on the record) was disputed or denied. In fact this aspect of the matter was studiously avoided and no comments were offered in writing or at the bar regarding the legal effect of the approval of the said summary. Similarly the learned Advocate General Punjab also did not comment on the Scheme framed for the disposal of available land or its application or otherwise to the lis at hand. It was merely contended that in pursuance of the Punjab Journalists Housing Foundation Act, 2004 a housing scheme has been floated and was being established in the greater public interest. It was, however, denied that the petitioners were in occupation of the land in dispute or were bona fide purchasers thereof.
Writ Petitions Nos. 2079/2006, 5346/2006 and 8173/2006.
The above captioned constitutional petitions have been filed by private land owners to challenge the validity of the notification under Section 4 of the Punjab Land Acquisition Act, 1894 dated 6.7.2005 and 31.12.2005 as well as the Corrigendum dated 27.5.2006 expressing the intention to acquire the land owned by the petitioners for the Journalist Colony. It is contended on behalf of the petitioners that the notifications dated 6.7.2005 and 31.12.2005 do not reflect the existence of the Punjab Journalists Housing Foundation Act, 2004 thereby denuding the same of all legality. It is further contended that the Corrigendum dated 27.5.2006 purports to be retrospective in nature, hence, is invalid. Even otherwise the said Corrigendum has been issued pendente lite. It is the consistent and declared policy of the Government of the Punjab that no private land shall be acquired for the establishment of housing scheme. It is added that the condition precedents for acquisition provided for by the Punjab Journalists Housing Foundation Act, 2004 have not been complied with in letter or in spirit and the actions purportedly taken in this behalf are ultra vires of the aforesaid Act of 2004. Hence the impugned notifications issued in furtherance thereof one also illegal and invalid. It is further contended that the Punjab Private Site Development Schemes (Regulation) Rules, 2005 have been violated and its application dispensed with without any legal or factual basis. The Foundation must first privately purchase 80% of the land before seeking acquisition of further land under the Punjab Land Acquisition Act, 1894. And provisions pertaining to acquisition of private land are to be construed strictly for the benefit of the citizens. It has been vehemently argued that the purported purpose for the acquisition of the land of the petitioners is not a public purpose as its beneficiaries are a small segment of the society rather than public at large. It is contended that even otherwise the whole process is mala fide inasmuch as the Government is attempting to benefit and appease the Journalists at the expense of private citizens so as persuade the said Journalists not to highlight the misdeeds of the Government. Lastly it was contended that the petitioners are being deprived of their valuable land for a mere fraction of its market price which is roughly 1/10th of the price that the Government was seeking from the occupants of adjacent to evacuee land (subject matter of the connected constitutional petitions) and the impugned action is violative of the fundamental rights of the petitioners more particularly those guaranteed by Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973. In support of their contentions the learned Counsels have relied upon the judgments reported as M/s. Army Welfare Sugar Mills Ltd. v. Federation of Pakistan etc. (1992 SCMR 1652), Taj Mahal Hotel LTD. etc. v. Karachi Water and Sewerage Board etc. (1997 SCMR 503), M/s. Sanghar Sugar Mills Ltd v. Federation of Pakistan etc (1991 CLC 456), Central Government of Pakistan v. Sardar Fakhar-e-Alam etc (1985 CLC 2228) Central Government of Pakistan v. Sardar Fakhr-e-Alam & another (1986 SCMR 188) E.A. EVANS v. Muhammad Ashraf (PLD 1964 SC 536), Muhammad Akbar etc. v. Commissioner Rawalpindi Division etc. (PLD 1976 Lahore 747), Fauji Foundation etc. v. Shamimur Rehman (PLD 1983 S.C. 457), Ajit Kumar Das. v. Province of East Pakistan (PLD 1958 Dacca 280), State of Bombay. R.S. Nanji etc. (A.I.R. 1956 SC 294), Pakistan through Secretary Ministry of Defence etc. v Province of Punjab etc. (PLD 1975 SC 37).
The learned Advocate General Punjab in response has stated that the land is being acquired for a public purpose and the Government alone is vested with the jurisdiction to determine whether a particular purpose is in the public interest or not. And this aspect of the matter is not justifiable by this Court. It is further contended that the petitioners have an alternative remedy of filing objections under Section 5-A of the Punjab Land Acquisition Act, 1894, hence, these constitutional petitions are not maintainable. Adds that the quantum of the compensation due to the petitioners will be determined through the process laid down under the Punjab Land Acquisition Act, 1894 by the fora established or mentioned therein and this Court in its constitutional jurisdiction cannot venture forth to determine fair compensation for which not only an alternative remedy is available but also would require a factual inquiry which is not possible to be undertaken by this Court in its constitutional jurisdiction. It is further contended that the Corrigendum is not only intra vires the law but also does not invalidate the acquisition proceedings. In support of his contentions the learned Advocate General Punjab and the Additional Advocate General Punjab has placed reliance on the following judgments:--
(PLD 1983 Lahore 552)
Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd., through the Secretary Fortress Stadium Lahore Cantt, and 2 others.
Government of Pakistan v. Sikandar Khan & others.
Bostan v. Land Acquisition Collector, Rawalpindi & 4 others.
Zafeer Gul & 19 others v. N.W.F.Province through Secretary, Government of N.W.F.P Revenue Department and Senior Member, N.W.F.P., Board of Revenue, Peshawar & others.
Administrator, Municipal Committee, Kotli & another v. Muhammad Abdullah & 3 others.
Mst. Nasreen Zohra v. Multan Development Authority through Director General & another.
Adverting first to the evacuee land, it appears that the same at various points of time was allotted to claimants for adjustment against pending verified P.I.Us and the honourable Supreme Court on examining Such allotments concluded that by operation of law the land in question was "building sites" and not available for transfer either as agricultural urban land or as agricultural land as the same was situated within the municipal limits of Lahore and were deemed to be building sites in view of the notification dated 16.5.1973 issued by the Chief Settlement Commissioner under the provisions of the Displaced Persons (Land Settlement) Act, 1968. Consequently, vide judgment in Muhammad Ramzan's case (Supra), the said allotments were held to be devoid of lawful authority and coram non judice by the honourable Supreme Court. In view of the aforesaid judgment of the apex Court the land in question "became available" in terms of Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 on 25th June, 1977 from the date thereof.
It appears from the record that on the initiation of City District Government, Lahore a summary was prepared and sent to the Chief Minister of the Punjab by the Nazim Proposing that "bona fide purchasers" in the existing housing schemes be adjusted and in cases of encroachment cost of land be taken from the occupants as determined by the District Price Assessment Committee. The said summary prepared on 10.11.2004 was approved by the Chief Minister on 11.11.2004. Subsequently, the same land or a substantial part thereof has now been made available to the Journalist Foundation by the respondents with the approval of the Chief Minister of the Punjab, the act impugned in the present constitutional petitions. It appears that the Government of the Punjab has acted in the highest traditions of Lord Balfour and the land in question like Palestine has become a twice promised land.
It has been noted with great interest that the aforesaid summary has been initiated by the City District Government Lahore which has no right or interest in the said land which vested in Central Government to be transferred to the Provincial Government in terms of Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 and was to be dealt with in accordance therewith as was also held by the honourable Supreme Court in Muhammad Ramzan's case (Supra).
It has also been noticed that the said summary is the outcome of decisions taken at a meeting presided over by the Zila Nazim, Lahore which was attended by the representatives of the occupants, the D.C.O and the Members of the Local Police including D.S.P., C.I.A. but the Chief Settlement Commissioner or his representative are conspicuous by their absence. Even otherwise an approval by the Chief Minister of the Province of a summary may not in every event have binding effect and legal consequences. For instance if a summary suggesting an amendment in a provincial statute is approved by the Chief Minister legal consequences will flow only if the statute is amended in accordance with the Constitution of Islamic Republic of Pakistan, 1973 i.e. by way of enactment of an amending Act by the Provincial Assembly or by the promulgation of an Ordinance in this behalf issued by the Governor of the Province. Similarly if a summary is approved suggesting amendment in the rules, legal consequences will flow upon the implementation thereof by the actual amendment of the rules by the competent designated authority. In the instant case too legal consequences would arise only upon the implementation in law of the decisions approved by the Chief Minister. The land in question having become available in terms of Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 was to be transferred to the Provincial Government in terms thereof and thereafter dealt with by the Provincial Government under a Scheme to be prepared by it in this behalf. Thus, the approval of the summary must necessarily have been followed by the formulation and issuance of a fresh scheme under Section 3 of Act XIV of 1975 before any legal consequence would follow or any right accrue. It is not the case of any of the parties before this Court that any such fresh new scheme was ever issued by the Provincial Government under Section 3 of Act XIV of 1975 pursuant to or embodying the summary approved by the Chief Minister on 11.11.2004. In the circumstances the petitioners cannot claim any vested right qua the land in question on the basis of the approval of the said summary by the Chief Minister.
It may be noted that the claim of the petitioners qua the land in question, on the factual plane, has not been verified through an inquiry involving the recording of evidence. Even otherwise, the claim of the alleged predecessors-in-interest of the present petitioners regarding the same land was the subject matter of the proceedings before the honourable Supreme Court in Muhammad Ramzan's case (Supra) wherein it was held that the allotment orders in their favour were coram non judice and a nullity in the eye of law. Specific directions were issued for further dealing with the said land. The petitioners as the alleged successors-in-interest are bound by the said judgment of the honourable Supreme Court. Thus, not only the petitioners nor their alleged predecessors-in-interest have any right, title or interest in the said land whatsoever but also the alleged summary was, on the face of it, in violation of the dictum laid down by the honourable Supreme Court.
It is common ground between the parties that in fact a scheme i.e the Scheme for the Management and Disposal of Available Urban Properties dated 31st of January, 1977 had been issued by the Provincial Government pursuant to Section 3 of Act XIV of 1975 which, as amended from time to time, would be applicable to the land in question. It is in this context that the learned Counsel for the petitioners have contended that the land must necessarily be disposed of in terms of provisions of the said scheme i.e. either to the persons specified therein, on terms and conditions enumerated thereby or in the absence thereof by unrestricted public auction as is specifically mentioned in paragraph 11 which reads as follows:--
"11 Sale by auction.--A house, shop or a building site having permanent construction for the transfer of which no application is received and every property that is cancelled from the name of a defaulter and a vacant building site shall be disposed of by unrestricted public auction."
"30. Powers to transfer properties in public interest.--The Member, Board of Revenue (Residual Properties), may transfer, in public interest any available property in such manner and on such price as he may deem proper".
In the instant case, pursuant to a letter dated 23.9.2005 of the Board of Revenue Punjab in purportd exercise of powers conferred under paragraph 30 of the said Scheme vide mutation dated 26.9.2005, 923 kanals and 15 marlas of the said land has been made available to the Journalist Foundation. The learned Counsel for the petitioners contended that such transfer is ultra vires of paragraph 30 of the scheme as the transfer has not been effected in the public interest inasmuch as the said transfer is for the benefit of a limited segment of the society and not the public at large.
In respect of Writ Petitions Nos. 2079/2006, 5346/2006 and 8173/2006 challenging the notifications under Section 4 of the Punjab Land Acquisition Act, 1894 the main thrust of the argument of the learned Counsel for the petitioners is that the acquisition of the land for the Journalist Housing Colony is not a public purpose as it is for the benefit for a limited group of people, hence, the notifications are not only ultra vires the Punjab Land Acquisition Act, 1894 but also violative of the fundamnetal rights of the eptitioners as embodied in Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973.
It has been noticed that in Para 30 of the Scheme, the expression employed is "Public Interest" while in Punjab Land Acquisition Act, 1894, the expression "Public Purpose" is used. It is difficult to elaborate the latter expression without using the former. In fact, two expressions may be for all practical purpose be interchangebale.
In the judgment reported as Ajit Kumar Das v. Province of East Pakistan represented by Secretary Finance and Revenue (Revenue) Department, Government of East Pakistan and others (PLD 1958 Dacca 280) it has been held as follows:
"Now in this Section, the words used are public interest'. We however do not see much distinction between the expressionpublic purpose' and public interest'.
In any event the wordpublic' denotes that the requisition must be for the benefit of the people in general as distinguished from a particular individual".
In the light of the above, it is clear and obvious that the pivotal question requiring adjudication by this Court is whether a housing scheme for the benefit of a specified segment of the society is for a public purpose and in the public interest, in terms of the Punjab Land Acquisition Act, 1894 and Paragraph 30 of the Scheme for the Management and Disposal of Available Urban Properties. The aforesaid question has repeatedly come up for adjudication. A learned Division Bench of the Peshawar High Court in a case reported as Zafeer Gul & 19 others v. N.W.F. Province through Secretary, Government of N.W.F.P Revenue Department and Senior Member, N.W.F.P., Board of Revenue, Peshawar & 5 others (2001 CLC 1853) was confronted with the question whether acquisition of land for the construction of a Housing Colony for WAPDA Employes was a "public purpose". The Court, inter alia, after examining the judgment reported as:--
(AIR 1962 SC 764)
R.L. Arora v. The State of Uttar Pradesh & others.
Anand Kumar and another v. State of M.P. & others.
Veeraraghavachariar & others v. The Secretary of State for India.
Pakistan, through Ministry of Works, Government of Pakistan, Karachi & another v. Muhammad Ali & others.
concluded that "the land required for establishing residential Colony for the WAPDA Employees falls in the category of public purpose". Constitutional petitions challenging the acquisition of land for the Lahore Cantonment Co-operative Housing Society Limited (as it then was) were dismissed by this Court vide judgment reported as Dr. Muhammad Nasim Javed v. Lahore Contonment Housing Society Ltd., through the Secretary Fortress Stadium Lahore Cantt, and 2 others (PLD 1983 Lahore 552). Acquistion of land for the Army Welfare Trust was challenged before this Court, inter alia, on the ground that it was not for a public purpose. The said constitutional petition was dismissed by this Court vide judgment reported as Bostan v. Land Acquisition Collector, Rawalpindi & 4 others (PLD 2004 Lahore 47). Similar issue also came up before the honourable Supreme Court of Pakistan when land was sought to be acquired under the Land Acquisition Act, 1894 for the benefit of the Revenue Employees Co-operative Housing Society. Such land was already earmarked and required, inter alia, for the establishment of Telephone Exchange, Building Workshops etc by the Telephone and Telegraph Department of the Federation. The question raised was that the land was not be being acquired for a public purpose as its beneficiaries were only a limited segment of the society. The honourable Supreme Court of Pakistan in its judgment reported as Federation of Pakistan through G.M. Telegraph & Telephone Department. Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore & 2 others (1993 SCMR 1673) was pleased to hold as follows:
"The submission is that the words "amongst others" have reference to the requirement of the land for the purpose of Telephone Exchange Department, Workshop, Public Call Office, Dispensary and accommodation for emergency staff, as disclosed in the letter aforesaid. The contention is well grounded. The High Court was not justified in ignoring the objects for utilization of the land by the Telegraph and Telephone Department stated in their said communication, which decidedly is a public purpose of higher order as compared with the one for which the land is acquired for use by the Board of Revenue Employees Housing Society Ltd., namely, construction of housing colony. The reason being that so far as the latter is concerned only a section of the society would be benefited by the acquisition of the land but its utilization by Telegraph and Telephone Department involves the interest of the public at large".
"These two decisions, in my opinion, furnish ample authority for holding that the provision of residences is not by itself a matter falling outside the concept of a "public purpose" provided that it is part of a scheme for making general provision of that character. Secondly, the provision of residences for a particular class of persons, even though it may operate so as to provide a particular residence for a particular member of that class is also not excluded from the meaning of the expression "public purpose", nor does it make any difference whether the residences are for completely unprivileged persons like coolies, or for those enjoying the patronage of Government in the capacity of officers. And the further conclusion which emerges from these decisions is that the provision of such residences my be included within the meaning of the expression "public purpose....."
A perusal of the aforesaid judgments more particularly of the apex Court reveal the providing a housing for a limited and specified segment of the society is a public purpose though where the benefit would enure to the entire community the same would be a higher public purpose. In shot the individual interest must give way to interest of the community or a part thereof and a part of the community must give way to the interest of the entire community or public at large.
"24 (1) Protection of property rights.--No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of--
(a) .........................
(b) .........................
(c) .........................
(d) .........................
(e) any law providing for the acquisition of any class of property for the purpose of--
(i) .........................
(ii) providing housing and public facilities and services such as road, water supply, sewerage, gas and electric power to all or any specified class of citizens: or
(iii) .........................
The aforesaid provision of the Constitution makes it clear and obvious that the individual can be deprived of his property for the purposes of providing housing to a specified class of citizens and any law or act in this behalf will not offend against the fundamental right granted under Article 24 of the Constitution of Islamic Republic of Pakistan, 1973.
In view of the aforesaid dictum of the superior Courts more particularly the hounourable Supreme Court of Pakistan and the provision of the Constitution reproduced above this Court has no hesitation in holding that establishment of a housing colony for the benefit of a specified segment of citizens does not offend against the fundamental rights enshrined in the Constitution of Islamic Republic of Pakistan, 1973 and is also a public purpose and in the public interest both in terms of the Punjab Land Acquisition Act, 1894 as well as paragraph 30 of the Scheme for the Management and Disposal of Available Urban Properties of 1977. Of course it would require to be examined as to where the benefiting segment of citizens is located in the economic and social payramid of the Pakistani society. It is not necessary that such citizens be a very bottom of social and economic strata. Needless to say that business ventures motivated by commercial gains would obviously also not be included in such exception.
The land in question both evacuee and private is purportedly earmarked for establishment of a housing colony for Journalists under the auspices of the Punjab Journalists Housing Foundation Act, 2004. In terms of Section 3 of the said Act the Foundation is to be established to be known as the Punjab Journalists Housing Foundation for the purpose of inter alia acquiring or purchasing and developing land for setting up housing schemes. The persons eligible for allotment of plots under such schemes are mentioned in Section 7 of the said Act and include Council Members of the Press Club, Employees of the Punjab Information Department and Employees of the Broadcast Media. It is also provided in Section 7 of the Act that each eligible person shall be entitled to one plot which shall not be available for alienation for a period to be specified by the Foundation In the instant case the record reveals that the Foundation was established vide notification dated 24th June, 2004. In the first meeting of the Board of Directors of the Foundation held on 15th of June, 2005 it has been decided that the said Housing Scheme be established and at least 4/5th of the plots thereof be allotted to Members of the Press Club while the balance being available for allotment to the Employees of the Punjab Information Department and of the Broadcast Media. The area of plots was designated as 10 marlas and 5 marlas. It has also been decided that the price of the said plots would be Rs. 3.5 lacs and Rs. 1.75 lacs respectively. It has also been provided that the title to the plots would only be transferred five years after the completion of the house thereupon.
The overwhelming majority of the persons eligible for allotment of the plots are working Journalists who though performing a very vital and important function for the society are certainly not an affluent segment of the community. It is also clear and obvious that entire exercise is not a commercial venture for the benefit of any particular individual developer. Similarly the usual safeguards against speculations have also been put into place. Thus, there is nothing in the Act nor the minutes of the meeting of the Board of Directors of the Foundation which would persuade this Court to hold that the beneficiaries of the housing colony are not a segment of citizens of Pakistan deserving or requiring a housing colony for them. Similarly the venture does not appear to be commercial in nature.
The upshot of the above discussion is that the project at hand i.e the Housing Colony for Journalists under the auspices of the Punjab Journalists Housing Foundation established under the Punjab Journalists Housing Foundation Act, 2004 is a public purpose and in the public interest both in terms of the Punjab Land Acquisition Act, 1894 and paragraph 30 of the Scheme for the Management and Disposal of Available Urban Properties 1977. And the transfer or acquisition of land for the said purpose is not violative of Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973.
Adverting now to the contention of the learned Counsel for the petitioners that the acquisition under the Punjab Land Acquisition Act, 1894 is violative of Rule 3 (2) (g) of the Punjab Private Site Development Schemes (Regulation) Rules, 2005 which reads as follows:--
"3. Submission of application--
(1) A Developer shall submit an application for sanction of Scheme to (a) the Lahore Development Authority in case Scheme falls in the area of City District, Lahore, (b) concerned Development Authority in case Scheme falls in its controlled area as defined under the Development of Cities Act, 1976 and (c) the concerned Tehsil Municipal Administration (TMA) in all others cases.
(2) No such application shall be entertained unless it is accompanies by:--
(a)
(b)
(c)
(d)
(e)
(f)
(g) details of land proposed to be acquired, if any, provided that land proposed to be acquired shall not exceed 20 % of the total area of the housing scheme.
A perusal of the said rules reveals that any Developer must submit an application seeking sanction of a private housing scheme under the said rules which have been framed under Section 191 of the Punjab Local Government Ordinance, 2001. Rule 3 spells out the details of material which must accompany such application. Rule 3 (2) (d) requires that a location plan and lay out of the scheme must be provided. Sub-rule 2 (g) provides that the details of the land forming part of the scheme which does not vest in the Developer must also be identified and such land should not be more than 20 % of the total scheme. The only logical interpretation of the aforesaid sub rule is that while applying for sanction of a scheme a detailed lay out and location of the scheme identifying the land forming part thereof must be made available and for purposes of sanction 80% of land forming part of Scheme must already vest in the Developer with only 20% to be purchased or acquired subsequently. The learned Counsel is perhaps reading too much into the word "acquire" the Rules 2 (2) (g). It is clear and obvious that the said word has been used in its literal, general and generic sense meaning to purchase and not necessarily acquired in terms of the Land Acquisition Act. Therefore, the contention of the learned Counsel that the Foundation in question must first own 80 % of the land before setting into motion proceedings under the Punjab Land Acquisition Act, 1894 is wholly misconceived. Even otherwise, this question would arise when and if such a scheme framed by the Foundation is presented for sanction before the designated authority under the said rule. Needless to say that the said rules are unhappily worded ad whether the same apply to a public as opposed to a Private housing scheme floated by a Foundation set up by the Government is also questionable.
The learned Counsel for the petitioners had laid great emphasis on the fact that in the original notifications under Section 4 of the Punjab Land Acquisition Act, 1894 dated 16.7.2005 and 31.12.2005, the expression "under Punjab Journalists Housing Foundation Act 2004" is absent and has been added vide the corrigendum dated 27.5.2006. The effect of a corrigendum to a notification under the Punjab Land Acquisition Act, 1894 is well settled.
Corrigendum merely means a thing to be corrected or rectified. A notification under the Land Acquisition Act can always be rectified and corrected by way of issuance of corrigendum in exercise of powers conferred under Section 21 of the General Clauses Act 1887 and such an exercise does not vitiate or wash away the notification as has been held in the judgment reported as Government of Pakistan v. Sikandar Khan and others (1987 Peshawar 68).
In certain cases, issuance of corrigendum may at best affect the material date for purposes of ascertaining the compensation as has been held in the judgment reported as Central Government of Pakistan v. Sardar Fakhar-e-Alam and another (1985 CLC 2228). In the instant case, no substantial or material change has been affected in the public purpose for which land has been acquired, which has merely been amplified.
The learned Counsel appearing on behalf of the private land owners whose land has been included in the notifications under Section 4 of the Punjab Land Acquisition Act, 1894 have expressed their fear that fair compensation shall not be paid. Suffice it to say that fair compensation can only be determined after a factual inquiry requiring the recording of evidence which is not possible in the exercise of conditional jurisdiction by this Court. Furthermore, adequate alternative remedies are available under the Punjab Land Acquisition Act, 1894 whereby the grievance, if any, of such land owners can be redressed as and when the occasion arises.
The upshot of the above discussion is that the alleged occupants of the evacuee land have no right, title or interest therein and the utilization of such land along with land owned by private individuals for the establishment of a Journalist Colony by the Foundation established under the Punjab Journalists Housing Foundation Act, 2004 is in the public interest and for a public purpose. The requisite processes in this behalf have been duly initiated and instituted by the respondents. Consequently all the constitutional petitions being without any merit are hereby dismissed with no order as to costs.
(Malik Sharif Ahmed) Petitions dismissed.
PLJ 2007 Lahore 87
[Rawalpindi Bench Rawalpindi]
Present: Ali Nawaz Chowhan, J.
M/s IMRAN TRADERS through its proprietor Imran Younas--Petitioner
versus
MINISTRY OF COMMERCE through its Secretary, Govt. of Pak. Islamabad and 4 others--Respondents
W.P. No. 708 of 2006, heard on 20.3.2006.
Constitution of Pakistan, 1973—
----Art. 199--Anti-Dumping Duties Ordinance, 2000, Ss. 24, 27, 37 &64, 65 & 66--Imposition of dumping duty against the Proclaim/Ceramic Tiles being imported from abroad including China, apprehensions of--Petitioners alleged before the Court that the investigation had commenced in respect of goods without following the provisions of S. 27 of Anti-Dumping Duties Ordinance--No formal investigation was underway and assured that the provisions of the Ordinance would be fully followed and every body would be notified if the investigation was to commence--Held: Merely the receipt of certain information by the commission did not mean that it had either suo motu or acting under
S. 24 or on the application of a third party initiated investigation because only such proceedings in investigation would be valid where the requirements of S. 27 had been met as a preclude and not otherwise--Petition disposed of. [P. 93] A, B & C
Mr. Shafqat Mahmood Chohan, Advocate for Petitioner.
Mr. Sikandar Bashir, Advocate assisted by Mr. Mazher Bangash, Legal Advisor for Respondents.
Date of hearing: 20.3.2006.
Judgment
This judgment shall dispose of the following Writ Petitions 708/2006, 707/2006, 706/2006, 748/2006, 749/2006, 750/2006, 751/2006 & 582/2006.
The petitioners are importers of Porcelain/Ceramic Tiles and Sanitary-Wares. These goods are being imported from abroad including China to meet the requirements of the people of Pakistan. It is said that the sweep of the import is not beyond 20%. That the local producers are not producing enough of such goods and, therefore, even the import to the extent mentioned above was unable to meet the current needs of the country.
The petitioners learnt through news published in Chinese newspaper that the Government of Pakistan was contemplating to impose dumping duty against the tiles being imported into Pakistan.
Not only this, they also received a notice from China reflecting such a situation and asking these importers to provide them information in this connection. There has been exchange of letters between parties involved in this import as well as between the Ministry of Commerce on this subject.
As bit-by-bit the information came to the private parties, their doubts were re-enforced about the imposition of the duty under the Anti-Dumping Duties Ordinance, 2000.
They have come to this Court stating that as the matter was not being clarified and was kept obscured, they apprehended the imposition of duty under this law. That the respondents be given directions not to impose such duty without first adherence to the procedural aspect reflecting in this law.
The National Tariff Commission as a respondent appeared before this Court to state that the petitioners were unnecessarily apprehensive regarding the imposition of the duty. They submitted their written comments, which read as follows:--
"2. Respondent No. 2 is a body corporate established under the National Tariff Commission Act, 1990. Respondent No. 2 is responsible for conducting anti-dumping investigations and subsequent imposition of anti-dumping duties, where required, under the Anti-Dumping Duties Ordinance, 2000 (the "Ordinance") and the Anti-Dumping Duties Rules, 2001 (the "Rules") framed thereunder. The Ordinance and the Rules lay down a procedure for investigation to be followed before the imposition of anti-dumping duties (Brief summary of the stages involved in an investigation is annexed at Annexure A).
Respondent No. 2 has not initiated any investigation on imports of tiles from China. The Writ Petition is misconceived and premature.
Respondent No. 2 received an anti-dumping application under Section 20 of the Ordinance on behalf of the domestic industry through Master Tiles & Ceramics Limited on February 23, 2006 (Application). No anti-dumping application regarding ceramic tiles was received before this date and, therefore, the responses to Pakistan Sanitary Merchants and Manufacturers Association (PSMMA) referred to in the title Writ Petition represented the correct position. The Respondent No. 2 is also under a duty not to publicize an application until it has made a decision to initiate and investigation under Rule 4 of the Rules.
In compliance with Section 21 of the Ordinance, upon receipt of the Application the Respondent No. 2 gave notice to the Government of China on February 24, 2006 of receipt of the Application alleging dumping of ceramic titles (copy of the letter notifying the receipt of the Application is annexed at Annexure B).
In compliance with Section 23 of the Ordinance, Respondent No. 2 is presently examining the accuracy and adequacy of the evidence provided in the Application to determine whether there is sufficient evidence to justify the initiation of an investigation. It is only when Respondent No. 2 is satisfied that (a) an application under Section 20 has been made by or on behalf of the domestic industry; and (b) there is sufficient evidence of dumping and injury within the meaning of the Ordinance, Respondent No. 2 shall initiate an investigation. Respondent No. 2 also has the option to reject the application as soon as it is satisfied that there is not sufficient evidence of either dumping or of any injury to justify initiation of an investigation. The Respondent No. 2 is required to normally make this decision within a period of 45 days as required by Rule 5 of the Anti-Dumping Duties Rules, 2001 (Rules) and in the present case this period will expire on April 9, 2006. Also, as aforesaid, under Rule 4 of the Rules. Respondent No. 2 is obliged not to publicize an application unless a decision has been made to initiate an investigation. The Respondent No. 2 has, therefore, not publicized the receipt of the application.
It is only upon the initiation of the investigation that Respondent No. 2 is required, under Section 27 of the Ordinance, to give notice to all exporters, importers and any representative associations of importers or exporters known to Respondent No. 2 to be concerned, as well as representatives of the exporting country, the application and other interested parties known to Respondent No. 2 to have an interest therein and publish a copy of such notice in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan.
Respondent No. 2, after initiation of an investigation, is further obliged under Section 28 of the Ordinance to provide any interested party the full text of the written application (non-confidential) received under sub-section (i) of Section 20 of the Ordinance."
Verbally it was said that the law shall be followed in letter and spirit.
The Anti-Dumping Duties Ordinance, 2000, was inspired by Article 6 of the General Agreement on Tariffs and Trade, 1994, with a purpose of imposing duties to offset injurious dumping in the public interest.
At the end of Second World War, a number of international negotiations were set in motion for creating institutional structures for the conduct of international relations in the post-war world. In this connection, a conference had been held in Havana, Cuba in 1947 called as the United Nations Conference on Trade and Employment. A Charter after the end of the conference was adopted. But as the United States did not ratify it, the Havana Charter remained a stillborn child.
However, keeping in view the productive discussion which had taken place at Havana and while taking an aberration from the politics involved in connection with its ratification, a group of countries engaged themselves in tariff negotiations and in the same year (1947) agreed on substantial tariff reductions.
Pending the enforcement of the Havana Charter, a mechanism was required for the implementation and protection of the tariff concessions negotiated in 1947. This led to the birth of the General Agreement on Tariffs and Trade commonly called as GATT.
Its provisional status shall continue untill the Havana Charter is adopted.
Pakistan is a signatory alongwith other 22 countries to the Protocol of Provisional Application of GATT and a law was required which has now come about.
GATT since its inception provided a structure for the global process of steady and trade liberalization through eight "rounds" of multilateral trade negotiations sponsored by its Contracting Parties, covering progressively larger volumes of international trade. This process evolved with its own dynamics, through the initial years of the Cold War, the emergence to independence of many developing countries, the creation of the European Communities, the rise of new and important trading countries, the transition of many countries to market economies, the increasing globalization of the world economy, and into the consolidation of the multilateral trading system through the establishment of the World Trade Organization.
This process of trade liberalization achieved the reduction of tariff rates on industrial products in developed countries from an average of around forty per cent to less than four per cent; the practical elimination of quantiative restrictions; the development and strengthening of clear rules for the administration of different trade policy measures (such as safeguards, subsidies, anti-dumping duties, technical barriers to trade); and development of procedures to resolve disputes. The eighth GATT round the Uruguay Round, carried this liberalization forward. It also initiated a process of reform of agricultural support and protection, established and launched a process for reintegration of the textiles and clothing section into GATT, established multilateral rules in new areas of international economic interaction (such as trade in services and protection of intellectual property rights); and established a solid institutional and legal basis for the multilateral trading system through the creation of the World Trade Organization and its greatly strengthened dispute settlement system.
It is an established fact that since the entry into force of the GATT, world trade growth has consistently outpaced growth in world industrial production.
It may be mentioned that WTO is another Organization which has come about as a sequel to GATT. The GATT rules applied trade in goods. The WTO Agreement covers trade in goods, trade services and trade-related aspects of intellectual property rights.
Whilst the GATT was a multilateral instrument, a series of new agreements were adopted during the Tokyo Round on a plurilateral that is, selective basis, causing a fragmentation of the multilateral trading system. The WTO has been adopted, and accepted by its Members, as a single undertaking the agreements which constitute the WTO are all multilateral, and therefore, involve commitments for the entire membership of the organization.
The Anti-Dumping Duties Ordinance, 2000, has 77 sections. The initial thing is the identification of dumping and Section 4 of the Ordinance speaks about it in the following words:--
"Identification of dumping: For the purposes of this Ordinance, an investigated product shall be considered to be dumped if it is introduced into the commerce of Pakistan at a price which is less than its normal value."
"Application by or on behalf of domestic industry: (1) For the purposes of Section 20, an application shall be considered to have been made by or on behalf of domestic industry only if it is supported by those domestic producers whose collective output constitutes more than fifty per cent of the total production of a domestic like product produced by that portion of the domestic industry expressing either support for or opposition to the application.
(2) For the purposes of Section 23, no investigation shall be initiated when domestic producers expressly supporting an application account for less than twenty five percent of the total production of a domestic like product produced by domestic industry.
(3) In the case of fragmented industries involving an exceptionally large number of producers, the Commission may determine support and opposition for an application submitted under Section 20 by using statistically valid sampling techniques."
The Commission however, may suo moto initiate an investigation upon receipt of sufficient evidence and it may be also proceeded for purposes of investigation and anti-dumping measures on an application made by a third country.
However, before initiating the investigation, the requirements of Section 27 are to be fulfilled. Section 27 reads as follows:--
"Notice of decision to initiate investigation: (1) When the Commission has decided to initiate an investigation it shall:--
(a) give notice to all exporters, importers and any representative associations of importers or exporters known to the Commission to be concerned, as well as representatives of the exporting country, the applicant and other interested parties known to the Commission to have an interest therein; and
(b) publish a copy of such notice in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan.
(2) The notice of initiation of an investigation referred to in sub-section (1) shall be such form and contain such information as may be prescribed and the initiation of investigation shall be effective on the date on which such notice is published in the newspapers as provided for in Clause (b) of sub-section (1).
While conducting the investigation, the Commission may observe confidentiality in respect of informers.
According to its Section 37, it may make preliminary determination and then proceed further. The Ordinance also provides the provisions for appeal to an appellate tribunal to be constituted as per the provisions of Sections 64 to 66. Under the Ordinance, the Commission can also make its rules.
What was alleged before this Court is that the investigation had commenced in respect of the aforementioned goods without following the provisions of Section 27. But now we have categorical replies that no formal investigation was underway. There is also an assurance that the provisions of the Ordinance shall be fully followed and every body shall be notified if the investigation is to commence.
Therefore, merely because the Commission is in receipt of certain information, does not at all mean that it has either suo moto or acting under Section 24 or on the application of a third party had initiated investigation because only such proceedings in investigation would be valid where the requirements Section 27 have been met as a prelude not otherwise.
Since it is a new law and it has not been fully introduced, it was essential to give its short history above and dilate on the provisions of the Ordinance. As public will gradually become aware of the Ordinance and its mechanics, the fears and apprehensions would be set at rest. These fears are also arising because of the WTO and there is need for educating people about it.
As no investigation is taking place, the petitioners should not be apprehensive of any adverse action under the Ordinance. For the time being, the Writ Petitions having born fruit, are disposed of.
(Mehmood Ahmed Alwari) Petitions disposed of.
PLJ 2007 Lahore 94 (DB)
Present: Mian Hamid Farooq & Syed Hamid Ali Shah, JJ.
MUHAMMAD WASIL KHAN SHERWANI--Appellant
versus
EHSAN-UL-HAQ SETHI--Respondent
RFA No. 365 of 2005, heard on 14.3.2006.
Civil Procedure Code, 1908 (V of 1908)—
----O. XV, R. 1 & S. 96--Specific Relief Act (I of 1877), S. 12 Suit for specific performance--On receiving the balance consideration--Respondent did not contest the suit and while admitting the contents of plaint, with regard to the payment of earnest money and balance consideration price, unequivocally agreed and stated that appellant deposited remaining consideration price, he has no objection for decreeing the suit--Respondent did not contest the same and parties were not at issue on any of the question of law and fact--The Court should have at once pronounced the judgment and passed decree for specific performance, favoring the appellant subject to deposit of the remaining consideration--Held: No justification for adjournment--Directing the appellant to appear in person, more so, when he was duly represented through his counsel--Trial Court fell into a grave legal error in further processing the suit--Case was remanded. [Pp. 96 & 97] A & B
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11 & S. 96--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Lack of cause of action--Trial Court rejected the plaint of appellant on the ground of no cause of action--Respondent neither filed the written statement nor contested the suit of the appellant and straightway conceded the claim of the appellant by making the statement--Plaint of the appellant could not be rejected--Respondent did not fall under any of the categories enumerated in O. VII R. 11 of CPC--No case for rejection of plaint was made out under the provision of O. VII R. 11--Appeal was allowed. [P. 97] C
Mian Jameel Akhtar, Advocate for Appellant.
Syed Imdad Hussain Shah and Muhammad Nasir Iqbal Siddiqui, Advocates for Respondent.
Date of hearing : 14.3.2006.
Judgment
Mian Hamid Farooq, J.--Present first appeal, proceeds against judgment and decree dated 21.7.2005, whereby the learned trial Court, in exercise of its powers under Order VII, Rule 11 CPC, rejected the plaint in appellant's suit for specific performance of agreement to sell.
Precisely stated facts of the case are that the appellant/plaintiff filed the suit for specific performance of agreement to sell, dated 13.2.2005, against the respondent, inter alia, pleading that the respondent, through the execution of agreement to sell dated 13.2.2005, agreed to sell the questioned property (House Bearing No. 672, Block-B, Faisal Town, Lahore, measuring 10-Marlas) to the appellant for a consideration of Rs. 56,00,000/-, out of which a sum of Rs. 10,000/- was received as earnest money and the receipt was executed. It was the case of the appellant that remaining consideration price of Rs. 55,90,000/- was payable on 14.4.2005, however, before the said date the respondent tried to dispose of the property, which necessitated filing of the suit for permanent injunction, wherein status quo order was passed. According to the appellant although he was ready and willing to perform his part of the agreement, yet the respondent prolonged the matter, which resulted in filing the suit for specific performance. The respondent entered appearance and, on 16.5.2005, stated before the Court that in case the remaining consideration price is paid by the appellant within fifteen days, he has no objection for decreeing the suit. The learned trial Court, after recording the said statement, adjourned the case for recording statement of the plaintiff, who despite providing various opportunities, did not appear before the Court. The respondent, then, filed the application under order VII Rule 11 CPC, seeking rejection of the plaint on the ground that the appellant failed to deposit the remaining consideration price (Rs. 55,90,000/-) within a period of fifteen days, therefore, the plaint does not disclose any cause of action and it is liable to be rejected. The appellant resisted the said application, through filing its reply, and ultimately the learned trial Court rejected the plaint, vide impugned judgment and decree dated 21.7.2005, hence the present first appeal.
Learned counsel for the appellant has contended that as soon as the respondent made the statement, thereby admitting the claim of the appellant, the learned trial Court was obliged under the law to pass a decree for specific performance, subject to deposit of remaining consideration price. He has further submitted that under the circumstances, the plaint could not have been rejected. Contrarily, the learned counsel for the respondent has submitted that offer made by the respondent by making statement, on 16.5.2005, was not accepted by the appellant, who did not deposit the remaining amount, inasmuch as he did not enter appearance before the learned trial Court, therefore his plaint was rightly rejected by the learned trial Court. They have further submitted that statement was recorded on 16.5.2005, but up till now the appellant has not deposited the remaining consideration price.
We have heard the learned counsel and examined the summoned record, which has been received today. The respondent/defendant, in response to appellant's suit for specific performance, when appeared before the learned trial Court, made a statement on 16.5.2005, thereby admitting the claim of the appellant and stated that he had already received a sum of Rs. 10,000/- and if the remaining consideration price of Rs. 55,90,000/- is paid by the appellant/plaintiff, then he has no objection for decreeing the suit. The said statement was signed by the respondent as well as his learned counsel. Even otherwise, the respondent does not deny that the said statement was not made. Thereafter, the learned trial Court adjourned the case for personal appearance of the appellant. It appears appropriate to reproduce order dated 16.5.2005, which reads as follows:--
It is evident from the aforesaid statement that the respondent did not resist the suit and while admitting the contents of the plaint, with regard to the payment of earnest money and the balance consideration price, unequivocally agreed and stated that if the appellant deposits remaining consideration price, he has no objection for decreeing the suit. It flows therefrom that when the suit was fixed before the learned trial Court, the respondent did not contest the same and the parties were not at issue on any of the questions of law and facts, therefore, under the provision of XV Rule 1 CPC, the Court should have, at once, pronounced judgment, thereby passing a decree for specific performance, favouring the appellant, subject to the deposit of the remaining consideration price within a period of 15 days. If any case law is needed, judgments reported as Directorate of Small Industries Government of Balochistan through Sales Manager, Karachi Airport, Karachi vs. Civil Aviation Authority through Director General and another (1993 MLD 1836) and H. Gharibullah vs. Mst. Mumtaz Begum and others (1990 CLC 1609), can be referred. However, strangely enough, instead of decreeing the suit, the learned trial Court called upon the appellant to appear in person for recording his statement. At that stage, there was no need to summon the appellant for recording his statement, as his suit for specific performance, verified on oath and signed by him, was before the Court, and the appellant, being the plaintiff, could not deviate or resile from the contents of the plaint. To our mind, there was no justification for adjournment of the case, on 16.5.2005, and directing the appellant to appear in person, more so, when he was duly represented through his learned counsel on 16.5.2005the learned trial Court fell into a grave legal error in further processing the suit.
As noted above, the learned trial Court on 16.5.2005, recorded the statement of the respondent, called upon the appellant to appear in person and adjourned the case. The appellant at no stage was required and directed by the Court to deposit the remaining consideration price, thus, it cannot be legitimately argued or held that the appellant failed to deposit the remaining consideration price. Had there been any direction by the Court for deposit of the amount, then the respondent may have some case in case of non-compliance.
We have also examined the impugned order and are of the view that the case as made out by the respondent does not fall under any of the categories enumerated in Order VII, Rule 11 CPC. The respondent neither filed the written statement nor contested the suit of the appellant and straightaway conceded the claim of the appellant by making the statement, as noted above. To our mind, under the circumstances and specially in view of the statement of the respondent, recorded on 16.5.2005, no case for rejection of the plaint was made out and exercise of powers by the learned trial Court, under the provision of Order VII, Rule 11 CPC, was, to say the least, misconceived and the plaint was illegally rejected.
In the above perspective, we have examined the impugned judgment and decree and find that the same are not in consonance with the law on the subject and we are inclined to reverse the same, which we hereby do.
Upshot of the above discussion is that the appeal is allowed and the impugned judgment and decree dated 21.7.2005 are set said with no order as to costs. Resultantly, appellant's suit for specific performance shall be deemed to be pending before the learned Senior Civil Judge, Lahore, who shall decide the same, afresh, keeping in view the statement of the respondent, recorded on 16.5.2005, and provisions of Order XV, Rule 1 CPC, within a period of three months from today. The parties are directed to appear before the learned trial Court on 15.4.2006.
Office is directed immediately transmit the record to the concerned Court.
(Rafaqat Ali Sohal) Case remanded.
PLJ 2007 Lahore 98 (DB)
Present: Mian Hamid Farooq and Syed Hamid Ali Shah, JJ.
MUHAMMAD IMRAN SHEIKH--Appellant
versus
HABIB BANK LTD. STOCK EXCHANGE BRANCH, LAHORE--Respondents
F.A. No. No. 237 of 2006, decided on 3.8.2006.
Transfer of Property Act, 1882 (IV of 1882)—
----S. 53--Financial Institutions (Recovery of finances) Ordinance, (XLVI of 2001)--S. 22--Suit for recovery--Exparte decree--A portion of decretal amount was recovered--Held: Appellant was neither a mortgagor nor a guarantor or a judgment debtor--Property in-question was not furnished as security for re-payment of financial facility qua which the decree was passed, sale deed was a forged document, as the parties to the sale-deed were not judgment debtors--Every transfer of the immovable property made with the intent to defeat or delay the creditors of the transferor would be voidable at the opinion of any creditor so defeated or delayed--Property was not liable to be attached and it was got attached at the behest of the decree-holder and put to sale under mis-conception and dis-information--Petition allowed. [Pp. 99 & 100] A, B & C
Mr. M. Asghar Hameed Bhutta, Advocate for Appellant.
Mr. Muhammad Shujah Baba, Advocate for Respondents.
Date of hearing : 20.7.2006.
Judgment
Mian Hamid Farooq, J.--Present appeal, under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 proceeds against order dated 1.6.2006, whereby the learned Banking Judge dismissed appellant's objection petition.
Precisely stated facts of the case are that respondent bank's suit for recovery of Rs. 17,45,266.37 was ex-parte decreed, against Respondent No. 2, by the learned Judge Banking Court, vide judgment and decree dated 19.2.1999 and during the execution proceedings, a portion of the decretal amount was recovered, however, it was reported by the decree holder bank that a sum of Rs. 12,74,426.82 is still outstanding against the Respondent No. 2. At one stage, the decree holder filed the application for the arrest and detention of the judgment debtor/Respondent No. 2. The learned executing Court, at the request of the respondent bank, attached Flat No. 18, 4th Floor Sharif Complex Main Market Gulberg, Lahore (the property). The appellant, then, filed the objection petition, claiming, inter alia, on the basis of PT-1 and the allotment letter issued by Haji Muhammad Sharif (Pvt.) Ltd, that he is the owner of the property and that judgment debtor has no nexus with it, however, the objection petition was dismissed by the learned Judge Banking Court, vide impugned order dated 1.6.2006, primarily, on the grounds that the appellant has not produced any document showing his title, allotment letter does not confer any right on him; it is not a title deed and that the petitioner is a nephew of the judgment debtor. Subsequently Haji Muhammad Sharif (Pvt.) Ltd. executed the sale-deed dated 17.6.2006 in favour of the appellant, which was registered with Sub-Registrar Lahore on 30.6.2006, photocopy whereof has been placed on record, hence the present appeal.
Learned counsel for the appellant contends that the attached property originally belonged to Haji Muhammad Sharif (Pvt.) Ltd., which initially issued allotment letter to the appellant and subsequently executed the sale-deed, thus the property never vested with the judgment debtor at any point of time. He has added that the property was got attached by the learned executing Court under the dis-information imparted by the functionaries of the respondent bank that property belongs to the judgment debtor. Conversely the learned counsel for the respondent has supported the impugned order submitting that the sale-deed, now produced by the appellant, is a forged document as the same was executed by the father of the petitioner in his favour.
We have heard the learned counsel and examined the available record. The appellant was non-suited by the learned Judge Banking Court mainly on the ground that he failed to produce any title document establishing his ownership qua the property. Now the appellant has produced the photocopy of the sale-deed dated 17.6.2006, registered with Sub Registrar Data Gunj Bux Town, Lahore, statedly executed by Haji Muhammad Sharif (Pvt.) Ltd in favour of the appellant. The impugned order was passed, on 1.6.2006 while the sale-deed was executed on 17.6.2006, thus the sale-deed was not in existence at the time of passing of impugned order and hence the same could not possibly be produced before the learned Banking Court. In view whereof, the learned Banking Court was right in holding that the appellant could not produce any title deed regarding the property.
Undeniably, the appellant is neither a mortgagor nor a guarantor nor a judgment debtor. Admittedly, the property in question was not furnished as security for the re-payment of financial facility qua which the decree was passed. According to the available record, the judgment debtor, namely Sh. Abdul Rashid, was not the owner or had any nexus with the property at any point of time. It is not the case of the respondent bank that the property was owned by the judgment debtor, who has subsequently transferred it in favour of the appellant. Simply to state that the sale-deed is a forged document does not in any way advance the case of the respondent, inasmuch as the parties to the sale-deed are not the judgment debtors. The learned counsel for the respondent, when asked to demonstrate as to whether the judgment debtor had any nexus with the property in question at any stage, was unable to state anything except to unsuccessfully canvass that the property was transferred from father to son. Learned counsel, when further asked to show that on the basis of which material, the respondent Bank prayed for attachment of the property could not say much, however, stated of course, without referring to any document that the judgment debtor is the real owner of the property. The stance of the respondent Bank has little substance.
As noted above, the case of the appellant even does not fall within the scope of "Fraudulent transfer" as envisaged under Section 53 of the Transfer of Property Act, which inter alia, states that every transfer of the immovable property made with the intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditors so defeated or delayed. The respondent has failed to place on record any document to show that the property at any stage was transferred by the judgment debtor in favour of the objector.
We feel that had the said sale-deed be produced before the learned Judge Banking Court, the result might have been different. Seeing from any angle, the property was not liable to be attached and it was got attached at the behest of the decree holder and put to sale under misconception and dis-information.
In view of the above, the present appeal is allowed, impugned order dated 1.6.2006 is set aside with no order as to costs. Resultantly, appellant's objection petition stands allowed and the property in question is ordered to be released from attachment.
(Fouzia Fazal) Appeal allowed.
PLJ 2007 Lahore 100
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
BANK OF PUNJAB through its MANAGING DIRECTOR, LAHORE and 2 others--Appellants
versus
GHULAM MUSTAFA and another--Respondents
F.A.O. No. 27 of 2005, heard on 29.3.2006.
Industrial Relations Ordinance, 1969 (XXIII of 1969)—
----S. 25--Grievance petition was filed by respondent--Regular employees of Bank--Services were terminated by verbal order--Assailed--Contention that in response to grievance petition no such plea was raised--There has never been break in services of respondent as per record--Judgment of Supreme Court (2005 SCMR 100) is squarely applicable to the facts of the case. [P. ] A
Mr. Suhail Ahmad Janjua, Advocate for Appellants.
Mr. Muhammad Anwar Awan, Advocate for Respondents.
Date of hearing: 29.3.2006.
Judgment
On 24.5.2001, respondent filed a grievance petition under Section 25-A of IRO, 1969 against the appellant. It was stated that he is a regular employee of the Bank having been appointed a Godown Officer on 6.10.1996. He served upto 19.1.2001 when his services were terminated by means of a verbal order. He served a grievance notice on 16.4.2001 and then approached the learned Labour Court. According to him the said order was illegal and void. The plea taken by the appellant in the written statement was that the respondent was never an employee of the Bank. His services were hired on the godown of customers of the Bank and it was a purely temporary arrangement and the salary was borne by the customer. Learned Labour Court recorded the evidence of the parties. Vide judgement dated 25.1.2005, grievance petition was allowed and the respondent was ordered to be reinstate with full back benefits.
Learned counsel for the appellant draws my attention to the various appointment orders to urge that there were breaks in the course of service and the respondent cannot be deemed to be a permanent employee of the Bank. Learned counsel for the respondent, on the other hand, relies on the case "Ikram Bari and 524 others vs. National Bank of Pakistan through President and another (2005 SCMR 100) to support the impugned judgment of the learned Labour Court.
I have gone through the Labour Court records. Now it is true that upon entire reading of the appointment orders Ex. P. 11 to P. 19 one does get impression that from time to time these were being erratically issued. However, nothing turns on the same, reason being that in response to para-1 of the grievance petition where the respondent stated that he was employed on 16.10.96 and served upto 19.2.2001, no such plea has been raised. On the other hand, I deem it proper to reproduce here the following from para-1 of the written statement:
"The petitioner was first hired for performing duty in the mortgaged godown of M/s. Khurshid Jamal (Pvt) Ltd. Where the pledge stocks were lying and since after that the petitioner has been performing duties at godowns of various other customers who have availed of the cash finance facility from the Bank. Now the matter of the godowns has been taken over by a firm Muqaddum and since then i.e. since 17.2.2001. This Muqaddum is incharge of the godowns and the petitioner is no more serving the Muqaddum".
It will thus be seen that there has never been a break in the service of the respondent throughout the said period of more than three years. I further find that an attempt has been made to represent as if there had been breaks in the service of the respondent by issuing the said letters/orders one after the other but erratically. However even RW-1 has not stated that there had been breaks in the said service. It has also been pointed out by the said RW that several similarly placed Godown Officers had been absorbed in regular service by the Bank.
"An Islamic Welfare state is under an obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meagre emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefit of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right"
It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of Section 24-A of the General Clauses Act, 1897, the National Bank was required to act reasonable, fairly and justly".
(Malik Sharif Ahmed) FAO dismissed.
PLJ 2007 Lahore 103 (DB)
Present: Sayed Zahid Hussain and Syed Hamid Ali Shah, JJ.
Mian MUSHTAQ HUSSAIN DOGAR--Petitioner
versus
PROVINCE OF PUNJAB through its Chief Secretary, Civil Secretariat, Lahore and 7 others--Respondents
W.P. No. 13542 of 2005, heard on 17.5.2006.
Punjab Land Revenue Act, 1967 (XVII of 1967)—
----S. 6(1)--Constitution of Pakistan, 1973, Art. 199--Notification issued for creation of new district--Assailed--It is a policy matter which falls within the lawful jurisdiction of the Government and that remedy is available to petitioner in the form of representation to Chief Minister--Held: Statutory functionary who has issued notification is Board of Revenue by virtue of his office is Secretary to the Government of the Punjab consider such grievances objectively and redress the same in accordance with law remitted the matter to respondents. [P. 105] A
1999 CLC 430 (FB) ref.
Syed Zahid Hussain Bokhari, Advocate for Petitioner.
Ch. Muhammad Hanif Khatana, Additional Advocate General, Punjab for Respondents.
Date of hearing: 17.5.2006.
Judgment
Sayed Zahid Hussain, J.--Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 implications and effect of four Notifications, two of 26th of May 2005, one of 18.6.2005 and another of 29.6.2005 is sought to be assailed, which have been issued by the Government of the Punjab, Revenue Department through Secretary to the Government of the Punjab Revenue Department. These Notifications have been issued under Section 6(1) of the Punjab Land Revenue Act, 1967. The essence of these Notifications was to divide existing Sheikhupura District, creation of a new District namely Nankana Sahib and allocation of areas to the newly created District. The case of the petitioner who claims to have been elected four times as Member Provincial Assembly (MPA) is that being a resident and voter of Khanqah Dogran, he like many other inhabitants of Khanqah Dogran is aggrieved of the inclusion of the Revenue Estate Khanqah Dogran in the newly created Nankana Sahib District.
Highlighting the background of the matter it is stated by the learned counsel that eversince the creation of Sheikhupura District, Khanqah Dogran has remained part, parcel and attached to Sheikhupura District, which is at a distance of merely half an hour drive therefrom. According to him, its inclusion and attachment with Nankana Sahib District was causing immense inconvenience and problems for the people of the area. It is alleged that large-scale protests were made by the people of the area "condemning malicious and improper action of the Government to attach Tehsil Safdarabad with Nankana Sahib especially Khanqah Dogran Revenue Estate". It is contended that while taking such a decision and issuing notification to that effect the convenience sentiments and views of the local population of Khanqah Dogran were not kept in view. He has endeavoured to show us with the help of a map that the people of localities were facing highly grave difficulties and even they have dissociated with the affairs to the extent that none took part in the Local Government Elections held in the recent past. Refers Nawabzada Ghazanfar Ali Gul v. Government of the Punjab through Secretary, Revenue Department, Board of Revenue, Lahore and 3 others (1999 CLC 430) a Full Bench judgment of this Court to support his contention that any such policy decision by the Government if unreasonable, unfair or mala fide can judicially be reviewed by this Court in writ jurisdiction.
Parawise comments have been filed on behalf of the respondents opposing the maintainability of the petition. It is contended by the learned Additional Advocate General, Punjab that the matter relating to creation of a new District demarcation of boundaries of such a District, is a policy decision which falls within the lawful jurisdiction of the Government. It is contended that the majority of the population of the newly created District had welcomed such a decision and only a small section of the population of Safdarabad and Khanqah Dogran were opposed to the same. It is however, suggested that "an adequate remedy is available to the present petitioner in the form of representation before the Chief Minister Punjab".
It may be noted that the creation of Divisions and Districts in a Province is essentially an administrative measure falling within the ambit of statutory provisions of the Punjab Land Revenue Act, 1967. Section 6, particularly deals with the Divisions, Districts and sub-divisions/Tehsils. Whereas sub-section (1), thereof empowers the Government to divide each Division into Districts and District into sub-division or Tehsil; sub-section (2) thereof empowers the Government through Notification to "vary the number and limit of Divisions, Districts, Sub-Divisions of Tehsils in the Province". The Notifications mentioned above purport to have been issued under these enabling provisions of the Land Revenue Act, 1967. Undoubtedly the policy decisions of such nature fall within the ambit of power of the executive Government, which is expected to take such decisions keeping in view large many considerations, i.e. public interest, administrative, practical convenience and difficulties of the local population etc. The Full Bench of this Court had in Nawabzada Ghazanfar Ali Gul v. Government of the Punjab through Secretary, Revenue Department, Board of Revenue, Lahore and 3 others (supra) observed that "We should not be understood as laying down as a rule of them as if a notification issued by the Provincial Government under Section 6 of the Punjab Land Revenue Act, 1967, and under sub-section (5) of Section 6 and Section 7 of the Punjab Local Government Ordinance, 1979, are immune from being called in question. The power of judicial review is available in appropriate cases of infraction of law or unfairness, unreasonableness, arbitrariness or mala fides on the part of the Government. In the facts and circumstances of the present cases no exception can be taken to the validity of the impugned notification. The areas excluded form District Jhelum and reincluded in District Gujrat had throughout remained a part of District Gujrat since times immemorial. It was considered to be in the public interest to keep the areas of Sarai Alamgir Sub-Division as a part of District Gujrat. "We are conscious of the limitations and constraints of writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 that such details which have their genesis in factual appraisal of the respective assertions of the parties cannot be pried. Though embarking upon inquiries into such disputed questions of facts is not ordinarily undertaken by this Court yet at the same time we are constrained to observe that all such measures must have one thing Supreme, which is, public good, the interest and welfare of the people for the betterment of whom the laws are made and administration functions. From the parawise comments it is discernible that the respondent/Government is prepared to consider such grievance, if a representation is made to that effect. The statutory functionary who has issued these Notifications is Respondent No. 2. It is he, who is expected to perform his functions and discharge duties strictly in accordance with law. Respondent No. 2, is Senior Member, Board of Revenue Punjab who by virtue of his office is Secretary to the Government of the Punjab Revenue Department as well. We entertain no doubt whatsoever that the said statutory functionary holding such a senior position, if approached will not be in a position to consider such grievances objectively and redress the same in accordance with law in a just, fair and reasonable manner.
We would, therefore, instead of relegating the petitioner to any other authority remit the matter to Respondent No. 2 to consider the same by affording opportunity of representation/hearing to all concerned, which exercise may preferably be under taken within three months.
The petition is disposed of accordingly with no order as to costs.
(Malik Sharif Ahmed) Petition disposed of.
PLJ 2007 Lahore 106 (DB)
Present: Mian Hamid Farooq & Syed Hamid Ali Shah, JJ.
HABIB BANK LIMITED--Appellant
versus
M/s. FIVE STAR TRAVELS and 2 others--Respondents
E.F.A. No. 499 of 2005, decided on 13.2.2006.
Civil Procedure Code, 1908 (V of 1908)—
----S. 48--Financial Institutions (Recovery of Finances) of Ordinance, (XLVI of 2001), S. 24(2)--Limitation Act, (IX of 1908), Art. 181--Appellant filed recovery suit in Banking Court--Leave to defend was denied--Suit decreed--Execution was filed on 18.10.2003--Executing Court on 13.9.2005 dismissed execution petition being barred by time--Assailed--First application of execution of decree would be governed by Art. 181 of the Limitation Act and rest of applications would be governed u/S. 48 CPC for which period of limitation is prescribed six years u/Art. 183 of Limitation Act--If no such application was made within period of three years prescribed by Art. 181, any application made thereafter, would be barred under Art. 181 and no benefit u/S 48 CPC can be availed.
[P. 107] A
Mr. Shamas Mehmood Mirza, Advocate for Appellant.
Date of hearing: 13.2.2006.
Order
Mian Hamid Farooq, J.--Facts of the case necessary for the disposal of the instant appeal, are that the appellant filed a suit for recovery of Rs. 13,25,932/- against the respondents in the Banking Court-IV, Lahore. The respondents contested the suit through filing, within the stipulated period, the petition for leave to defend the suit. Learned Banking Court considering that availing of the loan facility was not categorically denied, dismissed the application for leave to defend the suit and decreed the suit on 27.11.1997, as prayed for in the plaint. The appellant filed the execution Petition No. 201/E/2003 on 18.10.2003, seeking the execution of the decree through attachment and sale of the property of the judgment debtors.
Judgment debtors filed objection Petition No. 18.11.2003, praying therein for the dismissal of the execution petition, being barred by limitation. Appellant contested the objection petition. Learned Executing Court, after hearing the parties, vide order dated 13.09.2005 dismissed the execution petition. Hence this appeal.
Learned counsel for the appellant has contended that the decree was passed under the provisions of Banking Companies (Recovery of Loans Advances Credits and Finances) Act, 1997 (now repealed). The provisions thereof do not provide for any period of limitation, for filing the execution petition. Section 22(2) makes the provisions of Limitation Act, 1908, (Act IX of 1908) applicable to all cases instituted or filed in the Banking Court after coming into force of the Act. Learned counsel laid emphasis that the phraseology used in the Section 22 (ibid) is 'all cases instituted or filed in the Banking Court", which means that the provisions of Limitation Act, are made applicable only to the suits and not to the execution petition. It was further argued that according to provisions of Section 24(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, the execution application can be entertained on showing the sufficient cause. He then submitted that the execution application could not be filed earlier as the detail of the property of the judgment debtors came to the knowledge of the appellant subsequently. The application for execution of the decree was filed soon on getting the knowledge of the properties, without any delay.
Heard learned counsel for the appellant and examined the record.
Learned Banking Court passed the decree on 27.11.1997 wherein the decretal amount was ordered to be recovered from the assets, properties and persons of the defendants. The justification for filing the execution petition at a belated stage was attributed to the non-availability of information, as to the assets and properties of the judgment debtors. The justification is of no avail to the appellant as the trial Court has ordered the execution of the decree from the persons of the judgment debtors, besides their properties and assets. The appellant could have resorted to the execution of the decree through arrest and detention of the judgment debtors. The arguments of the learned counsel for the appellant that law of Limitation is not applicable to the execution application, has no force. It has been provided in Section 22(1) that provisions of the Limitation Act shall apply to any suit application or other proceedings subject to sub-section 2. Term "all cases" referred in sub-section (2) relates to any suit, application or other proceedings filed or transferred to a Banking Court, under the repeal Act. The term "all cases" is not restricted to suits only and includes execution application as well. The period of limitation for filing the execution application is three years, under Article 181 of the Limitation Act, 1908 (IX of 1908). The Hon'ble Supreme Court in the case "Mehboob Khan versus Hassan Durrani" (PLD 1990 SC 778), has held that first application for execution of decree would be governed by Article 181 of the Limitation Act and rest of the applications made thereafter, would be governed under Section 48 CPC for which a period of six years is prescribed under Article 183 of the Limitation Act. If no application for execution of decree was made within the period of three years prescribed by Article 181, any application made thereafter, would be barred under said article and no benefit under Section 48 CPC can be availed in such cases. This view was re-affirmed by the apex Court in the case of "National Bank of Pakistan versus Mian Aziz-ud-Din and 7 others" (1996 SCMR 759).
We do not see any infirmity or illegality in the impugned order, which learned Executing Court has passed in accordance with law, following the dictum of the judgements passed by the superior Courts. The appeal is without any force and is dismissed accordingly.
Before parting with this order we cannot ignore the conduct of the bank officials, which is highly negligent and appears to be mala fide. The Bank officials have acted carelessly and in this illegal exercise, made the execution of decree inexecutable. Such conduct is regrettable, which requires a proper action to be taken against the delinquent bank officials. Regional Head of the Bank is directed to hold an inquiry and impose upon the guilty officials a penalty, which is permissible under the service rules. A copy of this judgment be delivered to the President of the Bank for necessary action.
(Malik Sharif Ahmed) Appeal dismissed.
PLJ 2007 Lahore 108
Present: M. Bilal Khan, J.
IRFAN-UL-HAQ INSPECTOR/SHO, P.S. SADDAR, SIALKOT and 2 others--Petitioners
versus
IFTIKHAR HUSSAIN and 4 others--Respondents
W.P. No. 2896 of 2006, decided on 8.6.2006.
Criminal Procedure Code, 1898 (V of 1898)—
----Ss. 22-A & 22-B--Prevention of Gambling Act, 1978, S. 6--Constitution of Pakistan, 1973, Art. 199--Justice of the Peace--Forcible entry of the police contingent was violation of the fundamental right of a citizen. In the event of a negative report by the police, ex-officio Justice of the Peace was bound to decline the prayer for registration of a case was totally without substance--Ex-Officio Justice of Peace was required to refuse registration of a case only if the police report disclosed justifiable reasons for not registering a case--There was no absolute embargo against the power of Ex-Officio Justice of the Peace that in all circumstances in the event of a negative report of police he could not order registration of a case--Petition dismissed. [Pp. 110 & 111] A, B & C
Mr. Saif-ul-Malook, Advocate for Petitioners.
Malik Saeed Hassan, Advocate for Respondent No. 1.
Ch. Aamir Rehman, Addl. A.G. for State.
Date of hearing: 8.6.2006.
Order
Irfan-ul-Haq, Inspector/SHO Police Station Saddar Sialkot, Rana Nadeem Tariq Inspector, Police Lines Sialkot and Raja Jameel Ahmed Inspector/incharge, Elite Force, Sialkot, have filed this Constitutional petition, challenging the order dated 22.03.2006, whereby the learned Additional Sessions Judge/Ex-Officio Justice of the Peace Sialkot who was seized of an application filed by Iftikhar Hussain son of Muhammad Akram (Respondent No. 1) under Section 22-A, 22-B Cr.P.C., had ordered registration of a criminal case against the petitioners. The background leading to the filing of instant writ petition is that FIR No. 48/2006 dated 28.01.2006 was registered at Police Station Civil Lines, Sialkot for offence under Section 6 of the Prevention of Gambling Act, 1978 against Iftikhar Hussain son of Muhammad Akram (Respondent No. 1) on the complaint of Munawar Khan S.I/SHO Police Station Civil Lines Sialkot. The allegation in the FIR was that SHO with some police officials were on patrol duty and had reached Warraich street when he was informed that gambling was going on in the house of Iftikhar Hussain alias Khari son of Muhammad Akram caste Rajput resident of Christian Town. The said Iftikhar and Asad Butt son of Qasir Mehmood caste Kashmiri were found gambling while sitting on a carpet. They were arrested and an amount of Rs. 1,39,600/- was recovered as stake money.
After registration of the case, Respondent No. 1 was arrested and later on he was released on bail. He made an application to the learned Sessions Judge Sialkot under Section 22-A, 22-B. Cr.P.C., wherein he came out with his own version and stated that while he was present in his house on 28.01.2006, at 5:00 p.m alongwith Muhammad Younas, Asad Butt and Adeel, Irfan Sulehria SHO, Rana Nadeem Tariq, Rana Jameel Incharge Elite Force alongwith 30 police personnel made forcible entry into his house; on being asked as to why they had entered into the house, they enquired about some person by the name of Gul; he told them that no person by such name was residing there; they started issuing threats to kill him in a mock police encounter and Irfan Sulehria SHO removed Rs. 22,000/- from his pocket and Rs. 20,000/- from the pocket of Younas; Rana Jameel removed prize bonds valued at Rs. 1,80,000/-, Irfan Sulehria SHO removed three cellular telephones, one watch Rolex Gold, one diamond ring, one silver ring from Muhammad Younas, shoved them in a van and brought them to Police Station Civil Lines and after planting some of the articles on them recorded a false and fabricated report under the Gambling Ordinance. He also stated that since the police hierarchy had failed to redress his grievance, therefore, he had filed an application under Section 22-A, 22-B Cr.P.C. After summoning police report the learned Additional Sessions Judge/Ex-Officio Justice of the Peace vide his impugned order dated 22.03.2006, ordered registration of a case against the police officials named in the petition and directed that the matter be investigated by a fair and impartial honest police officer not less than the rank of Superintendent of Police. It is the said impugned order dated 22.03.2006 which has been challenged before this Court.
This petition was admitted to regular hearing on 29.03.2006. I have heard Mr. Saif-ul-Malook, Advocate for the petitioners, Malik Saeed Hassan, Advocate for Respondent No. 1, Ch. Aamir Rehman Addl. A.G. for the State and have perused the record brought by Rehmat Ali S.I Police Station Civil Lines Sialkot.
The learned counsel for the petitioners candidly stated that he does not controvert the legal position that Ex-Officio Justice of the Peace is competent to order registration of a case and that as such his order cannot be termed as one without jurisdiction. However, he submitted that the order of the learned Additional Sessions Judge suffers from improper exercise of jurisdiction inasmuch as in the given facts and circumstances of the case especially when the police report had exonerated the petitioners he ought not to have ordered for registration of a criminal case, he added that in the peculiar circumstances the impugned order could not be termed just and equitable and therefore, it was in violation of Section 22-A (6) Cr.P.C.
On the other hand Malik Saeed Hassan the learned counsel for Respondent No. 1 vehemently argued that the impugned order is perfectly legal and was in line with the dictum of a full bench of this Court in the case of "Khizer Hayat and others vs. Inspector General of Police Punjab, Lahore and others" (PLD 2005 Lahore 470). He also read out the relevant provisions of the Prevention of Gambling Ordinance 1978 and contended that the police do not have any jurisdiction to enter into a residential house. He argued that forcible entry of the police contingent in the petitioner's house was not only violative of the Gambling Ordinance 1978 but also constituted an affront to the fundamental right of a citizen which ensures sanctity of home. He argued that it was a dacoity by all descriptions and that thereafter to cover up their misdeeds the police resorted to registration of case under the provisions of the Gambling Ordinance 1978.
During the course of arguments Mr. Saif-ul-Malook, the learned counsel for the petitioner had stated with some degree of confidence that Respondent No. 1 was involved in a large number of gambling cases and that he had recoursed to an application under Section 22-A, 22-B Cr.P.C. with a view to intimidating and browbeating the police functionaries. Respondent No. 1 who was present in the Court stated that if his involvement in any Gambling case anywhere in the country is shown he would be out of the Court and would not contest this petition. Confronted with this situation the learned counsel for the petitioners could not produce anything whatsoever to support his claim. Respondent No. 1 also stated that he is a Jeweller by profession and runs four different Jewellery shops in Sialkot; that he is stationed at Kuwait for the last twenty years and had been in the process of moving his business to his native country by making huge investments. He however, lamented that in view of the treatment meted out to him by the police functionaries he had decided to wind up his business in Pakistan and go back to Kuwait for good. The learned counsel for the petitioners has not been able to point out any irregularity much less any illegality in the impugned order which could warrant interference by this Court in its Constitutional jurisdiction.
His argument that the impugned order runs counter to the dictum in Khizer Hayat's case supra because in the event of a negative report by the police, Ex-Officio Justice of the Peace is bound to decline the prayer for registration of a case is totally without substance. In Khizer Hayat's case their lordships had suggested that before issuing a direction for registration of a case the better course for an Ex-Officio Justice of the Peace would be to invite police comments, so as to apprise himself of the reasons as to why the police were not inclined to register a criminal case. The Ex-Officio Justice of the Peace was required to refuse registration of a case only if the police report disclosed justifiable reasons for not registering a case. There is no absolute embargo against the power of Ex-Officio Justice of the Peace that in all circumstances in the event of a negative police report he could not order registration of a case. In my opinion the reasons advanced by the learned Additional Sessions Judge in disagreeing with the police report are convincing, plausible and persuasive. In this backdrop this Court while exercising its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan cannot substitute its own opinion for that of the learned Ex-Officio Justice of the Peace.
For what has been stated above there is no merit in this petition which is accordingly dismissed. There will be no order as to costs.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 Lahore 111
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
M/s. ALLAH WASAYA TEXTILE AND FINISHING MILLS LTD., MULTAN through its Factory Manager--Petitioner
versus
QASWAR ABBAS and another--Respondents
W.P. No. 638 of 2006, decided on 16.5.2006.
West Pakistan Industrial & Commercial Employment (Standing Order) Ordinance, 1968 (VI of 1968)--
----S.O. 10-B--Permanent workman defined--Group Insurance--Who are required to be insured against natural death and disability and injury--Application for granting of group insurance in terms of Clause 10-B of Ordinance--Without recording the findings that employee was permanent employee--Petition could not be burdened for payment of group insurance--Petition allowed. [P. 113] A & B
Malik Ghulam Qadir, Advocate for Petitioner.
Respondent No. 1 in person.
Date of hearing: 16.5.2006.
Order
The petitioner has filed this Constitutional petition seeking quashment of order dated 17.1.2006 passed by Respondent No. 2 (Commissioner Workmen's Compensation) burdening the petitioner with a amount of Rs. 2,00,000/- as Group Insurance to be paid to Respondent No. 1 as compensation in lieu of death of his brother Muhammad Afzal who while in the service of the petitioner as workman died on 21.8.2004.
The facts in brief are that the Respondent No. 1 claiming himself to the only legal heir of Muhammad Afzal filed an application on 9.9.2004 to the Manager of the petitioner Mills stating that as the brother of the petitioner namely Muhammad Afzal was employee of the petitioner since 22.7.2004 who died on 21.8.2004, hence his due wages for sixteen days during the month of August, 2004 be paid to him. On 18.9.2004 the Respondent No. 1 also moved an application to the Commissioner Workmen's Compensation/Respondent No. 2 on a prescribed form-D claiming that as his brother Muhammad Afzal died on 21.8.2004 while in the employment of the petitioner, hence, the petitioner was entitled to recover Rs. 2,00,000/- from the petitioner as compensation in lieu of Group Insurance in terms of clause 10-B of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. The said application was contested by the present petitioner vide written reply dated 26.10.2004 wherein, it was specifically alleged in the preliminary Objection No. 2 that as Muhammad Afzal at the time of his death was not the permanent workman, hence, he could neither be got insured by the petitioner nor the Respondent No. 1 could claim the amount of Group Insurance from the petitioner. The Respondent No. 2/Commissioner Workmen's Compensation after recording evidence and holding necessary proceedings allowed the said application of Respondent No. 1 vide order dated 17.1.2006 and directed the petitioner to pay the amount of Rs. 2,00,000/- as Group Insurance to Respondent No. 1 and deposit the said amount with Commissioner Workmen's Compensation within thirty days. The said order of Respondent No. 2 has now been assailed through the instant petition.
The Respondent No. 1 (Qaswar Abbas) was issued pre-admission notice by this Court on 16.2.2005 and today the matter has been heard in the presence of learned counsel for the petitioner as well as Respondent No. 1 in person, as he has opted not to engage any counsel.
At the very outset, learned counsel for the petitioner has argued that in the absence of any specific findings of learned Respondent No. 2/Commissioner Workmen's Compensation about the nature of employment of Muhammad Afzal deceased viz. whether he at the time of his death was a permanent workman employed by the petitioner, the learned Respondent No. 2 had no authority to pass the impugned order burdening the petitioner with an amount of Rs. 2,00,000/-. The argument is that under Standing Order No. 1(b) of the said Ordinance a permanent workman is defined as "Workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment", whereas in terms of Standing Order 10-B of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 the employer has been required to have all the permanent workmen employed by him insured against natural death and disability and death and injury arising out of contingencies not covered by the Workmen's Compensation Act, 1923 or the Provincial Employees Social Security Ordinance, 1965. To elaborate his argument the learned counsel for the petitioner has drawn the attention of the Court to an application moved by Respondent No. 1 himself on the death of Muhammad Afzal claiming his wages during sixteen working days in the month August, 2004 and in this application the Respondent No. 1 specifically mentioned that Muhammad Afzal was employed by the petitioner on 22.7.2004 and died on 21.8.2004, hence in the presence of this admission by Respondent No. 1 himself, neither he could claim Group Insurance nor the Respondent No. 2/Commissioner Workmen's Compensation could accept the application of Respondent No. 1, because said Muhammad Afzal could not be considered as permanent employee of the petitioner Mills before the completion of nine months service in terms of the Standing Order, referred to above.
When questioned about the said application and admission contained therein, the Respondent No. 1 present in Court, failed to give any satisfactory reply except to contend that he was a poor man and the impugned order was rightly passed in his favour by Respondent No. 2.
The arguments of learned counsel for the petitioner have been considered in the context of legal proposition canvassed by the learned counsel and also in the light of material available on record.
Prima facie the findings of Respondent No.2/Commissioner Workmen's Compensation on the question whether at the time of his death, Muhammad Afzal deceased was a permanent employee of the petitioner or not, is wanting in the impugned order, whereas, without recording such findings the Respondent No. 2 could not have burdened the petitioner for payment of Group Insurance to Respondent No. 1. This petition therefore, is allowed, the impugned order of learned Respondent No. 2 dated 17.1.2006 is set-aside being without lawful authority and case is remitted to Respondent No.2/Commissioner Workmen's Compensation with a direction to decide the same afresh after recording specific findings as to whether Muhammad Afzal at the time of his death was a permanent employee of the petitioner as required by Standing Order, 1 and 10-B of the said Ordinance. The parties are directed to appear before learned Respondent No.2/Commissioner Workmen's Compensation on 22.5.2006 and the said Respondent No. 2 shall ensure that the matter is finally decided and disposed of as early as possible as but not later than 31.7.2006, however, parties may produce additional evidence on this point, if so advised.
(Malik Sharif Ahmed) Petition allowed.
PLJ 2007 Lahore 114
Present: Muhammad Muzammal Khan, J.
SHABBIR HUSSAIN ALIAS PAPU--Petitioner
versus
STATION HOUSE OFFICER P.S. BUMBANWALA, DISTT. SIALKOT and 3 others--Respondents
W.P. No. 544 of 2005, decided on 18.4.2006.
(i) Muhammadan Law--
----Age of majority of a girl--Determining of puberty--Held: According to Muslim Law a girl on attaining of puberty will be deemed to have attained majority, which in Pakistan is about 13 year. [P. 115] A
(ii) Constitution of Pakistan, 1973--
----Art. 199--Offence of Zina (Enforcement of Hudood) Ordinance, 1997, S. 11--Registration of criminal case--Misuse of process of law--Legality--Marriage between two major Muslims--No cognizable offence--Law regarding marriage is settled by this time to the effect that where two major Muslims of sound mind solemnize marriages by entering into a contract for procreation and legalization of their children, according to the Muslim Family laws Ordinance, 1961, no cognizable offence under the Offence of Zina (Enforcement of Hadood) Ordinance 1979 is made out. [P. 116] B
PLD 1981 FSC 306, PLD FSC 308, PLD 1982 FSC 42 and
PLD 1984 FSC 93, ref.
Mian Muhammad Bashir, Advocate for Petitioner.
Mr. Muhammad Akbar Cheema, Advocate for Respondents.
Ch. Muhammad Arshad, Advocate for State.
Date of hearing: 18.4.2006.
Order
This judgment proposes to decide two Constitutional petitions, one in hand and the other WP. 592 of 2005, as both these petitions raise similar questions of law/facts and seek similar relief of quashment of FIR No. 335 dated 12.12.2004 under Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1997 registered with police station Bambanwala District Sialkot, lodged on complaint of Respondent No. 2.
Precisely, relevant facts as deciphered from the FIR are that Amanat Ali son of Abdur Rasheem complainant reported to the police on 12.12.2004 that he was informed by his mother-in-law on telephone that his sister-in-law Mst. Saima was missing from her home whereupon the complainant left for the house of his in-laws. According to the complainant, (Respondent No. 2) his father-in-law is away to Saudi Arabia and in his absence the named accused including the writ petitioner abducted Mst. Saima while she has gone to attend a telephone call from Saudi Arabia in the neighbourhood. After registration of above referred criminal case Mst. Saima Bibi filed a Constitutional petition (W.P. 20595-2004) for quashment of the FIR that she is being harassed by the police. She claimed that she was of 19 years age and had entered into a tie of marriage with Shabbir Hussain writ petitioner out of her own free will/volition and thus, has committed no cognizable offence. Her writ petition was disposed of by this Court with a direction to the police that she should not be harassed but her prayer with regard to quash the FIR was declined on the ground that she was not aggrieved party. Shabbir Hussain alias Pappoo filed Constitutional petition in hand with the alike assertions, raised by Mst. Saima by relying on Nikah Nama dated 6.12.2004 and the other writ petitioner namely Muhammad Hanif who is his maternal uncle also asserted that no cognizable offence was committed by any of the accused persons thus registration of criminal case is not only unauthorized/misuse of process of law but also being violative of provisions of Section 154 Cr.P.C. may be quashed in extra ordinary jurisdiction of this Court.
I have heard the learned counsel for the parties and have examined the police record. The complainant who is brother-in-law of the alleged abductee Mst. Saima has himself mentioned in the FIR age of the abductee as 17 years. Mst Saima besides sworning affidavit to the effect that no body abducted her, her age is 19 years; entered into a tie of marriage with Shabbir Hussain petitioner against a dower of Rs. 3,000/- out of her own volition, personally appeared before the Court and supported the stance of both the writ petitioners. According to her marriage was performed through registered Nikha Nama dated 6.12.2004 and since then she is living with her husband Shabbir Hussain.
According to Muslim Law, a girl on attaining of puberty will be deemed to have attained majority, which in our country is about 13 years. The complainant has given age of the alleged abductee as 17 years and according to her own declaration before this Court and in the Nikah Nama she is of 19 years of age. There is no doubt that Mst. Saima is major and appeared to be sensible from her appearance. Both these spouses are living together for the about 1 1/4 years. In view of the respective claims of the parties and Nikah Nama registered with Union Council Samnabad Lahore, it appeared that there had been a lawful marriage union inter Shabbir Hussain alias Papoo/Mst. Saima daughter of Muhammad Iqbal and they have not committed any cognizable offence. Law regarding marriages is settled by this time to the effect that where 2 major Muslims of sound mind solemnize marriages by entering into a contract for procreation and legalization of their children, according to the Muslim Family Laws Ordinance, 1961 no cognizable under the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 is made out. Reference in this behalf can be made to the judgments in the cases of Khalid Parvez and others versus The Sate (PLD 1981 FSC 306), Muhammad Imtiaz and another Versus The State (PLD 1981 FSC 308), Arif Hussain and Azra Parween Versus State (PLD 1982 FSC 42) and Muhammad Ramzan Versus State (PLD 1984 FSC 93).
For the reasons noted above, registration of criminal case against the writ petitioner was apparently without commission of cognizable offence and was opted by the police concerned, out of sheer misuse of process of law. Both the above-referred Constitutional petitions are accordingly accepted and by quashing the FIR No. 335 dated 12.12.2004 under Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1997 registered with police station Bambanwala, District Sialkot, writ as prayed, is issued with no order as to costs.
(Waseem Iqbal Butt) Petition accepted.
PLJ 2007 Lahore 116
Present: Sh. Azmat Saeed, J.
ASHIQ HUSSAIN and 5 others--Petitioners
versus
ANJUMAN-E-ISLAMIA KAMALIA and others--Respondents
C.R. No. 990 of 1993, decided on 8.9.2006.
Limitation Act, 1908 (IX of 1908)--
----S. 10--Principles of Muhammadan Law by D.F. Mulla Edition 2006--Suit for Limitation in Waqf property--Any property comprised in a Hundu, Muhammadan or Buddhist religious or charitable endowment would be deemed to the property vested in trust for a specific purpose and manager of any such property would be deemed to be the trustee thereof--Property was a Wakf property and the person vested therewith in trust as a Mutwalli or otherwise or against his legal representatives--Question of limitation did not arise and such suit was not barred by any length of time--Petition dismissed. [P. 119] A & B
Mr. Taffazal H. Rizvi, Advocate for Petitioners.
Mr. Javed Rasul, Advocate for Respondents.
Date of hearing: 21.7.2006.
Judgment
This civil revision is directed against the appellate judgment and decree dated 12.6.1993 whereby the appeal filed by the petitioners against the judgment and decree dated 14.1.1988 was dismissed.
Brief facts leading to the filing of this civil petition are that Respondent No. 1 Anjuman is managing the affairs of the Jamia Masjid while the other respondents are the office bearers of Respondent No. 1 Anjuman. The said respondents instituted a suit for declaration against the petitioner claiming therein that the Anjuman was managing the affairs of the Jamia Masjid which had been in existence for several centuries and had been established during the days of `Mughals'. It was contended that adjacent and attached to the Jamia Masjid was the property bearing Khasra Nos. 5774 to 5778 which forms part of the Jamia Masjid and had been in the use of Imam of the Masjid namely Ghulam Muhammad who was the predecessor-in-interest of the present petitioners. It was the case of the respondents that after Ghulam Muhammad the said Imam Masjid passed away the said property continued in the possession of his descendants i.e the petitioners. It was prayed that a decree for declaration be passed that the property in dispute i.e. Khasra Nos. 5774 to 5778 was the property of the Jamia Masjid and by way of consequential relief it was prayed that decree for possession be also passed against the present petitioners. The suit was contested. On the divergent pleadings of the parties issues were framed and evidence both oral as well as documentary was led. The trial Court after hearing the parties decreed the suit in favour of the respondents. Aggrieved the petitioners filed an appeal which failed to find favour and was dismissed vide the impugned appellate judgment and decree.
The learned Counsel for the parties have been heard and record appended with this petition has been perused.
It is contended by the learned Counsel for the petitioners that the respondents were the plaintiffs in the suit who were seeking declaration and possession and it is for the respondents/plaintiffs to prove title of the property in dispute which they have failed to do on the evidence on the record. The learned Counsel adds that there was sufficient evidence on the record to prove that the petitioners were in fact owners of the property in dispute and it is alleged that this fact is evident from the record produced in evidence of the Municipal Committee and the record pertaining to payment of tax. Adds that even otherwise the suit was barred by limitation. It is contended that this aspect of the matter had not been considered and adjudicated upon by the appellate Court.
The learned Counsel for the respondents has controverted the contentions raised on behalf of the petitioners. It is contended that the fact that the property forms part of the Jamia Masjid stands proved on the record and such finding having been affirmed in appeal cannot be upset by this Court in its revisional jurisdiction. The learned Counsel further adds that the documents relied upon by the petitioners are not documents of title, hence, are irrelevant for the purposes of the adjudication of the lis in hand. Adds that the property being a Waqf property belonging to a Mosque, the question of limitation and/or adverse possession does not arise.
There is no dispute between the parties that there exists a Jamia Masjid which dates back apparently to the Mughal period. It is also not disputed between the parties that the said Jamia Masjid is situated in Khasra Nos. 5779 to 5784 and that the previous Khasra number thereon was Khasra No. 29/Min. It is also evident on the record that the property in dispute is a part of the composite structure of the Jamia Masjid and its Khasra numbers i.e. No. 5774 to 5778 also bore the previous Khasra No. 29/Min. In the copy of the Musawi produced in evidence as Ex.P.4 the disputed Khasra numbers are shown as part of the Jamia Masjid. The documents relied upon and produced by the petitioners including the attested copies of the Field Book merely show the name of the occupant and not the owner. In fact there is no column in the said documents identifying the owner. Similarly the documents produced in evidence by the respondents pertaining to the property tax i.e Ex. D-19 to Ex. D-30 are also not documents of title. Relying on the aforesaid evidence alongwith oral evidence produced by the parties the trial Court returned a finding of fact that the property in dispute occupied by the petitioners forms part of the Jamia Masjid. The said finding of fact has been affirmed in appeal. There is a concurrent finding of fact which is neither perverse nor arbitrary. Such finding of fact is not tainted by any misreading or non-reading of evidence. The learned Counsel for the petitioner is attempting to persuade this Court to reappraise the evidence on the record which is not possible in the revisional jurisdiction of this Court.
The learned Counsel for the petitioners has drawn the attention of this Court to an alleged document of sale which is on record as Mark-1 to contend said property had been purchased from one Mansoor son of Rustam. It is contended that the said document pertains to the year 1825. Suffice it to say that the said document was never proved in evidence and does not form part of the evidence and, therefore, cannot be taken into account. Even otherwise there is nothing on the record to show that the said Mansoor son of Rustam was the owner of the property in dispute. Similarly it is not possible to ascertain that the said document which is deficient in material particular in fact relates to the property in dispute.
Adverting to the alternative argument raised by the learned Counsel for the petitioners that even if it is held that the property forms part of the Jamia Masjid the suit was barred by limitation. One of the accepted modes for creation of a Waqf under the Islamic Law is through immemorial use. Even in the absence of an express dedication where land is being used from times immemorial for a religious purpose e.g. a Mosque, such land shall be deemed to be a Waqf (Article 188 Principles of Muhammadan Law by D.F. Mulla Edition 2006).
Section 10 of the Limitation Act reads as follows:--
"Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property or the proceeds thereof, or for an account of a such property or proceeds, shall be barred by any length of time.
[For the purposes of this sections any property comprised in a Hundu. Muhammadan or Buddhist religious or charitable endowment shall be deemed to the property vested in trust for a specific purpose and the manager of any such property shall be deemed to be the trustee thereof]. The aforesaid provision applies to suits relating to Waqf property as has been held by the Indian Supreme Court in case reported as Muhammad Shah v. Fasih-ud-Din Ansari & other (PLD 1957 S.C. (Ind.) 111).
Thus, in a suit for declaration with or without consequential relief, that a property is Waqf property, filed against a person vested therewith in trust as a Mutwalli or otherwise or against his legal representatives as is in the instant case, question of limitation does not arise and such suit is not barred by any length of time. This is the import of Section 10 of the Limitation Act. Therefore, in the facts and circumstances of the case the suit filed by the respondents was not barred by limitation.
In view of the aforesaid, this revision petition is dismissed.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 Lahore 120
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
ZAFAR IQBAL--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, MIAN CHANNU and 6 others--Respondents
W.P. No. 2918 of 2006, decided on 12.6.2006.
Illegal Dispossession Act, 2005 (XI of 2005)—
---S. 3--Criminal Procedure Code, (V of 1898), Ss. 249-A & 265-K—Constitution of Pakistan, 1973, Art. 199--Power to acquit--Held: On such application the Additional Sessions Judge was under legal obligation to decide before proceedings in the matter on merits--Even otherwise, if legislature did not think it proper to provide a remedy of appeal or revision against an interim order, it was not proper to entertain the same in writ jurisdiction as the same would amount to circumventing the very intention of the legislature--Petitioner never appeared before trial Court or raised such an application for acquittal--Petition dismissed.
[Pp. 121 & 122] A & B
Mr. Muhammad Arif Alvi, Advocate for Petitioner.
Date of hearing: 12.6.2006.
Order
The petitioner who is respondent before the learned Addl. Sessions Judge Mian Channu in a petition filed by Muhammad Sardar Respondent No. 2 herein in terms of Section 3 of the Illegal Dispossession Act, is aggrieved of the very assumption of the jurisdiction by the said learned Addl. Sessions Judge on the ground that from the contents of the application moved by the respondent no case for assumption of jurisdiction by the learned Addl. Sessions Judge is made out. It is argued by the learned counsel that admittedly a civil suit titled Muhammad Sardar Vs. Haw Nawaz etc. regarding the property in dispute is pending before the learned Civil Court at Khanewal for specific performance of agreement to sell filed by Respondent No. 2 and thus during the pendency of the said suit the learned Addl. Sessions Judge had no jurisdiction even to entertain the application filed by the respondent and especially when the learned Civil Court had issued order regarding maintenance of status quo. It is further argued that there is chain of judgments of the Hon'able Supreme Court that the possession is to be regulated by the Civil Court and even through an interim order the criminal Court had no jurisdiction to entertain any proceeding with regard to the same. It is further submitted that the complainant-respondent has already moved an application complaining disregard of the status quo by the respondent. In support of his contention the learned counsel has relied on Mehr Muhammad Sarwar and others Vs. The State and others (PLD 1985 SC 240), Muhammad Nazir Khan and 6 others Vs. Saltanat Khan and 5 others (1997 MLD 2055) and Shah Nawaz and 3 others Vs. Sub-Divisional Magistrate. Naushero Feroze and 6 others (PLD 1974 Karachi 124). Placing reliance on places reliance on Muhammad Younis Vs. Shahid Cheema and 2 others (2006 P.Cr.L.J 636) it is further submitted by the learned counsel for the petitioner that despite the expressed requirement of the Illegal Dispossession Act the matter was not probed or inquired into by an Officer Incharge of the Police Station of the area and thus all the proceedings conducted by the learned Addl. Sessions Judge in exercise of the powers under the said Act are corum non judice and lastly it has been argued by the learned counsel that the manner in which the petitioner's attendance through warrant of arrest has been procured is not only violative of the principle of natural justice but also shows unnecessary haste on the part of the learned Addl. Sessions Judge which cannot be condoned by this Court in view of the dictum laid down by this Court in Muhammad Ijaz Vs. Nadeem and 3 others (PLD 2006 Lahore 277). The argument is that after entertaining the application the learned Addl. Sessions Judge was oblige to require the petitioner to submit bonds for appearance under Section 91 Cr.P.C. but in the present case the learned Addl. Sessions Judge did not issue summon and directly issued warrants of arrest and sent the petitioner behind the bars.
Even the material placed on the file reveals that the petitioners never appeared before the learned trial Court or raised such an application. Therefore in the light of the law declared by the Hon'ble Supreme Court this petition is not maintainable and is accordingly dismissed. However, the petitioner, if so advised, may move the learned trial Court for redressal of his grievance and in case such an application is made the same shall be decided before proceeding in the matter on merits.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 Lahore 122
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
GOHAR JAVED--Petitioner
versus
STATE and another--Respondents
W.P. No. 964-Q of 2006, heard on 10.5.2006.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 506, 148 & 149--Quashing of FIR--Held: There was no bar to extraordinary jurisdiction of the Court to quash an FIR--Story narrated in FIR was found incredible and impossible and on the face of it, it appear to be a cooked up story to rope in innocent persons of adverse party merely--If from the bare reading of FIR, no offence was made out to had been committed--FIR could be quashed to save innocent persons from being harassed and humiliated by the police--FIR was quashed. [P. 125] B
Pakistan Penal Code, 1860 (XLV of 1860)—
----Ss. 506, 148 & 149--Constitution of Pakistan, 1973, Art. 199--Contents of F.I.R.--Words depicting--There was a simple threat which could not be considered to have caused any alarm to informant because no such words depicting such consequences were found in FIR--Not a single word or sentence shows that any threat was hurled or informant was directed to do any unlawful act or to omit to do an act which the informant was entitled to do legally--Third condition provided for applicability of S. 506 of PPC is missing--Even on face of contents of FIR, it appears that story is unbelievable and improbable--FIR was quashed. [P. 124] A
Mr. Muhammad Aslam Chaudhry, Advocate for Petitioner.
Mr. M.A. Farazi, Advocate for State.
Ch. Riaz Ahmad, Advocate for Respondent No. 2.
Date of hearing: 10.5.2006.
Judgment
On 31.3.2006, Muhammad Arshad son of Muhammad Sardar, had got registered an FIR No. 228 of 2006, with Police Station Yazman, under Sections 506, 148, 149 of the CPC. The contents of the FIR are reproduced in English version as under:--
"I am a permanent resident of Chak No. 116/DB and cultivator by profession. I was proceeding toward Baithik' of Hafiz Muhammad Nasir from my house at about 8:00 p.m. I found Muhammad Shabbir armed with pistol .30 bore, Gohar Javed armed with Kalashnikov, Muhammad Javed armed with Repeater .12 bore, Abdul Ghani armed with Soti, Muhammad Arshad Armed with pistol .30 bore, Muhammad Sarwar armed with dagger, Master Muhammad Irshad armed with .222 bore, Asghar Ali armed with knife, Zulfiqar Ali armed with hatchet, Abdul Rashid armed with chhura, Muhammad Shabbir armed with carbine, Muhammad Asif armed with soti, Abdul Razzaq armed with daang, Shabbaz armed with daang Muhammad Amjad armed with daang, Wazir Ahmad armed with soti Muhammad Safdar and Muhammad Akhtar armed with soti, Mahboob Alam armed with dagger and some other unknown persons standing in a chowk in the middle of the village and when I came across them, Muhammad Shabbir and Gohar Javed intercepted and threatened me that today they would murder me. I besought but in vain. I started raising hue and cry, which attracted Muzammal Hussain and Munawar Hussain to the scene of occurrence.
Finding opportunity, I ran away. All the accused persons while brandishing their weapons followed me. I took refuge in theBaithak' of Hafiz Nazir. All the accused persons remained sitting there till 11:00 p.m. Gohar Javed and his accomplices had also made aerial firing earlier to this occurrence. I present my written application. Necessary proceedings may be initiated.
Sd/-
Muhammad Arshad son of Muhammad Sardar, Caste Arain, resident of Chak No. 116/DB, Tehsil Yazman".
learned counsel submits that the above mentioned FIR needs quashment as Section 506 of the PPC, does not appear to have been committed. Referring to Section 503 of the PPC, learned counsel states that main ingredient for the commission of offence of criminal intimidation, as defined in the aforesaid section, is missing in the whole story, narrated by the informant, He has also argued that apparently the case is false one and it does not appear to be credible information that eighteen armed persons alongwith some unknown persons with premeditation were not able to cause a single injury even to the informant although they were prepared to cause the murder of the informant. It, in fact, display that the case is based on false and cooked up story to rope in innocent persons with some ulterior motive or political victimization.
On the other hand, learned counsel for the Respondent No. 2 states that eighteen persons alongwith some unknown persons had assembled in a Chowk and tried to cause murder of the informant, therefore FIR cannot be quashed. An inquiry is under process with the Police and it is yet to be determined as to whether offence was committed or not?. Learned counsel refers to 2006 SCMR 276 (Col. (Rtd) Shah Sadiq vs. Muhammad Ashiq) and contends that this Court has got no jurisdiction to interfere into investigation of the case.
Learned counsel for the State has very candidly and fairly stated that from the contents of the FIR, offence under Section 506 of the PPC cannot be made out and it requires quashment.
After considering the arguments of learned counsels for the parties and from the perusal of the record, I have considered it necessary to reproduce Section 503 of the PPC:--
"503. Criminal intimidation. Whoever threatens another with an injury to his person reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation".
From examination and analysis of above section, it appears that this section consists of three main essential ingredients:--
(i) There must be a threat;
(ii) that threat must be causative of injury to a person, reputation or to his property, or to any other one in whom that person may be interested; and
(iii) there must be a purpose of threat also which may be to cause alarm to that person, or to do any act which he is not legally bound to do or to omit which that person is legally entitled to do, as the means of avoiding the execution of such threat.
To prove this third ingredient, learned counsel for Respondent No. 2 has failed to point out the purpose for which the informant was intercepted in the Chowk by so many persons. The contents of FIR display that there was only a simple threat which cannot be considered to have caused any alarm to the informant because no such words depicting such consequences are found in the FIR. Not a single word or sentence shows that any threat was hurled or the informant was directed to do any unlawful act or to omit to do an act which the informant was entitled to do legally. Therefore, the third condition provided for the applicability of Section 506 of the PPC is missing. Even on the face of contents of the FIR, it appears that story is unbelievable and improbable. Eighteen persons armed with deadly weapons alongwith some unknown person also having pre-consultation and premeditation, having intention to cause murder of informant were present but could not cause a single injury to the informant. A prudent man even cannot believe that such an occurrence had taken place or committed by such persons. From the contents of FIR, the commission of offence has not been proved. As regards the citation quoted by the learned counsel for the informant as 2006 SCMR 276 (Col. (Retd) Shah Sadiq versus Muhammad Ashiq), it does not bar the extraordinary jurisdiction of this Court in proper cases to quash an FIR when the story narrated in the FIR is found incredible and impossible and on the fact of it, it appears to be a cooked up story to rope in innocent persons of adverse party merely for political victimization and ends and if from the bare reading of the FIR, no offence is made out to have been committed. In such cases FIR can be quashed to save innocent persons from being harassed and humiliated by the police. The above noted decision of the Hon'ble Supreme Court has not created any bar to quash this FIR. Therefore, by relying upon 1988 P Cr.L.J 270 (Syed Ali Asghar Shah versus The State), the writ petition is accepted. Resultantly, FIR No. 228/2006, dated 31.3.2006, registered with Police Station Yazman, District Bahawalpur, under Sections 506, 148, 149 of the PPC, stands quashed.
(Fouzia Fazal) FIR quashed.
PLJ 2007 Lahore 125
Present: Mian Hamid Farooq, J.
Mst. WAKEELAN BEGUM (Widow)--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, GUJRANWALA and another--Respondents
W.P. No. 12852 of 2005, heard on 18.7.2006.
Constitution of Pakistan, 1973--
----Art. 199--Punjab Urban Rent Restriction Ordinance, (VI of 1959), S. 13--Ejectment petition--Purpose of relationship of landlord and tenant--Person claiming to be a "landlord" of a particular property had to prove through production of documentary or sufficient oral evidence that a particular person is his tenant--If such a person ables to adduce sufficient evidence to prove then other party is required to produce evidence in rebuttal--Respondent was not able to prove the existence of relationships of landlord and tenant between the parties through documentary and oral evidence on record--Respondent could not bring on record any evidence to show that petitioner either remained tenant under him--No cogent proof of payment of rent by the petitioner had been placed on record--Sketchy statements that rent was paid in their presence, are neither believable nor reliable to hold that respondent was either "landlord" or "owner" and to pass ejectment order--Onus of proof was solely on the ejectment petitioner to prove the issue and respondent was to produce his evidence only in rebuttal--When respondent failed to discharge the onus, the evidence of petitioner becomes irrelevant--Order accordingly. [Pp. 127 & 128] A & B
Malik Abdul Majid Khan, Advocate for Petitioner.
Mr. Ehsan Ali Sheikh, Advocate for Respondents.
Date of hearing: 18.7.2006.
Judgment
Respondent No. 3, widower of pre-deceased daughter, namely Mst. Shabnam, of Shahzada Muhammad Tarif deceased, who died on 22.12.2002, claiming to be the sole surviving legal heir of Shahzada Muhammad Tarif, his erstwhile father in law, filed the ejectment petition before the Rent Controller, seeking eviction of the petitioner from the questioned house on the grounds of default in the payment of rent from December, 2002 to January, 2004 and his personal need, asserting that the petitioner was tenant under the predecessor in interest of the respondent and now is tenant under him for a period of one year @ Rs. 10,000/- per month. The petitioner resisted the ejectment petition, inter alia, pleading that the respondent is neither legal heir of Shahzada Muhammad Tarif nor relationship of landlord and tenant exists between the parties. Out of the pleadings of the parties, following issues were framed:--
"Issues:
Whether there exists relationship of landlord and tenant between the parties, if so, its effect ? OPA.
Relief".
The respondent/ejectment petitioner appeared as AWI, and produced Hafiz Muhammad and Muhammad Mushtaq as AW2 and AW3. Certain documents were admitted in evidence as Ex.Al to Ex.A6. Contrarily, the petitioner appeared as RW1 and produced Abdul Razzaq and Miraj Din as RW2 and RW3. The learned Rent Controller, after hearing the parties decided Issue No. 1 in favour of Respondent No. 3 and passed the ejectment order against the petitioner vide order dated 21.9.2004. Petitioner's appeal against the said order was dismissed by the learned Addl. District Judge, vide judgment dated 22.2.2005, hence the present Constitutional petition.
Learned counsel for the petitioner contends that the onus of solitary issue was on the ejectment petitioner, but he could not produce any documentary evidence or sufficient oral evidence to prove the existence of relationship of landlord and tenant. Conversely, the learned counsel for the respondent, while supporting both the order/judgment, states that the respondent is the legal heir of Shahzada Muhammad Tarif, and the petitioner had been paying rent to Shahzada Muhammad Tarif and after his death, the petitioner was a tenant under the respondent, therefore, relationship of landlord and tenant exists between the parties.
I have heard the learned counsel and examined the available record. Admittedly, the onus to prove the solitary issue was on the ejectment petitioner to establish that the relationship of landlord and tenant exists between the parties. There cannot be any cavil to the proposition that a person claiming to be a "landlord" of a particular property had to prove through production of documentary or sufficient oral evidence that a particular person is his tenant. If such a person ables to adduce sufficient evidence to prove the said issue, then the other party is required to produce evidence in rebuttal. In the instant case, the ejectment petitioner has only produced postal receipts, copy of legal notice (mark-A) and a copy of sale deed (Ex-A6) in favour of Shahzada Muhammad Tarif. Besides the said documents, the respondent produced two witnesses and appeared as his own witness. The sale-deed does not prove that the respondent is even the owner of the questioned property, as it was executed in favour of Shahzada Muhammad Tarif, ex-father in law of the ejectment petitioner. Even if it be taken that the respondent is the owner of the house, the petitioner cannot succeed as he failed to prove the issue of relationship of landlord and tenant. The expressions "ownership" and "landlordship" convey different meanings under the provisions of Punjab Urban Rent Restrictions Ordinance, 1959, as a person may be the "owner" of the property in question, but he may not be the "landlord" for the purpose of relationship of landlord and tenant and it can be voice versa. In the instant case the respondent has not been able to prove that he is the owner of the property, as the sole document relied upon by the respondent shows that the sale-deed was executed in favour of Shahzada Muhammad Tarif. The respondent has failed to place on record any documentary evidence to show that the petitioner is his tenant. As regards the oral evidence, the said stereotype evidence cannot be relied upon to non-suit the petitioner.
Admittedly, the respondent is not the legal heir of Shahzada Muhammad Tarif, with whose daughter, the ejectment petitioner was married. Additionally, Mst. Shabnam pre-deceased her father, the property was never transferred in favour of Mst. Shabnam and therefore the respondent cannot claim the property on the ground that Mst. Shabnam was his wife. The respondent was not able to prove the existence of relationship of landlord and tenant between the parties through the documentary and oral evidence on record, therefore, the onus of Issue No. 1 did not shift to the petitioner to rebut the respondent's evidence. Despite that the petitioner produced certain witnesses. The respondent could not bring on record any evidence to show that the petitioner either remained tenant under Shahzada Muhammad Tarif or under him, as pleaded in the ejectment petition. No cogent proof of payment of rent by the petitioner has been placed on record. Sketchy statements of respondent's witnesses, to the effect that the rent was paid in their presence, are neither believable nor reliable to hold that the respondent is either "landlord" or "owner" and to pass the ejectment order. Both the Courts have erroneously relied upon the statements of these witnesses. Their statements show that they are friends of the ejectment petitioner and are untrustworthy. Both the Courts have proceeded to pass impugned order/judgment in complete oblivion of the fact that onus of proof was solely on the ejectment petitioner to prove the issue and the respondent was to produce his evidence only in rebuttal. When the respondent failed to discharge the onus of the solitary issue, the evidence of the petitioner becomes irrelevant.
In the above perspective, I have examined both the judgment/order and find that those are not sustainable in law, inasmuch as the evidence of the parties was not properly appreciated, it was misread and wrongly relied upon, and thus I am inclined to set aside both the judgement/order.
Upshot of the above discussion is that the present petition is allowed and the impugned judgment dated 22.2.2005 and order dated 21.9.2004, passed by both the lower forums,, are declared to be illegal, without lawful authority and having no legal effect, and thus are set aside. Resultantly, the ejectment petition, filed by Respondent No. 3 stands dismissed.
No order as to costs.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 Lahore 128
Present: Mian Hamid Farooq, J.
AFFAN KHALID--Petitioner
versus
ABDUL RAZZAQ and another--Respondents
W.P. No. 10648 of 2005, decided on 24.7.2006.
Punjab Urban Rent Restriction Ordinance, 1959 (VI fo 1959)—
----S. 15(6)--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction--Validity--Held: If remedy of appeal is available to a party under the statute, Constitutional jurisdiction of High Court cannot be invoked without availing such statutory remedy--Held: If it is a void order, then Constitutional petition can be entertained--No special circumstances in present case warranting the exercise of Constitutional jurisdiction--No proclamation was made, therefore, no exparte order could be passed--Rent Controller on the basis of publication could not have passed exparte order against respondent--Petition dismissed.
[Pp. 130 & 131] A & B
Mr. Irfan Sheikh, Advocate for Petitioner.
Mirza Hafeez-ur-Rehman, Advocate for Respondents.
Date of hearing: 24.7.2006.
Order
The petitioner instituted the ejectment petition seeking the eviction of the respondent from Shop No. 21, before the learned Rent Controller, Lahore on the grounds of his personal need and default in payment of rent. The respondent did not attend the proceedings and exparte proceedings were taken against him on 10.11.2004. He, then filed an application for setting aside the ex-parte order, which was contested by the petitioner, and ultimately the learned Rent Controller dismissed the said application, vide order dated 3.1.2005. The learned Rent Controller, after recording petitioner's evidence passed the exparte ejectment order against the respondent, vide order dated 18.2.2005. The respondent assailed the said decision, before the appellate authority, through the appeal, which was allowed by the learned Addl. District Judge, respondent's application for setting aside the exparte proceedings was accepted, exparte order dated 10.11.2004 was set aside and the case was remanded to the learned Rent Controller to dispose of the ejectment petition on merits, vide impugned judgment dated 4.5.2005, hence the present Constitutional petition, which was instituted on 14.6.2005.
Learned counsel for the respondent has raised a preliminary objection that since the suit property is a shop and thus "non-residential building", therefore, the remedy of appeal was available to the petitioner, which was not filed, therefore, the present Constitutional petition is incompetent. Confronted with the said objection, learned counsel for the petitioner vehemently asserts that since the impugned order is a void order, therefore, there was no need to file the appeal and the Constitutional petition is maintainable. He has relied upon Government of the Punjab through Collector, Faisalabad and another Vs. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others (2001 SCMR 209) and Farzand Raza Naqvi and 5 others Vs. Muhammad Din through Legal Heirs and others (2004 SCMR 400).
I have heard the learned counsel and examined the available record. Admittedly, the present Constitutional petition has arisen out of the ejectment petition, which relates to the eviction of the respondent from the shop in question, which is obviously a "non-residential building" as defined in Punjab Urban Rent Restrict Ordinance, 1959, Section 15(6) of the Ordinance ibid provides that in case of "non-residential building" a person, aggrieved by the order passed on appeal by the appellate authority, may within 30 days from the date of such order prefer an appeal to the High Court. Undeniably, the petitioner, instead of availing the statutory remedy, provided under the law, after the lapse of period of limitation, filed the present Constitutional petition. It has been held in the case reported as Syed Match Company Ltd. through Managing Director Vs. Authority Under Payment of Wages Act and others (2003 SCMR 1943) that a party had no discretion to ignore the provision of appeal and file the Constitutional petition instead thereof. In view whereof, to my mind, the present petition is not maintainable and incompetent, as the petitioner failed to resort to the remedy of appeal available to him under the law.
Now coming to the judgments relied upon by the learned counsel for the petitioner in support of his contention that despite non-availing of remedy of appeal, the Constitutional petition is competent. As regards the case of Government of Punjab, ibid, the learned counsel for the petitioner could not demonstrate from the available record that how the impugned judgment, on the face of the record is illegal, void or it suffers from lack of jurisdiction. This judgment is of no avail to the petitioner. As regards the case of Farzand Raza Naqvi, supra, the Hon'ble Supreme Court of Pakistan has reiterated the settled principle that if remedy of appeal is available to a party under the statute, the Constitutional jurisdiction of High Court cannot be invoked without availing such statutory remedy, however, it has been held that in exceptional circumstances or if it is a void order, then the Constitutional petition can be entertained. There are no special circumstances in this case warranting the exercise of Constitutional jurisdiction in the matter and as noted above, the learned counsel for the petitioner has not been able to point out that how the impugned order is a void order. The said judgment also does not advance the case of the petitioner.
Even if it be taken that the petition is maintainable, there is little scope of interference in the impugned judgement. Perusal of the order sheet manifests that the learned Rent Controller, on 8.10.2004, ordered that the respondent be served through publication in "Weekly Kehkeshan" for 28.10.2004 and although proclamation seems to have been published for 28.10.2004, yet no exparte order was passed on that date. It was again ordered that proclamation be affected for 9.11.2004, however, it appears that no proclamation was made for 9.11.2004. Despite that the learned Rent Controller, on the next date i.e. on 10.11.2004, proceeded to pass an exparte order on the basis of proclamation made on 28.10.2004. I find from the record that no proclamation was made either for 9.11.2004 or for 10.11.2004, therefore, on 10.1.2004, no exparte order could be passed. To my mind the learned Rent Controller on the basis of the publication dated 28.10.2004, could not have passed exparte order against the respondent. The learned Addl. District Judge has adverted to every aspect of the case and rightly interfered in the matter. Additionally, the petitioner has not been prejudiced, by the impugned judgement as it has been directed that the case be decided on merits of the case.
In view of the above, the present petition is incompetent, not maintainable and devoid of merits as well, hence stands dismissed on both the Courts.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 Lahore 131
[Multan Bench Multan]
Present: Tariq Shamim, J.
YOUSUF JAMIL--Petitioner
versus
ADDL. DISTRICT JUDGE, DERA GHAZI KHAN and 2 others--Respondents
W.P. No. 2542 of 2006, decided on 17.7.2006.
Civil Procedure Code, 1908 (V of 1908)—
----O.XXI, R. 2--Constitution of Pakistan, 1973, Art. 199--Payment out of the Court--Validity--Conditions for payments of money out of the Court were not followed by the petitioner--It could not be proved that the amount had been paid through cheques as the same were bearer cheques which could be encashed by anyone--Purported signatures of the bearer cheques on the reverse side of the cheques did not match with the signatures of the respondent on the execution petition as well as the power of attorney submitted by him in executing Court--No receipts had been placed on the record in support of his claim to show that the amount in-question had been received by respondent--Petition dismissed. [P. 134] A
Syed Muhammad Hussain Shah Qadri, Advocate for Petitioner.
Mr. Bashir Ahmad Chaudhry, Advocate for Respondents.
Date of hearing: 17.7.2006.
Order
Through this Constitutional petition the petitioner has challenged the orders of the learned executing Court dated 16.2.2006 and the learned revisional Court dated 12.5.2006.
The brief facts of the case are that Respondent No. 3 filed a suit for recovery of Rs. 1,20,000/- on the basis of a promissory note against the petitioner/defendant who on appearance before the trial Court conceded the claim of Respondent No. 3 and admitted the execution of pronote. Consequently the parties jointly filed a written compromise deed Ex. C1 on the basis of which the suit filed by Respondent No. 3 was decreed in his favour and against the petitioner. By virtue of the said compromise deed it was agreed between the parties that the decretal amount would be paid to the decree-holder i.e. Respondent No. 3 till 31.5.2005. and if he failed to discharge his liability in terms of the compromise Respondent No. 3/decree holder would be at liberty to file execution petition to recover the decretal amount from the petitioner/judgment-debtor.
Since the petitioner failed to abide by the compromise arrived at between the parties as such on 8.6.2005 Respondent No. 3 filed an execution petition before the learned trial Court on which process was issued to the petitioner who on appearing before the learned executing Court filed an application stating therein that an amount of Rs. 1,07,000/- had been paid by him to the decree-holder and the decree having been satisfied the execution proceedings were misconceived. In the said application the petitioner referred to two cheques issued by him and purportedly encashed by Respondent No. 3. The said application was resisted by Respondent No. 3/the decree-holder who denied the receipt of any amount from the petitioner through cheques whereupon, the learned executing Court framed issues and after recording evidence led by the parties in respect of their claims, dismissed the application filed by the petitioner. The said order was challenged by the petitioner in revision before the learned Addl. District Judge Dera Ghazi Khan which was also dismissed vide the impugned order dated 12.5.2006.
The learned counsel for the petitioner contended that the petitioner paid Rs. 40,000/- through a cheque dated 13.5.2005 drawn on National Bank of Pakistan in the name of Respondent No. 3 and another cheque in the sum of Rs. 67,000/- dated 21.5.2005 also issued in the name of Respondent No. 3 and the balance amount had been deposited in the Court. Since the decree stood satisfied, hence the execution proceedings were misconceived. Further submitted that before the learned executing Court the petitioner had proved the payment of Rs. 1,07,000/- out of Court to Respondent No. 3. Also maintained that the receipt of payment of the amount of Rs. 1,07,000/- by Respondent No. 3 was evident from Mark `C' a certificate issued by the Bank Manager which showed encashment of the cheques by Respondent No. 3/decree-holder. Lastly stated that the judgments of both the Courts below were based on surmises and conjectures as the evidence of the petitioner was not discussed by the learned Courts in the impugned orders.
On the other hand, the learned counsel appearing on behalf of Respondent No. 3 contended that the instant writ petition had been filed by the petitioner in order to delay the proceedings. The cheques in question were bearer cheques which had been encashed by the petitioner or some one on his behalf. Even otherwise if the claim of the petitioner was a genuine, he should have obtained a receipt from the respondent regarding payment of the amount in question in terms of the decree passed by the learned Civil Court and since no such receipt had been placed on the record as such the payment of the amount in question was not proved and the decretal amount was still outstanding against the petitioner. He further maintained that CW1 Karam Hussain Khosa the Manager National Bank Jampur in his examination-in-chief before the learned executing Court categorically stated that the signatures of Respondent No. 3 purportedly affixed on the back of the said cheques did not match with the signature of the respondent on the execution petition and the power of attorney submitted in the learned Court.
I have heard the learned counsel for the parties and perused the record.
It is not denied that agreement of compromise Ex. C/1 was executed by both the parties which specified the mode for the payment of the decretal amount. The petitioner did not adopt the mode of payment of decretal amount as settled between the parties by virtue of the said deed of agreement. Even otherwise Order XXI Rule 2 of CPC provides mode for payment of money under a decree out of Court. For easy reference Rule 2 ibid is reproduced hereunder:--
"R. 2 Payment out of Court to decree-holder.--(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment of adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if after service of such notice, the decree holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(3) [Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.]"
A perusal of Rule 2 ibid clearly reveals that the conditions laid down under the law for payment of money out of Court were not followed by the petitioner. The petitioner also could not prove before the Courts that the amount in question had been paid to Respondent No. 3 through the cheques aforementioned as the same were neither crossed cheques nor were the same exclusively issued in the name of Respondent No. 3 but in fact the same were bearer cheques which could be encashed by any one. The Manager National Bank of Pakistan while appearing as a Court witness categorically stated that the cheques referred to by the petitioner were bearer cheques and that the purported signatures on the reverse side of the cheques did not match with the signatures of the Respondent No. 3 on the execution petition as well as the power of attorney submitted by him in the learned executing Court. No receipt has been placed on the record by the petitioner in support of his claim to show that the amount in question had been received by Respondent No. 3. Further the learned counsel for the petitioner has not been able to refer to any portion of the statement of any of the witnesses to show non-reading or misreading of evidence by the learned Courts below.
The learned counsel when questioned as to the maintainability of the writ petition has not been able to satisfy the Court although he has referred to the case of Qamar-ud-Din vs. Muhammad Din and another (PLD 2001 S.C. 518) wherein it has been observed by the Hon'ble Supreme Court that exercise of jurisdiction under Article 199 of the Constitution depends solely on the merits of each case. The merits of the instant case do not call for interference in the exercise of Constitutional jurisdiction of this Court. A Court or a tribunal may decide a matter rightly or wrongly, and even if a decision given by such Court or tribunal is wrong it does not render the decision without jurisdiction. Further re-appraisal of evidence in writ petition is also not permissible. Reference is made to the case of Abdur Rehman Bajwa vs. Sultan and 9 others (PLJ 1981 S.C 895). Even otherwise, concurrent findings of fact cannot be interfered with in exercise of Constitutional jurisdiction by this Court. Reliance is placed on the case of Moazam Hanif vs. Settlement Commissioner/Collector and others (2006 SCMR 642).
For what has been discussed above the petition being without merit is dismissed. There shall be no order as to costs.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 Lahore 134 (DB)
Present: Mian Saqib Nasir and Fazal-e-Miran Chauhan, JJ.
ABDUL RAUF--Appellant
versus
FAROOQ AHMAD and another--Respondents
R.F.A. No. 209 of 2006, heard on 2.10.2006.
(i) Civil Procedure Code, 1908 (V of 1908)—
----O. XXXVII--Negotiable Instruments Act, (XXVI of 1881), S. 29-C--Suit for recovery--Promissory note and the cheque which are negotiable instruments, cannot be attested by the witnesses and in case, any signatures by the strangers are appended thereupon, the signing shall be presumed to have been made as an indorser--Attestation of a pronote by witnesses is impermissible and can only be made by a stranger in the capacity and the status of an indorser. [P. 138] B
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)—
----Art. 17--Competency of witnesses--Pronote had not been witnessed by two marginal witnesses thus no right to recover any amount could be based on the same--Promissory note was not required to be attested by any witness--Even otherwise, at the time, when it was tendered in evidence, no objection was raised by the appellant and the document had been proved by two marginal witnesses of the receipts.
[Pp. 137 & 139] A & D
(iii) Stamp Act, 1899 (I of 1899)—
----S. 2(5)(b)--Provisions of--Legal status--Instrument is bond or a promissory note--If an instrument which may otherwise be a promissory note, but if attested by witnesses, it attains legal status of a bond and no more remains a negotiable instrument; thus one of important test to determine whether an instrument is bond or promissory note is attestation of the witnesses.
[P. 139] C
Mr. S.M. Masud, Advocate for Appellant.
Mian Muhammad Aslam Arian, Advocate for Respondents.
Date of hearing: 2.10.2006.
Judgment
Mian Saqib Nisar, J.--The respondents/plaintiffs brought a suit for the recovery of an amount of Rs. 3,00,000/- against the appellant, under the provisions of Order XXXVII CPC, on the basis of a pronote dated 28.9.2001; it is stated in the plaint, that there was some business transaction between the parties, on account of which, the latter owed a sum of Rs,. 3,000,00/- to the plaintiffs and for the purpose of securing the amount, has executed a pronote Ex.P-15, alongwith the receipt and also an agreement Ex. P-16, of the even date; the appellant in the written statement, has denied his liability to pay the amount; but has admitted his signature/thumb impression upon the pronote and the receipt; he however, alleged that those were obtained by the plaintiffs on the blank papers. It is further his case that on account of supply of certain goods to him, he owed certain amount to the respondents, which he has paid through the receipts Ex. D-1 to Ex. D-7, amounting to Rs. 4.30,000/-; thus only Rs. 20,000/- is outstanding against him, which amount he has withheld, for the reason that the quality of the goods supplied was inferior. In view of the pleadings of the parties, the learned trial Court, framed the following issues:--
Whether the plaintiffs have no cause of action and locus standi to file this suit ? OPD
Whether the promissory note/receipt in dispute is illegal, void, based on fraud and liable to be set aside ? OPD
Whether the suit cannot proceed as the promissory note dated 28.9.2001 is contrary to the agreement dated 28.9.2001 ? OPD
Whether the plaintiffs are estopped to bring this suit by their words and conduct ? OPD
Whether the suit is false, frivolous and vexatious. If so, whether the defendants is entitled to recover special cost from the plaintiffs ? OPD
Whether the plaintiffs sold cloth of substantial quality to the defendant. If so, its effect ? OPD
Whether the defendant duly executed promissory note/receipt dated 28.9.2001, in favour of the plaintiffs and received Rs. 3,00,000/- from them ? OPP
Whether the defendant executed agreement dated 28.9.2001, in favour of the plaintiffs ? OPP
Relief.
Parties were put to trial; the plaintiffs examined Waheed-ul-Haq (PW-1) and Muhammad Nadeem (PW-2) the marginal witnesses of the receipt, attached to the pronote to prove the same; Besides, Muhammad Saleem, brother in law, of the appellant, also appeared as PW-3 and has deposed as under:--
"I was partner in business with the defendant Abdul Rauf in the year 2000-2001. I and Abdul Rauf, used to purchase cloth from Farooq Ahmed, etc, plaintiffs. When the plaintiffs closed business with us, the plaintiffs had to receive Rs. 1,35,000/- from me and Rs. 3,00,000/- from the defendant. I had paid this amount to the plaintiffs and the defendant Abdul Rauf, did not pay the amount".
The pronote, the receipt and the agreement were tendered and proved through the statement of the marginal witnesses as Ex. P-15 and Ex. P-16; the plaintiffs also produced receipts Ex. P-1 to Ex. P-14, the documents, as has been promised by the appellant/defendant to pay the amount of Rs. 3,00,000/- in installments, as envisaged by the agreement Ex. P-16. As against the above, the appellant only examined himself as DW-1, and produced receipts Ex. D-1 to Ex. D-7 and after the trial, the learned Court below, by giving positive finding in favour of the plaintiffs on Issues Nos. 7 and 8 and against the defendant/appellant, on Issues Nos. 1 to 6, has decreed the suit. Hence this appeal.
Learned counsel for the appellant contends that the amount of Rs. 4,30,000/- out of Rs. 4,50,000/-, had been paid by the appellant to the respondents, through receipt Ex. D-1 to Ex. D-7. It is also submitted that Ex. P-15 and Ex. P-16 were blank at the time, when the thumb impression/signature of the appellant were procured by the respondents on these documents, which were signed etc as a security for the payment of Rs. 4,50,000/-. It is further argued that the Court below, has misread the evidence on the record and has not taken into account the defence propounded by the appellant. It is lastly submitted that the pronote has not been witnessed by two marginal witnesses as required under Article 17 of the Qanun-e-Shahadat Order, 1984 and thus no right to recover any amount could be based on the same.
We have heard the learned counsel for the parties. As far as, the proof of the pronote and the receipt attached thereto, as also the agreement, are concerned, these documents have been duly proved by the marginal witnesses PW-1 and PW-2; having admitted his signature and thumb impression on the pronote, etc in the written statement, the burden of proof, has shifted upon the appellant, to establish that he had signed and thumb marked on the blank papers and also that the amount of Rs. 4,30,000/-, has been paid to the respondents in lieu of the pronote.
We are afraid, these two important factums have not been proved by the appellant; there is no corroboration of the statement of the appellant; besides, the receipts Ex. D-1 to Ex. D-7, pertain to the period, prior to 28.9.2000, starting from 27.11.2000 till 18.1.2001. We are not convinced, if these receipts are regarding the discharge of the appellant's liability towards the pronote amount. Moreover the statements of PW-1 and PW-2, who are the witnesses of the pronote, receipts and also the agreement, have not been shattered in the cross-examination, nor any motive has been imputed to them, that they were making a false statement. The statement of the appellants, brother-in-law, reproduced above, who has appeared as PW-3, also supports the case of the respondents.
In the light of above, we are of the view that the plaintiffs have proved their case and the trial Court, has rightly decreed the suit.
As regards the argument about the lack of attestation of the pronote by two witnesses, resulting into the non-compliance of the provisions of Article 17 (2) (a) of the Qanun-e-Shahadat Order, 1984, it may be held that the application of the sub clause ibid is subject to clause (2) of the Article, which clearly ordains "unless otherwise provided "--------------------------------- "in any Special Law". Now the questions which arises for consideration are (i) whether the Negotiable Instrument Act, 1881 (the Act) is a Special Law (2) and Whether the Act provides for the non attestation of a promissory note by the witnesses.
In order to answer the first question, it may be held that the Order 1984, came into force on 26.10.1984; it is the General Law pertaining to the evidence, through which the Evidence Act of 1872 was repealed and replaced. The expression appearing "any Special Law" in the Article undoubtedly means the Special Law dealing with the special subjects, which were existing at the time of the enforcement of the Order. As at that time, the Negotiable Instrument Act 1881, was duly in force and therefore, for all intents and purposes, it is the Special Law, within the meaning of the said Article.
For answering the second question, we find expedient to reproduce the definition of the promissory note given in the Act, which reads as below:-
"4. "Promissory note": A "promissory note" is an instrument in writing (not being a bank-note or a currency-note containing an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument".
It is clear from the above that in order to qualify as a promissory note, the instrument must fulfill the following four conditions, which must co-exist:--
(i) an unconditional undertaking to pay;
(ii) the sum should be a sum of money and should be certain:
(iii) the payment should be to, or to the order of, a person who is certain or to the bearer of the instrument;
(iv) and the maker should sign it.
From the very nature, the promissory note and the cheque (defined in Section 6) which are negotiable instruments, cannot be attested by the witnesses and in case, any signatures by the stranger are appended thereupon, the signing shall be presumed to have been made as an indorser within the contemplation of Section 29-C, of the Negotiable Instrument Act and thus in view of the Section 35, "in the absence of a contract to the contrary the indorser of a negotiable instrument by indorsing it engages that on due presentment, it shall be accepted and paid according to its tenor and that if it shall be dishonoured, he will compensate the holder or subsequent indorser, who is compelled to pay any loss or damage caused to him by such dishonour. Every indorser after dishonour is liable as upon an endorsement payable on demand". Therefore, in view of the above, the attestation of a pronote by the witnesses is impermissible and can only be made by a stranger in the capacity and the status of an indorser.
Besides the above, according to the provisions of Section 2 (5) (b) of the Stamp Act, 1899, if an instrument, which may otherwise be a promissory note, but if attested, by the witnesses, it attains the legal status of a bond and no more remains a negotiable instrument; thus one of the important test to determine whether an instrument is bond or a promissory note, is the attestation of the witnesses Reference in this behalf can be made upon the judgment reported as Ram Narayan Bhagat and another vs. Ram Chandra Singh and others (AIR 1962 PATNA 325), Haji Hamzo Panhwar, Vs. Muhammad Ibrahim, and another (PLD 1963 (W.P) Karachi 962) and Dayal and another Vs. Bhimma (1925 Oudh 188). In the light of above, we are of the considered view that the promissory note Ex. P-15 was not required to be attested by any witness. Even otherwise, at the time, when it was tendered in evidence by the respondent, no objection was raised by the appellant and the document has been proved by the two marginal witnesses of the receipt.
Learned counsel for the appellant has also not been able to convince us, if there is any misreading and non reading of the evidence of the Courts below or any legal or factual infirmity in the impugned judgment and decree, calling for interference in this appeal, thus the same has no merits and is hereby dismissed.
(Fouzia Fazal) Appeal dismissed.
PLJ 2007 Lahore 139
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MAQBOOL HUSSAIN ASIF and 8 others--Petitioners
versus
SECRETARY, LOCAL GOVERNMENT & RURAL DEVELOPMENT DEPARTMENT, GOVT. OF PUNJAB LAHOREand another--Respondents
W.P. No. 5946 of 2004, heard on 29.6.2006.
Punjab Local Councils Servants (Services) Rules, 1997—
----R. 4(v)--Punjab Local Government Ordinance, 2001, Ss. 191 & 196--Constitution of Pakistan, 1973, Art. 199--Appointment, promotion, suspension, punishment & dismissal from service--Held: Appointment, promotion, suspension and punishment (including dismissal, compulsory retirement, reduction in rank and removal from service) of servants of Local Councils or servants of the Union Administration shall be made by Union Nazim--Union Nazim shall make the appointment or promotion on the recommendation of a selection committee specified in Rule 4 which comprises of Union Nazim and the Senior most Secretary of the Union Administration--There was not an allegation that any of the petitioner was not eligible to be promoted to the said post or that any right of any other servant of the respective Union Council had been infringed--Petition allowed. [P. 141] A & B
Mr. Qamar-uz-Zaman Butt, Advocate for Petitioners.
Mr. Zafar Ullah Khan Khakwani, AAG for Respondent No. 1.
Mr. Jawad Shahid, Advocate for Respondent. 2.
Mr. Arshad Mehmood, DDO (G) & Abdul Hamid, Assistant, with records.
Date of hearing: 29.6.2006.
Judgment
This judgment shall decide Writ Petitions Nos. 5946/04, 6332/04, 6018/04 and 216/05 as common questions are involved.
The writ petitioners in all these cases were appointed as Naib Qasids in the erstwhile Zila Council, Khanewal by the competent Authority. While they were so performing their duties, the Punjab Local Government Ordinance, 2001, was promulgated. All the writ petitioners were transferred and allocated to the various Union Councils as per details given in these writ petitions. All of them were pronoted as Secretaries of the respective Union Council by the Union Nazims after being recommended by the Selection Committees. All these wit petitioners feel aggrieved of letters/orders dated 15.10.2004 and 29.10.2004 issued to the Union Nazims calling upon them to review the said promotions and to recover the emoluments paid.
Mr. Qamar-uz-Zaman Butt, Advocate/learned counsel for the petitioners in all these cases contends that the said impugned orders are without lawful authority inasmuch as under the Rules framed by the Provincial Government under the said Punjab Local Government Ordinance, 2001, the Union Nazim is the competent Authority in the matter of appointment and promotion to posts in BS-1 to 5 and the post of Secretary Union Council falls in the said cadre. According to him, the Executive Officers cannot over ride the said statutory Rules. Learned AAG has tried to support the impugned orders. Mr. Jawad Shahid, Advocate/learned counsel for the Respondent No. 2 relies on a Provincial Government circular dated 5.1.2004 to urge that notwithstanding the said Rules, the matter of promotion of the employees of erstwhile Zila Councils is to be decided by District/City District Government. According to him, the letter constitutes Departmental Regulations or instructions and is at part with a statutory Rule.
I have given some thought to the respective contentions of the learned counsel for the parties. The facts are admitted. The petitioners-Naib Qasids were pronoted as Secretaries Union Councils which post is in BPS-5. Now, admittedly, the Punjab Local Councils Servants (Service) Rules, 1997 Govern the matter as amended with reference to the new set up introduced in the Punjab Local Government Ordinance, 2001. Under Rule 4 (v), the appointment, promotion, suspension and punishment (including dismissal, compulsory retirement, reduction in rank and removal from service) of servants of Local Councils or servants of the Union Administration shall be made by the Union Nazim. This is subject to only one condition that the Union Nazim shall make the appointment or promotion on the recommendation of a Selection Committee specified in the said Rule 4 which comprises of the Union Nazim and the senior most Secretary of the Union Administration.
There is no denial that promotion on all the writ petitioners as Secretary Union Council has been made by the concerned Union Nazims on the recommendation of the said Selection Committee.
Now according to the said circular dated 5.1.2004 being relied upon by the learned counsel for the respondent the promotion, move over and grant of selection scale cases for the employees of erstwhile Zila Council shall be continued to be decided at the District/City District Government.
Now the said statutory provisions had been made by way of amendment in the Punjab Local Councils Servants (Service) Rules, 1997, by the Governor of Punjab, in exercise of powers conferred upon him under Section 191 read with Section 196 of the Punjab Local Government Ordinance, 2001.
To my mind, the said statutory Rules, framed, in exercise of powers conferred by statute by the competent Authority cannot be set at naught by the executive by issuing the said circular. Even otherwise, there is not even allegation that any of the petitioners was not eligible to be pronoted to the said post or that any right of any other servant of the respective Union Council has been infringed. All these writ petitions are accordingly allowed and the impugned orders issued by the Respondent No. 2 are declared to be without lawful authority and are set aside. No orders as to costs.
(Fouzia Fazal) Petitions allowed.
PLJ 2007 Lahore 142
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
WASEEM IQBAL--Petitioner
versus
ADDL. INSPECTOR GENERAL OF POLICE, INVESTIGATION BRANCH, PUNJAB and 3 others--Respondents
W.P. No. 2064 of 2006, decided on 6.7.2006.
Police Order, 2002—
----Art. 18(2)(6)--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction--Transfer and change of investigation--Principle of doctrine of trichotomy--Alternate remedy--Held: Constitutional jurisdiction is discretionary in nature and High Court is not bound to interfere in each and every matter just on the ground of want of alternate remedy against the action impugned or called in-question in writ petition, unless there are some compelling reasons showing that non-interference would either result in injustice or would amount to support the retention of illegal gain--Legislature thought it proper to regulate the question of change of investigation permanently giving jurisdiction of charge of investigation exclusively to the concerned authorities and in case the concerned authorities did not consider proper to change the investigation any interference by High Court would amount to interference in the internal administration of the state authorities which was against the principle of doctrine of trichotomy of powers which grants powers under Constitution to each organ of the State to decide the matters in its allotted sphere--Petition dismissed. [Pp. 143 & 144] A & B
PLD 1997 SC 304; 1994 SCMR 2142; 1986 SCMR 1934; 2004 SCMR 1924; 2006 SCMR 606 and PLD 1975 SC 383.
Mr. Muhammad Ghias-ul-Haq, Advocate for Petitioner.
Mr. Altaf Ibrahim Qureshi, Advocate for Complainant.
Mr. Muhammad Qasim Khan, AAG for Respondents.
Date of hearing: 6.7.2006.
Order
The petitioner who is accused in case FIR No. 123 dated 8.4.2005 under Sections 337-A (i), 337-A (ii)/34 PPC Police Station Tibba Sultanpur Tehsil Mailsi, District Vehari, is aggrieved against the refusal by Additional Inspector General of Police/Respondent No. 1 to transfer the investigation of the said case in terms of Article 18 (2) of the Police Order.
The facts in brief are that as a result of first investigation conducted by Khalid Israr Ghuman, the petitioner was declared as innocent but on an application moved by the complainant the investigation for the first time changed and was handed over to Bashir Ahmad, S.I who while disagreeing the findings of the first I.O about innocence of the petitioner, declared him as accused and for that purpose the petitioner moved application under Article 18 (6) of the Police Order for second change of investigation but the same was disallowed by Additional Inspector General of Police Respondent No. 1, hence this Constitutional petition.
It is submitted by learned counsel for the petitioner that this Court while sitting in Constitutional jurisdiction is empowered to interfere and direct Respondent No. 1 to change the investigation as the same was in the interest of justice. It is further contended that since the petitioner has got no alternate remedy against refusal order by the said respondent, therefore, this Constitutional petition is maintainable.
On the other hand, learned AAG assisted by learned counsel for the complainant has submitted that it is not necessary in every case that investigation must be changed whether the same was required or not. They further argue that want of alternate remedy against refusal of the Additional Inspector General to change investigation, does not mean that this Court must interfere irrespective of the fact that same was called for or not. The learned Law Officer has also argued that it is an established principle of law that finding of the Investigating Officer is not binding on Court, hence change of investigation would have no bearing on the trial of the petitioner as the trial Court despite findings of the I.O declaring the petitioner as innocent can still direct the I.O to submit report under Section 173 Cr.P.C. and proceed with the trial. In support of this contention reliance has been placed on the case "MUHAMMAD ASHFAQ versus AMIR ZAMAN and others" (2004 S.C.M.R. 1924).
I have considered the above arguments of learned counsel for the parties and perused the material available on record.
It is an established principle of law that Constitutional jurisdiction is discretionary in nature and High Court is not bound to interfere in each and every matter just on the ground of want of alternate remedy against the action impugned or called in question in writ petition, unless there are some compelling reasons showing that non-interference would either result in injustice or would amount to support the retention of illegal gain, as held by the Hon'ble Supreme Court of Pakistan in the case "KHIALI KHAN versus HAJI NAZIR and 4 others" (P.L.D 1997 S.C 304). The only purpose seeking change of investigation, as advanced by learned counsel for the petitioner, is that he has been found guilty in the second investigation; therefore, second change of investigating by the Additional Inspector General was inevitable so as to have a second opinion. However, the above mentioned contention of the learned counsel has got no legal sanctity and second opinion by the I.O cannot be made a ground for approaching this Court. In any case as held by the Hon'ble Supreme Court in the cited judgment, the findings of the I.O about guilt or innocence of any person as a result of the investigation, aim of which is just a collect evidence, has no binding effect on the Court and despite finding by the I.O declaring a person as innocent, jurisdiction of the trial Court to take cognizance of the matter and to proceed with the trial against the accused still would not be taken away, just on the ground that the I.O declared the petitioner as innocent. Even otherwise, in the case "Brig. (Rtd) IMTIAZ AHMAD versus GOVERNMENT OF PAKISTAN through Secretary, Interior Division, Islamabad and 2 others" (1994 S.C.M.R 2142) the Hon'ble Supreme Court in unequivocal terms held that the Court could not assume the role of investigation nor can control the investigation by interfering in Constitutional jurisdiction. Earlier in "RIAZ HUSSAIN and others versus THE STATE" (1986 S.C.M.R. 1934) the Hon'ble Supreme Court also disapproved successive change of investigation which trend according to the Hon'ble Supreme Court was being used at the behest of influential persons of the Society. Perhaps for this reason the legislature thought it proper to regulate the question of change of investigation permanently by incorporating provisions of Article 18 (6) of the Police Order giving the jurisdiction of change of investigation exclusively to the concerned authorities and in case the concerned authorities do not consider proper to change the investigation any interference by this Court would amount to interference in the internal administration of the sate authorities which is against the principle of doctrine of trichotomy of powers which grants powers under the Constitution to each organ of the state to decide the matters in its allotted sphere. Reliance is placed on the case "SYED NAZAR ABBAS JAFFRI versus SECRETARY TO GOVERNMENT OF THE PUNJAB and another" (2006 S.C.M.R. 606) and "CH. ZAHUR ILAHI, M.N.A and 2 others versus Mr. ZULFIKAR ALI BHUTTO and others" (P.L.D 1975 S.C 383)
For what has been discussed above, this petition has no force and is accordingly dismissed with no order as costs.
(Fouzia Fazal) Petition accordingly dismissed.
PLJ 2007 Lahore 144
Present: Muhammad Jehangir Arshad, J.
ARSHAD EHSAN--Petitioner
versus
SHEIKH AHSAN GHANI and 2 others--Respondents
C.R. No. 23 of 2006, decided on 31.5.2006.
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Constitution of Pakistan, 1973, Art. 199--Mentally disordered person--Proposition--Civil revision--Competency of mental disorder--Held: Only forum competent to declare a person as "mentally disordered person is one available under Mental Health Ordinance, 2001 and the same has overriding effect and no other Court could determine or for that matter grant any declaration--Question of legal validity or vires of such gift could only be answered after determination of mental state of affairs by the competent forum--Order accordingly. [P. 146] A & B
Mr. Tahir Naeem, Advocate for Petitioner.
Mirza Abdullah Baig, Advocate for Respondent No. 1.
Mr. Zahid Sultan Khan, Advocate for Respondent No. 2.
Mian Muhammad Qamar-uz-Zaman, Advocate Legal Advisor for L.D.A.
Date of hearing: 31.5.2006.
Order
This Civil Revision is directed against the concurrent judgments of rejection of plaint by the learned trial Court on 8.1.2005 as well as dismissal of appeal of the petitioner by the learned Additional District Judge vide order dated 20.10.2005.
The facts in brief are that petitioner who is son of Sh. Ehsan Ghani Respondent No. 1 and brother of Mazher Ehsan Respondent No. 2 filed a suit before the learned trial Court seeking setting-aside of gift made by Respondent No. 1 in favour of Respondent No. 2 through Gift Deed dated 20.8.2003 and incorporated in the record of L.D.A/Respondent No. 3 regarding Property No. 281-Shadman/I, Lahore. The grounds for challenging the said gift, inter alia were that Sheikh Ehsan Ghani Respondent No. 1 being a person with mental disorder was not in a position to make the gift and further that the gift was void having been made in favour of Respondent No. 2 by depriving the petitioner and that under the Muslim Law such gift was prohibited. The Respondent No. 1 in the said suit field application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that he was not suffering from any mental infirmity and that he made the gift in favour of Respondent No. 2 with his free consent, will and while in full senses, hence the plaint was liable to be rejected. The learned trial Court on receipt of the reply from the petitioners summoned Respondent No. 1 in Court and recorded his better statement. The learned trial Court after recording the better statement of Respondent No. 1 observed that said defendant/Respondent No. 1 was physically and mentally healty as he could understand the questions of the Court and was thus in no way an abnormal person. As such the learned trial Court after having satisfied itself accepted the application of defendant/Respondent No. 1 and rejected the plaint of the petitioners vide order dated 8.1.2005 and the appeal filed by the petitioner against rejection of his plaint, was also dismissed by the learned Additional District Judge vide order dated 20.10.2005, hence this Civil Revision.
It is argued by learned counsel for the petitioners that there was no occasion for the learned trial Court to have rejected the plaint by taking into consideration the material extraneous to the plaint; further that there was no stage for the learned trial Court to have summoned and examined the Respondent No. 1 without framing of issues and allowing the parties to produce their evidence.
On the other hand, learned counsels for the respondents have supported the orders of two Courts below by arguing that Civil Court was not the competent forum to issue such a declaration and that for that matter the only forum available to the petitioners was an application under Mental Health Ordinance, 2001, therefore, the plaint was rightly rejected by the learned trial Court and appeal of the petitioners was also correctly dismissed by the learned Additional District Judge.
The arguments of learned counsels for the parties have been considered.
There is no cavil to the proposition that the only forum competent to declare a person as "mentally disordered person" is one available under Mental Health Ordinance, 2001 and the same has overriding effect and no other Court could determine or for that matter grant any declaration, hence, the suit filed by the petitioners to this extend was barred by law. However, it has been argued by learned counsel for the petitioners that the learned trial Court while rejecting the plaint also recorded certain findings on the merits of the case. In view of the above, this Civil Revision is disposed with the direction that the order of rejection of plaint on account of want of jurisdiction by the Civil Court and the order dismissing appeal of the petitioners against the rejection of their plaint, are maintained to this extent and the petitioner may, if so advised, approach the competent forum for seeking such a declaration. However, the remaining findings recorded by the learned trial Court with regard to the legality/vires of the gift or competence of Respondent No. 1 to make gift in such like situation, cannot sustain being unjustifiable in the facts and circumstances of the case, as such are set-aside. The question of legal validity or vires of such gift can only be answered after determination of mental state of affairs of Respondent No. 1 by the competent forum. Disposed of accordingly.
(Fouzia Fazal) Revision disposed of.
PLJ 2007 Lahore 147
Present: Sayed Zahid Hussain, J.
MUHAMMAD HAYAT--Petitioner
versus
BOARD OF REVENUE, PUNJAB LAHORE (MEMBER JUDICIAL-I), BOR, LAHORE and 5 others--Respondents
W.P. No. 11062 of 2004, heard on 13.4.2006.
Constitution of Pakistan, 1973—
----Arts. 189 & 190--Constitutional petition--Large tract of land--Partition of--Civil litigation concluded with the judgment of the Supreme Court incorporating the consensual arrangement between the parties--Statutory functionaries in view of Arts. 189 & 190 of the Constitution of Pakistan are obliged to be bound by judgment of Supreme Court which is to be kept in view and the mode of partition should be inconformity with the same--No deviation whatsoever can be made by anyone--Statutory functionaries the official respondents while carrying out their statutory functions will act strictly in accordance with the judgment of the Supreme Court and implement the same faithfully--Petitin disposed of accordingly. [Pp. 149 & 150] A & B
Syed Muhammad Kaleem Ahmed Khurshid, Advocate for Petitioner.
Syed Iftikhar Hussain Shah, Awan Muhammad Hanif Khan, Advocates and Ch. Aamer Rehman, Additional Advocate General Punjab for Respondents.
Date of hearing: 13.4.2006.
Judgment
Order passed by the learned Member Board of Revenue dated 9.6.2004 is sought to be assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973.
It arises in the circumstances that;
Village Bhambool situated in Tehsil Noorpur District Khushab has a large tract of Shamlat land. Civil litigation concerning the same had reached the Hon'ble Supreme Court of Pakistan (C.A. No. 204/78) which concluded with the judgment of the apex Court dated 23.10.1990, incorporating the consensual arrangement between the parties. The matter was then taken up by the Consolidation Officer who prepared a scheme dated 8.4.1991, suggesting a mode of partition. Aggrieved of the same (in particular paragraph No. 16 thereof) an appeal was preferred which was accepted by the Additional Commissioner (Consolidation). Sargodha Division Sargodha on 28.8.1995 with the direction to the Consolidation Officer Khushab "to amend the mode of partition in accordance with the orders passed by the Honourable Supreme Court of Pakistan----". This order became subject matter of revision petition before the Board of Revenue, which petition was accepted by the learned Member (Judicial-l), Board of Revenue Punjab, Lahore on 9.6.2004 who also while setting aside the order of the Additional Commissioner (Consolidation) was of the view that the mode of partition should be amended.
The learned counsel for the parties have been heard who have no cavil that the judgment of the Hon'ble Supreme Court of Pakistan dated 23.10.1990 binds the parties and the basis for the partition of Shamlat land should be said judgment. Suffice it to observe that before the Hon'ble Supreme Court of Pakistan the mode of partition was agreed to between the parties and the appeal was disposed of accordingly. The relevant part of the judgment is as under:--
"After considerable arguments and discussion amongst the learned counsel in Court both of them ultimately agreed on the following main features and principles:-
(a) That the Triniguzars would for purpose of partition be treated in accordance with the Wajibul Arz entries as owners;
(b) If a Triniguzar has already become Khewatdar on account of the Triniguzari entry or Triniguzari right he will be treated as owner amongst Khewatdars and would not any more be treated as Triniguzar so as to get double benefit;
(c) If a Triniguzar has not become a Khewatdar and thus is not included as Khewat owner on the basis of his Trini rights he would be treated as an owner on the basis of the Trini rights; and
(d) If a Triniguzar has become a Khewatdar on account of any other right including devolution or alienation transfer on any basis other than Trini rights that would not debar him from claiming additional ownership on the basis of Trini rights.
Similar other understanding having been reached the learned counsel for the appellants made a statement in writing which was presented to the learned counsel for the respondents for his reply. The said statement and reply in original with corrections has been placed on record. It reads as follows:--
"The appellants/defendants agree that Trini Guzars has the right in accordance with the relevant revenue record including the Wajib-ul-Arz to be treated as owners but according to the appellants all the respondents/plaintiffs and those whom they represent had become Khewat-dars on the basis of the Tirni rights during the last century. Therefore, if they get the land as Khewat-dars on the real basis of their being Tirni Guzars once, they should not be entitled and they are not entitled to get any share in Shamlat land separately as Trini Guzars.
"Consequently Shamlat land may be partitioned Hasab Rasad Khewat Bandobast 1913-14 and if during this process, the revenue authorities come across any Tirni Guzar who is not included in the Khewat-Dars on the basis of Tirni rights, then such person or his successors in interest may be allowed share in Shamlat land according to Zare Tirni paid by him in the year 1891-92".
(by counsel for the appellants)
"The above proposition should be subject to the condition that appellants admit the correctness of the entry in Wajib-ul-Arz viz to partition the Shamlat amongst the Khewatdars and Tirni Guzars 1892 or their successors from partition and Tirni Guzars cannot be excluded. Care should be taken that such of Tirni Guzars who have already acquired their due share as Tirni Guzars do not get the same twice over".
(by counsel for the respondents)
A sheet of paper (single page) on which these original statements are recorded is signed by both the learned counsel. It is a fair and correct handling of a difficult question by both the learned counsel.
This appeal, accordingly, is partly allowed and stands disposed of in terms as stated and reproduced from the position expressed in writing by both the learned counsel. The decree shall be corrected/modified accordingly. There shall be no order as to costs".
The perusal of the above judgment would leave no manner of doubt that the salient features and principles had been laid down by the Hon'ble Supreme Court of Pakistan. Not only the parties, the statutory functionaries in view of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 are obliged to be bound by the same which judgment is to be kept in view and the mode of partition should be inconformity with the same. No deviation whatsoever therefrom can be made by anyone. The wholesome effect of the order passed by the Additional Commissioner (Consolidation) as also the Member, Board of Revenue is that the Consolidation Officer is to amend the scheme who is bound to give effect to the judgment of the Supreme Court. There is a consensus even before this Court that the Consolidation Officer should while devising mode of partition keep in view the judgment of the Hon'ble Supreme Court of Pakistan and give effect to the same. I have no doubt whatsoever that as statutory functionaries the official respondents while carrying out their statutory functions will act strictly in accordance with the judgment of the Hon'ble Supreme Court of Pakistan and implement the same faithfully.
The petition is disposed of accordingly. No order as to costs.
(Anwar Saeed Sheikh). Petition disposed of.
PLJ 2007 Lahore 150
Present: Syed Hamid Ali Shah, J.
Haji SHEIKH NOOR DIN & SONS (PVT.) LTD. through its M.D.--Petitioner
versus
MUHAMMAD INTIZAR and 2 others--Respondents
W.P. No. 19671 of 2005, decided on 28.2.2006.
Payment of Wages Act, 1936 (IV of 1936)—
----Ss. 15 & 17--Constitution of Pakistan, 1973, Art. 199--Jurisdiction--Requisite certificate--Question of maintainability--Imposition of condition of furnishing certificate with the appeal is unconstitutional and that Labour Court has failed to exercise the jurisdiction vested in it in disallowing the petitioners to make the deficiency of payment of the amount as per direction of the authority--No appeal lies unless memorandum of appeal is accompanied by a certificate of the authority to the official that appellant had deposited the impugned amount as directed by the authority function of proviso is to qualify the provision to which it follows--Natural consequence would be nothing except that such proviso, when occurring will be deemed to impose a condition and restrict the operation of its parent provision--Request was made to respondent and same was declined qua the permission to deposit the amount as directed by the authority through order impugned--Held: Sought for permission was not allowed by Labour Courts--Request was made after the lapse of statutory period of filing the appeal--Petition was dismissed. [P. 155] A
2003 PLC 395, followed.
Khawaja Tariq Masood, Advocate for Petitioner.
Ch. Khadim Hussain Qaiser, Addl. Advocate General for Respondent No. 3.
Date of hearing : 28.2.2006.
Order
This single order will dispose of Writ Petition No. 19671/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Intizar and 2 others", Writ Petition No. 19672/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Amanat Ali and 2 others", Writ Petition No. 19673/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Haji Muhammad Nazim and 2 others", Writ Petition No. 19674/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Tariq Razzaq and 2 others", Writ Petition No. 19675/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Baber Ali and 2 others", writ Petition No. 19676/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Rashid Ali and 2 others", Writ Petition No. 19677/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Tariq and 2 others", Writ Petition No. 19678/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Ghulam Hussain and 2 others", Writ Petition No. 19679/2005 "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Yousaf Shah and 2 others" Writ Petition No. 19680/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Ghulam Sarwar and 2 others", Writ Petition No. 19681/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Ashraf and 2 others" Writ Petition No. 19682/2005 titled" Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Nawaz and 2 others", Writ Petition No. 19683/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd versus Muhammad Sharif and 2 others", Writ Petition No. 19684/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Kazim Hussain Shah and 2 others", Writ Petition No. 19865/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Riaz and 2 others", Writ Petition No. 19686/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Iftikhar Ahmad Nawaz and 2 others", Writ Petition No. 19687/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Asghar Ali and 2 others", Writ Petition No. 19688/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Masroor Ahmad and 2 others", Writ Petition No. 19689/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Abdur Razzaq and 2 others", Writ Petition No. 19690/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Allah Rakha and 2 others", Writ Petition No. 19691/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Sakhawat Ali and 2 others", Writ Petition No. 19692/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Azam and 2 others", Writ Petition No. 19693/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Sadiq and 2 others", Writ Petition No. 19694/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Azam and 2 others", Writ Petition No. 19695/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Aslam and 2 others", Writ Petition No. 19696/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Altaf Hussain and 2 others", Writ Petition No. 19697/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Shehbaz and 2 others", Writ Petition No. 19698/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Fariq Muhammad and 2 others", Writ Petition No. 19699/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Fayyaz and 2 others", Writ Petition No. 19700/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Zeshan Saghir and 2 others", Writ Petition No. 19701/2005 titled "Haji Sheikh Noor Din & sons (Pvt.) Ltd. versus Shabbir Ahmed and 2 others", Writ Petition No. 19702/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Lateef and 2 others", Writ Petition No. 19703/2005 titled "Haji Sheikh Noor Din & Sons (Pvt) Ltd versus Mubarik Ali and 2 others", Writ Petition No. 19704/2005 titled "Haji Sheikh Noor Din & Sons (Pvt) Ltd versus Muhammad Shehbaz and 2 others", Writ Petition No. 19705/2005 titled "Haji Sheikh Noor Din & Sons (Pvt) Ltd versus Muhammad Siddique and 2 others", Writ Petition No. 19706/2005 titled "Haji Sheikh Noor Din & Sons (Pvt) Ltd versus Muhammad Yaqoob and 2 others, Writ Petition No. 19707/2005 titled "Haji Sheikh Noor Din & Sons (pvt) Ltd versus Akhtar Ali and 2 others", Writ Petition No. 19708/2005 titled "Haji Sheikh Noor Din & Sons (Pvt) Ltd versus Muhammad Anwar Asif and 2 others", Writ Petition No. 19709/2005 titled "Haji Sheikh Noor Din & Sons (Pvt) Ltd versus Rehmat Ali and 2 others", Writ Petition No. 19710/2005 titled "Haji Sheikh Noor Din & Sons (Pvt) Ltd versus Basharat Ali and 2 others" and Writ Petition No. 19711/2005 titled "Haji Sheikh Noor Din & Sons (Pvt) Ltd versus Hafiz Muhammad Yaqoob and 2 others" as sommon questions of law and facts are involved in all these petitions.
The petitioners in these cases have challenged the order of the Authority in appeal under Section 17 of the Payment of Wages Act 1936 on account of non-annexation of the requisite certificate of the Authority to the effect that the appellant had deposited with the Authority, amount payable under the direction Respondent No. 2 dismissed the appeal being incompetent without annexation of the requisit certificate vide order dated 06.09.2005. The petitioners have called inquestion the order of dismissal of the appeal on the question of non-maintainability, through these petitions.
Learned counsel for the petitioner has referred to an unreported judgment of this Court rendered in Writ Petition No. 21923/2001 in case of "M/s Citizen Electrical Co. versus The Authority under the Payment of Wages Act and another" wherein condition regarding the deposit of entire disputed amount, before preferring the appeal , was declared to be unlawful. Learned counsel for the petitioner repeated the arguments addressed before the Lahour Court and referred to the case of "State Bank of Pakistan through General Secretary versus The Democratic Workers Union, State Bank of Pakistan through General Secretary and another" (2003 PLC 391) and "M/s. Chenab Cement Product (Pvt) Ltd and others versus The Banking Tribunal Lahore and others" (PLD 1996 Lahore 672). Learned counsel then referred to the case of M/s. Eastern Rice Syndicate versus Central Board of Revenue and others" (PLD 1959 SC (Pak) 364) to contend that imposing the condition for filing the appeal amounts to negation of the right of appeal and such unreasonable restriction on the right of appeal is not sustainable. Learned counsel argued vehemently that proviso cannot render the main provision of law ineffective or redundant. He in support of this contention has placed reliance on "Enmay Zed Publishers (Pvt) versus Sindh Labour Appellate Tribunal through Director General" (2001 SCMR 565).
Learned counsel for the petitioner has addressed two fold arguments: firstly that imposition of condition of furnishing certificate with the appeal is unconstitutional and has the effect of snatching the right of appeal which otherwise is guaranteed by law and; secondly that the Labour Court has failed to exercise the jurisdiction vested in it, in disallowing the petitioners to make the deficiency of the payment of the amount as per direction of the Authority.
Learned counsel for the respondent in the connected cases, on the other hand, has fully supported the impugned judgment and has submitted that the order passed by the August Supreme Court is a law declared and is binding on all the Courts as contemplated in Article 189 of the Constitution of Islamic Republic of Pakistan. While referring to the case of "Syed Match Factory through Managing Director versus The Authority under the Payment of Wages Act and others" (2003 PLC 395) it was submitted that the August Supreme Court has held that Payment of Wages Act is primarily a beneficial legislation which has been enacted to provide relief to the worker and it cannot be construed otherwise, therefore, the interpretation, which directly or indirectly nullifies the provision of law, cannot sustain in the eyes of law. Writ petition, which were filed to defeat the provisions of Section 17 of the Payment of Wages Act, are not competent. It was contended that in view of the law declared by the apex Court the appeals cannot proceed, as no certificate as per requirement of Section 17(1)(a) of the Payment of Wages Act, 1936 was annexed with the appeal.
Heard learned counsel for the parties and perused the record.
The question requiring determination is that whether an appeal against the direction of Authority under the Payment of Wages Act, passed on application under Section 15(2) of the Payment of Wages Act, 1936, is competent without providing certificate of the Authority, to the effect that the appellant has already deposited with the Authority the amount payable under the direction appealed against. Section 17 of the Payment of Wages Act deals with the appeal against the direction made under sub-section (3) of sub-section (4) of Section 15 which reads as under:--
"Appeal (1) An appeal against the direction made under [Sub-section (3) or sub-section (4)] of Section 15 may be preferred within thirty days of the date on which the direction was made before (Labour Court constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969) within whose jurisdiction the cause of action to which the appeal relates arose].
(a) by the employer or other person responsible for the payment of wages under Section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees:
[Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appeal against, or]"
The question of pendency of appeal without strict compliance of the provisions of Section 17(1)(a) of the Payment of Wages Act, 1936 was dealt with by the apex Court in the case of Syed Match Factory (supra). The same question came up for consideration before the August Supreme Court subsequently in the case of "Mughal Surgicals and others versus Presiding Officer Punjab Labour Court-VII and others" (2005 PLC 364) wherein the Hon'ble Supreme Court has held as under:--
"Reliance had been rightly placed by the learned Judge in Chamber on the case of Syed Match Company Limited 2003 SCMR 1493 by distinguishable the same from other cases decided by this Court on the ground that Payment of Wages Act, 1936 was a law which had been enacted for the benefit of the workmen and had to be interpreted and applied in the spirit which had led to the enactment of the said law. The judgments cited by the learned Advocate Supreme Court were the judgments arising out of enactments other than the Payment of Wages Act, 1936 and were no precedent for deciding the present case. It may be added that the right of appeal is not a natural or an inherent right of litigants but is a statutory right granted by different laws under different enactments and such a right had to be considered and examined in the light of the conditions prescribed by the law granting the said right. Needless to add that under the enactment in the C.P.C. or the Cr.P.C. every order and decision is not appealable and we know that even under the C.P.C. there are provisions which prohibit grant of interim relief unless the decretal amount was deposited."
"One general rule that emerges, and it is an ancient rule, from discussions on the subject is that in the interpretation of written instruments, whether they are constitutional character or ordinary statutes or other documents the first object of the Court is to discover the intention of the author and that such intention is to be gathered from the words used in the statute or document. The tenth edition of Maxwell, the celebrated authority on the Interpretation of the Statutes, opens with the statement: "A statute is the will of the legislature, and the fundamental rule of interpretation, to which all other are subordinate, is that a statute is to be expounded, according to the intent of them that made it'. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. The subject of all interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language used so far as is necessary for determining whether the particular case or state of facts language is nor only plain" says the learned author at page 4, "but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpretation what has no need of interpretation. Such language best declares without more the intention of the law-giver and is decisive of it. The rule of construction is to intend the legislature to have meant what they have actually expressed. It matters not, in such a case, what the consequences may be."
It is clear from the language of Section 17(1)(a) that no appeal lies unless memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited the impugned amount directed to be paid by the authority. As per principles of interpretation, the function of a proviso is to limit or otherwise to qualify the provision to which it follows. Thus the natural consequence, which flows out or ensues from the words employed in a proviso with negative covenant or with its opening with non-affirmative words or negative clause, would be nothing except the logical conclusion that such proviso, when occurring, will be deemed to impose a condition and restrict the operation of its parent provision. If such condition is not adhered to or not fulfilled, such proviso, pregnant with same positive purpose, should be strictly construed.
The cumulative of above principle of law enunciated by the apex Court in the above referred decisions which fully apply on facts and circumstances of the case in hand, leave no doubt in my mind to hold that appeal under Section 17 of the Payment of Wages Act without deposit of certificate of the authority, is not competent.
The law applicable in the instant case, has specifically been decided by the Hon'ble Supreme Court, which is based upon a principle of law and it is binding on this Court. There is no room for this Court to prefer the Full Bench decision of a High Court over the decision of the Hon'ble Supreme Court on a question of law. While holding so I seek guidance from the case of "Sher Muhammad versus Additional Rehabilitation Commissioner Multan etc." (1981 SCMR 520).
Reverting to the second argument of learned counsel for the petitioner that a request was made to Respondent No. 2 and same was declined qua the permission to deposit the amount as directed by the authority through order impugned. The sought for permission, was not allowed by the learned Labour Court as the request was made after the expiry of 30-days i.e. after the lapse of statutory period of filing the appeal. The request was as such rightly declined and there is no illegality in the impugned order.
The case referred by the petitioners "Divisional Superintendent, Pakistan Railways, Rawalpindi versus Muhammad Aslam and 25 others" (1986 SCMR 1607) was decided with regard to the question whether the certificate should be deposited at the time of filing of the appeal or within the period of 30-days and it has not been declared in the said case that at the subsequent stage after the lapse of 30-days, the amount can be permitted to be deposited. The submission that on the dictum of judgment 1986 SCMR 1607 (supra) the apex Court permitted the amount to the paid, even beyond the period of 30-days, is not well founded.
The upshot of the above discussion is that learned Labour Court has passed the impugned order, on the basis of law laid down by the Hon'ble Supreme Court, which has the binding impact, therefore, does not call for any interference. There is no infirmity or illegality in the impugned order. The petitions are without any merit and are dismissed accordingly.
(Malik Sharif Ahmed) Petitions dismissed accordingly.
PLJ 2007 Lahore 156 (DB)
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq & Muhammad Jehangir Arshad, JJ.
Haji MUHAMMAD WARIS--Appellant
versus
MUHAMMAD HAYAT--Respondent
R.F.A. No. 133 of 2004, heard on 8.6.2006.
(i) Civil Procedure Code, 1908 (V of 1908)—
----O.XVII, Rr. 2 & 3 & O.IX, R. 8--Contentions--On fateful date trial Court instead of closing the evidence of the appellant by proceeding in terms of O. XVII R. 3 C.P.C. should have proceeded to dismiss the suit of appellant as required by O. XVII R. 2 read with O. IX R. 8 C.P.C. as neither the appellant nor his counsel was present. [P. 158] A
2004 MLD 1242 (Lahore) (DB) and 2004 MLD 1204 rel.
(ii) Stamp Act, 1899 (II of 1899)—
----S. 2(22)--Prove of--Pronote even executed as security is to be considered as with consideration unless proved otherwise--Case remanded to trial Court for deciding afresh after granting one opportunity to the plaintiff.
[P. 159] B
Ch. Muhammad Akram, Advocate for Appellant.
Mr. Athar Rehman Khan, Advocate for Respondent.
Date of hearing : 8.6.2006.
Judgment
Muhammad Jehangir Arshad, J.--This R.F.A. is directed against the judgement dated 26.2.2004 passed by learned Addl: District Judge Karor District, Layyah dismissing appellant's suit for the recovery of Rs. 8,10,000/- filed by him under Order XXXVII CPC on the basis of pronote dated 31.8.2002.
ISSUES:
Whether the plaintiff is entitled to recovery of Rs. 8,10,000/- on the basis of pronote dated 31.8.2002? OPP
Whether the plaintiff has got no cause of action or locus standi to file this suit ? OPP
Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD
Whether the suit is mala fide and same is filed to harass the defendant, if so whether the defendant is entitled to special costs to the tune of Rs. 25,000/- u/S. 35-A, CPC? OPD
Relief.
As the appellant despite obtaining several adjournments failed to produce the evidence ultimately the learned trial Court vide judgment dated 26.2.2004 closed the evidence of appellant and ultimately dismissed the suit under Order XVII, Rule 3 CPC, hence this appeal.
It has been argued by the learned counsel for the appellant that as on 26.2.2004 neither the appellant nor his counsel was in presence, hence the learned trial Court instead of closing the evidence of appellant and proceeding to decide the suit under Order XVII, Rule 3 CPC read with Order IX, Rule 8 CPC should have dismissed the suit for non prosecution therefore, the judgement of the learned trial Court closing the evidence of the appellant on the fateful date i.e. 26.2.2004 under Order XVII, Rule 3 CPC and dismissing the suit for want of evidence was a wrongful exercise of jurisdiction. In support of his contention learned counsel for the appellant has placed reliance on the case of "Messrs Transtech Ltd. vs. Messrs Pakistan Tobacco Company Ltd." (2004 MLD 1242 (Lahore) (D.B) and the case of "Muhammad Ramzan vs. Amir Afzal" (2004 MLD 1204). It has further been argued by the learned counsel for the appellant that even otherwise there was no justification for the learned trial Court to have directed the appellant to lead evidence in the presence of express admission of the respondent regarding execution of pronote but terming the same having been executed as a security; and without consideration.
On the other hand, learned counsel for the respondent has argued that as the appellant failed to produce the evidence despite obtaining several opportunities, hence the course adopted by learned trial Court was within law and thus the suit of the appellant was correctly dismissed. Learned counsel for the respondents has also raised objection that the appeal filed by the appellant was barred by the time as the Court fee was furnished after the expiry of the period of limitation for filing of the appeal.
We have considered the above-mentioned arguments of the learned counsel for parties and have also perused the record of the trial Court.
In the light of the above-mentioned judgments of this Court cited above there is a considerable force in the contention of the learned counsel for the appellant that on the fateful date i.e 26.2.2004 the learned trial Court instead of closing the evidence of the appellant by proceedings in terms of Order XVII, Rule 3 CPC should have proceeded to dismiss the suit of the appellant as required by Order XVII, Rule 2 read with Order IX, Rule 8 CPC and the learned counsel for the respondent has not been able to cite any law/judgement holding otherwise. Even otherwise law favours decision on merits and discourages non-suiting the party on mere technicalities as held by Honorable Supreme Court of Pakistan in 1999 SCMR 105. We are also persuaded to hold that as the respondent has expressly admitted the execution of the pronote in dispute but has taken that the same was executed as a security without consideration and, therefore, instead of forcing the appellant to start his evidence the onus should have been placed on the respondent to prove that the disputed pronote was executed as a security and thus the same was without consideration because in the lights of the provisions contained in Section 2(22) of the Stamp Act a pronote even executed as a security is to be considered as with consideration unless proved otherwise. Reliance is placed on the case of "Muhammad Sharif vs. Muhammad Hashim." (PLD 1987 Karachi 79). Therefore, we are satisfied that instead of closing the evidence of appellant and dismissing suit in terms of Order XVII, Rule 3 CPC in the absence of appellant as well as learned counsel on 26.2.2004 the learned trial Court should have proceeded in terms of Order XVII, Rule 2 read with Order IX, Rule 8 CPC dismissing the same for non-prosecution.
So far as the objection of learned counsel for the appellant with regard to the appeal being time barred is concerned. We have examined the appeal file and come to the conclusion that although the appeal was filed within time yet the same was not accompanied with the Court fee of Rs. 15000/- which was supplied on 14.7.2004 and on an objection raised by the office on 16.7.2004 application under Section 5 of the Limitation Act seeking condonation of delay has also been filed. It is an established principle of law that once plaint/memo of appeal has been filed within the time fixed under the Limitation Act the supply of the Court fee at some subsequent stage is deemed to have retrospective effect from the time of original filing of plaint or memo of appeal. PLD 1984 SC 289 and PLD 1990 SC 42 are the authorities on the point. The objection of the learned counsel for the respondent regarding limitation is over-ruled.
For what has been discussed above this RFA succeeds, resultantly the judgment and decree of the learned trial Court is set aside and the case is remanded to the learned trial Court for deciding the same afresh after granting one last opportunity to the plaintiff for production of his evidence subject to payment of costs of Rs. 3000/- (paid to Mr. Athar Rehman Khan Advocate, learned counsel for the respondent before Court). The parties are directed to appear before the learned Addl. District Judge, keror Tehsil Layyah on 18.7.2006 and the learned trial Court shall grant one opportunity to the appellant for producing all his evidence. In case of failure of producing evidence on the said date without any just and sufficient cause the learned Court/Addl. District Judge shall be at liberty to invoke the provisions of Order XVII, Rule 3 CPC. Copy of this Order shall immediately be remitted to the learned trial Court/Additional District Judge, Keror District Layyah.
(Malik Sharif Ahmed) Case remanded.
PLJ 2007 Lahore 160
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
ISRAR HUSSAIN and 2 others--Petitioners
versus
Mst. GHULAM KALSOOM and 5 others--Respondents
C.R. No. 53-D of 1992, heard on 6.4.2006.
Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)—
----Ss. 32, 20 & 21--Civil Procedure Code, (V of 1908)--S. 115--Mutation of inheritance--Succession of tenant--Any male to whom the tenancy is first allowed by Collector is an original allottee--In absence of male lineal descendants, the tenancy would to devolve upon the widow of the tenant until she dies or re-marries, failing the widow tenancy devolve upon the unmarried daughters of the tenant until they die or marry--Being a Sunni land was distributed upon the opening of succession to the estate 1/3 of 1/2 of estate had to be given the "Mst. R.B." and consequently to her children/petitioners--Petitioners were also the uterine brothers and sisters of "Mst. G.Z.", they will got 1/3 share--Remaining 1/3 went to respondents being the sons of the brother of her father--Order accordingly. [Pp. 162 & 163] A, B & C
Malik Sharif Ahmad, Advocate for Petitioners.
Syed Kabir Mehmood, Advocate for Respondents.
Date of hearing : 6.4.2006.
Judgment
On 22.12.1979, the respondents filed a suit against the petitioners. In the plaint, it was stated that the State land was granted to Gulzar Hussain Shah s/o Murad Ali Shah as an Army Grant. He died in the year 1932. The respondents are the children of Shahmir, the brother of said Gulzar Hussain Shah. The land was mutated to Mst. Ghulam Zohran, the daughter of Gulzar Hussain Shah as a limited owner. It was further pointed out that Mst. Raza Bibi, the widow of the Gulzar Hussain Shah, contracted second marriage soon after the death of her husband. Mst. Ghulam Zohran died unmarried and issue-less on 15.6.1973. Vide Mutation No. 89 attested on 7.11.1973 the land was mutated in favour of Mst. Raza Bibi (1/3rd as mother) and the respondents (2/3rd). According to the plaint, Mst. Raza Bibi herself got the said mutation entered and attested. There was no dispute that Gulzar Hussain Shah was a Sunni. However, the lady questioned the relationship of the respondents with the said Gulzar Hussain Shah which was established. A time barred appeal was filed by Mst. Raza Bibi. The Collector allowed the same and remanded the case on 12.2.1976. The revenue officer vide order dated 6.11.1979 proceeded to pass the mutation on the presumption that Mst. Ghulam Zohran was a Shia. This mutation was stated to be illegal and void as Gulzar Hussain Shah was a Sunni and so was Mst. Ghulam Zohran and in any case the faith of Mst. Ghulam Zohran was not relevant. A declaration was accordingly sought. The petitioners, who are the children of said Mst. Raza Bibi from her second husband namely Jehan Shah, filed written-statement. They admitted that Gulzar Hussain Shah was the allottee but they denied that the respondents are the collaterals. It was urged that since Gulzar Hussain Shah was a Shia, his estate was transferred in favour of his daughter and as such she was the full owner. The written-statement was amended alter to plead that on the death of Gulzar Hussain Shah the land was first mutated in favour of widow Mst. Raza Bibi and upon her re-marriage it was mutated in favour of Mst. Ghulam Zohran as a full owner under Shia laws. Issues were framed. Evidence of the parties was recorded. The learned trial Court found under Issue No. 6 that Gulzar Hussain Shah was a Sunni and not a Shia. However, under Issue No. 6-A it was found that Mst. Ghulam Zohran was a Shia. Under Issue No. 6 it was held that Mst. Ghulam Zohran was full owner of the suit land and not a limited owner. The suit was dismissed. The respondents filed a first appeal which was heard by a learned Additional District Judge, Burewala. Now the learned Additional District Judge reversed the findings on Issue No. 6-B and held that Mst. Ghulam Zohran was a Sunni. However, he has stated in his Judgment that Mst. Ghulam Zohran was a full owner. This abrupt finding is recorded in para 22. In para 23 he has proceeded to hold as follows:--
"On the death of Ghulam Zohran, therefore, her inheritance is to be mutated in accordance with the provisions of Section 19-A of Act
No. 5 of 1912 in the following manner:--
Ghulam Zohran as daughter getting 1/2 share, Raza Bibi as widow getting 1/8 share. The residue i.e. 3/8 share will got to Riaz Hussain Shah and Gulzar Hussain Shah, sons of Shahmir that is Plaintiffs/Appellants Nos. 5 and 6. The Plaintiffs/Appellants Nos. 1 to 4 will get nothing because they fall in the category of "distant kindred" Under the law a "distant kindred" could not inherit so long as any heir belonging to the "residuary" class in alive."
The appeal was accordingly allowed and the suit was partly decreed in favour of Respondents Nos. 5 and 6 on 12.12.1991. This CR has been filed by the petitioners/defendants.
Learned counsel for the petitioners contends that the learned Additional District Judge has misread the evidence while holding Mst. Ghulam Zohran to be a Sunni. His further contention is that having held Mst. Ghulam Zohran to be the full owner the learned Additional District Judge has wrongly proceeded to divide the estate by treating it to be the estate of Gulzar Hussain Shah. Learned counsel for the respondents, on the other hand, supports the impugned judgment & decree of the learned Additional District Judge at attacking the said observation of the learned Additional District Judge that Mst. Ghulam Zohran was a full owner. According to him, once it has held that Mst. Ghulam Zohran as well as Gulzar Hussain Shah were Sunnis', it is the estate of Gulzar Hussain Shah which is to be distributed.
I have gone through the copies of the records. Now as noted by me above Gulzar Hussain Shah was held to be a Sunni. There is no dispute that he was the original tenant. Now Section 3 of the Colonization of Government Lands (Punjab) Act, 1912 defines an original allottee to mean any male to whom the tenancy is first allowed by the Collector. Now u/S. 20 of the said Act of 1912 upon the death of the original tenant, in the absence of male lineal descendants, the tenancy shall devolve upon the widow of the tenant until she dies or re-marries failing the widow tenancy to devolve upon the unmarried daughters of the tenant until they die or marry. I deem it appropriate to reproduce here Section 21 of the said Act, 1912:--
Succession to tenants acquiring by succession:--
When after the commencement of this Act any male tenant, who is not an original tenant, dies, or any female tenant dies, marries, or re-marries, the succession to the tenancy shall devolve--
(a) in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her, in all other case, on the person or persons who would succeed if the tenancy were agricultural land acquired by the original tenant."
Since it is admitted that Mst. Raza Bibi survived Mst. Ghulam Zohran, she will get 1/3rd of the 1/2 of estate, will go to Mst. Raza Bibi and consequently to the petitioners who are admittedly her children. Now the petitioners are also the uterine brothers and sisters of Mst. Ghulam Zohran, they will thus get 1/3rd share in her estate. Remaining 1/3rd will go to Respondents Nos. 5 and 6 being the sons of the brothers of her father. Thus shares of the parties in the entire said land will be as under:--
(i) Plaintiffs/Respondents = 13/24
(ii) Defendants/Petitioners = 11/24
The Civil Revision accordingly is disposed of with the said modification in the shares of the parties. The office to prepare decree-sheet accordingly. No orders as to costs.
(Malik Sharif Ahmed) Revision dismissed.
PLJ 2007 Lahore 163
Present: Mian Saqib Nisar, J.
MUHAMMAD YOUSAF--Appellant
versus
HADAYAT ULLAH and 4 others--Respondents
R.S.A. No. 17 of 1995, heard on 11.10.2006.
Specific Relief Act, 1877 (I of 1877)—
----S. 22--Right of specific performance--Jurisdiction--Held: Discretion in the specific performance matters should not be arbitrarily, whimsically or fancifully exercised, yet in the exercise thereof, Courts could not loose sight of a significant fact that respondent who had bought the property for valuable consideration, had a right of pre-emption subject to the making of Talabs, which no more was a predatory right, rather was a right which was statutorily recognized and was based upon the injunctions of Islam--The person who had purchased the property and was contesting the action for the specific performance would default in making of Talabs and would give a walkover to the appellant in procuring the sale on the basis of the decree for the specific performance--Appeal dismissed. [P. 168] A
Mr. Taki Ahmad Khan, Advocate for Appellant.
Mr. Muhammad Nawaz, Advocate for Respondents.
Date of hearing : 11.10.2006.
Judgment
The suit for the specific performance filed by the appellant against the respondents has been dismissed by the learned Civil Judge vide judgment and decree dated 13.2.1994. Appeal of the appellant has also failed on 7.5.1995, hence this second appeal.
Briefly stated the facts of the case are that on 2.4.1990, the appellant brought a suit for the specific performance of an agreement qua the suit land measuring 30 Kanals and 7 Marlas situated in Mauza Rarhki Kalan, Tehsil Pasroor District Sialkot claiming that vide agreement dated 13.6.1988 (Ex. P.1), Respondents Nos. 1 to 4 had agreed to sell 49 Kanals and 16 Marlas of land alongwith, Mst. Fatima Bibi but at the time of execution, Mst. Fatima Bibi refused to sell her share and, therefore, the remaining defendants, who have the share in the suit land to the extent of 30 Kanals and 7 Marlas, are bound to perform their obligation under the said agreement; they had received the consideration of Rs. 92,000/- as earnest money and on the payment of the balance amount of Rs. 31,828/- i.e. excluding from the total consideration of Rs. 2,00,000/- the price payable to Mst. Fatima Bibi, who refused, the Respondents Nos. 1 to 4 are bound to execute the sale deed in favour of the appellant. It is further stated that the possession of the property had been delivered to the appellant at the time of the agreement to sell and that any sale executed by the said Respondents Nos. 1 to 4 in favour of Respondent No. 5 through a sale-deed dated 11.07.1989 is ineffective against the appellant's rights and thus, be cancelled.
The respondents/defendants contested the matter and out of the pleadings of the parties, the following issues were framed:--
ISSUES:--
Whether the suit is bad for mis-joinder of causes of action ? OPD.
Whether the suit is bad for being partial performance of the agreement ? OPD
Whether the suit has not been correctly valued for the purposes of Court fee and jurisdiction, if so, what is the correct valuation ? OPD
Whether the plaintiffs have no cause of action and locus standi to file the suit ? OPD
Whether the plaintiffs are not entitled to specific performance of the agreement because of the reason stated in preliminary Objection No. 5 as such the plaintiffs are estopped by their words and conduct ? OPD
Whether the plaintiffs are entitled to the decree as prayed for? OPP
Whether the plaintiffs have not come in the Court with clean hands ? OPD
Whether the Defendant No. 5 is bona fide purchaser for consideration without notice ? OPD-5.
Whether the Defendant No. 5 has superior right of pre-emption qua the plaintiffs, if so, its effects on the present suit? OPD-5.
Whether the sale of the suit property by Defendants Nos. 1 to 4 in favour of Defendant No. 5 is illegal, void and ineffective on the rights of the plaintiff? OPP
Relief.
The learned Civil Judge, by returning his findings on Issues Nos. 5, 8 and 10 in favour of the respondents, has dismissed the suit holding that the appellant in fact was not ready and willing to perform his part of the agreement and thus, equitable discretionary relief of the specific enforcement of the contract, cannot be granted to him; it has also been held that Respondent No. 5, the subsequent purchaser of the suit land, being co-share of the Khata, has the superior right of pre-emption and, therefore, the plaintiffs is disentitled to the decree for the specific performance. In this regard, the trial Court has relied upon the judgment reported as Nowab Meah Chowdhury vs. Syed Ezaz-ud-Din Ahmad and others (PLD 1962 Dacca 655). Appeal of the appellant has also failed.
Learned counsel for the appellant contends that Respondents Nos. 1 to 4 in a clear and unequivocal term have admitted the execution of the sale agreement, however, they alleged that the earnest money of Rs. 18,000/- instead of Rs. 92,000/- was paid, but this has been admitted by the defendants in their legal notice that the amount of Rs. 92,000/- was paid at the time of the execution of the agreement. It is further stated that the appellant throughout has been ready and willing to perform his part of the agreement; Respondents Nos. 1 to 4 have served upon the appellant legal notices (Ex.D.3 and Ex.D.4) and in reply thereof through Ex.D.1 and Ex.D.2, the appellant very clearly stated that he is prepared to pay the balance amount provided the respondents execute the sale-deed in favour of the appellant and his partners; but it is the respondents, who refused in this behalf and resultantly, the appellant cannot be blamed in the matter. It is further argued that the reasoning of the Courts below about the pre-emption is absolutely devoid of any force, because the Punjab Pre-emption Act, 1913 has since been repealed by Punjab Pre-emption, Act, 1991 and the right of pre-emption under 1991 Act is subject to the making of the Talabs, which stage in the matter has not yet arrived. He lastly argued that only for the reason that the appellant had joined with him partners in the transaction and required the respondents to transfer the property to them as well, would not come in the way of the appellant to hold that he was not ready and willing to perform his part of the agreement. Reliance in this behalf has been placed upon Abdul Aziz vs Fazal Karim and another (1989 SCMR 1456).
Heard. Admittedly, the agreement to sell dated 13.06.1988 (Ex.P.1) was executed between the appellant and Respondents Nos. 1 to 4 and the name of Mst. Fatima Bibi is also recited as one of the sellers in the document, but it does not contain her execution. The land mentioned in the said agreement is 49 Kanals and 16 Marlas. It is the case of the appellant that Mst. Fatima Bibi had refused to sell her share in the land and it is thus for this reason that she did not execute the document. Although, there are no signatures of Mst. Fatima Bibi, but through the notice Ex.D.3, issued by the counsel for Respondents Nos. 1 to 4 and Mst. Fatima Bibi, it is clear that she was also inclined to sell her share in favour of the appellant for which, the appellant had paid the earnest money. It is also an admitted fact that the parties had agreed for the finalization of the transaction by 31.03.1989, but from the evidence led by the appellant, it is not proved that he before the target date had approached the sellers, requiring them for the finalization of the transaction in his favour. It is also not established if before the said date he had made any effort for the purchase of the stamp paper and the scribing and preparation of the deed and had contacted Respondents Nos. 1 to 4 in this regard. This also is an admitted position that a legal notice dated 12.04.1989 (Ex.D.3) was issued to the appellant by Ch. Salamat Ali Bajwa, Advocate on behalf of Respondents Nos. 1 to 4 and in the notice, Mst. Fatima Bibi has also shown the willingness to sell her share. In the notice, it is stated that the appellant should come to the office of the above named Advocate on 25.04.1989 with the balance amount of Rs. 1,08,000/- and seek the execution and registration of the sale-deed, but instead of doing the needful, the appellant replied to the notice on the last date i.e. 25.04.1989, alleging that he had, on many occasions, asked the respondents to execute the sale-deed in his favour and also his partners, but they have failed. However, through any convincing evidence, the appellant has failed to establish as to when he had made such approach, which was declined. It is also mentioned in this reply (Ex.D.1) that the appellant has sought the finalization of the transaction in favour of his partners, but the respondents have declined. It may be pertinent to state here that neither the names of the partners are mentioned in this document, nor is their any reference in the sale agreement. Even after this reply, no steps were taken by the appellant for the finalization of the transaction; in this situation, the respondents on 22.5.1989 again sent another legal notice (Ex.D.4) to the appellant; this time apprising him that his clients are not inclined to sell the land in the name of any third person; they requested the appellant to have the execution of the sale-deed in his name and thereafter to sell it to any person of his own choice. In this notice, the appellant was asked to come to the office of the counsel of the respondents by 30.05.1989 with the balance amount of consideration. But the appellant did not respond rather on 3.06.1989 sent reply (Ex.D.2) to the notice (Ex.D.4) and reiterated his demand that the sale should be executed in the names of his partners as well.
It may be important to mention here that in the agreement to sell, it is no where mentioned that the appellant can seek the sale-deed in favour of any of his partners or the nominee. It may also be stated that in order to have the discretionary equitable relief of the specific performance in his favour, it was incumbent upon the plaintiff/appellant, to show his readiness and willingness, but the notices and the replies thereto prove that the appellant was only making the loud assertion of being ready and willing, but no positive step was taken by him in this direction. Moreover, as stated earlier, the appellant has not led any credible evidence as to when he had approached Respondents Nos. 1 to 4 for the purposes of executing the sale-deed in his favour alongwith the money and it is they who had declined. On the contrary, the respondents have been asking the appellant to be present in the office of their counsel and also before the Sub-Registrar for the finalization of the transaction and he had failed.
In the light of above, I concur with the findings of the Courts below that the appellant was not ready and willing to perform his part of the agreement by making the balance payment, rather has been seeking time and delaying the transaction on extraneous demands. It may also be pertinent to mention here that the agreement to sell is dated 13.06.1988 and the date for the performance is 31.03.1989, but the present suit had been brought by the appellant on 02.04.1990. Though the suit is within time, but no explanation has been given as to why this delayed action was taken.
For whatever has been discussed above, I do not find any merit in this appeal, which is hereby dismissed.
(Fouzia Fazal) Appeal dismissed.
PLJ 2007 Lahore 168
Present: Sh. Abdul Rashid, J.
FAQIR ABDUL MAJEED KHAN--Petitioner
versus
DISTRICT RETURNING OFFICER, MIANWALI and 4 others--Respondents
W.P. No. 17196 of 2005, decided on 2.11.2005.
(i) Punjab Local Government Election Rules, 2005—
----Rr. 35(15), 36(3)--Consolidation of results--After the close of the proceedings the Presiding Officer was required to close the packets, statement of the count and the ballot paper account prepared by him to be sent to the Returning Officer together with such other record as Returning Officer might direct--It was mandatory for the Returning Officer to examine the ballot papers excluded from the count by Presiding Officer and if he found that any such ballot papers should not have been so excluded he would count it as a ballot paper cast in favour of the candidate for whom the vote had been cast--While consolidating the results the Returning Officer was obliged to examine and decide the fate of invalid ballot papers and he appeared to had carried out his legal duty.
[Pp. 172 & 173] A, B & C
(ii) Punjab Local Government Election Rules, 2005—
----R. 65--Constitution of Pakistan, Art. 199--No election should be called in question except by an election petition made by a candidate for that election--All the questions which had been raised could be validly urged in the election petition before Election Tribunal--Petition dismissed.
[P. 174] D
Dr. Khalid Ranjha, Advocate for Petitioner.
M/s. Malik Noor Muhammad Awan Muhammad Ramzan Ch., Advocates and Mr. Nayub Faisal Ch. AAG. for Respondents.
Date of hearing: 2.11.2005.
Judgment
This detailed judgment is in continuation of my short order dated 2.11.2005 whereby this petition has been dismissed.
NAME SYMBOL VOTES
Faqir Abdul Majeed Khan Pirch Piali 66
Faisal Mahmood Khan Boat 01
Ghiyas Mehdi Khan Flying Eagle 23
Malik Muhammad Feroze Joya Umbrella 61
26 votes which did not bear the prescribed mark of the rubber stamp provided by the Presiding Officer and instead were encircled in different style were excluded from the count being invalid. Out of the said 26 invalid votes, 13 had been cast in favour of Malik Muhammad Feroze Joya Respondent No. 5 and 5 had been cast in favour of the petitioner. The Presiding Officer/Respondent No. 2 handed over the statement of the above Count to the agents of the contesting candidates. Respondent No. 5 being dissatisfied with the said count proceedings filed an application on 7.10.2005 before the District Returning Officer Mianwali for recounting of the votes for the office of Tehsil Nazim Piplan which on the same day was allowed and direction was issued in the following terms:
"The Returning Officer is directed to look into the rejected votes of the contesting candidates and to decide their fate in accordance with law before consolidating the final result".
On the same day the Returning Officer/Respondent No. 2 issued notices to the candidates for consolidation of result for 8.10.2005 at 11:00 a.m. On the said date Respondent No. 5 and the petitioner joined the consolidation proceedings and vide the impugned order dated 8.10.2005 the Returning Officer/Respondent No. 2 observed that the Presiding Officer had wrongly excluded 13 votes of Respondent No. 5 and five votes of the petitioner which had been validly cast in their favour. In the said consolidation proceedings it was found that Respondent No. 5 has secured 74 valid votes as against 61 and the petitioner secured 71 votes instead of 66 as counted by the Presiding Officer and consequently Malik Muhammad Feroze Joya Respondent No. 5 was declared successful.
(a) That Respondent No. 1 had no authority to direct the Returning Officer/Respondent No. 2 to look into the rejected votes of the contesting candidates and the said order is violative of Rule 36 of Chapter IV of the Punjab Local Government Elections Rules 2005;
(b) that the votes which were rightly rejected by the Presiding Officer had been illegally counted in favour of Respondent
No. 5.
(c) that the order of the District Returning Officer/Respondent
No. 1 being unlawful and void ab initio rendered the entire subsequent proceedings carried out by the Returning Officer/Respondent No. 2 violative of the law;
(d) that the petitioner having been found successful candidate by the Presiding Officer could not have been declared defeated in the recount;
(e) that Respondent No. 2 had misinterpreted the judgment of the Hon'ble Supreme Court of Pakistan in favour of Respondent No. 5 and in the said judgment it has been clearly stipulated that the votes showing their identity could not be considered as valid votes; and
(f) that the votes counted by Respondent No. 2 in the recount clearly disclosed their identity as those carried the identification marks in the shape of encircling the symbols and thus could not be considered as votes validly cast.
and consequently prayed for setting aside the impugned orders declaring Respondent No. 5 as returned candidate.
Respondent No. 5 contested the petition and in his reply controverted the allegations and the grounds set forth in the petition. It had been pleaded that the Presiding Officer had illegally and without legal justification excluded 26 votes from the count and the matter was agitated before the District Returning Officer that the Returning Officer be directed to have recourse to the mandatory provisions of Rule 36 Sub-Rules (2) and (3) of the Punjab Local Government Elections Rules, 2005; that the District Returning Officer merely directed the Returning Officer to look into the rejected votes of the contesting candidates and to decide their votes in accordance with law before consolidating the final result and thereby had only directed him to comply with the provisions of Rule 36 (2) and (3) of the Punjab Local Government Election Rules 2005 and that the Returning Officer only acted under the said provisions and consolidated the result in which he was bound to consider the fate of the rejected votes and he rightly observed in his order dated 8.10.2005 that 13 votes which stood cast in favour of Respondent No. 5 and five votes cast in favour of the petitioner had been wrongly excluded by the Presiding Officer, that the Returning Officer had rightly prepared the results and by order of Distt. Returning Officer no illegality had been committed. It had been further argued that the final notification of the result had been made and the Election Tribunals stand constituted and all the matters pertaining to election process could be challenged only before the Election Tribunals and the said remedy being available the present writ petition was not maintainable in view of the principle laid down in Ch. Nazik Ahmad and Others vs. Chief Election Commissioner and 4 others PLD 2002 SC 184.
I have heard the learned counsel for the parties at length. Learned counsel for the petitioner has mainly raised the following contentions:
That the Presiding Officer had found 26 votes as invalid and Respondent No. 5 had moved a petition before the District Returning Officer for recounting of the said invalid votes which is violative of Rule 36 sub-rule (6) of the Punjab Local Government Elections Rules 2005 whereby the Returning Officer in recount ordered by District Returning Officer could only confine himself to the recount of valid ballot papers/votes and could not hold recount about votes declared invalid by the Presiding Officer, that pursuant to the order of the District Returning Officer the Returning Officer held the recount of invalid votes which led to the change of the result declaring the petitioner unsuccessful candidate when he already had been declared as successful by the Presiding Officer and that 26 invalid votes did not bear the marking aid of rubber stamp on them which under proviso (c) of Clause (iii) of Sub-Rule (4) of Rule 35 of the Rules could not have been counted in favour of any contesting candidate as it could note be discerned that for whom the voter had voted.
"36. Consolidation of results--(1) The Returning Officer shall consolidate in Form XV the results of counts furnished by the Presiding Officer.
(2) The Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place for the consolidation of the results.
(3) Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and if he finds that any such ballot paper should not have been so excluded, count it as a ballot paper cast in favour of the contesting candidate for whom the vote had otherwise been cast.
(4) The returning officer shall include the vote's cast in favour of each contesting candidate in the consolidated statement except those, which he may reject on any of the grounds mentioned in clause (iii) Sub-rule (4) of Rule 35.
(5) The ballot papers rejected by the Returning Officer under Sub-rule (4) shall be shown separately in the consolidated statement.
(6) The Returning Officer shall not recount the valid ballot papers in respect of any polling station unless--
(i) the count by the Presiding Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or
(ii) he is directed to do so by the Chief Election Commissioner or the District Returning Officer".
In the present case before the result could be consolidated by the Returning Officer, Respondent No. 5 made an application before the District Returning Officer seeking recount of the invalid votes and consequently the District Returning Officer merely directed the Returning Officer to look into the rejected votes of the contesting candidates and to decide their votes in accordance with law before consolidation the final result. Rule 36 sub-rule (3) made it mandatory for the Returning Officer to examine the ballot papers excluded form the count by the Presinding Officer and if he finds that any such ballot papers should not have been so excluded he would count it as a ballot paper cast in favour of the candidate for whom the vote had otherwise been cast. The District Returning Officer in his direction had only required the Returning Officer to carry out his legal duty as in regard to the consolidation of the result under Rule 36(3) Supra. The further proceedings taken by the Returning Officer Respondent No. 2 under the directions of the District Returning Officer only show that he had proceeded to consolidate the results of the contesting candidates and gave notice to the parties concerned for 8.10.2005 as required under Rule 36(2) and then he determined the fate of votes excluded from the count by the Presiding Officer as provided under sub-Rule (3) of Rule 36 of the Rules. Thereafter he prepared From-XVI (copy Annex-B) showing the name of Respondent No. 5 as elected candidate. All these proceedings show that the Returning Officer was only directed by the District Returning Officer to proceed in accordance with the Rules to consolidate the result and consequently the Returning Officer proceeded in accordance with the said Rules.
The contention that the District Returning Officer had directed the Returning Officer to recount the invalid votes appears to be misconceived. Under Rule 36 sub-Rule (3) supra the Returning Officer while consolidating the results is obliged to examine and decide the fate of invalid ballot papers and he appears to have carried out his legal duty in this case. The Returning Officer in this case had not held the recount of the valid ballot papers in respect of any polling station on the direction of the District Returning Officer. Under Rule 36 sub-rule (6) a Returning Officer has been bound not to recount the valid ballot papers in respect of any polling station unless he is so directed by the Chief Election Commissioner or the District Returning Officer. Thus a Returning Officer while consolidating the result is bound to examine and decide the fate of invalid votes but he has been debarred from recounting the valid ballot papers unless so directed by the District Returning Officer. In the present case the recount of valid ballot papers cast in favour of each candidate was not made by the Returning Officer, therefore, all the proceedings in this case had been carried out under sub-rule (3) of Rule 36 and not under sub-rule (6) of the said Rule.
Learned counsel for Respondent No. 5 has placed on the file copy of the Notification No. F.19 (1)/2005-Elec-1(2) dated 10.10.2005 issued by the Election Commission of Pakistan whereby Malik Muhammad Feroze Joya Respondent No. 5 has been declared as Tehsil Nazim Piplan District Mianwali. It is also an admitted position that the Chief Election Commissioner has appointed Election Tribunals to entertain election petitions for adjudication of the election matters. Rule 65 of the Punjab Local Government Elections Rules 2005 provides that no election shall be called in question except by an election petition made by a candidate for that election. All the questions which have been raised in this petition can be validly urged in the election petition before the Election Tribunal. Thus an alternate and efficacious remedy is available to the petitioner absence of which is condition precedent for invoking jurisdiction under Article 199 of the Constitution. It has been held by the Hon'ble Supreme Court in Ch. Nazir Ahmad and others vs. Chief Election Commissioner and 4 others PLD 2002 SC 184 which is as follow:
"Rule 70, Punjab Local Government Elections Rules, 2000 expressly prohibits any election held under the Punjab Local Government Elections Ordinance, 2000 to be called in question except by an election petition made by a candidate for that election before the Election Tribunal. The appellants and the present petitioners in the present case were candidates in the election in which the contesting respondents were notified as `returned candidates' by the competent authority under sub-rule (5) of Rule 42 read with Rule 55 of the Rules and the Election Tribunals have also been admittedly appointed by the Chief Election Commissioner through a notification issued under Rule 73 of the Rules, therefore, there can be no dispute with the proposition that the writ petitions were squarely hit by the statutory prohibition contained in Rule 70 of the Rules. Moreover, the embargo on grant of any relief in exercise of jurisdiction under Article 199 of the Constitution in presence of an alternate remedy was fully attracted. The relief claimed in the writ petitions could be allowed in election petitions, therefore, an alternate remedy was available to the petitioners which is certainly an adequate and efficacious remedy in view of the scheme and contents of the Punjab Local Government Elections Ordinance, 2000 and the Rules".
It may be mentioned here that the Punjab Local Election Rules 2005 are identical in substance and Rule 65 of these Rules is the same as it was Rule 70 of the Punjab Local Government Ordinance 2000 which has been referred in the above quoted judgment which provides an adequate, alternate and efficacious remedy to a candidate for that election to call in question the said election.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 Lahore 175
Present: Tariq Shamim, J.
REHMAT BIBI--Petitioner
versus
DISTRICT POLICE OFFICER, NAROWAL and 2 others--Respondents
W.P. No. 9570 of 2006, decided on 15.9.2006.
Criminal Procedure Code, 1898 (V of 1898)—
----Ss. 22-A & 22-B--Constitution of Pakistan, 1973, Art. 199--Registration of a criminal case--Petitioner filed two successive applications under Sections 22-A and 22-B Cr.P.C. before Ex-Officio Justice of Peace which were dismissed--Held: Application had been dismissed on merit as such without there being any fresh ground, a similar petition cannot be preferred--Even otherwise has adequate alternate remedy available under the law by way of filing a private complaint--Controversy essentially pertains to disputed questions of fact which exercise cannot be undertaken in the Constitutional jurisdiction of High Court.
[P. 176] A, B & C
2006 SCMR 276.
Mr. Muhammad Jamil Bhatti, Advocate for Petitioner.
Date of hearing: 15.9.2006.
Order
Through this petition, the petitioner has sought a direction for registration of a criminal case against Mohsin s/o Mehdi, Zaheer s/o Bashir, Ramzan s/o Muhammad Anwar and Waqas s/o Ilyas and for setting aside, the order of the learned Additional Sessions Judge/Ex-Officio Justice of peace, dated 08.09.2006, whereby the application of the petitioner under Sections 22-A and 22-B Cr.P.C. was dismissed.
Learned counsel for the petitioner contended that the petitioner filed an application on 21.08.2006 with the District Police Officer, Narowal, seeking registration of a case against the aforementioned persons which was entrusted to the SHO, however, the needful was not done. Consequently, the petitioner had to resort to filing of a petition under Section 22-A and 22-B Cr.P.C. before the learned Ex-Officio Justice of Peace, on which comments were called from the concerned police officer. The comments, according to the learned counsel for the petitioner, were concocted and not based on true facts, hence the order of learned Additional Sessions Judge, Ex-Officio Justice of Peace passed while relying on the same was illegal and not in accordance with law.
I have heard the learned counsel for the petitioner and perused the application filed by the petitioner under Sections 22-A and 22-B Cr.P.C. before the Ex-Officio Justice of Peace, the comments submitted by the police and the impugned order.
In the application under Sections 22-A and 22-B Cr.P.C. as well as in the instant writ petition the persons against whom registration of criminal case is sought have not been arrayed as respondents. The comments submitted by the police before the learned Ex.-Officio Justice of Peace reveal that the claim of the petitioner regarding abduction of her son was totally baseless as no such occurrence had taken place. The impugned order reveals that the petitioner earlier filed a similar petition before the learned Ex-Offico Justice of Peace on 17.7.2006, which was dismissed, whereafter she filed another application before Ch. Mushtaq Ahmed Gondal, learned Additional Sessions Judge Narowal Since her earlier petition had been dismissed on merit, as such without there being any fresh ground a similar petition cannot be preferred. In the application filed under section 22-A and 22-B Cr.P.C. no specific date and time of the alleged occurrence is mentioned which creates serious doubts about the authenticity of the version narrated by the petitioner. The petitioner, even otherwise, has adequate alternate remedy available under the law by way of filling a private complaint against the aforementioned persons.
The controversy essentially pertains to disputed questions of fact which exercise cannot be undertaken in the constitutional jurisdiction of this Court, Reliance is placed on the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276). Further, the learned counsel for the petitioner has not been able to point out any illegality, infirmity or jurisdictional error in the impugned order which would warrant interference by this Court in exercise of jurisdiction under Article 199 of the Constitution.
Resultantly, this petition being without any force is dismissed in limine.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 177
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
HAQ NAWAZ and another--Petitioners
versus
BASHIR AHMAD and 2 others--Respondents
C.R. 302/D of 2003, heard on 26.6.2006.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 20--Term pre-emptor and "vendee" has been used in singular--Under the applicable Rules of interpretation contained in Federal and Provincial General Clauses Acts singular includes plural and vice versa--Upon a plain reading of statutory provision where pre-emptor and the vendee (or vendees) fall within the same class of pre-emptor and have equal right of pre-emption--Provision of law does not contemplate two different classes rather only one class to which the pre-emptor as well as the vendee belong--Class is the one having equal right of pre-emptor--Pre-emptor and vendees belong to that very class of pre-emptors who are equipped with a right of pre-emption i.e. they are all co-sharers in the suit land at the time of sale--Thus having become members of said class having equal right of pre-emption, i.e. class of co-sharers, they will share the property equally. [P. 179] A
1999 SCMR 2167; 1993 SCMR 543; 2002 MLD 938 and 1992 MLD 1570, rel.
Syed Arshad Hussain Jafferi, Advocate for Petitioners.
Mr. Muhammad Zafar Khan Sial, Advocate for Respondent No. 1.
Syed Asif Raza Gilani, Advocate for Respondents Nos. 2 and 3.
Date of hearing: 26.6.2006.
Judgment
This judgment shall decide C.R. No. 302/03 and C.R. No. 488/03 as common questions are involved and these proceed against a common judgment.
Rs. 50,000/-. On 23.1.1995 the Respondent No. 1 and on 24.1.1995 the Respondents Nos. 2 and 3 filed suits for possession of the suit land by pre-emption. They claimed to be co-sharers in the suit land as also Shafi Khalit and Jar. Performance of talbs was pleaded. Both the suits were consolidated. The written statements were filed by the petitioners denying the said allegations. Issues were framed. Proceedings were conducted in the suit filed by Respondent No. 1. Evidence of the parties was recorded. Both the suits were decreed in equal shares in favour of Respondent No. 1 on the one hand and Respondents Nos. 2 and 3 on the other subject to deposit of Rs. 50,000/- vide judgment and decree dated 5.1.2002 of the learned trial Court. The petitioners filed two civil appeals which were heard together by a learned Additional District Judge, Khanewal. The learned Additional District Judge modified decree of the learned trial Court inasmuch as he proceeded to a apportion the land in three shares upon a finding that the petitioners are also co-sharers in the suit land. He decreed one share each in favour of the said two sets of the plaintiffs and allowed the petitioners to retain the remaining 1/3rd share. The term of deposit was modified accordingly. This was done vide judgment and decree dated 3.2.2003.
Syed Arshad Hussain Jaffari, Advocate/learned counsel for the petitioners contends that the respondents in both the cases had failed to prove the performance of talbs. He particularly points out that the Respondents Nos. 2 and 3 produced photo copies of the postal receipts which were not admissible in the matter of the service of the notices of talb-i-ishhad. He also questions the mode of apportionment of the suit land with reference to the case of Muhammad Nawaz v. Ahmad Khan and another (2005 YLR 197) M/s. Muhammad Zafar Khan Sial and Syed Asif Raza Gilani, Advocates, for the pre-emptors/respondents support the impugned judgments and decrees. In the matter of apportionment, they rely on the cases of Muhammad Hayat v. Faiz Ali and another (2002 M.L.D. 938) and Feroze Khan and 3 others v. Ahmed Yar (1992 M.L.D. 1570).
I have gone through the copies of the records, with the assistance of the learned counsel for the parties. It will be noted that there is no dispute that all the pre-emptors as well as the vendees were co-sharers in the suit land prior to the sale in question. The Respondent No. 1 stated in the plaint that he came to know about the sale on 3.1.1995 and in the presence of witnesses he immediately made the first talb. Thereafter, he contacted the petitioners alongwith the witnesses and made talb-i-ishhad and issued notices. Bashir Ahmad Respondent No. 1 appeared as PW-1 to make a statement accordingly. Notices Exs.P.1 and 2 were also produced. Nusrat PW-2 is the informer and also attesting witness of the said notices while Muhammad Rafiq PW-3 stated that in his presence Nusrat informed the Respondent No. 1 and he made the first talb and he had attested the notices Exs.P.1 and P.2 PW.4 Muhammad Akbar is the Scribe of the notices. The postal receipts introduced in the statement of PW-1 are Exs. P.3 and P.4. The notices do refer to the first talb and confirmed the same. Haq Nawaz petitioner appeared as DW-3. He did state that a notice had not been issued. However, there is nothing on record that the notices were not properly addressed.
The Respondents Nos. 2 and 3 in their plaint stated that they came to know about the sale on 3.1.1995 and made the first talb and thereafter they contacted the petitioners alongwith witnesses to make the talb-i-ishhad and gave a notice. Sakina Bibi Respondent No. 3 appeared as PW-5 to reiterate the said contents of the plaint. She produced copy of notices Exs.P.10 and P.11. She also stated that she posted the said noticed under register cover. PW-6 is Khuda Bakhsh who stated that Nusrat informed the said ladies in his presence and they made the first talb and the notices were issued which were attested by Khuda Bakhsh and the said Nusrat who again appeared as PW-7 with the same statement. Muhammad Akbar is the Scribe of the said notices. Haq Nawaz appeared as DW-3. There is no allegation that notices were not properly addressed. Now I find that the said respondents filed an application for permission to lead secondary evidence in the form of photo copies of the postal receipts with the plea that the original have been lost. This application was allowed by the learned trial Court with the consent of the petitioners and were tendered in evidence accordingly. Nothing therefore, turns on the said contention of the learned counsel.
Now coming to the question of the matter of the apportionment of the land, in view of the admitted fact that all the pre-emptors and the venders have an equal right of pre-emption, I deem it appropriate to reproduce hereunder Section 20 of the Punjab Pre-emption Act 1991:
"20 Where the pre-emptor and vendee equally entitled.--Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally".
It will be seen that the term pre-emptor' and thevendee' has been used in singular.
Needless to state that under the applicable Rules of interpretation contained in the Federal and the Provincial General Clauses Acts, singular includes plural and vice versa. Upon a plain reading of the said statutory provision where the pre-emptor (or pre-emptors) and the vendee (or vendees) fall within the same class of pre-emptor and have equal right of pre-emption, they shall share the property equally. In my humble opinion, the said provision of law does not contemplate two different classes rather only one class to which the pre-emptor as well as the vendees belong and that class is the one having equal right of pre-emption. In the present case, all the pre-emptors and the vendees belong to that very class of pre-emptors who are equipped with a right of pre-emption in equal terms i.e that they are all co-sharers in the suit land at the time of sale. Thus, having become members of the said class having equal right of pre-emption, i.e class of co-sharers, they will share the property equally.
This is how the similarly worded provisions of Section 20 of the NWFP
Pre-emption Act, 1987, were interpreted in para 21 in the case of Sar Anjam v.
Abdul Raziq (1999 S.C.M.R. 2167). To similar effect is the dictum in the case of Kala Khan v. Ayub Khan (1993 S.C.M.R. 543). Earlier dictum of this Court in the cases of Muhammad Hayat v. Faiz Ali and another (2002 M.L.D. 938) and
Feroze Khan and 3 others vs. Ahmad Yar (1992 MLD 1570) is to the similar effect.
Petitioners = 2/5
Respondent No. 1 = 1/5
Respondents Nos. 2 & 3 = 2/5
The impugned decree is modified accordingly. Bashir Ahmed Respondent No. 1 shall accordingly deposit a sum of Rs. 10,000/- after adjustment of amount already deposited with the learned trial Court while the Respondents Nos. 2 and 3 (Mst. Bakhan and Mst. Sakina) shall deposit a sum of Rs. 20,000/- after adjusting the amounts already deposited with the learned trial Court on or before 31.7.2006. In case the said deposit is not so made on or before the said date by any of the pre-emptors, his or her suit shall stand dismissed with costs throughout. At the moment the parties are left to bear their own costs.
(Malik Sharif Ahmed) Order accordingly.
PLJ 2007 Lahore 180
Present: Sayed Zahid Hussain, J.
SUBAH SADIQ--Petitioner
versus
Mst. RAJAN (Since Dead) through her Legal Heirs and others--Respondents
Civil Revision No. 1841 of 2005, heard on 18.5.2006.
Civil Procedure Code, 1908 (V of 1908)—
----O. I, Rr. 9 & 10--Necessary party not impleaded neither in appeal nor in revision petition in High Court--Appeal and revision not competent in absence of the necessary party--Petition dismissed. [P. 181] A
PLD 1987 Lah. 387, rel.
Mian Muhammad Waheed Akhtar, Advocate for Petitioner.
Mr. Shaukat Hussain Baloch, Advocate for Respondent.
Date of hearing: 18.5.2006.
Judgment
This petition and C.R. No. 2367/2005 arise out of the same judgment of the appellate Court dated 3.6.2005. Mst. Rajan since deceased now represented by her legal heirs had instituted a suit for pre-emption against Subah Sadiq, the petitioner herein and Rakhsana Shaheen minor respondent in C.R. No. 2367/2005. After trial, suit to the extent of the share of the petitioner in the land was decreed but was dismissed qua Rakhsana Shaheen. This was vide judgment of the trial Court dated 22.12.2004. Subah Sadiq the petitioner herein as also the heirs of Mst. Rajan filed appeals against the said judgment and decree of the trial Court, which as mentioned above was dismissed by the appellate Court. The two revision petitions arise in this context.
In the petition (CR. NO. 184/2005) filed by Subah Sadiq, Rakhsana Shaheen has not been impleaded as party whereas in the revision petition (CR. No. 2367/2005) filed by legal representatives of Mst. Rajan, Subah Sadiq has not been impleaded as party. This itself being a fatal defect would have entailed dismissal of both the revision petitions. Moreover, another defect noticeable is that before the lower appellate Court even similar position prevailed. The learned counsel for the petitioners in both the petition could not advance any convincing explanation for not impleading necessary parties either in appeal or in revision petitions here. Thus even appeals before the lower appellate Court were not competent in absence of the necessary parties. In Muhammad Suleman. v. Abdul Rashid and 13 others (PLD 1987 Lahore 387) such a defect was considered to be fatal for the maintenance of appeal/revision.
In view of the above, both these revision petitions suffer from such an inherent defect as is not curable now. The petitions are dismissed accordingly.
(Malik Sharif Ahmed) Petitions dismissed.
PLJ 2007 Lahore 181
Present: Tariq Shamim, J.
AMANAT MASIH--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, KASUR and 4 others--Respondents
W.P. No. 8551 of 2006, heard on 11.9.2006.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 22-A & 22-B--Pakistan Penal Code (XLV of 1860), S. 182--Constitution of Pakistan, Art. 199--Jurisdiction of Justice of Peace--Held: Justice of Peace could only pass an order directing registration of a criminal case if a cognizable was made out from the application or declined the same--Direction given to the S.H.O. by the Justice of peace to initiate proceedings against the petitioner under S. 182 P.P.C. was beyond the purview of S. 22-A Cr.P.C. and was in excess of jurisdiction conferred under the law--Writ Petition was partially accepted and order of the Justice of peace to the extent of the direction given to the S.H.O. to initiate the proceedings under S. 182 PPC was set aside.
[Pp. 182 & 183] A & B
Ch. Muhammad Ashraf Jalal, Advocate for Petitioner.
Mr. Nisar Ahmed Baig, Advocate and Muhammad Arif Bhindar, AAG for Respondents.
Date of hearing: 11.9.2006.
Judgment
Through this petition, petitioner Amanat Masih has assailed the order of the learned Additional Sessions Judge, Kasur/Justice of peace, dated 29.07.2006, whereby on the application filed by the petitioner for registration of a case against the respondents arrayed therein under Sections 22-A and 22-B Cr.P.C., the learned Justice of Peace after passing the dismissal order directed the SHO concerned to initiate proceedings under Section 182 PPC against the petitioner.
Learned counsel for the petitioner contended that the order of the learned Court was beyond the purview of Sections 22-A Cr.P.C which did not confer any jurisdiction on the Court to give such a direction, hence the same was illegal, unlawful and coram non judice, therefore, liable to be set aside.
Learned counsel appearing on behalf of Respondent No. 4 has vehemently opposed the petition whereas the learned Additional Advocate General has conceded that to the extent of the direction given by the Court regarding initiating proceedings under Section 182 PPC against the petitioner was illegal and not sustainable under the law.
I have heard the learned counsel for the parties and the learned Additional Advocate General.
It would be appropriate to reproduce Section 22-A(6) Cr.P.C. for easy reference:--
22-A (6) An ex-officio Justice of the Peace my issue appropriate direction to the police authorities concerned on a complaint regarding--
(i) non-registration of criminal case;
(ii) transfer of investigation from one police officer to another; and
(iii) neglect, failure or excess committed by a police authority in relation to its function and duties".
A perusal of the provision of law reproduced ibid reveals that the learned ex-officio Justice of Peace could only pass an order directing registration of a criminal case if a cognizable offence was made out from the application or decline the same. The direction given to the SHO by the learned ex-officio Justice of Peace to initiate proceedings against the petitioner under Section 182 PPC is beyond the purview of Section 22-A Cr.P.C., hence in excess of the jurisdiction conferred upon him under the law.
For what has been discussed above, this writ petition is partially accepted and the order of the learned Additional Sessions Judge/Justice of Peace dated 29.7.2006 to the extent of the direction given to the SHO to initiate proceedings under Section 182 PPC against the petitioner is set aside. There shall be no order as to costs.
(Malik Sharif Ahmed) Petition partially allowed.
PLJ 2007 Lahore 183
Present: Jawwad S. Khawaja, J.
NAVEED-ULLAH KHAN BHATTI, PROP. M/s. RAVI AUTOS PETROL PUMP--Petitioner
versus
DIRECTOR, PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION, LAHORE and 2 others--Respondents
C.R. No. 1059 of 2001, heard on 26.5.2006.
(i) Punjab Employees Social Security Ordinance, 1965—
----S. 2 (8), Term "Employee" defined--Explained--An employee in order to fall within the ambit of legal provision of the Ordinance, has to be drawing a salary of less than Rs. 3000/- P.M. [P. 184] A
(ii) Punjab Employees Social Security Ordinance, 1965—
----S. 57(f)--Civil Procedure Code, (V of 1908), S. 115--Petrol pump employees--Contribution towards Social Security--Denial--Demand notices warrants for recovery of contribution amount--Suit for declaration and permanent injunction was dismissed--Controversy between parties fell within ambit of S. 57 of Ordinance, 1965--Any dispute as to the rate of contribution payable by an employer is to be determined by the Security Institution--Controversy is required to be agitated, in the first instance, before security institution and of aggrieved of its decision, these are remedies by way of appeal before Labour Court. [P. 185] B & C
(iii) Punjab Employees Social Security Ordinance, 1959—
----S. 57--Civil Procedure Code (V of 1908), S. 115--Setting up petrol pump--Demand of Social Security contribution--Issuance of notification--Petitioner disputes the basis on which establishment was included is notification, is not sufficient for holding that it was in excess of authority, conferred by Ordinance--Powers to issue notification undeniably vests in respondent institution--Factual dispute raised by petitioner is qualitatively different from question of vires. [P. 186] D
Ch. Ihsan-ul-Haq Bhatti, Advocate for Petitioner.
Mr. Zafar Iqbal Malik, Advocate for Respondent.
Date of hearing: 26.5.2006.
Judgment
The petitioner-plaintiff impugns the concurrent orders of the learned trial Court dated 18.1.2000 and of the learned appellate Court dated 31.3.2001 whereby the plaint filed by the petitioner has been rejected.
I have heard learned counsel for the petitioner. The facts narrated by him are straightforward. The petitioner is the owner of a petrol pump where, according to learned counsel, he employed two persons at a salary in excess of Rs. 3000/- per month. According to him, the provisions of the Punjab Employees Social Security Ordinance, 1965 are not attracted to the petitioner's business. Even if the provisions of the said Ordinance are applicable, the two employees do not fall within the definition of the term `employee' given in Section 2(8)(f) of the aforesaid Ordinance because an employee in order to fall within the ambit of the said legal provision, has to be drawing a salary of less than Rs. 3000/- per month.
In the above circumstances and with the view to challenging the demand for social security contributions from the petitioner, he filed a suit. The respondents filed an application under Order 7, Rule 11 CPC praying that the plaint be rejected. The learned trial Court, vide order dated 18.1.2000, allowed the application and rejected the plaint. An appeal preferred by the petitioner was rejected by the learned appellate Court vide order dated 31.3.2001. Hence, this revision petition.
Learned counsel for the petitioner has argued, firstly, that the learned Courts below have presumably proceeded under Order 7, Rule 11(d) of the CPC, which reads as under:-
"11. Rejection of plaint.--The plaint shall be rejected in the following cases:--
(a) ---------------------------
(b) ---------------------------
(c) ---------------------------
(d) where the suit appears from the statement in the plaint to be barred by any law.
However, the learned Courts below have not referred to any law whereunder the suit filed by the petitioner has been barred. Secondly, it is contended that the plaint disclosed a cause of action on the basis of the facts narrated therein and, briefly, referred to above. It is, therefore, contended that the provisions of Order 7 Rule 11 CPC were not attracted in the present case.
Learned counsel for the respondent institution has, firstly, submitted that the establishment of the petitioner was duly mentioned in the notification issued under the Punjab Employees Social Security Ordinance, 1965. In addition, he has pointed out that the petitioner made social security contributions in respect of his employees subsequent to the issuance of the above referred notification. To substantiate this plea, he referred to the record of the institution available with him showing the contributions made by the petitioner on various dates pursuant to demand notices which had been issued to the petitioner by the respondent institution.
Show-cause notices including one dated 4.1.96 and a demand notice dated 13.3.97 were also referred to by learned counsel for the respondent. Lastly, learned counsel for the respondent adverted to a notice dated 5.5.97 issued to the petitioner under Section 81 of the Land Revenue Act followed by a warrant under Section 82 of the said statute.
It is only after the aforesaid notice and warrants were issued that the petitioner filed his declaratory suit out of which this petition has arisen. The prayer made by the petitioner, inter-alia, sought a permanent injunction to restrain the respondent from taking coercive measures for recovery of any social security contribution from the petitioner.
The facts narrated above are sufficient to show that the controversy between the parties fell within the ambit of Section 57 of the Social Security Ordinance. It has been noted therein that any dispute as to the rate of contribution payable by an employer was to be determined by the institution. Clause (f) of Section 57, which is residual in nature, is in the following terms:
"(f) any other matter in respect of any contribution or other dues payable or recoverable under this Ordinance;"
Even if this clause is read ejusdem generis, it is evident that, in the first instance, the controversy raised by the petitioner had to be agitated before the respondent institution itself. Thereafter if the petitioner was aggrieved of the decision rendered by the institution, remedies by way of appeal and further appeal have been provided in the Social Security Ordinance.
Learned counsel for the petitioner, however, reiterated his argument that the jurisdiction of the Civil Court had not expressly been ousted by the statute. This contention, however, is misconceived, particularly, in view of the submissions made on behalf of the respondent institution that the petitioner had been making contributions under the Social Security Ordinance, but had only resorted to litigation in the Civil Court when coercive process for recovery of contributions was initiated against him under the Land Revenue Act. I may add at this stage that learned counsel for the petitioner denied having made contributions to the respondent institution as alleged by the respondent. This denial is not sufficient to take the petitioner's case beyond the pale of Section 57 referred to above. Needless to say the petitioner will be entitled to raise his pleas, but this will be before the respondent institution and in accordance with the procedure laid down in the Social Security Ordinance.
Reference at this stage may usefully be made to the case titled Sunshine Diaries Ltd Vs. Comm. Sind Employees Social Security Institution & others (PLJ 1976 Karachi 328) which supports the plea of the respondent that by necessary implication any matters, which are covered by Section 57 of the Social Security Ordinance, are to be decided under the said Ordinance.
Learned counsel for the petitioner on the other hand, referred to the case titled Messrs Standard Printing Press Vs. Sind Employees' Social Security Institution (PLD 1978 Karachi 945) to argue that where the very issuance of a notification under the Social Security Ordinance was under challenge, the matter was beyond the jurisdiction of the forums established under the said Ordinance. I have gone through the cited precedent and find the same to be clearly distinguishable on facts. In the said case the question was whether the notification in question was ultra vires being in excess of the authority conferred by the Ordinance or because it was violative of Article 25 of the Constitution. No such question arises in this case. The mere fact that the petitioner disputes the basis on which his establishment has been included in the notification, is not sufficient for holding that such notification is in excess of the authority conferred by the Ordinance. The power to issue the notification undeniably vests in the respondent Institution. The factual dispute raised by the petitioner is qualitatively different from the question of vires, and the same can be adequately agitated by the petitioner before the forums set up under the Social Security Ordinance.
In view of the foregoing discussion, this revision petition is dismissed being without force.
(Zulfiqar Ahmed Sheikh) Petition dismissed.
PLJ 2007 Lahore 187
Present: Mian Saqib Nisar, J.
ASHIQ HUSSAIN and another--Appellants
versus
JAMIA MASJID HANFIA GHOUSIA AHL-E-SUNNATWAL-JAMAT, LAHORE through President of Masjid Committee--Respondent
S.A.O. No. 12 of 2005, heard on 12.10.2006.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----Ss. 13(6) & 15--Relationship of landlord and tenant--Ejectment application for eviction of appellants from the shop in dispute--Shop in-question being an evacuee property was transferred by the settlement department in the name of their father--There was no documentary and mere denial of land lordship was not sufficient--Application for recalling order was dismissed--Rent Controller struck off the defence of the appellants and passed an eviction order--Assailed--Validity--Held: Order u/S. 13(6) could only be passed where either the relationship of landlord and tenant is admitted or it is established from the record that denial by respondent is contumacious, illusionary, frivolous, baseless and without substance; and cogent reasons should be recorded by the Rent Controller before discarding the denial and passing the order u/S. 13(6). [P. 189] A
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----S. 13(6)--Denial of relationship of Landlord and tenant--Personal requirement--Once a tenant had denied such relationship and issue in this behalf was intended to be framed by the Controller, it was not permissible for him to pass an order u/S. 13(6), directing the tenant to deposit the rent--Where tenancy was denied, the rent controller was not supposed to frame any other issue, such as on the ground of personal requirement or willful default in the payment of rent--Matter was remanded to the Rent Controller with direction that the evidence of the parties be recorded on the issue of relationship and to decide the eviction application on the basis of that issue. [P. 189] B & C
Mr. Muhammad Saleem Akhtar, Advocate for Appellants.
Mr. Ghazanfar Ullah Janjua, Advocate for Respondent.
Date of hearing: 12.10.2006.
Judgment
The respondent filed an ejectment application, for the eviction of the appellants from the shop in dispute, situated in Paisa Akhbar Urdu Bazar, Lahore. In the written reply, the appellants denied the relationship of the tenancy and in a categorical and unequivocal terms have stated that the ejectment petitioner is not the owner of the shop rather "the property in dispute was owned by predecessor-in-interest of the answering respondents and answering respondents are in occupation of the property as owners". Further in reply to Paragraph No. 3, of the petition on merits, the case of the appellant is that the shop in question was an evacuee property, which has been transferred by the Settlement Department in the name of his father, who was never inducted as a tenant in the property by the respondent. Be that as it may, the learned Rent Controller, vide order dated 22.9.2003 passed an order under Section 13 (6) of the Rent Restriction Ordinance, held "there is no documentary proof from respondent side to rebut the contention of the petitioner and mere denial of landlordship is not sufficient, until and unless it is supported with any cogent documents. Therefore, in order to proceed further order under Section 13 (6) is hereby passed". The appellants moved an application for recalling of the order dated 22.9.2003, which was dismissed vide order dated 28.2.2004 and the following issues were framed:--
Whether the relationship of landlord and tenant exist between the parties. ? OPA
Whether the disputed premises are required by petitioner for his personal bonafide need ? OPA
Whether the respondent is willful defaulter in payment of rent? OPA
Relief.
Thereafter, the respondent moved an application for striking off the appellants' defence on the ground that the order dated 22.9.2003 passed under Section 13(6), has not been complied with, which application was accepted and the learned Rent Controller, through the order dated 1.11.2004, struck off the defence of the appellants and passed an eviction order; this order was challenged by the appellants in appeal on the ground that since they have denied the relationship of tenancy, therefore the order u/S. 13(6) could not have been passed against them and cannot be made basis for the non-compliance of such an illegal order, having been passed without jurisdiction and lawful authority; this appeal has been dismissed by the learned Addl. District Judge, vide judgment dated 25.1.2005 on the reasoning that the order dated 25.9.2003, has not been challenged by the appellants and therefore, such order has attained the finality and thus it was held "In this way, it can rightly be said that the appellant is a wilful defaulter in the payment of rent and he has rightly been ejected by the learned Rent Controller vide order dated 1.11.2003".
Learned counsel for the appellants contends that as the appellants have denied the relationship of tenancy therefore, the order under Section 13(6) could not have been passed by the learned Rent Controller, without first determining the issue of relationship/onwership of the property, for which it was necessary to have allowed the appellants to produce the evidence in order to show that the suit property has been transferred in favour of the appellants' father by the Settlement Department. It is mentioned in this behalf that the record of the Settlement has been duly relied upon and the appellants wanted to establish their transfer/ownership through production of such record.
On the contrary, the learned counsel for the respondent states that the denial of the relationship by the appellants was contumacious and was not supported by any record, therefore, the Rent Controller had rightly discarded the same and passed the order under Section 13(6).
I have heard learned counsel for the parties. The Order under Section 13 (6) could only be passed, where either the relationship of landlord and tenant is admitted or it is established from the record, that the denial by the respondent is contumacious, illusionary, frivolous, baseless and without substance. In this behalf, cogent reasons should be recorded by the Rent Controller, before discarding the denial and passing the order under Section 13(6) of the Rent Restriction Ordinance. But once a tenant has denied such relationship and issue in this behalf is intended to be framed by the Controller, it is not permissible for him to pass an order u/S. 13(6), directing the tenant to deposit the rent, because in the case, where default in the payment of rent is set out as a ground for the eviction, as in the present case, the respondent of the case, while denying the relationship takes a grave risk, that in case the tenancy is established, the matter shall not be further adjudicated, rather his tenancy shall be forfeited and straightaway an ejectment order shall be passed against him. As mentioned above, the ejectment application in the case, has been filed inter-alia on the ground of default in the payment of monthly rent therefore, the Rent Controller after deciding the issue of tenancy could evict the tenant forthwith, if it is proved that the relationship inter-se the parties exists. Moreover, in the case, where the tenancy is denied, the Rent Controller is not supposed to frame any other issue, such as on the ground of personal requirement or willful default in the payment of the rent. To this extent, also the order framing Issues Nos. 2 and 3, is not proper and the same is also liable to be set aside, resultantly, by allowing this appeal, the impugned orders are set aside and the matter is remanded to the Rent Controller with the direction that the evidence of the parties be recorded on the issue of relationship and to decide the eviction application on the basis of that issue within three months from the date of first appearance of the parties, who are directed to appear before the Rent Controller on 6.11.2006.
(Anwar Saeed Sheikh) Case remanded.
PLJ 2007 Lahore 190
Present: Umar Ata Bandial, J.
SH. ANAYAT ALI--Petitioner
versus
NATIONAL BANK OF PAKISTAN and another--Respondents
W.P. No. 14700 of 2004, heard on 20.12.2005.
(i) Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Petitioner made investment with bank in its monthly income scheme under the "profit/loss sharing system"--Bank is diverting its profits and not "sharing" these faithfully with its depositors--Contention of--Financial statements of bank show that net markup/interest income of the bank has increased during the period and the "profit distributed on PLS deposits and other accounts" of the bank has diminished--There is a sharp decline in markup/return/interest payments by the bank during the period under consideration which reflects a conflicting trend between profits earned against profit distributed--Profit rates on PLS deposit accounts are declared by the bank with the prior approval of the State Bank of Pakistan in terms of its BCD Circular 34--Financial statements of the bank do not provide information that is specific and relevant for purposes of Circular 34 criteria and calculations therefore, invites careful scrutiny--Under the law such an exercise is both the function and duty of the SBP therefore the Court is not inclined to itself explore matters that fall within the domain of an expert statutory institution--SBP, as the author of Circular 34 and its governing statutory authority, plays a regularity role to ensure complaince--Matter was referred to SBP to ensure that provisions and objectives of its BCD Circular 34 are duly met--Petition disposed of.
[Pp. 192 & 193] A, B, C & E
(ii) Constitution of Pakistan, 1973—
----Art. 199--Lowering of the profit rates distributed to the depositors of the bank--Profit rates on PLS deposit accounts are declared by the bank with the prior approval of the State Bank of Pakistan in terms of its BCD Circular 34--Plea of--Report by the financial controller of the bank declares that the lowering of the profit rates distributed to the depositors of the bank is, inter alia, on account of the lowering of treasury bill rates, inter bank rates, lending rates and monetary policy enforced by the SBP--This revelation undermines the bank's stand that Circular 34 is the sole criterion for profit rate determination on its deposit accounts--Report by the financial controller of the bank reveals consideration for PLS profit rate fixation that are outside the contemplation of the criteria enumerated in Circular 34--This is a matter that requires probe by the SBP. [P. 193] D & F
Mr. Iftikharullah Malik, Advocate for Petitioner.
Mr. Iftikhar Hussain Shah, Advocate for Respondents.
Date of hearing: 20.12.2005.
Judgment
In the year 2000 the petitioner made an investment of Rs. 2.0 million with the respondent bank ("bank") in its monthly income scheme under the "profit/loss sharing system" At the time the petitioner earned a rate of profit of 9.0 % on the bank's monthly income scheme earning Rs. 16,000/- per month income without deduction of Zakat. Thereafter from time to time the bank reduced the profit rate resulting, at the time of filing of this petition in the year 2004, to a diminished profit payment of Rs. 4,463/- per month.
Learned counsel submits that on the one hand advertisements in the press show the bank to be earning booming profits (2003:86 % growth in after tax profit), whereas on the other hand, the rate of profit distributed by the bank to its depositors, including the petitioner, has fallen sharply. It is alleged that the bank is diverting its profits and not "sharing" these faithfully with its depositors. This petition is filed for advancing personal right and for protecting public interest to enforce the promise of profit/loss sharing by the bank. Accordingly, the petition was admitted to regular hearing to consider the points raised.
Learned counsel for the bank has informed that the "profit/loss sharing system" under which the petitioner made his investment with the bank does not contain any contractual commitment for a fixed or other rate of profit to be paid by the bank on its monthly income scheme. Clause 4 of the application form for the monthly income scheme provides that the rate of profit to be declared on the investment is to be determined by the bank in its sole discretion which rate would be final and binding on the parties. It is admitted that the rate of profit declared by the bank on PLS term deposits for 5 years has fallen from 9.5 % per annum in January 2001 to 2.5 % in June 2004.
Learned counsel for the bank has further informed that profit rates on PLS deposit accounts are declared by the bank with the prior approval of the State Bank of Pakistan ("SBP") in terms of its BCD Circular 34 dated 26.11.1948 ("Circular 34"). This circular prescribes proforma for data and ratio calculations based on the financial accounts of the bank. Profit rates are derived from the said calculations which are proposed half yearly by the bank to the SBP. Broadly speaking, the important variables in the ratio calculation done to derive profit rates of the bank are the "non interest income" of the bank and its "administrative cost". The latter has to be apportioned to the bank's non interest income operations. To satisfy the Court about the transparency and propriety of the accounts and profit rate calculations of the bank, its learned counsel produced the bank's financial statements for the year 2000 to 2004 to show that the bank derives income from different sources and the same is then allocated to relevant fund items after deduction of proportionate administrative costs.
From the half yearly accounts of the bank for the period ending 31.12.2003 its learned counsel has tried to show that allocation of the bank's non interest income towards different heads is done strictly according to the SBP directives in Circular 34. This claim is said to be reinforced by the fact that the financial books of the bank are audited by specialist auditors and such audited accounts form the data base for deriving the PLS profit rates declared by the bank after scrutiny and approval of the SBP. He argued that in the light of documents presented on record, the contention by the petitioner that the income on his investment with the bank has been diminished unfairly is contrary to the record and the applicable law. Furthermore, he asserts that the grievance of the petitioner, if any, has ceased to survive and the question raised in the petitioner is academic because during the pendency of the petition, the petitioner has withdrawn his investment from the bank.
In rebuttal the learned counsel for the petitioner has reiterated his basic point that it is contrary to reason that rising profits of the bank should be reflected in declining profits rates on its PLS accounts. He also submitted that half yearly administrative costs of the bank amounting to
Rs. 4.103 billion shown in its financial statement for the six months period ending 31.12.2003 are excessive. These are incurred at the expense of the depositors and must be checked. He has sought careful scrutiny of the record submitted but has not raised any specific objection to the bank's financial statements and PLS profit rate calculations under BCD Circular 34.
Rs. 6,242.0 million in the year 2004. More specifically, net markup/interest income of the bank has increased during the same period from Rs.8,778/- million to Rs. 14,387/- million. Although these figures do not specify the exact amount of markup/non interest income of the bank, however, this head should also possess the rising trend in earnings that is characteristic of the other sources of the bank's income. On the other hand, "profit distributed on PLS deposits and other accounts" of the bank has diminished from Rs.4,269/- million in 2000 to Rs.1,963/- million in 2004 which is noted in the financial statement under the description of "markup/return/interest payable in local currency". There is a sharp decline in markup/return/
interest payments by the bank during the period under consideration which reflects a conflicting trend between profits earned against profit distributed.
In the foregoing context it is noted at the outset that the financial statements of the bank of not provide information that is specific and relevant for purposes of Circular 34 criteria and calculations. The ambiguity of representation in the financial statements, for example the clubbing of markup and interest income non disclosure of administrative costs as a specific head and so forth is therefore, misleading and invites careful scrutiny.
There is another matter that also invites scrutiny. It emanates from the report by the financial controller of the bank which declares that the lowering of the profit rates distributed to the depositors of the bank is, inter alia, on account of the lowering of treasury bill rates, inter bank rates, lending rates and monetary policy enforced by the SBP. This revelation undermines the bank's stand that Circular 34 is the sole criterion for profit rate determination on its deposit accounts. The analysis requisite for examining this plea as well as the bank's financial statement is, however, an enterprise that requires detailed information and expertise, neither of which is possessed by the Court; but more importantly, under the law such an exercise is both the function and duty of the SBP. Therefore the Court is not inclined to itself explore matters that fall within the domain of an expert statutory institution.
Notwithstanding the foregoing, it remains the duty of the Court to ensure that the legal criteria and procedure for the declaration of rates of profit by the bank on its PLS deposits are fully met. This means that the requirements of Circular 34 dealing specifically with the subject of PLS profit rates are fully complied. The SBP, as the author of Circular 34 and its governing statutory authority, plays a regulatory role to ensure compliance. In doing so, it must ensure that disclosures made in the financial statements by the bank, and indeed all banks/DFIs holding public deposits under PLS system, should clearly state the information that is required for the purpose of deriving the Circular 34 ratios and calculations. Moreover, Circular 34 imposes a duty on bank/DFIs to "ensure that their investments in non-interest bearing assets are substantially higher than the deposits". Attention to these priorities should also be established in assessing the degree of compliance by the bank. Finally, the report by the financial controller of the bank reveals considerations for PLS profit rate fixation that are outside the contemplation of the criteria enumerated in Circular 34. This is matter that requires probe by the SBP.
Having said so, the Court is not persuaded to adopt the suggestions by the learned counsel for the parties to undertake an inquiry into propriety of the profit rate calculations or of the financial statements of the bank. As already observed, a consideration of the said material requires specialized expertise which is duly possessed by the SBP. For the purpose of safeguarding investor's rights, the matter is therefore referred to the SBP to ensure that the provisions and objectives of its BCD Circular 34 are duly met. This includes the maximization of the non-interest income from the deposits made by banks/DFIs as well as a strict check on the costs allocated to the non-interest income calculation.
Resultantly, this petition is disposed of with the observations made above and with no order as to costs.
(Anwar Saeed Sh.) Petition disposed of.
PLJ 2007 Lahore 194 (DB)
Present: Muhammad Saeed Akhtar & Syed Sakhi Hussain Bukhari, JJ.
Sh. RIAZ AHMAD--Appellant
versus
Mst. AKHTAR SULTANA (WIDOW)--Respondent
R.F.A. No. 329 of 1995, heard on 4.5.2006.
(i) Specific Relief Act, 1877 (I of 1877)—
----S. 12--Civil Procedure Code (V of 1908), S. 96, O.XLI, R. 1, Suit for specific performance of contract--Dismissed--Appeal against--Equitability--Relief deed of agreement to sell--Interpolation dishonestly and fraudulently--Appellant executed an agreement to sell which was also admitted by the respondent--There was, however, tampered with dishonestly and fraudulently by making interpolation therein--Non-compliance of interim order passed by trial Court and interpolation in the agreement proved that the Appellant/Plaintiff did not approach to Court with clean hands--Held: Specific performance is essentially equitable in character and no indulgence can be shown to a person who acted unfairly--Appellant had failed to produce any worthwhile evidence in support of his case--No convincing and confidence inspiring statements--No illegality or infirmity in the impugned judgment--Appeal dismissed.
[P. 197] A & B
Mr. Jhangir A. Jhoja, Advocate for Appellant.
Syed Najam-ul-Hassan Kazmi, Advocate for Respondent.
Date of hearing: 4.5.2006.
Judgment
Syed Sakhi Hussain Bukhari, J.--Sheikh Riaz Ahmad has filed this appeal against the judgment and decree dated 10.9.1995 passed by learned Civil Judge, Lahore whereby suit for specific performance of contract brought by him was dismissed.
Relevant facts for the disposal of this appeal are that the appellant filed suit for specific performance of contract against the respondent (Mst. Akhtar Sultana) and stated that on 16.11.1990 the respondent/defendant agreed to sell suit property (Bungalow No. 145, Main Ferozepur Road, Lahore) in his favour for a consideration of Rs. 3,70,00,000/- and received Rs. 1,00,000/- in advance. The parties agreed that sale-deed shall be executed later on. He asked the defendant/respondent to receive balance amount and execute registered sale-deed in his favour, but she refused to perform her part of the contract, therefore, he was constrained to file suit. The respondent/defendant mentioned in written statement that the plaintiff is not entitled to the equitable relief of specific performance of contract, because he has tampered with the agreement by making interpolations therein dishonestly and fraudulently. She further mentioned that plaintiff has been unwilling and unable to perform his part of the contract, hence he is not entitled to decree prayed for in the suit and that he was unable to arrange for the sale price despite direction of the Court made vide order dated 30.3.1991. The defendant stated that plaintiff had made interpolations in the agreement to sell by adding last line which is unauthorized and constitutes forgery. She never refused to perform her part of the contract. The plaintiff has never been ready and willing to perform his part of the contract by paying the balance price of Rs.3 crores and 69 Lacs. On the pleadings of the parties issues were framed:--
"Whether the plaintiff failed to perform his part of the contract, If so, its effect ? OPD.
Whether the plaintiff is ready and willing to perform his part of the contract ? OPP.
Whether the plaintiff has made forgery in the agreement to sell dated 16.11.1990, if so, when how and with what effect ? OPD.
Whether the plaintiff is entitled to get decree for possession of the suit property through specific performance of agreement to sell, if so, in what terms ? OPP.
Relief.
The parties adduced evidence in support of their respective claims and after hearing the parties, learned trial Court decided all the issues against the appellant and dismissed the suit brought by him. Hence this appeal.
We have heard the arguments and perused the record.
As mentioned above plaintiff/appellant had filed suit for specific performance of contract against the respondent on the basis of agreement/receipt dated 16.11.1990 (Ex.P-1). The case of the appellant is that respondent agreed to sell suit property in his favour for a consideration of Rs. 3,70,00,000/- and received Rs. 1,00,000/- in advance on 16.11.1990. However the case of respondent is that she had agreed to sell the suit property in favour of appellant and she was ready to perform her part of contract but plaintiff/appellant was not in a position to pay balance amount (Rs. 3,69,00,000/-) therefore he was not interested to get transferred suit property in his favour. Also that plaintiff made interpolations in the receipt/agreement dated 16.11.1990. Her case is that last line has been added in Ex.P-1 through forgery. The plaintiff examined Malik Nazir Ahmed as PW-1. He stated that defendant agreed to sell suit property in favour of plaintiff for a consideration of Rs. 3,70,00,000/- She agreed to deliver possession after vacation of the shops. The witness stated that he did not know if receipt (Ex. P-1) has been changed. During cross-examination he stated that he did not know if servant of defendant had obtained photocopy of Ex P-1 for the defendant. The plaintiff did not give Rs. 3,69,00,000/- to defendant for getting the sale-deed registered in his favour. PW-2 Sheikh Muhammad Sarwar also made similar statement. The plaintiff appeared as PW-3 in support of his case. During cross-examination he denied that in Ex.P-1 he added the last line with malafide, without permission and knowledge of defendant. He never offered cash to defendant because she had not delivered her vacant possession of the suit property. The defendant examined DW-1, Umer Farooq DW-2, Muhammad Manzoor and she herself appeared as DW-3 in support of her case.
As stated above the case of plaintiff is that defendant/respondent agreed to sell suit property in his favour for a consideration of
Rs. 3,70,00,000/- vide receipt/agreement dated 16.11.1990. The respondent too admits that she had agreed to sell the suit property in favour of appellant. However the case of respondent is that plaintiff has added last line in the Ex.P-1 with malafide and through forgery. The impugned judgment shows that learned trial Court observed that last line in Ex. P-1 was added later on. It is in evidence that plaintiff never tendered balance sale price (Rs. 3,69,00,000/-) to defendant/respondent for getting the sale-deed registered in his favour. The interim order dated 30.3.90 passed by learned trial Court shows that learned trial Court granted stay order subject to deposit of Rs. 3,69,00,000/- within seven days but appellant failed to deposit the same and in order dated 27.7.1991 learned trial Court observed that:
"The interim injunction was granted subject to the condition that plaintiff would deposit Rs. 3,69,00,000/- within seven days but he has not deposited this amount, therefore, ad-interim injunction granted on 30.3.1991 will not operate against the petitioner/ defendant.
As mentioned above, learned trial Court observed that plaintiff had made interpolations in the agreement. So he has not approached the Court with clean hands. Learned trial Court decided Issue No. 3 after appraised of entire material available on record. Paras Nos. 13 and 14 of the judgment dated 10.9.1995 read as under:--
(i) Condition No. 2 of the receipt reveals that it was executed with the consent of the parties. Then comes the disputed line. Virtually the said condition that it was entered into with mutual consent usually comes as a last condition.
(ii) The disputed line which has been made a part of the Condition No. 2 has no relevancy with it.
(iii) The disputed line is with a different ink and at a different time and it can even be seen with a naked eye.
(iv) It is with a different pen.
(v) If it is seen one could adjudge that the space covered by any of the three lines is more than the space covered by the Condition No. 2 and the word `Alaba'.
It is pertinent to note that Ex.P-1 shows that parties agreed to execute regular agreement later on but the same was never executed. As stated above plaintiff has not approached the Court with clean hands. The interpolation appears to have been made with malafide as according to learned counsel for the respondent the shops are in possession of tenants and it was not possible for the respondent to eject them in short period. So appellant intended to linger on the matter on this pretext because he had no money to pay to the respondent as sale price. Since the relief of specific performance is essentially equitable in character and no indulgence can as such be shown to a person who has acted unfairly, the prayed for relief cannot be allowed to the appellant in the circumstances of the present case. Reliance can be placed on the case of Rab Nawaz and 13 other Vs. Mustaqeem Khan and 14 others (1999 SCMR 1362). Even otherwise appellant has failed to produce any worthwhile evidence in support of his case. The statements of DWs are convincing and confidence inspiring. As such we find that learned trial Court has rightly decided the issues in favour of respondent and dismissed the suit brought by appellant. So the findings recorded by learned trial Court on all the issues are affirmed. There is no illegality or infirmity in the impugned judgment so as to warrant interference by this Court.
(Malik Sharif Ahmed) Appeal dismissed.
PLJ 2007 Lahore 198
Present: Mian Saqib Nisar, J.
Mst. SHAISTA--Petitioner
versus
SH. LIAQUAT ALI SATHI and 2 others--Respondents
W.P. No. 18028 of 2005, decided on 2.11.2005.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Dissolution of marriage on the basis of "Khula"--Return of dower--The wife who yet has not received the dower from the husband has right to recover it while seeking Khula--Question of--A wife can seek the dissolution of marriage only through the decree of the Court and on the payment of such consideration fixed by the Court, which she has to pay to the husband in the form of the return of the benefits attained by her under the marriage--In the situation, when she has not received the prompt dower, whereas the deferred dower has not become due, and there is nothing which could be restored to the husband as the consideration of Khula, it is the relinquishment by her, of her right to receive the dower, which shall serve as the consideration for obtaining Khula. [P. 200] A & B
Words & Phrases--
----Expression/word "restore" shall be interpreted to mean the "relinquishment", which in the situation shall be a synonymous term.
[P. 200] C
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 10(4)--Provisions of S. 10(4) are confiscatory in nature--Contention of--Held: Provisions are not in the nature of confiscatory, rather are in accordance with the Islamic principles which require the wife to return or the relinquishment of the benefits received by the wife from the husband under the marriage, while asking the dissolution on the basis of Khula.
[Pp. 200 & 201] D
Muhammadan Law--
----True spirit of law is embedded in injunction of Islam, which require the return or relinquishment of benefits received by wife from husband under marriage. [P. 201] E
Mr. Jehangir A. Jhoja, Advocate for Petitioner.
Date of hearing: 2.11.2005.
Order
The parties to the litigation were married. The petitioner brought a composite suit against Respondent No. 1 claiming in the same the divorce, the maintenance allowance, the recovery of the dowry articles as also the dower. In terms of the proviso to sub-section (4) of Section 10 of the Family Courts Act, 1964, her suit for the dissolution of marriage was allowed by the learned Judge Family Court on the basis of Khula, but subject to the extinguishment of her right to recover the dower from the respondent to the extent of 50-Tolas gold ornaments valuing Rs. 3,50,000/-, as is mentioned in Column Nos. 13 & 14 of the Nikahnama. The petitioner is not aggrieved of the dissolution of her marriage, rather her grievance is only confined with regard to the extinction of her right to recover the dower.
It is argued by the learned counsel for the petitioner, that according to the aforementioned provisions, if the marriage is being dissolved on the basis of Khula, a wife is required to return/restore the dower which she has received from the husband, but the law does not debar a wife who yet has not received the dower, from its recovery and there is no law, which empowers the Court to preclude a wife from exercising her such right of recovery. It is further submitted that the said provisions are confiscatory in nature and, therefore, should be construed and applied strictly; furthermore, that where the law requires an act to be done in a particular manner, it has to be done in accordance therewith and not otherwise.
I have heard the learned counsel for the petitioner and in order to appreciate the above, find it expedient to reproduce the relevant provisions, which reads as follows:-
"If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix date for (the recording of the) evidence;
"Provided that notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage".
The legislature, while promulgating the aforesaid law and in order to facilitate a wife to obtain divorce on the basis of Khula, has kept in view the injunctions of Islam and has provided an expeditious and summary remedy to seek the dissolution straightaway from her husband without going into the hassle of lengthy trial of the case, but on the return of the dower already received by her. However, there may be a possibility that Nikah between the wedding parties took place sometime earlier and the Rukhsati is postponed and to the time of Nikah, neither the prompt dower is demanded, nor has been paid. And before the Rukhsati, the wife seeks the dissolution of marriage on the basis of "Khula". In this situation, when she has not received the prompt dower, whereas the deferred dower has not become due, and there is nothing which could be resorted to the husband as the consideration of "Khula", it is the "relinquishment" by her, of her right to receive the dower, which shall serve as the consideration for obtaining "Khula". According to the real intent of the above proviso in such an eventuality, the expression/word "restore" shall be interpreted to mean the "relinquishment", which in the situation shall be a synonymous term. Because, it shall be ludicrous to conceive and comprehend that though in a situation where the wife has already received the dower, she is bound to restore the same while seeking the Khula, but where it is yet payable to her, her right to recover the same remains intact, and cannot be extinguished by the Court, so as to serve as the consideration of dissolution in the basis of Khula, the Islamic right, founded on which a wife is asking for the termination of the marriage.
(Saeed Anwar) Petition dismissed.
PLJ 2007 Lahore 201 (DB)
Present: Mian Hamid Farooq & Umar Ata Bandial, JJ.
SHAHID MEHMOOD--Appellant
versus
BANK AL-FALAH LTD. through its Manager Sheikhupura--Respondent
RFA No. 213 of 2006, heard on 6.7.2006.
(i) Financial Institutions (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)—
----Ss. 9, 10(11) & 21--Law Reforms Ordinance (XII of 1972), S. 10--Suit for declaration, permanent and mandatory injunction and seeking superdari of vehicle was filed--Application for leave to defend the suit was dismissed--Both application dismissed and suit disposed of being not "proceedable"--Approach of Judge Banking Court in simultaneously dismissing applications without assigning any reason was not recognized under the law and was complete departure from the procedure--Appellant should have been granted opportunity to prove the case either through documentary or oral evidence or both--If financial institution filed a suit against a customer and application for leave to defend the suit was dismissed, then Banking Court might pass a decree in favour of the bank as the suit was based on negotiable instruments--In the present case, suit was not based on negotiable instruments, it could not be straightway decreed or dismissed, without affording an opportunity to the party to produce evidence in support of his claim. [P. 203] A & B
(ii) Financial Institutions (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)—
----Ss. 9, 10 & 21--Leave to appear and defend the suit--Rejection of--When respondent/bank had failed to obtain leave to defend the suit, the Bank Court was legally obliged to decide the suit of appellant after calling upon him to produce evidence in respect thereof--If a defendant does not appear before the Banking Court or he is not granted leave, Banking Court is not absolved of its duties to apply its judicial minds to facts and circumstances of each case. [P. 203] C
(iii) General Clauses Act, 1897 (XI of 1897)—
----S. 24 (a)--Financial Institutions (Recovery of Finance) Ordinance, 2001, S. 21--"Judicial Order"--Banking Court dismissed the application for leave to defend without advancing any reasons, as to how and on what grounds after dismissal of application for leave to defend, suit is not proceedable--Neither suit was dismissed nor plaint was rejected and it was disposed of without any consequences--Order was sketchy, slip shot, devoid of reasons and not at all a speaking order--Such like order is violative of provision of General Clauses Act, 1897 as its S. 24(A) enjoins that it should contain the reasons--Appeal allowed. [P. 204] D & E
Mian Sohail Ahmad, Advocate for Appellant.
Ch. Abdul Rauf, Advocate for Respondent.
Date of hearing: 6.7.2006.
Judgment
Mian Hamid Farooq, J.--The appellant, through the appeal in hand, has called in question order dated 14.4.2006, whereby the learned Judge Banking Court, after dismissing respondent bank's application for leave to defend the suit, also dismissed appellant's suit for declaration and permanent injunction.
Precisely stated facts of the case, leading to the present appeal, are that the appellant filed the suit for declaration, permanent and mandatory injunction, alongwith the application for the grant of temporary injunction and seeking "superdari" of vehicle, reportedly repossessed by the respondent bank before the Judge Banking Court. The Bank filed the application seeking leave to defend the suit. The learned Judge Banking Court, after hearing the parties, dismissed appellant's application for temporary injunction and "superdari" as having become infructuous; Bank's application for leave to defend the suit was also dismissed and resultantly appellant's suit was disposed of being not "proceedable", vide composite impugned order dated 14.4.2006, hence the present appeal.
Learned counsel for the appellant contends that the learned Banking Court, without adopting the procedure prescribed under Financial Institutions (Recovery of Finances) Ordinance, 2001 decided the suit, which course of action is not recognized under the law. He has added that dismissal of respondent bank's application for leave to defend the suit in fact strengthened the case of the appellant and proved that the respondent bank had no plausible defence, therefore, appellant's suit deserved to be decreed. The learned counsel for the respondent bank has however, supported the impugned order.
We have heard the learned counsel and examined the available record. The respondent Bank, in response to the summons issued by the Banking Court filed the application, under Section 10 of the aforenoted Ordinance, seeking leave to defend the suit, however, the learned Judge Banking Court not only dismissed respondent's application to give reasons as to how respondent's application for leave to defend the suit, but also disposed of appellant's suit on the ground that the same is not "proceedable". We are of the view that the approach of the learned Judge Banking Court in simultaneously dismissing application for leave to defend the suit and appellant's suit, that too without assigning any reason, is not recognized under the law and is a complete departure from the procedure prescribed under the law. The learned Banking Court was obliged to give reasons as to how respondent's application for leave to defend the suit does not disclose substantial questions of law and facts in respect of which evidence needs to be recorded. Be that as it may, if the learned Court decided to reject respondent bank's application, then the appellant should have been granted opportunity to prove his case either through documentary or oral evidence or both . If a financial institution files a suit against a customer and latter's application for leave to defend the suit is dismissed, then a Banking Court, in exercise of powers under Section 10(11) of the Ordinance No. XLVI of 2001, may pass a decree in favour of the bank, as the suit is based on negotiable instruments. However, in this case as appellant's suit was not based on negotiable instruments, therefore, after the dismissal of Bank's leave application, the suit could not have straightaway been decreed or dismissed without affording an opportunity to the appellant to produce evidence in support of his claim. To our mind, even after rejecting respondent's leave application in the suit for declaration and permanent injunction, decree could not have been passed straightaway as the claim of the declaration cannot be equated with the suit founded on negotiable instruments. When the respondent bank failed to obtain leave to defend the suit, the learned Judge Banking Court was legally obliged to decide appellant's suit after calling upon him to produce evidence in respect of his claim. In such like cases, even if a defendant does not appear before the learned Judge Banking Court or he is not granted leave, the Banking Court is not absolved of its duties to apply its judicial mind to the facts and circumstances of each case. If any case law is needed, judgement reported as Messrs Qureshi Salt & Spices Industries Khushab and another Versus Muslim Commercial Bank Limited, Karachi through President and 3 others (1999 S.C.M.R. 2353) can be referred.
There is another aspect of the case. The impugned order is devoid of reasons and lack of all the characteristics of a "judicial order". The learned Judge Banking Court without advancing any reasons, straightaway dismissed respondent's application for leave to defend the suit. Similarly no reasons are forthcoming from the impugned order itself, as to how and on what grounds after the dismissal of respondent's application for leave to defend the suit, appellant's suit is not "proceedable". The impugned order is silent on all these crucial aspects of the case. More importantly, neither the suit of the appellant was dismissed nor plaint was rejected and strangely enough the suit was disposed of without any consequences. The impugned order, undeniably is sketchy, slip shod, devoid of reasons and not at all a speaking order. The tenor of the impugned order shows that the learned Judge Banking Court has not seriously taken up the matter and it apparently shows lack of application of judicial mind. Even it has been enjoined upon an executive authority, as per Section 24 (A) of General Clauses Act, 1897 (inserted by General Clauses (Amendment Act, 1997, Act No. XI of 1997)) to give reasons for making the order. Furthermore such type of perfunctory orders passed by the Courts are not approved by the Hon'ble Supreme Court of Pakistan. Reliance can be made to Gouranga Mohan Sindar Vs. The Controller Import and Export and 2 others (PLD 1970 SC 158) and Mollah Ejahar Ali Vs. Government of East Pakistan and others (PLD 1970 S.C. 173). The impugned order deserves to be set aside on this ground.
The respondent Bank has neither filed the appeal nor cross objections against the impugned order and the Bank seems to be satisfied, therefore, the order rejecting respondent's bank leave application has attained finality. In view whereof, we are not inclined to interfere in the impugned order to the extent of dismissal of bank's application.
In the above perspective, we have examined the impugned order and find that the same is not sustainable in law, inasmuch as the same is contrary to the principles of law laid down by the Hon'ble Supreme Court of Pakistan, thus we are persuaded to set aside the same.
In view of the above, the present appeal is allowed and the impugned order dated 14.4.2006, only to the extent of dismissal of appellant's suit, is set aside. Resultantly, appellant's suit for declaration etc. shall be deemed to be pending before the learned Judge Banking Court, who shall decide it after recording evidence and of course in accordance with law.
No order as to costs.
(Zulfiqar Ahmed Sheikh) Appeal allowed.
PLJ 2007 Lahore 204
Present: Sayed Zahid Hussain, J.
Mrs. SURRAYA KHANUM--Petitioner
versus
MEDICAL SUPERINTENDENT, PIC, LAHORE and 3 others--Respondents
W.P. No. 2395 of 2006, heard on 18.4.2006.
Constitution of Pakistan, 1973—
----Arts. 4, 25, 26, 27 and 37(c)--Constitutional petition--A staff nurse of PIC Lahore applied for admission in the course of Nursing Management and Teaching Administration--She meets the criteria for selection laid down by the Government of Punjab, Health Department through the prospectus for the Session 2006-2007--Her application was not forwarded for considering on merit as she had not completed 5 years stay in PIC which is the requirement of the policy decision of PIC--There should not be any curb or impediment on one's objective and ambition of acquiring higher and better qualification in the field of relevant profession subject of course to lawful limitations--Different policies/criteria in hospitals/institutions in one and the same province, under the administrative control of the Health Department negate the rationale and objective behind the provisions of Arts. 4 and 25 of the Constitution--Provisions of Arts. 4, 25, 26 and 27 of the Constitution are in line and consistent with the "equality of all" as enshrined by Islam--Art. 37(c) of the Constitution may also be referred which enjoins upon the state to make technical and professional education generally available and higher education equally accessible to all on the basis of merit--Petitioner accepted. [Pp. 206, 207 & 208] A, B & C
Mr. Pervaiz Inayat Malik, Advocate for Petitioner.
Mr. Aamir Rehman, Additional Advocate General, Punjab and Mr. Mumtaz Ahmed, Advocate for Respondents.
Date of hearing: 18.4.2006.
Judgment
The petitioner, a Staff Nurse of Punjab Institute of Cardiology (shortly mentioned as PIC) Lahore had with a view to acquire higher and better qualification applied for admission in the course of Nursing Management and Teaching Administration alongwith other candidates. Since her application was not being forwarded and considering it a refusal on the part of Respondent No. 1, she has filed this petition seeking a direction to Respondent No. 1 to forward her application to Respondent No. 2 for consideration on merits.
In the parawise comments submitted by Respondent No. 1, the justification of non-recommending her application as brought forth is that "The petitioner joined PIC on 04.09.2002 and her service period at the time of forwarding application to Respondent No. 2 was three years, three months and eleven days only whereas 5 years length of services at PIC is required. Therefore, her application was not forwarded to the Respondent No. 2 in the interest of nursing care of critical patients and hear patient of the Institute". Such criteria was laid down by PIC Lahore through notification dated 23.10.2004.
The central point sought to be highlighted by the learned counsel for the petitioner is that since conditions of service of the petitioner were governed by the Punjab Health Department Nursing Services Rules 1986, any such policy decision taken by Respondent No. 1 being in conflict with the said Rules can neither override the Rules nor can be invoked to her prejudice; and that she even meets the criteria for selection laid down by the Government of Punjab, Health Department through the prospectus for the Section 2006-07.
On the other hand, the learned Law Officer and the learned counsel for Respondent No. 1 contend that the policy decision notified on 23.10.2004 laying down the criteria for selection of candidates was within its ambit of power and since the petitioner had not completed 5 years stay in PIC she could not be recommended for that reason. It has been pointed out by the learned Law Officer that the petitioner was fully aware of such criteria applicable to Nursing Staff of PIC Lahore and realizing her ineligibility the petitioner had made a move for her posting in Lady Aitchison Hospital, Lahore which, however, could not materialize due to imposition of ban on transfers and postings.
Needless to emphasise that in the democratic set up and written Constitution the people of this country are governed, ideal would be the situation if uniform policy would have been inforce, equally applicable to all similarly situated. Different policies/criteria in hospitals/institutions, in one and the same Province, under the administrative control of the Health Department negate the rational and objective behind the provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. The concept of equality before law and that all are equal before law has its genesis in Islamic fundamental principles elaborately propounded by the Holly Prophet Muhammad (peace be upon him) in the Last Sermon. Provisions of Articles 4, 25, 26, and 27 of the Constitution are also in line and consistent with the "equality of all" as enshrined by Islam. Not only that the Principles of Policy laid down in the Constitution also enjoin upon the State to observe the same, clause (c) of Article 37 may for that purpose be referred which reads as follows:
"Article 37. Promotion of social justice and eradication of social evils.--The State shall.
(a)
(b)
(c) make technical and professional eduction generally available and higher education equally accessible to all on the basis of merit;"
This is being denied to the petitioner.
Thus, without dilating much upon the issue as to the validity or otherwise of policy of the PIC i.e. five years stay in PIC Lahore for nomination of nursing staff, I consider it just and proper to direct that the order of Government of Punjab, Health Department, dated 31.1.2006 transferring the petitioner from PIC Lahore to Lady Aitchison Hospital, Lahore should be given effect to forthwith so that the petitioner may pursue her study and training with Respondent No. 2. Since there is a short time left for commencement of the training course, the learned Additional Advocate General, Punjab will take up the matter with the concerned quarters in the Health Department for necessary steps in the matter.
The petition is accepted to the extent mentioned above. No order as to costs.
(Anwar Saeed) Petition accepted.
PLJ 2007 Lahore 208
Present: Muhammad Muzammal Khan, J.
NOOR HUSSAIN--Petitioner
versus
MUTALLI KHAN--Respondent
C.R. No. 817 of 2006, decided on 27.4.2006.
Limitation Act, 1908 (IX of 1908)—
----S. 5--Civil Procedure Code, (V of 1908) S. 96--Condonation of delay--Mentioning of wrong valuation in decree sheet--Legality--Effect--Appeal was filed on the basis of decree sheet in District Court instead of High Court--Delay condoned--An appeal lies against the decree which in the case in hand, contained valuation for the purposes of jurisdiction as Rs. 24,000/- keeping in view such valuation which though was incorrectly mentioned on the decree sheet, out of inadvertence yet misled the respondent and his counsel to file the appeal before District Judge instead of High Court. [P. 209] A
Act of Court--
----No litigant should suffer of act/omission of the Court and he having no participation to incorrect mentioning of valuation on the decree sheet, could not be punished by throwing its appeal as barred by limitation.
[P. 210] B
Hafiz Khalil Ahmad, Advocate for Petitioner.
Date of hearing: 27.4.2006.
Order
Instant civil revision assailed the judgment/decrees dated 14.3.2006 passed by the learned Additional District Judge, Mandi Baha-ud-Din whereby delay in filing appeal by the respondent was condoned.
Succinctly, relevant facts are that the respondent filed suit for possession through pre-emption against the sale of land measuring 93 kanals 10 marlas claiming himself to be a "Shafi Sharik" and "Shafi Khalit". he respondent had asserted, due performance of all "Talbs" envisaged by Section 13 of the Punjab Pre-emption Act 1991 on gaining of knowledge of sale. Respondent's suit was contested by the petitioners being vendees of the suit land which was ultimately dismissed by the trial Court vide judgment/decree dated 13.1.1999.
Respondent being aggrieved of the decision of his suit, filed an appeal before the learned District Judge Mandi Baha-ud-Din on 11.2.1999, which was initially entertained but was returned on 28.6.2000 on the ground that valuation of the suit for the purposes of jurisdiction was Rs. 2,16,347/- being beyond pecuniary jurisdiction of the District Court respondent after getting certified copy of the application moved by him for amendment of the plaint and that of memorandum of appeal filed RFA before this Court on 4.7.2000. Respondent was supplied certified copies of his application and memorandum of appeal on 1.7.2000 which was Saturday and the next day being Sunday he engaged his counsel for filing RFA on 3.7.2000. Respondent alongwith his appeal filed an application under Section 5 read with Section 14 of the Limitation Act, 1908 and prayed condonation of delay by narrating the entire background of the case. The RFA filed by the petitioner before this Court was ultimately remitted to the learned District Judge, Mandi Baha-ud-Din for decision on merits on account of enhancement of pecuniary jurisdiction of the District Court. Respondent's appeal was entrusted to the learned Additional District Judge, who vide his order dated 14.3.2006 accepted the application of the respondent and condoned the delay in filing the appeal subject to payment of costs of Rs. 1,000/-. Petitioners have now filed instant revision petition for ad-judgment of order of the appellate Court, condoning the delay in filing appeal by the respondent.
I have heard the learned counsel for the petitioners have examined the record, appended herewith. Besides the lawful reasons which weighed with the learned Additional District Judge, in condoning the delay in filling the appeal, it is settled law that an appeal lies against the decree which in the case in hand, contained valuation for the purposes of jurisdiction as Rs. 24000/-. Keeping in view this valuation which though was incorrectly mentioned on the decree sheet, out of inadvertence yet misled the respondent and his counsel to file the appeal before the learned District Judge. Respondent has no doubt mentioned valuation of the suit for the purposes of jurisdiction in the chart drawn on the memorandum of appeal before the learned District Judge, as Rs. 2,16,347/10 but it had no relevance because the decree appealed against carried a valuation of Rs. 24000/-. Respondent had not only filed his appeal before the learned District Judge within in 30 days of limitation as compared to the limitation of 90 days provided for filing of RFA before this Court but had also affixed a Court fee of Rs. 15,000/- on the memorandum of appeal. Staff of the learned District Judge headed by "Clerk of Court", scrutinized the appeal filed by the respondent and no objection regarding its maintainability there, was raised. The learned District Judge himself after hearing preliminary agreements, issued notice to the respondent in the appeal and kept the same pending with him from 11.2.1999 to 28.6.2000 when the same was ordered to be returned. Respondent had diligently done every thing within the limitation prescribed by law and no mala fide could be attributed to him in filing appeal before the learned District Judge. As a matter of fact he or his counsel was genuinely mislead by valuation of the suit for the purposes of jurisdiction mentioned on the face of the decree sheet as Rs. 24,000/- and thereafter by indolent act of staff and that of the learned District Judge, delay under consideration occasioned. Had some objection been raised at the time of entertaining of appeal ?. This delay could have been availed. There was no impediment in the way of the respondent to approach this Court instantly because at the time of filing of appeal before the District Courts he had to his credit 61 days for filing the RFA. It is settled law that no litigant should suffer for act/omission of the Court and he having no participation to incorrect mentioning of valuation on the decree sheet, could not be punished by throwing his appeal as barred by limitation.
Looking from another angle, the respondent initially filed the appeal before the learned District Judge. Mandi Baha-ud-Din within 30 days which was ultimately returned on 28.6.2000 and on filing of RFA before this Court, the same was again remitted to the learned District Judge on account of amendment in Section 18 of the Civil Courts Ordinance, 1962 and in this manner, adjudication of question of limitation was only an academic exercise. For all these reasons, I am not ready to contribute to the view that there was deliberate negligence on part of the respondent in filing the appeal before the learned District Judge and since over all conclusion drawn through impugned order is just/lawful, the same deserved no interference.
Besides the reasons noted above, scan of record and impugned order revealed that controversy regarding condonation of delay was correctly put to rest by the appellate Court, without committing any illegality/irregularity amenable to revisional jurisdiction of this Court. This petition, consequently, being devoid of any merit, is dismissed in limine.
(Waseem Iqbal Butt) Dismissed in limine.
PLJ 2007 Lahore 211
Present: Muhammad Akhtar Shabbir, J.
SHER MUHAMMAD--Petitioner
versus
MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 4 others--Respondents
W.P. No. 7323 of 2006, decided on 10.7.2006.
West Pakistan Land Revenue Rules, 1968—
----R. 17--Constitution of Pakistan 1973, Art. 199--Constitutional petition--Appointment of permanent Lambardar of the village--Assailed--Case remanded for decision afresh--Challenge to--Controversy of appointment shall be decided according to law after taking into consideration all the requirements of Rule 17 of the West Pakistan Land Revenue Rules, 1968--Writ would not lie against the judgment/order/decision passed by a special tribunal Court of competent jurisdiction unless it is perverse, void and coram nonjudice. [Pp. 212 & 213] A & C
Appointment of Lambardar--
----Appointment of a Lambardar of the village is discretion of the revenue functionaries, who appoint him after initiating a thorough proceedings--Their choice should not ordinarily be interfered within Constitutional jurisdiction unless there is a very serious irregularity injustice or perverseness. [P. 213] B
Constitution of Pakistan, 1973—
----Art. 199--Competent jurisdiction--Coram and non judice--Member Board of Revenue while passing the impugned order directed to initiate de novo proceedings calling fresh applications and select a genuine person in accordance with law and in this way he also secured the right of the petitioner to contest against the said vacancy--Petition dismissed.
[P. 213] D
PLD 1974 SC 139 and PLD 1976 SC 435, ref.
Ch. Nawab Ali Meo, Advocate for Petitioner.
Date of hearing: 10.7.2006.
Order
The petitioner through the instant writ petition has taken the exception to the order dated 16.05.2006 passed by Respondent No. 1 in ROR No. 1311/2003.
The facts giving rise to the filing of present writ petition are that after the death of Muhammad Ali son of Abdullah, permanent Lambardar of the village Hasna, Tehsil Chunian District Kasur, the District Officer (Revenue) Kasur on the recommendation of DDO (R) appointed one Sher Khan son of Wazir Khan as permanent Lambardar of the said village against the said vacant vacancy. One of the contestants Abdul Shakoor filed an appeal against the said order before the EDO (R), Kasur, which was dismissed vide his order dated 16.05.2004. The same was challenged through a revision petition by filling ROR No. 1311-2003 before Respondent No. 1, and the said respondent vide order dated 16.05.2006 while accepting the revision petition remanded the case to the District Officer (Revenue), Kasur for decision afresh, hence the instant writ petition.
The learned counsel for the petitioner contended that Respondent No. 1 without application of judicious and independent mind has upset the decisions of Respondents Nos. 2 and 3; further contended that the District Officer (Rev), Kasur after obtaining the reports about the character of the petitioner from the local police as well as recommendation received from the DDO (R) and Tehsildar concerned has rightly appointed the petitioner as lambardar of Mauza Hasna; further argued that impugned order has been passed without appreciating the evidence and record available before him. It is added that Respondent No. 5-Abdul Shakoor is not a suitable candidate to be appointed as Lambardar of the village as he is not resident of the village and is also involved in a criminal case.
I have heard the learned counsel for the petitioner and perused the record.
While appointing permanent Lambardar-Headman of the village the controversy of appointment shall be decided according to law after taking into consideration all the requirements of Rule 17 of the West Pakistan Land Revenue Rules, 1968 among other matters which to be read conjunctively. Those are as under:--
(i) The hereditary claims of the candidates;
(ii) The extent of property in the estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate;
(iii) services rendered to the Government by him or by his family;
(iv) his personal influence, character, ability and freedom from indebtedness;
(v) his ability to undergo training in civil defence in the case or head-men in Tehsil situated along the Border.
It is a settled principle of law that appointment of a Lambardar of the village is discretion of the revenue functionaries, who appoint him after initiating a through proceedings, therefore, their choice should not ordinarily be interfered with in constitutional jurisdiction unless there is a very serious irregularity, injustice or perverseness.
The other aspect of the case is that the writ would not lie against the judgment/order/decision passed by a special tribunal or Court of competent jurisdiction unless it is perverse, void and coram non judice as laid down in the cases of Muhammad Hussain Munir and others Vs. Sikandar and others (PLD 1974 S.C. 139), and Sub. Muhammad Asghar Vs. Mst. Safia Begum and another (PLD 1976 S.C. 435). Learned counsel for the petitioner when confronted has not been able to point out any illegality or jurisdictional defect in the impugned orders passed by the tribunals below without lawful authority and miserably failed to persuade the Court to interfere with the impugned orders in exercise of its constitutional jurisdiction.
So far as the argument of the learned counsel qua the ability and character of Respondent No. 5 Abdul Shakoor is concerned, it is disputed question of facts which cannot be gone into by this Court in exercise of its Constitutional jurisdiction as laid down in the cases of Benediet Sourza Vs. Karachi Building Control Authority and three others (1989 SCMR 918), Federation of Pakistan and two others Vs. Major (Retd) Muhammad Sabir Khan (PLD 1991 S.C. 476), and Muhammad Younas Khan Vs. Government of N.W.F.P through Secretary and others (1993 SCMR 618).
It is pertinent to mention here that the learned Member Board of Revenue Respondent No. 1 while passing the impugned order directed the District Officer Revenue Kasur to initiate de novo proceedings calling fresh applications, including these three contenders and select a genuine person in accordance with law and in this way he also secured the right of the petitioner to contest against the said vacancy and if he found better/suitable candidate he may be selected.
For the foregoing reasons this writ petition being devoid of force is dismissed in limine.
(Anwar Saeed Sheikh) Petition dismissed.
PLJ 2007 Lahore 213 (DB)
Present: Mian Hamid Farooq & Sh. Azmat Saeed, JJ.
Mst. MUNAWAR KHANUM--Appellant
versus
M/s. HABIB BANK Ltd. and 3 others--Respondents
E.F.A. No. 346 of 2006, decided on 28.6.2006.
Financial Institution (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)—
----Ss. 17 & 19(2)--Civil Procedure Code, (V of 1908), O.XXI, R. 66--Bank filed suit for recovery--Suit was decreed against respondents--Suit was converted into execution u/S. 17 of the Ordinance--Hypothecated goods may be auctioned for satisfaction decree--Validity--Held: It has been left to the discretion of Banking Court to execute a decree through any manner or mode prescribed under C.P.C. or any provision of law or any manner deem fit by it--A judgment debtor is in no way, in a position to suggest a decree holder to execute the decree in a particular manner.
[P. 215] A
Sheikh Aftab Umar, Advocate for Appellant.
Date of hearing: 28.6.2006.
Order
Mian Hamid Farooq, J.--Appellant/judgment Debtor No. 4, through the present appeal, under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, has called in question order dated 22.5.2006, whereby the learned Judge Banking Court declined the request of the appellant to sell hypothecated goods for satisfaction of the decree.
Respondent bank/Respondent No. 1 filed the suit for recovery of Rs. 10,08,380/-, against Respondents Nos. 2 to 4, wherein the appellant was impleaded as Defendant No. 4 in the capacity of mortgagor. The suit was decreed against Respondents Nos. 3 and 4, vide judgment and decree dated 7.2.2005, while a separate decree for an amount of Rs.10,08,380/- was passed against the appellant, on 7.12.2005, alongwith the costs of suit and costs of funds. Pursuant to the above, the suit was converted into execution petition, as provided under Section 17 of Ordinance XLVI of 2001. In response to notices under Order XXI Rule 66 CPC, issued by the learned Executing Court, the appellant filed the objection petition, under Section 19(7) of the Ordinance, with the prayer that hypothecated goods amounting to Rs. 3 Million may be auctioned for satisfaction of the decree, as the said goods were primary security. The learned Judge Banking Court, after finding that it is option of the decree holder to seek satisfaction of the decree through sale of mortgaged property or hypothecated goods or both simultaneously, dismissed appellant's objection petition, vide impugned order dated 22.5.2006, hence the present appeal.
Learned counsel for the appellant states that firstly the decree is to be satisfied from the sale of the hypothecated goods and thereafter if any amount is still recoverable then the mortgaged property can be sold. He adds that in fact the principal debtor hypothecated the goods.
We have heard the learned counsel and examined the available record. It is admitted that the appellant was sued in the capacity of the mortgagor, as she created mortgage over her property and that a decree was also passed against the appellant, which has attained finality. After passing of the decree, the appellant is equally one of the judgment debtors and thus cannot plead that she stood surety for the principal debtor. There is no cavil with the proposition that it is the discretion, option and privilege of a decree holder to seek the execution and satisfaction of the decree either through the sale of mortgaged property or hypothecated goods or through any other modes of execution provided under the law. Even the simultaneous execution of the decree through attachment and sale of the property and arrest and detention of a judgment debtor is permissible under the law and a decree can be executed against the person or property of judgment debtor or against both. Section 19(2) of Ordinance XVLI of 2001 provides that Banking Court shall execute the decree in accordance with the provisions of CPC or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree holder considers appropriate including recovery as arrears of land revenue. It flows from the above that it has been left to the discretion of the learned Banking Court to execute a decree through any manner or mode prescribed under CPC or any provision of law or any manner deem fit by it. A judgment debtor is, in no way, in a position to suggest a decree holder to execute the decree in a particular manner and according to his wishes, rather it is the discretion of the decree holder bank to get the decree executed, through any of the modes of execution provided under the law. In the instant case, the appellant, who is one of the judgment debtors cannot be allowed to plead that firstly the hypothecated goods be sold instead of the mortgaged property, more so when the stance of the respondent bank is that no list of hypothecated goods was provided to the decree holder.
In view of the above, we have examined the impugned order and find that the same does not suffer from illegality and, thus, we are not inclined to interfere in the impugned order, which is hereby maintained.
Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed in limine.
(Malik Sharif Ahmed) Appeal dismissed.
PLJ 2007 Lahore 215 (DB)
Present: Tariq Shamim & M. Bilal Khan, JJ.
SHEHZAD KARIM--Petitioner
versus
S.H.O. POLICE STATION, LOHARI GATE, LAHORE and 2 others--Respondents
W.P. No. 17887 of 2005, heard on 14.9.2006.
Constitution of Pakistan 1973—
----Art. 199--Criminal Procedure Code (V of 1898), S. 561-A--Pakistan Penal Code, (XLV of 1860), Ss. 123-A, 123-B, 147, 148 & 188--MPO, S. 16--Anti-Terrorism Act, 1997 S. 7--Quashing of FIR--Held: Controversy essentially pertains to disputed questions of fact which exercise cannot be undertaken while exercising Constitutional jurisdiction of High Court--It would be appropriate to refer to latest pronouncement by Supreme Court in the case Lal Shah Sadiq vs. Muhammad Ashiq and others wherein it has been observed that High Court in its Constitutional jurisdiction cannot resolve disputed questions of fact and that the ordinary course of trial before the Court should not be allowed to be deflected.
[Pp. 216 & 217] A & B
2006 SCMR 276.
Ch. Umer Hayat Sindhu, Advocate for Petitioner.
Mr. Faisal Qazi, Asstt. A.G. for Respondents.
Date of hearing: 14.9.2006.
Judgment
Tariq Shamim, J.--Through this petition, the petitioner seeks quashment of FIR No. 251 dated 29.10.2004 for offences under Sections 16 MPO, 123-A, 124-A, 147, 148, 188 PPC and Section 7 of the Anti-Terrorism Act registered at Police Station Lohari Gate, Lahore.
Brief facts of the case are that the petitioner alongwith 18 other persons was arrested by the complainant Javaid Iqbal S.I/SHO Police Station Lohari Gate for taking out a procession in violation of the ban imposed by the Government in the said respect.
The learned counsel for the petitioner contended that the FIR was totally false and frivolous and based on mala fide intention of the complainant; that the offence under Section 124-A was a non-cognizable offence and FIR in respect thereof could not be registered or investigated without prior permission of the Magistrate; that Section 7 of Anti-Terrorism Act 1997, which was subsequently added, does not attract to the facts of the case; that similarly Section 16 MPO was also not attracted to the case of the petitioner and lastly contended that there was no material against the petitioner as per the FIR regarding the aforesaid allegations.
On the other hand the learned Assistant Advocate General and the learned counsel appearing on behalf of Respondent No. 1/complainant argued that the petitioner alongwith others was arrested at the spot while participating in an illegal procession; that the offences mentioned in the FIR were fully attracted to the case of the petitioner who was nominated therein and had actively participated in the said occurrence; that after thorough investigation the petitioner was found to be fully involved in the crime mentioned in the FIR and that since the challan had been filed in the trial Court as such the writ petition was not maintainable.
We have heard the learned counsel for the parties and gone through the record. The petitioner is nominated in the FIR and serious allegations have been leveled against him and others in the FIR which have been denied by the petitioner, thus, the controversy essentially pertains to disputed questions of fact which exercise cannot be undertaken while exercising constitutional jurisdiction of this Court. It would be appropriate to refer to the latest pronouncement by the Hon'ble Supreme Court of Pakistan in the case of Col Shah Sadiq vs. Muhammad Ashiq and others (2006 SCMR 276) wherein it has been observed by the Hon'ble Apex Court that the High Court in its constitutional jurisdiction cannot resolve disputed questions of fact and that the ordinary course of trial before the Court should not be allowed to be deflected.
During the course of arguments it has transpired that the application of the petitioner filed under Section 265-K Cr.P.C. as well as under Section 23 of the Anti Terrorism Act seeking transfer of case to a regular Court are pending adjudication before the learned trial Court as such the prayer made by the petitioner for quashment of the FIR has become redundant.
For what has been discussed above, the petition being without any force is dismissed.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 217
Present: M. Bilal Khan, J.
ABDUL MAJEED--Petitioner
versus
NOOR MUHAMMAD and 2 others--Respondents
W.P. No. 4769 of 2006, decided on 16.5.2006.
Illegal Dispossession Act, 2005 (XI of 2005)—
----Ss. 5 & 7(1)--Constitution of Pakistan, 1973, Art. 199--Interim order--Validity--Complaint under S. 5 of Illegal Dispossession Act, 2005--Additional Sessions Judge proceeded to admit the complaint for regular hearing--Prima facie illegal dispossession was found--Respondents were summoned--Order assailed through Constitutional petition--Held: Order impugned was only an interim order and did not a final order, which could be brought under challenge in the Constitutional jurisdiction.
[P. 218] A
Illegal Dispossession Act, 2005 (XI of 2005)—
----Ss. 7(1) & 8--Constitution of Pakistan, 1973, Art. 199--Discretion--Provision--Order under S. 7(1) Illegal Dispossession Act, 2005 is only discretionary with the Court--The word "shall" used in S. 7(1) of the act will be read as "may" inasmuch as it is only directory provisions--Petition dismissed. [P. 219] B & C
Mr. Zafar Iqbal Chohan, Advocate for Petitioner.
Date of hearing: 16.5.2006.
Order
The petitioner by filing this Constitutional petition has impugned the order dated 21.4.2006 passed by the learned Additional Sessions Judge, Bhakkar (Respondent No. 3) on a complaint made under Section 5 of the Illegal Dispossession Act, 2005 by the petitioner against Noor Muhammad and Dost Muhammad, Respondents Nos. 1 and 2, respectively, whereby he while admitting the complaint for regular hearing has directed the respondents to submit their bail bonds for attendance.
Precisely the facts giving rise to instant petition, according to the contents thereof, were that the petitioner was owner in possession of the land measuring 16 kanals situate in Khasra No. 148/1,10, Khata No. 73, all along after the private partition; even in the application moved by him before the Revenue Officer seeking partition of Khata Nos. 73 & 74, it was specifically alleged that he was in physical possession of the aforesaid land since long; on 4.11.2005, Respondents Nos. 1 and 2 alongwith their henchmen while carrying lethal weapons with a view to sabotage the said proceedings, had forcibly occupied the said land, which had been developed by the petitioner with huge expense and labour; this led the petitioner to file the aforesaid complaint before the learned Court of Sessions, whereupon the learned Additional Sessions Judge requisitioned report from the concerned police, which was submitted twice, once by Ghulam Shabbir, SI of Police Station Sarai Mohajir on 10.2.2006 and the other by the S.H.O of the said Police Station on 21.4.2006, wherein it had been reported that the respondents had forcibly occupied the land in dispute, which was in possession of the petitioner; after going through the reports, the learned Additional Sessions Judge, vide order dated 21.4.2006, had proceeded to admit the complaint for regular hearing on the ground that prima facie illegal dispossession of the petitioner by the respondents was found out and had directed the respondents to submit bail bonds for their attendance in the Court. It is the said order, which is being impugned through this petition.
After hearing the learned counsel for the petitioner, it has been observed that the order impugned is only an interim order and not a final order, which could be brought under challenge in the Constitutional jurisdiction of this Court. The respondents have been summoned only after the learned Additional Sessions Judge found a prima facie case against them. They have been summoned to answer the accusations against them. The contention of the learned counsel that after having formed his prima facie opinion, the learned Additional Sessions Judge ought to have passed an order under Section 7 (1) of the Illegal Dispossession Act, 2005 putting the petitioner in possession of the disputed land does not carry any weight inasmuch an order under Section 7 (1) (ibid) is to be passed only if during the trial the Court is satisfied that the respondent is prima facie found to be in unlawful possession. It is now well-settled that trial in a criminal case commences on framing of the charge, which has admittedly not yet been framed. Even otherwise a conjunctive reading of Sections 7(1) and 8 of the Illegal Dispossession Act, 2005 would show that passage of order under Section 7 (1) is only discretionary with the Court. Had it not been so, there was no occasion for the legislature to have incorporated a provision for putting the petitioner in possession under Section 8 of the said Act on conclusion of trial. Therefore, in my opinion, the word "shall used in Section 7 (1) will be read as "may" inasmuch as it is only a directory provision. The learned counsel for the petitioner has not been able to point out any jurisdiction error committed by the learned Additional Sessions Judge by not passing any order under Section 7 (1) (ibid). There is no merit in this petition, which is accordingly dismissed in limine.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 219
Present: Sayed Zahid Hussain, J.
Mst. BASHIRAN BIBI and others--Petitioners
versus
NAIB TEHSILDAR, BHALWAL and others--Respondents
W.P. No. 18-R of 2001, decided on 30.6.2006.
(i) Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Redemption of land mortgaged in favour of non-Muslim evacuees--Application for--The mortgage to have been redeemed in the year 1922-23 but that the same had not been given effect to in the revenue record--Claim of--Assistant Commissioner/DSC (Land), concluded that land had never been got redeemed by the petitioners or their predecessor-in-interest during the period of 60 years and that long standing entries in revenue record could not be altered through "Fard Badar" and dismissed their application by observing that they could approach the civil Court in such matter--Assailed--In view of the controvercial/factual intricacies involved and existence of long standing entries in the revenue record, the Assistant Commission/DSC (Land) had rightly observed that the petitioners could approach the civil Court--Held: Jurisdiction under Art. 199 of the Constitution of Pakistan, 1973 is circumscribed by lot many conditionalities and cannot be a substitute for a normal civil suit--Disputed questions involving inquiry into facts could not decided by "short hand method of writ"--Petition dismissed. [Pp. 221 & 222] A & B
PLD 1983 Quetta 46 (DB) rel.
(ii) Constitutional Jurisdiction--
----Constitutional jurisdiction of High Court, cannot be converted into that of an Appellate Court--Disputed questions of fact cannot be entered or allowed to be re-agitated in writ jurisdiction--In Constitutional jurisdiction Court does not got into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record or perverse--Superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence--This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit--Extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or authority can be established without any elaborate enquiry into complicated or disputed facts. [P. 223] C
PLD 2001 SC 415, ref.
Sardar Sami Hayat, Advocate for Petitioner.
Ch. Aamir Rehman, Additional Advocate General Punjab for Respondents Nos. 1, 2, 9 and 18.
Mr. A.R. Shaukat, Advocate for contesting Respondents Nos. 3 to 8.
Nemo for Respondents Nos. 10 to 17.
Date of hearing: 30.6.2006.
Order
On 15.6.1971 an application was made by the petitioners before the Assistant Commissioner/Deputy Settlement Commissioner, Bhalwal Sargodha for redemption of land measuring 163-kanals 10 marlas situated in Mauza Kot Kala, Tehsil Bhalwal, District Sargodha, which had been mortgaged by their predecessor-in-interests in favour of non-Muslim evacuees. They claimed the mortgage to have been redeemed in the year 1922-23 but that the same had not been given effect to in the revenue record. Since the land had continued to remain mortgaged with the non-Muslim evacuees and entries in favour of the Central Government had been made in the year 1970 some of it was allotted to Fazal Muhammad (deceased) predecessor-in-interest of the congesting respondents on 3.6.1971 considering it an evacuee property. The Assistant Commissioner/DSC (Land), Bhalwal observed in his order dated 11.2.1972 that the land was redeemed in the year 1922-23 and incorrect entries in the revenue record could be rectified through "Fard Badar". He was of the view that application for redemption had erroneously been filed. WP. No. 2874/1978 was filed by the petitioners seeking implementation of the said order and for entry of the names of the petitioners as owners in possession in the revenue record. The said writ petition was disposed of on 30.10.2000, noting the factum of allotment of the same in favour of Fazal Muhammad (deceased) and that the allotment order had been passed without hearing the petitioners. It was observed that "there are two orders in field, one in favour of the petitioners which was passed by Assistant Commissioner/Deputy Settlement Commissioner (Land) wherein they were held to be the owners after redemption of mortgage of the property while the second order is by the Additional Settlement Commissioner who allotted and confirmed the property in favour of the respondents. None of the two officers had the occasion of hearing the opposite party". The learned Judge thus thought it "appropriate to remand the matter to the Notified Officer who will after hearing both the parties decide the same in accordance with law". It is thus that order dated 29.1.2001 was passed by the Assistant Commissioner/D.S.C (Land), Bhalwal, who this time came to the conclusion that the land had never been got redeemed by the petitioners or their predecessor-in-interest during the period of 60 years and that long standing entries in the revenue record could not be altered through "Fard Badar" and dismissed their application by observing that they could approach the civil Court in the matter. This order has been assailed now through the present petition.
The learned counsel for the parties have been heard in the matter.
It is contended by the learned counsel that by order dated 11.12.1972 it was rightly found that the land had been redeemed in the year 1922-23 and that in any case the petitioners could not be non-suited merely for the reason that the application was time barred, which according to him was well in time. Reliance for this purpose is placed upon Samar Gull v. Central Government and others (PLD 1986 SC 35). The learned counsel for the contesting respondents has endeavoured to support the order impugned. According to him the plea of the petitioners was inconsistent inasmuch as they were claiming the land to have been redeemed in the year 1922-23 and also seeking redemption through application dated 15.6.1971. According to him with the passage of period of 60 years and expiry of limitation their right in the property stood extinguished, which was lawfully allotted to Fazal Muhammad (deceased). He has referred to Ismail v. S.A.M Khan and 35 others (PLD 1972 Lahore 682) and Mst. Inayat Bibi v. Faqir Muhammad and others (2001 SCMR 742).
As mentioned above while disposing of petition (WP. No 2874/1978) the matter was remanded by the High Court for decision after hearing all concerned in the matter. In the post remand proceedings the official respondent has taken the view different from the one taken in the order dated 11.12.1972. In such view of the controvercial/factual intricacies involved and existence of long standing entries in the revenue record, Respondent No. 18 had rightly observed that the petitioners could approach the Civil Court. Instead of following the said course they have approached this Court. It may be observed that jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is circumscribed by lot many conditionalities and cannot be a substitute for a normal civil suit. In Quetta Club Ltd., Quetta Cantt. Through its Administrator v. Muslim Khan and 2 others (PLD 1983 Quetta 46) a learned Division Bench opined that however, extensive jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 may be, it was not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions and decide about the propriety of the order and that the disputed questions involving inquiry into facts could not be decided by "short hand method of writ". The latest position in this context laid down by the Hon'ble Supreme Court of Pakistan in Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415) is also to the same effect wherein after considering large number of precedents on the subject it was observed that "Constitutional jurisdiction of High Court, cannot be converted into that of an Appellate Court. Disputed questions of fact cannot be entered or allowed to be re-agitated in writ jurisdiction. (1982 CLC 1972). When the relevant law provides other forums for the purpose. (1987 PCr.LJ 1413 (DB). It follows that finding of fact recorded by Appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. (PLD 1981 Lah. 511). In Constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, (1990 MLD 563 (DB), unless it is shown that such controversy is devoid of supporting record, or perverse". (1990 MLD 344). It hardly needs any elaboration that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts". These are parameters laid down by the Hon'ble Supreme Court of Pakistan to be kept in view while exercising writ jurisdiction by the High Court.
From the perusal of judgment in the case of Samar Gull (Supra) in which case also the mortgaged rights of the non-Muslims evacuees were transferred in favour of Central Government and land was then allotted to one Chhuntna in lieu of his claim in the year 1973, it is evident that controversy of the nature could appropriately be determined through a proper suit before the Civil Court in which decree was passed that the mortgagors were "owner of the equity of redemption in the suit land." The said judgment was followed in Muhammad Hanif and another v. Ghulam Rasool through L.Rs and others (2005 SCMR 1004), which also arose out of a declaratory suit filed for such purpose. The Assistant Commissioner/D.S.C. (Land) Bhalwal vide his order dated 29.1.2001 was fully justified to observe that the petitioners should seek remedy from the Civil Court which observation is eminently consistent with the above view of the law on the subject.
In the circumstances the petition is misconceived, which is dismissed accordingly.
(Anwar Saeed Sh.) Petition dismissed.
PLJ 2007 Lahore 223
Present: Muhammad Muzammal Khan, J.
GHULAM RASOOL--Petitioner
versus
JAVED AHMAD and 3 others--Respondents
C.R. No. 326 of 2002, heard on 12.9.2006.
Civil Procedure Code, 1908 (V of 1908)—
----O.XLI, R. 21 & O.XLVII, Rr. 1 & 2, S. 115--Application for rehearing of appeal--Held: Impugned order was not well worded and did not compass around the entire controversy yet the net result given through it, is absolutely just/fair which cannot be termed arbitrary/fanciful on basis of any canon of law known for administration of justice--Appellate Court did not commit any illegality/irregularity in term of S. 115 C.P.C.
[Pp. 225 & 226] B
Civil Procedure Code, 1908 (V of 1908)—
----O.XLI, R. 21--Exparte decree--Application for rehearing--Counter affidavit--Validity--In absence of counter affidavit facts sworn on affidavit by respondents had to be accepted. [P. 225] A
Sh. Naveed Shahryar, Advocate for Petitioner.
Syed Kaleem Ahmed Khurshid, Advocate for Respondents Nos. 1 and 2.
Respondents Nos. 3 & 4 Ex-parte.
Date of hearing: 12.9.2006.
Judgment
Instant civil revision assailed judgment/order dated 31.1.2002 passed by the learned Additional District Judge, Gujrat, whereby application of Respondents Nos. 1 and 2 under Order XLI Rule 21 read with Section 151 and Order XLVII Rules 1 and 2 CPC was accepted and petitioner's appeal was directed to be re-heard.
Succinctly, relevant facts are that Respondents Nos. 1 and 2 filed a suit for possession through pre-emption on 31.7.1963, which after due contest by the petitioner, was decreed by the learned Civil Judge vide his judgment/decree dated 1.12.2000. Petitioner felt aggrieved of the judgment/decree passed by the trial Court and consequently filed an appeal before the learned Additional District Judge, Gujrat. Respondents Nos. 1 and 2 were duly served in the appeal and had been appearing before the appellate Court but they absented on 20.9.2001 and the appellate Court after calling the case three times, proceeded against them ex parte and at the same time, heard the appeal of the petitioner ex parte. Appellate Court accepted the appeal of the petitioner, set aside the judgment/decree of the trial Court dated 1.12.2000 and dismissed respondents' suit for possession through pre-emption vide judgment/decree dated 20.9.2001.
Respondents Nos. 1 and 2 on 12.10.2001 moved an application under Order XLI Rule 21 read with Section 151 and Order XLVII Rules 1 and 2 CPC before the appellate Court for re-hearing of appeal/recall of ex parte judgment on the grounds that Respondent No. 1 was a government employee and could not manage leave of his superiors to attend the Court and Respondent No. 2 on account of his illness remained absent on the date when the appeal was taken up for hearing and similarly their counsel on account of strike/boycott of the Lawyers community, did not appear on their behalf and according to them absence of all of them was beyond their control besides being sufficient cause for re-hearing of appeal/recall of ex parte judgment. Application of Respondents Nos. 1 and 2 was supported by a detailed affidavit of Respondent No. 1 and was hardly contested by the petitioner, which was accepted by the learned Additional District Judge cognizant of the matter, after hearing the parties, vide order dated 31.1.2002, impugned by the petitioner in the revision petition in hand.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for the petitioner that respondents knew the date of hearing but they filed their application with a delay of 22 days by concocting unsupported reason for their absence; that they could not substantiate those please; and that the learned Additional District Judge out of sketchy/unreasoned order erroneously accepted application of the respondents, have not impressed me for multiple reasons to intervene in the revisional jurisdiction of this Court. In the first place, respondents had moved a simple application for re-hearing of the appeal, which was decided ex parte on 20.9.2001 and gist of this application is also to the same effect. Order XLI Rule 21 CPC deals with re-hearing of appeals decided ex parte, which reads as under:--
"21. Re-hearing on application of respondent against whom ex-parte decree made.--(1) Where an appeal is heard ex-parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on, for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.
1[(2). The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under Sub-Rule (1)].
Under this provision of law, respondent in whose absence appeal was decided ex parte had to explain his non-service or sufficient reasons which prevented him from appearing when the appeal was called on for hearing. Now Respondents Nos. 1 and 2 in their application had duly explained reasons, which prevented them from appearing before the Court of appeal and those on account of which their counsel did not appear on their behalf which according to my mind, were sufficient cause as required by the provision of law above reproduced. In the second place, respondents' application was supported through a detailed affidavit of Respondent No. 1 specifically sworning regarding absence of each of them including their counsel but petitioner while replying this application did not file any counter affidavit. Under law, in absence of any counter affidavit, facts sworn on affidavit by the respondents had to be accepted. Reference in this behalf can be made to the judgments in the cases of Municipal Corporation, Sialkot vs. Muhammad Shafi (1990 ALD 235) and Ghulam Mustafa Shah vs. Haji through Legal Heirs and others (1993 SCMR 256). In the third place, respondents' suit for possession through pre-emption stood decreed by the trial Court vide judgment/decree dated 1.12.2000 and they had already deposited pre-emption money but the decree could not be executed on account of filing of appeal by the petitioner. It was not denied during hearing of this petition that possession of the land remained with the petitioner and respondents were out of possession. In this manner, there was no occasion for the respondents to desert contest of appeal filed by the petitioner and this fact lends support to the grounds urged by them in their application. On the fourth step, petitioner is enjoying usufruct of the suit land and no prejudice has been caused to him by acceptance of respondents' application because his appeal will be re-decided after hearing both the parties. In case petitioner really has a case to succeed, he can again earn acceptance of his appeal. Last but not the least reason for non-interference on instant petition is that though impugned order is not well worded and did not compass around the entire controversy yet the net result given through it, is absolutely just/fair which cannot be termed arbitrary/fanciful on the basis of any canon of law
PLJ 2007 Lahore 226
Present: Muhammad Jehangir Arshad, J.
MUNAWAR HUSSAIN, and 2 others--Petitioners
versus
AMANAT ALI and 6 others--Respondents
C.R. No. 2698 of 2004, decided on 1.6.2006.
(i) Registration Act, 1908 (XVI of 1908)--
----Ss. 52, 58 & 60--Endorsement documents by Sub-Registrar--Presumption of correctness--Held: Endorsement by Sub-Registrar on a document contains presumption of correctness and no more authenticated documentry evidence could be made available to prove payment of consideration as to facts entered in the documents/certificates are presumed to have occurred and the said endorsement/certificate is admissible as evidence and hence presumed to be genuine. [P. 231] A
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 70--Presumption about the contents of the document--Held: Where a document is admitted or its execution is proved then its contents are always considered as proved or admitted and no oral evidence is admissible to disprove them--There was clear recital in agreement about payment of consideration in the disputed agreement, it could not be held as without consideration--Revision accepted. [P. 231] B
(iii) Co-sharer--
----Effect of transfer, out of joint Khata--Held: Any transfer out of a joint Khata even with regard to a specific Khasra number is always subject to final adjustment of partition and no person can claim his exclusive ownership with regard to a specific Khasra number on the ground of having been purchased by him to the exclusion of other co-sharer.
[P. 232] C
PLD 1976 Lah. 6; 2005 SCMR 152; 2005 SCMR 1408; 1994 SCMR 2189; 2003 MLD 742; 2003 CLC 1695; NLR 1978 Cr. 539 & 1984 SCMR 427, ref.
Mr. Abdul Rehman Madni, Advocate for Petitioners.
Rana Nasrullah Khan, Advocate for Respondents.
Date of hearing: 29.5.2006.
Judgment
In view of detailed hearing of both the learned counsel for the parties at limine stage/pre-admission notice stage, this case is now being disposed of as a PAKKA case with the concurrence of learned counsel for the parties. Office to note accordingly.
This Civil Revision is directed against the judgments at variance recorded by two Courts below, whereby the learned Additional District Judge, Daska vide judgment dated 21.10.2004 accepted the appeal filed by the respondents against the judgment of the learned trial Court dated 20.4.2000 decreeing suit for specific performance of agreement to sell in favour of the petitioners, as such suit of the petitioners was dismissed.
The facts in brief are that petitioners, filed a suit for specific performance of agreement to sell before the learned trial Court vide plaint dated 7.5.1997 alleging therein that respondents were owners of the land measuring 8-kanal situated in Mouza Karanwali Tehsil Daska District Sialkot, were in possession of the same through family partition and had also mortgaged their property to the Agricultural Development Bank of Pakistan, Daska (hereinafter to be referred as A.D.B.P). They agreed to sell the same to the petitioners for a price of Rs. 1,50,000/- and for the purposes of getting the mortgage redeemed, Munawar Hussain one of the petitioners deposited an amount of Rs. 1,17,000/ under his signatures with the A.D.B.P, Daska through receipt dated 8.5.1994 under the instruction of respondents and respondents received the remaining amount of Rs. 33,000/- in cash for their personal use and in token thereof executed a registered agreement to sell in favour of the petitioners on 10.5.1994, whereafter, they delivered possession to the petitioners which they are still possessing. It was further agreed that on the attestation of mutation of redemption, the property would be alienated to the petitioners. The petitioners further averred in the plaint that although the redemption mutation was attested in favour of the respondents in the month of August, 1998 but they never informed the petitioners and tried to transfer the property to somebody else, on which the petitioners had to file the declaratory suit to restrain the respondents from alienating the property which was ultimately filed. The suit was contested by the respondents vide written statement dated 23.6.1997 wherein without specifically denying the existence of any agreement or execution of the agreement to sell dated 10.5.1994 the respondents only denied the receipt of consideration under the said agreement. The learned trial Court in the light of pleadings of the parties framed the following issues and directed the parties to lead their respective evidence:--
ISSUES:--
Whether the suit is incompetent in its present form? OPD.
Whether the plaintiffs have not come to the Court with clean hands? OPD.
Whether the plaintiffs have no locus standi and cause of action to title this suit? OPD.
Whether this suit is barred by time? OPD.
Whether the suit has been incorrectly valued for the purposes of Court fee, if so, what is the correct valuation? OPD.
Whether the plaintiffs have entered into sale agreement pertaining to the disputed land with the defendants in lieu of Rs. 1,50,000/- in view of Iqrar Nama dared 10.5.1994 and possession of the disputed land was also transferred in pursuance of the agreement? OPP.
Whether the disputed Iqrar Nama is fictitious and based on fraud? OPD.
Whether the plaintiffs are in possession of the suit disputed land as tenants at will? OPP.
Whether the suit is frivolous and vexatious and the defendants are entitled to special costs under Section 35-A CPC? OPD.
Relief.
The petitioners in their evidence produced Anwar Kakay, Advocate, Daska, Scribe of the agreement to sell Ex.P-1, Ihsan Ullah, employee of National Bank of Pakistan Andhia Moor Branch, Sambrial, Daska PW-2 to prove withdrawal of Rs. 90,500/- by the petitioners, Munawar Hussain one of the petitioners appeared as PW-3, Nazir Ahmad PW-4 who is the marginal witness of agreement Ex.P-1, Muhammad Rafiq, employee of A.D.B.P, Daska to prove the deposit of Rs. 1,17,000/- by Munawar Hussain petitioner with the Bank on 8.5.1994 as mortgage money, Liaqat Ali who is also marginal witness of agreement to sell appeared as PW-6 and with that they closed their evidence by tendering documents Ex. P-1 to Ex.P-17. In rebuttal Shahid Mehmood one of the respondents appeared as DW-1, Fazal Hussain DW-2 and the respondents closed their evidence by tendering document Ex.D-1. However, Mst. Safia Bibi sister of the respondents also appeared as DW-3. On the conclusion of trial, the learned trial Court/Civil Judge 1st Class, Daska vide judgment dated 20.4.2000 decreed the suit of the petitioners as prayed for. Against the said judgment and decree of the learned trial Court the respondents filed an appeal which was allowed by a learned Additional District Judge, Daska vide judgment dated 21.10.2004 resulting in setting-aside of the judgment of learned trial Court and dismissal of petitioners' suit. Hence, this Civil Revision.
Before recording the arguments of learned counsel for the parties, it would not be out of place to mention here that the only ground which found favour with the learned Additional District Judge for setting aside the decree of the learned trial Court and dismissal of petitioners' suit, was that no consideration under the agreement was paid to the respondents, hence the agreement being without consideration was not enforceable, therefore suit was liable to be dismissed.
It has been argued by learned counsel for the petitioners that the agreement in question Ex. P-1 is a registered document and after admitting execution of the same having proved of the learned Additional District Judge could not declare or term the same as without consideration, whereas from the evidence available on record it is fully established that said agreement was not only based on consideration but also was executed for consideration. To support his contention learned counsel for the petitioners has referred to the evidence of Ihsan Ullah PW-1, employee of National Bank of Pakistan, Daska to the effect that an amount of Rs. 90500/- was withdrawn from the account of petitioners' mother Mst. Barkat Bibi through Cheque No. 081341. The learned counsel has also referred to the statement of Muhammad Rafiq PW-5 employee of A.D.B.P, Daska deposing that on 8.5.1994 an amount of Rs. 1,17,000/- was deposited by Munawar Hussain petitioner in the bank account of land in dispute mortgaged with the Bank. The learned counsel further submitted that detail about payment of consideration was specified in the agreement Ex.P-1 which contains an endorsement from Sub-Registrar, Daska to the effect that receipt of an amount of Rs. 1,50,000/- was admitted before him and that the said endorsement carries a presumption with regard to the payment under said document as held by this Court in the case "Pirla, etc versus Noora, etc" (P.L.D 1976 Lahore 6). The learned counsel contends that in a suit titled "Muhammad Khan and others versus Munawar Hussain and others" (copy available as. Ex. P-14), the present respondents who were Defendants Nos. 4, 5 and 6 had filed written statement in para-4 thereof they had admitted the disputed transaction with the petitioners and had also admitted the execution of the agreement dated 10.5.1994 in favour of the petitioners and also deposit of mortgage money by the petitioners with the A.D.B.P; thus in the presence of above-referred evidence, learned counsel concludes that mere evasive denial by the respondents about receipt of the amount and after holding that petitioners have successfully proved the execution of the agreement Ex.P-1 there was no jurisdiction left with the learned Additional District Judge to hold the said document as without consideration and to dismiss the suit.
On the other hand, learned counsel for the respondents namely Rana Nasrullah Khan, Advocate has tried to support the findings of learned Additional District Judge on the ground that although the respondents have not specifically denied the agreement or execution of agreement to sell yet as the same has been rightly held by the learned Additional District Judge as without consideration, hence the suit of the petitioners was correctly dismissed, as grant or refusal of decree for specific performance by the Court was a discretionary relief within the meaning of Section 12 of the Specific Relief Act and that the Court is not always bound to decree suit for specific performance even in case where the contract is proved. In support of his contention the learned counsel for the respondents has placed reliance on the case "Anwar Ahmad versus Mst. Nafis Bano through Legal Heirs" (2005 SCMR 152), "Sinaullah and others versus Muhammad Rafique and others" (2005 SCMR 1408) and "Mrs. Mussarat Shaukat Ali versus Mrs. Safia Khatoon and others" (1994 S.C.M.R 2189). The learned counsel has further argued that petitioners filed suit for specific performance of agreement to sell with regard to a specific Khasra Number No. 252 which was not exclusively owned by the respondents but formed part of a joint khata consisting of several co-sharers and the share of the respondents in the said khata being nominal in area no decree for specific performance of agreement to sell could be passed in favour of the petitioners with regard to the entire khasra number in the absence of other co-sharers as party as well as without determination of their interest in the said khasra as according to the learned counsel it is an established law that each sharer in a joint khata is deemed owner in each and every inch of the same and no co-sharer can individually claim his ownership in specific khasra number without partition. The learned counsel for the respondents in support of his this contention has placed reliance on the case "Muhammad Anwar versus Mst. Nawab Bibi and others" (2003 M.L.D 742) and "Khurshid Anwar Jalil versus Muhammad Hafeez Mirza and 14 others" (2003 C.L.C 1695).
Exercising his right of rebuttal, especially with regard to the second argument of learned counsel for the respondents regarding enforcement of agreement in dispute, the learned counsel for the petitioners while placing reliance on the case "Mustafa and three others versus Muhammad Khan and another" (N.L.R 1978 Civil 539) and "Shah Hussain versus Abdul Qayum and others" (l984 S.C.M.R 427) has argued that transfer by a co-sharer is always subject to adjustment on partition and thus there was neither any infirmity in the agreement to sell nor in the decree issued by the learned trial Court with regard to specific khasra number especially when the share of the respondents in the entire khata was more than agreed area of 8-kanal and thus the decree passed by learned trial Court although with regard to specific khasra number yet same would be subject to final adjustment through partition and the petitioners would not be able to claim exclusive ownership over the said specific khasra number unless adjusted on partition.
I have considered the above-mentioned arguments of learned counsel for the parties keeping in view the evidence on record as well as the law on the subject.
Admittedly the disputed agreement to sell Ex.P-1 is a registered document containing an endorsement by the Sub Registrar with regard to the receipt of consideration having been admitted by the executants of the document i.e. respondents before him and as held by this Court in the case "Pirla, etc. versus Noora, etc" (P.L.D 1976 Lahore 6) endorsement by the Sub Registrar on a document contains presumption of correctness in terms of Sections 52, 58 and 60 of the Registration Act and no more authenticated documentary evidence could be made available, on the point of proof of payment of consideration as the facts entered in the endorsement/Certificate are presumed to have occurred and as the said endorsement/Certificate is admissible as an evidence of proof if its contents, hence the same is always presumed to be genuine. Looking in this context the findings of the learned Additional District Judge holding the agreement as without consideration appears to be based not only misreading and non-reading of evidence but also in clear disregard/violation of the above-mentioned provisions of the Registration Act, hence, cannot be blessed with any legal sanctity. Further the learned Additional District Judge while dismissing the suit of the petitioners has also ignored the established principle of law that where a document is admitted or its execution is proved then the contents of the same are always considered as proved or admitted and no oral evidence to disprove the contents of said document is admissible in terms of Article 70 of Qanoon-e-Shahadat Order and since there is a clear recital in the agreement Ex. P-1 about payment of consideration and also its mode, no option at all was left with the learned Additional District Judge to hold the agreement in dispute as without consideration.
The learned Additional District Judge has also misdirected himself by not taking into consideration the evidence of Ihsan Ullah PW-2 employee of National Bank of Pakistan who made statement about withdrawal of amount on 8.5.1994 from the account of petitioners' mother namely Mst. Barkat Bibi and also ignored the statement of Muhammad Rafiq PW-5 an employee of A.D.B.P with regard to deposit of mortgage money to the tune of Rs. 1,17,000/- on the same day i.e. 8.5.1994 under the signature of Munawar Hussain one of the petitioners. Both these PWs have neither been materially cross-examined on the point in issue nor they being employees of the Bank are supposed to have any personal motive either against the respondents or in favour of the petitioners for making false statements in Court. The learned Additional District Judge also failed to take into consideration the contents of receipt Ex. P-3 carrying the signatures of Munawar Hussain petitioner (Ex. P-3/1) and also the written statement (Ex. P-15) filed by the respondents specifically admitting the execution of the agreement in question in favour of the petitioners and deposit of mortgage money with the Bank. The narration of above facts lead me to conclude that the learned Additional District Judge was not right in holding the agreement as without consideration, resultantly his findings are not sustainable and are set-aside.
So far as second contention of learned counsel for the respondents with regard to the fact that Khasra No. 252 being part of a joint khata measuring 135-kanals 11-marlas is concerned, I am afraid that the same is legally maintainable being against the established principle of law "any transfer out of a joint khata even with regard to a specific khasra number is always subject to final adjustment of partition and no person can claim his exclusive ownership with regard to a specific khasra number on the ground of having been purchased by him to the exclusion of other co-sharer". The learned counsel for the petitioners has therefore, rightly placed reliance on the case "Mustafa and three others versus Muhammad Khan and another (N.L.R 1978 Civil 539) and "Shah Hussain versus Abdul Qayum and others" (1984 S.C.M.R 427) cited above which, on all force, are applicable to the facts and circumstances of the present case. Therefore, this objection of the learned counsel for the respondents is turned down being not tenable in law.
As regards the case law cited by learned counsel for the respondents to canvass the proposition that as grant or refusal of decree for specific performance by the Court was a discretionary relief within the meaning of Section 12 of the Specific Relief Act the Court is not always bound to decree suit for specific performance even in case where the contract is proved, is concerned, I am afraid that neither the said proposition is applicable to the facts and circumstances of the present case nor the case law cited by the learned counsel has any application to the present case. Rather the judgment of the Hon'ble Supreme Court of Pakistan "Mrs. Mussarat Shaukat Ali versus Mrs. Safia Khatoon and others" (1994 S.C.M.R 2189) referred to by learned counsel for the respondents himself, supports the case of the petitioners.
The above-mentioned appraisal of evidence, analysis of the arguments of learned counsel for the parties as well as the case law, lead me to conclude that the findings of learned Additional District Judge on Issues No. 6, 7 and 8 holding the agreement in question as without consideration and dismissing the suit of the petitioners, are not sustainable at all. Resultantly, this Civil Revision succeeds and is accordingly allowed, as such by setting-aside the judgment of the learned Additional District Judge, the judgment and decree passed by the learned trial Court in favour of the petitioners, is restored. However, the decree passed by the learned trial Court in favour of the petitioners shall be subject to the condition that same shall be though regarding 8-kanal of land yet would be the share of the respondents out of entire joint khata subject to determination/adjustment on partition. Decree sheet be amended accordingly.
(Javed Rasool) Revision accepted
PLJ 2007 Lahore 233
Present: Syed Asghar Haider, J.
SPECIAL COMMUNICATION ORGANIZATION, RAWALPINDI through its DIRECTOR GENERAL--Appellant
versus
M/s. IBELL (PVT.) LTD., LAHORE--Respondent
F.A.O. No. 270 of 2006, heard on 21.9.2006.
Arbitration Act, 1940 (X of 1940)--
----Ss. 20 & 31--Civil Procedure Code (V of 1908), S. 20--Arbitration agreement--Determination of jurisdiction--Award may be filed in any Court having jurisdiction in the matter to which the reference relates--Proceedings had to be filed with the Court which was bestowed jurisdiction and with no other Court, because proceedings filed in any other Court would be without jurisdiction and have no legal sanctity--Where the defendant actually or voluntarily resides or personally works for gain or where cause of action wholly or in part arises the suit can be instituted there--Cause of action means where a demand of right is made and if traversed and proved would give a right to judgment to the plaintiff--Bank guarantee was an independent contract, its impact import or performance or non-performance would hardly help the case of the respondent, therefore, this would not constitute a part of cause of action for determining jurisdiction--Appeal allowed. [Pp. 235 & 236] A, B & C
Miss Aaliya Neelam, Advocate for Appellant.
M/s Shahzad Rabbani & Sohail Raza, Advocates for Respondent.
Date of hearing: 21.9.2006.
Judgment
This appeal is directed against the order dated 18.7.2006, passed by the Civil Judge, Lahore, whereby an application made by the respondent M/s. Ibell (Pvt.) Ltd. under Section 20 of the Arbitration Act, 1940, for filing of Arbitration Agreement in Court, was allowed.
"Arbitration proceedings shall be held in Islamabad". Differences cropped up between the parties, resultantly the Respondent filed an application under Section 20 of the Arbitration Act, 1940, before the Civil Court at Lahore, this application after contest was allowed vide order dated 18.7.2006, the parties were directed to nominate one Arbitrator each and submit his name to the Court. The appellant is aggrieved of this order and has filed the present appeal.
Learned counsel for the appellant contended that the impugned order is bad in law, according to the learned counsel pursuant to Clause 21.4 the venue of Arbitration proceedings is Islamabad, thus, under the provisions of Sec. 31 (3), (4) of the Arbitration Act, 1940, the Courts at Islamabad would deem to hold jurisdiction over these proceedings, including the application under Sec. 20 of the Arbitration Act, thus, the proceedings were wrongly instituted before the Courts at Lahore, she also submitted that the provisions of Contract Act had also not been adhered to and the proceedings are without jurisdiction. The impugned order is also not in consonance with the following precedents:--
Rashid Ahmad Versus The State (PLD 1972 SC 271)
Societe Generaled De Surveillance S,A. Versus Pakistan through Secretary, Ministry of Finance, Revenue Division, Islamabad (2002 S.C.M.R. 1694)
Sultan Ali Versus Khushi Muhammad (PLD 1983 S.C. 243)
Muhammad Sadiq through his legal representatives Versus Pakistan through Collector, Rawalpindi and 2 others (1988 C.L.C. 123).
Learned counsel for the respondent contrarily argued that the stance taken by the Appellant is misconceived and is not sustainable in law, according to the learned counsel the venue for holding arbitration proceedings is no doubt Islamabad, but jurisdiction has not been, deliberately bestowed upon the Courts of Islamabad for Court proceedings. He adverted to Ss. 2-C, 3 and 31 of the Arbitration Act, 1940 and Section 20 C.P.C., to submit that Courts where cause of action arises can exercise jurisdiction, in the instant case the Bank Guarantee was executed at Lahore, monetary transactions were conducted at Lahore, therefore, the Courts at Lahore are folly bestowed with jurisdiction, he relied upon the following precedents:--
Hitachi Limited and another Versus Rupali Polyester and others (1998 S.C.M.R. 1681), 2. Ravi Glass Mills Limited Versus I.C.I Pakistan Powergen Limited (2004 Y.L.R. 2503).
I have heard the learned counsel at length. The situation which emerges is that there is no dispute qua the holding of Arbitration Proceedings under the agreement and both parties concur that the venue for this purpose is Islamabad. However, the core dispute between them relates to the question of exercise of jurisdiction by Court. The agreement was executed on 6.1.2003, at Rawalpindi, Clause 21.4 reflects the intention of the parties qua Arbitration, it is clear from record that venue for Arbitration Proceedings was agreed but jurisdiction qua the Courts to oversee these proceedings was deliberately omitted, therefore, the agreement will be governed by the Arbitration Act, 1940. Sec. 2-C of the Arbitration Act reads:-
"Court" means a Civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under Section 21, include a Small Cause Court;
"Other suits to be instituted where the defendants reside or cause of action arises--Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limit of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Court is given, or the defendant who do not reside, or carry on business, or personally work for gain, as aforesaid, acquieses in such institution; or
(c) the cause of action wholly or in part, arises.
Therefore, in accordance with the spirit of Sec. 20 C.P.C. the suit can be instituted under Sec. 20 (a & c) where the defendant actually, or voluntarily resides or personally works for gain or where cause of action wholly or in part arises. Cause of action means where a demand of right is made and if traversed and proved would give a right to judgment to the plaintiff. Thus, it is in this background that the present agreement is to be reviewed.
The respondent M/s iBell filed an application under Sec. 20 of the Arbitration Act highlighting and referring to certain disputes and alleging violation by the petitioner, in paragraph 23 of the application under Section 20 Arbitration Act the plaintiff/respondent itself adverted to cause of action, and stated that it firstly arose on 6.1.2003, when agreement was executed and secondly in April, 2003 when policy extraneous to the contract was enforced and thirdly when it completed, ram up period, in July, 2003. In paragraph 24 it is stated that the cause of action accrued in Lahore because Bank Guarantee was issued in Lahore, and payment was made in Lahore. The events giving rise to cause of action have been elucidated and highlighted by the plaintiff in paragraph 23, none of these happened in Lahore.
Sec. 20 C.P.C. has to be read as whole, clause a, b and c have to be read in conjunction and not in isolation, the emphasis of the learned counsel for the respondent, that part of cause of action accrued at Lahore is not based on sound reasoning. The events which led to the present action are highlighted in Paragraph 23 of the application under Section 20 of the Arbitration Act but they do not contain any recital to payment. Learned counsel for the respondent submitted that as the Bank guarantee was executed at Lahore, therefore, part of cause of action has arisen at Lahore, he has adverted to Paragraph 24 of the application in this context. Bank guarantee is an independent contract, its impact, import or performance or non-performance would hardly help the case of the respondent, therefore, this would not constitute a part of cause of action for determining jurisdiction. Reference is made to Pakistan National Shipping Corporation, P.N.S.C. Building, Karachi Versus Samsung Co. Ltd. and 3 others (2001 CLC 1473) and Messrs National Construction Ltd. Versus Aiwan-e-Iqbal Authority (PLD 1994 SC 311). In contracts jurisdiction normally, would, vest with the Court where the agreement was executed as the present agreement was executed at Rawalpindi, and has been so accepted by both the parties, therefore, the jurisdiction would vest in the Courts at Rawalpindi. I am fortified in my view by M/s Nalanda Ceramic & Industries Ltd. vs. M/s N.S. Choudhury & Co. (P) Ltd. (A.I.R. 1977 SC 2142), according to this precedent the contract was made at Calcutta, therefore, the Courts at Calcutta were possessed with the jurisdiction in this context. Likewise Food Corporation of India and Another Versus Greet Eastern Shipping Co. Ltd. (AIR 1988 S.C. 1198), also affirm this position because the contract was made at Bombay, therefore, jurisdiction would vest with the Courts at Bombay. Further the appellant/defendant works for gain in Rawalpindi, the agreement was executed at Rawalpindi, the alleged breaches also occurred at Rawalpindi, therefore, the Courts at Rawalpindi would hold jurisdiction over these proceedings on this account as well. The precedent cited by the learned counsel for the respondent Ravi Glass Mills Limited Versus I.C.I. Pakistan Powergen Limited (2004 Y.L.R. 2503) relates to the territorial jurisdiction pertaining to fraction of cause of action or part of cause of action but is distinguishable on facts as no cause of action has accrued at Lahore, therefore, this precedent is of no help to the respondent. Hitachi Limited and another Versus Rupali Polyester and others (1998 S.C.M.R. 1618) relates to interpretation of Section 20 C.P.C., elucidates part of cause of action, this precedent again is distinguishable on facts as in the instant matter no cause of action has accrued at Lahore. Resultantly, this appeal is allowed and the order dated 18.7.2006, passed by the Civil Judge, Lahore, is set aside being without jurisdiction. No order as to costs.
(Fouzia Fazal) Appeal allowed
PLJ 2007 Lahore 237
Present: Mian Saqib Nisar, J.
MUHAMMAD ASHRAF--Petitioner
versus
AKHLAQ SHEEDA--Respondent
C.R. No. 763 of 2006, heard on 6.11.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 2--Negotiable Instruments Act, (XXVI of 1881) S. 118--Suit for recovery on the basis of a pronote--Denial of the execution of the pronote and the receipt--Denial of the petitioner is contumacious and granted him conditional leave to appear--Alleged execution of the pronote has been imputed, has out rightly denied the execution of the document, how could the Court, without enabling the parties to prove/disprove the execution--Pronote and the receipt bear the signatures and thumb impressions of the defendant--Held: Defence of the petitioner is contumacious, tantamounts to pre-judging the issue at the stage of leave--Under the provisions of S. 118 of the Negotiable Instruments Act, 1908, there is no presumption that a negotiable instrument, if denied, still should be presumed to have been executed by the defendant as alleged by the plaintiff--Trial Court has fallen in error in relying upon the said section. [P. 239] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 2--Onus of proof--Suit for recovery on the basis of a pronote--Denial of the execution of the pronote and the receipt by the defendant--It is for the petitioner to specify the reason as to why the pronote was forged and fictitious, is fallacious and perfunctory--Court in fact at the leave stage wants the petitioner to prove a negative fact, the onus of which should, in view of the pleadings of the case, be upon the plaintiff. [P. 239] B
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII--Principle of law--Suit for recovery on the basis of a pronote--Denial of the execution of the pronote and the receipt by the defendant--Application for leave to appear and defend--Trial Court granted conditional leave to appear and defend subject to the furnishing of the bank guarantee or depositing the defence saving certificates--Whether the pronote has been executed by the petitioner or not is a quite fundamental question of fact to be resolved by the Court--Held: Defence set out by the petitioner was vague, unsatisfactory or was in genuine--Ends of justice shall meet if the petitioner is directed to furnish the solvent security qua the suit amount to satisfaction of Court--Order imposing the condition of deposit is untenable--Petition allowed. [P. 240] C & D
(iv) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revision--Scope--Interference--Revision is a supervisory jurisdiction--High Court can interfere if order passed by trial Court is not tenable under the law, is perverse or perfunctory, or the trial Court fails to apply & follow the correct law laid down by the Supreme Court of Pakistan. [P. 240] E
Syed Haider Ali Shah, Advocate for Petitioner.
Ch. Muhammad Amin, Advocate for Respondent.
Date of hearing: 6.11.2006.
Judgment
The respondent brought a suit for the recovery of Rs. 6,50,000/- against the petitioner, under the provisions of Order 37 CPC, on the basis of a pronote. The petitioner moved an application for leave to appear and defend in which, he took up the plea that the pronote has not been executed by him and it is a forged and fabricated document. The learned trial Court, after hearing the learned counsel for the parties, came to the conclusion that though the petitioner has denied the execution of the pronote and the receipt, however, it prima-facie appears that the pronote etc. bear his signatures and thumb impressions. The trial Court, therefore, concluded that the denial of the petitioner is contumacious and granted him conditional leave to appear and defend subject to the furnishing of the bank guarantee or depositing the Defence Saving Certificates in the sum of the suit amount.
Learned counsel for the petitioner, by relying upon the judgments reported as Mian Rafique Saigol and another vs. Bank of Credit and Commerce International (Overseas) Ltd. and another (PLD 1996 SC 749), and Abdul Rauf Ghauri vs. Mrs. Kishwar Sultana and 4 others (1995 SCMR 925) states that directing the petitioner to furnish the bank guarantee or deposit the Defence Saving Certificates, tantamounts to refusal of leave, and is a very harsh and inappropriate order in the light of the judgment reported as Fine Textile Mills Ltd. vs. Haji Umar (PLD 1963 SC 163).
Contrarily, the learned counsel for the respondent has argued that the impugned order is legal and proper; the simple denial of the petitioner about the execution of the pronote, was/is a contumacious denial, and because the petitioner had failed to offer a plausible defence as to why would the plaintiff/respondent prepare a forged pronote/receipt, resultantly the condition was rightly imposed by the learned trial Court; by further relying upon Prof. (R) Dr. Muhammad Jamil Bhutta vs. Abdullah Farooq (2006 CLC 982), it is submitted by the learned counsel for the respondent that the order imposing a condition upon the defendant while granting him the leave is a discretionary order and should not be interfered in the revisional jurisdiction.
Heard. The learned trial Court in Paragraph No. 4 of the impugned order has held:--
"Though the defendant has put forth an absolute denial to the execution of alleged pronote and receipt of consideration, however it prima facie appears that alleged pronote and the receipt in this regard bear signatures and thumb impression of the defendant. Legally, initial presumption arises under Section 118 of Negotiable Instruments Act 1881 that the instrument is made, drawn, accepted or endorsed for consideration. This presumption is although rebuttable, yet onus lies on the person denying such document or consideration. Furthermore, defendant has not brought on record any specific reason for what the alleged instrument has been prepared forgedly and fictitiously particularly against him by the plaintiff when he has neither any relationship nor any terms with the plaintiff. In the given situation, denial of the defendant appears to be contumacious. "
I fail to understand that if the petitioner, to whom the alleged execution of the pronote has been imputed, has out-rightly denied the execution of the document, how could the Court, without enabling the parties to prove/disprove the execution, form a prima facie opinion that the pronote and the receipt bear the signatures and thumb impressions of the defendant. Therefore, in such circumstances, to hold that the defence of the petitioner is contumacious, tantamounts to pre-judging the issue at the stage of leave. Besides, under the provisions of Section 118 of the Negotiable Instruments Act, 1908, the presumption attached to the negotiable instrument, until contrary is proved, is inter-alia about the "consideration", however, under the said section, there is no presumption that a negotiable instrument, if denied, still should be presumed to have been executed by the defendant as alleged by the plaintiff. Resultantly, the learned trial Court has fallen in error in relying upon the said section. The third reason of the Court, that it is for the petitioner to specify the reason as to why the pronote was forged and fictitious, is fallacious and perfunctory. The Court in fact at the leave stage wants the petitioner to prove a negative fact, the onus of which should, in view of the pleadings of the case, be upon the plaintiff; moreover, how can a defendant state about the state of mind of the plaintiff, as to why the plaintiff has prepared a forged document.
In view of the Fine Textile Mills's case (PLD 1963 SC 163) and also Mian Rafique Saigol's case (PLD 1996 SC 749), the defendant was entitled to the grant of leave if some substantial question of law and facts, needs to be investigated, was raised. The main question involved in this matter is, whether the pronote has been executed by the petitioner or not. Undoubtedly, this is a quite fundamental question of fact to be resolved by the Court. In such circumstances, it cannot be held that the defence set out by the petitioner was vague, unsatisfactory or was in-genuine. Had the petitioner admitted the execution and set out a defence, which was not plausible, obviously in that situation, the Court could have imposed the condition of the deposit of the amount etc. But in the light of the facts and circumstances of the case in hand, the condition of the deposit etc is harsh and in fact tantamounts to negate the principles of law enunciated in the aforesaid precedents. In my view, the ends of justice shall meet if the petitioner is directed to furnish the solvent security qua the suit amount to the satisfaction of the Court. Therefore, the order imposing the condition of deposit etc is untenable.
The argument of the respondent's counsel that the leave granting order imposing the condition should not be interfered in the revisional jurisdiction, suffice it to say that this Court has the supervisory jurisdiction over the subordinate Courts and if the order passed by the Court is not tenable under the law, is perverse or perfunctory, or as in the present case the Court has failed to apply and follow the correct law laid down by the Honourable Supreme Court of Pakistan, such error can be held to be an error in the exercise of jurisdiction, and thus, interfered in revision.
In the light of above, by allowing this petition, the impugned order to the extent of the imposition of condition is set aside with the direction to the petitioner to furnish the solvent security to the tune of the suit amount, to the satisfaction of the trial Court within a period of one month from today. If the security is not so furnished, this petition shall be deemed to have been dismissed.
(Anwar Saeed) Petition dismissed
PLJ 2007 Lahore 240
Present: Muhammad Muzammal Khan, J.
NAWAZ--Appellant
versus
MATEEN AHMED QURASHI--Respondent
S.A.O. No. 37 of 2006, decided on 6.10.2006.
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Bona fide personal need--Ejectment petition--Default ground of--Ex-parte proceeding initiated and ultimately ex-parte ejectment order passed against appellant--Appellant had not moved any application for setting aside ex-parte proceedings/ejectment order and instead filed an appeal against the eviction order but remained unsuccessful--Assailed--Appellant's absence from the Court of Rent Controller was in no manner justified, even from the medical record produced by him--Appellant has not explained absence of his counsel from the Court of Rent Controller and that as to why any body else from his family, did not appear to follow the ejectment proceedings--Appellant was rightly proceeded against ex-parte by Rent Controller--According to appellant's own showings, he remitted rent of seven months through money order, even in that case, default in payment of rent of this period was admitted by him and the rent due being short was not valid tender--Appellant has no explanation for the default committed by him for the period intervening the money order and filing of ejectment petition which makes his defaulting attitude, deliberate--Appellant had not deposited any rent even after filing of ejectment petition till the passing of order u/s 13(6) of Ordinance 1959 by Rent Controller--Both the Courts below correctly concluded the his without committing any error of law/facts, thus the same remained immune from scrutiny--Appeal dismissed. [Pp. 242 & 243] A, B & C
Mr. Shahid Mehmood Khan Khilji, Advocate for Appellant.
Ch. Inayat Ullah, Advocate for Respondent.
Date of hearing: 6.10.2006.
Order
Instant second appeal assailed judgments/orders dated 11.3.2005 and 4.2.2006 passed by the learned Rent Controller and the learned Additional District Judge, Sargodha; whereby respondents ejectment petition was accepted and appellant's first appeal was dismissed, respectively.
Precisely, factual backdrop of the case is that respondent being landlord of shop situated in Property No. 43/l-D, Kothi No. l, New Civil Lines, Sargodha, which was on rent with the appellant at a monthly rent of Rs. 1200/- per month, filed an ejectment petition under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959; Respondent in support of his ejectment petition, pleaded that appellant had become defaulter since September 2002, as he did not pay rent upto March, 2003; that he required the shop on rent for his bona fide personal need; and that appellant had damaged the property by diminishing its utility and impairing its value.
Appellant being respondent in the ejectment petition, opposed the same by filing his written reply, wherein he refuted all the three grounds of ejectment taken by the respondent and averred that he bona-fidely tendered the entire outstanding rent through money order dated 9.7.2003, which was refused by the respondent with malice to initiate ejectment proceedings. Controversial stances of the parties, led to framing of issues and recording of evidence. Respondent being petitioner/landlord examined two witnesses, including his own statement as AW.1 and the case was adjourned for his documentary evidence. On the next date of hearing i.e. 22.10.2004 respondent without producing documents, closed his evidence and the case was adjourned for evidence of the appellant. On the next date, which was fixed for evidence of the appellant i.e. 18.11.2004, no body appeared on his behalf and the case was adjourned to 21.12.2004. On this date again no body appeared for the appellant and the learned Rent Controller after calling the case four times after certain intervals, proceeded ex parte against him and ultimately passed an ex parte ejectment order on 11.2.2005.
Appellant did not file any application for setting aside ex-parte proceedings or ex-parte order passed against him and instead filed an appeal before the learned Additional District Judge against the eviction order dated 11.2.2005 but remained unsuccessful, as the same was dismissed on 4.2.2006. Thereafter appellant filed instant second appeal, wherein respondent in response to notice by this Court, appeared and was represented through his counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Appellant had not moved any application for setting aside the ex-parte proceedings/ejectment order and his explanation for absence from the Court of learned Rent Controller affer filing his written reply (written statement) as detailed in the memorandum of appeal before the learned Additional District Judge, was that he was sick for the last one year and consequently remained absent and could not intimate his counsel as well. Appellant appended with the appeal his medical prescriptions/reports which revealed that he had some blood sugar and urinary problem, in form of prostate. Appellant also produced his discharge slip dated 1.1.2003 from Al-Ghani Zaighum Poly Clinic, Sargodha where he was operated for prostate. The sickness/operation of the appellant was not of that serious nature to restrict him from appearing before the Court or from making some alternate arrangement in this behalf and that too, after lapse of almost two years. Appellant was discharged from hospital on 1.1.2003 and he was proceeded against ex-parte on 21.12.2004 and in this manner, his absence from the Court of Rent Controller was in no manner justified, even from the medical record produced by him. Assuming, without conceding that appellant was incapacitated to appear before the Rent Controller but he has not explained absence of his counsel who having been once engaged, was under legal obligation to appear in the case against the appellant, even without instructions. Appellant has also not explained that as to why any body else from his family, did not appear to follow the ejectment proceedings. All this brings one to hold that appellant was rightly proceeded against ex-parte by the Rent Controller.
Appellant has been ordered to be evicted from the shop in question on the basis of his default in payment of rent but stance of the learned counsel for the appellant, was that the same was not willful thus impugned ejectment order is not sustainable at law. In order to determine legal worth of the submissions of the learned counsel for the appellant, his conduct of payment of rent during the continuance of tenancy will have to be looked into. Respondent's plea in the ejectment petition was that appellant defaulted in payment of rent since September 2002. Appellant besides pleading in his written reply that he remitted rent amounting to Rs. 8000/- through money order dated 9.7.2003, which was refused by the respondent, had also produced money order receipts/coupons. Rate of rent is not denied by the appellant which was, Rs. 1200/- per month. Appellant dispatched
Rs. 8000/- through money order on 9.7.2003 but he being defaulter in payment of rent since September 2002 was liable to pay rent of Rs. 13,200/-. According to appellant's own showings, he remitted rent of seven months, even in that case, default in payment of rent of this period was admitted by him and the rent due being short by Rs. 400/- was not valid tender. Appellant after refusal of the respondent to accept money order, did not deposit the rent with the Rent Controller and went on committing default till the time ejectment petition was filed on 9.9.2003. Appellant has no explanation for the default committed by him for the period intervening the money order and filing of ejectment petition which makes his defaulting attitude, deliberate. Learned counsel for the appellant could not point out, even one stance in support of his claim that appellant was not a willful defaulter in payment of rent because appellant had not deposited any rent even after filing of ejectment petition till the passing of order under Section 13(6) of Ordinance 1959 by the Rent Controller on 23.12.2003. Besides all this, scan of record and impugned orders/judgments revealed that both the Courts below correctly concluded the lis without committing any error of law/facts, thus the same remained immune from scrutiny in second appeal.
(Anwar Saeed) Appeal dismissed
PLJ 2007 Lahore 244
Present: Syed Shabbar Raza Rizvi, J.
Malik MUHAMMAD RAZAQ--Petitioner
versus
CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD
and 7 others--Respondents
Writ Petition No. 10686 of 2006, decided on 14.11.2006.
(i) Constitution of Pakistan--
----Art. 47(6)(7)--Punjab Local Government Ordinance (XIII of 2001)
S. 85(7)--Right of audience--Not provided--Effect--It is provided at the time of deliberations mentioned in Sub-section (3) of Section 85--Finding gathers support from collective reading of Clauses (6) and (7) of Article 47 of the Constitution. [P. 246] B
(ii) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 85(3)--Constitution of Pakistan, 1973, Art. 199--Summon a Session of Union Council--Necessity for Naib Nazim--Where Union Council is already in session, there will be no necessity for Naib Nazim to summon a session of the Union Council within three days--But if the Union Council is not in session the Naib Nazim shall summon the session within three days. [P. 246] A
2005 YLR 99, 2004 YLR 1856, 2004 SCMR 1903, PLD 1991 SC 1029 and
PLD 1990 Lah. 9.
2005 CLC 1069, 2005 YLR 99, 2004 SCMR 1903, 2004 YLR 1856, PLD 1991 SC 1029 and PLD 1990 Lah. 9.
Rana Muhammad Zahid, Advocate for Petitioner.
Mr. Tahir Munir Malik, Advocate assisted by Ghazanfar Ali Gul and Malik Muhammad Rafiq, Advocates for Respondents.
Date of hearing: 14.11.2006.
Order
The petitioner has called in question "recall" proceedings against him on the ground that the proceedings were conducted disregarding the provisions of Section 85 of the Punjab Local Government Ordinance, 2001.
Briefly, the `recall motion' was moved on 14.9.2006. The House of the Union Council No. 9, Jaura Jalapur, district Gujrat, was summoned on 18.9.2006. Rana Zahid Iqbal, Civil Judge was appointed as Presiding Officer. On 29.9.2006, proceedings were conducted and as a result of the same, the petitioner was unseated.
According to the learned counsel for the petitioner, sub-sections (2) and (7) of Section 85 of the Punjab Local Government Ordinance, 2001 were not followed in the above proceedings. The precise grievance of the learned council for the petitioner is that notice of motion was received on 14.9.2006, but the session of the Union Council was held on 18.9.2006 which was to be held within three days as required under sub-section (2) of Section 85 of the Ordinance. Likewise, he submitted that sub-section (7) of Section 85 of the Ordinance requires that the petitioner should have been given right of audience/defence through an address to the House of the Union Council. In this regard, the learned counsel referred to Muhammad Ramzan Vs. Government of the Punjab through Secretary, Local Government and Rural Development Department, Lahore and others, 2005 CLC 1069.
I may point out, herein, that grievance in the said judgment of the petitioner was, lack of notice and not providing a right of address. Whereupon, counsel for respondents offered that the impugned resolution may be annulled subject to keeping `recall motion' alive which may be directed to put to the House again where the petitioner would have a right to defend the same. The offer was accepted by the petitioner, hence, the case was remanded. Interpretation of sub-section (7) of Section 85 of the Ordinance or sub-section (7) of Section 92 of the Ordinance was not done in the above case. In the present case, there is no such agreement between the parties. Both have their own interpretations of sub-section (2) and (7) of Section 85 of the Ordinance.
Before I decide the same, I would like to take down the views of the learned counsel for the respondents.
According to the learned counsel for Respondent No. 8, he has certain preliminary objections. For example, the mover and seconder of the `motion' were not made party, therefore, the petition is not maintainable. Secondly, the petitioner failed to avail alternate remedy provided under the Law. Thirdly, the Election Commission has issued notification of removal of the office of the petitioner which has not been challenged.
After considering the preliminary objection, I ignore the same in the interest of justice to address the real points raised by the respective learned counsel. According to the learned counsel for Respondent No. 8, Section 85 of the Ordinance can be divided into two parts. 1st part consists of sub-sections (1), (2) and (3), whereas second part consists of sub-sections (4) to (8) of Section 85. According to the learned counsel, the word "summon" is used in sub-section (2) and it means to call a session within three days, it does not mean that session or meeting of the Council must be held within three days. The learned counsel also submits that under sub-section (7), the Nazim, Union Council has been given right to address to the Union Council in his defence when "motion" is under consideration in the House of the Union Council and it is also evident from the language of sub-sections (2) and (3). According to him, sub-section (7) cannot be read into sub-section (4). Under sub-section (4) it is the secret balloting which takes place after procedure under Sections 2 and 3 is over. In this regard, the learned counsel for the petitioner, referred to PLD 1991 SC 1029, PLD 1990 Lahore 9, 2004 SCMR 1903, 2005 YLR 99 and 2004 YLR 1856.
I have considered the provisions of Section 85 as well as provisions of 92 of the Punjab Local Government Ordinance, 2001, in conjunction with provisions of Article 47 of the Constitution of Pakistan. In my view, "summon" means to call or order to appear or in terms of sub-section (2) "summon" means to summon a meeting of Union Council within three days. It can also be described to issue a notice of a session of Union Council within three days, but the actual meeting so summoned may not necessarily be held within three days on receipt of notice referred to in sub-section (1). In clause (4) of Article 47 of the Constitution of Pakistan, the Speaker of the National Assembly is required, within three days of the receipt of a notice, to cause a copy of the notice to be transmitted to the President, then under clause (5) of the same Article, the Speaker is required to summon the two Houses to meet in a joint sitting not earlier than 7 days and not later than 14 days after the receipt of the notice by him. Therefore, the requirement of sub-sections (2) and (3) of Section 85 of the Ordinance is to take decision and to convey the same to the Members within three days on which date House will sit or hold meeting to consider the motion. This finding gets support from the language of sub-section (3) of Section 85 of the Ordinance which reads that where the Union Council is already in session there will be no necessity for Naib Nazim to summon a session of the Union Council within three days'. But if the Union Council is not in session the Naib Nazim shall summon the session within three days.
Likewise, sub-section (7) or the right of Nazim Union Council to address the Union Council in his defence relates to provisions of sub-section (3) i.e. deliberations in the Union Council. Sub-section (7) does not relate to provisions of sub-section (4) of Section 85 of the Ordinance. The provisions of sub-section (4) are regarding approval or non approval by 2/3rd majority of the votes of the total membership of the Union Council through a secret ballot. At the time of secret balloting, right of audience/address is not provided. It is provided at the time of deliberations mentioned in sub-section (3) of Section 85. This finding gathers support from collective reading of clauses (6) and (7) of Article 47 of the Constitution.
In view of the above discussion and reasons, I find no force in the present writ petition, therefore, it is accordingly dismissed.
(Khalid Awan) Petition dismissed
PLJ 2007 Lahore 247
Present: Syed Shabbar Raza Rizvi, J.
Mst. ZAHIDA BIBI--Petitioner
versus
DISTRICT RETURNING OFFICER, KASUR
and 2 others--Respondents
W.P. No. 12107 of 2006, decided on 20.11.2006.
Punjab Local Government Election Rules, 2005--
----R. 12(5)--Constitution of Pakistan, 1973, Art. 199-Nomination papers were filed after due date--Appeal was accepted on ground of sickness--Assailed--Medical certificate submitted by respondents was fake and was forged--Language of Rule 12(5) is unambiguous under which it was not necessary for candidate to present nomination papers personally--If respondent was sick her proposer or seconder would have presented her nomination papers to the returning officer--Therefore decision of Returning Officer was correct and impugned order passed by First Appellant Court was illegal and inconsistent with Rule 12 of the Punjab Local Government Election Rules, 2005--Held: A person who approaches Court under Constitutional jurisdiction with unclean hands deserve no leniency and favour under Constitutional jurisdiction.
[Pp. 248 & 249] A & B
Syed Tayyab Mehmood Jaferi, Advocate for Petitioner.
Ch. Muhammad Din Ansari, Advocate for Respondent No. 3.
Date of hearing: 20.11.2006.
Order
The learned counsel for the petitioner submits that Respondent No. 3 failed to deposit or file her nomination papers on 2/3.11.2006, therefore, her nomination papers were not accepted by the Returning Officer after the due date. However, Respondent No. 3 filed an appeal before the learned District Returning Officer/Addl. District Judge, Kasur on 10.11.2006, on the ground that she could not file her nomination papers, in time, as she was sick. On ground of sickness, the learned Addl. District Judge accepted her appeal and directed the Returning Officer to receive her nomination papers. The learned counsel for the petitioner submits that the learned Addl. District Judge could not have allowed the entertainment of nomination papers of Respondent No. 3 after expiry of the scheduled date. The learned counsel also submits that the medical certificate relied upon by the Respondent No. 3 and Addl. District Judge is also fake and the same was forged. The said doctor, who purportedly issued the certificate, has disowned the certificate on the ground that he was on leave on which date the certificate was apparently issued.
Dr. Safdar Iqbal, M.O. DHQ Hospital, Kasur was noticed and Respondent No. 3 was also noticed. On 17.11.2006, the learned counsel for the Respondent No. 3 appeared and sought an adjournment which was granted. The office was directed to refix this case in his presence on 20.11.2006 as the election is due on 22.11.2006. Dr. Safdar Iqbal, M.O. appeared in the Court on 17.11.2006 and categorically stated that the medical certificate was not issued by him and it was a forged document. He further stated that he was on leave on the said date duly approved by the competent authority. Today, the learned counsel for the Respondent No. 3 has appeared and refused to argue the case on the ground that he was sick and would be available after 2/3 days. As noted above, the case was adjourned for today i.e. 20.11.2006 on the ground that election is going to take place on 22.11.2006. This Court cannot be made hostage by any party or proceeding cannot be regulated for convenience of an individual.
I have gone through the order of the learned District Returning Officer who had recorded that "Respondent No. 3 could not file her nomination papers as per schedule due to her illness. She applied to the Returning Officer on the next day i.e. 4.11.2006 for filing her nomination papers. She being woman deserves to be encourage for participating in the democratic process. This appeal is accepted." The order of the learned Addl. District Judge/D.R.O, Kasur clearly shows that Respondent No. 3 presented her nomination papers on 4.11.2006 after expiry of the fixed date on ground that she was sick on 2.11.2006 and 3.11.2006. The learned Addl. District Judge has completely ignored the provisions of Rule 12(5) of the Punjab Local Government Election Rules, 2005. Sub-rule (5) of Rule 12 reads as under:--
"Every nomination paper shall be delivered by the candidate or his proposer or his seconder to the Returning Officer who shall acknowledge the receipt of the nomination papers specifying the date and time of the receipt."
So the language of sub-rule (5) of Rule 12 is unambiguous under which it was not necessary for Respondent No. 3 to present her nomination papers personally. If she was sick, her proposer or seconder would have presented her nomination papers to the Returning Officer. Therefore, decision of the Returning Officer is correct and the impugned order dated 10.11.2006 passed by the learned Addl. District Judge/D.R.O, Kasur is illegal and inconsistent with Rule 12 of the Punjab Local Government Election Rules, 2005. The learned Addl. District Judge/D.R.O relied upon the medical certificate which has been stated as forged and fake one by Dr. Safdar Iqbal, M.O. DHQ Hospital, Kasur who stated so in the Court. The statement of the doctor also shows that Respondent No. 3 approached the learned District Returning Officer with sullen hands, thus deserves no discretionary relief still relying on the said medical certificate. A person who approaches Court under the constitutional jurisdiction with unclean hands deserves no leniency and favour under the constitutional jurisdiction. This fact may be brought into notice of the learned Addl. District Judge before whom this document was used to further proceed against the Respondent No. 3 in accordance with law.
(Rafaqat Ali Sohal) Petition allowed
PLJ 2007 Lahore 249
Present: Muhammad Akhtar Shabbir, J.
IMRAN SHAFIQ--Petitioner
versus
Dr. ZULFIQAR AHMED and 2 others--Respondents
W.P. case No. 10603 of 2006, decided on 11.10.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O.XIII, Rr. 1 & 2--Production of document--Sufficient reason--No satisfactory explanation was given by the petitioner--Trial Court has not acted arbitrarily in the circumstances and no principle of law having been violated by trial Court--Observation of the trial Court has been upheld by revisional Court and High Court will also not interfere in the same.
[P. 251] A
1990 SCMR 964, 1999 SCMR 951, 1989 SCMR 918, PLD 1991 SC 496, 1993 SCMR 618.
Mr. Muhammad Farooq Qureshi Chishti, Advocate for Petitioner.
Date of hearing: 11.10.2006.
Order
This order will dispose of Writ Petitions No. 10603/2006, 10604/2006 and 10605/2006 as common question of law and facts is involved in all the three writ petitions.
Facts giving rise to the instant writ petitions are to the effect that the present petitioner Imran Shafique plaintiff/petitioner herein had instituted three civil suits against Dr. Zulfiqar Ahmad, Haji Manzoor Ahmad, and Haji Maqsood Ahmad Defendant/Respondent No. 1, The suits were contested by defendants/ respondents who filed their written statement denying the averments of the plaint with the prayer of dismissal of the suits. From the factual controversy appearing on the pleadings of the parties, the learned Trial Court on 30.06.2003 framed the various issues. The plaintiff was directed to produce his evidence. During the trial of the suits the plaintiff/petitioner has filed separate applications in three suits under Order 13, Rules 1 & 2 C.P.C. for production of the registered envelope sent to the respondents/defendant, in the Court. The applications of the petitioner were contested by every defendant and the learned trial Court after hearing the arguments of the parties dismissed the same vide order dated 16.05.2006. Feeling aggrieved the plaintiff/petitioner preferred a revision petition, which came up for hearing before the learned Addl. District Judge, Sialkot, who vide impugned judgment and decree dated 20.09.2006 dismissed the revision petitions of the plaintiff/petitioner.
The learned counsel for the petitioner vehemently questioned the validity of the impugned orders contending that the registered envelope was a public document. At the time of filing of the suit it was not in possession of the petitioner, therefore, he has applied to the Court for production of the same in evidence.
I have heard the learned counsel for the petitioner and perused the record.
The civil suits have been filed by the petitioner/plaintiff on 26.3.2003; written statements were filed by the defendants on 30.6.2003; issues were framed by the Court on the same date and the plaintiff was directed to produce his evidence. The statement of (P.W.1) Shehzad Hussain Branch Postman has been recorded on 25.5.2005. The plaintiff/petitioner has taken very long time for production of his evidence after the settlement of issues. The applications for production of the registered envelope have been filed by the plaintiff/petitioner on 16.5.2006 wherein he has stated that on the day of filing of the suits the registered envelope has not been received to him. He in Paragraph No. 3 of the applications stated that inadvertently he has not entered/mentioned this document in his list of reliance. This application too has been filed by the petitioner with the delay of more than two years after institution of the suits, even after settlement of issues.
Order 13, Rule 2 C.P.C. reads as under:--
"No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements or Rule 1 shall be recorded at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing."
Rule 1 of Order 13 further envisages that:
"The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in the Court, and all documents which the Court has ordered to be produced".
And if not produced at least this document as per the contention of the learned counsel for the petitioner, was not in the possession of the petitioner at the time of institution of the suit but he should have placed reliance of the document or at the receipt of acknowledgment due in his list of reliance. The sub-rule (2) has empowered the Court to receive the same provided sufficient reasons for non-production are shown by the party'. The learned trial Judge has in an elaborate order dated 16.05.2006 had come to the conclusion that good cause has not been shown to his satisfaction for non-production of the document and the order has been upheld by the revisional Court as well and the High Court is always reluctant to interfere with the impugned orders passed by the Courts below in its Constitutional jurisdiction. The only arguments of the learned counsel for the petitioner that the petitioner has filed the application for permission to produce the document on the ground that at the time of institution of the suits, this envelope has not been received back by him. But, the question is when he received back this envelope undelivered, why immediately the application was not filed, no satisfactory explanation was given by the petitioner for the same. The trial Court has not acted arbitrarily in the circumstances and no principle of law having been violated by the trial Court. The observation of the trial Court has been upheld by the revisional Court and the High Court will also not interfere in the same. Reference in this context can be made to the cases of Muhammad Umar Mirza vs. Waris Iqbal and others (1990 SCMR 964), and Rab Nawaz and another Vs. Muhammad Amir and another (1999 SCMR 951).
There is concurrent findings of facts against the petitioner and the High Court in exercise of its writ jurisdiction would not interfere in the concurrent findings of the Courts below as laid down in the cases of Benedict Souza Vs. Karachi Building Control Authority and three others (1989 SCMR 918), Federation of Pakistan and two others Vs. Major (Retd.) Muhammad Sabir Khan (PLD 1991 S.C. 476), and Muhammad Younas Khan Vs. Government of N.W.F.P. through Secretary and others (1993 SCMR 618). Learned counsel for the petitioner has not been able to point out any illegality or jurisdictional defect in the impugned orders and miserably failed to persuade the Court to interfere with the same.
For the foregoing reasons, these writ petitions being devoid of force are dismissed in limine.
(Khalid Awan) Petitions dismissed
PLJ 2007 Lahore 252
Present: Tariq Shamim, J.
GHULAM QADIR--Petitioner
versus
Mst. AZRA BIBI and 5 others--Respondents
W.P. No. 9804 of 2006, decided on 10.10.2006.
Illegal Dispossession Act, 2005--
----S. 7--Constitution of Pakistan, 1973, Art. 199--Recalling of order--Valid and lawful reasons had been assigned by the Court while exercising its jurisdiction--Discretionary order passed by the Courts below could not be challenged in exercise of Constitutional jurisdiction of High Court until it could be shown that the same were whimsical, fanciful or arbitrary.
[P. 253] A
Illegal Dispossession Act, 2005---
----S. 7--Interim order--Validity--Interim order passed under S. 7 of the Illegal Dispossession Act, 2005 cannot be challenged in High Court in its Constitutional jurisdiction as it can be validly challenged in appeal against the final judgment. [P. 253] B
1985 SCMR 1925.
Qazi Muhammad Arshad Bhatti, Advocate for Petitioner.
Mr. Fazal Hussain, Advocate for Respondent No. 1.
Date of hearing: 10.10.2006.
Order
Through this petition, the petitioner has challenged the interim order dated 19.7.2006 passed by the learned trial Court on an application filed by Respondent No. 1 under Section 7 of the Illegal Dispossession Act, 2005, and the order dated 7.9.2006 declining to recall its earlier order on the application filed by the petitioner inter alia on the grounds that the address of the petitioner was deliberately wrongly stated in the complaint so that he would not be served with notice; that the learned trial Court acted in haste while deciding the application under Section 7 of the Act: that the documents referred to and relied upon by Respondent No. 1 were fake and fabricated and that the learned trial Court on the application filed by the petitioner ought to have recalled the earlier order dated 19.7.2006.
No. 1 contended that the order challenged through the instant petition was passed under Section 7 of the Illegal Dispossession Act, 2005 which was an interim order and could not be challenged in constitutional jurisdiction of this Court: that the only remedy available to the petitioner was to file an application under Section 265-K Cr.P.C. as the petitioner could not challenge criminal proceedings through a Constitutional petition and that the writ petition had been filed absolutely on false and baseless allegations hence the same deserved to be dismissed.
I have heard the learned counsel for the parties, perused the record and the documents placed on the record by both sides.
A perusal of the documents placed on the record by Respondent No. 1 with the reply reveal beyond any doubt that the said respondent was owner in possession of the property in question who had. been dispossessed by the petitioner. Even otherwise, the order reveals that valid and lawful reasons have been assigned by the learned lower Court while exercising jurisdiction in the matter. The discretionary order passed by the Courts below cannot be challenged in the exercise of the Constitutional jurisdiction of this Court until it can be shown that the same are whimsical, fanciful or arbitrary. Learned counsel for the petitioner has not been able to point out any, illegality or infirmity in the orders of the learned Additional Sessions Judge. The impugned orders cannot be challenged in the Constitutional jurisdiction as the said orders can be validly challenged at the time of filing of appeal against the final judgment. Reliance is placed on the case of Ghulam Hussain and another v. Malik Shahbaz Khan (1985 SCMR 1925)
For what has been discussed above, I see no force in this writ petition which is dismissed.
(Fouzia Fazal) Petition dismissed
PLJ 2007 Lahore 253
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
MALIK AMEER BAKHSH--Petitioner
versus
ADDL. DISTRICT JUDGE, MULTAN and 3 others--Respondents
W.P. No. 3335 of 2006, decided on 3.7.2006.
Constitution of Pakistan, 1973--
----Art. 199--Election petition--Quashment of order--Held: A perusal of attested copy of agreement to sell leaves no doubt or ambiguity that it was expressly agreed between the parties which not only established the relationship of landlord and tenant between the parties till the sale-deed was executed but also bound the petitioner to pay the rent as agreed.
[P. 255] A
Specific Performance--
----Neither pendency of suit for specific performance is an impediment in the institution of ejectment petition nor agreement to sell between parties could debar the Rent Controller from holding the petitioner as defaulter.
[P. 255] B
PLD 1991 S 242; 2003 SCMR 1416.
Malik Javed Akhtar Vains, Advocate for Petitioner.
Syed Muhammad Ali Gillani, Advocate for Respondents Nos. 3 & 4.
Date of hearing: 3.7.20067.
Order
The petitioner seeks quashment of order dated 12.12.2005 passed by learned Rent Controller whereby ejectment petition filed by Respondents Nos. 3 and 4 was allowed directing ejectment of the petitioner from the premises in question and also the dated 20.1.2006 passed by learned Additional District Judge, Multan whereby the appeal of the petitioner against the order of his ejectment, was also dismissed.
The facts in brief are that petitioner entered into an agreement to sell about the demised property with Respondents Nos. 3 and 4 through agreement dated 22.7.2002, whereby the petitioner agreed to purchase the said premises for a consideration of Rs. 12,00,000/-. The respondents received Rs. 2,00,000/- from the petitioner at the time of execution of the said agreement and it was further agreed between the parties that if the remaining amount of Rs. 10,00,000/- was not paid at the time of registration of the sale-deed till 30.9.2002, the total consideration amount would come to Rs. 11,00,000/-. It was also agreed between the parties that till completion of the sale-deed the petitioner would continue paying Rs. 2500/- as monthly rent for the premises and that rent would automatically stand increased after every year. It so happened that petitioner failed to pay the rent of the premises therefore, Respondents Nos. 3 and 4 filed ejectment petition against the petitioner alleging that as the petitioner was a defaulter since August, 2002 to January, 2004 and thus an amount of Rs. 45,000/- was outstanding against him, as such he was liable to be ejected from the premises. The petitioner on the other hand filed reply to the said ejectment petition and took the plea that as the suit for specific performance of agreement to sell was pending between the parties in the Court of Senior Civil Judge, Multan, hence the said application was not maintainable. The petitioner further denied the existence of relationship of landlord and tenant between the parties. The learned Rent Controller framed the following preliminary issue:--
Whether the relationship of tenant and landlord exists between the parties or not? O.P Parties.
Relief.
After recording evidence of the parties and keeping in view the admission of the petitioner about execution of agreement to sell as well as default in payment of rent, the learned Rent Controller proceeded to accept the said application vide order dated 12.12.2005 directing the petitioner to hand-over vacant possession of the disputed premises to Respondents Nos. 3 and 4 within thirty days and also to pay the previous rent at the rate of
Rs. 2500/- per month from August, 2002 till the decision of the petition. Against the said order of the learned Rent Controller the appeal filed by the petitioner was also dismissed by the learned Additional District Judge on 20.6.2006, hence this Writ Petition.
It has been argued by learned counsel for the petitioner that in view of the pendency of the suit for specific performance of agreement to sell and that relationship between the parties being not that of a landlord of tenant, neither the learned Rent Controller was justified in passing the ejectment order against the petitioner nor his appeal could validly be dismissed by the learned Additional District Judge.
On the other hand, learned counsel for the private respondents while placing reliance on the case "Iqbal and 6 other versus Mst. Rabia Bibi and another (PLD 1991 S.C 242) and "Wajid Ali Khan versus Sheikh Murtaza Ali and 2 others" (2003 S.C.M.R 1416) argued that as it was specifically agreed between the parties in the agreement to sell that petitioner would continue paying the rent till the execution of sale-deed, hence, neither the petitioner could refuse to pay rent nor the pendency of suit for specific performance was an impediment in the way of respondents for filing ejection petition seeking ejectment of the petitioner and that the question of pendency of suit for specific performance of contract in the Civil Court has no nexus with this petition which shall be decided by the learned Civil Court on its own merits.
I have considered the arguments of learned counsel for the parties and perused the available record with their assistance.
A perusal of attested copy of agreement to sell Ex. A-2 leaves no doubt or ambiguity that it was expressly agreed between the parties as under:--
which not only established the relationship of landlord and tenant between the parties till the sale-deed is executed but also binds the petitioner to pay the rent as agreed. The petitioner in his reply to the ejectment petition also admitted that he was not liable to pay any rent to the respondent. In this view of the matter the learned Rent Controller as well as the learned Additional District Judge did not fall into any illegality by declaring the petitioner as defaulter and as held by the Hon'ble Supreme Court of Pakistan in both the cited judgments, neither pendency of suit for specific performance was any impediment in the institution of ejectment petition nor the agreement to sell between the parties could debar the learned Rent Controller from holding the petitioner as defaulter on the basis of his own admission.
The upshot of above discussion is that this writ petition has got no force and is dismissed in limine. However, the petitioner is allowed time till 2.9.2006 to vacate the premises in question and deliver its possession to respondents.
Needless to point out that findings/observations recorded in the ejectment order shall be confined to the extent they relate to the question of declaring the petitioner as defaulter as a tenant and shall have no bearing on the findings of the learned Civil Court about enforcement of the agreement to sell and suit filed by the petitioner for specific performance of agreement to sell shall be decided on its own merits and keeping in view the evidence to be led by the parties.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 Lahore 256
Present: Sayed Zahid Hussain, J.
NEK ALAM CHEEMA--Petitioner
versus
ISLAMIC REPUBLIC OF PAKISTAN through SECRETARY ESTABLISHMENT DIVISION, GOVT. OF PAKISTAN
and another--Respondents
W.P. No. 15491 of 2000, heard on 11.10.2006.
Chief Martial Law Administrator--MLR 58--Provisional Constitution Order, 1981--
----Art. 13(a)(1)(b)--Constitution of Pakistan, 1973 Art. 199--Service matter--Constitutional petition--Civil servant was dismissed from service by order of the then Chief Martial Law Administrator under MLR 58--Petition in High Court abated due to establishment of the Service Tribunal--Appeal before the Service Tribunal dismissed for want of jurisdiction--Order of Federal Service Tribunal was set aside by Supreme Court and the case was remanded--Appeal was accepted by Tribunal and civil servant accordingly reported for duty--Service Tribunal was yet awaiting implementation, the respondent assailed that order before the Supreme Court--Civil servant approached High Court directed the Government to implement the judgment of the Service Tribunal--Appeal of the Government qua the judgment of Federal Service Tribunal stood abated by addition and operation of Art. 13-A in the then Provincial Constitution Order 1981, however, Supreme Court affirmed the judgment of High Court--Objection of--Civil servant who was making repeated applications time and again to get decision of the Federal Service Tribunal implemented but without any positive response--There was undoubtedly procrastination on the part of the respondents and delay on their part cannot be made a ground for non-suiting the petitioner--Conduct of the respondents could furnish a cause of action for agitating the matter before the Court--Objection as to laches is not well founded--After the judgment of the Federal Service Tribunal the petitioner was seeking implementation thereof and nothing more so the objection that the matter relates to conditions of service therefore, the petition is not maintainable also does not hold the ground--Petition accepted. [P. 258] A
Constitution of Pakistan, 1973--
----Art. 189--Bound to honour--Implementation--Rather all are bound to honour and respect the same in view of Art. 189 of Constitution of Pakistan--Petitioner is justified in seeking similar treatment and implementation of judgment of tribunal. [P. 259] B
1991 MLD 1834, 1992 SCMR 1309, rel.
1996 SCMR 1185, 2003 SCMR 1030, ref.
Mr. Inayatullah Cheema, Advocate for Petitioner.
Mr. Zafar Iqbal Chaudhry, Deputy Attorney General Pakistan for Respondents.
Date of hearing: 11.20.2006.
Order
The petitioner who joined the Police Service of Pakistan in the year 1952 was Superintendent of Police at Mianwali in the year 1969, when he was placed under suspension on 3.12.1969 by order of the then Chief Martial Law Administrator under MLR-58 known as Removal from Service (Special. Provisions) Regulations. He was one of the 303 officers who was dismissed from service on 7.4.1970. He assailed that order by means of a writ petition in the High Court, which however stood abated due to the establishment of the Service Tribunal. He then filed appeal before the Service Tribunal which was dismissed for want of jurisdiction. However the order of Federal Service Tribunal was set aside by the Hon'ble Supreme Court of Pakistan and the case was remanded to the Service Tribunal. The appeal then was heard by the learned Tribunal and was accepted vide judgment dated 29.4.1981 by holding that "in the above circumstances and the detailed reasons and the facts discussed in case of W.A. Shaikh v. Establishment Division; which are also present in respect of this appellant we accept the appeal of Mr. Nek Alam Cheema and vacate order of dismissal passed against him. He shall be deemed to have been in service with effect from the date he was dismissed, as if no action had been taken against him under MLR-58. He shall also be entitled to pay, allowances, restoration as seniority and also consideration for promotion, if any, under the normal rules." He accordingly reported for duty as is evident from application dated 11.5.1981. While the judgment of the Service Tribunal was yet awaiting implementation, the respondent assailed that order before the Hon'ble Supreme Court of Pakistan whereas the officers like the petitioner approached the High Court and' eventually a learned Division Bench of the Lahore High Court vide order dated 13.7.1982 in S. Inamul Haq v. Secretary Establishment Division, Govt. of Pakistan (NLR 1982 Service 236), directed the Government to implement the judgment of the Service Tribunal. As thereafter Article 13-A was added in the then Provisional Constitution Order 1981, the appeal of the Government qua the judgment of Federal Service Tribunal stood abated by operation of the same The order passed by the Hon'ble Supreme Court of Pakistan on 3.10.1982 was to the effect, that "The learned Advocate-General Punjab states that all these appeals filed by the Government have abated under Article 13-A(1)(b) of the Provisional Order, 1981. Agreeing with him thus, these appeals are disposed of as such" Despite the above legislative, measures the controversy, however, did not come to an end and the High Court of Sindh in S.A. Rizvi V. Islamic Republic of Pakistan through Secretary. Establishment Division and 2 others (1991 MLD 1834) accepted a petition setting aside the dismissal order of the petitioner therein. The said judgment was affirmed by the Hon'ble Supreme Court of Pakistan in Islamic Republic of Pakistan v. S.A. Rizvi (1992 SCMR 1309). The petitioner herein also considering himself to be placed in identical situation seek reinstatement in service in implementation of the order passed by the Federal Service Tribunal dated 29.4.1981 when his appeal was accepted.
The learned counsel for the petitioner relies upon a recent judgment of the Hon'ble Supreme Court of Pakistan dated 9.12.2004 in C.A. No. 1251 to 1255 of 2001 and seeks similar treatment. It is further stated by him that the petitioner would have in the normal circumstances retired with effect from 5.6.1987 on attaining the age of superannuation and in case the judgment of the Federal Service Tribunal dated 29.4.1981 is implemented, the petitioner would only be entitled to retirement benefits. The learned Deputy Attorney General, Pakistan has objected to the maintainability of the petition primarily on the ground that the same suffers from laches and that the matter relating to the conditions of service of a civil servant cannot be agitated before this Court in writ jurisdiction.
The respective contentions have been considered. The salient features of the case have been briefly mentioned above. In order to meet the objection as to laches reference to paragraph-15 of the petition is appropriate which demonstrates the continuous agitation of the matter and efforts made by him for seeking implementation of judgment of the Federal Service Tribunal dated 29.4.1981. The same is that "15. The petitioner approached the Establishment Division, Government of Pakistan to implement the decision of the Federal Service Tribunal dated 29.4.1981 but to no effect. Since then the petitioner had made several representations which have not brought any result." The contents of the said Para were not denied and the reply was "Needs no comments". It was indeed the petitioner who was making repeated applications time and again but without any positive response. There was undoubtedly procrastination on the part of the respondents and delay on their part cannot be made a ground for non-suiting the petitioner. In fact such a conduct of the respondents could furnish a cause of action for agitating the matter before the Court. In such peculiar circumstances, the objection as to laches is not well founded. The other objection of the learned Deputy Attorney General for Pakistan that the matter relates to conditions of service, therefore, the petition is not maintainable, also does not hold the ground inasmuch as after the judgment of the Federal Service Tribunal dated 29.4.1981 the petitioner was seeking implementation thereof and nothing more.
As pointed out by the learned counsel for the petitioner, the controversy stand set at rest with the recent pronouncement by the Hon'ble Supreme, Court of Pakistan in judgment dated 9.12.2004 (C.A. No. 1251 to 1255 of 2001), paragraphs-11, 12 and 13 whereof due to their import and relevance are reproduced:--
"11. It is an irrefutable reality that the exercise or otherwise of mala fide is a pure question of fact. Hence, by pronouncement of law it cannot be determined that a particular act, by a particular authority at a particular time was either bona fide or mala fide. No unreasonableness can be attached to an act of Legislature whose every act must be deemed to be fortified by logic and wisdom. If we attribute that logic and wisdom to Legislature, it would be strongly presumed to have existed in case of Article 270-A of the Constitution as well and thus one cannot think of the validation of an act of mala fide, if in the circumstances of each case and as a question of fact, such act was in fact mala fide.
It is proved in the instant cases that the respondents were dismissed from service on the basis of a secret list of officers prepared before hand. The officers exercising power under M.L.R. 58(3) were thus mala fide influenced. They never acted with the application of their own mind and with a sense of imparting justice. The respondents were not allowed to obtain legal assistance. It was despite the fact that under paragraph 3(2) of M.L.R: 58 no action could have been taken by the Tribunal unless opportunity to show cause and opportunity to be heard in person had been provided to the aggrieved person, The Tribunal under M.L.R. 58 proceeded with a predetermined action to be taken in accordance with the secret list provided to it by the higher authorities. The proceedings thus were sham proceedings. A hearing or trial conducted by the Tribunal on the basis of a list of those officers earmarked for dismissal is neither a hearing nor a trial. The principles of audi alter-am partem, coram non-judice, lack of jurisdiction and mala fide are squarely and collectively attracted to the case of present respondents.
In view of the factual background as well as the law laid down by this Court from time to time, we are of the view that the Federal Government in its benevolence for the people of Pakistan ought to have honoured the decision given by the Federal Service Tribunal. It is sad to observe that they are languishing for the last about three and a half decades. There being no merit in the petitions, these are hereby dismissed. "
The matter stand clinched. In presence of the Supreme Court judgment, no other view is possible. Rather all are bound to honor and respect the same in view of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. The petitioner is justified in seeking similar treatment and the implementation of judgment of the Tribunal dated 29.4.1981. Reference may be made to Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) wherein it was observed that "We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum. Reference may also be made to Khawaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others (2003 SCMR 1030) and Inam-ul-Haq Shah and 3 others v. Government of the Punjab through Secretary Technical Education and Vocational Training Authority and 2 others (2006 PLC (CS) 11) As noted above, the implementation of the said judgment will only entitle him to certain benefits of retirement as he had already reached the age of superannuation in the Year 1987.
The petition is accordingly accepted with the direction to respondents to implement the judgment of the Federal Service Tribunal dated 29.4.1981. No order as to costs.
(Anwar Saeed) Petition accepted
PLJ 2007 Lahore 260
Present: Syed Asghar Haider, J.
UNIVERSITY OF THE PUNJAB LAHORE through its
VICE CHANCELLOR and 4 others--Petitioners
versus
Prof. Dr. MAJID NAEEM--Respondent
C.R. No. 1617 of 2006, heard on 6.10.2006.
University of the Punjab Act, 1973--
----S. 48-A--Civil Procedure Code, (V of 1908), O. VII R. 11--Suit for declaration and damages--Application for rejection of the plaint--Dismissal of--Suit should appear from the contents of the plaint to be barred by any law--Plaintiff alleged certain facts which led to present action, whether they are correct or not has to be looked into and appraised by evidence--Held: Bar is not absolute and in case of deliberate avoidance to exercise power, University would loose aura of immunity from attack under S. 48-A of University of Punjab Act--Whether the respondent's case falls into this exception or not, can only be determined after appraisal of evidence--Trial Court was right in rejecting the application under O. VII R. 11 C.P.C.--Petition was dismissed. [P. 262] A, B & C
1993 SCMR 1681, rel.
Mr. Muhammad Asif Raja, Advocate for Petitioners.
Mr. Ahmed Awais, Advocate for Respondent.
Date of hearing: 6.10.2006.
Judgment
This petition is directed against the order dated 10.6.2006, whereby an application made by the petitioners under Order VII, Rule 11 C.P.C. was dismissed.
The back-drop of the controversy is that the respondent filed a suit for declaration and damages for a sum of Rs. 87,42,90,000/-. The petitioners/ defendants moved an application under Order VII, Rule 11 C.P.C. for rejection of the plaint, pleading embargo of Section 48-A of the University of the Punjab Act, 1973, and submitting that there is complete ouster of jurisdiction of the Courts of plenary jurisdiction, after contest the application was dismissed. It is also worth-while to mention here that the defence of the petitioners/defendants was struck off earlier.
Learned counsel for the petitioner by placing reliance on Section 48-A of the University of the Punjab Act, 1973, which reads as:--
"All acts done, orders passed or proceedings taken by the University in good faith shall be final and shall not be called in question in any Court by a suit or otherwise".
contended that being a special law the Courts of plenary jurisdiction cannot take cognizance of the matter and adjudicate upon it, the application under Order VII, Rule 11 C.P.C. could be made at any stage notwithstanding the right of striking of defence. Learned counsel for the petitioner placed reliance on Javed Shuja Versus Auqaf Department and others (1995 C.L.C; 1263).
Learned counsel for the respondent on the contrary submitted that the provisions of Section 48-A of the University of the Punjab Act have been misconstrued by the petitioners, the ouster of jurisdiction is not complete and mala fide actions can be questioned into by the Courts of plenary jurisdiction, he has, therefore, supported the impugned order. Learned counsel for the respondent placed reliance on The Registrar, University of the Punjab, Lahore and another Versus Rana Asghar Ali alias Muhammad Asghar (1993 S.C.M.R. 1681), The University of the Punjab, Lahore through Registrar versus Muhammad Aslam Bora, Advocate and another (P.L.D. 1988 Lahore. 658) and Mian Muhammad Latif Versus Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 S.C. 180).
(Anwar Saeed) Petition dismissed
PLJ 2007 Lahore 262
Present: Mian Hamid Farooq, J.
MASOOD SALAHUDDIN--Petitioner
versus
PUNJAB CO-OPERATIVES BOARD FOR LIQUIDATION, LAHORE through ITS CHAIRMAN and 15 others--Respondents
Petition No. 103-C of 2006, decided on 24.7.2006.
Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993--
----S. 11--Limitation Act, (IX of 1908), S. 5--Time barred petition--Condonation of delay--Petition was not filed within prescribed 60 days but was filed after lapse of four months from the date of impugned order--Held: Examination of provisions of the Act, 1993 amply manifests that S. 5 of Limitation Act has not been made applicable to the proceedings under the said Act--Application for condonation of delay could not be entertained--Petition dismissed. [Pp. 263 & 264] A, B & C
PLD 1982 Lah. 239, ref.
Mr. Waqar A. Sheikh, Advocate for Petitioner.
Mr. Muhammad Ilyas Khan, Advocate for PCBL.
Date of hearing: 24.7.2006.
Order
The petitioner, through the present petition, under Section 11 of the Punjab Undesirable Co-operative Societies (Dissolution) Act 1993, has called in question order dated 28.2.2006, whereby the judicial officer PCBL issued the award of Rs. 10,52,16,076/- against both the managements.
Learned counsel for the petitioner, states that the impugned order was passed at the back of the petitioner, therefore, it deserves to be set aside. He adds that as the impugned order was not communicated to the petitioner and the copy was supplied late, therefore, delay in filing the petition may be condoned. Learned counsel for the respondent Board submits that the present petition is barred by time, as the same was filed after four months of the passing of the impugned order, therefore, the same cannot be entertained He adds that Section 5 of the Limitation Act is not applicable in the present proceedings.
The petitioner has filed the application, under Section 5 of the Limitation Act (C.M. No. 3/2006) for condonation of delay in filing the parent application, on the ground that the impugned order was never communicated to the petitioner and that delay in preparation of certified copy is on the part of the office and the petitioner cannot be held responsible for filing delayed petition.
I have heard the learned counsel and examined the available record. Admittedly, the present petition was filed on 10.6.2006 to challenge order dated 28.2.2006, thus, the petition in hand was filed after the lapse of four months from the date of order. Section 11 of the Punjab Undesirable Co-operative Societies (Dissolution) Act 1993, as amended by Punjab Undesirable Co-operative Societies (Dissolution) (Amendment) Ordinance 1999 (Ordinance LIII of 1999), provides that a person, if aggrieved by an act or decision of the Co-operative Board, Chairman, or his delegate, may within a period of sixty days apply to the Co-operative Judge, who may confirm, reverse, or modify the act or decision. It flows therefrom that the limitation period for filing a petition under Section 11 of the Act before this Court is sixty days from the date of decision of the Judicial Officer. Examination of the provisions of the Act amply manifests that provision of Section 5 of the Limitation Act has not been made applicable to the proceedings under the Undesirable Co-operative Societies (Dissolution) Act 1993. No provision of Act of 1993 empowers a Co-operative Judge to entertain an application under Section 5 of the Limitation Act. It is indicative from bare perusal of Section 5 of the Limitation Act that said section does not automatically apply to all enactments, but its application has to be specifically extended to the provision of any other enactment. Lahore High Court, in a case reported as Muhammad Hanif Vs. Collector/Deputy Commissioner Kasur and 2 others (PLD 1982 Lahore 239), after examining the provisions of Sections 5 and 29(2)(b) of the Limitation has held as under:
"....The cumulative affect of these provisions of the Limitation Act is that Section 5 thereof would not apply to a special enactment unless such an enactment contains an express provision extending thereto the application of Section 5."
In view whereof as the Undesirable Co-operative Societies (Dissolution) Act 1993 does not contain any express provision extending application of Section 5 of Limitation Act, therefore, petitioner's application for condonation of delay cannot be entertained, thus, stands dismissed.
With the dismissal of application under Section 5 of the Limitation Act, the parent petition is barred by time, therefore, the same is also dismissed having been filed beyond the period of limitation. No order as to costs.
(Javed Rasool) Petition dismissed
PLJ 2007 Lahore 264 (DB)
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad & Maulvi Anwarul Haq, JJ.
MUQARAB AKBAR--Appellant
versus
BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through its REGISTRAR and 2 others--Respondents
I.C.A. No. 64 of 2003 In W.P. No. 9746 of 2000, decided on 8.6.2006.
Educational Institution--
----Re-evaluation of papers--Power of Vice-Chancellor--Request of appellant for re-evaluation of his paper was turned down--Validity--Held: Vice Chancellor of the University does possess jurisdiction to order re-evaluation of papers but only when he is satisfied that exceptional circumstances exist for that--No such exceptional strong circumstances pinpoint except only that the matter involved further career of the appellant--Appeal dismissed. [Pp. 266 & 267] A & C
Jurisdiction--
----Scope--Jurisdiction of the High Court under Art. 199 of the Constitution is meant for correcting the errors of jurisdictional nature, therefore in order to succeed, the respondent must firstly satisfy that the issue brought before the Court is justifiable under Art. 199 of the Constitution.
[P. 267] B
PLD 1992 SC 263 & 1999 SCMR 2405 and 1996 SCMR 676, ref.
Rana Muhammad Nazir Saeed, Advocate for Appellant.
Date of hearing: 8.6.2006.
Order
Muhammad Jehangir Arshad, J:--This I.C.A is directed against the judgment passed by learned Single Judge, in chamber, of this Court on 22.4.2003 dismissing appellant W.P. No. 9746/2000 in the following facts and circumstances:--
The appellant appeared in B.A (Annual) Examination 1999 from respondent University and passed the same by securing 455 marks out of total 800. According to the Result Card the appellant was awarded 79 marks out of 200 in the subject of English language. As the appellant was not satisfied with the marks he obtained in the said subject, he therefore, moved the respondent University for re-evaluation of both papers in the said subject of English. Later on the appellant was informed by the University authorities that his marks in English paper-B were revised and ten marks were added to his credit. Still dissatisfied, the appellant through his father approached the Controller of Examination Respondent No. 3 and requested that his both the papers in the said subject be re-evaluated and when pressed hard his father was allowed to go through both the answer books of the said paper but his prayer for re-evaluation was not met with and finally the appellant moved a proper written application to the Vice-Chancellor Bahauddin Zakariya University with the request that his both the papers in the said subject be re-evaluated as permissible under Regulation 23 of the University Statute. His application was however dismissed and against dismissal of said application Writ Petition No. 9746/2000 filed by the appellant was also dismissed by a learned Single Judge, in chamber, of this Court vide judgment dated 22.4.2003. This judgment has now been challenged through the instant I.C.A.
It has been earnestly argued by learned counsel for the appellant that keeping in view the brilliant past academic career of the appellant and also for the reason that the respondent authorities had revised paper-B by adding further ten marks in favour of the appellant, therefore, it had become a fit case for re-evaluation within the four corners of Regulation 23 reproduced by learned Single Judge in para-6 of the impugned judgment. It is further argued that although the appellant after passing the said examination also obtained M.A. degree in International Relations from Bahauddin Zakariya University and is also posted in the said University as a Teacher yet due to low average of marks in the said paper of B.A. he has not only failed to obtain scholarship but the same is also operating as an impediment against him in his further studies on merit, therefore, even on compassionate grounds his request should have been acceded to and the learned Single Judge wrongly dismissed the writ petition. The learned counsel in support of his arguments has also placed reliance on an unreported judgment of this Court passed in W.P. No. 4456/2001 dated 15.7.2001 by which the learned Single Judge of this Court in similar circumstances had acceded to the request of the writ petitioner and ordered remarking of the paper, as prayed for.
We have considered the above-mentioned arguments of learned counsel for the appellant, have also gone through the judgment relied upon and the case-law on the subject.
At the very outset, we have no hesitation in holding that powers of the Vice-Chancellor of the University to get a particular paper book or paper books re-examined are limited i.e. when the case is covered by exceptional circumstances and there is strong ground to believe that earlier the answer book/books were not evaluated justly. Despite our repeated questions, learned counsel for the appellant failed to pinpoint the exceptional strong circumstances so as to compel the Vice-Chancellor to accede to his request, except to answer that the matter involves future career of the appellant and this was a sufficient ground for exercising writ jurisdiction. We are afraid that the answer so given by the learned counsel is sufficient to hold the judgment of learned Single Judge as illegal or without jurisdiction. We have gone through the contents of the writ petition and have found no disclosure of criminality, irresponsibility, fraud or abuse of regulation committed by the Examiner in marking the disputed paper. As admitted in the writ petition the papers were shown to the appellant's father and there is no affidavit on behalf of appellant's father that in the said papers either any question was left unmarked or that the marks given to the appellant were not properly calculated or there was any discrepancy while totaling the marks recorded on the papers. It has been held by the Hon'ble Supreme Court of Pakistan in the case "Board of Intermediate and Secondary Education. Lahore through its Chairman and another versus Mst. Salma Afroze and 2 others" (PLD 1992 SC 263) that unless there is allegation of criminality, irresponsibility, fraud and abuse of regulations in marking the papers, with full particulars by complete disclosure ultimately rendering the Examiner as disqualified forever from marking the paper books, re-evaluation cannot be ordered just at the mere desire of the candidate or on the basis of vague and undisclosed particulars requiring re-examination of the paper. Again in the case of "Muhammad Jaffer Hussain versus Chairman, Board of Intermediate and Secondary Education, D.G. Khan and others" (1999 S.C.M.R 2405) the Hon'ble Supreme Court refused the prayer for marking by holding that "marking of paper book was a job to be performed by expert in subject concerned and High Court in exercise of its Constitutional jurisdiction was not required to evaluate papers in any other manner." Similarly in the case "Board of Intermediate and Secondary Education Lahore versus Saima Azad" (1996 SCMR 676), where the High Court had acceded to the request of the candidate for re-evaluation of the papers, the Hon'ble Supreme Court held "Marking of numbers on answer books being technical job performed by experts, High Court was not expected to undertake the same in exercise of its powers of judicial review under Article 199 of Constitution. Jurisdiction of High Court under Article 199 of the Constitution was principally meant for correcting jurisdictional error in the order and proceedings of Tribunal and Executive authorities. Jurisdiction of High Court under Article 199 of the Constitution could not be invoked for obtaining decision on merits which functionaries alone were entitled to take under law." In the same judgment, the Hon'ble Supreme Court further held as under:--
We are unable to accept the above contentions. The contention of the learned counsel for the respondent if accepted will lead to dangerous consequences, as it will open the door for every unsuccessful candidate to challenge the result of his examination in Court thus involving the educational institutions into unending and unethical litigation and bringing the whole system of examination in vogue, at stake. The solemnity of educational institutions and process of examination cannot be sacrificed on the alter of expediency. As earlier stated by us, the jurisdiction of the High Court under Article 199 of the Constitution is meant for correcting the errors of jurisdictional nature. Therefore, in order to succeed, the respondent must first satisfy that the issue brought by her before the Court is justifiable under Article 199 of the Constitution.
So far as unreported judgment of this Court relied upon by learned counsel for the appellant is concerned, the same is distinguishable and cannot be used as binding authority on Division Bench.
C
Lah. Abdul Razzaq v. State PLJ
(Sh. Hakim Ali, J.)
2007 Abdul Razzaq v. State Lah.
(Sh. Hakim Ali, J.)
The upshot of above discussion is that this appeal has no merit and is dismissed in limine.
(Javed Rasool) Appeal dismissed
PLJ 2007 Lahore 268
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
ABDUL RAZZAQ--Petitioner
versus
STATE--Respondent
W.P. No. 1305 of 2006, decided on 13.6.2006.
(i) Police Order, 2002--
----S. 18(6)--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 16--Constitution of Pakistan, Art. 199--Change of investigation--Application for entrustment of investigation to the S.P. (Investigation)--S.P (Investigation) withdrew the investigation of the case from ASI, commenced its investigation himself and made report for the cancellation of the case--Validity--Held: Investigation of a case could be transferred from one investigation officer to another Investigation Board, headed by an officer not below the rank of S.S.P. and Two Superintendents of Police, one being the incharge of the concerned District; and Incharge of the investigation of the district had been placed in the Board as a member and has got no other status or power so as to withdraw investigation of a case himself lonely and solely--It was the Board which could approve the change of investigation. [P. 269] A
(ii) Police Order, 2002--
----S. 18(4)--Power of supervision--S. 18(4) of Police Order 2002 has granted power supervision only as a head of Investigation of the District and it does not include the power to withdraw the case for investigation and to conduct it himself. [P. 270] B
(iii) Constitution of Pakistan, 1973--
---Art. 199--Police Order, 2002, Ss. 18(4) & (6)--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 16--Report/recommendation by the S.P. (Investigation) in pursuance of withdrawal of investigation of case from ASI could not be upheld and was declared illegal and unlawful--Writ petition was accepted with the observation that if any party to the case desires any transfer of investigation, it might move the Investigation Board in accordance with the provision of S. 18(6) of the Police Order, 2002. [P. 270] C
Mr. Mumtaz Hussain Bazmi, Advocate for Petitioner.
Ch. Shafi Muhammad Tariq, AAG.
Mr. Muhammad Saleem, PSP, Superintendent of Police (Investigation), Bahawalpur.
Date of hearing: 13.6.2006.
Order
Facts leading to the filing of present writ petition are that FIR No. 443/2005 was got lodged by Abdur Razzaq son of Saeed Ahmad, the present petitioner on 26.10.2005 under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 with Police Station Uch Sharif. The investigation of the case was in progress when incomplete challan was submitted by Peer Bakhsh, ASI through the SHO, Police Station Uch Sharif in the concerned competent Court. On 14,4-2006, an application was moved with the Regional Complaint Cell of DIG of Police Office, Bahawalpur for entrustment of investigation, to the SP (Investigation), Bahawalpur. According to learned counsel for the petitioner, SP (Investigation), without any order having been passed by the Board of Investigation under Section 18(6) of the Police Order, 2002, commenced the investigation and made report on 2.6.2006 for cancellation of the case Aggrieved from order dated 2.6.2006, the present writ petition has been filed with the assertion that the SP (Investigation) was not empowered to conduct the investigation of the case as there was no lawful and legal order passed under Section 18(6) of the Police Order, 2002 for the change of investigation from Peer Bakhsh, ASI or SHO, P.S. Uch Sharif to SP (Investigation). So, order dated 2.6.2006 may be declared illegal and unlawful.
Defending the order and the report of investigation conducted by SP (Investigation), learned AAG submits that the SP (Investigation) being Incharge of investigation of whole Bahawalpur region can withdraw the investigation of a case and can commence proceedings of investigation of a case himself. Therefore, the investigation conducted by SP (Investigation) in the present case was valid. He has referred to sub-section (4) of Section 18 of the Police Order, 2002.
Heard. Record perused.
The law on the subject is clear that investigation of a case can be transferred from one Investigating Officer to another by Investigation Board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being Incharge of the concerned district. In other words, Incharge of investigation of the district has been placed in the Board as a member of that Board and has got no other status or power so as to withdraw investigation of a case himself lonely and solely. It is the Board, which can approve such change of investigation; otherwise, there is no other provision granting power to Incharge of Investigation of the district to withdraw any case from any Investigating Officer and to conduct investigation of it himself. As regards Section 18(4) of the Police Order, 2002, that sub-section has granted power of supervision only as a head of investigation of the district. It does not include the power to withdraw the case for investigation and to conduct it himself. Therefore, the report/recommendation dated 4.2.2006 for cancellation of the case cannot be upheld and that report/recommendation of cancellation is declared illegal and unlawful. However, if any party to the case desires any transfer of investigation, it may move the Investigation Board in accordance with provision of Section 18(6) of the Police Order, 2002. The writ petition stands disposed of.
(Zulfiqar Ahmed) Petition disposed of.
PLJ 2007 Lahore 270
Present: Syed Shabbar Raza Rizvi, J.
MUBASHAR AHMED--Petitioner
versus
S.H.O., POLICE STATION SADDAR GUJRANWALA
and 4 others--Respondents
W.P. No. 8069 of 2005, decided on 16.11.2006.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Police Order 2002--Arts. 152 & 73--Pakistan Penal Code (XLV of 1860)--Ss. 109 & 34--Quashing of F.I.R--Complaint against police--Inquiry under Art. 152 can be held only by Police Complaints Authority which is provided under Art. 73 of Police Order 2002, therefore, basis of registration of FIR was without jurisdiction and act of respondent was corum non-judice--Petition allowed. [Pp. 270 & 271] A & B
Mr. Muhammad Irfan Malik, Advocate for Petitioner.
Ch. Khurshid Anwar Bhindar, Addl. A.G. for Respondents.
Date of hearing: 16.11.2006.
Order
The petitioner seeks quashment of F.I.R No. 266 of 2006 dated 12.6.2006 registered under Article 152 of Police Order 2002 to be read with Section 109/34 PPC, P.S. Saddar Gujranwala.
The main contention of learned counsel for the petitioner is that under Article 152 of Police Order, 2002, any person who files a complaint against the police, which on inquiry by the Police Complaints Authority is held frivolous or vexatious, shall be punished on conviction with imprisonment for six months, or with fine, which may extend to fifty thousand rupees, or with both.
Arguments of learned counsel for the petitioner is that inquiry under Article 152 can be held only by Police Complaints Authority which is provided under Article 73 of Police Order, 2002; therefore, the basis of registration of the impugned F.I.R is without jurisdiction and act of the respondent is corum non-judice.
On the last date of hearing, learned Addl. Advocate General, Punjab was directed to prepare the report and also seek instructions. The report shows that the matter was never referred to the Police Complaints Authority; it was directly entertained by the D.I.G. and thereafter, it trickled down to the SHO, P.S. Saddar, Gujranwala. The learned Addl. Advocate General, Punjab candidly conceded to the point of the learned counsel for the petitioner that apparently flaw is obvious in the proceedings taken by the respondents, in view of the provision of Article 152 to be read with Article 73 of Police Order, 2002.
In view of the above discussion and foregoing reasons, F.I.R No. 266 of 2006, dated 12.6.2006, registered at P.S. Saddar, Gujranwala is quashed as the same was registered without lawful authority; therefore, of no legal effect. The writ petition is allowed in the above terms.
(Rafaqat Ali Sohal) Petition allowed
PLJ 2007 Lahore 271
[Multan Bench Multan]
Present: Tariq Shamim, J.
SHAUKAT ALI--Petitioner
versus
DISTRICT POLICE OFFICER, BUREWALA, DISTT. VEHARI
and 2 others--Respondents
Writ Petition No. 4305 of 2003, decided on 27.4.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code (XLV of 1860), Ss. 24 & 489-F--Quashing of F.I.R.--Section 489-F inserted in PPC on 25.10.2002--Dishonesty of a wrong doer would materialize only at the time when the cheque is bounced by the Bank and only then an offence can be said to have been committed--Therefore, time of occurrence would be reckoned from the date when the cheque was dishonoured by the Bank and not from the date the cheque was issued. [P. 274] A
NLR 2004 Crl. 614 and 2004 YLR 2748, followed.
(ii) Factual controversy--
----Factual controversy cannot be resolved by High Court in its Constitutional jurisdiction. [P. 274] D
(iii) Pleadings--
----Ground not taken in pleadings, cannot be urged at arguments stage.
[P. 274] B
(iv) Proceedings--
----Civil suit has been filed only for the recovery of the amount in question--With regard to Commission of an offence Criminal proceedings have been initiated--Both the remedies can be availed by a party simultaneously.
[P. 274] C
2000 YLR 2748, rel.
Sardar Balakh Sher Khan Khosa, Advocate for Petitioner.
Mr. M.R. Khalid Awan, Addl. Advocate General for Respondents.
Mr. Saghir Ahmad Bhatti, Advocate for Respondent No. 3.
Date of hearing: 27.4.2006.
Order
Through this Constitutional petition the petitioner seeks quashment of F.I.R. No. 387/2003 dated 7.10.2003 for offence under Section 489-F P.P.C. registered at Police Station City Burewala District Vehari.
The brief facts of the prosecution case as stated in the F.I.R. "are that the petitioner on 13.4.2002 borrowed Rs. 4,00,000/- from the complainant for the purpose of business but did not return the same and on insistence of the complainant for the return of the said amount, the petitioner gave a Cheque Bearing No. 290465 dated 15.6.2002 for an amount of Rs. 2,00,000/- drawn on the Bank of Punjab Vehari Branch and another cheque for the same amount Bearing No. 290466 dated 30.8.2002 drawn on the same Bank which on presentation were dishonoured by the Bank. Consequently the afore-mentioned F.I.R. was registered under Section 489-F P.P.C. against the petitioner for dishonestly issuing the said cheques.
Learned counsel for the petitioner contended that the entire amount in question had been paid by the petitioner to the complainant. In this connection he referred to Cheque No. 655627 dated 2.6.2003 for
Rs. 50,000/- and Cheque No. 655635 dated 13.6.2003 for an amount of
Rs. 58,000/- both drawn on M.C.B. and for the remaining amount reliance has been placed on two affidavits attached with this petition as Annexure-D & E duly sworn by the witnesses, namely, Rana Muhammad Ashraf and Arshad Ali in whose presence the said amount had been paid back. The learned counsel further contended that a civil suit had been filed by the complainant against the petitioner under Order XXXVII Rule 11 C.P.C. for the recovery of Rs. 5,60,000/- and since the matter was essentially one of civil nature and the same having been agitated before a Court of competent jurisdiction, the F.I.R. in question was liable to be quashed. Learned counsel has sought quashment also on the ground that when the cheques in question had been issued Section 489-F P.P.C. was not inserted in the Statute and being a criminal provision was not retrospective in effect and as such no offence had been committed by the petitioner.
On the other hand learned Addl. Advocate General assisted by the learned counsel for Respondent No. 3 has contended that though the cheques in question were issued prior to the insertion of Section 489-F in the Pakistan Penal Code 1860 through Criminal Law Amendment Ordinance 2002 promulgated on 25.10.2002 (Ordinance No. LXXXV of 2002) but the offence was committed at the time when the cheques were presented and dishonoured by the Bank. Therefore, the date of occurrence would be reckoned from the date the cheques were bounced by the bank and not from the date of issuance of the same; that no such plea was taken by the petitioner in the instant writ petition, hence arguments in respect thereof cannot be advanced; that pendency of the civil suit between the parties cannot be made a basis for quashing criminal proceedings which are two independent remedies available to the complainant. As regards the affidavits sworn by Muhammad Ashraf and Arshad Ali (Annex-D and E) in order to prove that the amount in question had been returned to the complainant by the petitioner, the learned counsel for the respondent contended that the same would entail factual inquiry which cannot be undertaken in the Constitutional jurisdiction.
I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
The petitioner issued Cheque No. 290465 for an amount of
Rs. 2,00,000/- on 15.6.2002 and another cheque bearing No. 290466/- for another amount of Rs. 2,00,000/- on 30.8.2002 in favour of the complainant. Section 489-F was inserted in the Pakistan Penal Code 1860 through Criminal Law Amendment Ordinance 2002 (Ordinance No. LXXXV of 2002) on 25.10.2002, therefore, the cheques in question had been issued prior to the insertion of Section 489-F in the Statute. But issuance of a cheque by itself is not an offence. It is only after the said cheque is presented to the Bank and on its being dishonoured that makes the act of an offence of issuing the cheque dishonestly. The most important ingredient of an offence under Section 489-F P.P.C. being issuance of a cheque dishonestly is attracted only when the cheque is bounced by the bank. Section 489-F P.P.C. is reproduced hereunder for reference:
"Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque".
Dishonestly has been defined in Section 24 P.P.C. which reads as under:
"Dishonestly." Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly ".
Thus dishonesty of a wrong doer would materialize only at the time when the cheque is bounced by the Bank and only then an offence can be said to have been committed. Therefore, time of occurrence would be reckoned from the date when the cheque was dishonoured by the bank and not from the date the said cheque was issued. The argument of the learned counsel for the petitioner that Section 489-F P.P.C, cannot be applied with retrospective effect is therefore misconceived as the offence in the instant case was constituted when the cheques were presented to the Bank and were dishonoured on 28.11.2002 and 21.4.2003 which of course was after the insertion of Section 489-F in the Pakistan Penal Code. The dictum laid down by this Court in Qambar Ali etc. vs. The State etc. (NLR 2004 Criminal 614) and Munir Ahmad vs. The State (2004 YLR 2748) is fully attracted to the circumstances of this case wherein it has been held that the cause of action would accrue in favour of the complainant when cheques were presented and dishonoured by the Bank and not at the time the same were issued as the date of issuance is immaterial in such cases.
Further I am in agreement with the learned counsel for the respondents that the aforesaid ground having not been taken in the pleadings by the petitioner cannot be urged at the argument stage. Reference is made to Usman Enterprises vs. Collector of Customs, Central Excise, Quetta and another (1995 CLC 1137).
The plea of the learned counsel that during pendency of the civil suit criminal proceedings cannot be initiated is also misconceived as the civil suit has been filed only for the recovery of the amount in question the same being the appropriate remedy in respect thereof and with regard to the commission of an offence criminal proceedings have been initiated. Hence both the remedies can be availed by a party simultaneously. I am fortified in my view by the judgments in the above quoted Munir Ahmad's case (2004 YLR 2748) and Mst. Naseem Bibi vs. Sub-Registrar/M.I.C. Lahore and others (2000 YLR 47) wherein it has been held that civil as well as criminal proceedings can continue side by side. The argument of the learned counsel that witnesses have sworn affidavits in whose presence the disputed amount has been returned involves resolution of a factual controversy which exercise cannot be undertaken in the Constitutional Jurisdiction by this Court.
The petitioner has not been able to make out a case for the quashment of the F.I.R. therefore, for reasons stated above, this petition being without merit is dismissed.
(Malik Sharif Ahmed) Petition dismissed
PLJ 2007 Lahore 275
Present: Mian Saqib Nisar, J.
HAKIM (deceased) through legal heirs and others--Petitioners
versus
TASSADDUQ HUSSAIN SHAH (deceased) through
LEGAL HEIRS and others--Respondents
C.R. No. 676 of 2005, heard on 18.9.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 9--Jurisdiction of Civil Courts--Ouster of jurisdiction of Civil Courts which under the law are the Courts of plenary and ultimate jurisdiction in the dispute between the parties pertaining to civil nature, should not be lightly inferred or the lack of jurisdiction be assumed as a matter of course--But there should either be expressed provision in any law/statute, which debars and takes away the jurisdiction of such Court, and the provision must be strictly construed and applied leaving no room for doubt that jurisdiction of the Civil Courts has been ousted, or if the ouster is claimed on the basis of implication, the implication must be founded and adjudged on the touchstone that the forum or the tribunal created by the special law have been conferred with the exclusive jurisdiction to try the matter of a specific civil nature. [P. 278] A
PLD 1988 Lah. 407, PLD 1985 SC 144, 1979 CLC 104, PLD 1975 SC 369 and PLD 1975 SC 574.
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 9--Jurisdiction of tribunal--Special Law Prevails--Determination--Rule of implied bar--Where a special tribunal or a public body is created by or under the authority of an Act of the Legislature for the purpose of determining rights which are the creation of the Act, then jurisdiction of that tribunal or of that body is exclusive and jurisdiction of the Civil Court is barred. [P. 278] B
(iii) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Question of status--No power to Land Commission Authorities--Jurisdiction of Civil Court--Petitioners are seeking the declaration about their ownership, which is equated to the title--Even otherwise, the legal status of a person is synonymous to the legal character and thus in any case, the case of the petitioners falls within the purview of S. 42 of the Specific Relief Act, 1877 and for the relief which they have claimed in the suit, no power has been conferred upon the Land Commission Authorities to determine the said matter. [P. 280] C
Malik Noor Muhammad Awan, Advocate for Petitioners.
Malik Amir Muhammad Joya, Advocate for Respondents.
Date of hearing: 18.9.2006.
Judgment
All these petitions (mentioned in Schedule-I & Schedule-II attached herewith) involve the identical facts and question of law, therefore, are being disposed of together.
The facts of this petition are, which more or less are the same in the other cases, that on 18.04.1988 Hakam, the predecessor-in-interest of the petitioners, filed a suit for the declaration and permanent injunction claiming that he has acquired the title of ownership of the suit land as being "Adna Malik" and the defendants have no right to the land in dispute, which is a "Shamlat" situated in Mauza Dagar Yar Shah, Tehsil and District Bhakkar. The Mutations Nos. 48 and 49, envisaging the respondents as "Aala Malik" of the land, were also brought under challenge. The respondents contested the matter and the learned Civil Judge, vide judgment and decree dated 25.10.1993, decreed the suits in the petitions specified in Schedule-I hereto, holding that the plaintiffs have proved to be the owners of the suit land as being, "Adna Malik", whereas the suits in the petitions of Schedule-II were dismissed, on the reasoning that the plaintiffs of these cases have not been able to prove their "Adna Malkiyat". Both the set of the aggrieved parties filed appeals and the learned appellate Court through the impugned judgment and decree dated 22.02.2005 has held that the Civil Court had no jurisdiction on account of Para-27 of MLR No. 64, therefore, by accepting the appeals, the suit have been dismissed. It has been specifically held by the Court that "since these appeals were/are disposed of on jurisdiction ground and not on other grounds the parties are left to bear their own costs."
Learned counsel for the petitioners has argued that it is the Civil Court, which has the jurisdiction to decide the question of title to the suit property and Para-27 of MLR No. 64, neither expressly nor impliedly, bars the jurisdiction of the Civil Court. In support of his contention, he has placed reliance upon the following judgments:--
Dalil Khan and another vs. Sardar Khan and 2 others (1979 CLC 104);
Punjab Land Commissioner and another vs. Mst. Kalsoom Bibi and another (PLD 1988 Lahore 407);
Sher Zaman vs. Muhammad Ishaq and others (PLD 1985 SC 144);
Makhdoom Muhammad Ahsan vs. Pathana and 21 others (PLD 1975 SC 369);
Hussaina and 5 others vs. Fazal Rahim Khan and 67 others (PLD 1975 SC 574) and
An unreported judgment of the Honourable Supreme Court dated 30.4.2006 passed in Civil Appeal No. 1409 of 1997.
"Even otherwise at such a belated stage perhaps it will not be proper to record any findings with regard to nature of entries in the revenue record. So, since the revenue authorities or Land Commission Authorities were and are holding upto date revenue record, therefore, it would be in the fitness of things that first parties, should have a resort before the competent authority constituted under MLR and if there relief is not satisfied from the said authority by invoking all the remedies available under said MLR or Rules then they can call in question the said final orders of the competent authority before the Civil Court to examine the validity and propriety of said orders of authorities."
It has also been argued by the learned counsel for the respondents that in the facts and circumstances of the case, the learned Court of appeal has rightly left the matter for the determination of the dispute between the parties by the Land Reforms Authorities (LRA), which has the requisite and proper record. It is also submitted that the learned appellate Court has protected the interest and rights of both the side and has passed an equitable order, which should not be interfered in the revisional jurisdiction. In support of his contentions, the learned counsel has relied upon the following judgments:--
Superintending Engineer, Highways Circle, Multan and others vs. Muhammad Khurshid and others (2003 SCMR 1241);
Muhammad Hussain Khan etc. vs. Muhammad Din etc. (NLR 1988 SCJ 397);
Mst. Bibi Ayesha etc vs. The Chief Land Commissioner, West Pakistan etc. (PLD 1966 SC 84);
Nasir Ahmad Khan vs. Mst. Ismat Jehan Begum (1968 SCMR 667);
K.B. Mian Feroze Shah vs. Nawabzada Muhammad Umar Khan and others (PLD 1966 SC 340) and
Mst. Hajiani etc. vs. West Pakistan Land Commissioner Lahore etc. (PLD 1966 SC 114).
Heard. Before proceeding to examine the question about the jurisdiction, at the very outset, I repel the submission of the respondents' counsel that the case has been decided by the appellate Court on merits, rather in view of the operative para of the impugned judgment, reproduced in Paragraph No. 3 above, it is crystal clear that the plaintiffs have been non-suited due to the lack of the jurisdiction of the Civil Court and not on any other issue, therefore, the argument has no substance.
Now dilating upon the central question involved in the matter about the jurisdiction of the Civil Courts, suffice it to say that according to Section 9 of CPC, the Civil Courts are the Courts of ultimate jurisdiction to try all suits of a civil nature, excepting the suits of which their cognizance is either expressly or impliedly barred. In my considered view, the ouster of jurisdiction of the Civil Courts, which under the law are the Courts of plenary and ultimate jurisdiction in the dispute between the parties pertaining to civil nature, should not be lightly inferred or the lack of jurisdiction be assumed as a matter of course. But there should either be express provision in any law/statute, which debars and takes away the jurisdiction of such Court, and the provision must be strictly construed and applied leaving no room for doubt that the jurisdiction of the Civil Courts has been ousted, or if the ouster is claimed on the basis of implication, the implication must be founded and adjudged on the touchstone that the forum or the tribunal created by the special law have been conferred with the exclusive jurisdiction to try the matter of a specific civil nature.
In the first category of the express bar of the Civil Courts, reference can be made to Section 172 of the Land Revenue Act, 1967 or Section 25 of the Displaced Persons (Land Settlement) Act 1958, which unambiguously and expressly command that the jurisdiction of the Civil Courts is barred to take the cognizance of the matters, which under the above special laws, have been conferred upon the special forums. Para-27 of the MLR No. 64 also falls within the category of the express bar of the jurisdiction. However, if one has to look for the bar of jurisdiction of the Civil Court on the rule of "implication", the Punjab Rent Restriction Ordinance, 1959 is an "example, which does not contain any express provision for the ouster of jurisdiction, but under this special law, exclusive jurisdiction has been conferred upon the Rent Controller to decide the matters referred to in the law vis-a-vis the landlord and the tenant about the properties falling within the purview of the Ordinance.
Thus, for applying the rule of implied bar, it has to be seen that where a special tribunal or a public body is created by or under the authority of an Act of the Legislature for the purpose of determining rights which are the creation of the Act, then the jurisdiction of that tribunal or of that body is exclusive and the jurisdiction of the Civil Court is barred.
"No provision of this Regulation or of any rules or orders made thereunder shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission or an officer acting under the authority of the Commission is empowered to determine."
"Ala-Milkiat and, similar other interests subsisting immediately before the commencement of this Regulation, shall on such commencement, stand abolished, and no compensation shall be claimed by, or paid, person affected by the abolition. "
(Khalid Awan) Revisions allowed.
PLJ 2007 Lahore 280
[Multan Bench Multan]
Present: Syed Shabbar Raza Rizvi, J.
MUHAMMAD ASGHAR--Petitioner
versus
STATE and 2 others--Respondents
W.P. No. 1556 of 2006, decided on 6.4.2006.
Constitution of Pakistan, 1973--
----Arts. 184(3) & 199(5)--Legal and fundamental rights--Jurisdiction of Constitutional and Statutory organs of State--High Court has been empowered to intervene under Art. 199 of the Constitution in a matter in which no legal remedy is provided to address grievance of any aggrieved party within its territorial jurisdiction--When the remedies available under the law have been exhausted but still petitioner's grievance remains unresolved--Code of Criminal Procedure, Police Rules 1934 and now Police Order 2002 provide a scheme to get the relief in such like situation--Investigation is a statutory function and duty of the police--High Court can only be approached when the concerned police authorities, under the concerned law, fail to perform their statutory functions or exceed their jurisdiction, but no immediately after registration of FIR--Petition disposed of. [P. 281] A & B
Mr. Tahir Mahmood, Advocate for Petitioner.
Date of hearing: 6.4.2006.
Order
The Constitution of Pakistan is basically a document which provides a system for the country under which it is governed. It also demarcates functions of different Organs of the State. In scheme of the Constitution, people of Pakistan have also been provided legal and fundamental rights. Article 184(3) and Article 199 of the Constitution are provided in the Constitution basically to protect those rights and to take a judicial notice if those are violated by any person; person is defined in Clause (5) of Article 199 itself. The Constitution or Article 199 is not meant to usurp the jurisdiction of other Constitutional and Statutory organs of the State. It is also not meant to render all other laws redundant. It is also not enacted to affect adversely the administration and running of statutory bodies and departments i.e. Police etc. High Court has been empowered to intervene under Article 199 of the Constitution in a matter in which no legal remedy is provided to address grievance of any aggrieved party/person within its territorial jurisdiction. This jurisdiction is also available when the remedies available under the law have been exhausted but still petitioner's grievance remains unresolved; and the High Court is satisfied about genuineness of the grievance.
Somehow there is an increased trend that whenever an FIR is registered, the accused persons rush to the High Court for quashment of the same, and invoke Article 199 of the Constitution. Code of Criminal Procedure, Police Rules, 1934 and now Police Order, 2002 provide a scheme to get the relief in such like situation; a police hierarchy is also provided under these laws. Investigation is a statutory function and duty of the police. High Court is not assigned a role of superior investigator. High Court can only be approached when the concerned police authorities, under the concerned law, as mentioned above, fail to perform their statutory functions or exceed their jurisdiction, but not immediately after registration of F.I.R. I have come across cases where within days, even before start of investigation, writ petitions for quashment of F.I.R. are filed. This is not a purpose of Article 199 of the Constitution.
The bar is there to represent their clients as well as to assist the Courts honestly and devotedly. But if they involve the Courts in frivolous cases or petty matters, which can be resolved otherwise, that distracts Courts from substantial work like criminal/civil appeals and constitutional issues, etc. Misconceived and unfounded litigation not only wastes precious public/Court time, it also increases pendency of cases. High Court is an Apex Constitutional and Appellate Court within the Province and its basic role is to decide appeals and constitutional issues within reasonable time. Because justice delayed is justice denied. Therefore, all the stakeholders are advised to let the High Court focus on its real role and job.
In view of the above, the petitioner is directed to contact S.P. Investigation who is under a statutory obligation as mentioned above to ensure that fair-play is done with the parties, at his level and if the grievance of the petitioner is found correct, the same be rectified. The petitioner is directed to furnish a copy of this order to the S.P. Investigation. This writ petition is disposed of.
(Saeed Anwar) Petition disposed of.
PLJ 2007 Lahore 282
[Rawalpindi Bench Rawalpindi]
Present: Muhammad Akhtar Shabbir, J.
EXCEED SMC PVT. LTD., ISLAMABAD through its PRESIDENT & CHIEF EXECUTIVE--Petitioner
versus
ZTE-ZHONOGXING TELECOM PAKISTAN (PVT.) LTD., through its EXECUTIVE DIRECTOR and another--Respondents
C.R. No. 485 of 2006, decided on 3.11.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Power of High Court--Call for record--High Court may call for the record of any case which has been decided by any Court sub-ordinate to such High Court and in which no appeal lies thereto. [P. 284] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr 1 & 2, S. 115--Revision lies--Case decided--In respect of any case "decided" by a Court sub-ordinate to such District Court in which no appeal lies and the amount or value of the subject matter whereof does not exceed the limits of the appellate jurisdiction of the District Court--From the plain reading of S. 115 CPC it is manifestly clear that a revision lies against a "case decided"--Order regarding injunction is covered within the "case decided". [P. 284] B
(iii) Civil Procedure Code, 1908 (V of 1908)--
----Ss. 100 & 115--Appeal pending in lower Court--Revision lies--Appeal is still pending and the revision would be competent if the appeal of the petitioner is accepted or rejected by the Lower Appellate Court. [P. 285] C
(iv) Interpretation of Statues--
----Case decided--"Ad-interim" in nature--The word "ad-interim" is distinguishable than the word "temporary"--"Ad-interim" mean for the meantime while the word "temporary" mean for a certain, fixed period, therefore, refusal of the "ad-interim" injunction would not amount to a case `decided'--Appeal of the petitioner for granting of temporary injunction has not been finally adjudicated upon by the Lower Appellate Court, thus, the provisions of S. 115 CPC is not attracted in the present case. [P. 285] D
1998 MLD 615.
(v) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr 1 & 2, S. 115--Revision--Scope--Revisional power u/S. 115 CPC primarily intended for correcting the errors made by the sub-ordinate Courts in exercise of their jurisdiction and the discretionary order of the subordinate Court cannot be interfered with unless found fanciful or arbitrary. [P. 285] E
PLD 1970 SC 139, PLD 1964 SC 97.
Dr. Babar Awan, Advocate for Petitioner.
Mr. Rizwan Niaz, Advocate for Respondents.
Date of hearing: 3.11.2006.
Order
Brief facts giving rise to the present revision petition are to the effect that Exceed (SMC-Pvt.) Ltd./plaintiff-petitioner herein had filed a suit for declaration with permanent injunction against the defendants/respondents herein in the Court of Senior Civil Judge, Islamabad. Alongwith the suit the petitioner filed an application for grant of temporary injunction under Order 39, Rules 1 & 2 C.P.C. The defendants/respondents have also filed an application under Order VII, Rule 11 CPC.
Arguments of the learned counsel for the parties have been heard on both these applications, which were dismissed vide order dated 22.7.2006 meaning thereby the interim injunction in favour of the plaintiff/petitioner was refused. Feeling aggrieved, the petitioner preferred an appeal, which came up for hearing before the Addl. District Judge, Islamabad. Alongwith the appeal the petitioner also prayed for grant of interim relief restraining the respondents from getting encashed the guarantee submitted by the petitioner in any manner, whatsoever. The learned Lower Appellate Court vide the impugned order dated 23.9.2006 turned down the request for grant of ad-interim injunction and issued summons to Respondent No. 2 for 7.10.2006. The said order has been assailed by the petitioner through the instant revision petition.
Learned counsel for the respondents at the very outset objected that the appeal against the rejection of the application for temporary injunction of the petitioner is still subjudice before the Lower Appellate Court and final order on the same has not been passed. The Court has only refused the grant of ad-interim relief in the application filed by the petitioner that too has not been disposed of finally. Further contended that the impugned order is not covered within the ambit of definition of "case decided".
On the other hand, learned counsel for the petitioner contended that in Paragraph No. 3 of the order, the trial Court has declined the interim relief. The revision petition against the said order has competently been filed. He placed his reliance on the case of Mst. Nazir Begum and 2 others vs. Muhammad Tahir and another (2005 CLC 925).
I have heard the arguments of the learned counsel for the parties and perused the record.
It is admitted position that the plaintiff/petitioner has filed a suit for declaration with permanent injuntion. Alongwith the suit the plaintiff/petitioner filed an application for temporary injunction, which was contested by the defendants/respondents and the application of the petitioner was dismissed by the trial Court on 22.7.2006. The said order has been impugned by the plaintiff/petitioner before the Lower Appellate Court, meaning thereby that the appeal against the rejection of the application for temporary injunction has not been finally adjudicated upon by the Lower Appellate Court. There are possibilities that after hearing the final arguments on the appeal the Lower
Appellate Court may accept the same and grant temporary injunction to the petitioner. Section 115 C.P.C. envisaged that the High Court may call for the record of any case which has been decided' by any Court subordinate to such
High Court and in which no appeal lies thereto. And sub-section (2) of Section 115 C.P.C. further provided that the District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any casedecided' by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. From the plaint reading of
Section 115 C.P.C. it is manifestly clear that a revision lies against a "case decided". The order regarding injunction is covered within the "case decided." In the instant case on the date of entertaining the revision petition the Lower
Appellate Court refused to grant ad-interim relief as the appeal before the
Lower Appellate Court was against the order of refusal of interim injunction to the petitioner. That appeal is still pending and the revision would be competent if the appeal of the petitioner is accepted or rejected by the Lower
Appellate Court.
The impugned order dated 23.9.2006 was just an "ad-interim" in nature. The word "ad-interm" is distinguishable than the word "temporary". "Ad-interim" would mean for the meantime (to make the interim gap) while the word "temporary" mean for a certain, fixed period therefore, refusal of the "ad-interim" injunction would not amount to a case `decided'. The appeal of the petitioner for grant of temporary injunction has not been finally adjudicated upon by the Lower Appellate Court, thus, the provisions of Section 115 C.P.C. is not attracted in the present case. Reliance in this context can be placed to the case of Ishtiaq Khan vs. Administrator/Chairman, Town Committee Shahpur District Sargodha and another (1998 MLD 615).
The other aspect of the case is that the revisional power under Section 115 CPC primarily intended for correcting the errors made by the subordinate Courts in exercise of their jurisdiction and the discretionary order of the subordinate Courts cannot be interfered with unless found fanciful or arbitrary. Reliance in this context can be placed to the case of Shahzada Muhammad Umar Beg vs. Sultan Mahmood Khan and another (PLD 1970 SC 139). The learned counsel for the petitioner has not been able to point out any irregularity or illegality in exercise of jurisdiction or violation of statutory provisions or principle of natural justice. Reliance in this context can be placed to the case of Muhammad Swaleh and another vs. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97).
In view of the above discussion, I find no substance in this revision petition which is dismissed.
(Khalid Awan) Petition dismissed
PLJ 2007 Lahore 285
Present: Tariq Shamim, J.
GHULAM ALI and another--Petitioners
versus
NASIRA MALIK and 2 others--Respondents
Writ Petition No. 8687 of 2006, decided on 24.8.2006
Illegal Dispossession Act, 2005--
----S. 7--Constitution of Pakistan, 1973, Art. 199--Constitutional petition Direction to handover possession--Validity--Documents on record clearly showed that the respondent was owner of disputed property which was duly supported by local police report that he had been forcibly dispossessed by petitioners--No jurisdictional error pointed out in the impugned order--Interim order of Court could not be challenged in Constitutional jurisdiction of High Court--Petition dismissed.
[P. 287] A & B
PLD 2006 Lah. 649, ref.
Mr. Naseer Ahmad Sial, Advocate for Petitioners.
Date of hearing: 24.8.2006.
Order
Through this petition the petitioners have challenged the order of the learned Addl. Sessions Judge, Okara, whereby on a complaint filed by Respondent No. 1 under Section 3 of the Illegal Dispossession Act, 2005, the learned trial Court as an interim measure under Section 7 ibid had directed the petitioners to handover possession of the disputed land to Respondent No. 1 within 15 days and on his failure to do so SHO Police Station Chuchak was directed to recover the possession of the land in question from the petitioners and handover the same to Respondent No. 1.
The brief facts of the case are that the complainant/Respondent No. 1 had purchased property measuring 16 Kanals in Khasra Nos. 17/19, 20, 21/1 vide Mutation No. 1179 dated 30.6.2006. The petitioners on 16.7.2006 alongwith two other persons forcibly took over the possession of the land and destroyed the standing crop of the said respondent. Respondent No. 1 being aggrieved filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 which was entrusted to the learned Addl. Sessions Judge Okara. The learned Court directed the local police to submit a report and keeping in view the documents placed by the parties on the record as well as the contents of the report submitted by the police wherein it was specifically stated that the land in question was owned and possessed by Respondent No. 1 and that the petitioners had forcibly taken over possession of the land in question on 16.7.2006 and had cultivated the same, as an interim measure under Section 7 sub-section (1) of the Illegal Dispossession Act 2005 directed the petitioners to handover the possession of the property in question to Respondent No. 1 within fifteen days and in case they failed to do so, the SHO Police Station Chuchak was directed to recover the possession from the petitioners and to handover the same to the said respondent. The case was fixed for further proceedings for 5.9.2006.
The learned counsel for the petitioner contended that the possession of the petitioners regarding Khasra No. 17/19 was established as the petitioners had cultivated the land in Rabi 2006. Hence the learned trial Court had erred in law in directing the petitioners to handover possession of the land in question to Respondent No. 1.
I have heard the learned counsel for the petitioners and perused the documents placed on the record including the impugned orders passed by the learned Addl. Sessions Judge, Okara dated 10.8.2006. It has been observed by me that the impugned order is an interim order and not a final order which could be brought under challenge in the constitutional jurisdiction of this Court. A perusal of para 5 of the impugned order reveals that the learned Court had taken into consideration the documents produced by the parties and the police report submitted by the S.I./Incharge Chouki Chuchak dated 1.8.2006. The Khasra Girdawari from Kharif 2003 till Rabi 2006 shows that Respondent No. 1 was in possession of Khasra No. 17/20, 21/1, which only in Rabi 2006 regarding Khasra No. 17/19 possession of the petitioners has been shown. No explanation has been given by the petitioners regarding taking over of possession of land from Respondent No. 1 Bearing Khasra Nos. 17/20 and 21/1. The documents on the record clearly show that the said respondent is the owner of Khasra No. 17/19 which is duly supported by the report submitted by the local police which shows that the respondent had been dispossessed from the land forcibly by the petitioners. Further it has been noticed that the petitioners have failed to establish any title in the disputed property whereas on the contrary the title of the property in question in favour of Respondent No. 1 is established as also her possession. Since the learned trial Court was fully competent to grant interim relief in terms of Section 7 sub-section (1) of the Illegal Dispossession Act, as such no illegality has been committed by the learned Court as prima facie the documents placed on the record and the report submitted by the local police support the contentions made by Respondent No. 1 in the complaint. The learned counsel for the petitioners has not been able to point out any jurisdictional error committed by the learned Addl. Sessions Judge by passing the order impugned. Even otherwise interim order passed by the Court cannot be challenged by invoking the constitutional jurisdiction of this Court as stated earlier. A profitable reference can be made to the case of Abdul Majeed vs. Noor Muhammad and 2 others (PLD 2006 Lahore 649).
For what has been discussed above, there is no merit in this petition which is accordingly dismissed in limine.
(Javed Rasool) Petition dismissed
PLJ 2007 Lahore 288
Present: Mian Hamid Farooq, J.
ARSHAD MAHMOOD--Petitioner
versus
PUNJAB CO-OPERATIVE BOARD FOR LIQUIDATION, LAHORE through its CHAIRMAN and others--Respondents
Petition No. 15-C of 2006, decided on 25.7.2006.
(i) Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993--
----S. 11--Civil Procedure Code (V of 1908), O.VII, R. 11--Rejection of applications--Challenge to--Petitioner did not challenge the order of judicial officer regarding setting aside of ex-parte awards before the higher forum, so he could not be allowed to unearth past and closed transaction under the garb of proceedings arising out of impugned order after lapse of 14 months--Petition dismissed. [P. 289] A
(ii) Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993--
----S. 11--Petition against interim order--Maintainability--Held: During pendency of the main petition, a litigant cannot be allowed to agitate every interim order of judicial officer--If each and every such order is made appealable to High Court then it would hamper and delay the proceedings before the judicial officer who cannot work smoothly to achieve the purpose for which he was appointed. [Pp. 289 & 290] B
Mr. Waqar A. Sheikh, Advocate for Petitioner.
Ch. Safdar Mehmood, Advocate for P.C.B.L.
Date of hearing: 25.7.2006.
Order
Present petition, under Section 11 of the Punjab Undesirable Co-operative Societies (Dissolution) Act 1993, proceeds against order dated 28.12.2005, whereby the judicial officer P.C.B.L. dismissed petitioner's three applications, filed under Order VII, Rule 11 CPC, in three different recovery cases.
Facts of the case, as discernible from the available record, are that PCBL filed three suits for passing awards against the petitioner and one Mehmood Khan. The judicial officer, in the absence of aforesaid Mehmood Khan, rendered ex-parte three awards, vide separate orders all dated 14.7.99, whereby Mehmood Khan was held responsible, while Arshad Mehmood, the present petitioner, was absolved of all liabilities. Mehmood Khan filed the petition before this Court for setting aside ex-parte awards, which was allowed on 9.7.2001 and the cases were remanded to the Judicial Officer with the directions to decide the application. Pursuant thereto, Arshad Mehmood attended the proceedings, however, Mehmood Khan choose to remain absent from the proceedings and the judicial officer set aside the awards dated 14.7.99, vide order dated 1.1.2005. The petitioner did not challenge the said order before the higher forum and instead thereof filed three applications, under Order VII, Rule 11 CPC, for rejection of the claims of PCBL, which were resisted by the Board and ultimately judicial officer dismissed all the applications, vide impugned order dated 28.12.2005, hence the present petition.
Learned counsel for the petitioner states that Mehmood Khan, after remand of the case, did not appear before the judicial officer, therefore, his application could be dismissed but no adverse order could be passed against the petitioner. He adds that judicial officer has no power to review the earlier awards dated 14.7.99. Learned counsel for the respondent Board submits that the petition is not competent against interim order dated 28.12.2005.
I have heard the learned counsel and examined the available record. As noted above, the judicial officer, in post remand proceedings, set side the awards dated 14.7.99, vide detailed order dated 1.1.2005. To my mind, although the grounds now agitated by the learned counsel were available to the petitioner at that point of time, yet he did not at all challenge order dated 1.1.2005, before this Court and, hence it attained finality. The petitioner cannot be allowed to unearth past and closed transaction and is estopped to challenge order dated 1.1.2005 under the garb of proceedings arising out of the impugned order. The petitioner appeared to have acquiesced over the matter and choose to continue with the ensuing proceedings. The petitioner cannot be allowed to challenge order dated 1.1.2005, in the present petition, after the lapse of more than fourteen months. Most importantly, the petitioner has not even prayed, in the present petition, for setting aside of order dated 1.1.2005. The contentions raised by the learned Counsel are devoid of merits.
There is another aspect of the case. The petitioner has filed the instant petition against the interim order passed by the Judicial Officer. To my mind, the impugned order, for all intents and purpose, is an interlocutory order, as the main case is pending before the Judicial Officer, PCBL awaiting decision. During the pendency of the main petition, a litigant cannot be allowed to agitate every interim order by filing a petition under Section 11 of the Act. If during the pendency of the proceedings before the Judicial Officer, each and every order passed by him is made appealable to this Court under Section 11 of the Act, then it would definitely hamper and delay the proceedings before the Judicial Officer, who cannot work smoothly to achieve the purpose, for which he was appointed. The primary object of enforcing these laws is to protect and safeguard the interest of the depositors. Each and every act or decision of the Co-operative Board or/and Judicial Officer, which is interim/interlocutory and does not dispose of the entire matter before it, cannot be called in question, by filing an application under the aforenoted provision of law. This petition cannot be entertained on this ground too.
In the above perspective, the present petition stands discussed.
(Javed Rasool) Petition dismissed.
PLJ 2007 Lahore 290
[Rawalpindi Bench Rawalpindi]
Present: Syed Shabbar Raza Rizvi, J.
NADEEM AKHTAR and another--Petitioners
versus
ELECTION TRIBUNAL and 11 others--Respondents
Writ Petition No. 1616 of 2006, decided on 19.7.2006.
(i) Punjab Local Government Election Rules, 2005--
----Rr. 75(c)--Grievance--Re-election hve been ordered instead of declaring a returned candidate--Petitioner, having obtained second highest number of votes, to be returned nazim in place of deceased Nazim as he was disqualified to participate in election--Held: Election Tribunal may decide in either way mentioned in Rule 75 considering the evidence and facts of the petition--Discretion on record. No mala fide or jurisdictional error pointed out--Petition dismissed. [Pp. 292 & 293] A, B, C & E
(ii) Constitution of Pakistan, 1973--
----Art. 199--Punjab Local Government Rules 2005, Rr. 75(c) & 77--Constitutional jurisdiction against judgment of Election Tribunal--Held: Election Tribunal was in advantageous position to judge the parties and their evidence--High Court cannot declare, in its Constitutional jurisdiction, whether the Tribunal exercised his discretion judiciously or not. [P. 293] D
Sh. Zameer Hussain, Advocate for Petitioners.
Mr. Maqbool Elahi Malik & Mr. Razzaq A. Mirza, Advocates for Respondents.
Date of hearing: 19.7.2006.
Judgment
The petitioners alongwith Respondents Nos. 2 to 10 contested election for the post of Nazim and Naib Nazim. One Muhammad Aamir Khan son of Amir Khan was also a candidate for the post of Nazim. The said Muhammad Aamir Khan (deceased) was declared returned after the election and he had also taken oath of the office. However, the Respondents Nos. 2 and 3 filed an election petition before the election Tribunal. One of the allegations against the deceased, Muhammad Aamir Khan was that he concealed his, as well as, his family members assets in the nomination papers.
During the pendency of the election petition, Muhammad Aamir Khan son of Amir Khan died. Nevertheless, the trial of the election petition continued in view of provisions of Rule 82 of the Punjab Local Government Election Rules, 2005.
The learned Tribunal, Respondent No. 1 allowed the election petition on the ground that deceased. Muhammad Aamir Khan son of Aamir Khan had concealed his assets, therefore, was disqualified to participate in the election. The Respondent No. 1 also declared Respondent No. 2 returned since he had secured second highest votes after the deceased Muhammad Aamir Khan son of Amir Khan. In the instant writ petition, the above order dated 15.6.2006 has been impugned, with a prayer that a fresh election should be ordered and the electorate of the constituency be provided another chance to elect their representatives.
The learned counsel for the petitioners contended that suppression of assets was not in knowledge of the voters of the constituency, therefore, they should be given another chance to elect their representative. The impugned order is not against the deceased only who committed the offence of hiding his assets, it is punishment to the electorates that a person (Respondent No. 2) has been imposed upon them who was never elected by them. He further submitted that impugned order is meant as throwing away votes of the electorates. The learned counsel referred to PLD 1968 SC 301, PLD 1966 SC 717, 2004 SCMR 1242 and 2004 SCMR 1021. The learned counsel further submitted that in election matters not only the parties are concerned and relevant but constituency as a whole is involved and in some cases all electorates are aggrieved. In this regard, the learned counsel refers to NLR 1986 CLJ 154.
On the other hand, the learned counsel representing the Respondent No. 2 submitted that in election dispute proper remedy is provided under the Punjab Local Government Elections Rules, 2005 in form of election petition. If the petitioner was so keen and concerned, he should have participated in the proceedings which took place before the election Tribunal. According to him, the petitioner was arrayed as Respondent No. 8 in the election petition yet he did not raise any objection or participate in the arguments. The learned counsel also submitted that point of non-disclosure of assets by the deceased was raised at all stage i.e. at the stage of scrutiny of nomination papers, appeal before the District Returning Officer and also before the election Tribunal but the petitioners never availed the opportunities. The learned counsel also referred to Rules 12, 75 and 77 of the Punjab Local Government Election Rules, 2005.
I have heard the arguments of the learned counsel. I have also considered and examined the impugned order and all other documents referred to by the parties. In addition to above, I have considered and read the judgments referred by the learned counsel for the petitioners. The learned counsel for the petitioners has not disputed the finding of the learned election Tribunal that said Muhammad Aamir Khan, deceased had concealed his true assets and if he had declared his assets, he would have been disqualified to contest the election. His grievance is that re-election should have been ordered by the election Tribunal instead of declaring Respondent No. 2, Sardar Muhammad Amir Khan son of Fazaldad Khan a returned candidate in place of deceased, Muhammad Aamir Khan son of Amir Khan. Therefore, for the purpose of decision of this writ petition all other issues discussed in this writ petition as well as election petition are irrelevant. To give any finding on the grievance of the petitioner, it would be apt to examine the relevant Punjab Local Government Election Rules, 2005.
The election petition is filed under Rule 65 and the Tribunal is appointed by the Chief Election Commission of Pakistan under Rule 68. The Tribunal is empowered to make a final order at the conclusion of the trial under Rule 75 which reads as under:--
"The Tribunal may upon the conclusion of the trial of an election petition make an order--
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(b) declaring the election as a whole to be void."
Under this rule, the learned election Tribunal (Respondent No. 1) may decide in either way mentioned above considering the evidence and facts of a petition. The learned Election Tribunal, using his discretion, noted to decide as mentioned in Rule 75(c) i.e. declaring the election of the deceased Muhammad Aamir Khan son of Amir Khan to be void and declaring the Respondent No. 2. Sardar Muhammad Amir Khan son of Fazaldad Khan duly elected. For a decision or declaration mentioned in Rule 75(c) further guidance and jurisdiction vested under Rule 77. For convenience Rule 77 is reproduced as under:--
"The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected."
The discretion conferred upon the Election Tribunal under this rule has been exercised by the Election Tribunal on basis of evidence produced before him by the parties. The parties appeared before the Election Tribunal at several dates of hearing. The Election Tribunal was in advantageous position than this Court to judge the parties and their evidence. Therefore, under the Constitutional jurisdiction, this Court cannot declare whether the learned Tribunal exercised his discretion judiciously or not. There is nothing on record to show that the Election Tribunal acted mala fidely, without jurisdiction or passed impugned order in disregard of any law or rule. It may be spotlighted at this juncture that the petitioners had secured the minimum votes in the election and no other contesting candidate challenged the impugned order.
(Javed Rasool) Petition dismissed
PLJ 2007 Lahore 293 (DB)
[Multan Bench Multan]
Present: Maulvi Anwarul Haq and Muhammad Jehangir Arshad, JJ.
Dr. MUHAMMAD AKRAM, ASSOCIATE PROFESSOR STATISTICS, SUPERINTENDENT UMAR HALL, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 2 others--Appellants
versus
MAHER RAEES AHMAD HARAJ and 5 others--Respondents
I.C.A. No. 143 of 2005 in W.P. No. 2866 of 2005, decided on 26.6.2006.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Intra Court Appeal--Registration of fresh FIR--First FIR was not registered in accordance with direction of High Court in writ jurisdiction--High Court directed S.H.O. to register a fresh FIR after recording respondent's statement and then to proceed with the investigation.
[P. 295] A
2001 SCMR 1556 & PLD 2005 SC 297, ref.
Malik Muhammad Rafiq Rajwana & Malik Muhammad Tariq Rajwana, Advocate for Appellants.
Mr. Kanwar Intizar Muhammad Khan, Advocate for Private Respondents.
Mr. Zafarullah Khan Khakwani, AAG for State.
Date of hearing: 26.6.2006.
Order
This I.C.A proceeds against the judgment dated 28.6.2005 passed by learned Single Judge, in chamber, of this Court whereby W.P. No. 2866/2005 filed by Respondents Nos. 1 and 2 was disposed of in the following terms:--
"Through this Constitutional petition, the petitioners seek registration of case against the police officers, who allegedly arrested the petitioners from the University Hostel, deprived them of certain amounts and also confined them at Gulgasht Police Station for 20 hours in spite of the fact that no case was registered against the petitioners.
Pursuant to the above-mentioned judgment of the learned Single Judge case FIR No. 175/2005 was registered under Sections 379, 506, 426, 421 PPC by Police Station Alpa, Multan on 12.7.2005. The grievance voiced through this I.C.A. in brief is that the said FIR has been registered in violation of the above-mentioned judgment of the learned Single Judge, inasmuch as the learned Single Judge in the impugned order had only directed for registration of case against the police officers but instead the names of appellants have also been included in the FIR, therefore, the said FIR to the extent of inclusion of names of the appellants was not only beyond the directions issued by the learned Single Judge but was also an act of mala fide on the part of the police.
Respondents Nos. 1 and 2 have entered appearance through their learned counsel and insist that FIR was not registered as reported by them through their applications submitted to the Police Station and the alleged application dated 12.7.2005 available on the police record on the basis of which the present FIR was registered was not the same as submitted by Mehr Raees Respondent No. 1. In order to determine the genuineness of the application made by respondents, it was considered necessary to summon S.H.O Police Station Alpa to appear before this Court alongwith original application submitted by the respondents, for registration of case in the light of the order of the learned Single Judge dated 28.6.2005.
Today, i.e. 26.6.2006 Nazir Ahmad S.I/S.H.O Police Station Alpa, Multan has appeared alongwith original application dated 17.7.2005 and submits that the FIR was copy verbatim of said application but Mehr Raees Respondent No. 1 after seeing the said application, again disowned the same by submitting that he had in fact submitted the application for registration of case on the very evening of above-mentioned order of the learned Single Judge and that application available on the record does not contain the true facts.
Mr. Zafarullah Khan Khakwani, learned A.A.G. after seeing the application submits that to his view the writing and the ink on the said application was different from one page to the second. When asked as to whether in the present facts and circumstances of this case it was legally permissible to direct the police to record statement of Mehr Raees Respondent No. 1 afresh and then to proceed with the investigation of the case in the light of the order of the learned Single Judge mentioned above, the learned Law Officer answers the same in positive and in this respect has placed reliance on the case "Mst. Anwar Begum versus Station House Officer, Police Station Kalri West, Karachi and 12 others" (PLD 2005 SC 297) wherein the apex Court observed as under:--
"This Court in the case of Wajid Ali Khan Durani and others versus Government of Sindh and others" (2001 SCMR 1556) maintained the order of High Court whereby registration of third F.I.R. was allowed on the ground that the two F.I.Rs. earlier registered by police do not reflect the true facts of the case. It has also been held in this case that if information given to a police officer, which discloses a different offence was also cognizable by the police, then unless it is a mere amplification of the first version, must be recorded by the police."
Resultantly this I.C.A. is allowed and Mehr Raees Respondent No. 1 is directed to appear before S.H.O. Police Station Alpa, Multan who after recording his statement will registered the FIR afresh and then will proceed with the investigation of the case in the light of above mentioned directions of the learned Single Judge.
(Javed Rasool) Appeal accepted
PLJ 2007 Lahore 295
[Rawalpindi Bench Rawalpindi]
Present: Syed Shabbar Raza Rizvi, J.
Mst. MADIHA SULTANA and another--Petitioners
versus
MUHAMMAD SHARIF and 3 others--Respondents
C.M. No. 10 of 2006, decided on 19.7.2006.
Constitution of Pakistan, 1973--
----Art. 203--Supervisory jurisdiction of High Court--Nature of--Held:
Art. 203 is meant to give administrative control of High Court of each province to supervise and control all Courts within the respective Provinces--It links administrative relationship between High Court and subordinate Courts but does not confer any right upon the litigant parties--High Court cannot take action on judicial side--Petition was however, on the basis of inconvenience and hardship of petitioners, ordered to be transmitted to the Member Inspection Team for appropriate measures. [Pp. 296 & 297] A & B
PLD 1979 Pesh. 56; PLD 1972 Kar. 164 & PLD 2003 Lah. 23, ref.
Mr. Kanzus Saadat Siddique, Advocate for Petitioners.
Date of hearing: 19.7.2006
Order
The petitioner has filed this petition under Article 203 of the Constitution of the Islamic Republic of Pakistan on judicial side. The grievance of the petitioner is against Respondents Nos. 2 and 3 who are Civil Judge/Family Judge, Chiniot and Incharge Record Keeper, Tehsil Chiniot, district Jhang. Several allegations are levelled against the respondents in the instant petition i.e. causing disappearance of case file titled Madiha Sultana and another vs. Muhammad Sharif.
Article 203. High Court to Superintend Subordinate Courts:
Each High Court shall supervise and control Courts subordinate to it.
The language of Article 203 evidently conveys that this Article is meant to give administrative control to High Court of each Province to supervise and control all Courts within the respective Provinces. This Article links administrative relations between the High Court and subordinate Courts within the Province. This Article does not confer upon any right to the litigant parties. The litigant parties cannot invoke this Article for enforcement of any right amongst themselves. Similarly, this Article also signifies that High Court can take only an administrative action under this Article which does not include an action on judicial side.
Lah. Riaz Ahmed v. Rent Controller Multan PLJ
(Maulvi Anwarul Haq, J.)
2007 Riaz Ahmed v. Rent Controller Multan Lah.
(Maulvi Anwarul Haq, J.)
Rehabilitation Commissioner, NWFP and another. PLD 1979 Peshawar 56). Another judgment of a Full Bench of Sindh High Court may also be mentioned which is reported as Abdul Rehman vs. Chaman Ara, PLD 1972 Karachi 164. In another case, this Court held that no interference is possible on the judicial side in any matter under Article 203 of the Constitution (M. Yousaf Zaki vs. Ch. Zafar Ullah, 1982 NLR 504). In a recent judgment of this Court, Syed Zahid Hussain J. found as under:--
"The possible source for the issuance of such a direction by the Member Inspection Team of the Court is Article 203 of the Constitution of Islamic Republic of Pakistan."
His Lordship further observed that:--
"Control is comprehensive enough to include the general superintendence of the working and the administrative control over the members of the subordinate judiciary. Such a control and supervision should be aimed at to advance the judicial independence and by no means impede or frustrate the very object and purpose." (Sazia Sultana vs. Razia Begum, PLD 2003 Lahore 23).
The survey of the above judgments show that if the petitioner has any grievance, he could have approached on the administrative side, invoking Article 203 of the Constitution, to the Member Inspection Team or the Hon'ble Chief Justice of this Court. However, considering the inconvenience and hardship of the petitioner, the office is directed to transmit this petition, to the Member Inspection Team of this Court at the Principal Seat to take appropriate measures, alongwith copy of this order.
In the above terms, this petition under Article 203 of the Constitution is disposed of.
(Javed Rasool) Petition disposed of
PLJ 2007 Lahore 297
[Multan Bench Multan]
Present: Maulvi Anwarul Haq, J.
RIAZ AHMED--Petitioner
versus
RENT CONTROLLER MULTAN and another--Respondents
W.P. No. 6148 of 2005, heard on 30.3.2006.
Constitution of Pakistan, 1973--
----Art. 199--Interim order passed by Rent Controller, assailed--An appeal against an interim order is barred such orders cannot be brought under attack in Constitutional jurisdiction and concerned party should wait till passing of a final order and then to attack it before a competent forum.
[P. 298] A
1996 SCMR 165; PLD 1983 SC 21 rel.
Sh. Abdul Samad, Advocate for Petitioner.
Mr. Zafarullah Khan Khakwani, AAG and Mr. Sagheer Ahmad Bhatti, Advocate for Respondents.
Date of hearing: 30.3.2006.
Judgment
In an ejectment petition filed by Respondent No. 2 against the petitioner and pending in the Court of learned Rent Controller Multan, evidence of the parties was recorded. The respondent filed an application to produce certified copies of some judicial records. This has been allowed by the learned Rent Controller vide order dated 7.10.2005.
Learned counsel for the petitioner contends that since the evidence of the parties had been recorded, respondent could not have been allowed to produce the said evidence in rebuttal. Learned counsel for the respondent objects to the maintainability of the writ petition on the ground that the order is an interm procedural order.
Learned AAG has drawn my attention to the case "Syed Saghir Ahmad Naqvi vs. Province of Sindh through Chief Secretary" (1996 SCMR 165), to point out that since under the Statute i.e. Punjab Urban Rent Restriction Ordinance, 1959, an appeal against an interim order is barred such orders cannot be brought under attack in constitutional jurisdiction and concerned party should wait till passing of a final order and then to attack it before a competent forum.
I have gone through the copies of the records. Now I find that the respondent in fact wants to demonstrate that when a sum of Rs. 200000/- by way of advance rent, is stated to have been paid to him, he was in jail. I further find that it is the petitioner's own case that the respondent was in jail when the amount was paid. This being so no prejudice, in any case, has been caused to the petitioner by the said order and further I do agree with the learned AAG that this writ petition is not competent in view of said dictum of Hon'ble Supreme Court of Pakistan. Reference be also made to the case of "Abdul Rehman versus Haji Mir Ahmad Khan and others" (PLD 1983 SC 21).
Writ petition accordingly is dismissed without any orders as to costs.
(Malik Sharif Ahmed) Petition dismissed
PLJ 2007 Lahore 299
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD LATIF--Petitioner
versus
ELECTION TRIBUNAL KHANEWAL and 2 others--Respondents
W.P. No. 3682 of 2006, decided on 17.7.2006.
Punjab Local Government (Election) Rules, 2005--
----Rr. 65 & 76 (1)(b)--Constitution of Pakistan, 1973--Art. 199--Stay of suit--Jurisdiction--Held: Interim injunction was issued by Civil Court with the rider that matriculation certificate of the petitioner would not be cancelled illegally, however, the order would not be applicable to any proceedings, meaning thereby, even Civil Court did not consider it appropriate to stay the proceedings pending before Election Tribunal which are independent proceedings--Election Tribunal had exclusive jurisdiction to determine the eligibility of a candidate to contest the election--While exercising such jurisdiction the Election Tribunal had been conferred the powers of Civil Court trying a suit under Civil Procedure Code--Petition dismissed. [P. 300] A
Mr. Abdul Rehman Tariq Khand, Advocate for Petitioner.
Date of hearing: 17.7.2006.
Order
Through this writ petition, the petitioner seeks annulment of the order dated 22.6.2006 whereby the learned Election Tribunal Respondent No. 1 refused to stay the proceedings of Election Petition titled "Nazir Ahmad and another versus Returning Officer and others" on the application moved by the petitioner, on the ground that Muhammad Latif petitioner with regard to the authenticity of his matriculation certificate had filed a civil suit and that till the matter was finally decided, proceedings in the Election Petition be stayed.
The impugned order of the learned Election Tribunal dated 22.6.2006 has been perused.
When questioned, as to how proceedings in the Election Petition could be legally stayed till the decision of the suit, whereas in terms of Rule 65 of the Punjab Local Government (Election) Rules, 2005 and the law declared by the Hon'ble Supreme Court of Pakistan in "Ch. Nazir Ahmad and others versus Chief Election Commissioner and four others" (PLD 2002 SC 184), all the election disputes could only be decided/resolved by Election Tribunal and that the jurisdiction of all the Courts including High Court under Article 199 of the Constitution was barred in such like matters, learned counsel had no answer except to argue that since Civil Court was a Court of plenary jurisdiction and the decree issued by the said Court was binding on the Election Tribunal, hence the learned Election Tribunal was bound to stay the proceedings. However, the learned counsel has not been able to cite any law, provision of law or case law in support of his contention. Even otherwise, the petitioner has filed the civil suit challenging the proceedings before the Disciplinary Committee of Board of Intermediate & Secondary Education, without impleading the election petitioners as party and that the interim injunction was issued by the Civil Court with the rider that matriculation certificate of the petitioner would not be cancelled illegally, however, the said order would not be applicable to any proceedings, meaning thereby, even the Civil Court did not consider it appropriate to stay the proceedings pending before the learned Election Tribunal which are independent proceedings and the Election Tribunal has exclusive jurisdiction to determine the eligibility of a candidate to contest the election in terms of Rule 76(1)(b) of the Punjab Local Government (Election) Rules, 2005 and while exercising this jurisdiction the learned Election Tribunal has been conferred the powers of Civil Court trying a suit under Civil Procedure Code. In this view of the matter, I am satisfied that the impugned order dated 22.6.2006 passed by learned Election Tribunal Respondent No. 1 neither suffers from any illegality or irregularity nor any jurisdiction defect, calling for interference. This writ petition therefore, is dismissed in limine.
(Fouzia Fazal) Petition dismissed
PLJ 2007 Lahore 300
Present: Sayed Zahid Hussain, J.
KHURRAM ZUBAIR and 2 others--Petitioners
versus
GOVERNMENT OF PUNJAB through SECRETARY (REVENUE) PUNJAB, LAHORE and 3 others--Respondents
W.P. No. 9349 of 2006, heard on 3.10.2006.
Constitution of Pakistan, 1973--
---Art. 199--Recruitment--Constitutional petition--Recurtiment of staff by the Revenue Department--Recruitment completed and appointment letters were issued and conveyed to civil servants who had been selected on merit after due process of recruitment--Cancellation of recruitment by Zila Nazim--Some controversy appear to have arisen between the Zila Nazim and the Revenue Department, Government of Punjab about jurisdiction power and competency to make such recruitments--Order of appointment of civil servant could not be cancelled in such an abrupt manner in clear disregard of due process of law--Zila Nazim, who has issued such an order whose authority and jurisdiction even is being very much disputed by Respondents--In the context of such a dispute the petitioners the ordinary citizens of Pakistan cannot be made to suffer for any such tussle-Such a cancellation order issued by respondent does not hold good and looses its legal efficacy--Petition accepted.
[Pp. 301 & 302] A & B
Mr. Shakeel Tarique, Advocate for Petitioners.
Ch. Aamir Rehman, Additional Advocate General Punjab with Dr. Waqar Chaudhry, District Officer (Revenue), Hafizabad and Dr. Ameen, DHQ Hospital, Hafizabad.
Mr. Khalid Arshad, DDO on behalf of Respondent No. 3.
Date of hearing: 3.10.2006.
Judgment
Pursuant to the advertisement dated 5.8.2006 published in daily Nawa-i-Waqt by Respondent No. 2, about some vacancies in District Hafizabad, Petitioners Nos. 1 and 3 had applied for the posts of Junior Clerks and Petitioner No. 2, for the post of Mali. All three were selected by the District Selection/Recruitment Committee, Hafizabad and were issued letters of appointment dated 31.8.2006 by Respondent No. 2. Some controversy appear to have arisen between the Zila Nazim, Hafizabad and the Revenue Department, Government of Punjab, about jurisdiction/power and competency to make such recruitments, and some correspondence ensued on the subject. As a result the petitioners have filed the present petition for a direction to Respondent No. 4 i.e. Medical Superintendent, DHQ Hospital Hafizabad for conducting their medical test and issuance of requisite certificates. Report and parawise comments were called for from the respondents. The District Officer (Revenue), Hafizabad in his comments has admitted that the appointment letters were duly issued to the petitioners on 31.8.2006 who had been selected on merit after due process of recruitment in accordance with the instructions received from the Board of Revenue, Punjab and the Recruitment Policy. The stance of the Revenue Department which issued the advertisement and completed process of recruitment, is that District Nazim, Hafizabad had no authority to cancel the recruitments so made and that even the Board of Revenue, Punjab had taken up the matter with the District Nazim, Hafizabad through letters dated 2.9.2006 and 7.9.2006. In the comments filed by the District Nazim, the position taken by him is that being the head of the District Government it was his "duty to keep close contact with the affairs relating to the departments and general public of the District". He has further taken the position that the matter had been taken up by him with the Senior Member Board of Revenue, Punjab and the Minister for Local Government Punjab.
For the reasons stated below, I do not consider it necessary to embark and dilate upon the controversy going on between the District Nazim and a Government Department as the fate of the petition is determinable on the basis of admitted fact that the petitioners had indeed been selected and appointment orders were issued and conveyed to them. Decisive steps having been taken by Respondent No. 2, and implemented the order of their appointments could not be cancelled in such an abrupt manner in clear disregard of due process of law. It was only Respondent No. 3, who has issued such an order whose authority and jurisdiction even is being very much disputed by Respondents Nos. 1 and 2. In the context of such a dispute the petitioners the ordinary citizens of the Islamic Republic of Pakistan cannot be made to suffer for any such tussle. Such a cancellation order issued by Respondent No. 3 does not hold good and looses its legal efficacy. Accordingly Respondent No. 4 will proceed in accordance with law.
The petition is accepted with no order as to costs.
(Anwar Saeed) Petition accepted.
PLJ 2007 Lahore 302
Present: Sayed Zahid Hussain, J.
Sahibzada MUHAMMAD NAZEER SULTAN--Petitioner
versus
SAIMA AKHTAR BHARWANA etc.--Respondents
Election Petition No. 121 of 2002, decided on 3.11.2006.
(i) Interpretation of Statutes--
----Mandatory and Directory provisions--Determination of--Held: Irrespective of the language used by the legislature--Legislative intent and end result required is to be discovered in order to reach the conclusion that a particular provision is mandatory or of directory nature.
[P. 328] D
(ii) Representation of the Peoples Act, 1976 (LXXXV of 1976)--
----Ss. 39(6) & 46--Representation of the Peoples (Conduct of Elections) Rules 1977, R. 26--Powers of Returning Officers and Election Tribunals--Duty for such purpose--Held: Whereas returning officer has power to recount the ballot papers, the tribunal can order the opening of packets, production of records and inspection of counted ballot papers. [P. 305] A
(iii) Representation of the Peoples Act, 1976 (LXXXV of 1976)--
----S. 70--Power of Election Tribunal--Recounting of votes--Legality--Whenever there is an allegation of misconduct, the Returning Officer can undertake recount and the election tribunal can order opening of packets, examination and inspection of the ballot papers in order to find out whether statutory provisions were duly observed by the statutory functionaries--Power of Election Tribunal to recount is to be exercised on the basis of some material, prima facie establishing illegalities and irregularities in the count of polled votes--A party is not entitled to claim recount as a matter of course and it is to be shown that there had been improper reception, refusal or rejection of votes--Such power, though quite extensive, yet it is to be exercised sparingly after satisfaction on the basis of material/evidence that there had been wrong inclusion or exclusion of ballot papers in the count. [P. 307] B
(iv) Representation of Peoples Act, 1976 (LXXXV of 1976)--
----S. 39--Representation of Peoples (Conduct of Elections) Rules 1977, R. 27--Duty of Returning Officers--Held: Returning officer is duty bound and expected to examine each ballot paper, so excluded from count by the Presiding Officer and find out whether it had rightly been done so or not--He is also empowered to undertake recount of votes. [P. 324] C
(v) Representation of Peoples Act, 1976 (LXXXV of 1976)--
----Ss. 70 & 39--Representation of Peoples (Conduct of Elections) Rules, 1977, R. 26--Consequence of failure to comply with the provisions of the Act, 1976 or the Rules, 1977--Held: Before consolidating of result of the count, Returning Officer is duty bound to examine the ballot papers excluded from the count by Presiding Officer and failure to comply with this procedure would render the election void as a whole. [P. 328] E
(vi) Representation of Peoples Act, 1976 (LXXXV of 1976)--
----Ss. 67(d) & 70--Power of Election Tribunal to declare the election as a whole void--Held: Election Tribunal is fully empowered to declare an election as a whole void and order fresh election in the constitutency.
[P. 330] F
PLD 1976 SC 6; 1999 SCMR 1; 1999 SCMR 284; AIR 1982 SC 1569; PLD 1986 SC 542; PLD 1986 SC 178 & PLD 1986 SC 483; AIR 1965 All. 552; 1993 CLC 849; 1996 SCMR 426; 1999 SCMR 284; 2006 SCMR 1713; PLD 1963 (WP) Kar. 433; (1974) 3 All. ER 722; PLD 1974 SC 134; 2003 PTD 2653 & PLD 1991 SC 308, ref.
Mr. Asim Hafeez, Advocate for Petitioner.
Mr. Imtiaz Rasheed Siddiqui & Mr. Imran Anjum Alvi, Advocates for Respondent No. 1.
Dates of hearing: 27.10.2006 and 2.11.2006.
Judgment
This is petition under S. 52 of the Representation of the People Act, 1976 whereby the election of Respondent No. 1 as returned candidate has been assailed. After usual proceedings which I must say consumed a lot of time an effective order was passed on 6.10.2006. The said order by which the election record was ordered to be produced and inspected was as follows:--
"The petitioner and the two respondents herein contested the election held on 10.10.2002 for seat in the National Assembly, NA-90, Jhang-V. Since Respondent No. 1 was declared as the successful and returned candidate this election petition has been filed by the petitioner praying the "the election of the Respondent No 1 be declared null and void and the petitioner be declared as elected from NA/90 Jhang-V". According to him, the declaration of Respondent No. 1 as a returned candidate was result of illegal/corrupt practices and non-compliance of statutory provisions by the statutory officials. He seeks production, inspection and examination of ballot papers, particularly, those declared invalid and rejected.
No. 2 since had obtained only 3517 votes he has shown no interest in the matter. Since the difference of votes (obtained by the petitioner and Respondent No. 1) was of 467 only, the entire edifice of the case of the petitioner rests upon this that votes rendered invalid and rejected need to be examined and scrutinized. It is pleaded that legality of rejection of a large number of votes casts in favour of the petitioner and those invalid votes counted in favour of Respondent No. 1 may determine the fate of the poll, which according to him was materially affected by reason of the failure of the Presiding Officer/Returning Officer in performing their duties in accordance with law.
"(1) A Tribunal may order the opening of packets of counterfoils and certificates of the inspection of any counted ballot papers.
(2) An order under sub-section (1) may be made subject to such conditions as to persons, time, place and mode of inspection, production of documents and opening of packets as the Tribunal making the order may think expedient:"
From these provisions the scheme, object, intent and purpose of the law is manifestly clear that the Returning Officer holds a vital position in the conduct and holding of election in a just and fair manner in accordance with law. He performs an important duty for such purpose. It is also evident that whereas the Returning Officer has the power to recount the ballot papers (sub-section (6) of S. 39); the Tribunal can order the opening of packets, production of records and inspection of counted ballot paper under S. 46.
S. 52 of the Act, the provisions of Chapter VII (S. 52 to S. 77) of the Act get attracted for the trial and decision of such petition. I need not at this stage dwell much about the procedure to be followed by the Tribunal inasmuch as the legal position is now well settled and known. The controversy, for the present, is limited about correctness and validity of count by the polling staff and the extent of powers of the Tribunal as to production, inspection and examination of the polled ballot paper. Apart from the provisions of S. 46, falling in Chapter IV (Conduct of Elections), in Chapter VII, (Election Dispute), S. 70 appears which enables the Tribunal to declare the election "as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of--
(a) the failure of any person to comply with the provisions of the Act or the rules: or
(b) the prevalence of extensive corrupt or illegal practice at the election".
Number of rulings have been cited by the learned counsel for the parties as to the extent of powers of the Tribunal relating to the production of the record and recount of votes. In Syed Saeed Hussan V. Pyar Ali and 7 others (PLD 1976 S.C. 6) it was observed that "the Tribunal is not only authorized but is duty bound to give his finding on each allegation pressed before him including those of wrong inclusion or exclusion of a ballot paper". In Maulvi Abdul Ghani and another v. Election Tribunal, Balochistan and others (1999 SCMR 1) it was observed that the Election Tribunal while deciding election petition had got plenary power under S. 46 direct opening of packets or carry out inspection of ballot papers. In Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284) it was held that S. 46 of the Act confers an exclusive and wide discretion on an Election Tribunal to order opening of packets or inspection of any counted ballot papers. According to Paragraph 940 of Volume-15, Halsbury's Laws of England, Fourth Edition:--"A re-count is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the returning officer". In Km. Shradha Devi v. Krishna Chandra Pant and others (AIR 1982 S.C 1569) it was observed:-- "When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered". In Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 S.C 542) it was laid down that though such a power vested with the Election Tribunal yet for exercise of the same there has to be some basis and not to be granted as a matter of course. Similar was the view expressed in Col. (Retd) Syed Mukhtar Hussain Shah v. Wasim Sajjad And 30 others (PLD 1986 S.C 178) and Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 S.C 483). Some judgments rendered by the learned Election Tribunals and precedents arising from local bodies elections have also been cited by the learned counsel for the petitioner, which are sought to be distinguished by the learned counsel for Respondent No. 1. According to the learned counsel for Respondent No. 1 though such a power is broad and extensive, it is to be used sparingly with circumspection. For this purpose he also relies upon Abdul Hafeez Khan (Supra). At this juncture reference to some observations in Sardar Abdul Hafeez Khan case (Supra) may be of guidance, which are "Many an illegal or corrupt practices, within the knowledge of a candidate, due to on election being a closed door affair, may turn out only to be the tip of an iceberg, the bulk of the deviations coming to unfold during the trial of the election petition and duly established on record by evidence. Thus, once the candidate concerned had pleaded his case with all details of corrupt or illegal practices coming to his knowledge, he should be free, within the parameters fixed by his own pleadings , to resort to the powers of the Tribunal to come to his aid virtue of the jurisdiction of a Civil Court residing in the Tribunal, as extended by Section 64 of the Representation of the People Act, 1976. No candidate, who has adequately pleaded the corrupt or illegal practices at his election should unjustifiably be discouraged, by undue strictness in applying the law of evidence, from proving his case. As it is, holding free and fair elections is a duty cast by law and Judges can be doing no more than discharging their obligations to the electorate by ensuring that no one is returned to an elected office without having duly and lawfully been elected".
(i) Whenever there is an allegation of miscount, the Returning Officer can undertake recount and the Election Tribunal can order opening of packets, examination and inspection of the ballot papers in order to find out whether the statutory provisions were duly observed by the statutory functionaries.
(ii) While seized of the election petition, the Tribunal is vested with the power to order recount, which power, however, is to be exercised on the basis of some material prima facie establishing illegalities and irregularities in the count of polled votes.
(iii) A party is not entitled to claim recount as a matter of course and it is to be shown that there had been improper reception, refusal or rejection of votes.
(iv) Such power of the Tribunal though quite extensive yet it is to be exercised sparingly after satisfaction on the basis of material/evidence that there had been wrong inclusion or exclusion of ballot papers in the count.
Foundation for such purpose has been laid in the petition i.e. Paragraphs, 2 to 8 and clauses (i), (ii), and (iii) of the ground of petition. Due to their relevancy to the case setup by the petitioner in the petition and the stance of Respondent No. 1, the salient paragraphs of the pleadings of the parties are reproduced for facility of reference:--
Para Petition Reply
(2) That the total number of Polling Stations in the said constituency as set up by the Election Commissioner of Pakistan was 219. That in accordance with the consolidated statement of the results sheet by the Returning Officer allegedly the total number of votes casts were 119252 and 116342 votes were stated to be valid out to which Petitioner secured 56180 votes, the Respondent No. 1 secured 56647 votes and 3517 votes were received by the Respondent No. 2. In the circumstances, the Respondent No. 1 was declared to be a returned candidate. It may be noticed that the number of votes rejected as invalid, is seven times more than the difference of votes between the Petitioner and the Respondent No. 1, the allegedly returned candidate.
Para No. 2 is admitted correct to the extent that the answering respondent has secured more votes and has been declared elected representative from the said Constituency.
(3) That the process of election and its conduct was seriously flawed inasmuch as the mandatory provisions of the Representation of the People Act, 1976 were callously ignored and violated.
It is submitted that the agents and supporters of Respondent No. 1 in connivance with the election staff indulged in large scale corruption and illegal practices and violated the mandatory provisions of the Representation of the People Act, 1976 which materially affected the outcome of the elections to the prejudice of the petitioner. Double casting of votes was indulged in as a matter of routine more particularly in the areas in which the Respondent No. 1 had influence i.e. in all the 42 Polling Stations situated in Mauza Kakki Nau, Qaim Bharwana, Kot Mirza, Mehrum Sial, Jala Bharwana, Shore Kot City, Shore Kot Cantt. and Shore Kot City Cantt.
Para No. 3 is incorrect. There has been no violation of any provision of Representation of the People Act, 1976 and the allegations contained therein are denied vehemently.
(4) That at the time of counting of votes at various Polling Stations, the mandatory provisions of Section 38 of the Representation of the People Act, 1976 were violated. Innumerous votes which did not bear the seal and signatures of the Presiding Officer were counted to the benefit of the Respondents Nos. 1 & 2. Various ballots on which the intention of the elector was apparent inasmuch as the seal or a major part thereof was within the parameters of the space containing the petitioner's name and symbol (Tractor), were treated as invalid despite objections of the petitioner, his Polling Agents and the Election Agent. The aforesaid illegalities were committed during the process of counting throughout the constituency, but was more pronounced and blatant in all the polling stations at Mauza Kakki Nau, Qaim Bharwana, Kot Mirza, Mehrum Sial, Jala Bharwana, Shore Kot City, Shore Kot Cantt., and Shore Kot City/Cantt.
It may be noticed that in the aforesaid Polling Stations, the manipulation of the results and the illegalities are more obvious from the facts that in some of such Polling Stations, the percentage of allegedly invalid votes is 5 to 6 times more than the percentage in the rest of the Polling Stations in the said constituency. It is submitted that such percentage of invalid votes increases into double digit figures which is most unnatural and speaks volumes for the mala fide and illegal manner in which the counting was conducted.
Para No. 4 is denied. There is no violation of any provision of law. Only invalid Ballot Papers were rejected.
(5) That the entire election result was deliberately and with mala fide intentions manipulated. In fact the provisional result was declared by the Returning Officer at about. 7:00 a.m. on 11th October, 2002 despite of the fact that the bags containing the ballot papers and the result sheet had not even reached the Returning Officer at that point of time. The said Ballot papers and the result sheets were deposited at about 2:00 a.m on the 12th of October, 2002.
Para No. 5 of the petition is incorrect. Hence denied. The results were prepared with great care and caution and the provisional result was intimated to the Election Commission on 11.10.2002 whereas consoli-dation was made on 12.10.2002. The final result was prepared by adding the number of postal Ballots secured by the candidates. It is denied that the bags were received by the Returning Officer after the declaration of result.
(6) The Presiding Officer concerned neither issued the signed certified copies of the result sheets to the Polling Agents of the petitioner nor affixed the same as required by Section 38 of the Representation of the People Act, 1976.
Para No. 6 is incorrect. The Presiding Officer had issued signed certified copies of result sheet to the polling agents of all the candidates.
(7) That the Returning Officer was enjoined by law to examine the ballot papers excluded from the count and re-decide the validity thereof in the presence of the parties. It is submitted that the Returning Officer did not conduct the aforesaid exercise nor was the Petitioner or his election Agent associated with any such exercise. In fact, as has been submitted herein above, the Returning Officer provisionally announced the result even prior to the receipt of all the bags of the ballot papers and other material from all the Polling Stations.
Para No. 6 is incorrect. Hence denied. The app-lication for re-counting of the Ballot Paper was rejected by the Returning Officer on 12.10.2002, a copy of which is already annexed with the petition.
(8) That in the above perspective, the petitioner through his Election Agent filed an application under Section 39(6) of the Representation of the People Act, 1976 brining to the notice of the Returning Officer, the illegal acts committed during the conduct of the elections and the fact that ballots in favour of the petitioner had not been counted in his favour and invalid papers in favour of the Respondents Nos. 1 & 2 had been counted to the account of the said Respondents. The said application was illegally and without any legal and factual basis rejected by the Returning Officer vide order dated 12.10.2002.
Para No. 8 is admitted to the extent that application for recounting was filed before the Returning Officer which was rejected on 12.10.2002.
GROUNDS
REPLY
(i) That the election has been conducted in a manner, which is violative of the mandatory provisions of the Representation of the People Act, 1976.
(i) & (ii) In reply to Grounds (i) & (ii), it is submitted that only such Ballot papers have been rejected which were found invalid by the Presiding Officer and the Returning Officer has rejected their application for recounting. There are only allegations not containing any adequate statement of material facts which could enable the Returning Officer to pass the order of recounting. It is denied that any Ballot paper has been rejected against the petitioner in an illegal manner.
(ii) That the election has been conducted in all illegal and unlawful manner in violation of the mandatory provisions of the Representation of the People Act, 1976. The Respondent No. 1 in connivance and collusion manipulated the process to her benefit through illegal and corrupt practices.
It is categorically provided by Section 38 of the Representation of the People Act, 1976 that only such ballots/votes would be counted which bear official seal and signatures of the Presiding Officer. In the instant case, innumerous ballot papers which on the face of it were invalid as they did not bear the official seal and/or signatures of the Presiding Officer were counted to the benefit of the Respondents Nos. 1 & 2 this illegal practice was committed at innumerous Polling Station more particularly.
It is submitted that a fair ascertainment and counting of the votes in accordance with the law would clearly show that a substantial number of votes counted in favour of the Respondent No. 1 were in fact were invalid and could not be credited to her account. The aforesaid actions have materially affected the result inasmuch as the differential between the Petitioner and the Respondent No. 1 is only a few hundreds of votes. And it is further submitted that in addition to the above, innumerous votes which were cast in favour of the Petitioner have been declared as invalid and excluded from the count in site of the fact that the same not only bore the official seal and signatures of the Presiding Officer but also stamp affixed by the elector clearly evidenced his intention to vote for the Petitioner. The said stamps or a substantial portion thereof was within the parameters of the space containing the petitioner's name and symbol. (Tractor). The said votes have been illegally excluded and declared invalid in obvious violation of the Section 38 of the Representation of the People Act, 1976.
(iii) That the entire election result has been manipulated to the prejudice of the petitioner and the benefit of the Respondent No. 1 as has been submitted above. The result was declared prior to the receipt of the entire sheets and bags of ballot papers from the Presiding Officer. In fact, even till date, the entire material from every Polling Station is not available. There was 219 Polling Stations established by the Election Commissioner of Pakistan. However, the bags deposited with the Treasury Officer by the Returning Officer pertain only to 218. The bags of the ballot papers and other material of the Polling Station No. 19 N.A-90, Jhang-V, situated at, Girls P/S Qadeemi to-date is not available with the Treasury Officer, Tehsil Shorkot, District Jhang. The aforesaid denudes the election result of any credibility whatsoever.
Ground (iii) is denied. The result was declared after the receipt of total Ballot Papers. It is submitted that even under the result sheet annexed by the petitioner under From XVI indicates that the result of Polling Station No. 19 has been counted by the Returning Officer and the certificate of Treasury Officer shows that 219 Sealed Bags containing election material was deposited in safe custody by the Returning Officer, a copy of which is annexed herewith as MARK-B.
(Portions underlined by me due to their relevance).
Out of the pleadings of the parties following issues were framed on 27.3.2003:--
Whether the election petition is liable to be dismissed in view of the preliminary Objection No. 1 of the written statement ? OPR.
Whether the election petition is within time ? OPP.
Whether the Respondent No. 1 has been declared elected on the basis of bogus, illegal and invalid votes ? If so to what effect ? OPP.
Whether the Respondent No. 1 has committed corrupt and illegal practices, If so its effect ? OPP.
Whether the petitioner is entitled to be declared as returned candidate from Constituency NA-90 Jhang ? OPP.
Relief.
In the light of the issues the evidence produced by the parties may now be adverted to.
PW-1 is Khadim Hussain, who was polling agent of the petitioner at Polling Station Shorkot Cantt. In his affidavit Mark-A, he had particularly deposed in Paragraphs-3 and 4 as follows:
"3. That during the course of the counting, it was observed that numerous ballot papers did not bear the Official Seal and signatures of the Presiding Officer. Some ballot papers bore other marks. Despite objections of the Deponent, the said ballot papers were included in the count to the benefit of Respondents Nos. 1 & 2, i.e (Saima Akhtar Bharwana and Shahbaz Ahmad Gujjar) by the Presiding Officer who ignored the objections of the Deponent.
PW-2 Haji Abdul Sattar who was also a polling agent at Polling Station and had sworn affidavit Mark-B. His deposition in Paragraphs-3 and 4 is as follows:--
"3. That during the course of the counting, it was observed that numerous ballot papers did not bear the Official Seal and signatures of the Presiding Officer. Some ballot papers bore other marks. Despite objections of the Deponent, the said ballot papers were included in the count to the benefit of Respondents Nos. 1 & 2, i.e (Saima Akhtar Bharwana and Shahbaz Ahmad Gujjar) by the Presiding Officer who ignored the objections of the Deponent.
PW-3 is Muzaffar Ali who was polling agent of the petitioner at Polling Station Budh Rajbana and had sworn affidavit Mark-C and his deposition in paragraphs-3 and 4 was as follows:--
"3. That during the course of the counting, it was observed that numerous ballot papers did not bear the Official Seal and signatures of the Presiding Officer. Some ballot papers bore other marks. Despite objections of the Deponent, the said ballot papers were included in the count to the benefit of Respondents Nos. 1 & 2, i.e (Saima Akhtar Bharwana and Shahbaz Ahmad Gujjar) by the Presiding Officer who ignored the objections of the Deponent.
These witnesses though were cross-examined on some other aspects yet nothing could be brought out from them contrary to the contents of their affidavits.
PW-4 Riaz Hashmat, who was Union Nazim, Union Council No. 51, has sworn his affidavit Mark-D. PW-5 Zafar Ahmad had sworn affidavit Mark-E, PW-6 Ghulam Akbar Khan was polling agent of the petitioner at Polling Station 56 and 57 and had sworn affidavit Mark-F, PW-7 Muhammad Iqbal had sworn affidavit Mark-G, PW-8 Muhammad Iqbal, Chairman Khushal Community Board Union Council Chak No. 485 had sworn affidavit Mark-H, PW-9 Mian Umar Ali Jajiana, the election agent of the petitioner, has sworn affidavit Mark-J, who though had been cross-examined at length, yet the sum and substance of his deposition remained consistent, PW-10 was Muhammad Jamshed, who had sworn affidavit Mark-K, PW-11 Dilbar Hussain, was the polling agent of the petitioner had worn affidavit Mark-L, PW-12 was Muhammad Ismail Sabir whose affidavit was Mark-M. The petitioner then appeared, himself, who had sworn affidavit Mark-N. He gave the detailed version about his efforts for recounting of votes before the Returning Officer, the Election Commission of Pakistan and filing of writ petition.
As against that, the evidence led by Respondent No. 1 is in the form of testimony of RW-1 Mehr Noor Muhammad Sial, the worth of which his determinable from the fact when he stated that he did not remember the Polling Station where he caste the vote. RW-2 Liaqat Ali was polling agent of Respondent No. 1 at Polling Station No. 404 who stated that he could not say anything about other polling stations. RW-3 Munir Ahmad had remained at the polling station only for ten-fifteen minutes and was not present at the time of counting of votes. RW-4 Umar Draz was polling agent of Respondent No. 1 at polling station Kot Lal who denied the suggestion of double voting at that polling station. RW-5 Muhammad Manzoor who was polling agent at Poling Station Government Girls High School and denied the suggestion of double voting in the polling station. RW-6 Rana Waseem Ahmad Khan has stated that he had gone merely to cast vote at the polling station and was not present at the time of the counting. RW-7 Muhammad Ramzan also makes statement on the same line. RW-8 Pehlwan Khan was polling agent of Respondent No. 1 at polling station Primary School Kot Dewan. In cross-examination he states that the polling agents of the petitioner had raised some objections before the Presiding Officer. Respondent No. 1, herself appeared as RW-9. In her cross-examination she had disclosed that she had obtained about 500 votes more than the petitioner and affirmed that 2910 votes had been rejected as per consolidated statement of count issued by the Returning Officer. She admitted that she was not present at the time of tabulation of result before the Presiding Officer or the Returning Officer. She, of course, denied the suggestion that some votes which did not bear the seal and signature of the Presiding Officer were counted in her favour.
This is the entire evidence produced by the parties, apart from the application of the petitioner before the Returning Officer and order passed by him rejecting the same on 12.10.2002 and his application before the Election Commission of Pakistan.
So far as the earlier orders made by the Tribunal at the initial stage of the petition declining such a request when even the issues had not been framed or the evidence had not yet been completely recorded the same cannot be invoked to circumvent such a prayer as now the complete evidence has been recorded. Now was the occasion to consider the propriety of exercise of such power in the light of the pleadings and the evidence. There has been a great insistence by the learned counsel for Respondent No. 1 that there was inconsistency in the stance of the petitioner to the extent that firstly the recount for the entire votes was claimed whereas now it is confined only to the invalid and rejected votes. According to him the petitioner cannot change stance now. The perusal of the application filed by the petitioner before the Returning Officer, however, shows that in the said application apart from other allegations it was alleged that valid votes cast in favour of the petitioner were illegally rejected whereas invalid votes were counted in favour of Respondent No. 1 but the said application was dismissed on 12.10.2002 by the Returning Officer, observing that allegations were vague and general in nature. Suffice it to observe that the application was quite comprehensive and could not be termed as vague and even the stance of the petitioner does not suffer from any such inconsistency, as is being pleaded.
The consideration of the respective pleadings and the perusal and appraisal of the evidence produced by the parties persuades me to reach the conclusion that the petitioner has discharged the burden for an order of production, examination and inspection of invalid/rejected ballot papers to make determination as to whether there was any miscount. It also becomes necessary when the difference of the votes secured by the petitioner and the returned candidate/Respondent No. 1 is meagre and not very large.
I, therefore, order that the election record pertaining to this constituency be produced for the purpose of examination and inspection of ballot papers declared invalid/rejected to examine as to how far it has affected the result of election.
During the course of hearing of this matter, the learned counsel for Respondent No. 1 pointed out that the custodian of the record is a supporter of the petitioner. In order to ward off any doubt/apprehension or to avoid any untoward situation, the Provincial Election Commissioner, Punjab, Lahore is directed to ensure the safe custody and transmission of the record before this Tribunal on 9.10.2006. The Provincial Election Commissioner, Punjab, Lahore will also depute a senior official to be present at the time of opening of the bags/packets and inspection of the relevant records on 9.10.2006".
"The record as per order dated 6.10.2006 has been received this morning. The Assistant Election Commissioner, who took the said record into his custody at Jhang has prepared an inventory report thereof according to which some of the bags do not have seal. The Registrar of the Tribunal will ensure its custody and safety by all possible means till such time it is opened and examined.
As requested by the learned counsel the Returning Officer of the Constituency NA-90 Jhang-V should be called for 12.10.2006".
On the adjourned date i.e. 12.10.2006 the following order was passed:--
"10:25 A.M. The Returning Officer is present. The learned counsel for the parties have been provided opportunity to inspect the bags containing the election record in presence of the Returning Officer, the Registrar of the Tribunal and the officials of the Provincial Election Commission.
Let the matter be taken up again.
The case has been called again. The learned counsel for the parties state that the statement of the Returning Officer may be recorded. Let his statement be recorded.
After the statement of the Returning Officer was recorded a question as to the effect of non-compliance of provisions of S. 39, in particular sub-section (3) thereof read with Rule 26 of the Representation of the People (Conduct of Election) Rules, 1977 has arisen and engaged my attention. The effect of such non-compliance need to be considered first. The learned counsel for the parties want to address arguments on this aspect. To come up on 27.10.2006.
Before recording of the statement of the Returning Officer, the election record of Polling Stations Nos. 145 and 147 was opened, which has been ordered to be resealed. These two bags have been accordingly resealed in presence of the learned counsel for the parties, the Returning Officer and the Election Officers present here, and if necessary to be reopened".
Since S. 39 of the Representation of the People Act, 1976 read with R. 26 of the Representation of the People (Conduct of Election) Rules, 1977 envisaged and essential duty of the Returning Officer, the learned counsel for the parties have addressed arguments on this aspect.
While making order dated 6.10.2006, I had the occasion to consider certain provisions of the election laws i.e Representation of the People Act, 1976 and Representation of the People (Conduct of Election) Rules, 1977. In the light of the contentions of the learned counsel for the parties now, I feel some other aspects also need to be kept in view. The learned counsel for the petitioner has emphasized upon the fact that margin of votes obtained by the petitioner and Respondent No. 1 is very narrow and the number or votes rejected and excluded from the count was very high. According to him the failure on the part of the Returning Officer to comply with the provisions of the Representation of the People Act, 1976 and rules (The Representation of People (Conduct of Election) Rules 1977) in the performance of his duty has not only materially affected the result of the election it also vitiates the whole election process in the constituency. It is contended that provisions of S. 39 (3) and (5) read with R. 26 cast a duty upon the Returning Officer to consolidate the result on examination of the excluded ballot papers and consequences for non-performance of such a duty have been mentioned in S. 70 of the Representation of the People Act, 1976. According to him it means that it was imperative for the Returning Officer to have acted in accordance with S. 39 which is a mandatory provision, non-compliance whereof renders the election void. Reference has been made by him to Hukam Singh v. Banwari Lal Bipra and others (AIR 1965 Allahabad 552), Syed Qurban Ali Shah v. Anis Ahmed Khan and 10 others (1993 CLC 849), Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426), Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284), Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCMR 1713), Jan Muhammad v. Collector, Jacobabad and others (PLD 1963 (W.P) Karachi 433) and Morgan and others v. Simpson and another (1974) 3 All ER 722).
The learned counsel for Respondent No. 1 has taken me through the provisions of the Representation of the People Act, 1976 such as Ss. 55, 63, 67, 68, 69, and 70 to contend that whenever the legislature meant a provision of law to be of a mandatory nature consequences for breach thereof were mentioned in the law itself. According to him, it is for the Tribunal now to satisfy itself as to the effect of non-compliance of provisions of S. 39. His contention is that even if the Returning Officer did not observe the provisions of S. 39 that itself does not vitiate the election. He cites Syed Saeed Hasan v. Pyar Ali and 7 others (PLD 1976 S.C 6 (30), Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others (PLD 1986 S.C 178), Niaz Muhammad Khan v. Mian Fatal Raqib (PLD 1974 S.C 134), Masood Textile Mills Ltd. through Ch. Muhammad Amin, Director v. Ishan-ul-Haq, Commissioner of Income-Tax, Companies Zone, Faisalabad and 6 others (2003 PTD 2653), and Messrs R.C.D Ball Bearing Limited v. Sindh Employees' Social Security Institution, Karachi (PLD 1991 S.C 308). It is further contended by him that the petitioner has been changing stance from time to time and is not entitled to any relief.
The principal legislation relating to elections is the Representation of the People Act, 1976 (Act LXXXV of 1976). In view of the enabling provisions of S. 107 thereof the Representation of the People (Conduct of Election) Rules, 1977 have been framed. The primary duty of holding elections is that of the Election Commission of Pakistan constituted under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973. All executive authorities in the Federation and Provinces are obliged to render assistance to the Commission in the discharge of their functions. Under S. 7 of the Act, the Commission makes appointment of District Returing Officer and Returning Officer for each District and for each constituency. According to sub-section (4) thereof, it is the duty of the Returning Officer "to do all such acts and things as may be necessary for effectively conducting an election in accordance with the provisions of this Act and the rules". The observance and compliance of statutory provisions for conducting an election is thus inviolable duty of the Returning Officer. The other provisions in the Act such as S. 8 (Polling Stations), S. 9 (Presiding Officers and Polling Officer), S. 10 (Supply of Electoral Rolls), S. 11 (Notification for election), S. 12 Nomination for election), S. 14 (Security), S. 15 publication of list of candidates), S. 16 (Withdrawal), S. 17 Retirement from election, etc), S. 18 (Death of a candidate after nomination), S. 19 (Postponement, etc., under certain circumstances), S. 20 (Uncontested election), S. 21 (Contested election and allocation of symbols), S. 22 (Election Agent), S. 26 Hours of the poll), S. 27 (stopping of the poll), S. 29 (Postal ballot) and S. 30 (Ballot Boxes) all go to show the pivotal position, role and importance of the Returning Officer in arranging, holding, conducting and ensuring election to be held in accordance with law. Then appear the provisions of S. 38 for count at the close of the poll. Its detailed methodology is laid down in R. 23 as well. The provisions of S. 39, in the context now need to be reproduced in extenso:--
"S. 39 Consolidation of results.--(1) The Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place fixed for the consolidation of the results, and, in the presence of such of the congesting candidates and election agents as may be present consolidate in the prescribed manner the results of the count furnished by the Presiding Officers, including therein the postal ballots received by him before the time aforesaid.
(2) The consolidation proceedings shall be held without any avoidable delay as soon as possible after the polling day.
(3) Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and, if he finds that any such ballot paper should not have been so excluded, count it as a ballot paper cast in favour of the contesting candidate for whom the vote has been cast thereby.
(4) The Returning Officer shall also count the ballot papers received by him by post in such manner as may be prescribed and include the votes cast in favour of each contesting candidate in the consolidated statement except those which he may reject on any of the grounds mentioned in sub-section (4) of Section 38.
(5) The ballot papers rejected by the Returning Officer under sub-section (4) shall be shown separately in the consolidated statement.
(6) The Returning Officer may recount the ballot papers--
(a) upon the request of, or challenge in writing made by, a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or
(b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission".
Coupled with the above provisions is R. 26, which also because of the relevance to the subject-matter assumes significance and is reproduced hereunder:--
"R. 26 Consolidation of results--(1) The Returning Officer shall consolidate in Form XVI the results of the count furnished by the Presiding Officer.
(2) Before consolidating the results, the Returning Officer shall open the packet containing the ballot papers excluded from the count by Presiding Officer as also the packet containing the challenged ballot papers and scrutinize each such ballot paper as was excluded from the count by the Presiding Officer.
(3) If the Returning Officer finds that any ballot paper excluded from the count by the Presiding Officer should not have been so excluded, he shall count it as a valid ballot paper cast in favour of the contesting candidate for whom it was cast.
Provided that in so doing the Returning Officer shall not mix up the ballot papers taken out from the packet labeled "challenged ballot papers" but shall keep the entire lot of challenged ballot papers in a separate packet.
(4) The Returning Officer shall reject a ballot paper, hereinafter referred to as "rejected ballot paper", recording thereon the fact of such rejection if it suffers from any of the defects mentioned in sub-section (4) of Section 38.
(5) If any contesting candidate or election agent objects to the rejection of a ballot paper, the Returning Officer shall add to his endorsement the words "rejection objected to"
(6) In consolidating the results of the count, the Returning Officer shall record the number of valid ballot papers cast in favour of each contesting candidate as shown by the Presiding Officer in the statement of the count, unless the figures thereof have undergone a change as a result of recount under sub-section (6) of Section 39, in which case he shall record the figures as arrived at after the recount.
(7) Before recording the number of valid votes in the consolidated statement against the name of each contesting candidate, the number of ballot papers, if any, which were treated by him as valid but had been excluded from the count by the Presiding Officer shall be taken into account, including those treated as valid from the challenged votes.
(8) The ballot papers rejected by the Returning Officer under sub-rule (4) shall be shown separately in the consolidated statement.
(9) The consolidated statement shall be so completed that the figures in respect of one polling station are completed before the incorporation of the figures in respected of any other.
(10) The Returning Officer shall deal with the postal ballot papers in the following manner namely--
(i) no cover in Form X containing a postal ballot paper received by the Returning Officer after the expiry of the time fixed in that ballot paper shall be counted;
(ii) the Returning Officer shall close and seal in a separate packet all the packets referred to in sub-rule (2) of Rule 16;
(iii) all other covers in Form X containing postal ballot papers shall then be opened one after another;
(iv) as each cover is opened, the Returning Officer shall scrutinize the declaration in Form VIII contained therein and shall reject the ballot paper and make an appropriate endorsement on the cover in Form VIII contained therein and shall reject the ballot paper and make an appropriate endorsement on the cover in Form IX without opening the same--
(a) if the said declaration is not found in the cover Form X or
(b) if the said declaration is substantially defective; or
(c) if the serial number of the ballot paper entered in the said declaration differs from such number endorsed on the cover in Form IX;
(v) each cover so endorsed and the declaration received with shall be replaced in the cover in Form X; and all such covers in Form X shall be kept in a separate packet which shall be sealed and on which the following particulars shall be recorded namely,--
(a) the name of the constituency;
(b) the date of counting; and
(c) a brief description of its contents;
(vi) the Returning Officer shall then place all the declarations in Form VIII which he has found to be in order in a separate packet which shall be sealed before any cover in Form IX is opened and on which shall be recorded the particulars referred to in clause (v);
(vii) all covers in Form IX containing postal ballot papers which have not already been dealt with under the foregoing provisions of this rule shall then be opened one after another and the Returning Officer shall scrutinize each ballot paper and decide the validity of the vote recorded thereby;
(viii) a postal ballot paper shall be liable to rejection on the grounds mentioned in sub-section (4) of Section 38, reference in that sub-section to prescribed mark being construed as reference to cross mark mentioned in sub-rule (1) of Rule 13;
(ix) the Returning Officer shall count all the valid votes given by postal ballot in favour of each contesting candidate and record the total thereof as well as the number polled by each such candidate in the consolidated statement in Form XVI; and
(x) all valid postal ballot papers shall, after they have been counted, be placed in a separate packet which shall be sealed and on which shall be recorded,--
(a) the name of the constituency;
(b) the date of counting; and
(c) a brief description of its contents".
A Booklet in the form of Manual of Instructions for the guidance of District Returning Officer, Returning Officer and Assistant Returning Officers was also issued by the Election Commission of Pakistan in English and Urdu for the elections 2002, which provided guidelines for the officials conducting the election. Paragraphs 108, 109, 110, 111, 112, 113 and 114 of the Manual of Instructions again highlight the duty of the Returning Officer to examine ballot papers excluded from the count by the Presiding Officer before the consolidation of the result. Paragraph 108 for facility of reference is reproduced hereunder:--
"108 Before the results of the count furnished by the Presiding Officer are consolidated in Form XVI, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and, if he finds that any ballot paper should not have been excluded, the shall count it as valid ballot paper in favour of the candidate for whom it was cast. Similar action shall be taken by the Returning Officer in case of challenged votes, but in doing so, he shall not mix up the ballot papers taken out from the packet labeled "challenged ballot papers" and should keep them separate from the other ballot papers"
It is thus absolutely and abundantly clear that the Returning Officer is duty bound and expected to examine each ballot paper so excluded from count by the Presiding Officer and find out whether it had rightly been so done. He is also empowered to undertake recount (Paragraph-17 of Manual). Such is the importance of the Returning Officer in the scheme of the law and meticulous statuary provisions empowering him to perform functions and discharge duties right from the commencement of the election process till its completion.
"S. 70 Ground for declaring election as a whole void.--The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of:--
"(a) the failure of any person to comply with the provisions of the Act or the rules: or"
(b) the prevalence of extensive corrupt or illegal practice at the election".
"There can be no rule of universal application for the determination of the question whether a provision in a statute is imperative or merely directory the question in each case being one to be decided on a consideration of the scope, object and nature of the statutory provision. There is no fixed rule that will give an exact answer to the question of mandatory and directory provisions ........ A realistic approach to the problem is to utilize the recognized aids to construction with a view to ascertaining the actual legislative intent. One of such sources is the purpose of the statue, that is, the purpose with which the law was made. In Re. Chuddeback, the Court said:
In determining whether the provision of a statute is mandatory or directory, the end sought to be attained by the provision is always important to be considered, and if the end cannot be effectuated by holding the provision to be directory, it must, if it can consistently with the language, be held to be mandatory".
It has further been commented that:--
"It is the duty of the Court to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. The use of the expression `shall' is not considered decisive and the question whether the provision is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed".
At page-945 a passage reads like this:--
"A command to do a thing in a particular manner would imply a prohibition to do it in any other manner, otherwise the whole aim and object of the law would plainly be defeated. When power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all".
In "Understanding Statutes- Canons of Construction (2nd Edition) by S. M. Zafar it has been noted at page-220 that "It is well established that generally rules of procedure are to be regarded as mandatory, and non-compliance with such a rule whether by a party or by the Court, renders the result of the proceeding a nullity. Where law provided certain manner for doing certain act and such provision was not directory but mandatory, manner prescribed by law, was to be adhered to; deviation from the course prescribed thereof, would vitiate action taken". Francis Bennion in Statutory Interpretation, 2nd Edition deals with this subject at Page-28 that "Where a requirement arises under a statute, the Court, charged with the task of enforcing the statute, needs to decide what consequence parliament intended should follow from failure to implement the requirement". It was further noted that "Where the relevant requirement is held to be mandatory, the failure to comply with it will invalidate the thing done under the enactment". At page 33 it is observed as under:--
"Voting. Where a right to cast any kind of vote is given by statute, the duty to comply with the conditions laid down is usually mandatory. Failure to comply, except in an immaterial respect, will cause the vote to be void.
Example 10.9. The Local Government Act 1972 S. 99 and Sch 12 para 39 (2) states that, in the case of an equality of votes at a meeting of a local authority, the person presiding at the meeting shall have a second or casting vote. The Act also states that at any meeting of the council the chairman, if present, shall preside. In Re. Wolverhampton Borough Council's Aldermanic Election {1962} 2 QB 460, a case under corresponding provisions of the Local Government Act 1933 expressed in terms of the mayor rather than the chairman, the mayor, though present, had allowed another council member to preside. Held: The casting vote of the person presiding was void.
In Jam Masooq Ali v. Shahnawaz Junejo (1996 SCMR 426) the election of the returned candidate was challenged before the Election Tribunal and was declared as a whole void. While noting the role of the Returning Officer in the conduct and holding of election it was observed that "failure to provide the amended Electoral Rolls to the Presiding Officers of the various polling stations in the constituency till afternoon time on the polling day by election authorities attracted the provisions of Section 70 of the Act for declaring the election as a whole void". Likewise the non-issuance of postal ballots was held to be a ground under S. 70 (a) to have "vitiated process of election as a whole". In Sardar Abdul Hafeez v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284), which has earlier as well been cited, it was observed that "The rule pertaining to non-compliance of the applicable provisions of law by the officers and staff conducting an election figure at yet another plane. Indeed where, in a constituency, there is a general failure of the election machinery, involving non-compliance with the provisions of the Act and the rules the allegations can be only as much detailed as is plausible in the given circumstances of a case". It was observed at page-298 that "In our opinion the official conduct of the election was flawed to an extent where the entire electoral process should have been declared to be void". It was held that "nothing short of the whole election being void could be the verdict".
In Morgan and others v. Simpson and another (1974) 3 All ER 722), Lord Denning MR opined as follows:
"Collating all these cases together, I suggest that the law can be stated in these propositions: (1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case, where two out of 19 polling stations were closed all day, and 5,000 voters were unable to vote. (2) If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls - provided that it did not affect the result of the election. That is shown by the Islington case where 14 ballot papers were issued after 8 pm. (3) But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls and it did affect the result-then the election is vitiated. That is shown by Gunn v. Sharpe, where the mistake in not stamping 102 ballot papers did affect the result.
Applying these propositions, it is clear that in this case, although the election was conducted substantially in accordance with the law, nevertheless the mistake in not stamping 44 papers did affect the result. So the election is vitiated. The election of Mr. Simpson must be declared invalid".
All the authorities pronouncements and opinions of the authors in the above-mentioned celebrated works have one thing at least common that irrespective of the language and phraseology used by the legislature the legislative intent and end result to be attained is to be discovered in order to reach the conclusion that a particular provision is mandatory or of directory nature.
Reverting again to the provisions of S. 39 and R. 26, I am left in no doubt whatsoever that the intendment of the legislature is abundantly clear that before consolidating the results of the count the Returning Officer had to examine the ballot papers excluded from the count by the Presiding Officer and to reach his own conclusion as to the correctness of the exclusion or otherwise. Not only in sub-section (3) the phraseology "the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer", lends support to this view, the provisions of S. 70(a) fortify such a conclusion as the consequences of failure "to comply with the provisions of the Act or the rules" are clearly mentioned by the law itself i.e. election to be rendered void as a whole. Such a view also finds support from Syed Qurban Ali Shah v. Anis Ahmad Khan and 10 others (1993 CLC 849), wherein the learned Election Tribunal Sindh had noted the deposition of the Returning Officer that "he did not examine or consider 872 rejected votes (Exh. A/4/1) while he announced final results. In doing so he violated mandatory directions contained in Section 39(3) of the Representation of the People Act, 1976 requiring a Returning Officer to examine the ballot paper excluded from the count by the Presiding Officer and to decide if it was rightly excluded or not". The inescapable conclusion thus, as to the import and effect of the duty of the Returning Officer as per S. 39, R. 26 and paragraph-108 of Manual of Instructions is that it was his imperative duty to have acted strictly in accordance with the statutory provisions while holding and conducting the election.
Now the contention of the learned counsel for Respondent No. 1 that since initially the petitioner had claimed relief that the election of Respondent No. 1 be declared null and void and the petitioner be declared as elected from NA-90 Jhang-V, therefore, he cannot ask for the election to be declared void as a whole, may be adverted to. According to him no foundations had been laid by the petitioner either in the pleadings or in the evidence. It may be reiterated that the election was held on 10.10.2002, the date for consolidation of the results before the Returning Officer was 12.10.2002 when the application of the petitioner came before him that number of valid votes cast in favour of the petitioner had illegally been rejected and excluded from his count, whereas large number of votes were wrongly included in favour of Respondent No. 1 but such a request was turned down by rejecting the said application, the same day. It was indeed a "failure" as envisaged by clause (a) of S. 70 of the Representation of the People Act, 1976 on the part of the Returning Officer whose non-performance of duty and non-compliance of the provisions of the Act has given rise to this whole episode, who despite pointation by the petitioner failed to perform his duty. Not only before the Returning Officer but before the Election Commission of Pakistan in the petition filed by the petitioner such a stance was repeated wherein it was also pleaded that "mistakes committed by the Returning Officer and the Presiding Officer" had invalidated the votes of the petitioner. In the same series W.P. No. 18868/02 had been filed with similar grievance of the petitioner. In the present election petition, in Paragraph No. 7 it has specifically been pleaded that "That the Returning Officer was enjoined by law to examine the ballot papers excluded from the count and re-decide the validity thereof in the presence of the parties. It is submitted that the Returning Officer did not conduct the aforesaid exercise nor was the Petitioner or his election Agent associated with any such exercise". It has further been elaborated in the grounds of the petition. "That the election has been conducted in an illegal and unlawful manner in violation of the mandatory provisions of the Representation of the People Act, 1976". In clause (v) and clause (vi) of the grounds the respective violation of the statutory provisions of S. 38 by the Presiding Officer and mandatory provisions of S. 39(3) of the Representation of the People Act, 1976 by the Returning Officer have been highlighted. It thus, cannot be successfully pleaded on behalf of Respondent No. 1 that no specific plea/grounds had been taken by the petitioner in this regard. In his deposition as well the petitioner has affirmed the averments so made in the petition.
Apart from the respective pleas of the parties the statement of the Returning Officer, which he made before this Tribunal cannot be overlooked or lost sight off. He admitted that an application Ex.D-1 was made by the petitioner, which was rejected by him, on the same date and that "I did not inspect or examine the ballot papers excluded from the count by the Presiding Officer". It was further stated by him that "I had not opened or de-sealed any of the packets/bags, which were produced by the Presiding Officer before me". This is the deposition of the statutory functionary who was charged with the duty to do all acts and things "as may be necessary for effectively conducting an election in accordance with the provisions of the Act and the rules" as envisaged by S. 7(4) of the Representation of the People Act, 1976 and who had to ensure the conduct of the election" honestly, justly, fairly and in accordance with law" as ordained by Article 218 of the Constitution of Islamic Republic of Pakistan, 1973. Indeed the lapses and violations are so serious, which takes the issue out of the purview and scope of the pleadings of the parties. The non-compliance of the statutory provisions of law and violations are so flagrant, visible and obvious that provisions of S. 70(a) of the Representation of the People Act, 1976 fully get attracted.
As to the prayer and relief it only need to be observed that the petitioner had prayed for his declaration as a returned candidate. Now if he is seeking declaration of election void as a whole, he is not asking for more than what he had prayed. In fact he is claiming lesser relief, to which no legitimate exception can be taken. There is no dearth of precedents where the election Tribunal or the Court itself altered the relief and declared the election void as a whole and fresh election was ordered. For reference see Syed Saeed Hassan v. Pyar Ali and 7 others. (PLD 1976 S.C. 6), Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426) and Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284). It may be observed that clause (d) of S. 67 of the Representation of the People Act, 1976 itself empowers the Election Tribunal to declare the election as a whole to be void. Thus, in the light of the statutory provisions and the precedents the Tribunal is fully justified to declare an election as a whole void and order fresh election in the constituency.
Thus the overall appreciation of the pleadings of the parties the material/evidence on the record and consideration of the legal provisions in the context of settled principles, persuade me to be "satisfied" in terms of S. 70 (a) of the Representation of the People Act, 1976 that the non-compliance and violation of statutory provisions mentioned above has rendered the election void as a whole. It is so declared.
As a result, the petition is accepted declaring the election in NA-90 Jhand-V void as a whole. Consequently, fresh election may be held in that constituency in accordance with law.
At the conclusion of the proceedings the learned counsel for Respondent No. 1 has pointed out that she is the sole lady from the Province of Punjab in the National Assembly, who acquired that status after tough compaign and contest n the election. The object perhaps, was to evoke some sort of indulgence. It may be observed that the effort put in by her for reaching the Parliament may be commendable, however, it needs no reiteration, that such aspects can have no relevance while deciding a lis between two contesting parties as for due administration of justice and upholding the rule of law no such consideration can weight or prevail. In the fresh elections to be held she would also be free to participate and return if mandated by the people of the constituency.
No order as to costs.
(Javed Rasool) Petition accepted
PLJ 2007 Lahore 331
Present: Sayed Zahid Hussain, J.
ABDUS SATTAR CHUGHTAI MALIK ADVOCATE--Petitioner
versus
PAKISTAN BAR COUNCIL and others--Respondents
W. P. No. 10590 of 2006, decided on 6.10.2006.
(i) Supreme Court Bar Association of Pakistan Rules, 1989--
----R. 9(a)--Duration of SCBA--Reduction from two years to one year--Locus standi--Held: Out of 1580 members of the bar association only petitioner who was neither an office bearer nor member of the executive committee, had assailed the amendment in the Rules--A number of elections had taken place thereafter--Even petitioner might have participated by casting his vote--No data/sufficient material had been placed on record, even to infer that compliance of rules was not made at the time of amendment--The term could not sought to be extended merely on the assumption that the successor would not be in a position to complete the agenda or carry out the developmental activity--Petition dismissed.
[Pp. 332 & 333] A, B & D
(ii) Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Scope--Held: Writ jurisdiction could not be exercised merely on assumption. [P. ] C
Petitioner in person.
Mr. Ali Akbar Qureshi, Advocate/Secretary SCBA of Pakistan with Mr. Irfan Khaleel Qureshi, Advocate.
Mr. Zaka-ur-Rehman, Advocate/Vice President (Punjab) SCBA of Pakistan.
Date of hearing: 6.10.2006.
Order
Mr. Abdus Sattar Chughtai Malik, Advocate Supreme Court of Pakistan, a Member of Supreme Court Bar Association of Pakistan has filed this petition praying that "petition in hand may please be accepted, consequently amendment of Rule 9 (a) in respect of reduction of the tenure qua the Supreme Court Bar Association from two years to one year approved by the Association vide Meeting dated 28.2.2003 (Annexure A) may kindly be declared illegal, unlawful and inoperative, resultantly Notice of the meeting dated: 27.9.2006 (Annexure C) may also be declared without lawful authority and be set aside in the interest of justice". Such a prayer has been made on his plea and view of the matter that the amendment carried out in the Rules viz., Supreme Court Bar Association of Pakistan Rules, 1989 whereby the term of the Executive Committee and Office Because was reduced to one year from two years was not consistent with the rules inasmuch as that no due notice was given nor any agenda was issued for such purpose and that even the quorum requirement was not met. It is pleaded in the petition that "Temure of the association is very material in order to achieve objects thereof", and that the "Age of one year for such association is ridiculously low and deficient for performing its obligations with its ultimate goals". He has also highlighted the achievements of the current Executive Committee and Officer Bearers as follows:
"Needless to say that siting association first time in its history scaled number of welfare goals, details thereof may burden the petition with heavy list. It may be appreciated that allotment of 12 Kanals Plot situated in the Constitutional Avenue may remain useless unless, construction of the building of Bar Association is achieved by the sitting association so is the case of allocation of the colonies for the Supreme Court Lawyers in their working areas".
Though the case was still at initial/motion stage yet Mr. Ali Akbar Qureshi Secretary Supreme Court Bar Association of Pakistan who was asked to produce the rules and Mr. Zaka-ur-Rehman, Vice President (Punjab), Supreme Court Bar Association of Pakistan have entered appearance who state that the amendment so made in the rules i.e. Rules 8, 9 and 12 serve the best interest of the members inasmuch as that it enables and ensures the Members belonging to all Provinces an opportunity of representation through a democratic process of election. It is also pointed out by them that office bearers of all the Bar Associations in the country have term of one year. They have also challenged the locus standi of the petitioner to raise this issue through this petition particularly when the election program of the forthcoming election has already been issued 12.9.2006.
Besides the objection as to the locus standi of the petitioner who is neither an Office Bearer nor Member of the Executive Committee, it is worth noting that none of the incumbent Office Bearer or Member of the Executive Committee have left aggrieved of such an amendment in the rules. I have been told that the membership of the association is presently 1580 who hail from all over the country and only the petitioner seeks to assail the same which is in existence since 4th of July 2003. Not only number of elections have taken place thereafter even the petitioner might have participated by casting vote. The acceptability of such amendment of rules is manifest from the fact that non-else than the petitioner has assailed the same. One of the Members of the Executive Committee (Rana A. Hameed Talib, Advocate) had filed a petition of the nature but withdrew the same and the petition was dismissed 18.9.2006 accordingly. All members of the Supreme Court Bar Association are advocates of the Apex Court who have attained such a status after practicing law for substantially long period and experience. I cannot assume that they would have overlooked or ignored the rules prescribing procedure for amendment as provided by Rules 43. Indeed except assertion in the petition no data/sufficient material has been placed on record, even to infer that compliance of rules was not made at the time of amendment. It is well known that writ jurisdiction cannot be exercised merely on assumptions.
So far as the contention of the learned counsel that Office Bearers and Executive Committee should have term of two years for completing their agenda and developmental program is concerned, suffice it to observe that for all elected offices including Associations like the Supreme Court Bar Association, the Members of Senate, National Assembly and Provincial Assemblies even have their terms of office fixed by the relevant laws. The term cannot sought to be extended merely on the assumption that the successor would not be in a position to complete the agenda or carry out the developmental activity.
In view of the above, I find no merit in this petition which is dismissed accordingly.
(Javed Rasool) Petition dismissed
PLJ 2007 Lahore 333
[Multan Bench Multan]
Present: Maulvi Anwarul Haq, J.
MUHAMMAD UMAR LODHI, DEPUTY MANAGER OPERATION, CANTT. DIVISION, MULTAN--Petitioner
versus
MANAGING DIRECTOR WAPDA (POWER), LAHORE
and another--Respondents
W.P. No. 4490 of 2006, decided on 11.9.2006.
Service Tribunals Act, 1973 (LXX of 1973)--
----S. 9--Constitution of Pakistan, 1973--Art. 199--Right of appeal--Stoppage of annual increment for a period of one year without cumulative effect--Constitutional petition--Penalty of censure was imposed--Right of appeal to Federal Service Tribunal--Validity--Information has been given to civil servant by the office of Tribunal and upon reading of notice of the case was not before the office tribunal--Matter needs to be considered by tribunal with reference to provisions of Removal from Service (Special Powers) Ordinance, (XVII of 2000) and right of appeal to Federal Service Tribunal--Petitions were disposed of with direction to petitioner to immediately approach Federal Service Tribunal with an appropriate application bringing relevant facts to the notice of Tribunal and shall be determined by Tribunal. [P. 335] A
Sardar Muhammad Sarfraz Dogar, Advocate for Petitioner.
Date of hearing: 11.9.2006.
Order
This order will dispose of Writ Petitions Nos. 4490 & 4492 of 2006 as common question is involved.
In both these cases the petitioner was proceeded against under the provisions of Removal from Service (Special Powers) Ordinance, (No. XVII of 2000). In the matter of Writ Petition No. 4490 of 2006 a penalty of "Stoppage of one annual increment for a period of one year without cumulative effect" was imposed on 21.3.2006. An appeal filed against the said order was partly allowed on 15.6.2006 and the penalty was converted into "Censure". In Writ Petition No. 4492 of 2006 penalty of "Censure" was imposed vide order dated 20.12.2005. The appeal was rejected on 22.6.2006. Service Appeal No. 623(R)/CE/06 was filed. According to the learned counsel the office of the learned Federal Service Tribunal has informed that in view of the judgment dated 27.6.2006 of the Honourable Supreme Court of Pakistan in Civil Appeals Nos. 792 to 816 of 2005 etc. the appeal has abated and he should go to competent forum for redressal.
Learned counsel has taken me through the said judgment of the honourable Supreme Court of Pakistan. I deem it appropriate to reproduce Para No. 108 of the said judgment here:
"108. The threadbare discussion on the subject persuades us to hold:--
Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under Section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under Section 2(1)(b) of the CSA, 1973.
The cases of the employees under Section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in Section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy".
Now in my humble opinion the said dictum is not attracted to the case of the petitioner before me. As noted by me above he was proceeded against in both these cases under the provisions of said Ordinance, 2000. Now Section 10 of the said Ordinance read as follows:
"10. Appeal.--Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under Section 9 may, within thirty days of the order, prefer an appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973 (LXX of 1973)".
It will thus be seen that any person who has been proceeded against under the provisions of the said ordinance and he feels aggrieved of any final order passed under Section 9 as is the position in the case in hand, he has been conferred a right of appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973. It is but apparent that the said information has been given to the petitioner by the office of the learned Tribunal and upon reading of the said notice the said aspect of the case was not before the office of the learned Tribunal. The matter needs to be considered by the learned Tribunal with reference to the provisions of the said Ordinance XVII, 2000 and the right of appeal conferred there under. Both the writ petitions are accordingly disposed of with a direction to the petitioner to immediately approach the learned Federal Service Tribunal with an appropriate application bringing the said relevant facts to the notice of the learned Tribunal and the matter shall be determined by the learned Tribunal. The Office to remit a copy of this order to the Registrar of the learned Federal Service Tribunal at Islamabad.
(Rafaqat Ali Sohal) Order accordingly
PLJ 2007 Lahore 335
Present: Mian Saqib Nisar, J.
MUHAMMAD ANWAR--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, MANDI BAHA-UD-DIN
and 2 others--Respondents
W.P. No. 6837 of 2006, decided on 24.7.2006.
Custody of Minors--
----Welfare of minor girls--Entitlement of mother--No female member in the house of father to look after minor girls--It is not in the welfare of minors to remain in custody of the petitioner father, rather at their age, which was about 9 and 10 years respectively, it was the mother who could look after the minor properly--Therefore, First Appellate Court had exercised his proper jurisdiction, when was not shown to be illegal or erroneous for mis and non-reading the evidence--Petition dismissed. [P. ] A
Mr. Akhtar Ali Dogar, Advocate for Petitioner.
Ch. Muhammad Lehrasib Khan Gondal, Advocate for Respondent No. 3.
Date of hearing: 24.7.2006.
Order
Respondent No. 3 filed a petition against the petitioner, for the custody of her two minor daughters, born out from the wedlock between the petitioner and Respondent No. 3. The said petition, after contest, has dismissed by the learned Family Court vide order dated 1.4.2006. Respondent No. 3 assailed the above judgment of the Family Court through an appeal, which has been accepted and the learned Appellate Court has come to the conclusion that the present petitioner has herd of goats/sheep and remains away from the house for grazing them since morning till afternoon; there is no female member in his house to look after the minor girls; the girls are not being educated and thus, it is not in the welfare of the minors to remain in the custody of the petitioner.
Learned counsel for the petitioner has argued that the mother of the petitioner is living with him and she is looking after the minors very well and they are not alone when the petitioner goes out for work.
I am afraid that the above contention of the learned counsel for the petitioner is belied by the petitioner's own statement, made in the cross-examination, when he stated:--
Obviously, in the above circumstances, it is not in the welfare of the minors to remain in the custody of the petitioner, rather at their age, which is about 9 and 10 years respectively, it is the mother, who can look after the minors properly. Therefore, when the learned Additional District Judge has exercised his proper jurisdiction, which is not shown to be illegal or erroneous for any mis-and non-reading of the evidence, I do not find this to be an appropriate case for interference in my constitutional jurisdiction. The writ petition thus, has no merits and is hereby dismissed.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2007 Lahore 337
Present: Sayed Zahid Hussain, J.
SARFRAZ AHMAD TARAR--Petitioner
versus
PROVINCE OF PUNJAB and another--Respondents
Writ Petition No. 17343 of 2004, heard on 5.9.2006.
(i) Punjab Office of the Ombudsman Act, 1997 (X of 1997)--
----S. 3(2)--Qualification for appointment of Ombudsman--Scope--Held: Through amendment in S. 3(2) the scope and ambit of the Punjab Office of the Ombudsman Act, 1997 are enlarged so as to enable the Govt. to appoint Ombudsman other than the judge of superior Court--Functions to be performed by him are not purely and exclusively of judicial nature--Respondent who had administrative experience as a civil servant was rightly appointed as Ombudsman--Petition dismissed.
[Pp. 338 & 339] A & B
(ii) Interpretation of Statutes--
----Each word of the statute is entitled to be given meaning and no part of it to be treated as redundant. [P. 339] C
Mr. Muhammad Ali Malik, Advocate for Petitioner.
Ch. Aamir Rehman, Addl. A.G. for Respondent No. 1.
Mr. Abid Hassan Minto, Advocate for Respondent No. 2.
Date of hearing: 5.9.2006.
Judgment
Appointment of Respondent No. 2, as Ombudsman Punjab, made through Notification dated 16.5.2004 is sought to be assailed primarily on the ground that only a Judge of the High Court or a person qualified to be the Judge of the High Court could be appointed notwithstanding the amendment made in S. 3 of the Punjab Office of the Ombudsman Act, 1997 (Act X 1997).
It is contended by the learned counsel that ever since the enactment of Act X of 1997 all those who held the Office of Ombudsman in the Province of Punjab were former Judges of Superior Courts who were appointed keeping in view the nature of duties and functions of the said Office. It is contended that even the amendment brought in S. 3 of the Punjab Office of the Ombudsman Act, 1997 (Act X 1997) did not empower the Government to appoint Respondent No. 2, as according to the learned counsel expression "or any other person" is to be read ejusdem generis and not in isolation. It is contended that since Respondent No. 2, had not been a Judge of High Court nor was he qualified to be a Judge of High Court, his appointment was unlawful and even the amendment in Section 3 (2) of Act X of 1997 was ultra vires the Constitution.
The learned Law Officer and the learned counsel for Respondent No. 2 vehemently urge for upholding the appointment of Respondent No. 2. It is contended that in view of the amendment in sub-section (2) of S. 3 of Act X of 1997, any person of known integrity could be appointed as Ombudsman. It is contended that Respondent No. 2, is a person of known and impeccable integrity who is a former civil servant having vast experience, whose appointment was made in accordance with law through a valid Notification issued by the Governor of Punjab. It is contended that amendment of S. 3 (2) through Act III of 2003 was competently made by the Provincial Assembly which was fully in accord with the Constitution of Islamic Republic of Pakistan, 1973.
Through the Punjab Office of Ombudsman Act, 1997 Act X of 1997 the Office of Ombudsman was introduced in the Province of Punjab. Appointment to such Office as envisaged by law is to be made by the Government of the Punjab, whose term of Office is three years. Sub-section (2) of S. 3 lays down the qualifications for such an appointment. As originally enacted it was "An Ombudsman shall be a person who is, or has been or is qualified to be a Judge of the High Court and is person of known integrity". (Section 3(2) of the Act 1997). The appointments previously made were inconsonance with the said provision of law. Mr Justice (R) Munir Ahmad Khan, Mr. Justice (R) Manzoor Hussain Sial and Mr. Justice (R) Sajjad Ahmad Sipra held the said Office accordingly. The last incumbent held that Office till 11.2.2004. Sub-section (2) of S. 3 of Act X 1997 was amended through Punjab Act III of 2003 and after receiving assent of the Governor of Punjab on 8.2.2003 was notified on 10.2.2003. The amended provisions of S. 3 (2) is as follows:--
"An Ombudsman shall be a person who is, or has been or is qualified to be a Judge of the High Court or any other person of known integrity".
Undoubtedly the scope and ambit of S. 3 (2) of the Act was enlarged through the amendment so as to enable the Government to appoint Ombudsman other than a Judge of the Superior Court. Such an intention is clearly discernable from the phraseology "or any other person of known integrity". The competency of Provincial legislature to amend a law enacted by it can not be disputed nor it has been shown how the amendment so made is ultra vires any of the provisions of the Constitution. Functions to be performed by the holder of such Office are not purely and exclusively of judicial nature. The contention of learned counsel for Respondent No. 2, that a person of integrity having served as civil servant by virtue of his administrative experience can also be eminently suitable for the Office, is not without significance. The contention of the learned counsel for the petitioner that even the amended provision should be construed in the manner that only a person having judicial knowledge and background should be appointed as Ombudsman, cannot be countenanced inasmuch as the intention of the legislature is quite obvious and clear by the words employed by it "or any other person". Any restricted construction of the amended provisions will not only defeat the intendment of the legislature, it would rather render the phrase "any other person" as meaningless and otiose. It is settled law that each word of the statute is entitled to be given meaning and no part of it is to be treated as redundant. Mere desire that such an Office should be held by a person belonging to judiciary cannot be made a ground for striking down a provision of law validly made by the competent legislature.
and' toor' and vice versa, whenever such conversion is required by the context or is necessary to harmonize the provisions of a statute and give effect to all its provisions, or to save it from unconstitutionality, or, in general to effectuate the obvious intention of the legislature". The contention of the learned counsel for the petitioner thus does not carry weight and is found to be untenable. Once therefore, the amended provisions of S. 3 are found free of any taint of invalidity and being intra vires, the appointment of Respondent
No. 2, made through Notification dated 16.5.2004 suffers from no illegality.
Suffice it to observe that the integrity of Respondent No. 2 has not in any way been disputed by the petitioner.In view of the above, the petition is bereft of any merit, which is dismissed accordingly.
(Javed Rasool) Petition dismissed
PLJ 2007 Cr.C. (Lahore) 340 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Khawaja Muhammad Sharif &
Muhammad Farrukh Mahmud, JJ.
IJAZ HUSSAIN alias JAZOO--Appellant
versus
STATE--Respondent
Crl. A. No. 377 of 2001 & M. Ref. No. 814 of 2001, heard on 8.12.2006.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code, (V of 1898) S. 410--Conviction and sentence--Challenge to--Mitigating circumstances--In statement of appellant recorded u/S. 342 Cr.P.C. in reply to certain questions and also from record it spells out that murder of deceased was committed by appellant because of provocation--Accused had suspicion that deceased had illicit relations with his wife--Taking into consideration motive mentioned in FIR, complainant who was brother of deceased, admitted that prior to occurrence, about 2 months before accused made complaint to his father that deceased had illicit relations with his wife--These mitigating circumstances exist in favour of appellant, so while maintaining conviction of appellant u/S. 302 (b) PPC his death sentence is converted into imprisonment for life--Order accordingly. [Pp. 342 & 343] A, B, C & D
NLR 1984 Crl. Cases 7 (SC), NLR 1991 Crl. Cases 239 and PLJ 1982 SC 435, rel.
Malik Shahzad Ahmed Khan, Advocate for Appellant.
Mr. Tanvir Iqbal, AAG for State.
Malik Rab Nawaz Noon, Advocate for Complainant.
Date of hearing : 8.12.2006.
Judgment
This judgment will dispose of Criminal Appeal No. 377 of 2001 filed by Ejaz Hussain alias Jazoo, who faced trial in case FIR No. 42, registered at Police Station Injura, District Attock, on 10.5.1999, for offences under Sections 302 PPC, before learned Additional Sessions Judge, Attock, who after conclusion of trial, vide his judgment dated 26.10.2001 convicted the appellant under Section 302 (b) PPC and sentenced him to death with compensation of Rs. 50,000/- or in default six months' R.I.
Murder Reference No. 814 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
Brief facts of the case as mentioned in FIR Ex. PJ are that on 10.5.1999 at about 6:00 p.m. while Muhammad Wazir complainant/PW-6 and his brother Saleem Iqbal were sitting near hotel of Arsala Khan in front of house of Azam Khan at thoroughfare for taking tea, Ejaz Hussain (their cousin) armed with 8 mm rifle came there and fired two successive shots on the back side of Saleem Iqbal, which existed from bally. Thereafter the accused fled away from the spot. Saleem Iqbal succumbed to the injuries at the spot. Abdul Hameed and Abdul Hakeem brothers of the complainant and deceased also witnessed the occurrence.
The motive behind the occurrence was that Ejaz Hussain had suspicion that Saleem Iqbal-deceased had illicit relations with his wife, so due to that suspicion Ejaz Hussain murdered Saleem Iqbal.
After registration of formal FIR, the investigation of the case was taken over by Muhammad Afzal, Inspector/PW 8. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Ex. PK and inquest report Ex. PL. He took into possession blood-stained earth from the spot vide memo Ex. PG. He also took into possession two empties of 8. mm rifle from the scene of occurrence vide memo Ex. PH. On 24.5.1999 he arrested the accused, who while in custody led to the recovery of 8. mm rifle which was taken into possession alongwith its license vide memo Ex. PF. After completion of investigation, the accused was sent up to face trial.
At the trial, the prosecution in order to prove its case produced 8 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Ex. PP, Serologist Ex.PP/1 and that of Forensic Science Laboratory Ex. PO closed its case. The accused in his statements recorded under Section 342 Cr.P.C. pleaded his innocence and false implication. He did not appear as witness under Section 340 (2) Cr.P.C. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above.
After arguing the case at some length, the learned counsel for the appellant submits that the mitigating circumstances are flowing from the FIR and the statements of the witnesses. He has relied upon NLR 1984 CRL. Cases 7 (SC) and NLR 1991 CRL. Cases 239. He lastly submits that it is not a case of capital sentence but life imprisonment.
The learned Assistant Advocate General submits that though the appellant has not taken a specific play for committing the murder of the deceased but it spells out from the record and motive given in the first information report.
However, the learned counsel for the complainant submits that it is a fundamental right of human being that he cannot be killed due to Ghairat and family honour. He has relied upon PLD 2001 SC 96 and PLD 2002 SC 558.
We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. As far as the implication of the appellant in this case is concerned, we have no doubt in our minds that it was the appellant who had committed the murder of the deceased. The learned counsel for the appellant has rightly submitted that mitigating circumstances are flowing from the first information report, which was lodged immediately after the occurrence and we reproduce hereunder as mentioned in the FIR.
In the statement of the appellant recorded under Section 342 Cr.P.C. in reply to Question No. 3 and also in reply to Question No. 7, and also from the record it spells out that the murder of the deceased was committed because of provocation. Both, the deceased and the appellant are first cousins. The deceased used to visit the house of the appellant being first cousin but unfortunately he kept a bad eye on wife of the appellant. The appellant had suspicion that the deceased had illicit relations with his wife.
Taking into consideration these mitigating circumstances and moreover two sentences are mentioned in Section 302 (b) PPC i.e. death and life imprisonment. Even the learned AAG has submitted that the plea though not taken by the appellant but it spells out from the FIR and the evidence. So, it is a case which calls interference of this Court only to the extent of sentence.
Taking into consideration motive mentioned in the FIR we may observe here that PW-6 during cross-examination admitted that "it is correct that motive written in that FIR is that about 13/14 years before I had committed sodomy with Amir son of Lashkari Khan. Volunteered that it was mere a suspicion" and "prior to the occurrence, about 2/2 months before Ejaz Hussain accused made complaint to my father that the deceased had illicit relations with his wife". It is common
Cr.C. Muhammad Bashir v. State PLJ
(Khawaja Muhammad Sharif, J.)
2007 Muhammad Bashir v. State Cr.C.
(Khawaja Muhammad Sharif, J.)
in our society that a person who has illicit relations with wife of any one else or a woman it is considered bad.
D
This appeal with the above modifications stands dismissed.
Murder reference is answered in the negative. Death sentence is not confirmed.
(Anwar Saeed ) Order accordingly.
PLJ 2007 Cr.C. (Lahore) 343 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Khawaja Muhammad Sharif &
Muhammad Farrukh Mahmud, JJ.
MUHAMMAD BASHIR--Appellant
versus
STATE--Respondent
Crl. A. Nos. 52 & 53 of 2001 & M.R. No. 18 of 2001, heard on 4.12.2006.
Pakistan Penal Code, 1860 (XLV of 1860)--
----302(b)--Criminal Procedure Code, (V of 1898) S. 410--Brutal murder--Conviction and sentence recorded against accused--Challenge to--Appreciation of evidence--Two eye-witnesses appeared before trial Court in support of prosecution case--Both have fully supported prosecution case and nothing could be shaken from their testimony during course of their cross-examination--They had no strong reason to falsely depose against appellant--Report of Fire-arm Expert is to the effect that all three crime empties recovered from spot have matched with pistol recovered from personal research of appellants--Doctor who had conducted post-mortem examination of dead-body of deceased found three fire-arm injuries on the person of deceased, so, ocular account is corroborated by medical evidence--Not only one but appellants fired three successive fatal shots which led to brutal murder of deceased, so, it is an intentional and pre-meditated murder on part of appellants so, in such like proved cases normal sentence is death--There is no mitigating circumstance in favour of appellant to award him lesser sentence--Order accordingly.
[Pp. 346 & 347] A, B, C & D
Nemo for Appellant.
Syed Hasnain Kazmi, AAG for State.
Mr. Tariq Azam Chaudhry, Advocate for Complainant.
Date of hearing : 4.12.2006.
Judgment
Kh. Muhammad Sharif, J.--This judgment shall dispose of Criminal Appeal No. 52/2001 (Muhammad Bashir Vs. The State), Crl. Appeal No. 53/2001 (Mirza Yasir Ali vs. Sajawal Khan etc). and Murder Reference No. 18/2001 (sent by the learned trial Court for confirmation of death sentence or otherwise), as they arise out of the same judgment dated 31.1.2001 passed by the learned Additional Sessions Judge, Attock whereby, following sentences and convictions were passed:--
(i) Appellant Muhammad Bashir was convicted under Section 302 (b) PPC and sentenced to death with a compensation of
Rs. 50,000/- to be paid to the legal heirs of the deceased as provided under Section 544-A Cr.P.C. in default whereof to further undergo six months SI;
(ii) However, benefit of doubt was extended to the acquitted accused, namely, Sajwal Khan who earned acquittal from the case.
Learned counsel for the complainant, who has filed Crl.A. No. 53/2001 against the acquittal of the said Sajawal, does not press the said appeal which is disposed of having not been pressed.
It is pertinent to mention here that this appeal was filed by Sardar M. Tahir Ayub Khan Sadozai, Advocate. It came up for hearing on 13.6.2005 before a learned Special Division Bench consisting of myself and Mr. Justice Mian Muhammad Najum-uz-Zaman on which date following order was passed:--
"None has entered appearance on behalf of the appellant despite repeated calls. Even no intimation has been sent by the learned counsel for his non-appearance. The Deputy Registrar (Judicial) of this Court shall establish contact with the appellant through Superintendent Jail concerned to intimate him that in case his learned counsel does not appear on the next date, a counsel at State Expense shall be appointed to argue his case. A notice shall also be issued to appellant's learned counsel. To be relisted after doing the needful".
It is on the record that on a direction of this Court the appellant had submitted an application to the Superintendent Jail that on the next date of hearing Mr. M. Ikhlaque Awan, Advocate would appear on his behalf before this Court, who has filed his Power of Attorney. Today his junior has presented an application before this Court to the effect that a very close relation of Mr. Ikhlaque has died on 3.12.2006 and due to that he had to go to his native city Muzaffarabad to attend his Nimaz-e-Janaza. Neither name nor any exact relation has been mentioned in the said application of the person died. Under Section 374 Cr.P.C. when an accused is awarded death sentence, Murder Reference is sent by the learned trial Court for confirmation of the said sentence of death or otherwise by this Court. Then this Court has to see legality of the said judgment of conviction or otherwise. When learned counsel for the appellant is not ready to provide us assistance, we are not left with no option but to proceed with the case with the assistance of the learned Assistant Advocate General and complainant's learned counsel who are present in Court and are ready to argue the case because we are not inclined to adjourn the case any further.
It would not be out of place to mention here that the occurrence in this case had taken place in 1998, the impugned judgment of conviction was passed by the learned trial Court in 2001 and this matter is pending with this Court for the last five years, meaning thereby, that eight years has already passed. We may state here that, on the one hand, if the appellant is undergoing the sentence of death then, on the other hand, the complainant party is also facing the agony of mental torture on account of non-hearing of their case for years and years as has happed in the present case. Therefore, it would be in the paramount interest of justice if the case is decided on its own merits as early possible so that agony of both the parties should come to an end. To strengthen our view, we have fortified our view with a judgment of the August Supreme Court of Pakistan reported in Barak Ullah vs. The State (1997 SCMR 274), wherein, at page 277 and while getting benefit from yet another judgment in Sikandar Hayat vs. Ata and others (PLD 1970 SC 224), the Apex Court held as under:--
"..... Hearing of the appellant or his counsel may be necessary provided they are present before the Court. If the appellant or his counsel intentionally avoids to come to address arguments, the Court may proceed with matter for its decision on merits in accordance with law.....".
In support of our view, further reference is given to a case reported in Shahid Ali vs. The State (2001 P.Cr. L.J 706), wherein, reference to both the above quoted judgments i.e. (1997 SCMR 274 and PLD 1970 SC 224), has been given.
We have ourselves perused the record of this case minutely with the able assistance of the learned Assistant Advocate General and the learned counsel for the complainant.
Brief facts of the case, as explained by Mirza Yasir Ali Baig complainant (Exh. PA) are that on 1.10.1998 at 9:30 p.m. the complainant and Mirza Imran Baig were coming towards their house from Shamasabad Adda after purchasing household articles; when they reached near the house of Malik Wadood Khan, they saw in the electricity light that Bashir (appellant) armed with pistol while Sajawal Khan (acquitted accused) empty handed came there; that they raised Lalkara not to spare the deceased Mirza Imran Baig, who, tried to fled away but was stopped by Sajawal acquitted accused; that Imran tried to return when appellant Bashir fired three successive shots on the deceased Imran who fell down; that complainant did not go ahead due to fear; that the hue and cry raised by the complainant attracted Mirza Irfan Baig and Mirza Jahangir Baig who witnessed the occurrence; thereafter the accused went to there houses and when the deceased Imran was being shifted to the Civil Hospital Attock in an injured condition he breathed his last. The motive set up by the prosecution was stated to be a family feud between Mirza Imran Baig and Bashir + Sajawal Khan and on that basis on 1.10.1998 at 6 p.m bicycle of Bashir appellant and Sajawal acquitted accused was hit to Imran Baig and abuses were exchanged, the matter was settled but the appellant and Sajawal bore a grudge on that account.
As the connected appeal filed against the acquittal of Sajawal Khan, who was not attributed any overt act and who was acquitted from the learned trial Court, has already been disposed of as having not been pressed by the learned counsel for the complainant, therefore, now we are left with the case of Bashir appellant one.
Two eye-witnesses, namely, Mirza Yasir Baig (PW 9) and Mirza Irfan Baig (PW 10) appeared before the learned trial Court in support of the prosecution case. Both the eye-witnesses have fully supported the prosecution case and nothing could be shaken from their testimony during the course of their cross-examination. They had no strong reason to falsely depose against the appellant. Even it is settled by now that motive, alleged not proved or not alleged, is inconsequential. It is rare phenomenon that the real culprits would be substituted with the others.
Cr.C. Muhammad Yaqoob v. State PLJ
(Syed Sakhi Hussain Bukhari, J.)
2007 Muhammad Yaqoob v. State Cr.C.
(Syed Sakhi Hussain Bukhari, J.)
B
C
It is a case of single accused. Not only one but the appellant fired three successive fatal shots which led to the brutal murder of the deceased, so, it is an intentional and pre-meditated murder on the part of the appellant, so, in such like proved cases the normal sentence is death.
We have also taken into consideration the mitigation aspect of the case and note that there is no mitigating circumstance in favour of the appellant to award him lesser sentence.
D
(Anwar Saeed) Order accordingly.
PLJ 2007 Lahore 346
Present: Tariq Shamim, J.
Sahabzada KAMRAN AHMAD and 2 others--Petitioners
versus
STATION HOUSE OFFICER, POLICE STATION SATELLITE TOWN, SARGODHA and 2 others--Respondents
W.P. No. 10202 of 2005, heard on 20.10.2006.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Quashing of FIR--False and fabricated agreement to sell--Dispute of civil nature--Consonance with law--Sole purpose of delaying the eviction proceedings by complicating the issue through preparation of a forged and fabricated agreement to sell--Suit was filed with a purpose to pre-empt criminal liability by giving it a complexion of a dispute of civil nature--If during a transaction criminal liability was spelt out, there was no bar under the law of two proceedings, civil as well as criminal, continuing side by side as both relate to different laws--It was not a case of conversion of a civil dispute into a criminal liability but the facts spell out commission of criminal offences by petitioners--Held: If prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to Constitutional jurisdiction of High Court--Petition dismissed. [Pp. 348 & 349] A, B & C
Hafiz Khalil Ahmad, Advocate for Petitioners.
Mr. M. Farooq Qureshi Chishti, Advocate and Mr. Muhammad Arif Bhindar, AAG for Respondents.
Date of hearing: 20.10.2006.
Judgment
Through this petition, the petitioners seek quashment of case F.I.R. No. 329 dated 25.5.2005 for offences u/Ss. 420, 468 & 471 PPC registered at Police Station Satellite Town, Sargodha, inter alia on the grounds that Respondent No. 2, the complainant of the F.I.R, was the owner of a Showroom and had agreed to sell the same in favour of Petitioner No. 1 for a consideration of Rs. 15,00,000/- and after receiving Rs. 13,00,000/- had executed an agreement to sell dated 1.10.2003. The balance amount of
Rs. 2,00,000/- was to be paid till 1.4.2005 whereafter the sale-deed was to be executed but when the Petitioner No. 1 contacted the said respondent for execution of the sale-deed, he refused to oblige the petitioner, who thereafter instituted a civil suit in the Civil Court at Sargodha which is pending adjudication and when the complainant came to know about the institution of the suit, he readily got the criminal case registered against the petitioners that the F.I.R. was silent as to the time and date of occurrence; that the allegations levelled in the F.I.R. were ambiguous and did not constitute any offence; that the agreement in question was signed by the complainant and had been attested by the witnesses and that the matter being essentially one of a civil nature, the F.I.R. deserved to be quashed.
The learned counsel appearing on behalf of Respondent No. 2, the complainant, contended that the Petitioner No. 1 was the tenant of the complainant who had defaulted in payment of rent and thereafter the petitioners had prepared a forged and a fabricated agreement to sell, on the basis of which Petitioner No. 1 filed a civil suit against the complainant in order to avoid criminal liability; that civil as well as criminal proceedings could continue side by side; that the stamp vender Nasir Hussain was notorious in such like matters as a number of FIRs stood registered against him; that the witnesses mentioned in the forged document were not even from the locality but belonged to a far flung area; and that the Hon'able Supreme Court of Pakistan in a number of cases has deprecated the quashment of FIRs, as such the petition merits to be dismissed.
The learned Additional Advocate General contended that the complainant immediately lodged the F.I.R on coming to know about the preparation of the said forged agreement to sell on being summoned by the Civil Court in the suit filed by Petitioner No. 1 and that the civil as well as criminal proceedings could continue side by side, as such the quashment of the F.I.R. as prayed for by the petitioners, was uncalled for.
I have heard the learned counsel for the parties and perused the record.
Admittedly, Petitioner No. 1 is a tenant in the showroom owned by the complainant regarding which he has prepared a false and fabricated agreement to sell, according to which, the complainant i.e. Respondent No. 2 had agreed to sell the said showroom to Petitioner No. 1 for a total consideration of Rs. 15,00,000/- and out of the total amount Rs. 13,00,000/- had been received by the complainant at the time of execution of the agreement and the balance amount of Rs. 2,00.000/- was to be paid by the petitioners after 1 1/2 year. The said agreement was filed with the plaint in the suit instituted by Petitioner No. 1 against the complainant for specific performance of the agreement. On receipt of notice/summons from the Civil Court, the complainant came to know about the said forged document, who thereafter lodged the aforementioned F.I.R. against the petitioners.
The entire exercise on the part of the petitioners appears to be based on malice with the sole purpose of delaying the eviction proceedings by complicating the issue through preparation of a forged and fabricated agreement to sell purportedly executed by the complainant. The suit in question was filed with a purpose of pre-empt criminal liability by giving it a complexion of a dispute of civil nature. Further, from the contents of the F.I.R. offences u/Ss. 420, 468, & 471 PPC are prima facie made out and Section 420 PPC being a cognizable offence, registration of the case by the police was, therefore, in consonance with the law.
I agree with the arguments advanced by the learned Additional Advocate General as well as the learned counsel appearing on behalf of Respondent No. 2 that if during a transaction criminal liability is spelt out, as in the instant case, there is no bar under the law of the two proceedings, civil as well as criminal, continuing side by side as both relate to different laws. The Hon'able Supreme Court of Pakistan in the cases of Rafique Bibi Vs. Muhammad Sharif and others (2006 SCMR 512) and M. Aslam Zaheer Vs. Shah Muhammad (2000 SCMR 1619), has observed that there is no bar under the law to initiate both civil and criminal proceedings simultaneously.
Further, it is clear from the facts of the case that it is not a case of conversion of a civil dispute into a criminal liability but the facts and circumstances spell out commission of criminal offences by the petitioners.
Since the investigation in the case is not complete, as such this Court cannot control or interfere in the same as the investigation is the sole prerogative of the Investigating Agency. The Hon'ble Supreme Court of Pakistan has deprecated the interference of the High Court in the process of investigation in the exercise of constitutional jurisdiction. Reliance is placed on the cases of Brg. Imtiaz Ahmad Vs. Government of Pakistan through Secretary Interior Division, Islamabad (1994 SCMR 2142) and Shahnaz Begum Vs. Hon'ble Judges of the Sindh and Balochistan High Courts (1971 SC 677).
Prima facie, the facts of the case do not disclose that the allegations levelled by Respondent No. 2 in the F.I.R are baseless or motivated out of malice. Reference is made to the case of Kamran Khan Vs. Station House Officer of P.S Model Town, Gujranwala and others (2005 PCr. LJ 825).
In the latest pronouncement, the Hon'ble Supreme Court of Pakistan in the case of Col. Shah Sadiq Vs. Muhammad Ashiq and others (2006 SCMR 276) has observed as follows:-
"It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habibi Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353".
Thus, it is abundantly clear that the practice of quashment of F.I.R is deprecated by the Hon'able Supreme Court of Pakistan as is evident from the observations made by the Apex Court in the case of Col. Shah Sadiq, referred to above.
For what has been discussed above, I am of the considered view that the petitioners have not been able to make out a case for quashment of F.I.R. No. 329/2005 registered at Police Station Satellite Town, Sargodha, u/Ss. 420, 468, 471 PPC. Consequently the Writ Petition being without any merit is dismissed.
(Fouzia Fazal) Petition dismissed
PLJ 2007 Lahore 349 (DB)
Present: Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ.
SMAIRA LIAQAT ALI--Appellant
versus
THE DIRECTOR SECONDARY EDUCATION, FAISALABAD
and 4 others--Respondents
I.C.A. No. 1099 of 1998 in W.P. No. 12670 of 1998, heard on 29.6.2006.
(i) Educational Institutions--
----Re-assessment of the result--Validity--Held: Under Rule 7 re-assessment of the script is not allowed in any circumstances, however, re-checking was allowed subject to payment of a prescribed fee, if a request was received within 20 days of declaration of the results. [P. 351] A
(ii) Educational Institutions--
----Re-assessment and re-checking of results--Connotation of--Held: Re-assessment means re-evaluation or changing the marking of the scripts, whereas re-checking means to see whether the marks given by the examiner are correctly counted or not. [P. 351] B
(iii) Educational Institutions--
----Decrease in marks on re-assessment of the results--Validity--Once somebody is notified or declared having clinched first position cannot be deprived of same unless reasons/hearing or at least a notice is given--Such reduction in appellant's marks, earlier notified could not have been effected in disregard of principle of natural justice--Appeal accepted.
[Pp. 352 & 353] C & D
Mr. Aslam Riaz, Advocate for Appellant.
Mr. Hashim Sabir Raja, AAG for Respondents.
Date of hearing: 29.6.2006.
Judgment
Syed Shabbar Raza Rizvi, J.--In this Intra Court Appeal, order of the learned Single Bench rendered in With Petition No. 12670/98, dated 14.10.1998 has been called in question. In the said Writ Petition No. 12670/98, grievance of the appellant was reduction of her numbers in middle standard examination. According to the original result announced on 29.10.1997, the appellant had secured 760 marks, however, her marks were reduced from 760 to 747. The above re-assessment placed the appellant at third position instead of first as she was originally declared. In the above circumstances, Writ Petition No. 12670/98 was filed which was dismissed by the learned Single Bench observing that no paper/question was re-assessed instead mistake in calculation was corrected.
Dissatisfied with the above order of the learned Single Bench, the learned counsel for the appellant submits that appellant and Respondent Nos. 4 & 5 had appeared in the middle examination of 1998, the final result was declared on 20.4.1998. The appellant was informed that she had secured 760 marks and stood first in the Faisalabad Division; Respondent No. 4 by securing 754 marks stood second; and Respondent No. 5 by securing 752 marks stood third in the whole Division. However, subsequently, the appellant was declared at third position with 747 marks; Respondent No. 4 was shown first followed by Respondent No. 5 second.
The appellant approached the Respondent No. 3 who revealed that the re-checking of the papers was carried out which resulted into decrease of appellant's marks, detailed above.
According to the learned counsel for the appellant, the Respondent No. 3 wrongly justified his action on basis of Rule No. 13 which was erroneously accepted by the learned Single Bench. In this regard, the learned counsel referred to Rule 7 which does not allow re-assessment; Before proceeding further, it would be apt to examine Rule 7 and Rule 13:--
Rule 7. Re-assessment of the scripts--Re-assessment of the scripts shall not be allowed under any circumstances. Re-checking will, however, be allowed on payment of a prescribed fee if a request is received within 20 days of the declaration of the results.
Rule 13. Rectification of mistakes--The Directors of Education shall have the power to rectify any mistake which may come to light at any time after the examination or the declaration of the results on account of any clerical mistake or wrong interpretation of these rules.
Under Rule 7, re-assessment of the script is not allowed in any circumstances, however, re-checking is allowed subject to payment of a prescribed fee if a request is received within 20 days of the declaration of the results. At this point of time, one has to be very sure about meaning of re-assessment and rechecking. Under the Black's Law Dictionary (6th Edition page 1266), re-assessment means, "re-estimating". According to P. Ramanatha Aiyer. The Law Lexicon (Re-print 2004, page 1621), "re-assessment" is equivalent to re-evaluation. According to the Oxford Advanced Learner's Dictionary (7th Edition, page 1259) "re-asessment" means to think about something to decide if you need to change your opinion of it. To reappraise. According to the Oxford Dictionary as mentioned above check/re-check means to examine something to see if it is correct. According to the Black's Law Dictionary, to verify or audit, as to examine the books and records of another or a business for accuracy and proper accounting practices. The above meanings and connotation given in the dictionaries indicate that re-asessment means re-evaluation or changing the marking of the scripts, whereas, re-checking means only to see whether the marks given by the Examiner are correctly counted or not. For the same reason, Rule 7 is absolutely clear that re-asessment is not allowed in any circumstances. However, re-checking will be allowed if the conditions given in Rule 7 are fulfilled. As far as Rule 13 is concerned, it only allows rectification of any mistake on account of any clerical mistake or wrong interpretation of any rule. The issue raised before this Court does not relate to any mistake on account of any clerical mistake or wrong interpretation of any rule instead it relates to result of the appellant, Respondent No. 4 and Respondent No. 5. Moreover, power under Rule 13 to rectify any mistake is given to the Directors of Education and not to Respondent No. 3 who happens to be the Assistant Director, Secondary Education, Faisalabad Division, Faisalabad. The Rule does not show that the Assistant Director shall be read as Director or vice versa. Moreover, according to the Oxford Dictionary (mentioned above), "to rectify" means to right something that is wrong or to correct something. For the above reasons, in our opinion Rule 13 is not applicable in the facts and circumstances of the present controversy.
The impugned order or the letter through which the appellant was informed about change in her result, does not show that the decrease in numbers of the appellant was a result of re-assessment or re-checking. Through the impugned letter the appellant was just informed or the result was notified without giving any reason, notice, or affording any opportunity to the appellant. It is important to remind ourselves that securing first position in any examination is an achievement for life. One always cherishes this kind of honour throughout life, it is a great feeling, indeed. Therefore, once somebody is notified or declared having clinched first position cannot be deprived of some unless reasons/hearing or at least a notice is given. This also conforms with the principle of natural justice. However, before we conclude our discussion or reach to any conclusion, it would be expedient and desirable to seek guidance from some previous judgment of our Superior Courts on the subject.
In Abdus Saboor Vs. Karachi University, etc., the result of the appellant was withheld on a complaint of an Examiner. As a result of complaint, the appellant was debarred from appearing at any examination of the University and from admission to any class in the University or affiliated colleges for a period of two years. The appellant made representation but he was not given any reply be the University. A writ petition filed by the appellant was also dismissed by the learned High Court of West Pakistan, on a report from the Unfair Means Committee of the University. The report of the Committee also highlighted that there was no provision in rules to provide for a notice before taking the punitive action. The Hon'able Supreme Court of Pakistan noted that at no stage of the proceedings of the University, the appellant was called upon to show cause against the action proposed to be taken against him. He was never furnished any details of the precise allegations against him. The Hon'ble Supreme Court further noted that the University regarded opinion of the Examiner as conclusive and passed impugned order which was against principles of natural justice. The Hon'able Supreme Court finally held as below:--
"No one can be condemned unheard, is one of the settled principles of law and such a principle will be read into the relevant law, unless its application is excluded by express words. The duty is cast on every administrative Tribunal to act fairly and justly and with due regard to the principles of natural justice, unless specifically exempted from such a limitation. Mere omission from the relevant law, of a provision for notice, would not affect this position". (Abdus Saboor Khan Vs. Karachi University, etc. PLD 1966 SC 536).
In another case wherein results of the appellants were cancelled for using unfair means, their representation to the Vice Chancellor was also dismissed, a writ petition filed in the High Court was dismissed on basis of the report called from the University. The Hon'ble Supreme Court concluded that the Unfair Means Committee and the University acted in total disregard of the essentials of Natural Justice. (Murlidhar Vs. University of Karachi, PLD 1966 SC 841). In another case of University of the Punjab, marks obtained by the petitioner in examination were subsequently decreased by issuance of Notification in supersession of the previous notification under which petitioner's marks were first declared. The above mentioned reduction in marks of the petitioner was made without giving any show-cause notice and without furnishing her any hearing. The impugned order was declared illegal being violative of principles of natural justice. (Rabia Hafeez Vs. University of the Punjab etc., 1991 CLC Note 305, Lahore).
The above case law leaves us in no doubt that reduction in appellant's marks, earlier notified, could not have been effected, in disregard of principle of natural justice.
We also hold that the change in the result of the appellant which caused loss to her was result of re-assessment instead of re-checking of papers of the appellant, Respondent No. 4 and Respondent No. 5 which is expressly prohibited under Rule 7 as noted above. The said re-assessment was also made in total violation of principles of Natural Justice as appellant was not provided any opportunity of hearing, etc. before issuance of impugned letter from Respondent No. 3. The respondents appearing before us failed to show any error in calculation of marks. Similarly, Annex-A and Annex-Al also do not show that marks of the petitioner were decreased as a result of re-calculation or re-checking of marks of the appellant. To be on safe side, Para 2 of the order of the learned Single Bench dated 14.10.1998 is reproduced as under:--
"Respondent No. 3 has entered appearance along with the record. Learned AAG has contended that in fact there was no re-assessment. What has happened is that error had occurred in the calculation of marks which has been corrected and according to him, this is justified under Rule 13 of the same rules.
The record was produced before us, Respondent No. 3 did not mention error in the calculation of the marks. Moreover, as we noted above, Rule 13 is not meant for correction in calculation of marks or re-checking of marks, it is meant for rectification of a mistake which may come to light at any time after examination or the declaration of the results, on account of any clerical mistake or wrong interpretation of these rules. The Rule 13 empowers Directors of Education to rectify any mistake in the above circumstances only. The Rule 13 does not empower any Assistant Director to exercise powers vested in Rule 13 and that too for re-checking of marks or removing errors in the calculation of the marks. The appellant who had earned a great honour to be remembered and cherished for rest of her life by winning 1st position in the Board, was robbed of this distinction arbitrarily and in disregard of Rule 7. The impugned order was also passed in total contravention as well as disregard of principle of Natural Justice. We have also noted Annex-A i.e Black List is full of cuttings without mentioning any reason. Annex-Al is a copy of a Press Release from the office of Controller Examination Schools Secondary, Faisalabad, which is not dated.
(Javed Rasool) Appeal allowed
PLJ 2007 Lahore 354
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
Sardar SHAFIQ HYDER KHAN LAGHARI--Petitioner
versus
Syed TASNEEM NAWAZ GARDEZI--Respondent
C.R. No. 692 of 2005/BWP, decided on 3.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--O. XXXVII, Rr. 1 & 2--O. VII, R. 11--Suit for recovery--Loss of an original pronote or inadmissibility of negotiable instrument could not be made a ground for rejection of plaint--Question of--Loss of original negotiable instrument at the most would be matter with regard to the realm of production of evidence--It would be raising the question of admissibility or its inadmissibility at the stage of recording of the evidence, not barring the institution of suit--Negotiable instrument becomes inadmissible or not liable to be admitted into evidence due to some reason, the party in such an event can turn to its original consideration if that course is permitted by law. [P. 357] A
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Secondary evidence--Determination--It is a procedural matter of the suit, during the proceedings of a suit in which it has to be considered, as to how the document has to be proved--Suit would retain its nature to had been based upon negotiable instrument but the procedure for proof would be determined through secondary evidence when a negotiable instrument would lost, destroyed or misplaced--Suit would remain to be founded on a pronote even if negotiable instrument is invalid according to law was inadmissible in evidence or had been executed or not, according to law of land, or required proof through primary or secondary evidence--Revision dismissed. [Pp. 357 & 358] B & C
Mr. Muhammad Aslam Khan Dhukkar, Advocate for Petitioner.
Date of hearing: 3.4.2006.
Order
Through this civil revision, an interesting question of material importance has been posed for adjudication. The facts which have led to the filing of this civil revision, with brevity, can be narrated as under:--
Respondent, namely, Syed Tasneem Nawaz Gardezi had filed a suit under Order XXXVII, Rules 1 and 2 of the CPC, for recovery of Rs. 55,04,000/- on the basis of Cheque No. 122836, CA-50/A, drawn on Muslim Commercial Bank, Rehimabad Branch, Tehsil Sadiqabad, against Shafiq Hyder Laghari, defendant/petitioner, in the Court of learned Additional District Judge, Sadiqabad. According to the contents of the plaint, copy of cheque was also appended with the plaint while upon original cheque the reliance was placed on it by filing a list of reliance. The defendant was allowed leave and had submitted his written statement on 14.5.2004, in which he had pleaded that the cheque was issued in favour of plaintiff as guarantee with regard to some transactions of lands. Before the commencement of evidence of the plaintiff, an application was moved by the plaintiff for grant of permission to produce secondary evidence with regard to the above noted cheque, as the plaintiff had fallen prey to a dacoity committed upon him while he was proceeding from Multan to Lahore and an FIR No. 162/2002 was also lodged by him with Police Station City Renala Khurd, District Sheikhupura. According to the application, the original cheque and memo/slip were in the brief case of the plaintiff, which was looted alongwith net cash, licensed pistol and vehicle. The learned Additional District Judge, after hearing the arguments upon the application, allowed the plaintiff on 23.5.2005 to produce secondary evidence. When the defendant found this clue of original cheque having been stolen away from the possession of the plaintiff, he filed an application on 17.9.2005 under Order VII Rule 11 of the CPC for rejection of the plaint. This petition was contested and the learned Additional District Judge on 21.11.2005 dismissed the application filed by the defendant under Order VII Rule 11 of the CPC. Considering the order dated 21.11.2005 having been passed illegally, instant revision petition has been filed by the defendant.
Learned counsel appearing on behalf of the petitioner submits that a suit based upon negotiable instrument under Order XXXVII Rules 1 and 2 of the CPC cannot be instituted when an original negotiable instrument is not in possession of the plaintiff or it has not been produced alongwith the plaint. In such an event according to the learned counsel, the ordinary suit could be instituted by the plaintiff. The present suit with extraordinary procedure under Order XXXVII of the CPC was not maintainable and the order passed by the learned Additional District Judge dismissing the petition under Order VII Rule 11 of the CPC has been passed with material irregularity, illegality and in excess of jurisdiction. To support his contention that the suit is not maintainable, learned counsel has referred to 2005 CLC 797 (Kamran Akhtar versus Jawed Ahmad Khan), PLD 1988 SC 124 (Sh. Abdul Majid versus Syed Akhtar Hussain Zaidi). PLD 1988 Lahore 424 (United Bank Ltd., Mianwali versus Muhammad Khan and another) and AIR 1940 Lahore 329 (Bharpura versus Diwan Chand).
After considering the arguments of the learned counsel and examining the decisions referred to by the learned counsel as well as the record, before proceeding to decide the civil revision it would be necessary for proper adjudication to reproduce wordings of relevant portion of Order XXXVII Rule 2 (1) of the CPC for ready reference:--
"2. Institution of summary suits upon bills of exchange, etc.--(1) All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed".
The material words in the above noted sub-rule worth consideration are "All suits upon bills of exchange, hundies or promissory notes". While interpreting these words, it cannot be held that suit which is based on any photo copy of admissible pronote or founded upon the lost original negotiable instrument are not entertainable. It cannot be held that a suit based upon a negotiable instrument, the original of which has lost cannot be instituted under Order XXXVII of the CPC or it would not be a suit constructed upon a negotiable instrument. If the pronote/cheque/hundi or any other kind of negotiable instrument in original form is not available, has been destroyed, misplaced, damaged or lost, it would not be called suit having not been instituted on the basis of negotiable instrument. It would still be a suit based upon the negotiable instrument. Loss of an original pronote or inadmissibility of negotiable instrument cannot be made a ground for the rejection of plaint. The loss of original negotiable instrument at the most would be matter with regard to the realm of production of evidence. It would be raising the question of admissibility or its inadmissibility at the stage of recording of the evidence, not barring the institution of suit. In case, a negotiable instrument becomes inadmissible or not liable to be admitted into evidence due to some reason, the party in such an event can turn to its original consideration if that course is permitted by law in a given case. In the instant case, the defendant/petitioner in his written statement has admitted the execution of cheque but has asserted and pleaded that it was issued as a guarantee. So, the existence/issuance/execution of the original cheque has been admitted. In these circumstances, the case cannot be thrown away and the plaintiff cannot be referred to proceed in a Civil Court with ordinary procedure and jurisdiction. The suit in such an event shall be considered to have been founded upon the negotiable instrument. It is a procedural matter of the suit, during the proceedings of a suit, in which it has to be considered, as to how the document (negotiable instrument) has to be proved. In other words, the suit shall retain its nature to have been based upon negotiable instrument but the procedure for proof would be determined and different, in accordance with the Qanun-e-Shahadat Order of 1984, through the secondary evidence when a negotiable instrument is lost, destroyed or misplaced. Therefore, relying upon the words used by my learned brother Mr Justice Muhammad Asadullah in a judgment delivered in a DB case, reported in PLD 1988 Lahore 424 (United Bank Ltd, Mianwali versus Muhammad Khan and another), relevant at page 427 "Its first three words "all suits upon" are very important. The said words mean that a suit based on a pronote can be filed under Order XXXVII, C.P.C. and can be dealt with thereunder. However, the said rule does not say that it should be on a pronote which is valid according to law or which has been executed according to law or which is admissible in evidence according to law. Similarly it does not say that the suit cannot proceed on any other evidence apart from the concerned pronote". I also concur with the view expressed and decision delivered by the aforementioned Hon'able Division Bench that the suit would remain to be founded on a pronote even if negotiable instrument is invalid according to law, is inadmissible in evidence or has been executed or not, according to law of the land, or requires proof through primary or secondary evidence.
As regards citation 2005 CLC 797 (Kamran Akhtar versus Jawed Ahmad Khan), that was a case wherein a cheque was presented after six months and it was held that it was a stale cheque and was returned by the bank, which plea has not been raised in the instant case. Therefore, that decision is not applicable to the present case. In PLD 1988 SC 124 (Sh. Abdul Majid versus Syed Akhtar Hussain Zaidi), it was held by the Hon'able Supreme Court that when procedure under Order XXXVII, CPC is not available then the suit can proceed as an ordinary suit. In AIR 1940 Lahore 329 (Bharpura versus Diwan Chand) it was held that when the suit upon original instrument had failed, the plaintiff could not be allowed to fall back by the original consideration, that decision has altogether decided a different proposition. Therefore, that case is also not applicable to the facts of the case in hand.
Accordingly, the result of all the above noted discussion is that suit which has already seen protracted litigation cannot be thrown out by accepting the petition under Order VII, Rule 11 of the CPC. The impugned order passed by the learned Additional District Judge is, therefore, upheld and the civil revision is dismissed in limine.
(Fouzia Fazal) Revision dismissed
PLJ 2007 Lahore 358
Present: Syed Asghar Haider, J.
Haji MUHAMMAD AFZAL--Appellant
versus
M/s. HITACHI LTD.--Respondent
F.O.A. No. 39 of 1996, heard on 2.10.2006.
(i) Copyright Ordinance, 1962 (XXXIV of 1962)--
----S. 10-A--Explanation--Define the word `work'--Only these qualify to be registered under the Copyright Act/Ordinance, S. 10-A, further qualifies the word work for the purposes of copyright--According to S. 10-A of the Ordinance, even literary, dramatic, musical and artistic work has to be original to qualify for Registration. [P. 362] A
(ii) Copyright Ordinance, 1962 (XXXIV of 1962)--
----Ss. 39, 2(Z.F), 2(c), 2(p) & 10-A--Qualification to be registered--Define--Work--Controversy--Whether the appellant falls within the language of the word "work" the answer is clear and un-ambiguous, it does not fall in the definition of S. 2 (z-f), it is neither an artistic work nor literary work or even work, S. 2(zf), 2(c) and 2(p), therefore, it does not qualify for registration--Thus, the application made u/S. 39, did not qualify to be registered under the Copyright Ordinance, 1962 and the registration made therein was not in consonance with law. [P. 362] B
2003 CLD 1531 and PLD 1970 Kar. 551.
Hafiz Abdul Rehman Ansari, Advocate for Appellant.
Mr. Hassan Irfan Khan, Advocate for Respondent.
Date of hearing: 2.10.2006.
Judgment
This appeal is directed against the Order dated 17.1.1996 whereby a rectification application filed by the respondent Hitachi Limited Japan made under Sec. 41 of the Copyrights Ordinance, 1962 directing the appellant to expunge the word "Hitachi" from the Registration No. 3286 was granted. The dispute pertains to the use of word "Hitachi", the applicant/appellant filed an application under the Copyright, Act/Ordinance for registration of Hitachi Filter, this application was initially allowed by the Registrar, a representation was filed against it by the respondent before the Board, after contest it was allowed and the word Hitachi was ordered to be expunged from the Registration of the Appellant, aggrieved thereof the appellant has filed the present appeal.
The learned counsel for the appellant contended that the impugned order suffers from a patent illegality, the respondent has no cause of action, the order is not in consonance with the Copyright Act & Ordinance the application for rectification is malicious and mala fide, the initial application made by the appellant was granted after examining all aspects and law but the decision was illegally reversed without appraising the relevant material or law. Further the appellant has been registered under the Trade Mark Act, but the proceedings have been challenged by the respondent and are pending adjudication in the High Court of Sindh and any decision in the present controversy is likely to impact the outcome of those proceedings, therefore, the present proceedings be adjourned sine-die.
Contrarily, the learned counsel for the respondent has vigorously defended the impugned order, according to the learned counsel, the order is well reasoned, just and in consonance with law and facts, further the application under the Copyright Ordinance, 1962 was mis-conceived, the appellant does not fall within the parameters of Section 2 of the ordinance, as it does not fall in the definition of work thus it does not qualify for Registration under the Copyright Law. He also adverted to Sec. 10 of the Copyright Ordinance, 1962 and pleaded that only original work could be made basis of the application, the word Hitachi is in use in Japan since 1910, it was registered as a Trade Mark and is also in use in Pakistan since 1954, therefore, the Registrar of copyrights exceeded jurisdiction, by granting the appellant's application which was rightly corrected by the Board by reversing the decision.
I have heard the learned counsel for the parties and also appraised the impugned order.
The order has adverted in detail to the contentions raised by both parties. The core dispute is whether the appellant qualified to be registered under the Copyright Laws or not. The word copyright has been defined under Sec. 3 of the Copyrights Ordinance, 1962 and it means:--
"For the purposes of this Ordinance, "copyright" means the exclusive right, by virtue of, and subject to, the provisions of this Ordinance".
(a) In the case of literary, dramatic or musical work, to do and authorize the doing of any of the following acts, namely--
(i) to reproduce the work in any material from;
(ii) to publish the work;
(ii) to perform the work in public;
(iv) to produce, reproduce, perform or publish any translation of the work;
(v) to use the work in a cinematographic work or make a record in respect of the work;
(vi) to broadcast the work, or to communicate the broadcast of the work to the public by a loudspeaker or any other similar instrument;
(vii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of an artistic work, to do or authorize the doing of any of the following act, namely---
(i) to reproduce the work in any material form;
(ii) to publish the work;
(iii) to use the work in a cinematographic work;
(iv) to show the work in television;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv).
(c) in the case of a cinematographic work, to do or authorize the doing of any of the following act, namely--
(i) to make a copy of the work;
(ii) to cause the work insofar as it consists of visual images, to be seen in public and, insofar as it consists of sounds, to be heard in public;
(iii) to make any record embodying the recording in any part of the sound track associated with the work by utilizing such sound track;
(iv) to broadcast the work;
(d) in the case of a record, to do or authorize the doing of any of the following acts by utilizing the record, namely,--
(i) to make any other record embodying the same record;
(ii) to use the recording in the sound track of a cinematographic work;
(iii) to cause the recording embodied in the record to the heard in public;
(iv) to communicate the recording embodied in the record by broadcast.
The word "work" has also been defined in Sec. 2 (z-f) of the Ordinance--
"work" means any of the following works, namely--
(i) a literacy, dramatic, musical or artistic work;
(ii) a cinematographic work;
(iii) a record.
Work has again be segmentized into three parts Sec. 2(c) defines "Artistic Work". Sec. 2(p) defines "Literary Work".
Section 2(c) reads:--
"Artistic Work" means:--
(i) a painting, sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) an architectural work of art; and
(iii) any other work of artistic craftsmanship;
Section 2(p) reads:--
"Literary work" includes work on humanity, religion, social and physical sciences, tables compilations of data or other material in any form and computer programmes, that is to say programmes recorded on any disc, tape, perforated media or other information, storage device, which, if fed into or located in a computer or computer-based equipment is capable of reproducing any information;
Thus, it reflects that only these qualify to be registered under the Copyright Act/Ordinance. Sec. 10-a further qualifies the word work for the purposes of copyright. According to Sec. 10-a of the Ordinance, even literary, dramatic, musical and artistic work has to be original to qualify for registration. The procedure for registration is provided under Sec. 39 of the Ordinance, it lays down the parameters, conditions and modalities for registration. Thus, if a work falls within the definition ascribed, it would qualify for registration, it is in this background that the controversy is to be reviewed.
The appellant's application for Registration of Hitachi Filter only carries one word which qualifies for registration under the Copyright Act i.e. "Hitachi". Both parties have accepted this position before this Court and the Board. Now question arises can the appellant's application qualify on the touchstone of Sec. 10-a the answer is in negative, "Hitachi" is a house hold name even in the Pakistan, it originated in Japan and there is historical background to it. It was initially registered as a Trade Mark in 1910 and was later also registered in Pakistan under the Trade Mark Act, 1964 thus the word is not original, therefore, the appellant does not qualify on this yardstick.
Now adverting to the controversy whether the appellant falls within the language of the word "work" the answer is clear and un-ambiguous, it does not fall in the definition of Sec. 2(z-f), it is neither an artistic work nor literary work or even work. Sec. 2(zf), 2(c) and 2(p), therefore, it does not qualify for registration. Thus the application made under Sec. 39 did not qualify to be registered under the Copyright Ordinance, 1962 and the registration made therein was not in consonance with law. The Board appraised meticulously the law and rightly reversed the decision. The learned counsel for the respondent relied on the following precedents:--(2003 CLD 1531) titled "Pakistan Drug House (Pvt.) Limited versus Rio Chemical Company and another", and (P.L.D 1970 Karachi 551) titled "Abbas Hussain Farooqui versus Messrs Royal Printing Press and Ali Printing Service, Karachi and 10 others". The precedents cited by the learned counsel for the respondents are fully applicable to the present matter and support his viewpoint. The contention raised by the learned counsel for the appellant qua the present decision impacting the proceeding in High Court of Sindh is mis-conceived, as both acts, the Copyright Act and the Trade Mark Act are different statutes, enacted for different purposes. Likewise no element of mala fide has been proved, the order dated 17.1.1996 is in consonance with law and warrants no interference. Resultantly, this appeal has no merits and is dismissed. No order as to costs.
(Khalid Awan) Appeal dismissed
PLJ 2007 Lahore 363
Present: Syed Hamid Ali Shah, J.
Haji Sheikh NOOR DIN & SONS (PVT.) LTD.--Petitioner
versus
MUHAMMAD FAYYAZ--Respondent
WritPetition No. 18386 of 2005, decided on 30.12.2005.
(i) Interpretation of Statutes--
----Real intention of the legislature must be gathered from the language used--When the negative word is used, provision is presumed to be mandatory in nature. [P. 366] A
(ii) Payment of Wages Act, 1936 (IV of 1936)--
----S. 17(1)(a)--Competency of appeal--Held: No appeal lies against order of authority unless memorandum of appeal is accompanied by a certificate of the authority to the effect that appellant has deposited the impugned amount directed to be paid. [P. 367] B
(iii) Interpretation of Principle--
----Function of a proviso is to limit or otherwise to qualify the provision to which it follows--Thus the natural consequence which flows out or ensues from the words employed in a proviso with negative covenant or with its opening with non-affirmative words or negative clause would lead to the conclusion that such proviso will be deemed to impose a condition and restrict the operation of its parent provision--If such condition is not adhered to or not fulfilled such proviso, pregnant with same positive purpose should be strictly construed. [Pp. 367 & 368] C
2005 PLC 634; PLD 1957 SC (Pak.) 219; 1981 SCMR 520 & 1986 SCMR 1607, ref.
Khawaja Tariq Masood, Advocate for Petitioner.
Date of hearing: 15.12.2005.
Judgment
This single order will dispose of writ Petition No. 18386/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Fayyaz", Writ Petition No. 18387/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Iftikhar Ahmmad", Writ Petition No. 18388/2005 titled "Haji Sheikh Noor & Sons (Pvt.) Ltd. versus Zakir Hussain", Writ Petition No. 18389/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Muhammad Iqbal etc. Writ Petition No. 18390/2005 titled "Haji Sheikh Noor Din & Sons (Pvt.) Ltd. versus Ameer Ali etc." Writ Petition No. 18428/2005 titled "Rai Textile Mills Ltd. Kasur versus Authority under Payment of Wages Act etc. Writ Petition No. 19322/2005 titled "Gulistan Textile Mills Limited No. 4 versus Punjab Labour Court No. III and others" and Writ Petition No. 19323/2005 "Gulistan Textile Mills Limited No. 4 versus Punjab Labour Court No. III & others" as common questions of law and facts are involved in all these petitions.
The petitioner in the instant case has challenged the order of the authority in appeal under Section 17 of the Payment of Wages Act, 1936 on account of non-annexation of the requisite certificate of the authority to the effect that the appellant had deposited with the authority, amount payable under the direction. Respondent No. 3 dismissed the appeal being incompetent without annexation of the requisite certificate vide order dated 6.9.2005. The petitioners have called in question the order of dismissal of the appeal on the question of non-maintainability, through these petitions.
Learned counsel for the petitioner has referred to an unreported judgment of this Court rendered in Writ Petition No. 21923/2001 in case of "M/s. Citizen Electrical Co. versus The Authority under the Payment of Wages Act and another" wherein condition regarding the deposit of entire disputed amount, before preferring the appeal, was declared to be unlawful. Learned counsel for the petitioner repeated the arguments addressed before the Labour Court and referred to the case of "State Bank of Pakistan through General Secretary versus The Democratic Workers Union State Bank Of Pakistan through General Secretary and another" ( 2003 PLC 391) and "M/s. Chenab Cement Product (Pvt.) Ltd. and others versus The Banking Tribunal Lahore and others" (PLD 1996 Lahore 672). Learned counsel then referred to the case of "M/s. Eastern Rice Syndicate versus Central Board of Revenue and others" (PLD 1959 SC Pak) 364) to contend that imposing the condition for filing the appeal amounts to negation of the right of appeal and such unreasonable restriction on the right of appeal is not sustainable. Learned counsel argued vehemently that proviso cannot render the main provision of law ineffective or redundant. He in support of this contention has placed reliance on "Emmay Zed Publications (Pvt) versus Sindh Labour Appellate Tribunal through Director General" (2001 SCMR 565).
Learned counsel for the petitioner has addressed two fold arguments: firstly that imposition of condition of furnishing certificate with the appeal is unconstitutional and has the effect of snatching the right of appeal which otherwise is guarnateed by law and; secondly that the Labour Court has failed to exercise the jurisdiction vested in it, in disallowing the petitioners to make the deficiency of the payment of the amount as per direction of the authority.
Learned counsel for the respondent in the connected cases, on the other hand, has fully supported the impugned judgment and has submitted that the order passed by the August Supreme Court is a law declared and is binding on all the Courts as contemplated in Article 189 of the Constitution of Islamic Republic of Pakistan. While referring to the case of "Syed Match Factory through Managing Director versus The Authority under the Payment of Wages Act and others" (2003 PLC 395) it was submitted that the August Supreme Court has held that Payment of Wages Act is primarily a beneficial legislation which has been enacted to provide relief to the worker and it cannot be construed otherwise, therefore, the interpretation, which directly or indirectly nullifies the provision of law, cannot sustain in the eyes of law. Writ petitions, which were filed to defeat the provisions of Section 17 of the Payment of Wages Act, are not competent. It was contended that in view of the law declared by the apex Court the appeals cannot proceed, as no certificate as per requirement of Section 17(1)(a) of the Payment of Wages Act, 1936 was annexed with the appeal.
Heard learned counsel for the parties and perused the record.
The question requiring determination is that whether an appeal against the direction of authority under the Payment of Wages Act, passed on application under Section 15(2) of the Payment of Wages Act, 1936, is competent without providing certificate of the authority, to the effect that the appellant has already deposited with the authority the amount payable under the direction appealed against. Section 17 of the Payment of Wages Act deals with the appal against the direction made under sub-section (3) of sub-section (4) of Section 15, reads as under:--
"Appeal (1) An appeal against the direction made under sub-section (3) or sub-section (4) of Section 15 may be preferred within thirty days of the date on which the direction was made before (Labour Court constituted under the Industrial Relations Ordinance, 1969 (XXIII) of 1969) within whose jurisdiction the cause of action to which the appeal relates arose).
(a) by the employer or other person responsible for the payment of wages under Section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees:
[Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appeal against, or]"
The question of pendency of appeal without strict compliance of the provisions of Section 17(1)(a) of the Payment of Wages Act, 1936 was dealt with by the apex Court in the case of Syed Match Factory (supra). The same question came up for consideration before the August Supreme Court subsequently in the case of "Mughal Surgicals and others versus Presiding Officer Punjab Labour Court-VII and others" (2005 PLC 634) wherein the Hon'ble Supreme Court has held as under:
"Reliance had been rightly placed by the learned Judge in Chamber on the case of Syed Match Company Limited 2003 SCMR 1493 by distinguishing the same from other cases decided by this Court on the ground that Payment of Wages Act, 1936 was a law which had been enacted for the benefit of the workmen and had to be interpreted and applied in the spirit which had led to the enactment of the said law. The judgments cited by the learned Advocate Supreme Court were the judgments arising out of enactments other than the Payment of Wages Act, 1936 and were no precedent for deciding the present case. It may be added that the right of appeal is not a natural or an inherent right of litigants but is a statutory right granted by different laws under different enactments and such a right had to be considered and examined in the light of the conditions prescribed by the law granting the said right. Needless to add that under the enactment in the C.P.C or the Cr.P.C every order and decision is not appealable and we know that even under the C.P.C there are provisions which prohibit grant of interim relief unless the decretal amount was deposited".
"One general rule that emerges, and it is an ancient rule, from discussions on the subject is that in the interpretation of written instruments, whether they are constitutional character or ordinary statutes or other documents the first object of the Court is to discover the intention of the author and that such intention is to be gathered from the words used in the statute or document. The tenth edition of Maxwell, the celebrated authority on the Interpretation of the Statutes, opens with the statement: "A statute is the will of the legislature, and the fundamental rule of interpretation, to which all other are subordinate, is that a statute is to be expounded, according to the intent of them that made it'. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. The subject of all interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language used so far as is necessary for determining whether the particular case or state of facts language is nor only plain", says the learned author at page 4, "but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpretation. Such language best declares without more the intention of the law-giver and is decisive of it. The rule of construction is to intend the legislature to have meant what they have actually expressed. It matters not, in such a case, what the consequences may be".
It is clear from the language of Section 17(1)(a) that no appeal lies unless memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited the impugned amount directed to be paid by the authority. As per principles of interpretation, the function of a provisio is to limit or otherwise to qualify the provision to which it follows. Thus the natural consequence, which flows out or ensues from the words employed in a proviso with negative covenant or with its opening with non-affirmative words or negative clause, would be nothing except the logical conclusion that such proviso, when occurring, will be deemed to impose a condition and restrict the operation of its parent provision. If such condition is not adhered to or not fulfilled, such proviso, pregnant with same positive purpose, should be strictly construed.
The cumulative of above principle of law enunciated by the Apex Court in the above referred decisions which fully apply on facts and circumstances of the case in hand, leave no doubt in my mind to hold that appeal under Section 17 of the Payment of Wages Act without deposit of certificate of the authority, is not competent.
The law applicable in the instant case, has specifically been decided by the Hon'able Supreme Court, which is based upon a principle of law and it is binding on this Court. There is no room for this Court to prefer the Full Bench decision over the decision of the Hon'ble Supreme Court on a question of law. While holding so I seek guidance from the case of "Sher Muhammad versus Additional Rehabilitation Commissioner Multan etc". (1981 SCMR 520).
Reverting to the second argument of learned counsel for the petitioner that a request was made to Respondent No. 3 and same was declined qua the permission to deposit the amount directed by the learned Labour Court. The sought for permission, was not allowed by the learned Labour Court as the request was made after the expiry of 30-days i.e. after the lapse of statutory period of filing the appeal. The request was as such rightly declined and there is no illegality in the impugned order.
The case referred by the petitioners "Divisional Superintendent, Pakistan Railways, Rawalpindi versus Muhammad Aslam and 25 others" (1986 SCMR 1607) was decided with regard to the question whether the certificate should be deposited at the time of filing of the appeal or within the period of 30 days and it has not been declared in the said case that at the subsequent stage after the lapse of 30 days, the amount can be permitted to be deposited. The submission that on the dictum of judgment 1986 SCMR 1607 (supra) the Apex Court permitted the amount to be paid, even beyond the period of 30 days, is not well founded.
The upshot of the above discussion is that learned Labour Court has passed the impugned order, on the basis of law laid down by the Hon'ble Supreme Court, which has the binding impact, therefore, does not call for any interference. There is no infirmity or illegality in the impugned order. The petitions are without any merit and are dismissed accordingly.
(Javed Rasool) Petition dismissed.
PLJ 2007 Lahore 369
Present: Syed Hamid Ali Shah, J.
MUHAMMAD ABDUL KARIM--Petitioner
versus
ABDUL AZIZ and others--Respondents
C.R. No. 809/D of 1998, heard on 5.10.2006.
Agreement
----Agreement of Association by Settlement Department--Acceptance of agreement of association by the settlement department was valid and such transfer cannot be interfered by the Civil Court--Revision dismissed.
[P. 373] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Jurisdiction of High Court--Revisional jurisdiction of High Court is not co-extensive with the powers of trial Court and appellate Court which have to advert to all legal and factual controversies--Revisional Court has merely to see whether there was failure to exercise jurisdiction vested in the Court--Jurisdiction was exercised which was not so vested and there was material illegality and irregularity. [P.372] A
Petitioner in person.
Mr. Shehzad Shaukat, Advocate for Respondents No. 3, 4 & 9.
Date of hearing : 5.10.2006.
Judgment
This revision petition has assailed the validity and legality of the judgment and decree dated 19.1.1998 of learned Addl. District Judge Lahore whereby he dismissed the appeal filed by the petitioner against judgment and decree dated 1.3.1986 of learned Civil Judge, Lahore whereby suit filed by the petitioner for a decree for specific performance of contract against the respondents was dismissed.
Very intricate, complex and jumbled facts, chequered, protracted and cumbersome litigation spreading over around 24 years form the background of this revision petition. The litigation started through filing a suit on 27.11.1982 which was dismissed by learned trial Court on 1.3.1986. The appeal met the fate of dismissal on 19.2.1989. The revision petition filed before this Court was accepted on 17.2.1997 and the case was remanded to learned appellate Court. The appeal, after remand was dismissed through the impugned judgment and decree dated 19.1.1998, hence this petition.
The dispute in the instant litigation pertains to land measuring 8 marlas 72 sq. ft. located at Sahuwari Shalimar Link Road, Lahore, i.e. the disputed property. Abdul Aziz Respondent No. 1 was PTO holder of the disputed property. He purportedly through agreement to sell dated 30.11.1964, contracted to sell the disputed property to the petitioner for a consideration of Rs. 8320/-. Part payments were received by Respondent No.1. It was agreed between the petitioner and Respondent No. 1 that on receipt of PTD/TO, registered sale-deed would be executed. Respondent
No. 1 appointed Respondent No. 2 Professor Nadeem, since deleted upon his demise, as his attorney to pursue his cases in the Settlement Department. The said attorney obviously for considerations and being hands in gloves with Respondent No. 1 out smarted the petitioner by executing agreement of association between Respondent No. 1 and Kaleem Jabran, Respondent No. 3, a son of Respondent No. 1. Consequently, PTD of the disputed property was issued in the name of Respondent No. 3. The petitioner had assailed the aforesaid agreement of association before the Settlement Authorities but his petition was dismissed. Thereafter Respondent No. 3 had sold the disputed property to Respondents No. 4 to 7. Respondents No. 6 & 7 had sold their share in the disputed property to Respondent No. 8. The latter sold it to Respondent No. 9 and finally Respondent No. 9 sold the disputed property to Respondent No. 10.
Against such a sad and somber backdrop, the petitioner brought the aforesaid suit for specific performance of the agreement dated 30.11.1964. The suit was contested and various issues were struck. After conclusion of trial, the learned Civil Judge held that agreement to sell Ex.P/1 had been proved. However, the suit was found time barred. The subsequent vendees namely Respondents No. 4 to 10 were found bona fide purchasers for consideration, without notice. The suit was however dismissed on the question of limitation. The appeal filed against the said judgment and decree, met the same fate. However, revision petition filed by the petitioner succeeded. The suit was held within time. The case was thus remanded to learned appellate Court for fresh decision after recording findings on Issue No. 9, which relates to the plea of Respondents No. 4 to 10 that they are bona fide purchasers for consideration without notice. Learned appellate Court vide impugned judgment and decree, dismissed the appeal.
I have heard the learned counsel for the parties and perused the material available on the record.
The plank of the petitioner's case is that the agreement to sell Ex.P/1 which he had executed with Respondent No. 1 was found proved and the suit was also found within time and as such learned trial Court, being Court of plenary jurisdiction, ought to have struck down the PTD of the disputed property issued in favour of Respondent No. 3 and the suit for specific performance of the contract was liable to be decreed. The petitioner has also taken the plea that Respondents No. 4 to 10 were posted with the knowledge of the agreement Ex.P/1 and as such could not be found bona fide purchasers for consideration and without knowledge. The petitioner has thus us urged that both the Courts below committed illegality and material irregularity in non-suiting him. It was contended that learned lower appellate Court has committed material illegality in failing to advert to the terms of remand order. The case was remanded to learned lower appellate Court for decision on Issue No. 9, afresh. Learned Court while passing the impugned judgment and decree, has not read the relevant evidence. Ignoring material evidence on Issue No. 9, renders impugned judgment, legally not sustainable. Cases of "Sardar Ali and others Vs. The State" (PLD 1967 S.C. 217) and "Khan Mir Daud Khan and others Vs. Mahrullah and others" (PLD 2001 S.C 67) were referred in this respect. The petitioner emphasized that non-appearance of Kaleem Jibran in the witness box is fatal and adverse inference can be drawn against the respondents on this score. Case of "Mst. Khair ul Nisa and 6 others Vs. Malik Muhammad Ishaque and 2 others" (PLD 1972 S.C. 25) was cited in support of this contention. It was urged that the impugned decision is not sustainable as no weightage was given to possession of disputed property and also to the fact that agreement was void ab initio.
Respondent No. 1 having nothing at stake has staged a volte face. His learned counsel has overtly toed the case of the petitioner.
Inversely learned counsel for Respondents No. 3, 4 & 9 has cogently argued that the suit of the petitioner cannot be decreed without first setting aside the PTD of the disputed property issued in favour of Respondent No. 3, a job which cannot be performed by Civil Court. Learned counsel has referred to the cases of "Zafarul Hassan and others Vs. Muhammad Kalim and others" (1993 SCMR 2028) wherein it was laid down that for specific performance of agreement and the challenge to agreement of association recourse to civil suit is not the right remedy and right course is to approach the relevant forum in, the hierarchy of Settlement Department. Learned counsel added that to determine the character of property Civil Court has no jurisdiction. Cases of "Muhammad Din and 8 others Vs. Province of the Punjab through Collector and others" (PLD 2003 Lahore 441) and "Muhammad Younis and others Vs. Abdul Ghaffar and others" (2004 SCMR 817) were referred to challenge the agreement of association to contend that in such cases jurisdiction of the Civil Court is ousted. Learned counsel has amplified that the Civil Court cannot look into the vires of the agreement of association. Learned counsel for Respondent No. 10 has also inter alia canvassed that under the law the Civil Court cannot go into the vires of the agreement of association on the basis of which PTD of the disputed property was issued in favour of Respondent No. 3 who subsequently alienated the same in favour of the remaining respondents. Learned counsel has given the history of the case and has submitted that case has passed through various stages. Firstly, two applications were moved on 10.1.1979 with the prayer that T.O. may not be issued, which was dismissed by Deputy Settlement Commissioner vide order dated 26.11.1979. Resultantly, T.O. was issued on 27.11.1979. Secondly, the petitioner applied on 9.10.1977 to Settlement Department for transfer of property under Settlement Scheme No. 9. Form was rejected on 4.2.1979. Thirdly a suit for permanent injunction was instituted, where learned trial Court observed that remedy was return of money received under agreement to sell and rejected the plaint under Order VII Rule 11 CPC. The appeal met the fate of dismissal on 31.10.1979. Fourthly, suit for declaration was filed on 26.7.1979 which was withdrawn with permission to file afresh. Fifthly, FIR No. 237 was lodged which was terminated through order dated 29.5.1980. Fifthly, proceedings under Section 145 Cr.P.C. was initiated which were dropped on 5.6.1979 and revision against the order was dismissed on 2.8.1980. It was contended that the petitioner was not willing to perform agreement otherwise there was no occasion for him to seek transfer of land under Scheme No. 9.
I have given my serious considerations to the submissions of the petitioner and learned counsel for the respondents.
At the outset, I must mention that the revisional jurisdiction of this Court is restricted and constricted. It is not co-extensive with the powers of trial Court and appellate Court which have to advert to all legal and factual controversies. A revisional Court within the scheme and stance of Section 115 CPC has merely to see whether there was failure to exercise jurisdiction vested in the Court, the jurisdiction was exercised which was not so vested and there was material illegality and irregularity.
With this in mind, I advert to the controversy. The petitioner is seeking decree for specific performance of contract Ex. P/1 of the disputed property, which he had executed with Respondent No. 1. This agreement, as noted earlier, was found proved but Respondent No. 1 had never legal, valid and enforceable title qua the disputed property. His title was rather speculative, contingent, fluid, nascent and unborn. Not only this the petitioner was presented with fail accomplice by the execution of agreement of association between Respondent No. 1 and Respondent No. 3 which culminated in the issuance of PTD of the disputed properly in the name of Respondent No. 3. This is insurmountable stumbling block in the passage of decree in favour of the petitioner.
So what falls for determination is whether it is within the competence of this Court to strike down the agreement of association, to scrap the PTD issued in favour of Respondent No. 3, foist it upon Respondent No. 1 and then decree the suit after holding that respondents No. 4 to 10 were not bona fide purchasers for consideration and without notice. This is daunting task indeed. This requires survey of case law.
In the case of "Hamid Hussain Vs. Government of West Pakistan and others" (1974 SCMR 356) it was held that Civil Court being Court of ultimate jurisdiction has jurisdiction to examine acts of such forums to see if such are in accordance with law or even mala fide. But in the cases of "Zafarul Hassan and others Vs. Muhammad Kalim and others" (1993 SCMR 2028), "Mst. Mukhtaran Bibi and others vs. Ata Muhammad and another" (1985 SCMR 1506) and "Mst. Fazal Bibi and others Vs. Settlement Commissioner and others" (PLD 1983 S.C. 163), it was held that acceptance of agreement of association by the Settlement Department is valid and such transfer cannot be interfered by the Civil Court. Similar view was adopted in the case "Muhammad Sarwar and 5 others Vs. Muhammad Ali and 18 others" (2002 SCMR 829). It would thus follow that Civil Court has no power to assail the validity of agreement of association.
There is cavil with the proposition that a Court when reaches the conclusion that it has no jurisdiction, it cannot pass any order except to return the plaint or dismiss the suit for want of jurisdiction, as the case may be. The impugned judgment and decree of learned lower appellate Court is devoid of any illegality or legal infirmity.
In all earnestness, I may mention that the case of the petitioner has a touch of pathos. He remained embroiled in litigation in settlement and Civil Court hierarchy for around three decades without any tangible benefit. By twist of circumstances the agreement executed in his favour has become unenforceable at law. He was comprehensively outwitted and elbowed out by the execution of agreement of association. The petitioner had the option to sue for the recovery of earnest money or damages but he has not deemed it expedient to avail of this remedy.
For the foregoing reasons, I do not find any substance in this revision petition and as such dismiss the same with no order as to costs.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 373
Present: Sh. Azmat Saeed, J.
ABDUL RASHEED MUGHAL --Petitioner
versus
M/s ECSA (PK) (PVT.) LTD., LAHORE--Respondent
C.M. No. 379-L of 2006 in C.O. 53 of 2004, decided on 7.4.2006.
Companies Ordinance, 1984 (XLVII of 1984)--
----S. 319--Statutory provision--Power conferred is primarily to consider a proposal for revival of the company and an eventual revocation or withdrawal of the winding up order--S. 319 whereby the word stay has been used alongwith withdrawn, cancelled or revoked, with reference to the winding up order--Such power has been exercised by High Court and by Apex Court to consider and approve arrangements for payment of debts and revocation of winding up order. [P. 378] A
NLR 1985 SCJ; 1989 MLD 2963 and PLD 1984 Karachi 541 ref.
Companies Ordinance, 1984 (XLVII of 1984)--
----S. 319--Contention--Order for revocation of winding up order--Illegality--Determination--Powers conferred are discretionary in nature and can only be exercised in furtherance of commercial morality and after bonafides of parties have been established on the record--Powers will not be exercised to permit the cover up any mal fences illegality or irregularity in the conduct of the affairs of the company--Contention raised are beyond the scope and ambit of the powers conferred u/S. 319 of Companies Ordinance, 1984--Ancillary issues are to be dealt with in accordance with Companies Ordinance, 1984 and the Companies (Court) Rules, 1997--Upon an application of a person clothed with locus standi--Application dismissed. [P. 379] B & C
AIR (36) 1949 Calcutta and AIR 1996 Calcutta 171, referred.
Kh. Aamer Farooq, Advocate.
Malik M. Rashid Awan, Advocate.
Mr. Azhar Maqbool Ahmed Khan, Advocate.
Mr. Tanvir Ahmed Shami, JOL.
Date of hearing : 7.3.2006.
Order
This application has been filed under Section 319 of the Companies Ordinance, 1984, by Mst Riffat Saeed, claiming to be a contributory of the Company under liquidation seeking a stay of the winding up proceedings and determination of the legal title of the property Bearing No. 348/18 - G.T. Road, Daroghawala, Lahore, purportedly owned by the Company as well as the legal status of the alleged shareholders of the Company and their respective shares.
2 . Brief facts leading to the filing of this application are that one Abdul Rasheed Mughal, filed a petition under Section 305/309 of the Company Ordinance 1984 for the winding up of M/S ECSA (PK) Ltd., (hereinafter the company). It was contended in the said application that the shareholders of the Company had through a resolution resolved to seek winding up of the Company as there was no possibility of the company carrying out its objects. And in this behalf had authorized the said Abdul Rasheed Mughal to initiate appropriate proceedings before this Court.
This Court vide order dated 1.10.2004 issued notice both through the ordinary course and through citation in the Press. No one entered appearance to contest the petition for winding up. Consequently, vide order dated 7.12.2004, order for winding up was passed by this Court. The Joint Official Liquidators were appointed, who were directed to take over the assets of the Company. It appears from the record that the only asset of the Company is the property situated at 348/18 - G.T. Road, Daroghawala, Lahore. In compliance of order of this Court, the J.O.Ls. took possession of the said property and it was discovered that certain goods were stored thereat. In respect whereof applications were filed by certain parties claiming that they had rented out the premises and variously stored the said articles. The matter was gone into and eventually the said third parties were permitted to remove the articles owned by them as it was a unanimous stand of the parties including the Ex-management that the said articles did not belong to the Company. However, the Ex-management categorically took the stand that the company had not rented out the premises to anybody. It appeared that one Muhammad Saeed, the husband of the present applicant and one of the shareholders had rented out parts and parcels of the premises the consideration thereof had been retained by him and not made available to the Company or its other shareholders.
Subsequently, this Court directed the sale of the said property of the Company situate at 348/18 G.T. Road, Daroghawala, Lahore, and an advertisement in this behalf was prepared for approval. An evaluator was appointed to determine the value of the property so as to facilitate the determination of its reserve price for the purposes of its auction. In the backdrop of the above facts, the present application has been filed contending therein that the applicant is a contributory of the company owning one share. It is further contended that after the incorporation, of the company and the original allotment of the share a subsequent allotment has been made which is illegal. It is further contended that the said property in question purportedly owned by the Company sought to be sold actually belonged to one Haji Ghulam Nabi, deceased, the father-in-law of the petitioner and the founder of the Company, hence, cannot be sold by this Court while exercising jurisdiction, under the Company Ordinance 1984. In this behalf reference has been made to a family settlement. In the above context, it has been prayed that the winding up proceedings be stayed by this Court in terms of Section 319 of the Company Ordinance 1984.
The application has been opposed by the Ex-management including the original petitioner as well as the JOLs. It is contended that the application is mala fide. The petitioner has no locus standi to maintain the application. It is contended that the application is pre-mature as the questions of the quantum to shareholding of the petitioner would become relevant at the time of the distribution of the funds raised through the sale of the asset of the Company which, cannot be postponed or stayed on the ground of the alleged of the applicant In this behalf, it is further contended that the shareholding pattern of the Company in essence reflects the proportionate division of the share amongst the heirs of Haji Ghulam Nabi in consonance with the personal law of inheritance and the family settlement referred to by the applicant.
The instant application has been filed invoking jurisdiction and the powers of this Court under Section 319 of the Companies Ordinance 1984, which reads as under:--
"Power of Court to stay winding up Etc.: (1) The Court may at any time not later than three years after an order for winding up, on the application of any creditor or contributory or of the registrar or the Commission or a person authorized by it, and on proof to the satisfaction of the Court that all proceedings in relation to the winding up ought to be stayed, withdrawn, cancelled or revoked, make an order accordingly, on such terms and conditions as the Court thinks fit.
(2) On any application under sub-section (1), the Court may before making an order, require the official liquidator to furnish to the Court a report with respect to any facts or matters which are in his opinion relevant to the with respect to any facts or matters which are in his opinion relevant to the application.
(3) A copy of every order made under sub-section (1) shall forthwith the forwarded by the Court to the registrar, who shall make a minute of the order in his books relating to the company."
6-A. A perusal of the aforesaid statutory provision reveals that the nature extent the mode of exercise of powers conferred thereby have not been spelt out in any great detail. An over view of the judicial precedent in this behalf reveals that the established principles of the English jurisdiction in this behalf have by and large been followed. In the case reported as Messrs Consolidated Exports Ltd. Vs. Messrs Dyer Textile and Printing Mills Ltd. (PLD 1934 Karachi 541). The relevant extract from the HALSBURY'S Laws of England was quoted and the principles enunciated thereby followed. Similarly, Calcutta High Court in the following judgments also followed the said principles:--
(i) AIR (36) 1949, Calcutta in re: East India Cotton Mills, Ltd.
(ii) Nikanta Kolay vs. The Official Liquidator (AIR 1996 Calcutta 171)
"2662. Exercise of power to stay winding-up proceedings. In the exercise of its jurisdiction to stay the Court will refuse to act upon the mere assent of the creditors in the matter, and will consider whether what is proposed is for their benefit, and also whether the stay will be conducive or detrimental to commercial morality and to the interests of the public at large. In particular, the Court will have regard to the following facts:--
(1) that directors have not complied with their statutory duties as to giving information to the official receiver or furnishing a statement of affairs;
(2) that there has been an undisclosed agreement between the promoter and the vendor to the company as to the participation by the promoter in fully-paid shares forming the consideration for the purchase of property by the company on its formation;
(3) that the promoter has made gifts of fully-paid shares to the directors;
(4) that there are any other matters connected with the promotion, formation or failure of the company or the conduct of its business or affairs, which appear to the Court to require investigation."
(1) if the Court is satisfied on the materials before it that the application is bona fide;
(2) the Court would be guided by the principles and definitely come to the finding that the principles are applicable to the facts of a particular case;
(3) mere consent of all the creditors for stay of winding up is not enough;
(4) the offer to pay in full or make satisfactory provisions for the payment of the creditors is not enough;
(5) Court will consider the interest of commercial morality and not merely the wishes of the creditors and contributories;
(6) Court will refuse an order if there is evidence of misfeasance or of irregularity demanding investigation;
(7) a firm and accepted proposal for satisfying all the creditors must be before the Court with material particulars;
(8) the jurisdiction for stay can be used only to allow in proper circumstances of resumption of the business of the company;
(9) the Court is to consider whether the proposal for revival of the company is for benefit of the creditors but also whether the stay will be conducive or detrimental to commercial morality and to the interest of the public at large;
(10) before making any order Court must see whether the ex-directors have complied with their statutory duties as to giving information to the Official Liquidator by furnishing the statement of affairs;
(11) and any other relevant fact which the Court thinks fit to be considered for granting or not granting the stay having regard to the particular facts of a particular case.
A winding up order is passed for reason or cause contemplated by law e.g. inability of the company to pay its debts, failure to commence business within one year from its incorporation, carrying on business not authorized by its memorandum, a special resolution has been passed by its members for its winding up etc. And a close and careful analysis of the statuary provision (Section. 319) and the aforequoted judicial precedent reveal that in essence a power has been conferred upon the Court to stay winding up proceedings on an application of a person or party mentioned in the said provision and within the period specified therein where it is proved to the satisfaction of the Court that the cause for the winding up order has disappeared or is likely to disappear. In other words, the mischief prompting the winding up order has been set at right or the company or its shareholders are able and willing to set it right either by arrangement, compromise or settlement and a proposal in this behalf for the revival of the company is submitted to the Court. Usually, such proposal would include an arrangement or settlement with the creditors especially if the winding up order has been passed on account of the inability of the company and its debts. The power conferred is primarily to consider a proposal for revival of the company and an eventual revocation or withdrawal of the winding up order. This is also evident from, the wording of the statutory provision (the Section 319) whereby the word stay has been used alongwith withdrawn, cancelled or revoked, with reference to the winding up order. It is no coincidence that such power and jurisdiction has been exercised by this Court and by the apex Court to consider and approve arrangements for payment of debts and revocation of winding up order. Some of such case in our jurisdiction include Mst. Dilshad Hussain vs. PICIC and others (NLR 1985 SCJ 515), National Bank of Pakistan vs. The Punjab National Silk Mills Ltd. And two others (1989 MLD 2963) and Messers Consolidated Exports Ltd. Vs. Messrs Dyer Textile and Printing Mills Ltd. (PLD 1984 Karachi 541).
It is equally clear that powers conferred are discretionary in nature and can only be exercised in furtherance of commercial morality and after bona fides of the parties have been established on the record. Such powers will not be exercised to permit the cover up any mal fences illegality or irregularity in the conduct of the affairs of the company.
In the instant application it is not the case of the petitioner that the cause resulting in the winding up order has disappeared or is likely to disappear. The petitioner is not seeking an order for revocation of winding up order but merely prays that the winding up proceedings be stayed and investigation be carried out to adjudicate upon the allegations made by the applicant as to the title of the property purportedly owned by the Company sought to be sold in auction and to determine the Illegality or otherwise of allocation of share, amongst the. shareholders. Such contentions raised are beyond the scope and ambit of the powers conferred under Section 319 of Companies Ordinance, 1984, upon this Court, which cannot be interpreted to provide an opportunity to a contributory or shareholder etc. to seek investigation and determination of collateral issues.
No doubt during the course of proceedings following the winding up orders issues and disputes may arise requiring the Court to pause and determine the same before, proceeding further. Such ancillary issues are to be dealt with in accordance with the Companies Ordinance 1984 and the Companies (Court) Rules 1997 that too at the proper stage and upon an application of a person clothed with the locus standi to raise such issues.
The applicant claims to own one share out of a total of 105,900 shares only she has raised an issue as to the title of the company to the property proposed to be sold but admittedly does not claim any right therein. Her husband apparently had control over the said property of the company and had derived financial benefits therefrom to the exclusion of the company the other shareholders. This application is obviously mala fide and has been filed to subvert the process of the law, more particularly, the sale of the property of the company. When and if any bona fide claimant to the said property objects to the sale such objection can and will be dealt with in accordance with law. Similarly, the question of the respective shares of the shareholders is also premature and would only arise when the property of the company has been sold and when and if the funds realised therefrom are to be distributed to the persons entitled thereto.
In view of the above, it is clear and obvious that the instant application is not only misconceived but also not bona fide, contention raised therein cannot form the basis for stay of winding up proceedings or for postponing the sale of the property, as is the intention of the applicant. Outstanding matters, if any, can and will be dealt with, determined and adjudicated upon in due course in accordance with law as and when the occasion arises. Consequently, this application being without any merit is hereby dismissed.
(Malik Sharif Ahmed) Application dismissed.
PLJ 2007 Lahore 380
Present: Mian Saqib Nisar, J.
MUHAMMAD BAKHSH 15 others--Petitioners
versus
ALLAH WASAYIA and 2 others--Respondents
C.R. No. 3817 of 1994, heard on 11.9.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Qanun-e-Shahadat Order, 1984, Art. 58--Res-judicata--Principle of resjudicata is a question of law--Key question to be examined--Respondent had challenged the mutation in favour of Haq Nawaz defence taken by Haq Nawaz in that case was that they are the bonafide purchaser for all practical and legal purposes, the petitioner had stepped into the shoes of Haq Nawaz the purchaser of the property, whose sale had been challenged by respondents, in which the issue about the bonafide purchaser has been decided in favour of Haq Nawaz etc. therefore, the provisions of S. 11 C.P.C. were squarely applicable thus Civil Judge dismissed the suit as barred by rule of res-judicata.
[Pp. 383 & 384] A & B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Qanun-e-Shahadat Order, (10 of 1984), Art. 58--Res judicata--Such judgment has been passed by the Court having no jurisdiction nor that it has been obtained through fraud or collusion--In order to avoid the res-judicata, the shelter cannot be taken behind Art. 58 of Qanun-e-Sahadat Order. [P. 384] C & D
(iii) Substantial Justice--
----Courts have to do the substantial, justice and illegal gains would not be protected, law has to be strictly construed and applied; where there is a conflict between law and rules of substantial justice, the law has to take preference. [P. 385] E
(iv) Limitation--
----Suit brought beyond the period of six years was barred by law of limitation and was not protected on the principle that in inheritance cases there is no period of limitation--Revision allowed. [P. 385] F
2004 SCMR 517, NLR 1999 Civil 699, 1980 SCMR 469, PLD 1975 SC 331; 1994 SCMR 1856; PLD 2001 SC 325; 2002 SCMR 1183; PLD 1954 Lah. 575; AIR (31) 1944 Lah. 397; 2004 PSC 1330; 1995 SCMR 710, referred.
Malik Noor Muhammad Awan, Advocate for Petitioners.
Rana Muhammad Sarwar, Advocate for Respondents.
Date of hearing : 11.9.2006.
Judgment
The suit for the declaration, filed by Respondents No. 1 to 3 on 9.10.1984, claiming ownership of the property in question, was dismissed by the learned Civil Judge, vide judgment and decree dated 06.11.1991, but on their appeal, which was accepted on 18.10.1994, the above judgment and decree has been reversed and the suit decreed.
Briefly the facts, necessary for the disposal of this revision are, that Yar Muhammad was the owner of the land measuring 2741 Kanals and 7 Marlas, situated in Mauza Jhanki Ram, Tehsil Mankera District Bhakkar. He died and his above estate was inherited by his son Ghulam Hussain vide Mutation No. 480 dated 7.9.1955. On the death of Ghulam Hussain, which occurred in 1959, his inheritance Mutation No. 497 dated 25.02.1960, was attested in the name of Mst. Haleeman, Mst. Ghulam Fatima and Mst. Bakhtan and the collaterals namely Elahi Bakhsh, Khuda Bakhsh, Ahmad Bakhsh, and Noor Muhammad. Mst. Bakhtan died in the year 1960 and her mutation of Inheritance No. 498 dated 28.7.1961 was attested in favour of her two sisters, and the same collaterals named above. These collaterals through a sale Mutation No. 673 dated 28.6.1967 alongwith Mst. Haleeman and Mst. Ghulam Fatima, sold the aforesaid property in favour of Haq Nawaz, Rab Nawaz, Muhammad Nawaz, Muhammad Hayat, Mamdoo, Atta Muhammad, Lala and Amin. The petitioners filed a suit for pre-emption challenging the aforesaid sale, which was decreed on 6.2.1978 and this decree has attained finality and was executed, on account of which, the Mutation No. 44 dated 30.11.1978 was effected in favour of the petitioners.
Earlier Allah Wasaya, Iqbal and Amin, husband and sons respectively of Mst. Bakhtan, had challenged the sale and the Mutation No. 673 in favour of Haq Nawaz etc and the suit was dismissed by the learned Civil Judge vide judgment and decree dated 6.11.1972 (Ex.D.8), holding that Haq Nawaz etc. were the bonafide purchasers. Be that as it may, they again brought the present suit in 1984, challenging the Mutations No. 497 dated 25.2.1960, No. 673 dated 28.6.1967 and No. 44 dated 30.11.1978, the last being in favour of the petitioners on the basis of their pre-emption decree. This suit was mainly contested by the petitioners claiming to be the persons having stepped into the shoes of the vendees Haq Nawaz etc, the right which they acquired on the basis of the decree for pre-emption. As mentioned earlier, the suit, after contest and trial was dismissed by the learned trial Court mainly on the issue of res judicata and limitation, whereas on appeal of the Respondents, which has been accepted, the judgment and decree of the trial Court has been set aside and the Respondents/plaintiffs have been declared to be the legal heirs of Mst. Bakhtan and it has been held that they were wrongly excluded from the inheritance of her estate and thus, the share belonging to Mst. Bakhtan could neither have gone to the collaterals or her sisters nor they could validly transfer the same in favour of Haq Nawaz etc, which could be preempted by the present petitioners.
Learned counsel for the petitioners contends that the present suit was barred by res judicata, because earlier the respondents had filed a suit challenging the Mutation No. 673, which is the basic mutation of sale made in favour of Haq Nawaz etc. and this suit was dismissed by the learned trial Court vide judgment and decree dated 6.11.1972; in that suit one of the issues involved was, whether Haq Nawaz etc. are the bonafide purchasers, and this issue had been decided against the respondents, therefore, the second suit was hit by Section 11 of CPC. It is also argued that the petitioners are the bonafide purchasers as has been determined in the earlier suit and, therefore, such issue could not be re-opened by virtue of the principle of res judicata. Lastly, he submits that at the most the respondents, because of challenge in the earlier suit, had come to know about the Mutation No. 673 in the year 1970 and this suit, as mentioned above, was dismissed, but they did not challenge the said mutation, which they otherwise could not be challenged, and the present suit when brought in 1984, was not only barred by limitation, but also the respondents were estopped by their own conduct to institute the suit and accordingly it was dismissed by the learned trial Court. In support of his various contention, the learned counsel has placed reliance upon the judgments reported as Kala Khan and others vs. Rab Nawaz and others (2004 SCMR 517) and Nawabzada Zafar Ali Khan vs. Chief Settlement Commissioner etc. (NLR 1999 Civil 699), Shahul Hamid vs. Tahir Ali (1980 SCMR 469), The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), Salehon and others vs. Mst. Sardaran through legal heirs and others (1994 SCMR 1856), Hashim Khan vs. National Bank of Pakistan (PLD 2001 SC 325), and Allah Dawaya and others vs. Additional District Judge and others (2002 SCMR 1183).
Conversely, the learned counsel for Respondents No. 1 to 3 has placed reliance upon the provisions of Article 58 of the Qanun-e-Shahadat Order, 1984 and states that the earlier judgment of the learned Civil Judge dated 6.11.1972 (Ex.D.8) was without jurisdiction and was based upon fraud, therefore, such judgment shall not attract the rule of res judicata. By placing reliance upon the judgments reported as Messrs. Ghulam Farid Muhammad Latif and others vs. The Central Bank of India, Limited Lahore (PLD 1954 Lahore 575), Hari Singh vs. Khan Moin-ud-Din Khan and others (AIR (31) 1944 Lahore 397), Muhammad Shoaib and 2 others vs. Government of N.W.F.P through the Collector D.I. Khan and others (2005 PSC 1330), Muhammad Asif and another vs. Director Public Instruction Punjab and another (2005 PSC 257), and Muhammad Sadia vs. Sardar and others (1995 SCMR 710), the learned for the respondents has submitted that where substantial justice has been done by the Court of appeal, the matter cannot be interfered in the revisional jurisdiction. It is also submitted that the Courts, in law and equity, should not protect the ill gotten gains by the litigants and in this case, it is the concurrent finding of the two Courts below that the respondents/plaintiffs are the legal heirs of Mst. Bakhtan and they were wrongly excluded from her inheritance, therefore, the Mutation No. 498 was obviously based upon fraud; in this mutation, the revenue officer clearly stated that Mst. Bakhtan is not the resident of the village and, therefore, a "Bund Sawal" ( ) be sent for ascertaining about her legal heirs, but without waiting for the same, the mutation of inheritance was effected in favour of the collaterals of Ghulam Hussain, who otherwise were not entitled to inherit the property of Mst. Bakhtan.
I have heard the learned counsel for the parties. The principle of res judicata is a question of law and according to the judgment reported as 1980 SCMR 469, it has been held that:--
"Section 11, CPC (Act V of 1908), which lays down the principle of res judicata, is mandatory, and as such, a party to a former suit decided by a Court of competent jurisdiction, can avoid its provisions only by taking recourse to Section 44 of the Evidence Act I of 1872, on the ground of fraud or collusion or if we may add by showing that the previous judgment was a nullity or non-existent in the eye of law. "
In PLD 1975 SC 331, the Honourable Supreme Court has taken the view that:--
"The validity of a decision or order can be challenged either directly by way of proceedings specially designed by law for the purpose of having such a decision set aside, reversed or modified; or by way of collateral attack in which the Court is not asked to invalidate the disputed decision but in which the existence of this decision is relevant to the issue facing the Court. In such collateral impeachment the contention generally is that the impugned decision is a nullity in the eye of law and can be disregarded by the Court before which it is sought to be relied upon by one party or the other. Direct proceedings for having a decision invalidated or set aside, may be either by way of appeal, revision or review; initiated by the affected party, in accordance with the relevant law; or they may take the form of suo moto recall of the order by the Court or authority which made it; or, lastly, action to be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order."
In the other judgment 1994 SCMR 1856, it has been held:--
"Where the findings had attained finality, the provisions of Section 11 of CPC are applicable."
"The plaintiff admitted that the Defendants No. 11 to 19 were the purchasers. The previous record shows that the defendant vendors were recorded as the owners. The mutation Ex. D.1 shows that they have purchased this property on the payment of Rs. 38730/-. No evidence has been led to the contrary. Hence I hold that the Defendants No. 11 to 19 are the bonafide purchasers for value and without notice. This issue is answered in affirmative."
It is the sale in favour of the aforementioned defendants, referred to as 11 to 19 in the quoted judgment, which was challenged by the petitioners through a pre-emption suit, and was decreed in their favour in the year 1978 and in pursuance thereof, Mutation No. 44 was effected in favour of the petitioners. Thus, for all practical and legal purposes, the petitioners had stepped into the shoes of Haq Nawaz etc., the purchasers of the property, whose sale had been challenged by the respondents in which, the issue about the bonafide purchasers has been decided in favour of Haq Nawaz etc., therefore, the provisions of Section 11 CPC were squarely applicable and it is thus on account of the above that the learned Civil Judge had dismissed the suit holding it to be barred under the rule of res judicata. I am not in agreement with the learned counsel for the respondents that the judgment (Ex.D.8) comes within the purview of Article 58 of the Qanun-e-Shahadat Order, because neither it has been shown that such judgment has been passed by the Court having no jurisdiction nor that it has been obtained through fraud or collusion. The plaintiffs/Respondents No. 1 to 3 were themselves the plaintiffs in the matter in which, the defence taken by the predecessor-in-interest of the petitioners was that they are the bonafide purchasers and this defence was upheld by the Court vide judgment dated 6.11.1972 (Ex.D.8) and the suit had been dismissed. Therefore, in order to avoid the res judicata, the shelter cannot be taken by the respondents behind Article 58 of the Qanun-e-Shahadat Order. When even asked in the Court, learned counsel for the respondents has failed to cite any judgment of the Superior Court to establish that Article 58 is attracted to the facts and circumstances of this case.
As regards the other argument that the Courts have to do substantial justice and illegal gains should not be protected, suffice it to say that the law has to be strictly construed and applied; where there is a conflict between law and rules of substantial justice, the law has to take preference and when on the face of it, the suit of the respondents was barred by the rule of res-judicata, this Court on the basis of such a rule, cannot protect and uphold the judgment of the Court below.
For the question of limitation, the respondents knew about the Mutation No. 498 when they earlier filed the suit, challenging the second Mutation No. 673 and in this suit, tacitly the aforementioned mutation was also impugned. But when the suit was dismissed and the suit for pre-emption was decreed in favour of the petitioners in 1978, Mutation No. 44 was effected, they again remained silent till 1984 when the present suit was brought. Obviously, the decree for pre-emption in this case and the decree in the earlier suit brought by the petitioners was in the way of the Respondents and until and unless, the decrees were got set aside or challenged, the respondents could not, on the rule of inheritance, file a suit at their own choice and time. Resultantly, the suit brought beyond the period of six years from Mutation No. 498 and even the sale made in favour of Haq Nawaz etc., to whom the property was originally sold and subsequently preempted by the petitioners, was barred by the law of limitation and was not protected on the principle that in the inheritance cases, there is no period of limitation.
In the light of above, by allowing this revision petition, I reverse the findings of the learned appellate Court on the relevant issues, particularly Issues No. 1, 2, 5 and 7, with the result that the suit filed by Respondents No. 1 to 3 stands dismissed.
(Malik Sharif Ahmad) Petition allowed.
PLJ 2007 Lahore 385
Present: Syed Hamid Ali Shah, J.
WASA EMPLOYEES UNION through its General Secretary, Faisalabad Development Authority, Faisalabad--Petitioner
versus
REGISTRAR OF TRADE UNIONS and 5 others--Respondents
W.P. No. 15524 of 2005, decided on 31.10.2006.
Industrial Relations Ordinance, 1969 (XXIII of 1969)--
----S. 22(4)(a)--Industrial Relations Ordinance, 2002 S. 20(4)(a)--Only difference between the provisions of Industrial Relations Ordinance, 2002 is that period of 15 days has been prescribed for submission of list by employer, while in Industrial Relations Ordinance, 1969, such prescription of period was not there--Apart from that change both the provisions were identical--In order to be included in the list of voters, a workman is to fulfill twin records, firstly that he has been in service of employer for not less than three months and secondly he has been a member of one of the contesting trade unions--Factum of their being member of the trade union has not pleaded--Question of--They were not entitled to be voters in the referendum--Nor such protest has been placed on record pleaded in petition--Held: 1/3rd is of the list of voters and not 1/3rd of the total workmen in the list of voters--Petition dismissed.
[Pp. 387, 388 & 390] A, B, C, D & E
1991 SCMR 888, relied upon.
Mr. Asmat Kamal Khan, Advocate for Petitioner.
Mr. Ilyas Akhtar, Assistant District Officer (Labour) for Respondent No. 1.
Mr. Alibar Qureshi, Advocate for Respondent No. 2.
Mr. Muhammad Naeem Kashmiri, Advocate for Respondent No. 3.
Date of hearing: 15.9.2006.
Order
Facts of the petition are that the petitioner union was functioning as Collective Bargaining Agent in the Respondent No. 2 establishment. Upon expiry of its tenure an application was made to Respondent No. l, Registrar of Trade Unions for holding referendum. The Registrar called upon the employer to submit the lists, required by law and after due process prepared a list of voters and ultimately referendum was held on 17.03.2005. Since the numbers are critical for deciding this matter, they are referred to as under.
Total votes 1473
Votes casted 1279
Votes obtained by Respondent No. 3 499
Vote's obtained by petitioner 425
As a consequence of referendum, vide order dated March 18, 2005 Respondent No. 3 was declared as Collective Bargaining Agent. Initially an appeal was filed by the petitioner before the Punjab Labour Court-IV at Faisalabad. Thereafter, probably, it was realized that order under Section 20 is not appealable order and appeal was sought to be withdrawn which was dismissed as withdrawn vide order dated 21.09.2005. Thereafter the present writ-petition has been filed.
The counsel for the petitioner has contended that under the provisions of Industrial Relations Ordinance, 1969 the employer was required to give only one list, whereas under the provisions of Industrial Relations Ordinance 2002, the employer is required to give two lists but the employer provided only one list. He has further contended that there are 300 work charge employees who have not been included in the list of voters. He has consequently prayed that the work charge employees with more than three months of service, are entitled to cast votes and since they have been disenfranchised, the Collective Bargaining Agent Certificate dated 18.03.2005, may be declared without lawful authority and consequently may be quashed. He has further argued that the requirement of 1/3rd votes is out of the total number of workers and not the total registered votes.
On the other hand, learned counsel for the Respondents argued that there is no material difference in the relevant provisions of Industrial Relations Ordinance, 1969 and Industrial Relations Ordinance, 2002. They have further argued that referendum has already taken place. They have emphasized that requirement of I/3rd of votes is out of the total number of registered votes and not the total number of Workers.
I have heard learned counsel for the parties and examined the record with their assistance.
Before adverting to the controversy between the parties I think it appropriate to reproduce the provisions of Section 22 (4) (a) of Industrial Relations Ordinance 1969 and Section 20 (4)(a) of Industrial Relations Ordinance 2002.
"22 (4) (a) on being so required by the Registrar, submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which he is employed, his, ticket number and the date of his employment in the establishment; and"
"20(4)(a) on being so required by the Registrar, within fifteen days, submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment. However a separate list of workmen whose period of employment is less than three months showing the said particulars in respect of each workman may also be submitted; and"
A perusal of the above two indicates' that the only difference between the provisions of Industrial Relations Ordinance 2002 is that a period of 15 days has been prescribed for submission of list by the employer, while in Industrial Relations Ordinance 1969 such prescription of period was not there. Apart from this change both the provisions are identical.
A compound reading of the provisions indicates that employer is required to furnish the list of all workmen employed by him, excluding those whose period of employment is less than three months. On the other and the applicant trade union as well as the contesting trade unions are required to submit list of their members giving the prescribed details. Thereafter a duty is cast upon the Registrar under sub-section 5 of Section 20, to prepare a list of voters. In order to be included in the list of voters, a workman is to fulfill twin records; firstly that he has been in the service of employer for not less than three months and secondly he has been a member of one of the contesting trade unions.
The Registrar is required to prepare the list of voters after due verification. Nowhere in the memo of petition it has been pleaded that the work charge employees are members of the petitioner or any other trade union. Although the petitioner has pleaded in para 4(1) of the petition that there is existence of work and there is existence of work charge employees. Be that as it may, it has not been pleaded that any of such work charge employee is the member of petitioner trade union, therefore, even if there were work charge employees and even if the work charge employees have been in employment for more than three months, since the factum of their being member of the trade union has not been pleaded in the petition, the question becomes only academic. Because they were not members of union or at least it has not been pleaded, therefore, they were not entitled to be voters in the referendum.
Besides the referendum has already taken place and the petitioner union has participated in the referendum without any protest or at lest no such protest has been placed on record or pleaded in the petition.
Now coming to the question as to the requirement of 1/3rd votes as prescribed in first the proviso to sub-section 9 of Section 20 of IRO 2002. The proviso is reproduced below:--
"Provided that no trade union shall be certified to be the collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one-third of the total number of workmen employed in such establishment or, as the case may be, group of establishment."
"9. In the first proviso to sub-section (9) of Section 22 of the I.R.O., 1969 the expression "total number of workmen employed in such establishment or group" must be read as qualified by the following which have preceded--
(i) whose period of employment is not less than three months;
(ii) who is a member of any of the contesting trade unions;
(iii) on the cut off date "four days prior to the date fixed for the polls".
"Every workman who is a member of any of the contesting trade unions and whose name appears in the list of voters prepared under sub-section (5) shall be entitled to vote at the poll to determine the collective bargaining agent."
Firstly, no cut off date can be located in the proviso. Necessarily we have to import it, if at all, from the enacting provision, thereby demonstrating the control and avoiding the independence of the proviso;
Secondly, there will be two cut off dates; one for circulating voters list four days before the polls and the other of certification of the Collective Bargaining Agent necessarily after the polls;
Thirdly, there is no provision made, none at all, for preparation and certification of a list of total number of workmen employed in such establishments or group by which the requirement of proviso can be satisfied, immediately at the conclusion of the count;
Fourthly, the whole process of election of Collective Bargaining Agent is likely to become highly manipulative;
Fifthly, it will be solitary, and an unprincipled case, where a category of persons, not even qualified to be voters on the crucial dates or even on the date of declaration of result will decisively influence the result of the poll; and
Finally, on the proposed interpretation, the whole provision becomes unworkable. To illustrate, in an establishment `A', with 100 employees, there are two trade Unions 'B' with 60 members and 'C' with 40. Of these 30 workmen being of less than three months employment are not entitled to vote. At the poll, Union 'B' receives 32 votes and Union 'C' receives 28 votes, 10 voters do not cast their vote. Second proviso gets attracted only where there are more than two trade unions contesting the election. None satisfies the test. Here, a repoll cannot take place nor can a Collective Bargaining Agent be declared.
Take another example. In establishment A, with 100 workmen, 30 of less than three months employment, there are three trade unions with membership of 35 for Trade Union B', 25 forC' and 10 for Union D'. UnionD' does not contest. So, the poll takes place in which Unions B' andC' participate; B' receiving 32 andC' receiving 28 votes. Again the same stalemate occurs. The contention of the learned counsel for the petitioner therefore frustrates the very purpose of the enacting provisions.
Therefore it is settled that 1/3rd is of the list of voters and not I/3rd of the total workmen. In the present case the list of voters contained 1473 and Respondent No. 3 has secured 499 votes. 499 may not be 1/3rd of the total number of workmen but is certainly more than 1/3rd of the names in the list of the voters.
I, therefore, find no irregularity in the order of Respondent No. 1 and consequently dismiss this petition with no order as to costs.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 390
Present: Syed Zahid Hussain, J.
Mst. NAZIRAN BIBI--Petitioner
versus
Mst. HAJJAN BIBI and 2 others--Respondents
C.R. No. 427 of 2003, heard on 30.10.2006.
Mutation--
----Challenged--Principle of law--Once mutation is challenged, the party that relies on such mutation is bound to revert to the original transaction and to prove such original transaction which resulted into entry or attestation of mutation in question--Because mutation not being title deed, is merely an evidence of some original transaction between the parties--Struck prior to entry of mutation--Most important entities are Patwari Halqa and the revenue officer who happens to attest mutation--In the absence of these two officials mutations cannot be said to have been proved--It was incumbent for her to have produced the Patwari and the Revenue Officer to prove the credibility and authenticity of mutation--This was not done by her which gives rise to adverse inference against her--Revision petition partially accepted. [Pp. 393 & 394] A & B
PLD 2003 SC 688, followed.
Kh. Saeed-uz-Zafar, Advocate for Petitioner.
Ch. Muhammad Shafique Babar, Advocate for Respondent No. 1.
Date of hearing: 30.10.2996.
Judgment
A declaratory suit with consequential relief instituted by Respondent No. 1 was dismissed by the trial Court on 1.12.2001 which judgment, however, was reversed by the First Appellate Court by accepting the appeal on 20.1.2003. This is revision petition qua the same.
"ISSUES:
Whether oral gift Mutation No. 259 dated 24.12.80 and oral Mutation No. 465 dated 8.6.93 from deceased Sultan in favour of Defendant No. 1 are against facts, and law, collusive, fraudulent, in-effective qua the rights of plaintiff and liable to be cancellation? OPP
Whether plaintiff is entitled her 1/3 share from the estate of deceased-Sultan? OPP
Whether suit is un-proceedable in its present form? OPD-1
Whether plaintiff has no cause of action? OPD-1
Whether suit is liable to be dismissed due to deficiency in Court fee? OPD-1
Whether suit of the plaintiff is false and frivolous and defendants are entitled to special costs U/S 35-A of CPC? OPD-1
Whether suit of the plaintiff is time barred? OPD-1
Relief."
In support of her plea, the Respondent/plaintiff appeared herself as PW. 1 and produced one Nazir Ahmed as PW. 2. Copy of Mutation No. 259 was produced as Ex.P.1, copy of Mutation No. 465 as Ex.P.2, Copy of Register Haqdaran Zamin for the year 1978-79 Ex.P.3 and copy of Register Haqdaran Zamin for the year 1990-91 as Ex.P.4. The petitioner/defendant on the other hand, produced Muhammad Hassan, Lumbardar DW. 1 and herself appeared as DW.2. Ex.D.1 was the copy of Register Haqdaran Zamin for the year 1990-91 and Ex.D.2 the copy of Khasra Girdawari.
On consideration of the evidence so produced by the parties, the learned trial Judge decided vital Issues No. l and 2 against the plaintiff/Respondent No. 1 whereas Issue No. 3 was decided against Defendant No. 1 (the petitioner), Issue No. 4 in favour of the petitioner/Defendant No. 1, Issue No. 5 against petitioner/Defendant No. 1, Issue No. 6 was decided partially in favour of Defendant No. 1 and Issue No. 7 (limitation) was decided against petitioner/Defendant No. 1. The suit was dismissed accordingly. As mentioned above, plaintiff/Respondent No. 1 preferred appeal against the judgment of the trial Court which was accepted by the learned Additional District Judge, Depalpur on 20.1.2003 who set aside the judgment and decree passed by the trail Court and decreed the suit of plaintiff/Respondent No. 1.
The learned counsel for the petitioner has endeavored to assail the findings recorded by the appellate Court primarily on the ground that since Sultan deceased was not happy with the conduct of plaintiff/Respondent No. 1 in such peculiar circumstances, he had of his own free will decided to deprive her of any right in his property and, thus, alienated the suit property in favour of the petitioner/Defendant No. 1 in his life time and for such a disposition he had absolute right under the law. It is further contended that the other defendant namely Bashiran Bibi had never assailed the alienation so made by Sultan in favour of the petitioner and she even did not contest or participate in the Court proceedings. It is contended that the suit filed by plaintiff/Respondent No. 1 was barred by time and findings to this effect also is incorrect. He has made reference to Muhammad Ali and 25 others v. Hassan Muhammad and 6 others (PLJ 1994 SC 265) and Lal Shahadat Khan and another v. Mst. Gul Marjana (1989 CLC 803).
The learned counsel for Respondent No. 1, on the other hand, points out contradictions in the depositions of Muhammad Hassan DW. 1 and Mst. Naziran DW. 2. According to him no such alienations or mutations had been made by Sultan in his life time and the whole affair was result of collusion, forgery and fraud. It is contended that the beneficiary of such mutations had to prove the existence of transaction preceding the mutation. Places reliance upon Muhammad Akram and another v. Altaf Ahmad (PLD 2003 SC 688) and Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832).
The other mutation (465) about alienation of land measuring 32 Kanals 7 Marlas which was sanctioned on 8.6.1993 now need to be examined in the light of the evidence brought on record by the parties. Unfortunately the exact date of death of Sultan has not been disclosed by either of the parties. He, however, before his death was left with land measuring 32 Kanals 7 Marlas which the petitioner claims to have been transferred in her favour through alleged oral Tamleek and Mutation No. 465 was sanctioned on 8.6.1993. In Muhammad Akram and another v. Altaf Ahmad (PLD 2003 SC 688), the settled position of law was reiterated by the Hon'ble Supreme Court of Pakistan that "Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This oft repeated principle of law is quite logical because a mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout being alleged by him in affirmative. He was bound to fail in the event of the non-proof of transaction. Only the trial Court realised it." It was further observed in the same case that "In connection with the attestation of a mutation, most important entities are the Patwari Halqa who happens to enter the mutation and the Revenue Officer who happens to attest the same. Both of them were not produced and examined in Court. In the absence of these two officials, the mutations cannot be said to have been proved." It may be observed that Sultan deceased was an old person with weak and feeble health who had remained bedridden for long and was putting up with Mst. Naziran, petitioner. In this context, the testimony of Muhammad Hassan DW. 1, Lambardar, and that of Naziran Begum DW.2, the petitioner has been considered and evaluated. She makes two important disclosures in her cross examination; one that the mutation took place at Tehsil Depalpur and second that his father had died 6 years ago. The date of recording of her statement is 25.7.2001 which means that Sultan died some time in the year 1995. As against her, Muhammad Hassan, Lambardar DW. 1 deposed that 21 years ago Sultan had alienated 1 1/2 Acre of land to his daughter Naziran Bibi whereas the remaining land was alienated by means of gift about 8 years ago. It was also stated by him in cross-examination that at the time of sanction of Mutation No. 465, Patwari/Tehsildar had come to his `Dera' in the Village where some other persons were also present. He thus contradicts Naziran Begum DW.2 about the place of attestation of mutation. In view of such untrustworthy stance of the petitioner, it was incumbent for her to have produced the Patwari and the Revenue Officer to prove the credibility and authenticity of Mutation No. 465. This was not done by her which gives rise to adverse inference against her. The evidence thus produced by the petitioner in support of her assertion about Tamleek and Mutation No. 465 is not convincing.
The contention of the learned counsel for the petitioner about the suit being barred by time so far Mutation No. 259 of 1980 is concerned may have force but qua Mutation No. 465 of 1993 by no means can be countenanced. The suit instituted in 1996 qua Mutation of 1993 was well within limitation.
Though the learned Appellate Court has considered the evidence quite thoroughly yet the effect of entries in the Register Haqdaran Zamin of the year 1990-91 about 11 Kanals 15 Marlas in favour of Naziran Bibi petitioner appear to have escaped his notice. Mutation No. 259 of year 1980 had been attested long before the death of Sultan and the factum was carried forward in the revenue record i.e. the record of rights. The plaintiff/ respondent thus had no cause of action qua Mutation No. 259 of 1980. No decree could be granted in her favour about the same. So far as decree about the remaining land i.e. subject-matter of Mutation No. 465 of 1993 is concerned, the judgment of the learned Additional District Judge is maintained though for somewhat different reasons.
As a result of the above, by modifying the judgment/decree of the learned lower Appellate Court, the suit filed by Respondent No. 1/plaintiff qua Mutation No. 259 dated 24.12.1980 stand dismissed whereas qua Mutation No. 465 dated 8.6.1993 is decreed.
The revision petition is thus partially accepted and partially dismissed to the extent indicated above. No order as to costs.
(Malik Sharif Ahmed) Petition partially accepted.
PLJ 2007 Lahore 395
Present: Syed Hamid Ali Shah, J.
ANJUMAN ISLAMIA (REGISTERED), SIALKOT--Petitioner
versus
JAWAD and others--Respondents
Civil Revisions No. 1558 & 1559 of 2002, heard on 18.09.2006
(i) D.F. Mulla's Muhammadan Law--
----S. 199--Civil Procedure Code, (V of 1908), S. 115--Wakf by User--Wakf Property--Determination of question of-when express dedication is not available, the decision can be based on the evidence, how public regarded such property-Suit for permanent injunction filed by the petitioner and decreed by trial Court, but Appellate Court while accepting the appeal reversed the finding of trial Court--Assailed--There is no evidence on record to show whether property in dispute came under the management of Anjuman-e-Islamia nor any proof on record to show that how such property came under the management of Anjuman-e-Islamia--Respondents have not brought on record any evidence to the effect that the property in dispute forms part of Shamlat-e-Deh and the respondents are its lawful claimants-There is no evidence qua the land holding of the respondents and of other land owners of the village and their share in Shamilat--In absence of necessary evidence or proof qua the land in dispute, its nature can only be determined by it's use and purpose-property held and utilized for a religious purpose, from time immemorial, has been treated as "Wakf by User"--Held--A property, though not dedicated expressly for charitable purpose can be treated as Wakf property, on the basis of it's use for immemorial period for that purpose.
[Pp. 398 &399] A, B & C
(ii) Societies Registration Act, 1860 (XXI of 1860)--
----S. 6--Civil Procedure Code, (V of 1908), S. 115--Unauthorized person, filing of suit by, question raised on belated stage--Petitioner being the legal entity, suit on its behalf is required to be filed by a person authorized by resolution of governing body--Validity--Objection regarding filing of suit through unauthorized person was not raised either in the preliminary objection or in reply on merit in written statement filed by the respondents--Competence of Society was not questioned before the trial Court--Held: Such objection was thus not entertainable before the appellate Court--Filing of suit, who is competent to institute where the property in dispute is place of worship, non-suiting the petitioner for want of resolution under S. 6 of the Societies Registration Act--Validity--Land in dispute is a place of worship, being used and dedicated as Eidgah, every Muslim in the community, who offers prayers or performs worship at such place, has the right to safeguard such property and is equally entitled to maintain an action or institute a suit--A place of worship like Mosque or Eidgah if faced with the threat of illegal occupation or misuse, any member of the society, who offers prayers or perform religious rites at such place, can maintain suit--Held: Non-suiting the petitioner for want of resolution is legally not sustainable.
[Pp. 399 & 400] D, E & F
AIR 1982 Andhra Pardesh 138, Makhdum Hassan Buksh [48 Punj. Rec., 83 (1913), AIR 1935 Allahabad 891, AIR (33) 1946 Nagpur 401, (35 All; 197 (1913), (7.A. 178; AWN (1884) 324, (ref.)
Sh. Umar Draz, Advocate for petitioner.
M/s Ch. Muhammad Din Ansari, Advocate and Ch. Sadaqat Ali, Advocate for Respondents.
Date of hearing: 18.9.2006.
Judgment
This single judgment will dispose of Civil Revision No. 1558 of 2002 titled "Anjuman Islamia (Registered) Sialkot vs. Jawad etc." and Civil Revision No. 1559 of 2002 titled "Anjuman Islamia (Registered) Sialkot vs. Jawad etc." as common questions of law and facts are involved in these petitions and parties are also the same.
Concise facts of the case are that the petitioner instituted a suit for permanent injunction, seeking restraint from interfering with Its possession and abstaining the respondents from raising construction on the suit sand. It was asserted in the plaint that land measuring 4 kanals 9 marlas bearing Khasra Nos. 658 & 659, Khatooni No. 1370, in village Hajipura Sialkot, as per jamabandi for the year 1965-66 vests in the ownership and possession of "Eidgah" under the supervision of Abdul Hameed son of Hamid Shah; that the respondents interfered in the possession of the plaintiff and threatened to raise construction and that the respondents were asked to refrain from interfering with the possession of the petitioner but they refused, which gave cause for institution of suit. Chaudhry Muhammad Khalid, Lamberdar of the village (predecessor of the respondents), contested the suit, filed written statement and controverted the assertion of the plaint by raising various preliminary objections. It was asserted in the written statement that the land forming part of Khasra No. 659 was in the ownership of the defendants, while the petitioner was in illegal occupation of land, forming part of Khasra No. 658. Five issues, out of divergent pleadings of the parties, were framed. The parties led their respective evidence. The plaintiff examined its three witnesses and adduced in evidence Ex.P/1, copy of Register Haqdaran-e-Zamin for the year 1965-66, and Ex.P/2, resolution of the Anjuman. Two witnesses of respondent entered the witness box to dislodge the claim of the petitioner/plaintiff. These witnesses deposed that the suit property was `Shamilat' land and its ownership did not vest with Anjuman. Learned trial Court decreed the suit vide judgment dated 9.5.2000. Learned Appellate Court, while accepting the appeal vide judgment and decree dated 03-4-2002 reversed the finding of learned trial Court, resultantly dismissed the suit, hence this petition.
Learned counsel for the petitioner has contended that the respondents have not denied the possession of the petitioner over suit land. They have admitted that they are not in possession of Khasra No. 658 and claimed that the petitioner has illegally occupied it. Dismissal of suit by learned Appellate Court on mere technicalities is exceptionable and liable to be set aside. It was then contended that finding of learned Appellate Court on Issues Nos. 1 & 2 are not in consonance with the evidence on record, while learned trial Court has passed well reasoned judgment. Learned counsel has contended that learned Appellate Court has failed to consider that property is being used for offering the Eid Prayers, since 1965-66 and it has attained the status of `Wakf', impliedly and the Court has to safeguard it's object, which is being performed for Muslim community at large. Learned counsel has added that Anjuman-e-Islamia is running various charitable and welfare projects, likes schools, libraries, orphanage, and dispensaries. Management of the Eidgah is one of it's project. Learned Appellate Court discarded the claim of the petitioner without appreciating that purpose of filing the suit was to safeguard the property of trust from being wasted.
Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment. He has emphasized that land in dispute is Shamlat-e-Deh and the petitioner being owner of the village land, possessed the proprietary right in the land. Learned counsel has submitted that neither bye-laws nor the resolution of the Anjuman has been filed. The suit of the petitioner was not competent in view of the provisions of Sections 6 and 16 of Societies Registration Act of 1860 and the learned Appellate Court has rightly dismissed the suit. While referring to resolution dated 17.3.1992 (Ex. P/2), learned counsel has contended that it was proceedings of Anjuman, whereby Chaudhry Bashir Ahmad Cheema, Senior Vice President was appointed for interim period to perform duties of Acting President. No authority was given to the said Chaudhry Bashir Ahmad Cheema to file suit and initiate proceedings on behalf of the petitioner society. Learned counsel has then submitted that Abdul Hameed, had no link with the society and the society has no right to occupy the property of Abdul Hameed.
I have heard the learned counsel for the parties and perused the material available on the record.
Anjuman-e-lslamia is a body registered under Act XXI of 1860, with the objects to manage various religious and social bodies, which include central Mosque, Eidgah, Jamia Islamia, Dar-ul-Shafqat, Dar-ul-Ufta, religious library and a wing for eradication of T.B. etc. Property, subject matter of the suit, is Eidgah, which is being used as such since time immemorial. It is evident from Ex.P/1 that Eidgah, under the supervision of Abdul Hameed s/o Hamid Shah, was in existence during 1965-66. There is no evidence on record, to show whether this property was dedicated by it's owner to Anjuman-e-Islamia, nor any proof on record to show that how this property came under the management of Anjuman-e-Islamia. The respondents have not brought on record any evidence to the effect that the property in dispute forms part of Shamlat-e-Deh and the respondents are it's lawful claimants. There is no evidence qua the land holding of the respondents and other land owners of the village and their share in Shamilat. In the absence of necessary evidence or proof qua the land in dispute, it's nature can only be determined by it's use and purpose. The property held and utilized for a religious purpose, from time immemorial, has been treated as "Wakf by user". Para/Section 188 of Mohammadan Law by D.F Mulla can be referred, which is reproduced hereunder:--
"If land has been used from time immemorial for a religious purpose, e.g. for a Mosque or a burial ground or for maintenance of Mosque then the land is "by user Wakf", although there is no evidence of express dedication."
Privy Council in the case of Makhdum Hassan Buksh [48 Punj. Rec., 83 (1913)], has held that the land in suit, on facts was found as a part of graveyard, set apart for Mohammadan Community and that by user, if not by dedication, the land was Wakf. It was held in the case of "Miru and others vs. Ram Gopal" AIR 1935 Allahabad 891) that where the Court finds that a mosque or a temple has stood for a long time and worship has been performed in it by the public, it is open to the Court to infer that the building does not stand there merely by the leave and license of the owner of the site, but that the land itself is a dedicated property and the site is a consecrated land, and is no longer the private property of the original owner. It was observed in the case of "Munshi Abdur Rahim Khan and others Vs. Fakir Muhammad Shah and others" (AIR (33) 1946 Nagpur 401) that in order to determine that the property is a Wakf property when express dedication is not available, the decision can be based on the evidence, how public regarded such property.
From what has been discussed above, no room is left to depart from the notion that a property, though not dedicated expressly for charitable purpose can be treated as Wakf property, on the basis of it's use for immemorial period for that purpose. Applying the same principle to the land in dispute, it is a Wakf property, having been used as Eidgah for a song period. Ex.P/1 sufficiently proves the same and there is no evidence to the contrary.
Adverting to the question of non-compliance of the provisions of Section 6 of Societies Registration Act (Act XXI of 1860), which was made the basis for non-suiting of the petitioner. Learned Appellate Court while passing the impugned judgment has observed that the petitioner being a society registered, under the Societies Registration Act, 1860, is legal entity and under Section 6 of the Act (ibid) a suit on it's behalf is required to be filed by a person authorized by resolution of governing body. The resolution (Ex. P.2) filed with the plaint pertains to the appointment of Chaudhry Muhammad Bashir as Acting President. The same did not confer, through express authority, the power to any person to file suit and represent society. Learned Appellate Court noticed that list of members, copy of bye-laws of the society and articles of association have not been filed and concluded that suit was not competently filed. The conclusions drawn by the Court are not well founded.
Perusal of written statement reveals that objection regarding filing of a suit through unauthorized person was not raised either in the preliminary objection or in parawise reply on merit. DW.1 and DW.2 have not stated a single word in this respect. Competence of Khawaja Mehmood Anwar to represent the society was not questioned before the trial Court. Such objection was, therefore, not entertainable before the appellate Court. Learned appellate Court decided the objection without affording adequate opportunity to successful party (petitioner herein). Such order, in the identical circumstances, was set aside in the case of "A.P. Kuruwa Sangham Society Vs. Mirza Anayatullah Baig" (AIR 1982 Andhra Pardesh 130).
There is another aspect of the instant controversy. The land in dispute is place of worship, being used and dedicated as Eidgah, every Muslim in the community, who offers prayers or perform worship at such place, has the right to safeguard such property and is equally entitle to maintain an action or institute a suit. Section 344 of Anglo Mohammadan Law by Sir Ronald Knyvot Wilson (revised by A. Yousuf Ali) can be referred, which is re-produced hereunder:--
"Where a person interested in a public mosque, simply as an habitual worshipper, has a complaint to make which cannot be met by any of the modes of redress specified in S. 342 (S. 92 of the Civil Procedure Code 1908), whether or not it is provided for by S. 343 (Act XX of 1863, Ss. 14 and 18), he may sue the alleged wrong-doer in any Court of competent jurisdiction without reference to the requirements of either of those sections; and he can do so in his individual capacity without first obtaining leave, under Rule 8 of Order I of the first Schedule of the Civil Procedure Code, to represent all other persons similarly interested, and without giving notice to all such persons as required by that Rule, but in such a case, the decision will only be binding as between the actual parties, and not on the Mohammadan community in general."
Further, Allahabad High Court in the case of "Ram Chander and others vs. Khawaja Ali Muhammad and others" (35 All; 197 (1913), has laid down that every Mohammadan, who has a right to use a mosque for purpose of devotion, is entitled to exercise such right without hindrance and is competent to maintain a suit against anyone, who interferes with it's exercise. A similar view was taken in the case of "Jawahra vs. Ibrar Hussain" (7.A. 178; AWN (1884) 324).
It is clear from the above, that a place of worship like mosque or Eidgah if faced with the threat of illegal occupation or misuse, any member of the society, who offers prayer or perform religious rites at such place, can maintain suit. Having said so, I have no hesitation to hold that non-suiting the petitioner for want of resolution is legally not sustainable. Learned appellate Court has over looked the legal proposition that an objection with regard to filing of suit by an authorized person was not raised before learned trial Court and secondly, any Muslim is competent to sue to safeguard the property of mosque or Eidgah, in his individual capacity.
For what has been discussed above, it is established that the impugned judgment of the Appellate Court suffers from legal infirmity and calls for interference by this Court in the exercise of revisional jurisdiction. Resultantly, the instant revision petition is allowed, the impugned judgment of the Appellate Court dated 3.4.2002 is set aside and that of the learned trial Court dated 9.5.2000 is restored. There is no order as to the costs.
(Rao Farid-ul-Haque) Petition allowed.
PLJ 2007 Lahore 401
Present: Jawwad S. Khawaja, J.
MUHAMMAD JAMEEL and another--Petitioners
versus
MUHAMMAD SALEEM and others--respondents
C.R. No. 831 of 1998, heard on 27.3.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O.IX, Rr. 8 & 9--Declaratory suit--Dismissal of suit for non prosecution--Dismissal has attained finality because same has not been challenged or set-aside--Respondent/plaintiff filed another declaratory suit repeating prayer made in earlier suit--Decreed by trial Court--Assailed--In light of dismissal of earlier suit, present suit should also have ben dismissed--However, trial Court proceeded to frame issues on which parties led evidence--Issue relating to res-judicata was framed but was decided against petitioners/defendants on ground that earlier suit filed by respondent/plaintiff had not been finally adjudicated--Dismissal of earlier suit was made u/O IX R. 8 C.P.C. which showed that defendant was present--Provisions of O. IX, R. 9 CPC are attracted in case--As a consequence, respondent/plaintiff were precluded from filing a second suit on same cause of action, even if no adjudication on merits had been made in earlier suit--Allottee and thereafter present petitioners/ defendants as his successors consequence, respondent/plaintiff were precluded from filing a second suit on same cause of action, even if no adjudication on merits had been made in earlier suit--Allottee and thereafter present petitioners/defendants as his successors-in-interest are in continuous possession and beneficial enjoyment of disputed shop, together with roof on top of it--Such circumstance is conclusively established through proceedings initiated against petitioners--Certain construction had been carried out by allottee allegedly in violation of a restraining order--Petition was dismissed. [P. 403 & 404] A, B, C & D
Mr. S. M. Masud, Advocate for Petitioners.
Mr. Hassan Ahmed Khan Kanwar, Advocate for Respondent No. 1.
Muhammad Nawaz Bajwa, AAG for Respondent No. 2.
Date of hearing: 27.3.2996.
Judgment
The petitioners/defendants impugn the appellate judgment and decree dated 23.4.1998, whereby a declaratory suit filed by Muhammad Saleem respondent/plaintiff seeking permanent injunction by way of consequential relief has been decreed.
Although the record of this case is voluminous, the facts necessary for its disposal are simple. The property in dispute is comprised in Khasra No. 319. It is not disputed between the parties that the property was composite in nature comprising of a shop and a residential portion. Initially, the entire property was allotted by the Settlement Department to one Abdul Rahman vide order of the Deputy Settlement Commissioner dated 30.2.1959. Two persons, namely, Ghulam Muhammad and Kaka (from whom Muhammad Saleem respondent/plaintiff derives title) assailed the aforesaid order in appeal. The Additional Settlement and Rehabilitation Commissioner, vide order dated 18.4.1960, set aside the order dated 30.2.1959 and held that Abdul Rahman was not entitled to transfer of the residential portion, which is not in his possession.
Feeling aggrieved of the aforesaid order, Abdul Rahman filed a revision petition, which was dismissed by the Settlement and Rehabilitation Commissioner vide order dated 3.8.1960. The concluding paragraph of the said revisional order, being of relevance, is reproduced as under:
"The shop and the residential portion are quite separate and independent units. The transferee cannot justifiably claim the residential portion. I, therefore, agree with the findings of the Additional Settlement Commissioner and reject the revision."
This order attained finality because it was not further challenged by Abdul Rahman. According to learned counsel for the petitioners, Abdul Rahman continued to occupy the shop and also, at a subsequent date, raised construction on the roof of the shop. One Bashir Ahmad (predecessor of the respondent/plaintiff) filed a declaratory suit on 25.1.1981, in which he made a twofold claim. Firstly, he setup the plea that the shop transferred to Abdul Rahman measured 10' x 22' only. Secondly, it was his case that the roof of the shop, which included a chobara and a part of the residential portion, was transferred to Ghulam Muhammad and Kaka, mentioned above, and, therefore, Abdul Rahman had no right or title thereto. This is the crux of the dispute between the parties.
The petitioners claim title to the shop and its roof having purchased the same from Abdul Rahman. The respondent/plaintiff Muhammad Saleem, on the other hand, claims title, which originally came to vest in Ghulam Muhammad and Kaka and was thereafter asserted by Bashir Ahmad as their successor, in the declaratory suit, mentioned above, and then was acquired by the respondent/plaintiff through purchase. The suit filed by Bashir Ahmad was dismissed for non- prosecution on 21.2.1985, which dismissal has attained finality because the same has not been challenged or set aside.
The dismissal of the earlier suit filed by the predecessor-in-interest of the respondent/plaintiff should have ended the controversy between the parties. However, after acquiring title in the residential portion, the respondent/plaintiff filed another declaratory suit on 22.3.1994, out of which this revision petition has arisen. In the plaint, the respondent/plaintiff repeated the prayer made in the earlier suit by his predecessor Bashir Ahmad. In the light of the dismissal of the earlier suit, this suit should also have been dismissed. However, the learned trial Court proceeded to frame as many as ten issues on which the parties led evidence. Issue No. 5 relating to resjudicata was framed but was decided against the petitioners/defendants on the ground that the earlier suit filed by Bashir Ahmad had not been finally adjudicated. Before me, learned counsel for the petitioners contended, as noted above, that the earlier suit had been dismissed on 21.2.1985 and the said dismissal had attained finality. Learned counsel for the respondents did not controvert this submission. Secondly, on this issue, the learned trial Court had held that the present plaintiff "had not denied his right in the suit of Bashir Ahmad". I have not been able to understand the meaning or relevance of this observation. The dismissal of the earlier suit was made under Order 9, Rule 8 CPC, as is evident from the order of dismissal dated 21.2.1985, which shows that the defendant was present. In the circumstances, the provisions of Order 9, Rule 9 CPC are attracted in the case. As a consequence, Bashir Ahmad initially the respondent/plaintiff as his successor-in-interest were precluded from filing a second suit on the same cause of action, even if no adjudication on merits had been made in the earlier suit.
In addition to the above, it is clear from the record that Abdul Rahman as the allottee, and thereafter the present petitioners/defendants, as his successors-in-interest, are in continuous possession and beneficial enjoyment of the shop, together with the roof on top of it. This circumstance is conclusively established through proceedings, which were initiated by the above named Bashir Ahmad against the petitioners through Criminal Original No. 27-C of 1982, In the order dated 4.4.1982, in this petition, it has been noted that certain construction had been carried out by Abdul Rahman allegedly in violation of a restraining order. The criminal original petition was, however, dismissed on 28.3.1992. The two orders dated 4.4.1982 and 28.3.1992 have been duly brought on record as Ex.P-26 and Ex.P-28. From these orders, which were passed much before the filing of the present suit, read in the context of the allegations made in the petition, it is abundantly clear that Abdul Rahman was in possession and beneficial enjoyment of the disputed shop and its roof.
Here I may add that neither Bashir Ahmad in the earlier suit nor the respondent/plaintiff in the present suit have been able to prove their possession over any portion of the shop or the use of its roof. On the contrary, the grounds of appeal setup by Ghulam Muhammad and Kaka before the Additional Settlement Commissioner, whereby they had assailed the order of the Deputy Settlement Commissioner dated 30.2.1959, are instructive. They specifically pleaded that the entire property consisted of one shop and a house "quite independent of the shop". They also acknowledged that the shop was in possession of Abdul Rahman and attached a plan of the property alongwith their memo of appeal/The grounds of appeal have been brought on record as Ex. D-3, while the plan, submitted with it, is Ex.D-4. The other evidence also shows that the petitioners were in possession of the shop and its roof. These documents and evidence leave me in no manner of doubt that the residential portion, being distinct and separate, was in the occupation of Ghulam Muhammad and Kaka aforesaid, while the shop was in the exclusive occupation and use of Abdul Rahman.
Unfortunately, the learned Courts below have not taken note of the above aspects of the case, which, in my opinion, are conclusive for the purpose of determining the controversy between the parties. The controversy, it appears, arose because of an observation made in the order (Ex.P-6) dated 18.4.1960 passed by the Additional Settlement and Rehabilitation Commissioner. It was noted in the said order that "the property comprises of one shop with a residential portion on top and at the back of it"; This observation has been relied upon by the learned Courts below without examining the context and the subsequent portion of the aforesaid order (Ex.P-6). The finding of the Additional Settlement Commissioner is that Abdul Rahman was not entitled for transfer of the residential portion "which is not in his possession". The crucial question. therefore, was of possession. Even if the order (Ex.P-6) is taken to mean that the roof of the shop was part of the residential portion, it follows from the above order that this portion, even though forming part of the residential portion, was not transferred to Ghulam Muhammad and Kaka (predecessors of the respondent/plaintiff). Possession of the shop and construction on its roof by Abdul Rahman having been conclusively established for the reasons discussed above, it follows that the respondent/plaintiff, as successor-in-interest of Ghulam Muhammad and Kaka, could assert no claim over the roof of the shop.
In the above circumstances, the impugned decree is set aside and, as a consequence, the suit of the respondent/plaintiff is dismissed with costs throuhout.
(Anwar Saeed Sheikh) Suit dismissed.
PLJ 2007 Lahore 404
Present: Sh. Azmat Saeed, J.
MUSLIM COMMERCIAL BANK LIMITED--Applicant
versus
M/s. CHAUDHRY APPARELS LTD. and others--Respondents
Ex. A. No. 26-B of 1998 & C.M. 133-B of 2004, dismissed on 20.11.2006.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----Ss. 9(5), 15(7) & 19--Mortgaged property--Decree-holder bank sold property without intervention of Court--Seeking issuance of sale certificate pursuant to sale--Application of--Since the sale without intervention of Court was effected after passing of decree the matter fall squarely within purview of S. 19 of Ordinance--Question of transfer of title has also been further amplified in S. 19(3) of Ordinance--Held: In case of a sale of mortgaged property by a financial institution without intervention of Court, made of transfer of title would be through execution of a deed of conveyance by said financial institution and not by Court through a sale certificate--Petition dismissed.
[Pp. 405, 406 & 407] A, B & C
Mr. Amir Zahoor Chohan, Advocate for Applicant.
Date of hearing: 20.11.2006.
Order
This is an application by the alleged auction-purchaser seeking issuance of the sale certificate in her favour. It appears from the record that the property in question was mortgaged with the decree-holder Bank, Apparently, the decree-holder Bank without intervention of the Court sold the property in favour of the present petitioner on 23.4.2000. Whereafter CM No. 396-B/2001 was filed by the decree-holder Bank seeking approval thereof. Whereupon the notice was issued to the present petitioner. The accounts were filed by the decree-holder Bank, whereafter, vide order dated 18.6.2002, the said accounts were approved and vide order of the same date i.e. 18.6.2002, the execution application was disposed of and consigned to the record. Now the present application has been filed seeking issuance of the sale certificate pursuant to the sale made by the decree-holder Bank without intervention of the Court.
In the instant case a decree was passed in favour of the financial institution upon a suit filed by it against the judgment-debtor in respect of a claim, which had inter alia been secured by mortgage of immovable property. After the passing of the decree the decree-holder Bank claimed to have sold the property without the intervention of the Court. Thereafter in accordance with the provisions of Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, it filed and made available the account of such sale which accounts were confirmed and the execution petition which had been pending before this Court was consigned to the record.
In the case in hand, it is clear and obvious that the sale was not effected by this Court but by the decree-holder Bank itself. Since the sale without intervention of the Court was effected after the passing of the decree the matter fall squarely within the purview of Section 19 of the Ordinance ibid. Sub-section (5) of the Section 9 provides that inter alia sub-section (7) of Section 15 of the Ordinance 2001 shall apply to the sale of the mortgaged property without intervention of the Court. Section 15 of Financial Institutions (Recovery of Finances) Ordinance, 2001, pertains to the sale of the mortgaged property by a financial institution without intervention of the Court where no decree has been passed. Sub-section (7) of Section 15 reads as follows:--
"15(7) For purposes of execution and registration of the sale-deed in respect of the mortgaged property, a financial institution shall be deemed to be the duly authorized attorney of the mortgagor and a sale-deed executed and presented for registration by duly authorized attorneys of the financial institution shall be accepted for such purposes by the Registrar and Sub-Registrar under the Registration Act, 1908 (XVI of 1908)".
"19(3) ............................ The decree passed by a Banking Court shall constitute and confer sufficient power and authority for the financial institution to sell or cause the sale of the mortgaged, pledged or hypothecated property together with transfer of marketable title and no further order of the Banking Court shall be required for this purpose".
"..................The position in the instant case, however, is that neither the execution and registration of the sale-deed had yet taken place nor the transaction was complete or its accounts were submitted before the Court when the petitioner and Respondent No. 2 approached Respondent No. 1 for necessary certification and transfer. It was in this context and circumstances that the Authority was justified to call upon the petitioner to complete legal formalities. In such a context, it cannot be held that authority acted illegally."
An over view of the statutory provisions reproduced above and the aforequoted judgments make it clear and obvious that in case of a sale of mortgaged property by a financial institution without intervention of the Court, the mode of transfer of title would be through the execution of a deed of conveyance by the said financial institution and not by the Court through a sale certificate. Consequently, this petition is misconceived and is hereby dismissed.
(Amwar Saeed Sheikh) Petition dismissed.
PLJ 2007 Lahore 407
Present: Muhammad Akhtar Shabbir, J.
SYED ANSAR ZAIDI--Petitioner
versus
CHIEF SETTLEMENT--respondent
Writ Petition No. 129/R of 1998, heard on 15.2.2006.
(i) Auction--
----Sale price was deposited after expiry of period of 23/24 years--Prove--Validity--Highest bidder has to deposit 1/4th of the sale price at the spot or immediately after the approval of auction and remaining price was to be paid within 35 days and in case it was not paid within due time the auction was liable to be rejected--Sale price was deposited by allottees after expiry of period of 23/24 years--No application had been filed before competent authority for permission to deposit sale price nor it was established that which authority had allotted auction purchaser to deposit sale price--Held: No publication schedule for auction of the property had been produced nor it was available in the office. [P. 410] B
(ii) Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Identical common question of fact and law--Fictitious and forged bid sheet--Factual controversy--Auction price had been deposited after 24 years without any order of competent authority--Question of--Inquiry was conducted by settlement authority--Legality--Respondent "F" who was a claimant displaced person got his claim verified to extent of units--Land in-question was sold to petitioners--Member (Settlement and Rehabilitation) Board of Revenue issued a letter to Deputy Commissioner, wherein, allotments of respondent "F" were declared as invalid and void ab initio on the ground that they had obtained same fraudulently--Petitioners who purchased land from respondent filed separate writ petitions before High Court which were set aside the order of Settlement Commissioner, declaring it to be without lawful authority and of no legal effect and remanded all the matters to Board of Revenue for entrustment to notified officer to ascertain correct position--Held: No Settlement Officer could assume jurisdiction in settlement matters which were not pending in 1974--High Court in exercise of writ jurisdiction is not bound to interefere in all circumstances even if order of Chief Settlement Commissioner was not lawful--Further held: Factual controversy was also involved in the matter and High Court in exercise of its Constitutional jurisdiction was not competent to interfere in such findings on question of fact--High Court cannot examine the evidence or record in exercise of Constitutional jurisdiction.
[Pp. 410 & 411] C, D, F & G
PLD 1973 SCMR 618; 1989 SCMR 918, PLD 1991 SC 476 &
PLD 1973 SC 236.
(iii) Constitution of Pakistan, 1973--
----Art. 199--Nature of certiorari or mandamus writ petition--Discretionary power of Court--Object--Illegality--Person can be permitted to invoke such discretionary power of Court, it must be shown that the order sought to be set aside had occasioned injustice to the parties--If it did not work any injustice to any party, rather it causes a manifest illegality, then extra-ordinary jurisdiction ought not to be allowed to be involved. [P. ] E
(iv) Jurisdiction--
----Court of appeal--High Court in exercise of its Constitutional jurisdiction could not sit as Court of appeal against the decisions rendered by Special appeal against the decisions rendered by Special Tribunal. [P. 410] A
PLD 1974 SC 139, PLD 1976 SC 435, rel.
Mr. Hamid Ali Mirza, Advocate for Petitioners.
Ch. Mushtaq Masood, Advocate for respondents.
Mr. Falak Sher Malik, Advocate for Applicant.
Date of hearing: 15.2.2006.
Judgment
This judgment will dispose of Writ Petitions No. 129 and 130-R-1998, as identical common question of fact and law is involved therein.
Facts giving rise to the present writ petitions are to the effect that one Waryam son of Noor Muhammad and Muhammad Ismail etc. have submitted an application to MBR with power of Chief Settlement Commissioner Punjab, Lahore that in 1968 Ansar Raza, who was then posted as Settlement Inspector in Jhang had prepared a fictitious and forged bid sheet regarding Plot No. 80-B and 161-A, situated in Block No. 9 Jhang Sadar in favour of his mother namely Mst. Razia Begum who, died in 1970 and Akbar Raza his brother an employee of D.C. office Jhang, respectively.
The auction money in respect of the case of Mst. Razia Begum had been deposited in the year 1989 and Transfer Order was issued in the year 1990 in her favour who died about 20 years back. In fact, no auction had been conducted nor any notice was issued to Waryam and Ismail who were the occupant of said plot. The applicants have alleged that auction price had been deposited after 24 years without any order of competent authority in connivance with the staff and in the end the applicants have prayed that inquiry may be conducted regarding fraud and forgery. Same is the case in other matter; the amount had been deposited in 1991. The Transfer Order was issued on 27.12.1992.
A preliminary report was submitted by the Predecessor of MBR and the respondent after hearing the parties and examining the relevant record passed separate impugned order dated 23.7.1997 with the observation that all the proceedings i.e. preparation of bid sheets by Ansar Raza/Settlement Inspector in favour of his mother Mst. Razia Begum and his brother Akbar Raza and issuance of Transfer Order in respect of Plot No. 80/B and 161/A, situated in Block No. IX Jhang Sadar, were the result of fraud and fabrication.
Waryam and one Ismail as well as Mst. Rani LRs of Allah Ditta deceased have filed a separate application (CM No. 3/1998) in both the writ petitions for their impleadment as respondents. The proceedings were initiated and inquiry was conducted on their applications by the Settlement authorities/Board of Revenue, therefore, they being necessary parties are impleaded as respondents.
Learned counsel for the petitioners contended that Mst. Razia Begum and Akbar Raza were the highest bidder and auction was confirmed in their favour. He further argued that Mst. Razia Begum had made a deed of partnership and produced their compensation book for adjustment of the price from that book. Further added that the book was mis-placed by the settlement staff of District Jhang; that allottees had deposited remaining auction price through Bank challan and with the permission of competent authority; that the relevant record supporting the version of the petitioners had been destroyed or mis-placed with the connivance of the occupants of the plot; that Respondent No. 1 was not competent to declare the auction of the plot on the basis of fraud and fabrication and after repeal of evacuee laws.
On the other hand, learned counsel for the settlement department as well as for occupants have vehemently opposed the arguments addressed by the learned counsel for the petitioners contending that no such auction had ever been conducted by the settlement authorities; that the whole proceedings of alleged, auction were fake and the documents for the same have been filed in the office with the connivance of settlement staff; that the MBR was fully competent to declare the allotment of the property as fraudulent. Lastly argued that factual controversy is involved in the matter and this Court is always reluctant to interfere with such findings of fact passed by a Special Tribunal.
I have heard the learned counsel for the parties and perused the record.
As asserted by the learned counsel for the petitioners that Mst. Razia Begum had Joined Mst. Fatima Begum etc. who had the compensation Book which was deposited in the office for adjustment of the sale price. This book was not found available in the office. As per terms and conditions of the alleged auction, the highest bidder has to deposit 1/4th of the sale price at the spot or immediately after the approval of the auction and remaining price was to be paid within 35 days and in case it is not paid within due time the auction was liable to be rejected. The sale price was deposited by the alleged allottees/petitioners after the expiry of period of 23/24 years. No application had been filed before the competent authority for permission to deposit the sale price nor it is established that which authority had allotted the auction purchaser to deposit the sale price. There is no record in the office to substantiate or prove the case of the petitioners that any auction with regard to said plots was ever conducted. Further, no publication/schedule for auction of the property had been produced nor it was available in the office. It is unbelievable that only the mother and brother of Ansar Raza have participated in the auction and nobody from the area was interested in purchasing the said plots. As per bid sheet only Mst. Razia had participated for her plot and for the auction of plot 161-A two persons namely, Akbar Raza and Muhammad Hassan offered the bids, Mst. Razia Begum and Akbar Raza were real mother and brother of Ansar Raza Settlement Inspector of the Department. It has been observed by the respondents that all the entries were made by the said persons and these were not genuine entries and based on fraud and forgery.
Learned counsel for the petitioners has vehemently stressed that question of fraud and forgery cannot be gone into by the respondents after the repeal of evacuee laws. This question had already been dealt with exhaustively by the Hon'ble Supreme Court of Pakistan in Muhammad Baran's case reported as (PLD 1991 SC 691). The facts of this case were that one Fayyazuddin (respondent No 4 herein) who was a claimant displaced person, got his claim verified to the extent of 7753 PIUs in 1973. Against this verified claim he was allotted land to the extent of 7700 Units in Mauza Charar, Tehsil and District Lahore. He then sold the said land to the present petitioners. Subsequently, on 3.7.1977 Member Settlement and Rehabilitation) Board of Revenue Lahore issued a letter to the Deputy Commissioner Lahore, wherein, allotments of Fayyazuddin (Respondent
No. 4) and some others, made in different villages, were declared as invalid and void ab initio on the ground that they had obtained the same fraudulently. The petitioners who purchased land from Fayyazuddin, filed separate writ petitions before the High Court which were decided by a Division Bench of the High Court, and vide its judgment dated 18.12.1982 set aside the order of the Settlement Commissioner dated 3.7.1977, declaring it to be without lawful authority and of no legal effect and remanded all the matters to MBR for entrustment to the notified officer to ascertain the correct position. The petitioners sought leave to appeal against the judgment of this Court contending therein that after the repeal of evacuee laws w.e.f 1.7.1974 no Settlement officer or "Notified officer" could assume jurisdiction, in settlement matters which were not pending in 1974. "It was held that High Court in exercise of writ jurisdiction is not bound to interfere in all circumstances even if the order of the Chief Settlement Commissioner was not lawful." To the same effect in an earlier ruling of this Court in the well known case of Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others (PLD 1973 SC 236) in somewhat more strong phraseology, this Court had held that "an order in the nature of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it causes a manifest illegality, then the extra-ordinary jurisdiction ought not to be allowed to be invoked. Hon'ble Judges of the Apex Court have observed as under:--
"Where, therefore, the High Court in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons wore illegal and without jurisdiction, it was held that it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the latter was clearly without jurisdiction." Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the latter "was clearly without jurisdiction".
The other aspect of the case is that a Special Tribunal having the record under control had passed the impugned order after scrutiny and examination of record and the High Court in exercise of its constitutional jurisdiction could not sit as Court of appeal against the decisions rendered by the Special Tribunals as laid down in cases of Muhammad Hussain Munir vs. Sikandar (PLD 1974 SC 139) and Sub. Muhammad Asghar vs. Mst. Safia Begum (PLD 1976 SC 435).
Furthermore, the factual controversy is also involved in the matter and this Court in exercise of its constitutional jurisdiction is not competent to interefere in such like findings on question of fact. The High Court cannot examine or re-evaluate the evidence or record in exercise of its constitutional jurisdiction as laid down in the cases of Muhammad Yunus Khan vs. Government of NWFP through Secretary and others (1993 SCMR 618), Benedict F.D Souza vs. Karachi Building Control Authority (1989 SCMR 918) and Federation of Pakistan vs. Major (Rtd.) Muhammad Sabir Khan) PLD 1991 SC 476).
For the foregoing reasons, I see no force in this writ petition which is dismissed.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2007 Lahore 412 (DB)
Present: M. Bilal Khan and Tariq Shamim, JJ.
MUHAMMAD AKHTAR--Appellant
versus
STATE and 4 others--Respondents
I.C.A. No. 104 of 1997 in W.P. No. 22817 of 1997, heard on 6.11.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860) S. 302--Criminal Procedure Code, (V of 1898) S. 544-A--Conviction and sentence--Appeal against--Conviction was converted from S. 302(b) PPC to S. 316 PPC with further direction to pay Diyat--Appellant/Petitioner be released from custody after completion of term of his sentence and respondents therein (Chairman Provincial and Chairman Central Baitul Mal) be directed to pay diyat to legal heirs of deceased keeping in view his financial position--Held: No writ lies against High Court--Amount of diyat was awarded by High Court, therefore, writ petition was not competent against High Court--Appeal dismissed. [Pp. 413 & 414] A & B
PLD 1966 SC 1, rel.
(ii) Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3(2)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Dismissal of--Assailed--Maintainability--ICA is not maintainable as in Constitutional petition, order of High Court had been challenged, which was an appellate order passed in appeal against conviction and sentence of appellant in a criminal trial--As such ICA is barred under proviso to S. 3(2) of Law Reforms Ordinance, 1972. [P. 414] C
Mr. Nazeer Ahmed Ghazi, Advocate for Appellant.
Mr. Faisal Ali Qazi, A.A.G. for State.
Date of hearing: 6.11.2006.
Judgment
Through this Intra-Court Appeal, the appellant has called in question the order, dated 10.10.1997, whereby appellant's Writ Petition No. 22817 of 1997 had been dismissed by a learned Single Judge in Chambers.
Precisely the facts giving rise to this appeal were that the appellant was tried by the learned Sessions Judge, Gujranwala for the murder of Muhammad Yousaf and was awarded punishment of imprisonment for life as Ta'zir under Section 302(b) P.P.C. with further direction to pay a sum of Rs. 30,000/- to the legal heirs of the deceased by way of compensation as envisaged under Section 544-A Cr.P.C. or in default of payment thereof to further undergo simple imprisonment for five months vide judgment dated 26.4.1993; benefit of Section 382-B Cr.P.C. had also been extended to him; his appeal bearing Criminal Appeal No.394 of 1993 had been disposed of by a learned Single Bench of this Court vide judgment dated 6.5.1996 with the modification in the sentence, which had been converted into rigorous imprisonment for ten years as Ta'zir under Section. 316 P.P.C. with further direction to pay Diyat of Rs. 1,89,906/-, thereafter he had approached this Court by filing Writ Petition No. 22817 of 1997 praying therein that he be released from custody after completion of the term of his sentence and Respondents No. 3 and 4 therein (Chairman, Provincial Baitul Mal, Lahore and Chairman, Central Baitul Mal, Islamabad) be directed to pay `diyat' to the legal heirs of the deceased keeping in view his financial position; the learned Single Judge in Chambers vide the impugned order dated 10.10.1997 proceeded to dismiss the said writ petition. It was this order, which had been challenged by the appellant through the instant appeal.
We have heard the learned counsel for the appellant as also the learned Law Officer appearing on behalf of the State. This I.C.A, is liable to be dismissed at least on two grounds. Firstly, it is absolutely clear that no writ lies against the High Court. It would be advantageous to reproduce the prayer, made in Writ Petition No. 22817 of 1998, which has given rise to the instant I.C.A.:--
"Under the above circumstances, it is respectfully prayed that the imposition of amount of `diyat' being not commensurate with the financial position of the petitioner and his confinement in jail till the realization of the above amount are without lawful authority and it may be directed that the petitioner may be released on completion of his sentence of ten years RI.
In the alternative, it is further prayed that the Respondents No. 2 and 3 may kindly be directed to pay `diyat' amount to the legal heirs of the deceased and the petitioner may be released.
It is further prayed that the Respondent Nos. 4 and 5 may be directed to verify the financial position of the petitioner and also submit the report in this Honourable Court.
Any other relief which this Honourable Court deems proper in the circumstances of the case may also be granted to the petitioner."
It is an admitted position that the appellant had been convicted under Section 302 (b) P.P.C. and was sentenced to undergo imprisonment for life as Ta'zir with further direction to pay Rs. 30,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C, as compensation or in default to payment thereof to further undergo simple imprisonment for five months. The appellant filed an appeal and this Court held that the offence committed by the appellant fall under the category of `Qatl-i-Shibh-i-Amd' as defined in Section 315 P.P.C. punishable under Section 316 P.P.C. therefore, conviction under Section 302(b) P.P.C, and sentence of imprisonment for life as Ta'zir awarded to the appellant was not sustainable. Resultantly, the conviction of the appellant was converted from Section 302(b) P.P.C. to Section 316 P.P.C, and he was sentenced to rigorous imprisonment for ten years as Ta'zir with further direction to pay Diyat as fixed by the Federal Government i.e. Rs. 1,89,906/-. It is thus clear that the amount of Diyat was awarded by this Court, therefore, writ petition was not competent against the High Court. The learned Single Judge in Chambers had rightly relied on the case of Mian Jamal Shah v. Member Election Commission Government of Pakistan and others (PLD 1966 SC 1).
Secondly, this I.C.A. is not maintainable as in the constitutional petition, the order of the High Court had been challenged, which was an appellate order passed in appeal against conviction and sentence of the appellant in a criminal trial. As such I.C.A. is barred under the proviso to Section 3 (2) of the Law Reforms Ordinance, 1972.
Resultantly, this I.C.A. being not maintainable is hereby dismissed.
(Anwar Saeed Sheikh) I.C.A. dismissed.
PLJ 2007 Lahore 415 (DB)
Present: Mian Hamid Farooq & Syed Shaki Hussain Bukhari, JJ.
Mrs. NAGHMA ARSHAD TOOR, WIDOW and 2 others--Appellants
versus
HABIB BANK LTD, CITY BRANCH, SIALKOT & another--Respondents
R.F.A. No. 691 of 2002, heard on 19.9.2006.
(i) Financial Institutions (Recovery of Finances) Ordinance, 2001--
----S. 22--Suit for recovery--Decreed against (principal debtor)--Guarantor/mortgagor (predecessor in interest of appellants) was already dead and first financial facility granted to respondent, for which he stood as guarantor/mortgagor, had already been adjusted--Mortgage created earlier could not be taken as security for repayment of second financial facility granted to principal debtor after death of mortgagor--Respondent bank could not invoke earlier bank guarantee, as same lose its efficacy after adjustment of first financial facility--At time of granting of second facility--Guarantor/mortgagor had already died and no liabilities could be created upon a dead person--With adjustment of first financial facility and execution of latest documents including agreement for finance of second financial facility by principal debtor, said guarantee and mortgage had lost their utility--When principal debtor executed fresh documents at back of surety and without his consent, latest agreement does not bind surety or his legal heirs, as they are not signatory to those documents--Impugned judgment and decree suffers from legal errors, therefore, set side--Appeal allowed. [Pp. 417 & 418] A, B & D
(ii) Contract Act, 1872 (IX of 1872)--
----S. 133--Discharge of surety by variance in terms of contract--With execution of latest documents, including agreement for finance of second financial facility by principal debtor, original agreement for first financial facility for which predecessor in interest of appellants executed guarantee and created mortgage, stood varied without consent of surety, therefore, surety stood discharged per force of S. 133 of Contract Act. [P. 418] C
PLD 1984 Karachi 211, 2003 CLD 637 and 2002 CLD 643, rel.
Mr. Ali Akbar Qureshi, Advocate for Appellants.
Mr. Tahseen Ullah Butt, Advocate for Respondent No. 1.
Date of hearing: 19.9.2006.
Judgment
Mian Hamid Farooq, J.--Appellants, through the present appeal, under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, have called in question judgment and decree dated 16.7.2002, whereby the learned Judge Banking Court passed a decree for recovery of Rs. 2,79,414/- with costs and costs of funds, against the appellants.
Briefly stated facts of the case are that the respondent bank filed the suit for recovery of Rs. 2,79,414/-, before the learned Judge Banking Court, against Respondent No. 2 and the appellants, as legal heirs of Arshad Ali Toor. In the said suit, Respondent No. 2 was impleaded as principal debtor, while Arshad Ali Toor (the predecessor in interest of the appellants) was arrayed as mortgagor and guarantor, as it was stated in the plaint that Arshad Ali Toor mortgaged his property and also executed letter of guarantee. Upon the presentation of the plaint, the learned Judge Banking Court issued summons to the defendants, as provided under the law, and pursuant thereto only the appellants filed the application seeking leave to defend the suit. No such like application was filed on behalf of Respondent No. 2, therefore, the suit was decreed against the said respondent on 9.2.2002. The appellants in their leave application, besides raising preliminary objections, pleaded that memorandum of deposit of title deed, dated 22.11.2000, is a forged document, however, it was alternatively submitted that memorandum of deposit of title deed was allegedly executed on 22.11.2000 for the facility, which was discharged on 30.11.2000, and Arshad Ali Toor died on 29.1.2001, therefore, the said memorandum of deposit of title deed stood terminated and no fresh loan could be allowed on the strength of the alleged document. The learned Judge Banking Court, after finding that the appellants failed to raise any bona fide and serious dispute, dismissed their leave application and consequently passed a decree for recovery of Rs. 2,79,414/- with costs and costs of funds, vide impugned judgment and decree dated 16.7.2002, hence the present appeal.
Learned counsel for the appellants has contended that even if it be taken that Arshad Ali Toor (the predecessor in interest of the appellants) executed letter of guarantee and memorandum of deposit of title deed, both dated 22.11.2000, since the original facility was adjusted, therefore, both the documents stood terminated and lost their efficacy and Arshad Ali Toor was discharged from the liability. He has submitted that subsequent to the adjustment of the first loan facility neither Arshad Ali Toor nor the appellants executed any document to secure the second finance facility, which was allegedly availed by Respondent No. 2 on 3.3.2001. Learned counsel has further submitted that in view of sanctioning of new finance facility, to which Arshad Ali Toor was not party, he stood discharged from the guarantee per force of Section 133 of the Contract Act. Learned counsel for the respondent bank, while referring to clause 9 of the letter of guarantee dated 22.11.2000, has submitted that continuing guarantee was executed by Arshad Ali Toor and it was binding on the legal heirs, therefore, his guarantee was not discharged. He has added that second finance facility was allowed on 3.3.2001, whereas Appellant No. 1 informed the bank about the death of Arshad Ali Toor, when the second facility had already been sanctioned.
Respondent No. 2 was proceeded exparte by this Court, vide order dated 27.7.2006.
We have heard the learned counsel and examined the available record. The Financial facility upto maximum limit of Rs. 5,00,000/- was sanctioned by the respondent bank in favour of Respondent No. 2 and agreement of financing was executed interse the respondents. Aforesaid Arshad Ali Toor executed memorandum of deposit of title deed dated 22.11.2000, thereby creating mortgage favouring respondent bank qua the house/shop. Additionally, he also executed personal guarantee dated 22.11.2000. In-depth examination of the statement of accounts, produced by the respondent bank before the Banking Court (which is available at Page 105 of the record) shows that although the respondent bank sanctioned a sum of Rs. 5,00,000/-, favouring Respondent No. 2, yet, on 24.11.2000, only a sum of Rs. 1,57,028/- was debited in the account of Respondent No. 2, thereafter no further disbursement was made in this account, the said amount of Rs. 1,57,028/- was realized on 30.12.2000 and was credited in the account of Respondent No. 2 leaving the balance as nil. Statement of accounts further shows that on 3.3.2001, a sum of Rs. 3,00,000/- was debited in the account of Respondent No. 2, although no sanction letter of this amount has been placed on record. It appears that the respondent bank provided another financial facility of Rs. 3,00,000/- and Respondent No. 2 executed fresh documents on 3.3.2001, inasmuch as fresh agreement for financing of the even date was executed. Although we find on record facility letter, promissory note, agreement of discount/purchase, personal guarantee and agreement for finance, all dated 3.3.2001, executed by Respondent No. 2, yet even according to the own showings of the respondent bank no fresh documents were executed by Arshad Ali Toor in order to secure the second financial facility of Rs. 3,00,000/-. It may be noted that there is no denial of the fact that Arshad Ali Toor died on 29.1.2001. It flows from the above narration that when fresh facility of Rs. 3,00,000/- was granted, on 3.3.2001, Arshad Ali Toor was already dead and the earlier facility of Rs. 1,57,028/- granted to Respondent No. 2, for which Arshad Ali Toor stood as guarantor/mortgagor, had already been adjusted. The mortgage allegedly created on 22.11.2000, could not be taken as security for the repayment of the second financial facility granted to the principal debtor after the death of mortgagor. Similarly, the respondent bank could not invoke, the bank guarantee dated 22.11.2000, as the same lost its efficacy after the adjustment of the first financial facility. Learned counsel for the respondent Bank has laid much emphasis that although Arshad Ali Toor died on 29.1.2001 and fresh facility was granted on 3.3.2001, yet as the respondent bank was informed after the grant of second financial facility, therefore, the bank can utilize the guarantee dated 22.11.2000. The said contention on the face of it is devoid of any force. Admittedly, at the time of granting of second facility, Arshad Ali Toor had already died and no liabilities could be created upon a dead person.
As noted above, with the execution of latest documents, including the agreement for finance dated 3.12.2001 for a sum of Rs. 3,00,000/- by the principal debtor, the original agreement dated 22.11.2000, for which Arshad Ali Toor executed the guarantee and created mortgage, stood varied without the consent of the surety, therefore, the surety stood discharged per force of Section 133 of the Contract Act. Reliance can be placed on the judgments reported as Dr. M.A. Qadir Khan Vs. The Bank of Bahawalpur Ltd. and another (PLD 1984 Karachi 211), National Development Leasing Corporation Limited Vs. Messrs National Fibres Limited and others (2003 CLD 637) and N.D Leasing Corporation Vs. National Fibers Ltd. (2002 CLD 643). Additionally, as noted above Arshad Ali Toor was dead at the time of granting of second financial facility of Rs. 3,00,000/-.
As regards reliance of the learned counsel on clause 9 of the guarantee, the same is devoid of any force, as with the adjustment of financial facility of Rs. 1,57,028/- on 30.12.2000 and execution of latest documents by the principal debtor the said guarantee and mortgage had lost their utility. When the principal debtor executed fresh documents at the back of the surety and without his consent, latest agreement does not bind the surety or his legal heirs, as they are not signatory to those documents.
We have examined the impugned judgment and find that the learned Judge Banking Court, while decreeing the suit, against the appellants, failed to consider the important aspect of the case and, thus, the impugned judgment suffers from legal errors. We are inclined to set it aside.
In view of the above, the present appeal is allowed and the impugned judgment and decree dated 16.7.2002, against the appellants, is set aside. Resultantly, suit of the respondent bank stands dismissed, as against the appellants. No order as to costs.
(Anwar Saeed Sheikh) Appeal allowed.
PLJ 2007 Lahore 419
Present: Iftikhar Hussain Chaudhry, C.J.
RASHEEDAN BIBI--Applicant
versus
KHALID MASIH--Respondent
T.A. 396/C of 2006, decided on 9.2.2007.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 25--Transfer of guardian petition on the ground of female--Question of custody of minor--Validity--Guardian judge had jurisdiction to decide the question with regard to custody of minors--Orders were not challenged further by petitioner and they have attained finality--Transfer application would tantamount to setting aside lawful orders passed by Court of competent jurisdiction which of course could not be done in proceedings--Application dismissed. [P. 419] A
Mr. Akbar Munawar Durrani, Advocate for Applicant.
Rana Abdul Shakoor Khan, Advocate for Respondent.
Date of hearing : 9.2.2007.
Order
Application was submitted for transfer of guardian petition titled "Khalid Masih vs. Inayat Masih and others" from the Court of Mr. Hasnain Azhar Shah, Guardian Judge, Chunian, District Kasur, to a Guardian Court at Lahore, on the ground that petitioner was a female and could not pursue the matter at Chunian, District Kasur.
Learned counsel for the respondent has placed on record copies of orders dated 18.11.2006 and 15.2.2006 whereby the Guardian Judge decided that minors resided in Chunian and that the Guardian Judge, Chunian, District Kasur had the jurisdiction to decide the question with regard to custody of minors. The afore-mentioned orders were not challenged further by the petitioner and they have attained finality. Allowing of Transfer Application would tantamount to setting aside lawful orders passed by a Court of competent jurisdiction, which, of course, cannot be done in these proceedings.
The application is dismissed.
(Rafaqat Ali Sohal) Application dismissed.
PLJ 2007 Lahore 420
Present: Muhammad Muzammal Khan, J.
GHULAM AHMAD--Petitioner
versus
TARIQ HUSSAIN and 7 others--Respondents
C.R. No. 1808 of 2000, decided on 3.11.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Fresh adjudication--Suit for declaration--Reversing order of trial Court--Earlier round of litigation--Question of maintainability--Validity--Corum non judice--In presence of judgment by Supreme Court inter parties, on same subject, how trial Court attempted to reopen matter by granting decree in favour of petitioner--Complained act of trial Court was not only corm non judice but was also undertaken without any legal sanction behind and was taken, being oblivious of fact that judgment inter parties by Apex Court could not have been deviated in any circumstances--Held: Lis had rightly brought things to their required position by setting aside an unfair judgment, without committing any error of law/facts--Petition was dismissed. [P. 422] A
Ch. Pervaiz Iqbal Gondal, Advocate for Petitioner.
Ch. Muhammad Nasrullah Warriach, Advocate for Respondents No. 1 to 4.
Date of hearing : 3.11.2006.
Order
Instant civil revision assailed the judgment/decrees dated 10.6.2006 passed by the learned Additional District Judge, whereby he accepted the appeal filed by the respondents and dismissed petitioner's suit for declaration by reversing the judgment/decree of the trial Court.
Succinctly, relevant facts are that Ghaulm Muhammad petitioner filed a suit for declaration to the effect that an evacuee Shops No. 9/209-A-B with Chaubara, Galla Mandi Lala Musa was owned possessed by him, along with predecessor-in-interest of the respondents. According to him, Imam Din claimed that PTD of the entire shop was issued in his name but he had no such right, as petitioner was owner in the suit property to the extent of 1/2 share.
Respondents No. 5, 6, 8 and 9 contested the suit being defendants, with the pleas that the same was barred by limitation; matter stood decided through judgment by the Apex Court dated 19.12.1991 in C.A. 282 of 1981; suit property was declared to be consist of 2 units i.e. 9/209-A, 9/209-B and the earlier part of the property was decided to be in the ownership of Imam Din whereas the later was held in the ownership of Mian Muhammad. These respondents further pleaded that one of the owners namely Mian Muhammad filed a review petition before the Honourable Supreme Court of Pakistan, claiming ownership over the entire property but the same was declined. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge seized of the matter, after doing the needful, out of his appraisal of evidence/facts, decreed petitioner's suit vide judgment/decree-dated 12.5.1999.
Contesting respondents were namely Tariq Ameen etc. were not satisfied with the decision of the trial Court and consequently, filed an appeal before the learned Additional District Judge, Gujrat where they succeeded, as their appeal was accepted on 10.6.2000 and petitioner's suit was dismissed, as noted above. Petitioner, thereafter, filed instant revision petition, which was admitted to regular hearing and after completion of record, has now been placed for final determination. respondents in response to notice by this Court appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, in the earlier round of litigation, on settlement side petitioner's claim of being owner in the suit property to the extent of 1/2 share was considered by the Apex Court of this country, after dismissal of L.P.A. No. 1341 of 1966 by this Court. The Honourable Supreme Court graciously decided Civil Appeal No. 1282 of 1991 on 19.12.1991 through erstwhile judgment (Ex. D.3) and Paragraphs No. 9 to 12 of the judgment by the Honourable Supreme Court are most relevant for decision of instant case which are reproduced for convenience/ready reference and read as under:--
"9. As per the new and fresh material allegedly brought before the notice of the reviewing Judge which necessitated the review was: "It is urged that the premises in question included both parts of Shop No. 9/209 and that the Municipal Committee. Lallamusa on 27th April, 1961, have served a notice on the petitioner threatening to cancel his licence, among others, on the ground that he did not maintain a separate Store." Both the points, on the face of the record are not all fresh or new material of which the respondents after the exercise of due diligence did not know or could not produce. Had both the shops been in his possession, for which there is not an iota of evidence, the respondents would have got the suit shop deleted from the auction list, would have got the suit shop deleted from the auction list, would have challenged the very auction and would have questioned the issue of PTC and PTD in favour of the appellant. This he did not do at all. In fact he claimed the suit shop as a flour mill much after the issue of PTD in the name of the appellant. All the settlement authorities after properly examining the material held that Shop No. 9/209-B to be a separate and independent. Therefore, under the circumstances no material existed for the reviewing Judge to hold that the disputed shop was part and parcel of Shop No. 9/209-A. Similarly, the question that the Municipal Committee, has refused to renew the licence for running a mill in favour of the respondent because he did not have a store is not a fresh material either. This point was taken up by the respondent in para 13 (d) of his writ petition and notice dated 27.4.1961 was issued to him during the pendency of his writ petition which was ultimately dismissed on 17.12.1962. This would indicate that he fully knew about the non-renewal of the license but he did not press it at the time of hearing of his petition. Even at the time of preliminary hearing of the review petition this point was not urged before the review Judge and was only taken when regular hearing of the review petition was held. In the light of the above it cannot hardly be said that the refusal to renew the license was afresh and new material necessitating the review of the case.
As for the order of the learned L.P.A. Bench it may be said with regret that the learned Judges did not at all apply their mind and dismissed the appeal filed by the appellant in a slip shod manner, which, under the circumstances, cannot be sustained.
The respondents have sought the transfer of both the shops as an industrial concern on the strength of Para 4 of Memorandum No. 2177-E & M-Reh/60 dated 4.5.1960 available on pages 141 to 143 of the old Settlement Manual. The respondents can hardly take the advantage of Para No. 4 because admittedly their predecessor-in-interest was in possession of Shop No. 9/209-A, where he had installed the machinery. Their case is covered by Para 6 of the same memorandum and they will, as such, be entitled to that portion of the property, which is being used by them as an industrial concern.
The view that we take in the matter is that the appeal is allowed. The order dated 16.11.1966 passed in review jurisdiction and that of the LPA Bench dated 26.4.1981 are set-aside with no order as to costs."
The above reproduced clear findings by the Apex Court, left no room for fresh adjudication of the matter, on any suit by any of the parties who were parties to the earlier litigation. Since suit by the petitioner itself was not maintainable, at law, his evidence produced in an incompetent suit was of no legal validity. It is amazing that in presence of judgment by the Honourable Supreme Court inter parties, on the same subject, how trial Court attempted to reopen to matter by granting decree in favour of the petitioner. The complained act of the trial Court was not only corum non judice but was also undertaken without any legal sanction behind and was taken, being oblivious of the fact that judgment inter parties by the Apex Court could not have been deviated in any circumstance. Scan of record and the impugned judgment revealed that Court of appeal correctly concluded the lis and rightly brought the things to their required position by setting aside an unfair judgment, without committing any error of law/facts.
For the reasons noted above, no case for interference in revisional jurisdiction of this Court was made out; consequently instant revision petition being devoid of any merit, is dismissed with costs throughout.
(Anwar Saeed Sheikh) Petition dismissed.
PLJ 2007 Lahore 423
Present: Syed Sakhi Hussain Bukhari, J.
SH. SHAFIQ-UR-REHMAN and 5 others--Appellants
versus
CHAIRMAN SIALKOT DRY PORT TRUST and 2 others--Respondents
L.A. No. 120 of 2004, heard on 7.12.2006
Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46(5)--Dismissed from service--Grievance petition--Reinstatemnet into service with back benefits--Prayer for--Enquiry was exparte--Appellants filed applications for change of enquiry officer but same were rejected--Labour Court could award compensation in lieu of reinstatement of worker in service--Word `termination' used in S. 46(5) of IRO 2002 also includes dismissal after enquiry--As such respondents were directed to pay appellants compensation instead of reinstatement into service--Appeal accepted. [P. 428] D
Exparte Enquiry--
----Civil servants were served with charge sheets and were dismissed from service--Enquiry officer was biased--Principle of natural justice--Civil servant joined enquiry and threatened enquiry officer with dire, snatched enquiry file from enquiry officer--Therefore, enquiry officer was constrained to conduct ex-parte enquiry--Ex-parte enquiry was against the principles of natural justice and enquiry was liable to be set aside on such score alone. [P. 425] A
Service Matter--
----Appellants were dismissed from service--Grievance petition was dismissed--Assailed--Prayed for re-instatement into service--Enquiry was ex-parte--Applications for change of enquiry officer were rejected--Requirements of law--A person against whom enquiry was conducted was to be allowed to participate in enquiry and given opportunity to cross-examine witnesses and to produce defence--Inquiry conducted in such case could not be approved--Enquiry was defective therefore, order of dismissal was liable to be set aside--In such cases employees were reinstated into service with permission to held fresh enquiry.
[Pp. 426 & 427] B & C
2003 SCMR 104 and PLD 1966 SC 765, rel.
Mr. Abdul Hakeem Awan, Advocate for Appellants.
Mian Rafi-ud-Din and Nazir Ahmed Ch., Advocates for Respondents.
Date of hearing : 7.12.2006.
Judgment
This appeal is directed against the judgment dated 12,02.2004 passed by learned Presiding Officer, Punjab Labour Court No. 7 Gnjranwala whereby grievance petition brought by appellants was dismissed.
Relevant facts for the disposal of this appeal are that appellants had been serving with the respondents since 1986, 1990 and 1991 and according to law they are workers. During service their performance was quite satisfactory and there was no complaint against them. The appellants averred that Appellants No. 1 to 5 were office bearers of Shaheen Workers Union Sialkot Dry Port Trust whereas Appellant No. 6 was office hearer of employees union and respondents did not like them and intended to remove them from service. On 24.10.1998 the appellants submitted application before respondent. No. 1 (Chairman) against Respondent No. 2 (General Manager Sialkot Dry Port Trust) and in order to take revenge he (Respondent No. 2) planned to attack the appellants. On 27.10.1998 charge sheets on the basis of concocted story were issued to them. The charge sheets were not issued by competent authority, The appellants filed reply but the same was not considered and Mr. Kashif Ibrahim was appointed as Inquiry Officer. The appointment of inquiry Officer was not made by competent authority and he was not independent inquiry officer. They filed applications for transfer of inquiry officer but their applications were rejected and due to this reason Mr. Kashif Ibrahim was annoyed. The appellants joined the inquiry but respondents implicated them in baseless criminal cases. However, the inquiry officer did not provide them chance of hearing. The statements of their witnesses were not recorded. Likewise they were not allowed to cross-examine the witnesses. Their co-workers were not allowed to join inquiry proceedings. The inquiry was initiated due to the reason that appellants were involved in union activities and inquiry was conducted against principles of natural justice. During inquiry, charge of mis-conduct was not proved and inquiry report is perverse. The appellants asserted that second show cause notice was not issued by competent authority. They were dismissed from service on 23.2.1999 without hearing them. The appellants have prayed for re-instatement into service with back benefits. The respondents mentioned in reply that appellants have not been performing their duties satisfactorily. They stated that Appellants No. 1 to 5 were office bearers of Shaheen Workers Union but they were removed from their offices on 9.6.1998 through a no confidence motion and that Shaheen Workers Union ceased to be CBA w.e.f. 20.03.1999. On 24.10.1998 Sheikh Shafique-ur-Rehman appellant accompanied by Ehsan Ullah etc. visited the office of General Manager (Respondent No. 2) and threatened him with dire consequences and informed the Chairman of the Dry Port on telephone about the same. On 28.10.1998 appellants staged illegal strike at the Dry Port and started raising filthy slogans against Respondent No. 2 (General Manager). On the same day, appellants entered the office of Respondent No. 2 and mis-behaved, insulted and threatened him with dire consequences. The appellants also threatened him that they would destroy Dry Port. The respondents mentioned that Syed Mumtaz Hussain Bukhari was competent to issue charge sheets, final show cause notice, and final orders. The competent authority appointed Mr. Kashif Ibrahim as inquiry officer vide order dated 17.11.1998. The appellants boycotted the inquiry proceedings and walked out of the office of inquiry officer. He conducted the inquiry proceedings in their absence and recorded the statements of PWs. The inquiry officer to meet. the ends of justice, afforded the accused opportunity alongwith copies of statements of witnesses but they did not appear before him on 03.12.1998 Sheikh Shafique-ur-Rehman assaulted Mushtaq Ali (PW) and snatched inquiry file forcibly from the inquiry officer. The appellants deliberately avoided to participate in the inquiry proceedings which compelled the inquiry officer to hold inquiry ex-parte and submit his report. Learned trial Court recorded evidence and dismissed the application brought by appellants vide order dated 12.02.2004. Hence this appeal.
I have heard the arguments and perused the record.
As mentioned above, the appellants were serving with the respondents but they were served with charge sheets and after enquiry they were dismissed from service. The case of appellants is that enquiry was conducted ex-parte and that enquiry officer was not independent as he was biased against them. Also that dismissal order was not passed by competent authority (Chairman). Admittedly enquiry was conducted ex-parte. The case of the respondents is that appellants joined enquiry and threatened the enquiry officer with dire consequences, snatched enquiry file from him, therefore, enquiry officer was constrained to conduct ex-parte enquiry. The ex-parte enquiry is against the principles of natural justice and enquiry is liable to be set-aside on this score alone.
The enquiry proceedings (Ex.R-1) show that statements of witnesses produced by respondents during enquiry are not signed by enquiry officer. Learned counsel for the respondents admits that the same do not bear signatures of enquiry officer. As such these statements have. no value and enquiry is liable to be set-aside on this ground.
RW-1, Kashif Ibrahim is enquiry officer in this case. During cross-examination he admitted that union had filed complaint against him and Operation Manager before learned Magistrate Section-30 Daska. He stated that he was PW in a criminal case (FIR No. 372/1998) got registered by management against Shafique-ur-Rehman etc. He did not know if on 7.12.1998 Shaheen Workers Union had submitted application against him in police station Sambrial. The witness admitted that management had obtained stay order against strike notice and on 17.03.1998, 13.03.1998 and 26.6.1998 he had been appearing before Labour Court on behalf of management. On 4.3.2000 he appeared before learned trial Court in this case on behalf of management. The witness also admitted that he appeared as representative of management in departmental enquiry against Shafique-ur-Rehman, appellant and cross-examined him Shafique-ur-Rehman. He also appeared as representative of management in another enquiry against Shafique-ur-Rehman, appellant. He was appointed as enquiry officer by a Member, Board of Trustees. The witness could not tell about the competent authority of appellants. The enquiry officer admitted that appellants had submitted two separate applications for transfer of inquiry, officer but the same were rejected by management and he was informed accordingly. He also admitted that Naseer Bhatti group submitted application for appointment of representative but he refused. It is clear from statement of RW-1, Kashif Ibrahim that he was not independent enquiry officer and it is sufficient to set aside enquiry proceedings. Reliance can be placed on the case of Government of NWFP through Chief Secretary and another Vs. Dr. Hussain. Ahmad Haroon and others (2003 SCMR 104). Moreover enquiry was ex-parte. As stated earlier appellants filed applications for change of enquiry officer but the same were rejected. Mere holding of enquiry is not requirement of law, a person against whom enquiry is conducted is to be allowed to participate in inquiry and given opportunity to cross examine witnesses and to produce his defence. So in the circumstances of the case the inquiry conducted in this case cannot be approved. It is clear from the record that enquiry is defective.
The case of appellants is that appointment of enquiry officer and issuance of order of dismissal is not by competent authority, therefore, order of dismissal is liable to be set-aside. Learned counsel for the respondents submits that appointing authority was Chairman. However order of dismissal in this case was issued by Syed Mumtaz Hussain Bukhari (Member Board of Trustees).
For what has been discussed above I am of the considered opinion that enquiry is defective, therefore, order of dismissal is liable to be set-aside. In such cases normally employees are reinstated into service with permission to hold fresh enquiry. However, appellants were dismissed from service on the charges that they had threatened their officers (manager etc.) with dire consequences and threatened to damage and destroy the Dry Port Trust. Also that they instigated and persuaded their colleagues to go on strike and made unlawful assembly in front of main gate. The charge sheet issued to Mian Abdul Jabbar Zafar, appellant reads as under:--
(i) "That on 26.10.1998 at about 9:30 a.m. you and Sheikh Shafique-ur-Rehman, Muhammad. Hafeez Mughal, Basharat Ali Chemma, M. Iftikhar Ahmad Ghuman. Ehsan Ullah clerks of the Dry Port Sambrial started tagging black patties on the arms of the workers of the Dry Port and instigated and incited them to strike work. On your instigation about 70% workers left their jobs and struck work and came out of their respective Offices and sheds and assembled in the yard of the Dry Port at about 12:00, noon. You and your companions incited the workers to raise slogans. You all fed dirty slogans to the workers as a result whereof slogans mongering against the General Manager and the management continued unabated for about 3/4 hour. The General Manager asked you for talks, but, you refused to listen to him and abused and insulted him. At about 3:50 p.m. you and your above named competitions forcibly pushed the Security Guard and the Duty Clerk who attempted to stop you from forcibly entering into the office of the General Manager and after trespassing into the office of the General Manager you, all with common intentions, man-handled him by twisting his arms, abused and insulted him and threatened to kill him. You also threatened to damage and destroy the Dry Port Trust by saying that
(ii) That on the following day, i.e. on 27.10.1998 at about 9:00 a.m. you alongwith your above named companions snatched the keys of various departments and sheds from the Security Officer Mr. Mushtaq Ali and again incited, instigated and persuaded the workmen to go on strike as a result whereof the workers did not go to their respective jobs and struck work. In the meantime on information conveyed by the General Manager to the Deputy Commissioner, Sialkot, the Assistant Commissioner Daska, the police party reached the scene of occurrence and after a great deal of efforts on their persuasion you agreed to send the workers back to their sheds, and returned the keys.
(iii) That again on 29.10.1998 you and Raja Jahangir Khan, Tariq Mahmood Butt, Abbas Ali Cheema, Muhammad Javed Malhi, Basharat Ali Cheema, Iftikhar Ahmad Ghuman, Mubashir Zaman, Liaqat Ali, Ehsan Ullah, Abdul Qayyum Clerks left their jobs without permission of their Incharges and went out of the gate of the Dry Port to meet Malik Muhammad Waris and his companions, the outsiders. You made an unlawful assembly in front of the main gate towards the road side and shouted filthy abuses on the General Manager and the management of the Dry Port Trust and hurled threats of killing. You and your afore-mentioned companions did not return to the jobs till 3:30 p.m. and struck work for about 3 and half hours.
(iv) That again on 30.10.1998 you and your afore-mentioned companions and Muhammad Ashraf Clerk made the workers to assembly in front of Union Office inside Dry Port premises at 10:00 a.m. and struck work for one hour and went on raising filthy abuses and dirty slogans against the management.
(v) That on each date mentioned above, you and all the above named persons committed riotous and disorderly behaviour during the working hours at the Dry Port and committed acts subversive of discipline and struck work illegally.
(vi) That you and your above-mentioned companions acts and omissions detailed above constitute mis-conduct of very grave and serious nature.
It shows that if appellants are reinstated into service any one of them or some other workers of the Dry Port, at their instance or instigation might create law and order situation at the Dry Port or create problem in the smooth working thereof. So in the circumstances of the case it would be proper that appellants be given compensation in lieu of reinstatement into service. Reliance can be placed on the case of Abbasi Textile Mills Ltd., Rahimyarkhan Vs: The Industrial Court, West Pakistan, Abbasi Textile Mills Workers Union, Rahimyarkhan and Kale Khan (PLD 1966 S.C. 765). According to Section 46 (5) of IRO 2002 Labour Court may award compensation equivalent to not less than twelve months and not more than thirty months basic pay last drawn and house rent, if admissible, in lieu of reinstatement of the worker in service. As such respondents are directed to pay them compensation instead of reinstatement into service and in my opinion this would meet the ends of justice. In Section 46(5) of IRO 2002 word "Termination' has been used but I am of the considered opinion that word termination also includes dismissal after enquiry.
(Anwar Saeed Sheikh) Appeal accepted.
PLJ 2007 Lahore 429 (DB)
Present: Maulvi Anwar-ul-Haq & Syed Asghar Haider, JJ.
VITA PAKISTAN Pvt. Ltd. through its Director--Appellant
versus
TRUST INVESTMENT BANK LTD. through its BRANCH MANAGER
and 6 others--Respondents
E.F.A. No. 60 of 2006, heard on 20.11.2006.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 19(2)--Civil Procedure Code, (V of 1908), O.XXI R. 90--Auction-purchaser bound by judgment-debtor's "agreement to sell" to third person entered into before attachment, auction purchaser having notice of such agreement-Execution of a decree, powers of Banking Court--Auction conducted in the court and the highest bid offered by respondent was accepted--Suit for specific performance was pending regarding sale of the said property-Held: Sale in favour of respondent would not at all derogate from the terms of the said agreement subject to its proof in Civil Court and the agreement would be enforceable subject to terms of
S. 27(b) of Specific Relief Act, 1877 against the subsequent purchaser--Under Section 19(2) of the said Ordinance Banking Court has been given the discretion to execute decree in a manner it considers appropriate at the request of the decree holder--There is no denial that the property could not be sold despite several attempts by the Court Auctioneer-This being so, the said effort made by Executing Court whereby a price was obtained which apart from satisfying the decretal amount was also acceptable to the judgment debtor cannot be said to be unreasonable--Sale having been made in exercise of said powers of the Banking Court and with the consent of the decree-holder as also of the judgment-debtors, the objection as to two months' time given for the deposit of the balance amount was also not available. [Pp. 432 & 433] A & B
PLD 1962 SC 119, AIR 1976 SC 2037 (ref.)
Mr. Shahid Ikram Siddiqui, Advocate for Appellants.
Mr. Sultan Tanvir Ahmad, Advocate for Respondent No. 1.
Mr. Sajjad Mehmood Butt, Advocate for Respondents No. 2, 3, 5
and 6.
Mr. Zafar Iqbal Chaudhry, Advocate for Respondent No. 7.
Date of hearing : 20.11.2006.
Judgment
Maulvi Anwar-ul-Haq, J.--A suit filed by Respondent No. 1 against Respondents No.2 to 6 was decreed by a learned Judge, Banking Court No. III, Lahore on 8.12.1999 in the sum of Rs. 63,62,466/- with costs and mark-up. The sale of property stated to be mortgaged by the judgment-debtors was ordered by the learned Executing Court on 7.8.2004. On 5.8.2004 Respondent No. 3 filed an application in terms of Order XXI Rule 83 CPC assuring the Court that a purchaser is available who is ready to pay a reasonable price of the said property. A notice was issued to the decree-holder. On 6.8.2004 the sale was postponed and the said judgment-debtors was given one week's time to procure the prospective buyer. The case was adjourned to 18.8.2004. however, the copies of the daily orders show that the case was taken up on 13.8.2004 in the presence of counsel for the decree holder-Bank and the Court Auctioneer. It was noted that whereas the judgment-debtors have not presented any buyer; one Imran Hussain (Respondent No. 7) has filed an application accompanied by a cheque in the sum of Rs. 12,50,000/-. The case then came up on 19.8.2004 in the presence of counsel for the decree holder-Bank as also of the judgment-debtors and the Court Auctioneer. Imran Hussain Respondent No. 7 and one Shujah-ud-Din Alvi presented themselves as prospective buyers. It was stated on behalf of the counsel for the judgment-debtors that the said Respondent No. 7 is prospective buyer. It was also contended that on ten occasions the Court Auctioneer made attempts to sell the property but it could not be sold. An offer was made on behalf of Respondent No. 7 that he is prepared to purchase the property for a consideration of Rs. Five million. The decree holder-Bank made an offer of Rs. Seven million while there is reference to an offer of Rs. 6.400 million by a buyer produced by the decree-holder. Then there is reference to one Shujah-ud-Din Alvi who was also interested in purchasing the property. With the agreement of the decree-holder and the judgment-debtors, an auction was conducted in the Court. The last bid offered by Respondent No. 7 of Rs. 8.200 million was found to be the highest and was accepted. After adjusting the amount already deposited, he was directed to pay the balance within two months.
"7. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 19.8.2004, to the extent appellant's objection petition, filed under Order XXI Rule 90 CPC, was dismissed, is set aside with no order as to costs. Resultantly appellant's said petition shall be deemed to be pending before the learned Banking Court, who shall decide the same after hearing the parties and of course in accordance with law within a period of two months from today."
After the remand, the matter was heard again and the application has been dismissed by the learned Executing Court on 26.1.2006.
Learned counsel for the appellant contends that since it is his case that there is an agreement to sell in his favour and further that possession has been delivered to his client there-under, he can seek the protection of Section 53-A of the Transfer of Property Act, 1882 and as such his client has the locus standi to file the objections. Further contends with reference to a judgment in the case of Navalkha and Sons v. Sri Ramanva Das and others (AIR 1976 SC 2037) that the mere fact that his client desires to purchase the property is enough to hold that it has the requisite locus standi to file the said objections. Thereafter, he reiterates the said grounds taken in the objections and already noted by us above. Learned counsel for the decree holder-Bank as well as the judgment-debtors and the purchaser (Respondent No. 7) draw our attention to the relevant contents of the said remand order passed by this Court to urge that the appellant itself waived the plea based on the agreement and if the agreement is taken out then it is left with no locus standi to file the said objections in terms of Order XXI Rule 90 CPC read with Section 19 of the said Ordinance, 2001. Our attention is further drawn to sub-section (2) of the said Section 19 to urge that unlike the mandatory provisions of Order XXI CPC dealing with the sale (of) property, a Banking Court has wider power which is subject only to the consent of the decree holder in the matter of execution of the decree.
We have gone through the available records, with the assistance of the learned counsel for the contesting parties. The waiver being relied upon by the learned counsel for the respondents is duly recorded in the judgment dated 14.4.2005 towards the end of para-3 thereof as follows:--
"Learned counsel for the appellant, in rebuttal, stated that in case, the matter is remanded to the learned Banking Court for fresh decision of his objection petition, the objector will not raise the plea of agreement to sell while pleading his objection petition, however, reserves his right to pursue his remedy before the Civil Court for the specific performance of the said agreement."
It was observed by this Court in para-6 thereof that the appellant would be bound by the said statement of his learned counsel not to raise the plea about agreement to sell.
When confronted, learned counsel for the appellant states that he is still bound by the said statement but according to him, even without pleading the agreement, he can question the sale as he did intend to purchase the property and for this he places reliance on the said case of Navalkha and Sons. Having gone through the said judgment, we find that nothing turns on the same in favour of the appellants. The reason being that under Section 19(2) of the said Ordinance, 2001, a Banking Court has been given the discretion to execute decree in a manner it considers appropriate at the request of the decree-holder. Now there is no denial that the property could not be sold despite several attempts by the Court Auctioneer. This being so, the said effort made by the learned Executing Court whereby a price was obtained which apart from satisfying the decretal amount was also acceptable to the judgment-debtors cannot be said to be unreasonable. The sale having been made in exercise of said powers of the Banking Court and with the consent of the decree-holder as also of the judgment-debtors, the objection as to two months' time given for the deposit of the balance amount is also not available.
Apart from what has been stated above, the said sale does not at all cause any prejudice to the appellant. According to the learned counsel, a suit for specific performance is pending. The sale in favour of Respondent No. 7 would not at all derogate from the terms of the said agreement subject to its proof in the Civil Court and the agreement would be enforcible subject to terms of Section 27(b) of the Specific Relief Act, 1877 against the said subsequent purchaser as well. Needless to add that this Court while remanding the case at the earlier occasion as also the learned Executing Court in the impugned order itself has made it clear that the said orders still not affect the merits of the case for specific performance, statedly brought by the appellant. Apart from the above observations of this Court and of the learned Executing Court in the said orders, reference in this behalf be also made to the case of Mohiuddin Molla v. The Province of East Pakistan and 2 others (PLD 1962 SC 119) where it was held by their lordships that an agreement for sale with the judgment-debtor would bind the purchaser at the Court sale if he had notice of the agreement.
Learned counsel then contends that the appellant is being sought to be dispossessed from the property by the auction purchaser. If this is so, he can raise all available objections before the learned Executing Court. The EFA is accordingly dismissed but without any orders as to costs.
(Rao Farid-ul-Haque) E.F.A. dismissed.
PLJ 2007 Lahore 433
Present: Sayed Zahid Hussain, J.
MUHAMMAD SHAFIQUE BAJWA--Petitioner
versus
CHAIRMAN BOARD OF GOVERNORS LAHORE MUSEUM LAHORE etc.--Respondents
W.P. No. 8543 of 2006, heard on 8.11.2006.
Lahore Museum Regulations, 1987--
----Ss. 9 & 10--Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--R. 15(2)--Constitution of Pakistan, 1973, Art. 199--Illegal appointment--Violation of policy--Lacked of qualification--Eligibility--Deputation and absorption was contrary to law--Validity--Government servant will not be considered for deputation against a higher post in parent department--Regulations 9 & 10 of the Lahore Museum Regulation 1987 which is being pressed for justifying his absorption is perse not attracted and is being misconstrued inasmuch as relate to initial appointments whereas the post of Superintendent is primarily promotion post and for any such appointment, a Bachelor Degree from recognized university with at least five years of experience was required--Lacked such qualifications did not fulfil eligibility for appointment absorption on post--Held: Past instances of erratic appointments could not be made precedent to be followed for all times to come in future--A mistake if committed in the past and not pointed out could not be allowed to become a precedent and perpetuated.
[P. 438 & 439] A & B
Ch. Nazir Ahmad Kamboh, Advocate for Petitioner.
Mr. Aamir Rehman, Additional Advocate General, Punjab with Ibrar Aalam, S.O. (E), Information Department and Abid Saeed, Deputy Secretary, Information Department.
Mr. Muhammad Navid Shabir Goraya, Advocate for Respondents.
Date of hearing : 8.11.2006.
Judgment
W.P. No. 12846/05 in the nature of quo warranto was filed by Muhammad Shafique against Muhammad Shafique Bajwa, Respondent
No. 4, that "he is not eligible to hold the post against which he is now working and the Respondents No.1 and 2 be directed to withdraw the absorption order dated 30.6.2003 as well as deputation of the Respondent No. 4". The post which Muhammad Shafique Bajwa Respondent No.4 therein, is holding is that of Superintendent (BS-16), Lahore Museum Lahore.
"According to Lahore Museum Regulations, 1987 the post of Superintendent is primarily, a promotion post for which the Assistants, Store Keepers and Accountants of the Lahore Museum are eligible. In case no suitable incumbent is available then it could be filled by initial recruitment or by transfer. In this case Respondent No. 4, an official of the Education Department in District Hafizabad in grade-7, was appointed as Superintendent (BS-16) and later absorbed in the service of the Lahore Museum. This writ petition has laid information before this Court in the nature of quo warranto.
I had some reservations about the conduct of the then Director Lahore Museum (Dr.Liaqat Ali Niazi) in whose tenure the disputed appointment was made. He is presently Secretary Archive S & GAD. He was accordingly summoned by me to clear doubt. I had entertained about his conduct.
The first reservation was that Respondent No. 4 does not possess the requisite qualification of B.A., necessary for appointment to the post of Superintendent, even by transfer, yet he was appointed to the post in question. His reply was that the Director was competent to relax the rules. It may be observed at this stage that power to relax the rules should be exercised to remove hardship rather than to dole out a favour in the matter of public employment. I also questioned him whether before making the appointment in question any of the officials of the department of the eligible category was considered. His reply was in the negative. The original file has been perused. It was on the application dated 25.2.2003 of Respondent No. 4 that Dr.Liaqat Ali Niazi passed an order "allowed to join on deputation as Office Superintendent in BS-16". This order was passed without consulting the Selection Committee and without following the deputation policy of the Government of the Punjab. Respondent
No. 4 then applied on 21.6.2003 for his absorption in BS-16 in the Lahore Museum on which the Standing Committee considered the case on 28.6.2003. It comprised Dr.Liaqat Ali Khan Niazi, Director (Chairman), Waseem Ahmad, Senior Chemist (Member), Humera Alam (Member) and Abdul Rehman Khan Lodhi, Assistant Director (Member). Photo copy of the minutes of the meeting was produced before the Court by the learned counsel. However, these are not on the original record. When confronted Dr.Liaqat All Niazi took up the position that it was a forged document. Instead, on the record are the minutes of the meeting of 28.6.2003 signed by Dr.Liaqat Ali Khan Niazi, Abdul Rehman Khan Lodhi, Prof. Ijaz Butt and Mr. Shafqat Jalil, Deputy Secretary IC & YA Department.
I could, however, see an order passed by M. Niaz on 3.7.2003 according to which the accounts branch of the Lahore Museum was badly suffering in the absence of competent official, accordingly, the requisite qualification was relaxed and Respondent No. 4 was found to be a suitable person. It was, however, posterior to the meeting held on 28.6.2003. There are certain principles for the exercise of discretion which have to be kept in view. I am constrained to observe that prima facie he has acted in the matter clearly contrary to law and in an irresponsible manner, perhaps assuming that the public employment is the bounty of the State or its functionaries.
Mr. Shafqat Jalil, the then Deputy Secretary (Admn), Information and Culture Affairs Department of the Government of the Punjab now as Additional Press Secretary in the Prime Minister's House is in attendance. He was shown his signatures on the minutes of the meeting dated 28.6.2003 available on the original record. He stated that the document bears his signatures.
Prima facie Respondent No. 4 was not eligible for the post in question and on the date of the meeting of the selection committee (28.6.2003) no order of relaxation in his favour was in existence. Even if there was one, unless it was found that no incumbent of the department was suitable for the said post it could not have been filled in by transfer. The matter, therefore, requires consideration.
Admit. Notice.
I have noted with regret that Mr. Shafqat Jalil, representing the Govt. of the Punjab, did not even bother to find out whether Respondent No. 1 was at all eligible to be appointed as Superintendent (BS-16). It appears that he acted only as a rubber stamp to the decision taken by Dr. Liaqat Ali Niazi. Besides the judicial determination by this Court it is a matter to be inquired into on the administrative side whether the minutes of the meeting held on 28.6.2003 on the original record is genuine document in view of the photo copy of the minutes of the meeting dated 28.6.2003 in which neither Mr. Shafqat Jalil nor Prof. Ijaz Butt was shown to be present. The conduct of Mr. Niazi in making appointment of a grade 7 officer to grade 16 post, prima facie contrary to law, is also required to be inquired into.
A copy of this order alongwith the copies of the minutes of the meeting dated 28.6.2003 shall be sent to the Chief Secretary, Punjab for an inquiry into the matter. He will report action taken in the matter to the Additional Registrar of this Court.
C.M. No.2/05
I am not inclined to suspend the order of appointment of Respondent No. 4 because it will amount to giving main relief and may also disrupt the working of the department. It is, however, directed that the main petition shall be listed for hearing in the month of October, 2005."
In view of the above observations the matter was considered on administrative side and it was pointed by the Regulation Wing, S&GA Department that "the Regulation Wing, is of the view that deputation of Mr. Shafique Bajwa, Accounts Clerk (BS-7) against the post of Superintendent BS-16 and his subsequent absorption against the said post is improper and it is proposed that:--
(i) Mr. Muhammad Shafique Bajwa, Accounts Clerk (BS-7) may be repatriated to his parent department after serving him with a notice about the proposed action and after passing a speaking order to this effect.
(ii) The post of Superintendent (BS-16), Lahore Museum, may be filled through promotion and if no one suitable is available then by initial recruitment or by transfer from other departments as provided under the service rules for the post;
(iii) Since, the matter stands thrashed/scrutinized threadbare and does not warrant any further inquiry, the Honourable LHC may be informed accordingly in pursuance of its directions given to the Chief Secretary referred to in para 16 (vi)/ante."
When the matter was placed before the Chief Secretary, Punjab, The Chairman, Board of Governors, Lahore Museum Lahore, the same was approved. As a result, order dated 17.7.2006 was conveyed to the Director Lahore Museum, Lahore that "the Chief Secretary/Chairman Board of Governor's Lahore Museum has approved the proposal of repatriation of Mr. Shafiq Bajwa, Superintendent, Lahore Museum to Education Department". This order has been assailed by Mr. Muhammad Shafique Bajwa through this petition.
Order dated 17.7.2006 was, however, not implemented in view of the pendency of W.P. No. 12846/05. The matter was again considered on administrative side and this time the Law Department was also consulted. On consideration of relevant rules and regulations i.e. the Rule 15 (2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and Lahore Museum Regulations, 1987, the Secretary Law, Government of the Punjab concurred with the view taken by the Regulation Wing. The Chief Secretary, thus, on approval of the matter asked for necessary action and the Court to be informed accordingly. This is vide letter dated 19.10.2006, which has also been placed on record.
The learned counsel for Muhammad Shafique Bajwa contends that he was appointed as Superintendent (BS-16) in Lahore Museum Lahore on deputation and absorbed later on which appointment was legal in all respects and that writ of quo warranto cannot be issued. He has made reference to Muhammad Liaquat Munir Rao v. Shams-ud-Din and others (2004 PLC (C.S.) 1328), Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299), Prof Muhammad Wali Khan and another v. Secretary, Government of Sindh and others (2003 MLD 719), Muhammad Rafique and 2 others v. Muhammad Pervaiz and 2 others (2005 SCMR 1829) and Province of Punjab through Secretary Agriculture, Government of Punjab and others v. Zulfiqar Ali (2006 SCMR 678) in this context. He also cites some appointments made in the Museum, in the past.
The learned Law Officer of the Province has produced departmental file to show that on consideration of the matter it has been found that appointment of Muhammad Shafique Bajwa as Superintendent in BS.16 was violative of law whose repatriation has been ordered lawfully to his parent department i.e. Education Department.
Admittedly Muhammad Shafique Bajwa was Accounts Clerk
(BS-7) in Government High School, Mandi Kalay Ki, District Hafizabad when he made application dated 25.2.2003 to the Director Lahore Museum Lahore for appointment as Superintendent (BS-16) on deputation. The application was blessed with approval on 1.3.2003. But terms and conditions of his deputation were conveyed later on through Office Order dated 6.6.2003 w.e.f. 1.3.2003. Such order purports to have been issued under Rules 9 and 10 of Lahore Museum Regulations, 1987. He then makes an application dated 22.6.2003 for absorption in the said post i.e. Superintendent (BS-16), which application was also allowed and he was ordered to be absorbed on 30.6.2003, on permanent basis. As noted above, since the Department itself has found that his deputation and absorption was contrary to law and he has been ordered to be repatriated, the principles governing the issuance of writ of quo warranto lose their significance. That is why Mr. Muhammad Shafique Bajwa has challenged his order of repatriation.
The flawed and illegal appointment of Mr. Muhammad Shafique Bajwa is evident from the fact that requisite qualification for the post of Superintendent (BS-16) is graduation whereas he was only intermediate. It was also violative of the policy that a Government servant will not be considered for deputation against a higher post in the borrowing organization unless he was due for promotion in his parent department. Even the selection committee which considered the absorption of Muhammad Shafique Bajwa was not legally constituted as there was no such approval by the Board of Governors, Lahore Museum Lahore/Chief Secretary. Regulations 9 and 10 of the Lahore Museum Regulations, 1987 which is being pressed for justifying his absorption is perse not attracted and is being misconstrued inasmuch as the same relates to initial appointments whereas the post of Superintendent is primarily a promotion post and for any such appointment, a Bachelor Degree from a recognized university with at least 5 years of experience was required. Muhammad Shafique Bajwa lacked all such qualifications and did not fulfil the eligibility/criteria for appointment/absorption on a post he is holding. Thus order about his repatriation to Education Department dated 17.7.2006 and ultimate order of 19.10.2006 hardly can be regarded as the one passed without lawful authority.
The past instances of erratic appointments cannot be made a precedent to be followed for all times to come in future. Nor the argument of discrimination be built on that basis. A mistake if committed in the past and not pointed out/assailed, cannot be allowed to become a precedent and perpetuated. The contention of the learned counsel thus cannot be countenanced.
The petition of Muhammad Shafique Bajwa is without merit and liable to be dismissed.
I view of the above, W.P. No. 8543/06 is dismissed whereas W.P. No. 12846/05 stand disposed of as having become infructuous. No order as to costs.
(Rafaqat Ali Sohal) Order accordingly.
PLJ 2007 Lahore 439
Present: Umar Ata Bandial, J.
NATIONAL BANK OF PAKISTAN and 6 others--Petitioners
versus
MUHAMMAD ISMAIL MALIK--Respondent
Civil Revision No. 1641-A of 2004, heard on 17.1.2007.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 9 & 115, O.VII, R. 11--Rejection of plaint--Past and closed transaction occurred as a consequence of a legal bar to further proceeding like limitation of res-judicata and is not itself a self standing ground on non-maintainability of a suit. [P. 441] A
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 9 & 115--Jurisdiction of Civil Court--Suit for damage be Ex-Employee of the bank--Competency--Neither the legal bar of jurisdiction nor the consequential plea of past and closed transaction is available to the petitioner--Only forum available for the respondent to agitate his claim for compensation regardless of its merit as before the competent Civil Court. [P. 442] B
Mr. S.M. Masood, Advocate for Petitioners.
Mr. Muhammad Ismail Malik, Advocate for Respondent.
Date of hearing : 17.1.2007.
Judgment
This revision petition is filed against the order of the learned trial Court dated 22.4.2004 dismissing the application by the petitioner bank filed under Order VII Rule 11 CPC for rejection of plaint in the suit for damages filed by the respondent. This suit is filed by the respondent who is an ex-employee of the petitioner bank seeking damages in the amount of Rs. 43,895,121/- allegedly for his forcible severance from service under the pretext of "Golden Hand Shake Scheme" vide order by the petitioner bank dated 19.11.1997. The application for rejection of plaint in the said suit was filed by the petitioner bank principally on the ground that the respondent is a civil servant whilst the petitioner bank is a statutory body having statutory rules of service therefore under the provisions of the Service Tribunal Act, 1973 the respondent's remedy for his service grievances is available solely before the learned Federal Service Tribunal ("FST"). Consequently, it is claimed that the learned Civil Judge had no jurisdiction to entertain the respondent's suit, wherein the cause of action is the alleged violation of his terms and conditions of his service.
Pursuant to the direction of this Court given vide order dated 28.2.2002 in C.R. No. 58-L/99 between the present parties, the learned trial Court considered and decided the aforesaid jurisdictional objection on its merits by the impugned order dated 22.4.2004. That order has held that the learned civil Court is competent to adjudicate the respondent's suit for damages.
Before this Court learned counsel for the petitioner bank has submitted that the respondent filed an appeal before the learned FST on the same cause of action as agitated in his suit which was dismissed by the learned FST vide order dated 3.12.1998. The respondent's petition for leave against the said order was dismissed by the Honourable Supreme Court vide judgment dated 29.11.99. Consequently it is argued now that the respondent's suit is barred as it purports to re-open a post and closed transaction. The petitioner has not raised this plea before. However, as it involves a legal question, the same is considered presently.
The respondent's suit for damages filed on 1.9.98 was already pending at the time of the said proceedings took place before the learned FST and the Honourable Supreme Court. The Honourable Supreme Court in its aforementioned judgment in the respondent's appeal from the decision of the learned FST made the following observations about the respondent's present suit:--
"We need not dwell any further on the question of alleged coercion, maltreatment and duress as the petitioner had also filed a suit for damages on these very pleas and the suit is pending before the Civil Court. Suffice it to say that no justification has been made out for interference in the impugned judgment of the Federal Service Tribunal. Even other wise no question of law of public importance is made out."
"He, however, submitted that he has already filed a suit about which observation has also been made in the judgment under review for the recovery of damages and apprehends that due to the findings recorded in the impugned judgment of the Tribunal and judgment under review the decision in the said suit may not be prejudiced.
The apprehension is misplaced and un-founded as in the judgment under review nothing has been said about the merits of this suit. It may be observed here that the said civil suit shall be decided on its own merits on the basis of material brought on record independently un-influenced by any finding or observation made in the impugned judgment of the Service Tribunal or the judgment under review of this Court.
Subject these observations, this petition is found to have no merits and the same is hereby dismissed."
It is plain that both the aforenoted judgment and order in review petition by the Hon'ble Supreme Court acknowledge and recognize the respondent's pending suit for damages and specifically visualize that the same is decided on its own merits uninfluenced by any findings or observations made in the proceedings emanating from the service appeal filed by the respondent. It may also be observed that a past and closed transaction occurs as a consequence of a legal bar to further proceedings like limitation of res-judicata and is not itself a self standing ground of non-maintainability of a suit.
The only legal bar to the maintainability of the petitioner's suit that was pleaded for the petitioner before the learned Courts below and is stated in the contents of this revision petition emanates from the provisions of Section 2-A of the Service Tribunal Act, 1973 whereby the respondent is deemed to be a civil servant having an exclusive statutory remedy before the learned FST. Consequently, the suit filed by the respondent is claimed to be barred. The considerable learning and effort devoted by the learned counsel for the petitioner to the said plea has, however, been rendered futile by the recent judgment of the Honourable Supreme Court in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan etc. (PLD 2006 SC 602). By this judgment Section 2-A of the Service Tribunals Act, 1973 has been held to be partially ultra vires of Articles 240 and 260 of the Constitution, inter alia, because the employees of autonomous bodies and corporations cannot by a deeming clause be treated as civil servants as defined in Section 2(1)(b) of the Civil Servants Act, 1973 nor can such employees, be treated as being engaged in the affairs of the Federation. Consequently, such employees including those employed by public sector banks, have no remedy available before the FST. Accordingly, the arguments of the learned counsel for the parties about which aspects of or the while of the respondent's case fall within the jurisdiction of learned FST has become on academic exercise. Under the foregoing ruling in the Mubeen us Salam case, the remedy of the respondent before the learned FST, as attributed by the petitioner, has been abolished by the Apex Court. Consequently, the mainstay of the petitioner's objection to the jurisdiction of the learned civil Court base upon the provision of Section 2-A of the Service Tribunals Act, 1973 has disappeared. Neither the legal bar of jurisdiction nor the consequential plea of past and closed transaction is available to the petitioner. The only forum available for the respondent to agitate his claim for compensation, regardless of its merits, as before the competent civil Court. In this respect the impugned judgment dated 22.4.2004 by the learned Civil Judge has therefore arrived at the correct conclusion. In the result this civil revision is dismissed with no order as to costs.
(Rafaqat Ali Sohal) Revision dismissed.
PLJ 2007 Lahore 442
Present: Mian Hamid Farooq, J.
MIAN ASHRAF HUSSAIN--Appellant
versus
ASAD BASHIR BAJWA and 3 others--Respondents
S.A.O. No. 60 of 2005, heard on 11.10.2006.
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--"Rent due"--A tenant could be directed to deposit the future monthly rent which is due' from him--Rent of each month becomesdue' on 30th day of that month--Tenant is required under law to deposit the future monthly rent before 15th day of succeeding month--Order was passed in complete derogation to express provisions of Section 13(6) of the Ordinance--Rent controller--Wrongly exercised its jurisdiction--Both
Courts below proceeded on the erroneous assumption of law that future monthly rent was to the deposited on 15th day of the same month.
[P. 444] A
1987 CLC 76; 1985 CLC 1429; 1985 CLC 707; PLD 1967 Lah. 29; PLD 1968 Q. 45; PLD 1996 Kar. 136 & PLD 1993 K. 642, ref.
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Basic order illegal, all the subsequent orders based on such order would fall to ground. [P. 444] B
PLD 1958 SC 104, fol.
(ii) Duty of Advocate--
----Even in cases where the papers have been taken away by the client, it is duty of advocate to appear on the date of hearing till such time he withdraws his power or it is cancelled by the client--Appeal allowed.
[P. 445] C
1994 SCMR 1948, fol.
Mr. Jehangir A. Jhoja, Advocate for Appellant.
Mr. Sohail Shakoor, Advocate for respondent.
Date of hearing : 11.10.2006.
Judgment
The respondent instituted the ejectment petition, before the learned Rent Controller, on the grounds of willful default and personal need, seeking eviction of the appellant from the shop in question, which was contested by the latter. During the proceedings, the learned Rent Controller directed the appellant to deposit future monthly rent, at admitted rate, till 15th of each month and also framed issues through composite order dated 174.2000. Subsequently, the respondent filed the application under Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, pleading therein that since the appellant failed to comply with the terms of rent deposit order, therefore, his defence may be struck off. The said application was resisted by the appellant. The learned Rent Controller, after finding that the appellant was obliged to deposit the rent for each month before 15th of the same month, proceeded to accept the said application, struck off appellant's defence, accepted respondent's ejectment petition and directed the appellant to hand over vacant possession of the shop, vide order dated 25.3.2003. Appellant's first appeal was dismissed by the learned Additional District Judge, vide impugned judgment dated 5.5.2005, hence the present appeal.
Learned counsel for the appellant contends that the appellant deposited the rent according to law and did not commit any default in complying with the terms of the rent deposit order. He adds that both the impugned judgments are contrary to the provisions of Section 13(6) of Punjab Urban Rent Restriction Ordinance, 1959, which, inter alia, provides that learned Rent Controller can only direct the tenant to deposit the "rent due". He has relied upon Muhammad Yusuf Vs. Muhammad Saghiruddin Qureshi (1987 CLC 76) Abdul Haq and another Vs. Syed Basharat Ali (1985 CLC 1429), Khawaja Asimuddin Vs. Iftikhar Banoo (1985 CLC 707), Mian Rehmat Ali Vs. Khadeja Hakim (PLD 1967 Lahore 29), Syed Shin Gul Vs Haji Abdul Majid (PLD 1968 Quetta 45), Nisar Ahmed and another Vs. Sharafullah (PLD 1996 Karachi 136) and State Life Insurance Corporation of Pakistan Karachi Vs. M/s. Siddique Tailors through its sole proprietor, Karachi (PLD 1993 Karachi 642). Conversely, the learned counsel for the respondent reports no instructions and states that his client has taken the brief from him.
I have heard the learned counsel for the appellant and examined the summoned record. Both the Courts proceeded to decide the matter, favouring the respondent, for non-compliance of rent deposit order, it appears appropriate to reproduce order dated 17.4.2000, which reads as follows:--
Plain reading of Section 13(6) of the Ordinance, 1959 shows that the learned Rent Controller, before framing issues, is empowered to pass order directing a tenant to deposit all the "rent due" from him and also to deposit regularly till the final decision of the case before the 15th day of each month, the monthly "rent due" from him. It flows therefrom that a tenant could be directed to deposit the future monthly rent which is "due" from him. Obviously, the rent of each month becomes "due" on 30th day of that month, thus, tenant is required under the law to deposit the future monthly rent before 15th day of succeeding month. In view whereof the order dated 17.4.2000 was passed in complete derogation to the express provision of Section 13(6) of the Ordinance. When law unequivocally provides that future monthly rent due is to be deposited before the 15th day of succeeding month, how the learned Rent Controller could evolve his own procedure in violation of the provision of law. The learned Rent Controller has wrongly exercised its jurisdiction, thus, order dated 17.4.2000 is not sustainable in law.
"And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded,"
In view of the law declared, as the basic order was void and without jurisdiction, therefore, the ensuing series of orders could not be sustained. Surprisingly, the learned Addl. District Judge did not advert to the said material proposition of law and he mechanically and in a stereotype manner dismissed the appeal without application of mind.
As regards the stance of the learned counsel. Under the law, he is still the counsel for the respondent. In this regard reference is made to the judgment reported as Ex-Hav. Mirza Mushtaq Baig Vs. General Court Martial (1994 SCMR 1948) wherein, it has been held that even in cases where the papers have been taken away by the client, it is the duty of the advocate to appear on the date of hearing till such time he withdraws his power or it is cancelled according to rules by the client.
In the above perspective, I have examined the impugned order/judgment and find that they are against law, therefore, I am persuaded to set them aside.
In view of the above, the present appeal is allowed and orders dated 17.4.2000, and 25.3.2003 and judgment dated 5.5.2005 are set aside, with no order as to costs. Resultantly, respondent's ejectment petition shall be deemed to be pending before the learned Rent Controller, who shall decide the same, after hearing the parties and of course in accordance with law.
(Malik Sharif Ahmed) Appeal allowed.
PLJ 2007 Lahore 445
Present: Muhammad Akhtar Shabbir, J.
MAMOONA SAEED--Petitioner
versus
GOVT. OF PUNJAB through Secretary, Home Department, Civil Secretariat, Lahore and 2 others--respondents
W.P. No. 10474 of 2006, decided on 17.10.2006.
Constitution of Pakistan, 1973--
----Art. 10(5)--Punjab Maintenance of Public Order Ordinance, 1960, S. 3(4)--Detention order--Violation of--Legality--Essentials--Duty of detaining authority--Requirement of the Constitution--Communication/supply of the grounds of detention is the essential requirement of the Ordinance--It is the material ingredient upon which the authority relies to pass order--Grounds if detention must proceed order of detention--It is legal duty of detaining authority to supply order of detention alongwith grounds of detention--Held: Neither order nor grounds were supplied.
[Pp. 450 & 451] A & B
PLD 1988 Kar. 237; PLD 1990 Kar. 474, ref.
(ii) Vague ground of detention--
----If any of the ground of detention is vague whole detention order would not be maintainable in law--Petition allowed. [P. 451] C
1988 P.Cr.L.J. 1790 & PLD 2005 Kar. 538, referred.
Mr. Nazeer Ahmad Ghazi, Advocate Assisted by Mr. Rafique Javed Butt, Ch. M. Zafar Iqbal and M. Anas Bin Ghazi, Advocates for Petitioner.
Mr. Muhammad Hanif Khatana, Addl. Advocate General for respondents.
Date of hearing : 17.10.2006.
Order
This habeas petition has been filed to call inquestion the legality/vires of the detention order passed by Respondent No. 2 Secretary to the Government of the Punjab, Home Department, dated 28.08.2006 detaining the husband of the petitioner Hafiz Muhammad Saeed, Ameer Jamat-ud-Dawa, Pakistan for 60 days. The grounds of detention on the basis of which the said order has been passed contemplates as under:--
(i) There is credible evidence that the activists of Jamat-ud-Dawa are collecting "chanda" under instructions from its high command; headed by Hafiz Muhammad Saeed, Ameer of Jamat-ud-Dawa.
(ii) The activists of Jamat-ud-Dawa have placed chanda boxes to collect chanda for war affectees of Lebanon and Palestine; thus, indulging in activities which are otherwise banned/prohibited under the law.
(iii) Jamat-ud-Dawa, an organization under watch headed by Hafiz Muhammad Saeed is using the territory of Punjab for meeting their agenda and risking the security of Pakistan. This may have serious repercussions on the stance of Pakistan Government and may strain its relationship with the neighbouring countries. Besides, there are some other grounds disclosure of which is against the public interest.
(iv) Continuance of his activities is likely to create unrest in the public and poses threat to public safety, maintenance of public order and security of Pakistan.
(v) The detenu shall be at liberty to make a representation to the Government against the order of detention.
At the very outset the learned counsel for the petitioner contended that the detenu had been arrested on 28.08.2006 just after his release from his previous detention under the order of the High Court and at the time of detention up to the filing of this writ petition the detention order as well as the grounds of detention have not been supplied to the detenu and for non-supplying of the detention order and the grounds of detention is sufficient to declare the detention of the detenu Hafiz Muhammad Saeed as illegal and without lawful authority. Further contended that Grounds No. 4 & 5 have already been ruled out by this Court vide order dated 28.08.2006 passed in the Writ Petition No. 8613/2006 filed by the present petitioner/wife of the detenu. Further contended that like the previous detention order, no fresh material justifying the detention of the detenu is available on the record. Continued that the "Jamat-ud-Dawa" is an N.G.O. and the services rendered by the organization have been admitted by the President of Pakistan in his book "In the Line of Fire" as well as the other international personalities. Further contended that there is no basis for Ground No. 3 if there was some material before the detaining authority this ground was not disclosed by the detaining authority while passing the earlier detention order dated 09.08.2006. The learned counsel for the petitioner has referred a clipping of press conference addressed by the Foreign Office of Pakistan Spokesman on 15.08.2006 whereby the terrorists activities against the detenu have absolutely been refuted.
On the other hand, learned Addl. Advocate General Punjab, vehemently opposed the arguments of the learned counsel for the petitioner contending that the copy of the order of detention as well as grounds of detention have been supplied to the detenu at the time of his detention. Further contended that the supply of the grounds of detention at the time of passing the detention order is not legal requirement of law. The grounds of detention can be communicated to the detenu even after some delay. Further contended that there is material before the detaining authority to justify the detention of the detenu and the, authority has the privilege not to disclose the reasons of detention if it is not in the public interest. Further contended that the detention of the detenu is not a punitive detention, it is a preventive detention to safeguard the life of the detenu, which is essential in the opinion of the detaining authority and the reasons for the said detention could not be disclosed.
I have heard the learned counsel for the parties and perused the record.
Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 provided safeguard as to the arrest and detention of a person which is reproduced as under:--
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding (three months) unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of (three months), unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, (within fifteen days) from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order:
Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
(6) .........
(7) .........
(8) .........
(9) .........
The detenu has been detained vide order dated 28.08.2006 passed by the detaining authority/Respondent No. 2. It would not be out of place to mention here that the detenu was already under detention for 30 days before passing the detention order. He was detained by Respondent No. 2 vide order dated 9.08.2006, which was set aside by this Court on 28.08.2006 and the order of detention was communicated to the authority, at 4.30 p.m. Thereafter he was released and taken to his residence but as soon as he started his night dinner, his house was surrounded by the police force and further detained for a period of 60 days.
The objection of the learned counsel for the petitioner is that neither the detention order nor the grounds of detention were supplied to the detenu at the time of his arrest till 11.10.2006, while his habeas petition has been filed by the petitioner on 2.10.2006. The learned counsel, for the petitioner explained that the delay in filing the writ petition was due to non-supply of the detention order as well as the grounds of detention. The detenu has filed his representation before the authority on 12.09.2006, which has not been decided as yet by the respondent, reasons best known to him. This writ petition came up for hearing before this Court on 10.10.2006 when the copy of the writ petition alongwith the annexures was handed over to Mr. Muhammad Hanif Khatana, Addl. Advocate General and the case was adjourned to 11.10.2006 on his request but on the said date no detention order was produced by the Addl. A.G. and he made a request for further adjournment to have fresh instructions from the concerned quarters and the case was further adjourned to 16.10.2006 and on the said date the detention order alongwith the grounds of detention have been filed in the Court. From the perusal of the fresh detention order it indicates that by endorsing the said order a copy of the same was forwarded for information and necessary action to the Provincial Police Officer, Punjab, Lahore for service upon the detenu and thereafter copy of the order duly received by the detainee and attested by the serving officer was to be sent back to this Department for record.
Learned Addl, Advocate General when asked to show any record or document that the copy of the order was communicated to the detenu or it was received by him from the serving officer in compliance with the detention order of the Home Department, has miserable failed to produce any material to support the assertion of supplying the copy of the detention order or the grounds of detention. So much so no counter affidavit has been filed by the respondents to contradict the contents of the writ petition and the objections raised by the learned counsel for the petitioner. Sub-Article (5) of Article 10 provided that for a preventive detention the authority making the order shall, (within fifteen days) from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. It has not been denied by the respondents or the Addl. A.G. that the representation has been filed by the detenu on 12.09.2006 and till date the representation has not been decided. It is also mentioned in the representation that the copy of the detention order and grounds of detention have not been supplied to the detenu. This allegation has not been denied by the learned Addl. Advocate General rather stated that the delay in supplying the grounds of detention is not fatal to the case of the respondents because one of the grounds of detention is the privilege of the authority not to disclose the facts which have been considered while passing the order of detention.
Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 provides safeguard as to arrest and detention of a citizen of the country. First basic principle envisaged therein that no person shall be arrested and detained in custody, without being informed, as soon as may be, of the grounds for such arrest. Clause (2) of this Article covers the case of a person who is arrested for a substantive offence and the requirement is specified that he has to be produced before a Magistrate within 24. hours for obtaining a remand. Clause (4) of this Article relates to the cases of preventive detention as is the case of the detenu. Clause (5) of the Article contemplates that grounds of detention shall be communicated within 15 days from such detention, which means that 15 days time has been allowed by the Constitution. It is the maximum limit for supply of grounds of detention and it can be done even earlier than that period. This requirement of the Constitution has to be kept in view at the time of detaining a person or dealing with the cases of detention.
Section 3(6) of the Punjab Maintenance of Public Order Ordinance, 1960 further provided that where a detention order has been made under this section the authority making the order shall, as soon as may be communicated to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so. In this context the provision of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973, will attract the case, which contemplates that communication of the grounds shall be made within 15 days and it is the maximum limit of delay and the words "as soon as" appearing in Section 3(6) of the Ordinance shall be interpreted or read in such a way that it would be consistent with requirement of the Constitution.
Communication supply of the grounds of detention is the essential requirement of the Ordinance for the reason that it is the material ingredient upon which the authority relies to pass order of detention so it can be presumed that grounds of detention must precede order of detention, which would indicate that first there should be grounds in the form of material which is to be considered by the authority to pass the order of detention so existence of grounds of detention is to be supposed pre-supposed.
In view of the above referred provision of the Constitution as well as the Ordinance, it is the legal duty of the detaining authority to supply the order of detention alongwith the grounds of detention simultaneously. But in the case in hand, neither the order of detention nor grounds of detention were supplied to the detenu. It was done so when this Court has taken note of the situation. The objection raised by the learned counsel for the petitioner that at the time of filing of the writ petition the respondents have neither supplied the detention order nor the grounds of detention and they have violated the mandatory provisions of the Constitution as well as the Ordinance. This allegation/objection has not been controverted by producing some oral or documentary evidence, so much so, no counter affidavit rebutting the grounds and objections, raised by the petitioner has been filed. Reference in this context can be made to the cases of Ghulam Ahmed Vs. Government of Sindh and another (PLD 1988 Karachi 237) and Ahmed Fahim Mughal Vs. Muhammad Saleem Khan, District Magistrate & D.C. (South), Karachi and 2 others (PLD 1990 Karachi 474).
This Court has already given its opinion with regard to Grounds No. 4 & 5 and the grounds of detention. So far as Grounds No. 1 & 2 are concerned, these are vague and it is settled proposition of law that if any of the ground of detention is vague the whole detention order would not be sustainable in law. Reference in this context can be made to the cases of Gulzar Ahmad Vs. District Magistrate and another (1988 P.Cr.L.J 1790), and Arbab Akbar Adil Vs. Government of Sindh through Home Secretary, Government of Sindh, Karachi (PLD 2005 Karachi 538).
As argued by the learned Addl. Advocate General that the detention of the detenu was; not a punitive, it was a preventive detention to safeguard the life of the detenu but it is essential that this reason or ground should have been disclosed to the detenu himself so that he should decide that whether he would like to stay in detention or he can manage himself for his own safety. So far as the question of creating law and order situation or the activities of the detenu prejudicial to the public interest, even this time the respondents have not been able to establish on the record their case for maintaining the detention of the detenu.
For the facts and reasons mentioned above, I am of the considered view that the detention order dated 28.08.2006 passed by Respondent No. 2 is illegal and not sustainable under the law, as such I hereby quash the same. In the result, petition is allowed. The detenu shall be set at liberty forthwith if not required in any other case.
checking of visitors at the gate, was absolutely contrary to the law and facts of the case. The duty of a gate keeper is not only to maintain entry register rather he is also responsible for the body search of the visitors, therefore, his reinstatement in service was not justified.
(Waseem Iqbal Butt) Order accordingly
PLJ 2007 Lahore 452
Present: Maulvi Anwarul Haq, J.
GHULAM SABIR and others--Petitioners
versus
ELAHI BAKHSH and others--Respondents
Civil Revision No. 747 of 1992, decided on 8.11.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Once it is found that an entry has been unlawfully altered, it shall be deemed that the old correct entry always continued--Revision dismissed. [P. 454] A
1997 SCMR 338, referred.
Mr. Allah Wasaya Malik, Advocate for Petitioners.
Rana Muzaffar Hussain, Advocate for Respondents.
Date of hearing : 8.11.2006.
Judgment
On 7.7,1981 Fraza, the predecessor-in-interest of the Respondents (hereinafter to be referred to as the plaintiff) filed a suit against the petitioners. It was stated in the plaint that as per entries in the Jamabandi for the year 1944-45 he was owner of 1/18 share in land measuring 54 kanals 14 marlas comprising Khata No. 376/369. Vide mutation No. 1154 attested on 24.5.1946 he purchased the share of his brother, namely, Jewna measuring 3 kanals one marla in the same Khata and thus became owner of 1/9 share in the said Khata. While preparing Jamabandi for the year 1950-51, Khata No. 376 was bifurcated into Khewat No. 362 measuring 48 kanals 11 marlas and Khewat No. 363 measuring 6 kanals 3 marlas. However, the name of the plaintiff was omitted from the said Khewat No. 362. he was, thus, deprived of land measuring 5 kanals 8 marlas being 1/9 share of Khewat No, 362. This land was later included in the Khata of Naza, the predecessor-in-interest of the petitioners. These wrong entries continued till 1971. Consolidation process was effected in the village in the year 1979-80 and because of the said omission, he was deprived of the said land. He came to know about this fact in the year 1981. According to him; he is continuing in possession of the said land. The new numbers according to the consolidation proceedings were also stated in the plaint. He accordingly prayed for a declaration. The suit was contested by the petitioners. It was objected that the suit is not maintainable as he is not in possession and that the suit is barred by time. However, so far as the said material contents are concerned, there is no specific denial except that the mutation is fictitious and without consideration. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 30.10.1986. A first appeal filed by the petitioners was dismissed by a learned ADJ-I, Bhakkar, on 11.7.1991.
Learned counsel for the petitioners contends that the evidence on record has been mis-read. According to him, where as Fraza was omitted from the Khewat No. 362 in 1950-51, Naza was omitted from Khewat No. 363. His contention is that the plaintiff ought to have sought a declaration that he is the exclusive owner of the newly created Khewat No. 363 measuring 6 kanals 3 marlas. According to him, no land belonging to the plaintiff was allocated to the petitioners in consolidation. Learned counsel for the respondents, on the other hand contends that it is almost an admitted position on record that the plaintiff was owner of 1/9 share in Khewat No. 376 and because of the said omission, there has been a shortfall of 5 kanals 8 marlas in his ownership.
I have gone through the copies of the records. Ex.P.8 is the copy of the Jamabandi for the year 1944-45. In Khewat No. 376 Jewna and Fraza sons of Haider are recorded to be owners of 1/3 share out of 1/3 of the said Khewat which comes to 1/9. According to the copy of Mutation No. 1152 Jewna transferred his 1/18 share in favour of Fraza. This mutation stands referred to in the remarks column of Ex.P.8. Now Ex.P.9 is the copy of Jamabandi for the year 1950-51. Khewat No. 376 was bifurcated into Khewats No. 362 and 363. Khewat No. 362 measures 48 kanals 11 marlas and name of Fraza plaintiff is missing. Khewat No. 363 measuring 6 kanals 3 marlas and Fraza plaintiff is recorded as owner of 1/9 share therein. This omission continued in the latter Jamabandi till such time mat consolidation took place.
Now the only objection raised in the written statement is that the mutation is fictitious. However, nothing turns on the same as Jewna, admittedly, the brother of the plaintiff; never questioned the said mutation. Apart from this, no challenge was thrown to the statement of the plaintiff as PW-4 and of Abdul Rehman, Patwari, as PW-1 regarding the said mutation. Similarly, not a word was stated by DWs about the said mutation, I do, therefore, find that the plaintiff was owner of 1/9 share in erstwhile Khewat No. 376 measuring 54 kanals 11 marlas but while preparing the record for the year 1950-51, his name was omitted from Khewat No. 362 measuring 48 kanals 11 marlas.
The repot prepared by Abdul Rehman, Patwari Consolidation, PW-1, is in accordance with the said record and fully supports the plaintiff's case. To similar effect is the statement of PW-2 Ghulam Jaffar, the Circle patwari. It is true that according to Khatuni Ex.P.7, Fraza had been given 9 kanals 5 marlas of land but there is no denial on record that he was owner of other land as well and in the present suit he complained of the said shortfall because of the said error in the revenue records.
Now it is well settled that once it is found that an entry has been unlawfully altered, it shall be deemed that the old correct entry always continued. Reference be made to the case of Misri through Legal Heirs and others v. Muhammad Sharif and others (1997 SCMR 338).
So far as the said other contention of the learned counsel is concerned, the same is without any force, the reason being that there is no denial regarding the actual ownership of the plaintiff in the erstwhile Khewat and the adjustment will be made accordingly after correcting the entries as held by the learned Courts below. The civil revision accordingly is dismissed but without any orders as to costs.
(Malik Sharif Ahmed) Revision dismissed.
PLJ 2007 Lahore 454
Present: Syed Sakhi Hussain Bukhari, J.
ASIF MANZOOR MOHAL--Petitioner
versus
MUHAMMAD YAR MAMOONKA--Respondent
Election Petition No. 56 of 2002, heard on 17.11.2006.
(i) Representation of the People (Conduct of Election) Rules, 1977--
----Ss. 8(2), 39, 26(2-9), 68 & 70--Election Petition--Declaration of the election results--Tribunal would declare the election as a whole to be void if it is satisfied that the result has been materially affected--If result of election was not materially affected then declaration of election could not be made by Tribunal (D.R.O)--As per S. 8(2), subject to direction of commission, the Distt. Returning Officer would make alteration in the list of polling stations as he deems necessary and was bound at least 15 days before the polling day to publish in official gazette, the final list of polling stations. [Pp. 457 & 458] A & B
(ii) Representation of the People (Conduct of Election) Rules, 1977--
----Ss. 8(2), 39, 26 (2-9), 68 & 70--Election Petition--Declaration of the election results--Election was not conducted at the polling station notified by District Returning Officer but at the make-shift polling station abruptly established--The shifting so made in the venue of polling station was thus in utter violation and dis-regard of the polling scheme as notified by D.R.O.--It was not at all open to the R.O. or the election staff subordinate to shift the polling station to any other venue. [P. 458] C
(iii) Representation of the People (Conduct of Election) Rules, 1977--
----Ss. 8(2), 39, 26 (2-9), 68 & 70--Election Petition--Declaration of the election results--It was obligatory for R.O to examine the rejected ballot papers at the time consolidating the results of the count--Number of rejected votes stood 1916, whereas, respondent was declared to be the returned candidate by margin of 1237 votes--Tribunal had not been left with any alternative, except to declare the election as a whole to be void, if it was satisfied that the result of election had been materially affected--Petition accepted. [P. 458] D
Dr. Muhammad Mohy-ud-Din Qazi, Advocate for Petitioner.
Mr. Jhangir Akhtar Jhojha, Advocate for Respondent.
Date of hearing : 17.11.2006.
Judgment
Asif Manzoor Mohal (petitioner) has prayed for declaration of the election result of returned candidate (Muhammad Yar Mamoonka, Respondent No. 1) to be void.
Relevant facts for the disposal of this petition are that petitioner and Respondents Nos. 1 to 5 contested the election for the seat of Provincial Assembly (PP 280 Bahawalnagar-IV) which was held on 10.10.2002. Respondent No. 1 has been declared as returned candidate from the said constituency with a margin of 1237 votes and notification was accordingly issued, It is the case of petitioner that Respondent No. 1 committed illegal and corrupt practices in collusion with polling staff which has materially affected the election result. He maintains that he obtained highest number of votes as compared to the votes cast in favour of other candidates but Returning Officer in illegal and arbitrary manner with malafide intention, prepared result on the basis of wrong calculation of figures and declared Respondent No 1 as returned candidate. The polling stations were duly notified vide gazette Notification dated 10.9.2002 and Government Primary School, Qadirpur was notified as Polling Station comprising two areas (Amin Abad and Kanwarpura) having total number of 1085 votes. He adds that at the behest of Respondent No. 1 in an illegal and arbitrary manner and in flagrant violation of the polling scheme, polling station was shifted to a place three miles away in a building which was not duly notified, therefore, petitioner and voters of the area were not aware about the shifting of the polling station. The Returning Officer did not issue notice to the contesting candidates, particularly, the petitioner or his election agents for consolidation of results of the count of 109 polling stations, furnished by Presiding Officers, hence, violated provisions of S. 39 of the Act, The petitioner asserts that consolidated statement of result of count was prepared with malafide intention and calculation of total number of votes polled in flavour of Respondent No. 1, is incorrect as having been recorded in excess. The Returning Officer failed to open packets containing 1916 ballot papers which were excluded from the count in violation of S. 39 of the Act, read with Rule 26 (2-9), of the Representation of the People (Conduct of Election) Rules, 1977, therefore, election result has been materially affected The election agents of the petitioner, sent a complaint to the Chief Election Commissioner requesting him to issue direction to Returning officer for recounting of votes and consolidation of election result in accordance with provisions of S. 39 and report was called but the same was deliberately delayed by Returning Officer and he notified Respondent No. 1 as returned candidate. Respondent No. 1 in collusion with District Administration and Govt. Functionaries lodged false FIRs in respect of different villages, where polling was stopped for several hours and voters could not exercise their right of franchise.
Notices were issued to respondents but Respondents Nos. 2 to 5 did not appear despite service, therefore, they were proceeded against exparte. However, Respondent No. 1 mentioned in reply that petitioner has not given full particulars of the alleged corruption or illegal practice. He further mentioned that Returning Officer consolidated the result correctly and Presiding Officers counted the votes in accordance with law. He has not committed any illegal or corrupt practice and allegations are false and baseless. The polling staff conducted the election fairly and there was no collusion between Respondent No. 1 and polling staff, there is a difference of 1237 votes according to the record. Neither polling scheme was changed nor any new polling station was established. The Returning Officer issued notices to all contesting candidates including petitioner for consolidation of result on 12.10.2002. On the pleadings of the parties, following issues were framed:--
"1. Whether the petition is liable to be dismissed due to mis-joinder and non joinder of parties? OPR-I
Whether this petition is liable to be dismissed in view of preliminary objection No. 2 OPR.
Whether Respondent No. 1 obtained result of election through male practice? OPA
Relief."
The parties adduced evidence in support of their respective claims. The petitioner examined six witnesses in support of his case, whereas, Respondent No. 1 produced seven witnesses
ISSUE No. 1
ISSUE. NO. 2.
ISSUE NO. 3.
Although by making a formal application a demand was made by the petitioner for recounting of the votes cast at the election, yet learned counsel for the petitioner vide his statement dated 8.11.2006, has given up that plea and presses for the disposal of election petition on the score of material available on record. Similarly, although in the election petition setting aside of the election was sought on account of the alleged prevalence of rioting on certain polling stations, yet the said plea has also been given up.
It has been mainly argued that the election in question should be declared as a whole to be void on account of failure of the concerned election authorities to comply with the relevant provisions of the Act and the Rules. This demand is obviously being made by reference to S. 70(a) of the Act, according to which, Tribunal shall declare the election as a whole to be void if it is satisfied that the result has been materially affected. This quite clearly means that if result of election was not materially affected then the said declaration in accordance with the said provisions cannot be made by Tribunal. So, therefore, for the resolution of crucial point it becomes necessary to see whether the result of the election in the instant case was materially affected by violation of the law as canvassed on behalf of the petitioner. It has been argued that according to S. 7(4) it was the duty of the Returning Officer to do all such acts and things as may be necessary for effectively conducting election in accordance with provisions of Act and Rules. Also that vide Section 8(2), subject to the direction of Commission, D.R.O., (District Returning Officer), would make such alteration in the list of polling stations submitted under sub-section (1) as he deems necessary and was bound at least 15 days before the polling day to publish in official gazette, the final list of polling stations. The precise objection, raised is that polling station No. 20 was notified to be established in Govt. Boys Primary School, Qadirpur but, in fact, election was not held at the polling station so notified. Instead of the said polling station, polling was admittedly conducted in village `Kanwarpura'. Syed Imam Ah Shah (R.O.) while appearing as AW1 quite surprisingly could not say where the election was, in fact, held. It is in the statement of RW7 (Respondent NO. 1) that the election was not conducted at the polling station notified by District Returning Officer but at the make shift polling station abruptly established at Kanwarpura. The shifting so made in the venue of polling station, was thus in utter violation and dis-regard of the polling scheme as notified by D.R.O. and hence, it was not at all open to the R.O. or the election staff subordinate to him to shift the polling station to any other venue. This was quite clearly illegal and there can be no question of condoning the said illegality.
Likewise, it was obligatory for R.O. to examine the rejected ballot papers at the time of consolidating the results of the count. Giving evidence as AW1 Syed Imam Ali Shah (R.O.) states in examination in chief that he had not examined the rejected votes at the time of consolidating the results of the count. Had the illegality so committed not materially affected the result of election, it could have been easily ignored. But in the instant case, the position is totally different. The total number of rejected votes stood at 1916, whereas, respondent was declared to be the returned candidate by a margin of 1237 votes, therefore, it is a clear cut case where the result of election has been materially affected on account of the illegality in the process of election on the part of R.O. Even though, it may not be possible for this Tribunal to render any decision as against the respondent in accordance with the provisions contained in S. 68 of the Act, yet it is not possible to uphold the election in view of the mandate of S. 70(a) of the Act, according to which, this tribunal has not been left with any alternative, except, to declare the election as a whole to be void, if it is satisfied that the result of election has been materially affected. For what has been discussed, I am of the considered opinion that non compliance and violation of statutory provisions of Act and Rules, mentioned above, has rendered the election as a whole to be void, So, Issue No. 3 is decided in favour of petitioner.
The upshot of the above discussion is that this election petition is accepted; election in PP 280-BWN-IV is declared as a whole to be void. Consequently, fresh election may be held in this constituency in accordance with law. No order as to costs.
(Fouzia Fazal) Petition accepted.
PLJ 2007 Lahore 459
Present: Maulvi Anwarul Haq, J.
IMAM ALI--Petitioner
versus
MUHAMMAD SIDDIQUE and 3 others--Respondents
C.R. No. 2069 of 2000, heard on 30.10.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 114--Suit for possession through pre-emption--Petitioner got the thumb impression of the witnesses on the notice--Thumb-impressions were obtained on blank papers and thereafter the notice was typed--When notice was being typed the witnesses had left for their village--Petitioner did not know at all as to what was written in the notice--Allegation of--Petitioner went to the house of the respondent with the consideration amount and he refused to accept it stands duly rebutted on record while it was in the statement of the petitioner himself that no valid notice evidencing Talb-i-Ishhad was given--Making of a valid talb-i-ishhad had not been proved on record--Revision dismissed. [P. 462] A
Hafiz Khalil Ahmad, Advocate for Petitioner.
Mr. Saiful Malook, Advocate for Respondents.
Date of hearing : 30.10.2006.
Judgment
Vide mutation No. 1550 attested on 29.10.1991 the suit land was acquired by Respondent No. 1 from Respondent No. 2, a brother of the petitioner. On 22.12.1991 the petitioner filed a suit for possession of the suit land by Pre-emption. According to him, he was a Shafi Sharik, Khalit and Jar. He further stated that a fictitious transaction of exchange was got recorded vide mutation No. 1550 whereas the land was, in fact, sold by Respondent No. 2 to Respondent No. 1 for a consideration of Rs. 50,000/-. It was further pointed out that simultaneously with mutation No. 1550, mutation No. 1552 was got attested on 29.10.1991 whereby the land allegedly given in exchange was sold to Respondents No. 3 and 4, the minor sons of Respondent No. 1 for Rs. 45,000/-. Performance of talbs was pleaded. The suit was contested primarily by Respondent No. 1 stating that, he has, in fact, got the land in exchange and further that talbs have not been performed. Following issues were framed by the learned trial Court:--
Whether the suit of the plaintiff is bad for mis-joinders of necessary parties? OPD.
Whether the plaintiff has got no cause of action against the defendants? OPD.
Whether the plaintiff is estopped from his own words and conduct to file the suit? OPD.
Whether the plaintiff has already waived his right of preemption and his suit is liable to be dismissed? OPD.
Whether the suit is not properly valued for the purpose of Court-fee and jurisdiction? If so, then what is the correct value of the suit land? OPD.
Whether the defendants are entitled to recover special costs under Section 35-A CPC from the plaintiff? OPD.
Whether the defendants are entitled to recover expenses incurred on the execution of transaction of exchange in case the suit of the plaintiff is decreed? OPD.
Whether the disputed land was actually sold in consideration of Rs. 50,000/- and in order to defeat the superior right of preemption of the plaintiff an oral exchange mutation was entered in the revenue record? OPP.
Whether the plaintiff has superior right of pre-emption against the defendants? OPD.
Whether the plaintiff has fulfilled pre-requisites of Talbs in accordance with law and he has also mentioned Zarar and Zaroorat in accordance with law? OPP.
Whether the plaintiff is entitled to decree as prayed for? OPP.
Relief.
Evidence of the parties was recorded. All the issues were found in favour of the petitioner and the suit was decreed subject to deposit of Rs. 50,000/- vide judgment and decree dated 22.12.1996. The Respondent No. 1 filed a first appeal which was allowed by a learned ADJ, Ferozwala, on 22.3.1999. The findings on issues No.8 and 10 were reversed.
Learned counsel for the petitioner contends that the learned ADJ has acted with material irregularity in the exercise of his jurisdiction while holding the transaction to be an exchange as also mis-read the evidence on record while reversing the findings of the learned trial Court in the matter of talbs. Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree of the learned ADJ with reference to the evidence on record.
I have gone through the copies of the available records, with the assistance of the learned counsel for the parties. So far as the matter of nature of transaction is concerned, I do find that both mutations No. 1550 as well as 1552 were taken up and attested on 29.10.1991. Vide the latter mutation, the land stated to be given in exchange was sold to the minor sons of the Respondent No. 1. There is no explanation forthcoming on record for the said conduct. It will, thus, be seen that the vendor i.e. Respondent No. 2 never became the owner of the said land given in exchange for a moment which was simultaneously sold back to the sons of the Respondent No. 1 for consideration. In somewhat similar circumstances, in the case of Syed Shahbaz Hassan v. Syed Muhammad Hussain and others (1977 SCMR 197), the Hon'ble Supreme Court held the transaction to be one of sale and not of exchange. I, therefore, set aside the findings recorded by the learned ADJ on issue No.8 and restore those of the learned trial Court.
Now so far as the matter of talbs is concerned, it was stated in para-3 of the plaint that the petitioner came to know about the sale on 13.12.1991 and made a talb. It was then stated in para-7 that the petitioner went to the house of the Respondent No. 1 with the witnesses and offer Rs. 50,000/- but he refused and thus he made the talb-i-ishhad. Thereafter, he sent a notice duly attested by three truthful witnesses to the Respondent No. 1 under registered cover A.D.
The Respondent No. 1 denied the said facts. The petitioner appeared as PW-9 on 6.7.1996 and stated that four years and 1s month ago, he was sitting at the Dera of Munir alongwith Nazir and Munir when Manzoor came; and informed that he had gone to sell milk to the vendor who has stated that he has sold the land to Siddique (Respondent No. 1) whereupon he stated that he has superior right of pre-emption and he will file a suit. The said Manzoor appeared as PW-5 while Nazir Ahmad appeared as PW-6. In the matter of talb-i-muwathibat nothing derogatory could be brought out in the cross-examination. To my mind, the first talb stands established on record. Now in the matter of talb-i-ishhad, Manzoor Ahmad PW-5 stated that they went to the house of Respondent No. 1 but he refused to take the money. Thereafter they came to the Courts, consulted a lawyer who wrote a notice (E.x. P.3) and he affixed his thumb impression. Nazir Ahmad is PW-6. He stated that he alongwith petitioner, Munir Ahmad and Manzoor Ahmad went to the house of the Respondent No. 1 and gave him Rs. 50,000/- but he stated that he will not take the money. They then came to the Courts and a notice was got typed by a lawyer, which was signed by Munir, Manzoor and himself. He then stated that he thumb marked the notice Ex.P.3. Now the petitioner appeared as PW-9 to state that next day after acquiring knowledge he went to the house of the vendee alongwith Manzoor, Nazir and Munir. He offered the money to Respondent No. 1 who refused and the following day, he went to the Courts alongwith the witnesses, got the notice typed which was thumb marked by the witnesses and he posted the same under registered cover.
Now Siddique Respondent No. 1 has appeared as DW-3 to state that the petitioner never made a talb and never came to him with any person and that Imam Ali petitioner and his witnesses are lying. Now so far as the matter of the said notice (Ex.P.3) is concerned, I am afraid that the petitioner himself negated the testimony of his said witnesses. In the course of his cross-examination, he has stated that he got the thumb impressions of the witnesses on the notice. He admitted without any demur that the thumb impressions were obtained on blank papers and thereafter the notice was typed. He was further cross-examined and he admitted that when notice was being typed the witnesses had left for their village. He has further stated that he does not at all know as to what was written in the notice. To my mind, the allegation that the petitioner went to the house of the Respondent No. 1 with the consideration amount and he refused to accept it stands duly rebutted on record while it is in the statement of the petitioner himself that no valid notice evidencing talb-i-ishhad was given. I, therefore, do confirm the finding of the learned ADJ that making of a valid talb-i-ishhad has not been proved on record. Because of this latter finding, the impugned judgment and decree of the learned ADJ cannot be interfered with in exercise of revisional jurisdiction. The civil revision accordingly is dismissed. However, the parties are left to bear their own costs.
(Fouzia Fazal) Revision dismissed.
PLJ 2007 Lahore 463 (DB)
Present: Muhammad Akhtar Shabbir and Syed Asghar Haider, JJ.
ABDUS SATTAR CHUGHTAI MALIK--Appellant
versus
PAKISTAN BAR COUNCIL through its Secretary
and another--Respondents
ICA No. 297 of 2006 in Writ Petition No. 10590 of 2006, decided on 19.10.2006.
(i) Legal Practitioners and Bar Councils Act, 1973 (XXXV of 1973)--
----Rr. 55(u) & 56--Supreme Court Bar Association, Rules, Rr. 9(a) & 43--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Amendment in term--Memorandum of Association--Reduction of term of office-bearers and Executive Committee of Supreme Court Bar Association from two years to one year--Amendment of--Statute--Appellant would have agitated matter in assembly of lawyers of Supreme Court Bar Association--General House is empowered to make amendment in relevant rules of Association provided in R. 43--Appellant has not resorted to this remedy--Rules are not statutory in nature, therefore, any violation of statutes, regulations would not attract Constitutional jurisdiction of High Court u/Art. 199 of Constitution--Supreme Court Bar Association is a body, organization of lawyers, who are entitled to practise in Supreme Court of Pakistan, it has not been constituted under any Act of Parliament--It is non-statutory body therefore, conditions or rules framed by this body would also be non-statutory rules and having no legal backing--Writ petition u/Art. 199 of Constitution against a body, organization not constituted under law would not be competent--Appeal was dismissed. [Pp. 465 & 467] A, B & D
1999 PLC (CS) 60; NLR 1995 CLJ 219; 1995 SCMR 453 and PLD 1984 S.C. 194, ref.
(ii) Interpretation of Statute--
----Statute Law' is defined as will of nation, expressed by legislature, expounded by Courts of Justice--If Parliament is not in session then laws are enforced through Ordinances issued by President or Governor expressing will of nation as case may be--So, Act passed by Parliament and
Ordinance issued by nation would be calledStatutory Law'. [P. 466] C
Mr. Abdus Sattar Chughtai Malik, Advocate Appellant in Person.
Date of hearing : 19.10.2006.
Order
This Intra Court Appeal arises out of the order dated 06.10.2006 passed by the learned Single Judge in Chamber in Writ Petition No. 10590/2006.
"It is, therefore, respectfully prayed that the. petition in hand may please be accepted, consequently amendment of Rule 9(a) in respect of reduction of the tenure qua the Supreme Court Bar Association from two years to one year approved by the Association vide meeting dated 28.02.2003 may kindly be declared illegal, unlawful and inoperative, resultantly Notice of the meeting dated 27.09.2006 may also be declared without lawful authority and be set aside in the interest of justice.
It is further prayed that operation of the Notice dated 27.09.2006 regarding the Annual General Meeting to be convened on 29.10.2006 and consequential election of the Supreme Court Bar Association may please be suspended till the final disposal of the writ petition for fair administration of justice."
The main grievance of the appellant in the writ petition is that the reduction of the term of the Office Bearers and the Executive Committee of the Supreme Court Bar Association from two years to one year is not in the interest of the Association and the elected office bearers are not in a position to achieve their object for which they have contested the election and the term of one year for Supreme Court Bar Association is ridiculously low and deficient for performing of their obligations to achieve the goal.
The arguments of the appellant have been opposed before the learned Single Judge by Mr. Ali Akbar Qureshi, Secretary and Mr. Zaka-Ur-Rehman Vice President of the Supreme Court Bar Association, who submitted that amendment so made in the Rules 8, 9 & 12 is in the best interest of all the members of the association who represent all the four provinces of the country, 5. None of the office bearer or member of the executive committee has supported the appellant's case and if the amendment made in the Constitution of the Supreme Court Bar Association is recalled their term for more one year would be extended.
All the members of the Supreme Court Bar Association, who are equipped with knowledge, experience and wisdom, if they desire so, can convene the meeting of the house and resolve the controversy raised by the appellant. He should have agitated the matter in the assembly of the lawyers of Supreme Court Bar Association. The General House is empowered to make the amendment in the relevant rules of the Association provided in Rule 43 ibid. The appellant has not resorted to this remedy, the reasons best known to him.
No Elected Representative of the Supreme Court Bar Association or any other members of the Bar has supported the appellant in this matter. The contentions of the appellant having no force are repelled.
The rules are not statutory in nature, therefore, any violation of the statutes, regulations or rules would not attract the Constitutional jurisdiction of this Court under Article 199 of the Constitution, In this context reference can be made to the cases of Dr. M. Afzal Beg Vs. University of Punjab and others (1999 PLC (C.S). 60), Khalid Hussain Vs. The Chancellor, (Governor of Punjab), etc. (NLR 1995 CLJ 219), Muhammad Umar Malik, Vs. The Muslim Commercial Bank through its President, Karachi and 2 others (1995 SCMR 453) and Anwar Hussain Vs. Agricultural Development Bank of Pakistani and others (PLD 1984 S.C. 194).
Under Section 55(u) of the Legal Practitioners and Bar Council Act, 1973, Pakistan Bar Council has powers in matters of recognition and functioning of the Supreme Court Bar Association or any Bar Association of national level whereas Section 56 of the same Act expressly and necessarily intendment, empowers Punjab Bar Council to adjudicate matters of recognition and functions of all Bar Associations in the Province of Punjab.
9-A. Under Rule 56 of the Legal Practitioner and Bar Councils Act, 1973, the Punjab Bar Council had framed the rules called as "Memorandum of Association" which are applicable to all the Bar Associations of the Punjab except the High Court Bar Association. No rule has been framed by the Pakistan Bar Council in this regard for functioning of a Supreme Court Bar Association or any Bar Association at the national level.
9-B. The appellant has been asked to establish that whether the rules of the Supreme Court Bar Association are statutory in nature, could not respond.
The Parliament is the law making authority. It passes the Acts and empowers the Government under the relevant Act to make Rules for carrying on the business. A statute is the formal "expression" in writing of the will of the legislative organ in a State. A "Statute" is a declaration of the law, as it exists or as shall be from the time at which such statute is, to take effect. It is usually called an Act of the Legislature. It expresses the collective will of that body. A Statute is the highest constitutional formulation of law, the means by which supreme legislature, after the fullest deliberation expresses its final will.
"Statute law' is defined as the will of the nation, expressed by the Legislature, expounded by the Courts of Justice. If the Parliament is not in session then the laws are enforced through the Ordinances issued by the President or the Governor expressing will of the nation as the case may be. So, the Act passed by the Parliament and the Ordinance issued by the nation would be called the Statutory Law.
The Rules framed under the powers conferred by an Act are integral part of the Act and these Rules are called Statutory Rules and these are held to be part of the parent Act. It can do any thing if within its scope. The Rules or the Bye-Laws made under the Statutes or Act cannot over ride the provisions of other Statute. Neither the Rules control the construction to be placed on the provisions of the Act nor they can enlarge the meaning of the Section. The Rules are framed under the Act in aid to construction of ambiguous Statutes. The Rules under the Act shall be made by the Authority empowered under the Act to frame the Rules or Bye-Laws. No other authority who is not empowered under the act make the Rules. A Rule Making Body also cannot frame the Rules in conflict with or derogating from the substantive provisions of law or Statute under which the Rules are framed.
Where the statutory corporation, body or organization enact laws, rules of their own they are called bye-laws. The term bye-laws applies to the local laws or regulations made by the public bodies of municipal kind or concerned, with . local Government or by Corporations, or organizations. Universities, or societies formed for commercial or other purposes including gas, water, railway companies, educational institutions, trade unions, etc. and these bye-laws must be made sanctioned and published in the manner prescribed by Statute which authorizes them. By-laws (Rules and Regulations) are framed by the Corporation or statutory bodies for carrying out their purpose or administration. All Bye-Laws made by subordinate authorities are subject to system of check. The Bye-Laws are required the approval of different concerned Government Departments. The Rules or Bye-Laws not framed by the Government or framed by the Corporation, if are not approved by the Government would be called non-statutory rules. A reference in this context can be made to the cases of Anwar Hussain Vs. Agricultural Development Bank of Pakistan and others (PLD 1984 S.C. 194), Mr. Anisa Rehman Vs. P.I.A.C. and another (1994 SCMR 2232), University of the Punjab, Lahore Vs. Ch. Sardar Ali (1992 SCMR 1093), Khalid Hussain Vs. The Chancellor (Government of Punjab), etc (NLR 1995 CLJ 219), and Ijaz Hussain Suleri Vs. The Registrar and another (1999 SCMR 2381).
The Supreme Court Bar Association is a Body, the Organization, of lawyers, who are entitled to practice in the Supreme Court of Pakistan it has not been constituted under any Act of the Parliament. It is a non-statutory body, therefore, conditions or rules framed by this body would also be non-statutory rules and having no legal backing. The writ petition under Article 199 of the Constitution against a body, organization not constituted under the law would not be competent.
The appellant has not been able to assist the Court to believe that the rules of the Supreme Court Bar Association are statutory in nature.
In view of the above discussion and in following the dictum laid down by the Honourable Supreme Court in the preceding paragraphs, we find so substance in this appeal, which is dismissed in limine.
(Saeed Anwar) Appeal dismissed.
PLJ 2007 Lahore 467
Present: Sayed Zahid Hussain, J.
SH. MUHAMMAD ARSHAD--Appellant
versus
SH. MUHAMMAD ASGHAR--Respondent
R.S.A. No. 70 of 1999, heard on 19.10.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Suit for recovery on the basis of a negotiable instrument i.e. promissory note--Dismissal of--Appeal was accepted--Assailed--Legality of--Suit was filed by respondent in Court of Distt. Judge--It was initially being tried and purports to have been transferred later on to Civil Court who framed the issues and conducted further proceedings--Addl. Sessions Judge sent it to Civil Court with reference to some order of Addl. Sessions Judge--It is a vague order which does not make mention of even date of order of Distt. Judge--Case does not have any such order of Addl. Sessions Judge and none found even otherwise--Since very basis of transmission of suit to civil judge is missing, proceedings conducted by that Court as also the consequential judgments on a mistaken assumption lose legal efficacy--Suit filed by respondent thus needs to be tried by Addl. Sessions Judge from the stage onwards when he passed order for transferring suit--Appeal accepted.
[Pp. 468, 469 & 470] A & B
Syed Mumtaz Hussain, Advocate for Appellant.
Mr. Muhammad Aslam Buttar, Advocate for Respondent.
Date of hearing : 19.10.2006.
Judgment
It is litigation inter-se the two brothers, which commenced with the institution of a suit for recovery of Rs. 1-lac under Order 37 of the Code of Civil Procedure, 1908. The suit was filed by the respondent in the Court of learned District Judge, Lahore, which was entrusted to a learned Additional District Judge, Lahore who granted leave to defend conditionally on 30.5.1992. It remained in that Court till 9.1.1993. On the said date (9.1.1993) the file was sent by the learned Additional District Judge to the Court of Mr. Fazal Zada, Civil Judge, Lahore in view of some order of the learned District Judge, Lahore. Further proceedings then were conducted by the learned Civil Judge who dismissed the suit on 4.5.1995. Appeal preferred there against was however accepted by a learned Additional District Judge, Lahore on 14.4.1999 and the suit was decreed. This is second appeal by the defendant qua the judgment of the learned appellate Court.
On the last date of hearing it was brought to the notice of the Court that since the suit had been filed under Order 37 of the Code of Civil Procedure, 1908, on the basis of a negotiable instrument i.e. promissory note, the legality of the proceedings and judgments rendered by the Courts required examination.
Admittedly the suit was based on a negotiable instrument and was filed as such under Order 37 of the Code of Civil Procedure, 1908 by presenting the plaint before the learned District Judge, Lahore. It was initially being tried by a learned Additional District Judge, Lahore and purports, to have been transferred later on to the Civil Judge on 9.1.1993 who framed the issues and conducted further proceedings therein. The file however does not contain any such order passed by the learned District Judge, Lahore transferring the suit to Civil Judge. Since the learned Additional District Judge, had made reference to such an order of learned District Judge, Lahore, despite efforts made to discover any such order of District Judge, none could be traced. The basis or justification for the transfer of the suit by the learned Additional District Judge becomes questionable.
The learned counsel for the parties have cited Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi (PLD 1988 S.C. 124) and Messrs Sh. Siraj & Company and another v. Habib Bank Ltd. Lahore (1969 SCMR 784). The provisions of Order 37 of the Code of Civil Procedure, 1908 which are of special nature deal with such suits based on negotiable instruments. Rule 1 thereof reads as follows:
"Rule-1. Application of Order. This order shall apply only to the High Court, to the District Court, and to any other Civil Court especially notified in this behalf by the High Court".
Since the history, background and, various amendments made from time to time in the above-mentioned provisions of Order 37 of the Code of Civil Procedure, 1908 have been elaborately noted and discussed in Abdul Majeed case (Supra), I need not reiterate the same except making of reference to a passage from the said judgments:
"The decision of this Court in Siraj and Company clearly indicated that where the procedure under Order XXXVII was being claimed by a plaintiff and was not available the trial Court could proceed with the case as an ordinary suit. The High Court has not indicated any jurisdictional or procedural bar to it while determining that the decision of this Court in Siraj Din's case was obiter. In Muhammad Abdullah Sufi v. Messrs Muhammad Bux, and Son and others PLD 1957 (W.P.) Karachi 445 the view taken was that where a suit was not triable, by resort to the procedure prescribed in Order XXXVII, its trial could proceed as an ordinary suit. The law laid down by this Court was clearly attracted.
As regards the contention of the learned counsel for the respondent that the rule introduced by the amendment by the Lahore High Court touched the jurisdiction and was in excess of its powers possessed under Section 128 read with Section 122, C.P.C. is clearly untenable. Order XXXVII relates to the procedure and not the jurisdiction. The amendments introduced by the High Court only identified the Courts where resort can be had to Order XXXVII for the purpose of trial of a suit of a particular category. "
The instant, however, is a unique case which was being tried by the learned Additional District Judge who sent it to the Court of learned Civil Judge with reference to some order of the learned District Judge. It is a vague order which does not make mention of even the date of order of learned. District Judge. As mentioned above the case file does not have any such order of learned District Judge, and none found even otherwise. Since the very basis of transmission of suit to Civil Judge is missing, the proceedings conducted by that Court as also the consequential judgments on a mistaken assumption lose legal efficacy. The suit, filed by the respondent thus need to be tried by the learned Additional District Judge from the stage onward when he passed order dated 9.1.1993.
In view of the above by setting aside judgments of both the Courts the suit file is remitted to the learned District Judge, Lahore for its entrustment to the successor of the then Additional District Judge, Lahore (on 9.1.1993) for further proceedings in accordance with law. The appeal is accepted and disposed of in the above terms. No order as to costs.
(Anwar Saeed Sheikh) Appeal accepted.
PLJ 2007 Lahore 470 (DB)
Present: Sayed Zahid Hussain and Jawwad S. Khawaja, JJ.
Prof. ANWAAR A. KHAN, CHAIRMAN & DEAN, SHAIKH ZAYED POSTGRADUATE MEDICAL INSTITUTE, LAHORE--Appellant
versus
Prof. MUHAMMAD SAEED, PROFESSOR OF GYNAE/OBST. SH. ZAYED POSTGRADUATE MEDICAL INSTITUTE, LAHORE and 2 others--Respondents
ICA No. 258 of 2006 in W.P. No. 1753 of 2006, decided on 18.10.2006.
Constitution of Pakistan, 1973--
----Arts. 199 & 212--Promotion of civil servant--Promotion and appointment as Chairman of Hospital being senior most--Claim of--Constitutional petition--High Court directed respondents to complete service record of petitioner expeditiously, and subject to his eligibility, present same before competent authority for consideration of petitioner's merit and fitness for promotion--Assailed--Policy and legal position as to grant of BS-21 is quite plain inasmuch as that it is not a normal and formal promotion nor seniority itself is basis for same--It is not a right which can be claimed on basis of seniority or length of service--Resolution adopted by concerned Ministry of Government, itself indicates that making of appointment to office of Chairman of Hospital falls within domain of Federal Govt. which being possessed of relevant record as competent authority is to take decision--Grant of scale is a matter for competent authority to consider in light of prevailing policy--Appeal disposed of.
[P. 472] A, B & C
M/s. Hamid Khan and Imran Aziz Khan, Advocates for Appellant.
Dr. Danishwar Malik, Deputy Attorney General for Pakistan.
Mian Bilal Bashir, Advocate for Respondent No. 1.
Date of hearing : 18.10.2006.
Order
Dr. Muhammad Saeed, Professor of Obstetrics and Gynaecology, Shaikh Zayed Hospital and Postgraduate Medical Institute, Lahore had filed petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 seeking promotion to BS-21 "from the date when juniors to the appellant were promoted", and for a direction to the Government of Pakistan "to appoint him as Chairman of Shaikh Zayed Hospital, Lahore being the senior most doctor". The notifications dated 14.11.2005 whereby Dr. Anwaar A. Khan and Dr. Zafar Iqbal were granted scale 21 were also sought to be suspended. In the petition, the Government of Pakistan, Dr. Zafar Iqbal and Dr. Anwaar A. Khan were impleaded as respondents. The petition was contested inter alia on the ground that the same was barred by virtue of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 and that grant of BS-21 could not be claimed as a matter of right nor appointment as Chairman, Shaikh Zayed Hospital, Lahore. The learned Single Judge while disposing of the said petition observed as follows:
"5. It goes without saying and is so directed that the respondents shall act expeditiously in the matter of completing the service record of the petitioner and, subject to his eligibility, presenting the same before the competent authority for considering the petitioner's merit and fitness for promotion. The needful for the completion of the said record shall be accomplished by the respondents within four weeks after the receipt of a certified copy of this order. Disposed of."
Dr. Anwaar A. Khan who was one of the respondents in the writ petition has assailed the said order through this intra Court appeal.
We have given extensive hearing to the learned counsel for the parties as also the learned Deputy Attorney General for Pakistan.
The learned Deputy Attorney General for Pakistan has produced before us Office Memorandum dated 7.4.1987 and Office Memorandum dated 29.12.2001 to show that grant of BS-21 to technical and professional officers hinges upon meritorious services and is not a normal promotion nor seniority alone is the criteria for the same.
As is manifest from the above reproduced passage from the order of the learned Single Judge, it contains two directions "(i) that the respondents shall act expeditiously in the matter of completing the service record of the petitioner and (ii) subject to his eligibility, presenting the same before the competent authority for considering the petitioner's merit and fitness for promotion. None has any cavil, so far as the first part of the direction is concerned that the service record need and should be completed expeditiously. However, the further direction that the case of Respondent No. 1 should be placed before the competent authority for consideration of his "promotion" was not called for. The policy and the legal position as, to grant of BS-21 is quite plain inasmuch as that it is not a normal and formal promotion nor seniority itself is the basis for the same. The criteria for the grant of such a scale as per Memorandum dated 29.12.2001 is:--
"Subject: GRANT OF BS-21 AND 22 TO TECHNICAL AND PROFESSIONAL OFFICERS ON ACCOUNT OF MERITORIOUS SERVICES
The undersigned, is directed to refer to the correspondence resting with Establishment Division's D.O. No. 8/2/97-CP-5 dated 9th April, 2001 on the subject mentioned above and to state that the competent authority has been pleased to approve the following revised criteria for scrutiny of cases by the Selection Committee for grant of BS-21 and BS-22 to the Technical and Professional Officers:--
(i) 80% of the ACRs in BS-20 and above should be very good.
(ii) Minimum of 3 years' native services in BS-20 for BS-21 and 5 years' active service in BS-20 & above including 3 years in BS-21 for BS-22 excluding the period of long leave (4 months or more) and deputation.
(iii) No adverse or an average report in BS-19 and above.
(iv) The officer should have made some significant contribution in his field of specialization."
It is not a right which can be claimed on the basis of seniority or length of service alone. Even notification dated 14.11.2005 whereby the appellant and Dr. Zafar Iqbal were granted BS-21 goes to show that it is a grant of scale 21 and not the usual "promotion". The second direction issued by the learned Single Judge, thus, needs modification.
So far, the claim of the petitioner for appointment as Chairman of Shaikh Zayed Hospital is concerned, suffice it to observe that paragraph 8 of Resolution dated 29.5.1986 adopted by the Government of Pakistan, Ministry of Health, Special Education and Social Welfare (Health Division) itself indicates that the making of appointment to such office falls within the domain of the Federal Government, which being possessed of the relevant record as the competent authority is to take the decision. None can lay claim to such an office as of right.
The appeal is accordingly disposed of with this modification that whereas the service record of Respondent No. 1 needs to be completed expeditiously, the grant of BS. 21 is a matter for the competent authority to consider in the light of the prevailing policy.
(Anwar Saeed Sheikh) Appeal disposed of.
PLJ 2007 Lahore 473
Present: Mian Saqib Nisar, J.
ASHIQ HUSSAIN and anothers--Appellants
versus
JAMIA MASJID HANFIA GHOUSIA AHL-E-SUNNAT WAL-JAMAT through President of Masjid Committee--Respondent
S.A.O. No. 12 of 2005, heard on 12.10.2006.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Ejectment application--Denial to tenancy--Eviction order--Appeal was dismissed--Assailed--Order u/S. 13(6) could only be passed, where either relationship of landlord and tenant is admitted or it is established from record that denial by respondent is contumacious, illusionary, frivolous, baseless and without substance--Cogent reasons should be recorded by Rent Controller, before discarding denial and passing order u/S. 13(6) of Rent Restriction Ordinance--But once a tenant has denied such relationship and issue in such behalf is intended to be framed by controller, it is not permissible for him to pass order u/S. 13(6), directing tenant to deposit rent--Rent Controller after deciding issue of tenancy could evict tenant forthwith, if it is proved that relationship inter-se the parties exists--Moreover, in case, where tenancy is denied, Rent Controller is not supposed to frame any other issue, such as on ground of personal requirement or willful default in payment of rent--Impugned orders are set side and matter is remanded to Rent Controller with direction that evidence of parties be recorded on issue of relationship and decide the eviction application on basis of that issue--Appeal allowed. [Pp. 475 & 476] A & B
Mr. Muhammad Saleem Akhtar, Advocate for Appellants.
Mr. Ghazanfar Ullah Janjua, Advocate for Respondent.
Date of hearing : 12.10.2006.
Judgment
The respondent filed an ejectment application, for the eviction of the appellants from the shop in dispute, situated in Paisa Akbar Urdu Bazar, Lahore, in the written reply, the appellants denied the relationship of the tenancy and in a categorical and unequivocal terms have stated that the ejectment petitioner is not the owner of the shop rather "the property in dispute was owned by predecessor-in-interest of the answering respondents and answering respondents are in 'occupation of the property as owners." Further" in reply to Paragraph No. 3, of the petition on merits, the case of the appellant is that the shop in question was an evacuee property, which has been transferred by the Settlement Department in the name of his father, who was never inducted as a tenant in the property by the respondent. Be that as it may, the learned Rent Controller, vide order dated 22.9.2003 passed an order under Section 13(6) of the Rent Restriction Ordinance, held "there is no documentary proof from respondent side to rebut the contention of the petitioner and mere denial of landlordship is not sufficient, until and unless it is supported with any cogent documents. Therefore, in order to proceed further order under Section 13(6) is hereby passed." The appellants moved an application for recalling of the order dated 22.9.2003, which was dismissed vide order dated 28.2.2004 and the following issues were framed:--
Whether the relationship of landlord and tenant exist between the parties? OPA
Whether the disputed premises are required by petitioner for his personal bona fide need ?OPA
Whether the respondent is willful defaulter in payment of rent? OPA
Relief.
Thereafter, the respondent moved an application for striking off the appellants' defence on the ground that the order dated 22.9.2003 passed under Section 13(6), has not been complied with, which application was accepted and the learned Rent Controller, through the order dated 1.11.2004, struck off the defence of the appellants and passed an eviction order; this order was challenged by the appellants in appeal on the ground that since they have denied the relationship of tenancy, therefore the order u/S. 13(6) could not have been passed against them and cannot be made basis for the non-compliance of such an illegal order, having been passed without jurisdiction and lawful authority; this appeal has been dismissed by the learned Addl. District. Judge, vide judgment dated 25.1.2005 on the reasoning that the order dated 22.9.2003, has not been challenged by the appellants and therefore, such order has attained the finality and thus it was held "In this way, it can rightly be said that the appellant is a wilful defaulter in the payment of rent and he has rightly been ejected by the learned Rent Controller vide order dated 1.11.2003."
Learned counsel for the appellants contends that as the appellants have denied the relationship of tenancy therefore, the order under Section 13(6) could not have been passed by the learned Rent Controller, without first determining the issue of relationship/ownership of the property, for which it was necessary to have allowed the appellants to produce the evidence in order to show that the suit property has been transferred in favour of the appellants' father by the Settlement Department. It is mentioned in this behalf that the record of the Settlement has been duly relied upon and the appellants wanted, to establish their transfer/ownership through the production of such record.
On the contrary, the learned counsel for the respondent states that the denial of the relationship by the appellants was contumacious and was not supported by any record, therefore,, the Rent Controller had rightly discarded the same and passed the order under Section 13 (6).
I have heard learned counsel for the parties. The Order under Section 13(6) could only be passed, where either the relationship of landlord, and tenant is admitted or it is established from the record, that the denial by the respondent is contumacious illusionary, frivolous, baseless and without substance. In this behalf, cogent reasons should be recorded by the Rent Controller, before discarding the denial and passing the order under Section 13(6) of the Rent Restriction Ordinance. But once a tenant has denied such relationship and issue in this behalf is intended to be framed by the Controller, it is not permissible for him to pass an order, u/S. 13(6), directing the tenant to deposit the rent, because in the case, where default in the payment of rent is set out as a ground for the eviction, as in the present case, the respondent of the case, while denying the relationship takes a grave risk, that in case the tenancy is established, the matter shall not be further adjudicated, rather his tenancy shall be forfeited and straightaway an ejectment order shall be passed against him. As mentioned above, the ejectment application in the case, has been filed inter-alia on the ground of default in the payment of monthly rent therefore, the Rent Controller after deciding the issue of tenancy could evict the tenant forthwith, if it is proved that the relationship inter-se the parties exists. Moreover, in the case, where the tenancy is denied, the Rent Controller is not supposed to frame any other issue, such as on the ground of personal requirement or wilful default in the payment of the rent. To this extent, also the order framing Issue Nos. 2 and 3, is not proper and the same is also liable to be set aside, resultantly, by allowing this appeal, the impugned orders are set aside and the mater is remanded to the Rent Controller with the direction that the evidence of the parties be recorded on the issue of relationship and to decide the eviction application on the basis of that issue within three months from the date of first appearance of the parties, who are directed to appear before the Rent Controller on 6.11.2006.
(Anwar Saeed Sheikh) Appeal allowed.
PLJ 2007 Lahore 476
Present: Syed Sakhi Hussain Bukhari, J.
LAHORE DEVELOPMENT AUTHORITY through its Director General LDA Plaza, Lahore and 2 others--Appellants
versus
AMANULLAH KHAN NIAZI (Ex.Sr. ACCOUNTANT)--Respondent
L.A. No. 137 of 2003, heard on 6.4.2006.
Industrial Relation Ordinance, 1969 (XXIII of 1969)--
----S. 25-A--If the work is not of permanent nature--The employee cannot be taken to be permanent workman--respondent was employed against the specific project (PUDP)--On the completion of work his services could be terminated by appellants--Appeal accepted. [P. 479] A
Mr. Ghazi M. A. Rasheed, Advocate for Appellant.
Mr. Khadim Hussain Tahir, Advocate for respondent.
Date of hearing : 6.4.2006.
Judgment
This appeal is directed against the judgment dated 18.10.1999 passed by learned Presiding Officer, Punjab Labour Court No. 1, Lahore whereby grievance petition brought by respondent was accepted.
Relevant facts for the disposal of this appeal are that Aman Ullah Khan Niazi (respondent) filed petition under Section 25-A of IRO 1969 and prayed for issuance of direction to the appellants to regularize his services and to pay him monthly wages (emoluments) w.e.f. 1.7.1997 and not to remove him from service. The respondent stated that he was employed in the LDA w.e.f. 16.04.1990 as Senior Accountant and thereafter promoted as Accounts Officer on 17.2.1991. The letter of promotion was accordingly issued on 26.10.1991. He was performing duty on the said post since 26.10.1991. The respondent averred that numerous persons of the same project (Punjab Urban Development Project) of the LDA were regularized and he also deserved, same treatment. Also that LDA Establishment, is busy in the business of construction of Roads/Buildings, Colonies and Bridges etc. and this business is of permanent nature. He stated that many employees of the same Project (PUDP) are given the salary from Director Admn. & Finance (TEPA) LDA. The appellants mentioned in reply that respondent was not workman/worker under the law. The appellants further mentioned that project has been closed on 31.07.1997. It was World Bank Project (PUDP), therefore, his right if any has extinguished. The appellants stated that respondent was appointed as Senior Accountant by Appellant No. 2 under World Bank Project (PUDP) and his post related to this specific project. The project having been closed since 31.07.1997., no payment was liable to be made and denied performance of his duty since 31.07.1997 on closure of the project. Learned trial Court recorded evidence and accepted the grievance petition brought by respondent vide judgment dated 18.10.1999. Hence this appeal.
I have heard the. arguments and perused the record.
As mentioned above respondent had filed application under Section 25-A of IRO 1969 and prayed for issuance of direction to the appellants to regularize his services and to pay him monthly wages (emoluments) w.e.f. 1.7.1997 and not to remove him from service. The respondent was appointed as Senior Accountant vide order dated 16.04.1990 (Ex.P-1) which reads as under:--
"Mr. Aman Ullah Khan Niazi S/o Ghulam Rasool Niazi is hereby offered purely temporary post of Senior Accountant in BPS 26 per month plus usual allowances as permissible under rules in Punjab Urban Development Project, on the following terms and conditions:-
The job is purely temporary which may continue during the duration of project or may be abolished earlier on one month notice.
His services may be terminated without assigning any reason by issuance of one month notice or one month advance pay in lieu thereof. Similarly he may give up his job by serving one month advance notice or deposit of one month pay in lieu thereof.
His services in the project shall not make him eligible for absorption in LDA as LDA is only supervisory/executing agency for World Bank. Similarly his service in the project as mentioned shall not create any liability against the project.
He shall produce a character certificate from two gazetted officers. His service may however be terminated if his antecedents are not verified by Police.
If the aforementioned terms and conditions are acceptable to him, he may report for duty to CMP LDA within a period of 10 days failing which his appointment letter shall stand? cancelled.
It is clear from the aforesaid order that respondent was appointed against purely temporary job and his services could be terminated without assigning any reason by issuance of one-month notice. The respondent, while appearing as PW-1 admitted during cross-examination that he was appointed as Senior Accountant in PUDP and that said project has been completed. He stated that:--
As such it is clear that project (PUDP) has been completed hence appellants could terminate his services on the completion of work on the said project (PUDP). The case of the appellants is that after completion of project respondent did not continue his service and that the said project was started by World Bank, therefore, respondent could not be absorbed in LDA. It has been clearly mentioned in Ex.P-1 that. respondent would not. be eligible for absorption in LDA as LDA is only supervisory/executing agency for World Bank. Learned counsel for the appellants has relied upon the case of WAPDA and others Vs. Khanimullah and others (SCMR 2000 879). As stated above, respondent has admitted in cross-examination that he was employed in the PUDP and that work on the said project has already been completed.
The appellants examined RW-1 Abdul Qayyum, Director, Metropolitan Planner, LDA, Lahore. He stated that respondent was appointed as Senior Accountant, in PUDP on temporary basis and that his appointment letter is available on the file as Ex. P-1. He further stated that project was completed on 31.06.1997 and due to this reason his services were not required and the same has also been mentioned in Ex.P-1. The witness deposed that respondent was not employed after 31.06.1997 and no attendance register was prepared for his attendance and that he was not employee of LDA after 31.06.1997. No employee of PUDP was regularized by CMP Wing. He stated that Wali Muhammad was employed in traffic study project in 1979 and the same has no concern with the PUDP as traffic study project was started 10 years before the said project. The statement of RW is convincing and confidence inspiring and there is' nothing on record to dis-believe the same. So it is clear from the material available on record that respondent was employed in PUDP and the same has already been completed. It is well settled that if the work is not of permanent nature then the employee cannot be taken to be permanent workman. The respondent was employed against the specific project (PUDP), therefore, on the completion of work on the said project his services could be terminated by the appellants. In these circumstances I find that impugned judgment is not sustainable in the eye of law and the same is liable to be set-aside.
The upshot of the above discussion is that appeal brought by appellants is accepted, impugned judgment is set-aside and grievance petition brought by respondent is dismissed. No order as to costs.
(Malik Sharif Ahmad) Appeal accepted.
PLJ 2007 Lahore 479
Present: Muhammad Muzammal Khan, J.
MUHAMMAD AMEER and another--Petitioners
versus
SYED SHUJAT ALI TIRMIZI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, KHUSHAB with the Power of Election Tribunal and others--Respondents
W.P. No. 3842 of 2006, heard on 23.11.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O.XIV, R. 5--Framing of issues--When parties enter into trial of case with all awareness of controversy between them, its framing or non-framing of issues loses importance. [P. ]482 A
1993 SCMR 2018, rel.
(ii) Local Government Election Rules, 2005--
----R. 35--Constitution of Pakistan, 1973, Art. 199--Justification for recounting of ballot papers--Legality--No credence could have been given to any such statement which was not prepared under the Rules not approved--Held: Correct conclusions were drawn by respondent without committing any error of law facts, as there was sufficient material on the record justifying recount of ballot papers, as ordered--A lawful decision within the ambit of conferred jurisdiction cannot be substituted on the present petition--Petition was dismissed.
[Pp. 483 & 484] B, C & D
1993 SCMR 2018 rel.
M. Mohy-ud-Din Qazi, Advocate for Petitioners.
Mr. Muhammad Ramzan Chaudhry, Advocate for Respondents No. 2 and 3.
Mr. Khawar Ikram Bhatti, Advocate for Respondents No. 4 & 5.
Date of hearing : 23.11.2006.
Judgment
Instant constitutional petition assailed judgment/order dated 31.3.2006 passed by the Election Tribunal, Sargodha (Additional District Judge, Khushab) to be declared illegal, void and of no legal consequence, whereby application by Respondents No.2 and 3 for recount of ballot papers was accepted.
Succinctly, relevant facts are that petitioners and private respondents contested the last local bodies elections for the offices of Nazim and Naib Nazim of Union Council-11, tehsil Bhalwal, district Sargodha, In result of the election held on 18.8.2005 petitioners were declared to be successful and their nearest rivals i.e. Respondents No.2 and 3 filed an election petition before the notified Election Tribunal, as they had lost the election with a margin of 151 votes, inter alia, on the grounds that election result was secured out of corrupt/illegal election practice; their valid votes were not counted or were illegally declared invalid; and the election result of different polling stations, especially at police stations No. 3, 5 and 9 was not only wrongly tabulated but was also manoeuvred to support the petitioners success. Election petition was contested by the petitioners and other contesting candidates by filing their written replies. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. At the conclusion of trial, petitioners moved an application for re-summoning of AW.1 for clarification of three documents on the file i.e. Exh.A.1, Exh.R.1 and Mark-A, Respondents No. 2 and 3 also moved an application for recount of ballot papers. The Election Tribunal opted to decide application of Respondents No. 2 and 3 for recount of ballot papers and allowing the same, ordered recount of ballot papers through impugned order dated 31.3.2006. Petitioners were not satisfied with the decision of the Election Tribunal and consequently filed instant petition with the relief, noted above. Petition was admitted to regular hearing and on notice by this Court respondents appeared and were represented through their respective counsel.
Learned counsel for the petitioners submitted that Respondents No. 2 and 3 with a mala fide intention filed a baseless election petition, without any clear allegation of resort to illegal/corrupt election practice. According to him, Respondents No. 2 and 3 prepared a fake document Exh. A.I, which was not in accordance with requirements of Rules applicable, thus on the basis thereof, order of recount of ballot papers could not have been passed after lapse of such a long period. It was further submitted that the Presiding Officer of polling station No. 9 had remitted correct result of the election on the prescribed Form XIII, according to which Returning Officer correctly prepared consolidated statement in Form XV. His precise submission was that petitioners were rightly declared successful by the election staff (R.O. and D.R.O.) and recount of ballot papers could not have been ordered, relying on result of count prepared by the Presiding Officers, which was not on the prescribed Form XIII. He further elaborated his arguments by urging that election result as shown in Exh. A1 was neither relied by Respondents No. 2 and 3 in their election petition nor the same was produced by them alongwith their election petition, which was enough proof of its fakeness. It was also contended that Respondents No. 2 and 3 did not claim recount of ballot papers in the election petition which has erroneously been ordered without decision of petitioners' application for re-summoning of AW.1. Non-framing of any issue on the question of recount of ballot papers was also asserted and consequently it was argued that impugned order has been passed without recording of evidence and without there being any material in support thereof. It was also one of the submissions of the learned counsel for the petitioner that reliance on evidence recorded on the issues framed wherein issue of recount was not framed, was unjustified leading to prejudice to the case of the petitioners.
Learned counsel for Respondents No. 2 and 3 with the support of learned counsel representing other contestants of the election, refuted arguments of the petitioners and supporting the impugned order urged that Respondents No. 2 and 3 had not only pleaded a clear case of recount of ballot papers but they had also brought sufficient material on the record justifying the course adopted by the learned Presiding Officer of the Election Tribunal. Reference to certain interim orders on the file of the Election Tribunal was made to contend that parties were also put to trial to the issue of recount of ballot papers. According to the respondents, in view of two divergent results of count relating to one polling station, was enough material justifying the order passed by the Election Tribunal, as there was no other way out to resolve the controversy. They relied on statement of their own witness (AW.1) in support of the order under challenge and attempted to dig out support from the cross-examination offered by them to RW.1.
I have heard the learned counsel for the parties and have examined the record of the Election Tribunal and the one appended herewith. With a view to ascertain whether Respondents No. 2 and 3 had made out a case for recount of ballot papers in their election petition, the same was minutely examined and its paragraph No. 8 clearly narrated that at polling station No. 9 (Zainpur) they secured 613 votes whereas petitioners were bagged 242 votes but the Returning Officer wrongly mentioned their votes as 513 and against it, petitioners votes were enhanced to 342, creating a discrepancy of 101 votes. Similar allegations regarding polling station No. 5 were narrated in paragraph No. 7 of the election petition. According to my analysis, paragraphs No. 4 to 8 and 13 of the election petition, if read together would make out a case for recount of ballot papers, as far as, pleading of facts are concerned. Coming to the next assertion of the petitioners that they were not afforded an opportunity of leading evidence on the question of recount of ballot papers, Respondents No. 2 and 3 on 17.1.2006 had moved an application under Order XIV Rule 5 CPC praying recasting of issues, including that of recount of ballot papers. Record revealed that the learned Presiding Officer of the Election Tribunal on 1.2.2006 passed an order with the consent of the parties, to the effect that matter of recount of ballot papers being covered by the issue of "Relief", there is no necessity of framing any separate issue on this point and simultaneously- issue No. 2 was corrected by adding a word "not" therein. Order dated 1.2.2006, which was signed by both the learned counsel representing the parties in its margin, left no room for the petitioners to claim that dispute of recount of ballot papers was decided without putting the parties to the issues or without recording of evidence. Even otherwise, law regarding framing of issues is firmly settled to the effect that when parties enter into trial of the case with all awareness of controversy between them, its framing or non-framing loses importance. Reference in this behalf can be made to the judgment by the Hon'ble Supreme Court in the case of Fazal Muhammad Bhatti and another vs. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018). As regards opportunity of producing evidence. I have also anxiously noted that petitioners closed their oral evidence on 4.3.2006 whereas they by producing certain documents, concluded the same on 21.3.2006 and on both these occasions statements of learned counsel representing them were recorded, under his signatures.
Besides the lawful reasons, which weighed with the learned Presiding Officer of the Election Tribunal in ordering the recount of ballot papers, no doubt Presiding Officer of polling station No. 9 Zainpur had issued two different results, one was in Form XIII, wherein petitioners were shown to have secured 342 votes and Respondents No. 2 and 3 were mentioned to have earned 513 votes, whereas his other result count was brought on file as Exh-A.1, which shows votes of the petitioners as 242 and those of the Respondents No. 2 and 3 as 613. The Presiding Officer of this polling station was examined by Respondents No. 2 and 3 as AW. 1 who categorically deposed that result Exh.A.1 for the office of Nazim/Naib Nazim was prepared by him and is under his signatures. He further stated that result Exh.A.1 correctly reflected the result of polling station No. 9. This witness though was cross-examined by the petitioners in two lines but they did not confront their own result Exh.R.1 and opted to produce it at the time of closing their evidence, in the statement of their counsel dated 21.3.2006. Statement of AW.1 revealed that no suggestion about the alleged fakeness of Exh.A.1 or genuineness of Exh.R.1 was put to him and he was also not required to explain discrepancy in his two statements of count of the polling station where he was Presiding Officer. He was not even suggested that Exh.A.1 was subsequently prepared to help Respondents No. 2 and 3. Now the statement Exh. A.1 was meant for communication of the election results by the Presiding Officers to the Returning Officer and was to accompany the Form XIII but it is no body's case that it did not relate to polling station No. 9 or was not under the signatures of AW.1. According to my estimation in presence of these two opposing statements, the Election Tribunal was justified in ordering the recount of ballot papers, in order to trace correctness of any of those.
Stance of the petitioners that in presence of statement of count in Form XIII, which is prescribed by Rule 35 of the Local Government Election Rules, 2005, no credence could have been given to any such statement which was not prepared under the Rules, appeared to be very attractive but when statement of AW.1 is kept in mind. whereby the latter mentioned statement was duly proved, irresistible result would be the one drawn through the impugned order. Similar is the position at polling station No. 3, where petitioners secured 221 votes and Respondents No. 2 and 3 could get 137 votes, as per consolidated statement of the Returning Officer Exh.R.2 but Presiding Officer of this polling station while appearing as AW.3 deposed that Respondents No. 2 and 3 were polled 187 votes. This witness was not cross-examined by the petitioners on this point and no suggestion was even put to him that his statement of securing 187 votes by Respondents No. 2 and 3 was false. Muhammad Amir petitioner appeared as RW.1 and through his deposition he referred to votes polled in favour of the parties at polling station No. 4 but in fact this part of his statement related to polling station No. 3 if the same is read in conjunction with Exh.R.2. Scan of record including evidence of the parties and the impugned order, revealed that correct conclusions were drawn by Respondent No. 1 without committing any error of law/facts, as there was sufficient material on the record justifying the recount of ballot papers, as ordered. Since there is sufficient evidence/material on the record justifying recount of ballot papers, case law relied by the leaned counsel for the petitioners was of no help to their case, rather those judgments were in support of the impugned order.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 484
[Rawalpindi Bench Rawalpindi]
Present: Syed Sajjad Hussain Shah, J.
FAWAZ VALLIANI--Petitioner
versus
SAMINA VALLIANI and 3 others--Respondents
Civil Revision No. 451 of 2006, heard on 12.9.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 5--Framing of additional issues--Provisions--Determination of real controversy--Question of waiver or abandonment--Validity--Omission in framing of a particular issue was never brought to notice of trial Court and was raised for the first time before Appellate Court or Supreme Court--Objection was raised prior to disposal of the whole case but trial Court had failed to exercise jurisdiction vested in it u/O. XIV, R. 5 CPC due to mistaken view of law--Order of trial Court refusing to frame the additional issue was not illegal but was violative of the provisions of O.XIV, R. 5 CPC which makes it mandatory upon the Court to amend or frame issue necessary for framing controversy arising act of the pleading of the parties--Held: Issue framed by trial Court did not cover real controversy which was imperative upon the Court to frame additional issues and power could be exercised at any stage prior to final disposal of the suit. [Pp. 487 & 488] A & C
(ii) Duty of Court--
----It is the duty of the Court to frame proper issues arising out of the pleadings of the parties to determine all matters in controversy.
[P. 488] B
2005 CLC 970; PLD 1993 Lah. 1; 1988 SCMR 4; 1994 MLD 925;
1993 SCMR 2018; 1983 CLC 74; 2001 YLR 1373 ref.
Syed Zulfiqar Abbas Naqvi, Advocate for Petitioner.
Mr. Afnan Karim Kundi, Advocate for Respondents.
Date of hearing : 12.9.2006.
Judgment
This petition impugns order dated 31.07.2006 passed by the learned Civil Judge 1st Class, Islamabad dismissing the application of the petitioner for framing of additional issues.
The petitioner filed a civil suit on 05.07.2005 for declaration/partition and permanent injunction stating therein that the petitioner and Respondent Nos. 1 & 2 are legal heirs of deceased Siraj Valliani who died on 21.12.1996. Thereafter a dispute arose between the parties regarding House No. 528, Margalla Road, F-10-2, Islamabad. The claim of the petitioner is that the property in question was owned and possessed by his predecessor and in his life time he transferred the same in the name of Respondent No. 1 (mother of the petitioner) as Benamidar, in order to avoid payment of Wealth Tax and Respondent No. 1 cannot claim to be the sole owner of the said property whereas the petitioner is also entitled for share in the said property as legal heir of deceased Siraj Valliani.
Respondent Nos. 1 & 2 filed written statement negating the stance of the petitioner on legal as well as factual grounds by submitting that the said plot was purchased by their predecessor in his life time for exclusive benefit, use and possession of Respondent No. 1 (mother of petitioner and Respondent No. 2) for her future security. They further denied the assertion of Benami transaction and stated that constructions over the said plot were made by Respondent No. 1 of her own pocket. The trial Court after considering the pleadings of the parties framed the following issues:--
ISSUES:-
Whether the suit is barred by time ?OPD
Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
Whether the plaintiff has got no cause of action and locus standi to file the suit ?OPD
Whether the plaintiff has not come in to the Court with clean hands ?OPD
Whether the suit is false, frivolous and vexatious, as such, the defendants are entitled to get special costs Under Section 35-A of CPC ?OPD
Whether the plaintiff is entitled to the relief as prayed for ?OPP
Relief.
Issues were framed on 15.11.2005 and the evidence of the parties was concluded on 15.06.2006. On 21.07,2006, the petitioner filed an application Under Order XIV Rule 5 CPC for framing of additional issues, proposing the following issues:--
Whether the suit property was purchased by the father of the plaintiff and the defendant was simply a Benami ?OPP
Whether the suit property was constructed by the defendant from her own source of income ?OPD
Whether the suit property is liable to be partitioned between the legal heirs of Siraj Valliani, the predecessor of the parties? OPP
The learned lower Court dismissed the application of the petitioner with the following observations:--
"The perusal of file shows that the issues were framed by the learned predecessor vide order dated 15.11.2005. The parties to the suit lead evidence to their entire satisfaction and the case was fixed for final arguments. If is further revealed that on 22.06.2006 the plaintiff/petitioner moved an application to summon proposed, witnesses which was dismissed by this Court on 28.6.2006 and the case was again fixed for final arguments. The counsel for plaintiff/ petitioner sought several adjournments from 30.6.2006 till 21.07.2006 and filed the application in hand on 21.07.2006 to amend the issues as proposed in his application. Admittedly, the Court can amend or strike out issues at any stage before the judgment is pronounced, but the position in this case is quite different. The plaintiff/petitioner moved application to summon the proposed witnesses to prove the construction of the suit property which was dismissed by this Court and the application in hand is yet another mode to achieve the same object. The parties to the suit were aware of their version and lead evidence in support thereto. Hence, the application in hand, for framing of additional issues has got no merits and the same is hereby rejected. Now to come up for final arguments on 2.9.2006".
7 On the other hand, the learned counsel for the respondents contested the suit by submitting that the parties were conscious to the controversy and they lead their evidence to resolve the actual controversy narrated in the plaint and the petitioner prior to moving this application, filed an application for additional evidence which too was dismissed and through this petition, the petitioner wants to adduce additional evidence after framing of additional issues. Reliance is placed on the cases reported as Mst. Sughra Bibi alias Mehran Bibi Versus Asghar Khan and another (1988 SCMR 4), Muhammad Shafi Versus Muhammad Rafique and 7 others (1994 MLD 925), Fazal Muhammad Bhatti and another Versus Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018), Ahmed Khan Versus Malik Fazal Dad (1983 CLC 74) and Punjab Bricks Company through Abdul Rashid and another Versus Messrs Pervaiz Coal Agency and another through its Sole Proprietor (2001 YLR 1373).
I carefully considered the arguments advanced by the learned counsel for the parties and perused the record minutely by giving anxious consideration to the submissions made by the learned counsel for the parties. There is force in the arguments advanced by the learned counsel for the petitioner. The objection regarding framing of a particular issue necessary for disposal of case if not at all claimed by an effected party during the trial or before the appellate Court in an appeal against the final decree, the same may be deemed to have been waived or abandoned. The question of waiver or abandonment or objection that the parties were aware of the controversy, does not arise if during the pendency of the trial and before passing a decree, a party makes an application to the trial Court for framing of issue necessary for determining the matter in controversy between the parties, as in the present case. The case law referred by the learned counsel for the respondents is not applicable to the facts of the present case. In the cases referred by the learned counsel, the omission in framing of a particular issue was never brought to the notice of the trial Court and was raised for the first time before the appellate Court or the Supreme Court. In the instant case, the objection was raised prior to the disposal of the whole case but the trial Court failed to exercise the jurisdiction vested in it under order XIV Rule 5 CPC mainly due to a mistaken view of law. The order of trial Court refusing to frame the additional issues was not only illegal but was violative of the provisions of Order XIV Rule 5 CPC which makes it mandatory upon the Court to amend or frame issues necessary for determining the controversy arising out of the pleadings of the parties.
It is the duty of the Court, to frame proper issues arising out of the pleadings of the parties to determine all matters in controversy. After going through the pleadings of the parties, I am not satisfied with the issues framed in the suit by the trial Court. The case of the petitioner in the suit is that the property in dispute i.e. 528-Margala Road, F-10-2, Islamabad measuring 1266.6 sq. Yards was purchased by the predecessor of the parties from one Mrs Dr. Riffat Moazam Zaman in the year 1992. However, in order to avoid Wealth Tax etc, the predecessor in interest of the parties transferred the said plot in the name of Respondent No. 1, as Benamidar, This claim of the petitioner was denied by the respondents in their written statement. It was stated that said plot was purchased by predecessor of the parties, for exclusive benefit, use and possession of Respondent No. 1 with the intention of vesting the full and exclusive ownership in Respondent No. 1 in order to provide her safety on his behalf in his life time. She further stated in the written statement that she constructed house on the plot in question with her own money only because the plot was in possession of her exclusive property but no issue has been framed on these points. I, therefore, hold that issues framed by the trial Court do not cover the real controversy which is imperative upon the Court to frame such additional issues as may be necessary and the power can be exercised at any stage prior to the final disposal of the suit.
Resultantly, this civil revision is allowed. The impugned order dated 31.7.2006 is set aside. The trial Court is directed to frame proper issues in the light of the pleadings of the parties and thereafter proceed in the matter in accordance with law. The parties are left to bear their own costs.
(Rafaqat Ali Sohal) Revision allowed.
PLJ 2007 Lahore 488
Present: Sayed Zahid Hussain, J.
MUHAMMAD JAVAID--Petitioner
versus
LESCO through its Chief Executive and 5 others--Respondents
W.P. No. 18792 of 2005, decided on 10.10.2006.
Constitution of Pakistan, 1973--
----Arts. 37(d) & 199--Constitutional petition--Electricity connection of the petitioner--Disconnection of--Petitioner applied for re-connection and deposited of Rs. 103,603/- plus re-connection fee on demand--No re-connection was ordered despite these payments--According to the change in re-connection policy petitioner was directed to make other payment of Rs. 191,125/---On deposit of that re-connection was made--Refund of the previously deposited amount--Claim of--In a democratic set up it does not behave the public authorities/ functionaries to decline the return of money erroneously or wrongfully recovered from a citizen to whom it belongs--Authority has failed to make return/refund to the citizen to whom he was lawfully entitled, even the question of limitation or of adequacy of forum will not arise--State is obliged to observe principles of policy as laid down in clause (d) of Art. 37 of the Constitution which is that "The state shall ensure inexpensive and expeditious justice"--Double exaction of money for one and the same purpose i.e. reconnection, is not justifiable on any principle--Petitioner is entitled to the refund--Petition accepted. [P. 490] A & B
AIR 1975 SC 2279, rel.
Ch. Abdul Razzaq, Advocate for Petitioner.
Mian Khurshid Alam Ramey, Advocate for respondents.
Date of hearing : 10.10.2006.
Order
In June 1996, electricity connection of the petitioner was disconnected. He applied for reconnection and was asked to deposit a sum of Rs. 103,603/- which he did. Reconnection fee of Rs. 1500/- was further demanded from him, which was also paid. Despite these payments, reconnection was not ordered. In the meanwhile reconnection policy is said to have undergone a change, according to which the petitioner was directed to make payment, of Rs. 191,125/-. On deposit of that the reconnection was made. According to the learned counsel for the petitioner, ever since after reconnection no default has been made by the petitioner.
PLJ 2007 Lahore 488
Present: Sayed Zahid Hussain, J.
MUHAMMAD JAVAID--Petitioner
versus
LESCO through its Chief Executive and 5 others--Respondents
W.P. No. 18792 of 2005, decided on 10.10.2006.
Constitution of Pakistan, 1973--
----Arts. 37(d) & 199--Constitutional petition--Electricity connection of the petitioner--Disconnection of--Petitioner applied for re-connection and deposited of Rs. 103,603/- plus re-connection fee on demand--No re-connection was ordered despite these payments--According to the change in re-connection policy petitioner was directed to make other payment of Rs. 191,125/---On deposit of that re-connection was made--Refund of the previously deposited amount--Claim of--In a democratic set up it does not behave the public authorities/ functionaries to decline the return of money erroneously or wrongfully recovered from a citizen to whom it belongs--Authority has failed to make return/refund to the citizen to whom he was lawfully entitled, even the question of limitation or of adequacy of forum will not arise--State is obliged to observe principles of policy as laid down in clause (d) of Art. 37 of the Constitution which is that "The state shall ensure inexpensive and expeditious justice"--Double exaction of money for one and the same purpose i.e. reconnection, is not justifiable on any principle--Petitioner is entitled to the refund--Petition accepted. [P. 490] A & B
AIR 1975 SC 2279, rel.
Ch. Abdul Razzaq, Advocate for Petitioner.
Mian Khurshid Alam Ramey, Advocate for respondents.
Date of hearing : 10.10.2006.
Order
In June 1996, electricity connection of the petitioner was disconnected. He applied for reconnection and was asked to deposit a sum of Rs. 103,603/- which he did. Reconnection fee of Rs. 1500/- was further demanded from him, which was also paid. Despite these payments, reconnection was not ordered. In the meanwhile reconnection policy is said to have undergone a change, according to which the petitioner was directed to make payment, of Rs. 191,125/-. On deposit of that the reconnection was made. According to the learned counsel for the petitioner, ever since after reconnection no default has been made by the petitioner.
PLJ 2007 Lahore 490
[Multan Bench Multan]
Present: Muhammad Nawaz Bhatti, J.
NAEEM AHMAD KHAN--Petitioner
versus
GOVERNMENT OF THE PUNJAB through Secretary, Home Department, Civil Secretariat, Lahore
and 7 others--Respondents
Writ Petition No. 2506 of 2005, decided on 5.7.2005.
Dramatic Performance Act, 1876--
----Ss. 3 & 10--Constitution of Pakistan, 1973, Arts. 18 & 19--Business of open air theatre--Application for grant of license--Provisional permission for specified plays subject to examine scripts and fulfilling requisite procedure--Interference into the business--Assailed--Every citizen can run lawful business and petitioner was doing his business under licensing system issued by Government of Punjab and respondents have no jurisdiction to interfere with the same and that he would be satisfied if direction was issued to respondent to act upon notification issued by Home Department and adopt the procedure--District Censor Rehear seal Committee after watching final Rehearsal rightly observed that performance did not follow the script and further recommended not to issue--NOC till rehearsal was closed to script--Petition was disposed of. [Pp. 493 & 494] A & B
Ch. Abdul Sattar Goraya, Advocate for Petitioner.
Mr. Mubashir Lateef Gil, AAG.
Respondent Nos. 6 & 7 in Person.
Date of hearing : 5.7.2005.
Order
Brief facts leading to this writ petition are that the petitioner is a proprietor of Naz Theatre, Mailsi. He moved an application to the Home Department for grant of license under Section 10 of the Dramatic Performance Act, 1876. The Home Department sought NOC from the DCO Vehari in respect of the suitability and also NOC to the said proposal. The DCO vide his letter dated 6.3.2004 intimated the Home Department in the following terms;
"It is intimated that annual license of Naz Open Air Cinema Mailsi has been renewed up to 30.9.2004, on the basis of site Inspection Reports of District Officer (Building) Vehari, Electric Inspector Multan Region, Multan and District Officer (Civil Defence) Vehari. This office has no objection for the grant of license under Section 10 of the Dramatic Performance Act, 1876.
The DCO Vehari Vide his letter dated 6.1.2004 addressed to the Section Officer (Special-II) Home Department, Govt. of the Punjab reiterated that he had no objection to the registration of cinema building for theatrical performance after completing codal formalities. The Home Department, Government of the Punjab, vide its letter dated 9.2.2004 directed Respondent No. 3 DCO Vehari to continue giving provisional permission for specific stage/dramas/plays etc. after obtaining scripts and fulfilling other requisite formalities/procedure laid down in the notification dated 17.11.2003. After completing codal formalities and approval from Multan Arts Council of the scripts on the basis of recommendation of the Censor Rehearsal Committee, the DCO vide its endorsement dated 2.10.2004 granted permission to display the drama in the said Naz Theatre. After the permission granted by the DCO, the petitioner was doing his business within the four corners of law but Respondent Nos. 6 & 7 at the behest of the rivals of the petitioner were trying to interfere into that business. Therefore, he instituted W.P No. 5911 of 2004 which was disposed of with the direction that Respondent Nos. 6 & 7 would remain within the bounds of law and would not interfere into a lawful business, if being conducted by the petitioner. Thereafter the petitioner started his business in a lawful manner for quite some time but the same situation has now allegedly arisen, due to which he has filed this writ petition praying that Respondent Nos. 3 to 8 may be directed not to interfere in the business of the petition in staging drama play etc. on the basis of license issued by the Home Department and after having obtained approved script from Multan Arts Council.
"The DCOs/DPOs will not take any action against theatres by intercepting the performance. In case of any complaint of violation of the terms of the NOC, they shall immediately forward the monitoring reports to the Home Department for punitive action u/S. 3 of Dramatic performance, Act, 1876, as envisaged in Home Department's circular letter of even number dated 7th April, 2004".
In the present case, till today no complaint under Section 3 of the Dramatic Performance Act, 1876, was ever sent either by the local police or by the District Police Officer and this conspicuous silence on the part of the respondents shows that nothing wrong has been found in the petitioner's theatre, that the petitioner has political rivalry with Muhammad Mumtaz Khan Khichi Zila Nazim, who is also related to him and the DCO Respondent No. 3 and his subordinate officers at his instance are behaving in bad faith; that the respondents are creating hurdles in operation of the theatre and under the guise of visual inspection at each occasion they raise the objection that the drama being staged is not in conformity with the script approved; that under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, every citizen can run the lawful business and the petitioner is doing his business under the licensing system issued by the Govt. of the Punjab, Home Department, and the respondents have no jurisdiction to interfere with the same and that he shall be satisfied if a direction is issued to Respondent No. 3 DCO Vehari to act upon the notification dated 17.11.2003 issued by the Home Department, Govt. of the Punjab and especially adopt the procedure mentioned above.
On the other hand, the learned AAG has vehemently opposed the writ petition and has supported the comments submitted by Respondent No. 3 DCO Vehari. However, he agrees with the request of learned counsel for the petitioner that a direction may be issued to Respondent No. 3 DCO Vehari to act upon the notification dated 17.11.2003 issued by the Home Department Govt. of Punjab.
Respondents Nos. 6 & 7 are also present in Court. They undertake that they will not interfere in the lawful business of the petitioner.
I have heard learned counsel for the petitioner and the learned AAG and perused the record.
Perusal of the comments submitted by Respondent No. 3 DCO Vehari reveals that the District Censor Rehearsal Committee watched the final Rehearsal on 1.1.2004 and NOC was accordingly issued on 2.10.2004. In the past the petitioner had been crossing the limits of vulgarity and obscenity. The District Censor Rehearsal Committee after watching the Censor Rehearsal on 29.4.2005 rightly observed that performance did not follow the script and further recommended not to issue the NOC till Rehearsal is close to the script.
Anyhow without touching the merits of the case, I am inclined to accept the request of learned counsel for the petitioner mentioned in para 2 above and direct Respondent No. 3 DCO Vehari to act upon the notification dated 17.11.2003 issued by the Home Department, Govt. of the Punjab and especially adopt the following Standard Operating Procedure (SOP):
"The District Co-ordination Officers will be solely responsible for the monitoring of dramatic performance within their respective districts and will ensure that the vulgar/obscene stage performances are strictly monitored and in case of any violation send report to the provincial Government (Home Department) for any punitive action against delinquents under Dramatic Performance Act, 1876".
I also direct the petitioner to abide by the said notification.
(Malik Sharif Ahmed) Petition disposed of.
PLJ 2007 Lahore 494 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha & Syed Sajjad Hussain Shah, JJ.
DILSHAD AHMAD KHAN--Appellant
versus
CAPITAL DEVELOPMENT AUTHORITY through Director Estate Management II, Islamabad--Respondent
R.F.A. No. 28 of 2004, heard on 27.7.2006.
Civil Procedure Code, 1908 (V of 1908)--
----Legal right to grant the contract--CDA advertised for auction of plot--Appellant participated in the bid--Appellant was declared successful bidder--Mode of payment--Appellant did not deposit balance amount of 25% within 48 hours from auction day as per condition, due to some restraint order of Civil Court--Respondent despite injunctive order sold out the plot and confirmed the sale--Appellant filed suit for declaration that he was lawful auction purchaser of plot, suit was contested by respondent and contended that amongst other appellant had no locus standi--Suit of plaintiff/appellant was dismissed by trial Court--Assailed--Suit was filed to delay the payment and to grab the property without paying the remaining amount, being a successful bidder, within 48 hours from auction day--Appellant was restrained from depositing the balance amount terms and conditions--Highest bid was subject to approval acceptance of CDA--Highest bid which was not accepted automatically--Petitioner did not acquire any legal title in the property mere facts that auction in their favour not confirmed does not give any right to file writ petition--By giving the highest bid which was not accepted, no legal right to grant the contract--Appeal dismissed. [Pp. 503 & 505] A & C
Civil Procedure Code, 1908 (V of 1908)--
----O.XXIII, R. 1--Subsequent suit--Question of maintainability of suit--If suit was withdrawn without permission to bring fresh suit, the subsequent suit on the same cause of action is barred but if subsequent suit is filed during pendency of earlier suit and earlier suit is withdrawn, such bar is not attracted. [P. 504] B
Civil Procedure Code, 1908 (V of 1908)--
----O.I, R. 9--Mis-joinder or non-joinder of parties--Matter of controversy--Held: Non-joinder is not fatal yet where is non-joinder of necessary party who ought to have been joined and in absence an effective decree can not be passed. [P. 505] D
Mr. Abdur Rashid Awan, Advocate for Appellant.
Mr. Arif Chaudhry, Advocate for C.D.A.
Date of hearing : 27.7.2006.
Judgment
Abdul Shakoor Paracha, J.--This is the Regular First Appeal under Section 96 CPC against the impugned judgment and decree dated 15.11.2003 passed by the learned Civil Judge, Ist Class Islamabad through which the suit for declaration, mandatory and permanent injunction filed by the appellant plaintiff against CDA respondent/ defendant has been dismissed.
The brief facts of the case are the Capital Development Authority (CDA) published an advertisement in various Newspapers for auction of Plot No. 17, situated at Markaz F-11. Islamabad. The auction was conducted on 17.11.1999. The appellant participated in the bid and Respondent No. 1, declared the appellant as successful bidder by accepting his offer of Rs. 3,11,99,688/- being the highest one. The mode of payment was described in Clause 17 of the terms and conditions contained in the Brochure (Exh P-3) of Capital Development Authority (Estate Management Directorate-II) for Auction of the Commercial and other plots in Islamabad. Clause 17 says that "in case 25% of the total premium of the plot exceeds Rs. 5,50.000/- in case of plots of less than 500 sq yards and Rs. 8,50.000/- in case of plots above 500 sq yards, the balance amount of 25% shall be deposited by the successful bidder within 48 hours from the auction day, failing which the bid shall stand rejected and 10% of the total amount of premium, or the deposited amount. Which ever is less, shall stand forfeited in favour of CDA.
It is the case of the petitioner that he paid an amount of
Rs. 8,50,000/- at the time of auction by complying with Condition No. 17 ibid but before he could deposit the remaining amount within 48 hours from the auction day, under Condition No. 17, he received a notice from the Court of Senior Civil Judge. Islamabad wherein one Muhammad Riaz. filed a suit against the appellant as well as CDA/respondent. An interim injunction was issued by the Civil Court whereby, the respondents were directed to refrain from alienating the suit plot in an illegal manner. The appellant was ready to make payment but on receiving a notice in the suit titled "Muhammad Riaz vs. CDA and another", he submitted an application to the CDA/respondent on 19.11.1999, which was received by respondent on 20.11.1999. Respondent/CDA did not accept the highest bid of the petitioner and proceeded to sell the property in open auction without any intimation to the appellant and without formally rescinding the sale of the property to the appellant. The respondent despite of the injunctive order sold out the property in open auction and confirmed the sale of the same. It is further averred that the appellant initiated contempt proceedings against the respondent. Therefore, the appellant was left with no remedy except to file a suit for declaration to the effect that the appellant is a lawful auction purchaser of the plot vide auction dated 17.11.1999 and the enlistment of the suit plot for auction is illegal, ultra vires, unlawful, arbitrary and ineffective upon the rights of the appellant and mandatory injunction directing the CDA to fix time frame for payment of the balance amount after vacating the stay order issued in the case of Muhammad Riaz.
The suit was contested by the Capital Development Authority by filing a written statement. It was contended that the plaintiff had no locus standi to file the present suit. The suit of the plaintiff is not maintainable for non-joinder of the proper parties as the suit plot has been auctioned on 11.10.2000. M/s Mumtaz Akhtar, Khurshid Alam Chaudhry, Muhammad Asghar and Muhammad Riaz have been declared highest bidders and they have deposited 25% of the total bid within 48 hours according to the terms and conditions of auction. As the plaintiff did not deposit the 25% of the total bid amount, according to the terms and conditions of auction, therefore, his earnest money was forfeited, he was neither declared the successful bidder nor any acceptance letter was issued to him, hence the instant suit is not maintainable under the law.
From the divergent pleadings of the parties, following issues were framed by the trial Court:--
Whether the plaintiff has no cause of action ? OPD
Whether the plaintiff has not come to the Court with clean hands ? OPD
Whether the suit is false, frivolous and vexatious and is liable to be dismissed ? OPD.
Whether the suit is barred under Section 42 of the Specific Relief Act ? OPD.
Whether the suit is bad for mis-joinder and non-joinder of necessary parties ? OPD.
Whether the suit is barred u/S. 49-E of CDA Ordinance, 1960 ? OPD.
Whether the defendant is entitled to special costs under Section 35-A CPC ? OPD.
Whether the plaintiff is the lawful auction purchaser of suit plot and the enlistment of suit plot in the next auction is illegal, unlawful, ineffective and against the rights of the plaintiff ? OPP.
Thereafter both parties produced their evidence. From the plaintiff's side Muhammad Sharif, AEM, CDA appeared as PW-1, Dilshad Ahmed as PW-2, and an additional evidence of Muhammad Hussain, Assistant, Directorate of Estate Management, as PW-3. In documentary evidence, letter of plaintiff to CDA Exh. P-1, receipt of auction dated 17.11.1999 Exh. P-2, terms and conditions for auction Exh. P-3, attested copy of the suit titled "Muhammad Riaz Vs CDA and another" Exh. P-4, letter dated 27.11.1994, Exh. P-5, Telegram dated 22.10.1994, Exh. P-6 and letter dated 10.11.1994, Exh. P-7 were produced.
From the defendant's side, Abid Mehmood Assistant Director, Estate Management, CDA appeared as DW-1, Muhammad Hussain, Assistant, Estate Management, DW-2. In documentary evidence, copy of letter of allotment was produced as Exh. DW-1/1, copy of certificate of possession dated 18.5.2001 Exh.DW-1/2, copy of telegram Exh. D-4, Copy of letter dated 10.11.199. Exh. D/5 copy of letter dated 10.11.1994 Exh. D-7, copy of letter dated 9.3.1995 Exh. D/8, copy of letter dated 7.8.1995 Exh. D/9, photo copy of cheque Exh. D/10 and acknowledgment of payment Exh. D/11 were also produced.
Under Issue No. 1, the Court held that in the light of the finding recorded under Issue No. 8, it is evident that the suit plot was rightly cancelled from the name of the plaintiff as he failed to deposit the 25% of the sale amount during the 48 hours in accordance with the rules and regulations of the CDA. In the light of trial Court's findings under Issue Nos. 1 & 8. Issue Nos. 2 & 3 were decided in favour of the defendant. Whereas Issue Nos. 4, 5, 6 and 7 were not pressed, hence, decided against the defendants. On the basis of above stated findings, on the issues, the suit of the plaintiff was dismissed through the impugned judgment and decree, hence, this appeal.
The learned counsel for the appellant contends that the trial Court has failed to give its findings or decision with reasons upon each separate issue. The Court was under legal obligation to give its findings and decide each issue separately on the mandate of Order XX Rule 5 CPC. That the trial Court erred in holding that non-depositing of 25% of the sale amount within 48 hours from the auction day justified the cancellation of the plot. He has drawn the attention of the Court to the statement of Muhammad Hussain, Assistant, Estate Management, DW-2 who deposed in his evidence and admitted the fact that the respondent served upon the purchaser a notice for the payment and in the event of non-compliance of the notice the sale is cancelled. It was admitted by the DW-1, Abid Mehmood that no notice to appellant was served regarding the cancellation of the plot. Learned counsel while elaborating his argument has contended that the respondent acted with malafide when it ignored to issue the notice to the appellant especially in the circumstances when it is a practice of the respondent to issue the notice of payment before cancellation of the plot. He has relied on the notices Exh. D-4, Exh D-5 and Exh. D-6 wherein the respondent in certain cases, demanded the payment even after the lapse of the period under the rules of the CDA. Further, the learned counsel contends that respondent was directed to refrain from alienating the suit property vide order dated 17.11.1999 i.e. Exh P-4 in the suit, titled as "Muhammad Riaz vs CDA and another" and therefore, the payment was to be made qua the plot regarding which the injunctive order was passed and the payment could have been a step forward which could have circumvent the decision of the Court. He relies on Condition No. 18 which stipulates, "that failure to make these payment, shall employ that the bidder is no more interested in the plot and consequently his bid will stand cancelled automatically". The appellant soon on receipt of notice from the Court without wasting a single day approached the respondent and showed his willingness to pay the amount but sought the instructions in this respect as there was the pendency of suit. Further the argues that Condition No. 21 manifest that in case of delayed payment the charges shall be recovered at a rate of 17.35% per annum. Had the time been the essence of the contract then there would have not been the provision for charging 17.35% as late payment. Further in paragraph (G) of the grounds of appeal, the learned counsel has stated that the learned trial Court decided Issue No. 1, against the appellant and in this respect the judgments i.e 2000 Law Notes 411, 1993 MLD 1976 and P.L.D. 1995 Lahore 451, referred to above by the appellant before the trial Court were not taken into consideration and suit of the plaintiff was dismissed without taking note of above cited case law.
On the other hand, learned counsel for the respondent contends that under Condition No. 13 of the terms and conditions of auction Exh. P-3, the acceptance of the highest bid was subject to approval of CDA Board which reserves the right to accept or reject any bid without assigning any reason. On acceptance of the bid, the bidder would be required to pay to the authority, within two months, 2538 of the total premium and also to deposit in the Government Treasury or any authorized Branch of a Bank 3% of the total premium of the plot. He contends that by giving the highest bid, the petitioner did not acquire any valid title in the property. He was under legal obligation to pay the balanced amount of 25% being the successful bidder within 48 hours from the auction day, failing which the bid was liable to been cancelled on the mandate of condition 17 of the Terms and Conditions of Brochure (Exh P-3) which has been rightly cancelled/rejected. Since the bid was not accepted by the competent authority i.e. the CDA Board under Condition No. 17, therefore, there is no question of invoking the Condition Nos. 18 and 21 because the petitioner was not the successful bidder, and therefore, there was no question of delayed payment of the charges at the rate of 17.35 per annum in case of delay. Further contends that the plaintiff was never restrained from depositing the balanced amount of 25% of the sale consideration. It was incumbent upon the plaintiff to fulfill the condition, mentioned in para 17 of the Brochure (Exh P-3). So far as the injunctive order is concerned, it was only to the extent of refraining from alienating the suit property, in an in illegal manner, by the respondent CDA. No where in this order was mentioned that plaintiff was entitled to desist from submitting balanced amount of 25% of sale amount in accordance with the rules and regulations of the CDA. Further contends that the suit could not be dismissed merely on the ground of mis-joinder and non-joinder of necessary parties on the mandate of Order 6 Rule 9 CPC but here in the present case, preliminary objection 5 was taken that suit of the plaintiff was not maintainable for non-joinder of the proper party as the plot had been auctioned on 11.10.2000 and M/s Mumtaz Akhtar, Khurshid Alam Chaudhry, Muhammad Asghar and Muhammad Riaz have been declared highest bidders and they have deposited 25% of the total bid within 48 hours according to the terms and conditions. The plaintiff did not make them as party therefore, the suit was liable to be dismissed. Adds that plaintiff was not entitled for any notice. Lastly contends that the case law relied upon by learned counsel for the appellant in his ground G of the grounds of appeal i.e. 2000 Law Notes 411, 1993 MLD 1976 and PLD 1995 Lahore 451, is not applicable to the facts and circumstance of the present case.
To resolve the controversy between the parties the reading of some relevant conditions regarding auctioning of the plot contained in the Brochure Exh. P-3 necessary:--
Condition No. 13.
The acceptance of the highest bid would be subject to approval of CDA Board which reserves the right to accept or reject any bid without assigning any reason. On acceptance of the bid, the bidder would be required to pay to the authority, within two months, 25% of the total premium and also to deposit in the Government Treasury or any authorized Branch of a Bank 3% of the total premium of the plot..................................................
Condition No. 17.
In case 25% of the total premium of the plot exceeds Rs. 5,50,000 in case of plots of less than 500 sq. yards and Rs. 8.50,000/- in case of plots of above 500 sq. yards, the balance amount of 25% shall be deposited by the successful bidder within 48 hours from the auction day, failing which the bid shall stand rejected and 10% of the total amount of premium, or the deposited amount, which ever is less, shall stand forfeited in favour of CDA.
Condition No. 18.
Further 25% towards premium of the plot, as well as taxes (Advance Tax etc.) shall be paid by the successful bidder within two months from the date of issue of bid acceptance letter (Annexure-C). Allotment letter (Annexure-D) containing detailed terms and conditions of allotment will be issued on receipt of 50% of the premium of plot and taxes due thereon. Failure to make these payments shall imply that the bidder is no more interested in the plot and consequently, his bid will stand cancelled automatically and 10% of total premium shall stand forfeited.
Condition No. 21.
In case of delay, the delayed payment charges will be recoverable @ 17.35% per annum (or as may be levied from time to time). However, if any amount of premium and/or of delayed payment charges due thereon remain unpaid, whether formally demanded or not, for a period of two months from the due date, it shall be lawful for the authority to cancel the allotment and forfeit 10% of the total premium. Same will also apply in case of surrender of plot. In case of acceptance of delayed payments, delayed payment charges will be adjusted first and the principal amount later. Non provision of infrastructure at site or non delivery of possession of plot for any reason will be no justification for non-payment of installment of premium of plot and other dues.
It is the admitted position on the record that on 17.11.1999, the Capital Development Authority auctioned the suit plot and the highest bidder was the appellant who offered a consideration of Rs. 3,11,99,688/-. An amount of Rs. 8,50,000/- was paid at the time of auction. According to the terms of auction given in Exh. P-3, a successful bidder was bound to deposit 25% of total consideration within 48 hours from the auction day failing which the bid was liable to be rejected and 10% of the total amount of premium, or the deposited amount, which ever is less, shall stand forfeited in favour of CDA. It is also an admitted position on the record that on 19.11.1999 the suit titled "Muhammad Riaz vs CDA and another" was filed and the learned Civil Judge passed the following order.
"The respondents are directed to refrain from alienating the said plot in an illegal manner".
A copy of the plaint of the suit filed by Muhammad Riaz against CDA and Dilshad Ahmed Khan, appellant alongwith order sheet Exh.P-4, is on the file. The suit was filed on 19.11.1999 on which date the above said order was passed. Notices were issued to defendants including the appellant for 24.11.1999. On 19.11.1999, counsel for the plaintiff Muhammad Riaz of that suit and a representative on behalf of the CDA were present. Summon were not received back. Fresh summons/notice were ordered to be issued to Defendant No. 2/Appellant through registered post A.D for his appearance on 11.12.1990 but on the said date the presiding officer was on leave and the case was then adjourned to 18.1.2000.
"The view formed by the High Court is unexceptionable. Since the auctions in favour of the petitioners were not finally approved, they did no required any right in the properties, and had, therefore, no locus standi to ask for their transfer. According to the terms and conditions of the auction itself, the highest bids offered in the auctions were subject to the approval of the Additional Settlement Commissioner concerned, who may or may not accept the bids, without assigning any reasons for his action." The above referred proposition of law was taken into consideration by the apex Court in Rehmat Ali's case reported as 1973 SCMR 342. Condition of auction authorizing the higher authorities to confirm or not to conform the auction of the State land was within the discretion of the respondents and it was approved by the authorities not to confirm the auction. Held .... In our opinion, the petitioner by giving highest bid have not acquired any legal title in the property in dispute and the mere fact that the auction in there favour has not been confirmed, does not give them any right to file a write petition". Reference can also be had to Meraj Din's case 1970 SCMR 542. The relevant portion is as under:--
"It is conceded by the learned counsel at the Bar that the auction in favour of the petitioner was never confirmed. He was no doubt the highest bidder at the second auction had also deposited a substantial amount of auction money, but until the confirmation of the auction was made in his favour by the relevant authority, he did not acquire any right in the property whatsoever. Paragrah 9 of the terms and conditions of the auction of `building sites' under which the auction in question had been held, provided that the highest bid given by a person could be rejected without assigning any reason for it".
The aforesaid provision of law was also considered by the honourable Supreme Court in Babu Pervaiz Qureshi's case in 1974 SCMR 337 and the honourable Supreme Court observed as under:-
"A mere bid at an auction if the bid is subject to confirmation, does not create any contractual right until the bid is confirmed. It is in the discretion of the auctioneer to confirm or not to confirm it".
On the basis of the aforesaid dictum laid down by the honourable Supreme Court of Pakistan, we are also of the opinion that by giving the highest bid which was not accepted, no legal right to grant the contract in view of the aforesaid conditions in the Brochure, accrued in favour of the appellant.
The case law relied upon by the learned counsel for the appellant in clauses G of the grounds of appeal is not applicable in the facts and circumstance of the present case. The case reported as Muhammad Bashir and others vs Hakim Ali and another (2000 Law Notes 411 (Lahore) was a civil revision arising from judgments of Courts below by which suit for specific performance, filed by the respondents, was decreed and appeal of the petitioners was dismissed. The factual position which emerges from that case is that respondents filed a suit for specific performance of an agreement of sale dated 30.3.1968, against the predecessor of the petitioners, the execution of the agreement was not disputed, the payment of the earnest money was also not a point in issue but the parties were at variance, on the question of the maintainability of the suit and also on the question of limitation. The first objection as to maintainability of the suit was that previously in suit for declaration was filed which was allegedly dismissed and plaintiff-decree holder was to file a suit for specific performance on the mandate of Order 23 Rule 1 CPC. The Court held that under O. 23 Rule 1 CPC if the suit is withdrawn, without the permission to bring the fresh one, the subsequent suit on the same cause of action is barred but if the subsequent suit is filed during pendency of earlier suit and earlier suit is withdrawn later, this bar is not attracted.
The case reported as Province of the Punjab through Collector, Sahiwal and another vs Malik Yousaf (1993 MLD 1976 Lahore) relates to the disposal of four revision petitions preferred by the province of the Punjab against four different persons. The suit was decreed by Senior Civil Judge on 16.1.1991 and the decrees were affirmed by the Additional District Judge, Sahiwal on 18.6.1992. The Forest Department had offered Timber Wood for sale, to take place in open auction, notified to the public through press. The auction was held on 13.1.1985 and the respondent being the highest bidder proceeded to deposit the earnest money and formally on 16.1.1985 he was informed about acceptance of his bid and was required to make payment of the remaining price within 30 days. In the meanwhile, at the instance of a third person, who was at liberty to have participated in the auction but had not done so, nullified the auction proceedings. The Court held that the person on whose complaint, the action was nullified was at liberty to have participated in the auction and the auction purchasers were ready to deposit the amount within the stipulated period. In the instant case balance of 25% has not been paid by the appellant within 48 hours in compliance with the Condition No. 17 of the terms and conditions of the Brochure Exh. P-3.
In the case of Fazal Hussain and others vs Malik Muhammad Saeed and others (PLD 1995 Lahore 451) the question before the Court was that whether the stipulation about time for performance of different obligations under contract of sale of immovable property are essence of the contract or not? Reference was made to the case of Ghulam Nabi others vs Seth Muhammad Yaqoob (PLD 1983 SC 344) in this context wherein a Division Bench of this Court held that "Though time is not ordinarily considered as being of the essence of the contract involving transaction of immovable property but the true intention of the parties can be gathered from the terms of the contract and facts and circumstance of the case and mere mention of the time in the contract for its performance does not necessarily mean that time was of the essence". The point, that time is or is not the essence of the contract is not the issue in the present case, therefore, by maintaining the finding on Issue No. 1, we are of the view that the trial Court had rightly decided this issue against the plaintiff.
The second auction was held on 11.10.2000. A Preliminary objection i.e. Objection 5 was raised that suit of the plaintiff was not maintainable for non-joinder of the proper party as the plot had been auctioned on 11.10.2000 and M/s. Mumtaz Akhtar, Khurshid Alam Chaudhry, Muhammad Asghar and Muhammad Riaz have been declared highest bidders and they have deposited 25% of the total bid within 18 hours according to the terms and conditions. Letter dated 14th of March, 2001 Exh. AW-1/1 shows allotment of the suit plot in favour of the above said persons. On the mandate of Order I, Rule 9 CPC no suit can be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as the rights and interest of the parties actually before it. Though non-joinder is not fatal yet where there is non-joinder of a necessary party, i.e. a party who ought to have been joined and in whose absence an effective decree cannot be passed, the suit has to be dismissed. See the case cited as 1994 SCMR 2268 and PLD 1982 SC 590.In the instant suit M/s. Mumtaz Akhtar, Khurshid Alam Chaudhry, Muhammad Asghar and Muhammad Riaz in whose favour plot was transferred after acceptance of the highest bid, on failure by the appellant to deposit the requisite balanced amount and in their absence a decree can not be passed in favour of the appellant, therefore, Issue No. 5 is decided against the plaintiff and in favour of the respondents. The appellant was not entitled for any notice prior to rejection of his bid, because same was not accepted by the competent authority (CDA Board). Clauses 18 and 21 of the terms and conditions do not apply to the case of the appellant. These clauses apply if the bid would have been accepted and allotment letter would have been issued in his favour.
Since the plaintiff was not a lawful auction purchaser of the suit property and enlistment of the suit property in the next auction was quite legal, therefore, Issue No. 8 was rightly decided in favour of the respondents. It is well settled rule of law that a judgment which deals with all points raised fulfills the requirements of law even though it may not have discussed each issue separately. See the case cited as Aziz Ullah Khan and others vs Gul Muhammad Khan (2000 SCMR 1647), Muhammad Arif Vs Mrs. Anwar Jehan (2000 SCMR 1960), Mst Husna Bano alias Mst. Bibi Hussain Bano and others vs Faiz Muhammad through Legal heirs and others (2002 SCMR 667). For what has been discussed above, the trial Court has rightly dismissed the suit for the plaintiff by recording findings on Issues Nos. 1, 5 and 8 against the plaintiff. This being so, this appeal has no merit and therefore is dismissed with costs.
(Rafaqat Ali Sohal) Appeal dismissed.
PLJ 2007 Lahore 506 (DB)
Present: Muhammad Muzammal Khan and
Syed Sajjad Hussain Shah, JJ.
GHULAM MUSTAFA and another--Appellants
versus
MUHAMMAD ASLAM--Respondent
RFA No. 158 of 2006, heard on 1.11.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII R. 3--Closing of evidence--Provisions of--Adjournment attributed--Miscarriage of justice--Where the suit was not adjourned on appellant's request on the preceding date, the penal provisions invoked were inapplicable--Party being penalized would have been required by Court to produce evidence or to do any act for progress of suit but fails to do same--Appellants could have been given numerous opportunities of producing evidence and they might have failed but the crucial date for applicability of the provisions of law under discussion, is the date from which the suit was lastly adjourned and in present case, the pivotal date was 11.2.2006 which adjourned the case on account of death of Advocate--Said adjournment could not be attributed to the appellants--Held: Evidence of the appellants was incorrectly closed by applying the provisions of Order XVII Rule 3 CPC which were not attracted but resulting in miscarriage of justice could not be sustained. [Pp. 507 & 508] A & B
Mr. Kamal Hussain Naqvi, Advocate for Appellants.
Mr. Imran Naveed Chaudhary, Advocate for Respondent.
Date of hearing: 1.11.2006.
Judgment
Muhammad Muzammal Khan, J.--Instant appeal was filed against the judgment/decree dated 18.3.2006 passed by the learned Civil Judge Samundari, whereby appellants' defence was struck by invocation of provisions of Order XVII, Rule 3 CPC and their suit for specific performance was dismissed on account of lack of evidence.
Succinctly, relevant facts are that appellants filed suit for specific performance of an agreement to sell dated 2.5.2002 whereby respondent had agreed to sell his land fully detailed in the plaint, for an amount of Rs. 9,000 per marla and received Rs. 2,00,000/- as earnest money. Appellant claimed to have been paying different amounts towards the settled sale price but could not get the sale-deed executed inspite of his readiness/willingness to pay the balance amount on 5.5.2005, necessitating filing of suit. Respondent being defendant in the suit contested the same by filing his written statement wherein he admitted execution of the agreement to sell dated 2.5.2002 but pleaded that appellants could not discharge their obligations within the time stipulated, on account of which the agreement to sell stood rescinded. Controversial pleading of the parties necessitated framing of issues and recording of evidence. Case was being fixed for evidence of the appellants/plaintiffs when on 11.2.2006, the same was adjourned to 18.3.2006 on account of death of some Advocate/Member of the Bar Association. On the date adjourned i.e 18.3.2006 the learned Civil Judge, seized of the suit, due to non-production of evidence by the appellants, invoked his jurisdiction under Order XVII, Rule 3 CPC and closed there evidence and simultaneously dismissed their suit vide his judgment/decree dated 18.3.2006. Appellants, thereafter, filed instant appeal, which was admitted, to regular hearing and respondent in response to notice by this Court appeared and was represented through his counsel.
We have heard the learned counsel for the parties and have examined the record the trial Court. The learned counsel for the respondent attempted to support the impugned judgment/decree but had nothing with him to oppose the appellant's claim that since their suit was not adjourned on their request on the preceding date i.e 11.2.2006, the penal provisions invoked were inapplicable. Besides language of Rule 3 of Order XVII CPC, stare-decises has firmly settled to the effect that party being penalized should have been required by the Court to produce evidence or to do any other act for the progress of the suit but fails to do the same. Appellants might have been given numerous opportunities of producing evidence and they might have failed but the crucial date for applicability of the provisions of law under discussion, is the date from which the suit was lastly adjourned and in this case, the pivotal date is 11.2.2006 which as noted above, adjourned the case on account of death of some Advocate/Member of the Bar Association, Faisalabad. This adjournment cannot be attributed to the appellants thus we are of the considered view that evidence of the appellants was incorrectly closed by applying the provisions of Order XVII, Rule 3 CPC which were not attracted but this aspect of the case escaped notice of the trial Court, resulting in miscarriage of justice thus, impugned order/decree cannot be allowed to be sustained and deserved to be reversed.
For the reasons noted above, instant appeal is bound to succeed and is accordingly accepted, with the result that order/judgment/decree dated 18.3.2006 are set aside and appellants suit shall be deemed to be pending and they shall be granted opportunity to conclude their entire evidence on the maximum two dates, to be fixed by the trial Court, subject to payment of cost of Rs. 10.000/- to the respondent. Parties are directed to appear before the trial Court on 18.11.2006 for further proceedings in accordance with law. There will be no order as to costs, as far as instant appeal is concerned.
(Rao Farid ul Haque) Case remanded.
PLJ 2007 Lahore 508
Present: Muhammad Muzammal Khan, J.
Hafiz Hakim MUHAMMAD FAYAZ--Petitioner
versus
AKBAR ALI--Respondent
C.R. No. 1746 of 2005, decided on 18.1.2006.
Damages--
----Right to file suit for damages--Validity--Acquittal of accused--Criminal proceedings--Neither ended by his acquittal nor terminated by any other means--Discharge from criminal case did not equip him with a right to file suit for damages--Proceedings against petitioner have only been suspended till the decision by Civil Court which can be reactivated under the final order of the Civil Court. [P. 510] A & B
Mr. Abdul Sami Khawaja, Advocate for Petitioner.
Mr. Tanvir Ashraf, Advocate for Respondent.
Date of hearing: 18.1.2006.
Order
This judgment proposes to decide four civil revisions one in hand and the others CR. 1747, CR. 1748 and CR. 1749 of 2005, as all these petitions arise out of similar circumstances, raise alike question of law/facts and require interpretation of same provisions of law. All these petitions challenged the judgments/orders dated 25.9.2004 and 21.3.2005 passed by the learned Civil Judge and the learned Additional District Judge Okara, rejecting petitioner's four plaints under Order VII, Rule 11 CPC and dismissing their appeals, respectively.
Succinctly, relevant facts are that the petitioner filed four distinct suits each for recovery of Rs. 20,000/- as damages from the respondent who according to him, got false/frivolous criminal case registered vide FIR No. 288 of 2003 under Sections 468, 471 PPC wherein, each of the respondents was complainant/witness against him. It was further pleaded by the petitioner that on account of registration of fake case, he remained under physical/mental stress besides remaining in physical remand with the police for three days and thus suffered loss to his health/reputation and claimed its compensation by payment of Rs. 20,000/- as damages.
Respondents in all the four petitions being defendant in the suits, contested the same and moved an applications under Order VII Rule 11 CPC with the averments that the petitioner has only been discharged and not acquitted by the concerned Magistrate which too was done on account of pendency of petitioner's suit for specific performance, thus criminal proceedings did not terminate, conferring the right to maintain a suit for damages. The learned Civil Judge who was seized of the matter after hearing the parties took the view that discharge of the petitioner did not amount to his acquittal or termination of criminal proceedings thus, he accepted the applications under Order VII, Rule 11 CPC and rejected the plaint vide order dated 25.9.2004.
The petitioner feeling himself aggrieved of the decision by the trial Court dated 25.9.2004 filed four appeals before the learned Additional District Judge, but remained unsuccessful as all these appeals were dismissed vide appellate judgment/decrees dated 21.3.2005. They have now filed four civil revisions for adjudgment of the concurrent judgments/orders of the two Courts below. The respondents in response to notice by this Court were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly the petitioner was discharged from the case on the ground that same matter was sub judice before the Civil Court on a suit for specific performance filed by the petitioner and the learned Judicial Magistrate while discharging him observed as follow"--
"The complainant has lodged this FIR on the ground that the accused have prepared a fake agreement to sell on 30.9.2002. File further goes to show that Muhammad Ramzan one of the accused has filed suit for specific performance of the contract against complainant which is pending in the Court of Iftikhar Hussain Chaudhary learned Civil Judge, Okara. In civil litigation the contention of the accused is that the complainant executed agreement to sell of his house on 30.9.2009 but now he is not ready to execute the sale-deed. On the other hand, the contention of complainant in his written statement is that the alleged agreement to sell is fake and fictitious. I have heard the arguments of both the parties at length. In my humble view it is in the best interest of justice that firstly Civil Court should decide the matter to the effect that whether disputed agreement to sell is forged, false and fake or it is correct. After determination of matter from Civil Court criminal proceedings may be initiated against the accused if it is determined by the Court that the agreement to sell dated 23.9.2002 is a fake and forged document. The matter is sub judice in Civil Court on the same ground. I feel in this situation that criminal proceedings cannot be initiated against the accused unless and until determination of matter from civil Court is decided. Hence the FIR of the case is hereby cancelled. The accused are discharged. However complainant is open to proceed against the accused if Civil Court decides that document under question is forged of fake". (under lining is mine, to highlight important part of the order).
It is obvious from the above reproduced order of the learned Magistrate that discharge of the petitioner is only till the pendency of proceedings in his own suit, on the basis of the agreement to sell which has also been claimed to be forged/fake. Criminal proceedings against the petitioner neither ended by his acquittal nor those were terminated by any other means, thus, his discharge from the criminal case, in the given circumstances, did not equip him with a right to file suit for damages against the complainant and the witnesses.
The learned counsel for the respondent correctly relied on the judgment in the case of Ashiq Hussain Versus Sessions Judge Lodhran and 3 others (PLJ 2001 Criminal Cases (Lahore) 557) to contend that discharge of accused by the learned Magistrate, be it of any kind, cannot be equated with acquittal of the accused, as there is a marked difference between a discharge and an acquittal, thus, the complainant cannot be proceeded against for malicious prosecution simply because accused had been discharged by the learned Magistrate, till decision of his suit.
Above all, criminal proceedings against the petitioner have only been suspended till he decision by the Civil Court which can be reactivated under the final verdict of the Civil Court hence, I am of the considered view that all the four suits filed by the petitioner did not disclose any cause of action, thus, the same were correctly rejected under Order VII Rule 11 CPC and this order was rightly affirmed by the appellate Court.
For the reasons noted above, none of the Courts below committed any illegality irregularity amenable to revisional jurisdiction of this Court, hence, all the four petitions being devoid of any merits, are dismissed with no order as to costs.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 511
Present: Muhammad Muzammal Khan, J.
RAZIA BIBI and 6 others--Petitioners
versus
PROVINCE OF PUNJAB through Collector Gujranwala
and 3 others--Respondents
C.R. No. 780 of 2005, decided on 22.11.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Legality--Scan of record and the impugned order revealed that controversy was correctly put to rest without committing any illegality/irregularity amenable to revisional jurisdiction--Revision dismissed. [P. 513] A
Mian Liaqat Ali, Advocate for Petitioners.
Ch. Irshad Ullah Chatha, Advocate for Respondent Nos. 3 to 4.
Mr. Gohar Siddique, Advocate on behalf of Ch. Muhammad Sadiq, Additional Advocate General with Mazhar Iqbal, Naib Tehsildar.
Date of hearing: 22.11.2006.
Order
Instant civil revision assailed the judgments decrees dated 11.3.2002 and 6.1.2005 passed by the learned Civil Judge and the learned Additional District Judge, Gujranwala, whereby suit for declaration filed by Respondent Nos. 3 and 4 was decreed and petitioners' appeal was dismissed, respectively.
Succinctly, relevant facts are that Respondent Nos. 3 and 4 filed a suit for declaration with consequential relief to the effect that land measuring 37 kanals 5 marlas, duly detailed in the plaint, was never mortgaged by their predecessor-in-interest to any Muslim, non Muslim, Government or predecessor in interest of the appellants by receiving mortgage money thus it had incorrectly been shown under mortgage in the revenue record. Respondent Nos. 3 and 4 prayed that entries in the revenue record showing their land under mortgage may be declared illegal, void and accordingly may be ad-judged, declaring them exclusive owners. It was further prayed in the plaint, by way of consequential relief that the petitioners/defendants may be restrained from taking benefit of the incorrect entries in the revenue record.
Petitioners being defendants in the suit contested the same by filing their written statement wherein they raised certain preliminary objections and controverted the stance of Respondent Nos. 3 and 4. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge; seized of the suit, after doing the needful, decreed the suit vide his judgment decree dated 11.3.2002. Petitioners were not satisfied with the decision of the trial Court and consequently filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed on 6.1.2005. They, thereafter, filed instant revision petition and respondents in response to notice by this Court appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Besides the lawful reasons which concurrently weighed with the two Courts below in support of the decrees in favour of Respondent Nos. 3 and 4, they examined 2 witnesses in proof of their stance that suit land was never mortgaged and statements of both these PWs Nos. 1 and 2 are consistent on the point. Another witness, PW. 3 Ghulam Rasul Patwari deposed that suit land was purchased by the Respondents Nos. 3 and 4 vide Mutation Nos. 828 and 829. According to this witness, suit land had been shown under mortgage with non-Muslims but without reference to any mutation in this behalf which was also not available on the record. In view of this evidence and clear denial of the respondents about creation of the mortgage, onus shifted towards the petitioners/ defendants to prove creation of mortgage through positive evidence. Mst. Razia Bibi, one of the petitioners/defendants, appeared in the witness-box as DW. 1 and simply asserted that suit land was allotted to her husband Gulzar Hussain as temporary attollee and that land was already under mortgage.
The pivotal question which hinges for determination by this Court is as to whether the suit land temporary allotted to Gulzar Hussain husband of DW. 1, was according to law and as to whether land was under mortgage with non-Muslims whose rights could have been transferred to the predecessor of the petitioners, as refugees from Jammu and Kashmir State. It was not denied by the petitioners that suit land was Muslim owned property, title of which was never transferred by the owners in favour of the non-Muslim. Now though there is no proof of creation of mortgage in favour of non-Muslims yet if such mortgage was ever granted, only mortgagee rights were to vest in Federal Government to form part of the compensation pool created under the settlement laws. There is not an iota of evidence on the file that mortgagee rights of the land in question ever became part of the compensation pool or were transferred to the Ministry of Kashmir Affairs for onward allotment to the petitioners. The petitioners also did not produce any evidence showing that which land and what rights thereto, were allotted to there predecessor Gulzar Hussain. In absence of any such evidence, petitioners were not in a position to have the well reasoned concurrent judgments adjudged.
Respondents Nos. 3 and 4 also produced copy of a plaint in earlier suit filed by the petitioners, titled "Mst Razia Bibi and others Versus Muhammad Boota and others" as Ex. P. 2 which according to the statement of DW. 1 , was dismissed in earlier round of litigation. Dismissal of petitioner's suit rendered substantial support to the case put-forth by the respondents. It goes without remarking that petitioners never received any lagan from respondents and did not approach the Court concerned, in this behalf. Scan of record and the impugned order revealed that controversy was correctly put to rest without committing any illegality/irregularity amenable to revisional jurisdiction of this Court.
For the reasons noted above, no case for interference in revisional jurisdiction of this Court could be made out and consequently instant revision petition being devoid of any merit, is dismissed with no order as to cots.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 513 (DB)
Present: Ijaz Ahmad Chaudhry and
Mian Muhammad Najum-uz-Zaman, JJ.
ALI RAZA alias KALO and another--Petitioners
versus
STATE and another--Respondents
W.P. No. 7628 of 2006, heard on 19.10.2006.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 324 & 353--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Conviction and sentence--Application for acquittal compromise--In compoundable offences, the compromise can be effected with the victims/heirs of the deceased at any stage with the permission of the Court--Trial Court seems to have disallowed compromise while considering that it was a police encounter case--Offence u/S. 324 PPC with which the petitioners were convicted and sentenced has been made compoundable by the legislature and the injured PWs were very much competent to compound the same--Charge of assaulting upon the police force to deter them from discharge of their duties, the petitioners were separately convicted and sentenced u/S. 353 PPC--Trial Court has failed to exercise jurisdiction vested in it properly and thus order is set aside--Application for compromise allowed--Petition disposed of.
[P. 515] A
Mr. Muhammad Afzal Lone, Advocate for Petitioners.
Mr. Sarfraz Ali Khan, Assistant A.G. for Respondents.
Date of hearing: 19.10.2006.
Judgment
Ijaz Ahmad Chaudhry, J.--Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners, namely, Ali Raza alias kalo and Naser alias Nasri have sought their release from jail in case FIR No. 32 dated 22.2.2003 registered at PS Saddar Hafizabad on the basis of compromise arrived at with the victims, namely, Arshad Hussain ASI and Safdar Hussain, who appeared in the learned trial Court and got recorded their statements to this effect, but vide orders dated 4.5.2006 the learned Judge, Anti-Terrorism Court-I, Gujranwala dismissed the application.
under Section 324 PPC read with Section 7(c) of Anti Terrorism Act, 1997 and sentenced to 10 years RI with a fine of Rs. 20,000/- or in default of payment thereof to undergo six months SI, under Section 353 PPC and sentenced to 2 years RI.
The benefit of Section 382-B Cr.P.C. was also extended. However, on an appeal (Crl. Appeal No. 2020/2003) before this Court vide judgment dated 22.7.2004, the conviction under Section 7(c) ibid was set aside and sentence under Section 324 PPC was reduced to five years RI while the conviction and sentence under Section 353 PPC was maintained. Moreover, both the sentences were directed to run concurrently. The matter was not agitated any further as claimed by the leaned counsel for the petitioners and the said judgment of this Court has attained finality. It is an admitted position that only Arshad Hussain ASI and Safdar Hussain were injured during the said occurrence. Afterwards an application was filed before the learned trial Court for effecting compromise with the said injured PWs and seeking acquittal of the petitioners from the charge under Section 324 PPC on the basis of compromise. Both the injured PWs got recorded their statements before the learned trial Court on 3.5.2006 copies whereof are attached with the writ petition. It is settled law that in compoundable offences, the compromise can be effected with the victims/heirs of the deceased at any stage with the permission of the Court. The learned trial Court seems to have disallowed the compromise while considering that it was a police encounter case. The fact remains that the offence u/S. 324 PPC with which the petitioners were convicted and sentenced has been made compoundable by the Legislature and the injured PWs were very much competent to compound the same. Moreover, for the charge of assaulting upon the police force to deter them from discharge of their duties, the petitioners were separately convicted and sentenced u/S. 353 PPC, which had not been challenged. The learned trial Court has failed to exercise the jurisdiction vested in it properly and thus the order dated 4.5.2006 is set aside and while allowing the application for compromise, the sentence and conviction of the petitioners recorded u/S. 324 PPC is set aside. According to the report dated 4.8.2006 submitted by the Superintendent Central jail, Gujranwala the petitioners have already undergone more than three years sentence, which means that they have already served out the sentence of two years awarded u/S. 353 PPC and as such the Superintendent, Central jail, Gujranwala is directed to release the petitioners forthwith in case FIR No. 32/2003 registered at PS Saddar Hafizabad, if they are not involved in any other case.
(Anwar Saeed Sheikh) Petition disposed
PLJ 2007 Lahore 515
Present: Tariq Shamim, J.
MUHAMMAD NAZIR--Petitioner
versus
DISTRICT POLICE OFFICER, JHANG and 3 others--Respondents
W.P. No. 15605 of 2004, heard on 17.10.2006.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860) S. 380--Constitutional Petition--Quashment of FIR--Prayer for--Circumstances spell out commission of congnizable offences by petitioner and his co-accused--Since investigation in case has not been completed, as such High Court cannot control or interfere in the same, as investigation is the sole prerogative of investigating agency--Supreme Court has depreciated interference of the High Court in the process of investigation in the exercise of Constitutional jurisdiction--Petition was dismissed. [Pp. 517 & 518] A
1994 SCMR 2142 and 1971 SC 677, rel.
2006 SCMR 276, ref.
Mr. Imtiaz Hussain Balouch, Advocate for Petitioner.
Rana Muhammad Sarwar, Advocate & Mr. Muhammad Arif Bhindar, A.A.G. for Respondents.
Date of hearing: 17.10.2006.
Judgment
Through this petition, the petitioner seeks quashment of case F.I.R No. 211 dated 12.9.2004 for offence u/S. 380 PPC registered at Police Station Lalian, District Jhang.
The brief facts of the case are that Khurram Shahzad (brother-in-law of the complainant) and Muhammad Nazeer petitioner (father-in-law of the complainant), stayed overnight at the house of the complainant. In the morning when the complainant woke up, he found that the petitioner and Khurram Shahzad were not on their beds. The door of the Baithak was open and on checking he discovered that jewellry weighing 8 Tola valued at Rs. 72,000/- and clothes were missing from the cupboard. On inquiry, Shaukat Ali and Muhammad Akram informed him that the petitioner and his co-accused Khurram Shahzad while carrying two bags in their hands were seen going in a car with two unknown persons towards the Bus Stand. On suspicion that the said two persons had committed theft in the house of the complainant, he alongwith the witnesses went to their house and confronted them with the situation, whereupon they agreed to return the items stolen from the house of the complainant. However, since the return of the stolen articles was being delayed by the accused on one pretext or the other, the petitioner had no option but to file the aforementioned F.I.R.
The learned counsel for the petitioner submits that the petitioner is absolutely innocent and that the impugned F.I.R. is false, frivolous and is result of mala-fides and ulterior motives of the complainant and the police. Further submits that the daughter of the petitioner and sister of Khurram Shahzad namely Saima Naurin was married with the complainant who did not treat her properly and subsequently expelled her from his house alongwith her minor daughter Afshan and since then she was residing with the petitioner and the complainant nourished a grudge against the petitioner and his son on account thereof. That Mst. Saima Naurin filed a suit against the complainant regarding Dissolution of Marriage. Recovery of Maintenance Allowance and Recover of Dowry Articles in the Family Court at Sargodha which was pending and which had further created resentment between the parties. And lastly maintains that the registration of F.I.R. was on account of mala fides, hence the same merits to be quashed.
Learned counsel appearing on behalf of Respondent No. 4 the complainant, contends that serious allegations have been levelled against the petitioner and his son in the F.I.R. of the theft of jewellry and other articles, which fact was fully supported by the eye-witnesses mentioned in the F.I.R. who had got their statements recorded u/S. 161 Cr.P.C. before the Investigating Officer. Further submits that the petitioner has neither joined the investigation nor has he appeared before this Court after a direction was given by the Court on 24.9.2004 to the effect that the petitioner should not be arrested till further orders, hence the petitioner has misused the concession granted by this Court and on this score alone the petition merits to be dismissed. He lastly submits that on account of the pendency of the instant writ petition, the investigation is pending which has not been completed by the Investigating Officer.
I have the learned counsel for the parties and perused the record.
A direction was issued by this Court on 24.9.2004 to the effect that the petitioner shall not be arrested in the case till further orders. The case was fixed on a number of occasions thereafter but apparently the petitioner failed to appear before, this Court. The same state of affairs prevails even today, as the petitioner is absent from the Court, thus the contention of the learned counsel for the complainant that the petitioner has misused the concession granted by this Court carries weight. Further the petitioner is nominated in the F.I.R. and serious allegations have been levelled against him, which is supported by the statements made by the eye-witnesses u/S. 161 Cr.P.C. before the Investigating Officer. The record reveals that the petitioner has not joined the investigation, as a consequence of which the investigation has not been completed despite a lapse of about two years.
It is clear from the facts of the case that the circumstances spell our commission of cognizable offences by the petitioner and his co-accused. Since the investigation in the case has not been completed, as such this Court cannot control or interfere in the same, as the investigation is the sole prerogative of the Investigating Agency. The Hon'ble Supreme Court of Pakistan has deprecated the interference of the High Court in the process of investigation in the exercise of constitutional jurisdiction. Prima facie, the facts of the case do not disclose that the allegations levelled by Respondent No. 4 in the F.I.R. are baseless or motivated out of malice. Reliance is placed on the cases of Brg. Imtiaz Ahmad Vs. Government of Pakistan through Secretary Interior Division, Islamabad (1994 SCMR 2142) and Shahnaz Begum Vs Hon'ble Judges of the Sindh and Balochistan High Courts (1971 SC 677). Further the Hon'ble Supreme Court of Pakistan in the case of Col. Shah Sadiq Vs Muhammad Ashiq and other (2006 SCMR 276) has held that quashment of F.I.R would amount to short circuiting the normal procedure of law as provided under Code of Criminal Procedure and the Police Rules and that the accused has more than one alternate remedy available to him under the law.
For what has been discussed above, the petition being without any merit is dismissed and the quashment of F.I.R. No. 211 dated 12.9.2004 for offence u/S. 380 PPC registered at Police Station Lalian, District Jhang, is declined. There shall be no order as to costs.
(Anwar Saeed Sheikh) Petition dismissed.
PLJ 2007 Lahore 518
Present: Maulvi Anwar-ul-Haq, J.
Mirza IRFAN BAIG--Appellant
versus
MUBASHAR AHMAD BAJWA--Respondent
F.A.O. 167 of 2006, heard on 15.11.2006.
Cantonment Rent Restriction Act, 1963 (XI of 1963)--
----S. 17(8)--Bona fide personal use--Respondent filed an application for ejectment of the appellant--Ejectment sought on the ground of default in payment and for bona fide personal use--Relationship of landlord and tenant between parties ceased to exist as contended by the appellant on the basis of agreement to sell--Rent Controller directing the appellant to deposit arrears of rent and to pay future rent--Such order not complied with and hence defence was struck off and ejectment order--There was no provision in the agreement that the relationship of Landlord and tenant between the parties shall cease to exist--Held: Relationship of landlord and tenant never ceased to exist and the Rent Controller rightly passed the order in terms of Section 17(8) of the Cantonment Rent Restriction Act 1963--Petition dismissed. [P. 520] A
Mr. Umar Hayat Tahir, Advocate for Appellant.
Rana Habib-ur-Rehman Khan, Advocate for Respondent.
Date of hearing: 15.11.2006.
Judgment
Learned counsel for both the parties are present and ready with their arguments. Records are available. This FAO accordingly is being decided as Pacca case.
On 17.2.2005, the respondent filed an application for ejectment of the appellant from a residential building located in Lahore Cantonment. According to the contents of the ejectment petition the respondent is the landlord while the appellant is a tenant under him in the said house. The tenancy is governed by an agreement dated 15.8.2001, a copy whereof was annexed with the petition. Rent payable was Rs. 3500/- per month. The ejectment was sought on the ground of default in the payment of rent with effect from July, 2002 bona fide personal use, impairment of the value and utility of the building, as also non-payment of utility bills. It was also mentioned in the petition that the respondent has filed a suit for specific performance on the basis of a forged and bogus agreement to sell wherein application for temporary injunction has been dismissed. Reference was also made to an earlier ejectment application wherein the appellant had denied relationship of landlord and tenant. It was also decided in favour of the respondent by a learned Rent Controller, Lahore on 11.9.2004 while the appeal filed against the same order was dismissed as withdrawn by learned Addl. District Judge, Lahore on 10.12.2004. Execution petition was however, dismissed for non-production of some certificate from the Cantonment Board, Lahore.
The appellant filed his written statement on 20.10.05. He proceeded to deny the relationship of landlord and tenant between the parties. According to him he had entered into an agreement for sale of the property on 3.7.2002 for a consideration of Rs. 7,00,000/- and Rs. 6,00,000/- were paid as earnest. He, however, admitted that prior to the said agreement he was a tenant under the respondent. Learned Rent Controller examined the pleadings and heard the learned counsel for the parties on 2.2.2006, on 23.2.2006, learned Rent Controller recorded a finding that relationship of landlord and tenant exists between the parties. He directed the appellant to deposit arrears of rent amounting to Rs. 1,91,434/- with effect from July, 2002 to January, 2006 with periodical increase of 10% till 3.3.2006 and to pay future rent before 5th day of each following month. The appellant was directed to produce receipts on 16.3.2006. On this date, the case was adjourned, inter alia, for inspection of said receipts to 30.3.2006. On this date learned Rent Controller was busy elsewhere and the case was adjourned to 6.4.2006 and then to 13.4.2006. On 20.4.2006, learned counsel for the appellant stated that he is not aware as to whether rent has been deposited or not and sought an adjournment. The case was adjourned to 22.4.2006. No receipts were produced and consequently defence was struck off and ejectment order was passed.
Learned counsel for the appellant contends that since relationship of landlord and tenant had been denied, learned Rent Controller had no jurisdiction to pass the order for deposit of rent and consequently to strike off the defence of the appellant for non-compliance of the said order. Learned counsel for the respondent, on the other hand, supports the impugned order with reference to the circumstances reflected on the record.
I have gone through the records. I have already noted above that in his written reply the appellant had admitted that he has entered in the house as a tenant under the appellant subject to the conditions noted in the rent agreement referred to in the ejectment petition. It was his case that he had entered into an agreement to sell with the respondent and paid him earnest money thereunder and thus his possession became under the said sale agreement. I do not find a copy of the said sale agreement on the file of the learned Rent Controller or of this FAO. Learned counsel when confronted, admits that the agreement or its copy has not been placed on the said record. I then called upon him to state as to whether there was a prevision in the agreement that the relationship of landlord and tenant between the parties shall ceased to exist. Learned counsel has candidly admitted that there was no such provision. This being so even assuming the plea of appellant to be correct, relationship of landlord and tenant never ceased to exist and as such the learned Rent Controller competently passed the order in terms of Section 17(8) of Cantonment Rent Restriction Act, 1963. There is no denial that the order was not complied with and of course no cause shown for the said non-compliance. This being so, the impugned order directing the appellant to deliver possession of the house to the respondent does not suffer from any error of law or for that matter of fact.
The FAO accordingly is dismissed. The parties are left to bear their own costs. Trial Court records be remitted back immediately.
(Anwar Saeed Sheikh) FAO dismissed
PLJ 2007 Lahore 521 (DB)
Present: Ijaz Ahmad Chaudhry and
Mian Muhammad Najum-uz-Zaman, JJ.
AMJAD ALI KHAN--Petitioner
versus
STATE and 2 others--Respondents
W.P. No. 3814 of 2006, heard on 19.10.2006.
National Accountability Ordinance, 1999--
----Ss. 9(1) & 10, Sched. VII--Constitution of Pakistan, 1973, Art. 199--Criminal Procedure Code, (V of 1898), S. 497--Conviction and sentence--Assailed--Appeal was pending--Challenged through writ petition--Sought suspension of sentence due to undergone substantial portion--Held: No likelyhood of early hearing of appeal on merits due to the present Roster--Accused would be released on bail subject to furnishing bail bond to satisfaction of High Court--Supreme Court has already suspended sentences of the accused in the similar circumstances--Petitioner is also entitled to the same treatment--Petition was accepted. [P. 522] A & B
2004 SCMR 660 and SCMR 1225, rel.
Sardar Faiz Rasul Jalbani, Advocate for Petitioner.
Rana Naeem Sarwar, Advocate for Respondents.
Date of hearing: 19.10.2006.
Judgment
Ijaz Ahmad Chaudhry, J.--Amjad Ali Khan petitioner was an accused in A.C. Reference No. 6 of 2004 and vide judgment dated 5.12.2005 passed by the learned Judge. Accountability Court, No. 2, Lahore he was convicted under clauses IV and VI of Section 9(a) read with Section 10 and Para VII of the Schedule of the National Accountability Ordinance, 1999 and sentenced to five years RI with a fine of Rs. 26 lac or in default of payment thereof to further undergo two years R.I. The benefit of Section 382-B Cr.P.C. was also extended to the petitioner. The petitioner has already filed an appeal against the aforesaid conviction and sentence before this Court and through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 he has sought suspension of the sentence on the ground that he has already undergone substantial portion thereof.
The learned counsel for the petitioner has contended that the petitioner was arrested on 20.10.2003 and since then he is continuously behind the bars; that the petitioner has already undergone more than half of the sentence, but there is no likelihood of the hearing of the main appeal in near future; that the petitioner has very good case on merits and if he is not released on bail, there is possibility that he would undergo the whole sentence till the time the main appeal is fixed for final hearing. Relies upon 2004 SCMR 660 and 2006 SCMR 1225 wherein the sentences of the accused were suspended in the similar circumstances.
The learned counsel appearing on behalf of NAB has vehemently opposed this petition on the ground that deeper merits cannot be looked into at this stage; that the petitioner was the main accused and he is not entitled to the concession of bail merely on the ground of delay in the disposal of the appeal as he has been convicted and sentenced by the Court of competent jurisdiction.
We have heard the learned counsel for the parties and perused the documents attached with this petition. It is not denied that the petitioner was arrested on 20.10.2003 and since then he is continuously behind the bars. As such the petitioner has already undergone more than half of the sentence awarded to him by the learned Accountability Court detailed above. The petitioner filed Crl. Appeal No. 2057 of 2005 which has been admitted for regular hearing by this Court vide orders dated 8.3.2006, but for the time being there is no likelihood of the early hearing of the said appeal on merits due to the present Roster. In the cited cases the Hon'ble Supreme Court has already suspended the sentences of the accused in the similar circumstances. The petitioner is also entitled to the same treatment.
Resultantly, without touching upon the merits of the case, this writ petition is accepted, the sentence awarded to the petitioner in A.C. Reference No. 6 of 2004 vide judgment dated 5.11.2005 passed by the learned Judge, Accountability Court, No. 2, Lahore is suspended till the final disposal of Crl. Appeal No. 2057 of 2005 and he shall be released on bail subject to furnishing bail bond in the sum of Rs. one million with one surety in the like amount to the satisfaction of the Deputy Registrar (Judl.) of this Court.
(Anwar Saeed Sheikh) Petition accepted.
PLJ 2007 Lahore 523
Present: Muhammad Akhtar Shabbir, J.
BASHIR AHMAD--Petitioner
versus
MEMBER BOARD OF REVENUE, PUNJAB, LAHORE
and 2 others--Respondents
W.P. No. 12174 of 2006, decided on 15.11.2006.
Appointment of Lumberdar--
----Appointment of Lumberdar can only be interferred with in Constitutional jurisdiction, if there had been any jurisdictional error--Selection of a lumberdar is the exclusive responsibility of revenue officer with the Board of Revenue. [P. 525] A
1996 SCMR 377, PLD SC 531 & 1993 MLD 1628 rel.
Jurisdiction--
----High Court in its Constitutional jurisdiction would not sit as a Court of appeal against judgment passed by a special tribunal or the Court, having the exclusive jurisdiction--Petition was dismissed. [P. 525] B
PLD 1974 SC 139, PLD 1976 SC 435, relied upon.
Mr. Saleem Khan Chichi, Advocate for Petitioner.
Date of hearing: 15.11.2006.
Order
Facts giving rise to the filing of the present write petition are to the effect that one Kalay Khan son of Feroz Din Lumberdar of Village Chak Khoja Tehsil Sialkot has died and the office of headman/Lumberbar fell vacant. The Tehsildar invited applications for appointment of permanent Lumberdar through proclamation. Bashir Ahmad son of Shukar Din present petitioner and Respondent No. 3 Rafique Ahmad son of Kalay Khan applied for appointment of Lumberdar and the District Officer Revenue, Sialkot vide his order dated 19.10.2004 appointed the petitioner as permanent Lumberdar of the village. Feeling aggrieved, the Respondent No. 3 preferred an appeal before the Executive District Officer Revenue, Sialkot, who vide his order dated 3.2.2005 accepted the appeal, set aside the order of the Collector and appointed Respondent No. 3 Lumberdar of the village Chak Khoja in place of Kalay Khan deceased. Feeling aggrieved, the petitioner preferred a revision petition, which was heard by Member Judicial-I, Board of Revenue, Punjab Lahore vide order dated 18.7.2006 dismissed the same maintained the order of the Executive District Officer, Revenue, Sialkot.
Learned counsel for the petitioner contends that the petitioner is owner of 11 Acres 5 marlas of land while the Respondent No. 3 is owner of 7 kanals 6 marlas of land. Further contends that the petitioner is the senior citizen, an experienced and responsible person while Respondent No. 3 is non-resident of the village and is entitled to be appointed as Lumberdar having no land qua Respondent No. 3 in the revenue Estate concerned.
I have heard the arguments of the learned counsel for the petitioner and perused the record.
The Lumberbar of the Village Kalay Khan father of Respondent No. 3 Rafiq Ahmad died and the Addl. Commissioner as well as the M.B.R appointed his son as permanent Lumberdar. Rule 19 of the West Pakistan Land Revenue Rules, 1968 provided considerations for appointment of successor. Sub Rule 1 of the Rule 19 is re-produced as under:--
"In an estate or sub-division thereof, owned chiefly or altogether by Government, successor to the office of headman shall be selected, with due regard to all the considerations, other than hereditary claims, stated in Rule 17".
The successor Lumberdar was to be appointed according to the rules of "primogeniture". This rule has been declared contrary to the injunctions of Islam by the superior Courts and no more attracted to the appointment of successor Lumberdar. Rule 17 of these rules provided the consecrations for appointment of a headman which are as under:--
"(a) the hereditary claims of the candidate;
(b) extent of property in the estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate, the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate;
(c) services rendered to the Government by him or by his family;
(d) his personal influence, character, ability and freedom form indebtedness;
(e) the strength and importance of the community from which selection of a headman is to be made;
(f) his ability to undergo training in Civil Defence in the case of headmen in Tehsil situated the Border".
It would mean that while appointing a Lumberdar, the competent authority will take into consideration all the above mentioned considerations and appoint a suitable person as Lumberdar. The Executive District Officer Revenue while appointing Respondent No. 3 as Lumberdar observed that the appellant is real son of the deceased Lumberdar and is permanent resident of village Chak Khoja and found that the Respondent No. 3 is suitable candidate for the vacant post. The order of E.D.O.R. Sialkot has been affirmed by the M.B.R. The Respondent No. 3 has been working as Sarbarah Lumberdar during the life time of his deceased father. There is concurrent findings of higher revenue hierarchy in favour of Respondent No. 3. The appointment of a Lumberdar can only be interfered with in constitutional jurisdiction if there had been any jurisdictional error. The selection of Lumberdar is the exclusive responsibility of Revenue Officer with the Board of Revenue at the apex.
Learned counsel for the petitioner has not been able to point out any legal infirmity or jurisdiction error made by Respondent Nos. 1 & 2 in appointing Respondent No. 3 as Lumberdar. He was found unanimously suitable candidate for the appointment as permanent Lumberdar, which could not be set at naught without lawful justification. In this context reliance can be placed to the cases of Fath Masih Vs Member Board of Revenue Punjab, Lahore (1996 S.C.M.R. 377), Haji Noorwar Jan Vs. Senior Member, Board of Revenue, N.W.F.P. Peshawar (P.L.D S.C 531) and Abdul Karim Vs. Member Board of Revenue, Punjab and 2 others (1993 M.L.D 1628).
The other aspect of the case is that the impugned order has been passed by a Special Tribunal/Revenue hierarchy competent to adjudicate upon the matter and High Court in its Constitutional jurisdiction would not sit as a Court of appeal against the judgments passed by a Special Tribunal or the Court having the exclusive jurisdiction. Reliance in this context can be placed to the cases of Muhammad Hussain Munir Vs Sikandar and others (P.L.D 1974 S.C 139) and Subedar Muhammad Asghar Vs. Safia Begum (P.L.D 1976 S.C 435).
For the foregoing reasons, I do not find any merits in this writ petition, which is dismissed in limine.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 Lahore 526 (DB)
Present: Sayed Zahid Hussain & Jawad S. Khawaja, JJ.
SYED NUSRAT JAMAL and another--Appellants
versus
INSPECTOR GENERAL OF POLICE, PUNJAB, PUNJAB COMPLEX
and 3 others--Responents
I.C.A No. 194 of 2006, heard on 8.11.2006.
Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976--
----R. 3(v)--Police Order, 2002, Art. 7(3)--Fixation of upper age limit--Eligibility criteria--Contrary to statute--Distinction between recruitment and promotion--Provisions of present order--Present failed to take note of the essential distinction between promotion and recruitment and was not consistent with the provisions of Art. 7(3) of the Police Order, 2002--It is meant for departmental promotion--Graduate Constables and Head Constables are only recognized in the second proviso which relates exclusively to promotion and not direct recruitment--It is clear from Art. 7(3) of the Police Order that Inspector General of Police has not been given any power to lay down the procedure for direct, recruitment of ASIs or indeed for promotion of in service Constables and Head Constables--This matter lies exclusively within the domain of public service commission--Government has been granted the power to regulate the promotion of in service Constables and Head Constables by framing rules for such purpose--Impugned Standing Order is neither approved by Provincial Government nor notified in the official gazette--It does not have the status of Rules conferred by Art. 112 of the Police Order upon an instrument issued by the Provincial Police Officer having such attributes--Held: Appeals allowed by modifying the impugned judgment that upper age limit of 35 years fixed by Single Bench for promotion of in service Constables/Head Constables to the post of ASI is not in accordance with law.
[Pp. 529 & 530] A, B, C, D & E
PLD 1996 SC 197 referred.
Malik Ghulam Rasool, Advocate for Appellants.
M/s Fawad Malik and Naeem Masood, AAGs for Respondents.
Date of hearing: 8.11.2006.
Judgment
Jawwad S. Khawaja, J.--Through this judgment, we propose to decide the present appeal and ICA No. 195 of 2006, which arise respectively out of Writ Petition Nos 712 of 2006 and 395 of 2006 filed by the appellants and others. The two appellants in the present ICA are Constables, while the appellant in ICA No. 195 of 2006 is a Head Constable in the Punjab Police. All three are more than 35 years old. The are aggrieved of a part of the judgment of the learned Single Bench dated 23.5.2006, whereby the aforementioned writ petitions were partly allowed but the upper age limit for promotion of in-service Constables/Head Constables, to the post of Assistant Sub Inspectors was fixed at 35 years. Te appellants, thus, stood excluded from consideration for promotion.
"STANDING ORDER NO. 2/2005
Subject:- SELECTION OF ASIs FROM AMONGST GRADUATE CONSTABLES/HEAD CONSTABLES OF THE PUNJAB POLICE THROUGH PUNJAB PUBLIC SERVICE COMMISSION.
This Standing Order is hereby issued to lay down the procedure for selection of graduate Head Constables/Constables for direct induction as ASIs through Punjab Public Service Commission in pursuance of Article 7(3) of Police Order 2002.
(i) Quota: 25% of the posts meant for departmental promotion i.e. 19% of the total sanctioned strength.
(ii) Age Limit: upto 33 years (as on last date fixed by Public Service Commission to submit the application).
(iii) Eligibility: i. HCs--------Graduate or above
ii. Constables-Graduate or above with at least 3 years service.
iii. Should not have been involved in any act of moral turpitude or grave misconduct".
389[(v) in the case of a candidate already working as a Government servant, the period of his continuous service as such shall for the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate, be excluded from his age]
390[Provided the upper-age limit shall not exceed 35 years for recruitment to any post to be filled in on the recommendations of the Punjab Public Service Commission on the basis of the combined competitive examination .
391[competitive examination)]]"
The case of the appellants is , firstly, that the second proviso to Article 7 (3) of the Police Order does not prescribed any upper age limit for promotion of in-service Constables and Head Constables, who are graduates, and, therefore, the Rules, being contrary to statute, must yield to it. Secondly, it was argued that the Rules have no application in the present case because the appellants are not candidates for recruitment to the post of ASI but are claiming promotion to such post on the basis of their eligibility as per Article 7(3) of the Police Order.
We have heard learned counsel for the appellants and the learned Law Officer appearing for the respondents. It does appear to us that the Rules are applicable only in cases of recruitment and not for promotion. Rule 1 (b) of the Rules specifically stipulates that the same "shall apply to the recruitment of all posts". The Standing Order and the advertisement, referred to above, wherein an age limit has been fixed, have been issued, as noted above, pursuant to Article 7 (3) of the Police Order, 2002 which, for facility of reference, is reproduced as under:-
"7. Constitution of police:--(1)........................................................
(2)................................................................................................
(3) The recruitment in the police other than ministerial and specialist cadres shall be in the rank of Constable, Assistant Sub-Inspector and Assistant Superintendent of Police.
Provided that selection for direct recruitment in the rank of Assistant Sub-Inspector shall be through the appropriate Public Service Commission and shall not exceed twenty-ive percent of total posts in that rank:
Provided further that 25% of the quota for departmental promotions to the rank of Assistant Sub-Inspector shall be filled, subject to rules, through selection by the appropriate Public Service Commission from graduate Constables or Head Constables of clean record". (Underlining is ours for emphasis).
The distinction between recruitment and promotion is by now well recognized and the connotation of the two terms is understood in legislation as well as case law. This distinction has been reflected in the aforesaid statutory provision. Considering that the appellants were seeking promotion to the advertised posts of ASI and the Standing Order itself was based on Article 7 (3, reproduced above, we are clear that the Rules, which apply to recruitment only, did not apply to the in-service promotion envisaged in the second proviso to Article 7 (3). for which the appellants were candidates. The controversy in the present case appears to have arisen because Standing Order No. 2/2005 failed to take note of the essential distinction between promotion and recruitment and also was not consistent with the provisions of Article 7 (3) of the Police Order, 2002. The Sanding Order in paragraph 1 purports "to lay down the procedure for selection of graduate Head Constables/Constables for direct induction as ASIs......in pursuance of Article 7 (3) of Police Order 2002". However, in clause (i) of the first paragraph, it has specifically been noted that it is meant for departmental promotion. If Article 7 (3), reproduced above, is considered, it will become evident that graduate Constables and Head Constables are only recognized in the second proviso, which relates exclusively to promotion and not to direct recruitment. It is the first proviso to Article 7 (3) of the Police Order which relates to direct recruitment in the rank of ASI. For such direct recruitment, the law does not require a candidate to be either a graduate or a Head Constable/Constable in the police. It is also clear to us from a bare reading of Article 7 (3) of the Police Order that the Inspector General of Police has no been given any power to lay down the procedure for direct recruitment of ASIs or indeed for promotion of in service Constables and Head Constables. This matter lies exclusively within the domain of the Public Service Commission. The Government has, of course, been granted the power to regulate the promotion of in-service Constables and Head Constables by framing rules for this purpose. To date, however, it has chosen not to exercise this rule-making power.
At this point, we would also refer, briefly to the submission made on behalf of the appellants that Rule 3 (5) of the Rules, in any event, was applicable only where an upper age limit had been prescribed under any service rules. In the preset case, it was argued on behalf, of the appellants and not controverted by the learned Law Officer, that no upper age limit had been prescribed for promotion of in-service candidates to the post of ASI. This note is being made by us because this point was urged by learned counsel for the appellants. However, in view of our finding that the Rules were not applicable to promotions, this observation has no bearing on the present case.
We also find merit in the contention of the appellants that the Standing Order could not have fixed an upper age limit for promotion, firstly because Article 7 (3) did not stipulate such upper age limit and, secondly, because there are no rules framed under the Police Order, 2002 fixing an upper age limit for such promotion. The Police Rules, 1934 which have, subject to limitations, been saved under Article 185 (a) of the Police Order, 2002, also do not prescribe any upper age limit for promotion of in-service Constables/Head Constables to the post of ASI. At this juncture, we may add that the learned Single Bench has held that "the impugned Standing Order is neither approved by the Provincial Government nor notified in the official gazettee and consequently, it does not have the status of rules conferred by Article 112 of the Police Order upon an instrument issued by the Provincial Police Officer having such attributes". We are in agreement with this observation and also note that the respondents have neither challenged this finding and nor has any argument been advanced against it on their behalf.
The learned Law Officer appearing for the respondents, however, referred to the case titled Muhammad Siddique Vs. Secretary to Government of Pakistan, Ministry of Education and 2 others (PLD 1996 SC 197) to contend that the Government has the right to enhance qualifications and standards for recruitment and promotion in order to maintain efficiency in service. There can be no dispute with this proposition. The said precedent, however, has no relevance in the present case because the Government has not issued any policy or rules having the sanction of law for the purpose of setting down the qualifications and standards for the promotions which are subject matter of the present case. The impugned Standing Order has been issued by the Inspector General of Police and not by the Government. We have already expressed our agreement with the finding of the learned Single Bench that Standing Order No. 2 of 2005 cannot be equated with rules framed under the Police Order, 2002.
We also need to advert to a submission made by the learned Law Officer on the basis of the prayer made in these appeals wherein a reference has been made to a circular date 23.1.2006 issued by Respondent No. 1. This circular relates to enhancement in the upper age limit for inclusion of in service Constables to promotion list-B-1 and to the lower school course. This circular has no relevance in the present case in view of our decision recorded above. Learned counsel for the appellants also conceded the reference to the circular date 23.11.2005 was misconceived and had been mistakenly made in the prayer clause in these appeals.
In the circumstances, we allow these appeals and modify the impugned judgment by holding that the upper age limit of 35 years fixed by the learned Single Bench for promotion of in-service Constables/Head Constables to the post of ASI is not in accordance with law. The appellants are thus, not ineligible for promotion to the post of ASI on account of their age.
(Malik Sharif Ahmed) Appeals allowed.
PLJ 2007 Lahore 531
[Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha, J.
PETROSIN CORPORATION PVT. LTD. and 2 others--Petitioners
versus
OIL AND GAS DEVELOPMENT COMPANY LTD., ISLAMABAD through its Managing Director--Respondent
Writ Petition No. 2055 of 2006, decided on 27.9.2006.
Constitution of Pakistan, 1973--
----Art. 199(2)(a)(i)--Question whether company incorporated under Companies Ordinance is amenable to writ jurisdiction of the High Court--Oil and Gas Development Corporation registered under the Companies Ordinance--Action of OGDC order of awarding contract is amenable to the issuance of writ under Art. 199(2)(a)(i) of the Constitution--Petition was maintainable. [P. 541] A
Vested Right--
----Question--Letter of intent--Whether the Petitioner has accrued any vested right by mere issuance of the letter of intent by submission of the performance bond--Letter of--Furnishing of bid, bonds and earnest money in connection with bid gave no vested right.
[P. 545] C & D
Words & Phrases--
----According to Black law dictionary" A letter of intent is customarily employed to reduce to writing a preliminary understanding of Parties who intend to enter into contract. [P. 545] E
Enforcement of Contract--
----Controversial question of facts--Maintainability of writ--Determination--Contractual dispute between the private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction--Controversel questions of facts if committee by Government Semi-government or local Authorities--If involving derelication of obligations, flowing from a statute, rules or instructions can adequately addressed for relief under that jurisdiction. [Pp. 646 & 547] F, G & H
1998 SCMR 2268, followed.
General Clauses Act, 1897 (X of 1897)--
----S. 24-A--Proposition of Law Elements of public interest--Functionaries of state--Taint of malafides--Contract carrying element of public interest concluded by functionaries of state has to be just, fair transparent reasonable and free of any taint of malafides--Neither statute confers any power upon OGDCL to enter into a contract with petitioner after issuance of the letter of intent nor concluded contract by functionary of the State OGDCL with the petitioner has been reached between parties Section 24-A of the General Clauses Act, 1897 not applicable in this case--Petitions dismissed. [Pp. 544 & 548] B, I & J
(PLD 1975 SC 244, 2002 SCJ 755, NLR 2000 Civil 327, 1971 SCMR 533, 1999 YLR 1153, Lahore, PLD 1976 K. 458, PLD 1994 Lah. 315, 2001 YLR 2791 Kar, 2005 CLC 476, PLD 2001 SC 116; 1998, SCMR 2268, PLD 1975 SC 624, ref.
Mr. Abdul Hafeez Pirzada, Advocate with Mian Gul Hassan Aurangzeb, Advocate for Petitioners.
M/s Khaliq-uz-Zaman and Shah Khawar, Advocates for Respondent.
Date of hearing: 12.9.2006.
Order
This order shall dispose of this writ petition as well as Writ Petition No. 2056 of 2006 (Petrosin Corporation Pvt. Ltd. Etc. as similar questions of law and facts are involved in both of them. Through these writ petitions the petitioners challenge the viries of the letter dated 16.8.2006 to scrap the award of the contract for Tando Allah Yar Project (Natural Gas) Development Project (hereinafter referred to TAY Project) and Sinjhorro Project (Natural Gas) Development Project and seeks declaration that issuance of the "Notification of Intent to Award" dated 19.4.2006, in favour of the petitioners followed the submission of a performance bond, constitutes a valid, concluded and enforceable contract between the parties and that the petitioners are entitled to execute and complete the said contract.
In Writ Petition No. 2055/2006, brief facts are that Petitioner No. 1/Petrosin Corporation Pvt. Ltd. Singapore is a Company incorporated under the laws of Singapore, and is engaged in the business of contracting and installing plants for the Oil & Gas Industry internationally and has undertaken with success many projects in Pakistan. Petitioner No. 2 is a company incorporated under the laws of Pakistan and is the project management arm of Petitioner No. 1 in Pakistan Petitioner No. 3 is also a company incorporated under the laws of Pakistan and was purchased by Petitioner No. 1 in the process of privatization from the Government of Pakistan and is the fabrication/manufacturing arm of Petitioner No. 1 in Pakistan.
The respondent wanted to develop the Tando Allah Yar (Natural Gas) Development Project which involves setting up of Surface and Gas Processing Facilities adjacent to the respondent's existing Kunnar LPG Plant; To achieve the above objective the respondent invites nine companies to participate in the tender for design, engineering, procurement (supply), construction, installation/erection, pre-commissioning, start-up & commissioning of the TAY Project. Following Companies were invited to participate in the tender:--
(i) M/s. CPECC, China, (ii) M/s. Petrosin Engineering Pvt Ltd., (iii) M/s. Presson Descon International Ltd. (PDIL), (iv) M/s. Akbar Associates Group (M/s. Hanover), (v) M/s. Oil & Gas Engineering Company SPA, Chine, (vi) M/s. tu-Ha Petroleum Exploration & Development Corporation, China, (vii) M/s. Descon Engineering Ltd, Pakistan, (viii) M/s. XPAB, China, (ix) M/s. Techno Consult, Venezuela (A J & Co.)
Sr. No. Bidders Name Bid Amount
Petrosin Consortium US$ 54,140,398.00
CPECC Consortium US$ 117,692,495.67
PDIL Consortium US$ 162,201,582.17
It is stated that the bidding results were placed before the Board of Directors of the respondent in its 74th meeting held on 10.4.2006 wherein it was decided to approve the TAY Project as recommended by the management. Furthermore, the Board of Directors approved the foreign and local currency component of the TAY Project to be awarded to the petitioners' Consortium, which was technically responsive and the lowest bidder. Consequently on 19.4.2006 the respondent issued to the petitioners a Notification of Intent to Award under clause 9.3 of the ITB for the award of the contract on lump sum turnkey basis for the TAY Project at the cost of US$ 38,499,408.00 and Pak Rs. 938,459,377/-. The petitioner were inter alia required to submit a performance bond for an amount equivalent to 10% of the contract price in the shape of a bank guarantee within a period of seven days from the issuance of "Notification of Intent to Award" in compliance with clause 9.5 of the ITB. Clause 9.5 of the ITB requires the performance guarantee to be furnished within seven days of the receipt of the notification of intent to award the contract for the faithful performing of the contract. This performance guarantee is required to be valid upto 12 months from the date of Taking Over Certificate after completion of the contract issued under the contract. Performance bond was provided by the respondent. In compliance to the requirement of the respondent, the petitioners furnished a performance Guarantee No. 2006/2007 dated 19.4.2006 for an amount of Pak 325,000,000/- which is equivalent to 10% of the contract price. In this way the parties had already acted in part performance of the contract for the TAY Project between the petitioners and the respondent. The performance bond is valid until 18.10.2008 and the bank charges already paid by the petitioners with respect to the same are in the region of US $ 200,000/-. The petitioner vide letter dated 20.4.2006 expressed their readiness to sign the contract for the TAY Project. The respondent apparently for no reason slept over the matter and caused loss to the national interest and public due to the delay in execution of the contract for the TAY Project. The petitioner requested the respondent vide letter dated 3.8.2006 to execute the contract for TAY Project; the respondent did not even bother to reply the said letter, then suddenly thereafter vide the impugned Letter No. ED(F)/3115/2006 dated 16.8.2006 the respondent conveyed its decision to re-advertise the tender for the TAY Project and returned to the petitioner the performance guarantee and bond.
Sr. No. Bidders Name Bid Amount
Petrosin Consortium US$ 88,409,653,98
CPECC Consortium US$ 152,252,982,11
PDIL Consortium US$ 235,326,264,73
On 19.4.2006 the respondent issued to the petitioners a "Notification of Intent to Award" under clause 9.3 of the ITB for the award of the contract on lump sum turnkey basis for the Sinjhoro Project at the cost of US$ 61,023,189/- ad Pak Rs. 1,643,187,892/-. The petitioners were, inter alia required to submit a performance bond for an amount equivalent to 10% of the contract price in the shape of a bank guarantee with a period of seven days from the issuance of "Notification of intent to Award" in compliance with clause 9.5 of the ITB, Clause 9.5 of the ITB requires the performance guarantee to be furnished "within seven (7) days of the receipt of the notification of intent to award the contract" for the faithful performance of the contract. This performance guarantee is required to be valid up to 12 months from the date of taking over certificate (after completion of the contract) issued under the contract. The format of the performance bond was provided by the respondent.
In compliance to the requirement of the respondent, the petitioners furnished a performance Guarantee No. 2006/2006 dated 19.4.2006 for an amount of Pak Rs. 531,000,000/- which is equivalent to 10% of the contract price. In this way, the parties had already acted in the part performance of the contract for the Sinjhoro Project between the petitioners and the respondent. The respondent's bankers confirmed the existence and validity of the said performance bond from the petitioners, bankers. This performance bond is valid upto 18.10.2008 and the bank charges already paid by the petitioners with respect to the same are in the region of US $ 300,000/-.
The petitioners vide letter dated 3.8.2006 again requested the respondent to execute the contract for the Sinjhoro Project. The respondent did not even bother to send any reply to the said letter. Suddenly thereafter vide Letter No. ED(F)/3117/2006 dated 16.8.2006 the respondent informed the petitioners of its decision to withdraw the Sinjhoro Project tender. The responded also conveyed its decision to re-advertise the tender for the said Project. Furthermore, the respondent returned to the petitioners the performance guarantee and bid bond.
The learned counsel for the petitioners contends that the petitioners were the lowest and most responsible bidders for the contract for TAY Project but the Notification of intent to award was issued to the petitioners under clause 9.3 of the ITB. As all the form and conditions of the contract contained in the lender documents supplied by the respondent were unconditionally accepted by the petitioners, a concluded contract was created between the parties, hence the respondent cannot unilaterally renege on its obligation to the petitioners; that a vested and valuable legal right had accrued to the petitioners as well as legitimate expectation that the respondent would fulfil its legal and constitutional obligation and execute the contract for the project with the petitioners; that the petitioners in compliance with the requirement of the respondent furnished a performance bond for an amount equal to 10% of the contract price towards the fulfilment of their obligations under the contract the respondent is estopped from scrapping the lowest and most responsive bid of the petitioners particularly since the contract between the parties had been partly performed; the representation made by the respondent in issuing to the petitioner the notification of intent to award the contract and calling upon the petitioners to submit the performance guarantee was not prohibited by or against the law or statute and hence fully binding on the respondent, particularly as the petitioners acted upon the same and altered their position to their detriment; that the impugned letter is completely devoid of any reasons and therefore is violation of the respondent's statutory obligations under Section 24-A of the General Clauses Act; that issuance of the impugned letter is in absolute contravention of the principles of natural justice, requirement of procedural property and the duty to act fairly and reasonably as the petitioners have not been given any opportunity of hearing before the issuance of the impugned letter, which attempts to vitiate the petitioner's rights under Articles 4, 18, 23 and 24 of the Constitution; that the respondent is a public sector organization and is under legal and constitutional obligation to act fairly.
On 7.9.2006 notice was issued to the respondent for 8.9.2006, M/s. Khaliq-uz-Zaman and Shah Khawar, Advocates entered appearance. The learned counsel for the respondent contends that the writ petition is not maintainable; that the writ petition raises a serious factual controversy which cannot be adjudicated upon by this Court in writ jurisdiction; that no concluded contract exists between the petitioner and the respondent and that the letters of intent expressly state that no contracts or vested right accrued and that any contract between the parties will come into existence only after negotiations and agreement upon the term and conditions of the contracts when such agreed terms and conditions are incorporated in written contracts which have been executed by the parties after obtaining all approvals from the respondents management and the concerned authorities; the express terms of the letter of intent must be given proper weight; that the petitioners have admitted that they have done nothing whatsoever for performing any services for respondent. There is nothing on the record or otherwise which raises the possibility that any contract or other binding relation exists between the parties; petitioners' submission of performance of bond is not a discharge of obligation under any contract between the parties; there was an obligation of the petitioners to participate in the bidding process; the respondent reserved complete right to annul the bidding process; there has been no action taken which would prejudice the petitioner to participate in any further bidding process for the projects; in the absence of any concluded contracts between the parties, the respondent had no obligation to give reasons for annulment of the bidding process or to hear the petitioners; the respondent was uncorroborated under the Companies Ordinance, 1984 and not under any statute and therefore it is not bound by Section 24-A of the General Clauses Act as it does not come under any enactment; the petitioners, through the instant writ petition seek declaration of the contract, the terms and conditions of which have yet to be negotiated and agreed between the parties; the effect of this would be to require the Court to contract on behalf of the parties or to demand that the parties enter into negotiations to agree on the terms and conditions of the contract, which is not the proper function of writ jurisdiction; that since as per assertion of the petitioners that the contract exist, therefore the proper remedy for them in the circumstances is to file a civil suit for breach or enforcement of a contract.
I have heard the arguments of the learned counsel for the parties and perused the record with their assistance. Before I proceed to resolve the controversy between the parties regarding concluding of the contract on the basis of the Letter of Intent dated 19.4.2006, I would firstly advert to the objection of the respondent regarding maintainability of the writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, against the Oil and Gas Development Company Limited (Respondent).
Clause (2) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is relevant, which reads as under:--
"2. Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law:--
(a) On the application of any aggrieved party, make an order.
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority, has been done or taken without lawful authority, and is of no legal effect.
Clause (5) of this Article defines a "person" as including "any body, politic or corporate, any authority of or under the control of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court of a Court or Tribunal established under a law relating to the Defence Services of Pakistan.
It will be seen that the power conferred on the High Court under sub-clause (a) (i) and (a) (ii) of clause (2) of Article 199 of the Constitution can be exercised only in respect of a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority. If the person whose acts, actions or proceedings are challenged before the High Court, does not fall within any of the specified categories, then he would clearly not be amenable to this extraordinary jurisdiction.
The term
person' having been defined in clause (5) of the Article itself, and also in the General Clauses Act, does not present much difficulty; nor does the termlocal authority'. As observed by the honorable Supreme Court in Deputy
Managing Director, National Bank of Pakistan v. Ataul Haq (PLD 1965 SC 201).
Now what is meant by the phrase performing functions in connection with the affairs of the Federation of a Province". It is clear that the reference to governmental or state functions, involving, in one form or another, an element of exercise of public power. In the case Salahuddin and 2 others vs
Frontier Sugar Mils & Distillery Ltd., Tokht Bhai and 10 others (PLD 1975
SC 244), the honorable Supreme Court while interpreting the phrase
"performing functions in connection with the affairs of the Federation of a Province" had observed that, "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the
State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province, otherwise not".
Now, the OGDC is a public Limited Company incorporated under the Companies Ordinance. 1984 (Company Limited by shares). According to its Memorandum of Association one of the objectives of the Company is to acquire shares of the companies or interests of the Government of Pakistan in the existing and new petroleum joint ventures or Corporations. The authorized capital of the Company is Rs. 25 billion into 2.5 billion ordinary shares of Rs. 10/- (Rupees ten). The Company can undertake any business in pursuance of the directives given by the Government. Subject to the provisions of the Ordinance and the directions given by the Government, the shares in the capital of the Company for the time being remaining unissued, including any new shares resulting from an increase in the authorized share capital shall be under the control of the Board. But there is no dispute that the Federal Government still holds the provincials shares in the Company. According to Article 64 of the Article of Association. The Government shall have the right to nominate all the Directors on the Board. The terms and conditions of the employment of the Chairman shall be decided by the Government. According to Articles 80 and 81, the Chairman and the Managing Director, as the case may be, shall receive such remuneration as may be determined by the Government. In these circumstances the Company obviously remained under the control of the Government. Though the Company is not organized or corporation created by special statute, but the fact remains that the Company is financed and controlled by the Government. Such a Government control of commercial activities can be regarded as investing joint stock companies with the character of a person performing functions in connection with the affairs of the Federation. In the case reported as Federal Government Employees Housing Foundation through its Director General, Islamabad vs. Muhammad Akram Alizai Dy. Controller, PBC, Islamabad (2002 SCJ 755) while dealing with the question whether the Company incorporated under the Companies' Ordinance is amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 or not, the honorable Supreme Court held that, "The Federal Government Employees Housing Foundation despite being incorporated as a company under Companies Ordinance, 1984, while functioning under the control of the Federal Government is recognized an official agency and not private body against which the remedy of writ petition cannot be availed by an aggrieved person". Therefore, I hold that the Oil and Gas Development Corporation registered under the Companies' Ordinance the action of the OGDC, orders of awarding contract is amenable to the issuance of writ under clause 2 (a) (i) of Article 199 of the Constitution and the writ petition is maintainable.
Further, to resolve the controversy between the parties, reading of letter of intent Bearing No. CE-977/2006 dated 19.4.2006, issued from the respondent to the petitioner, would be necessary, the relevant part of which is reproduced hereunder--
"Sub:-- Letter of intent for LSTK contract for Tando Allah Yar Development Project at cost of US$ 38,499,408.00 (US dollars thirty-eight Million four hundred ninety-nine thousand four hundred and eight only) and Pak Rupees portion Rs. 938,459,377.00 (Pak rupees nine hundred thirty-eighty million four hundred fifty-nine thousand three hundred and seventy-seven only) as per your bid submitted against OGDCL tender Enquiry No OGDCL/Project (LSTK) TAY/4073/05.
Dear Sir, We are pleased to issue this Letter of Intent (LOI) in response to your bid submitted against the above cited enquiry subject to the following conditions:--
(i) This LOI shall in no way be construed as an award of contract as such no vested legal or contractual right shall accrue, in your favour, till such time, valid contract is executed in accordance with the terms and conditions, to be agreed between the parties.
(ii) You are requested to submit Bank Guarantee as 10% Performance Bond within seven (7) days from this Letter of Intent as per Clause 9.5 of ITB to M (Proc(F) with copy to M.D.,OGDCL.
(iii) Contract shall be executed; only after all necessary Management/Government approvals have been obtained.
(iv) Validity of your bid prices shall remain firm throughout Delivery Period as set forth in the Tender Documents.
(v) L/C will be operative on receipt of valid Performance Bond.
Regards.
(RAZIUDDIN)
MANAGING DIRECTOR
"AWARD OF CONTRACT
9.1 OGDCL'S Right to accept any Bid and to Reject any or all Bids.
OGDCL reserves the right to accept or reject any bid or part of a bid and to annual the bidding process and reject all bids at any time prior to award of contract, without thereby incurring any liability to the effected bidder or bidders or any obligation to inform the affected bidder or bidders of the ground for OGDCL's action.
9.2 OGDCL's Right to vary the Scope of Contract.
OGDCL reserves the right at the time of award of Contract to make addition and deletions in any component of scope of work or vary the scope of work given in the Tender Document.
9.3 Notification of Intent to Award
9.3.1 Prior to the expiration of the period of bid validity, OGDCL will notify the successful Bidder in writing by fax or courier service its intent to award the contract. The Contract will be executed subject to satisfactory negotiation of the terms and conditions of the Contract.
9.3.2 Upon the successful bidder's furnishing of Performance of Bond pursuant to instruction 9.5, OGDCL will promptly notify each unsuccessful bidder and will discharge its Bid Bond pursuant to Instructions 6.6.5.
9.4 Signing of Contract.
9.4.1 At the same time as OGDCL notifies the successful Bidder of its intent to award the Contract, OGDCL will send the Bidder the Form and Conditions of Contract (Section IV) provided in the Tender Document, incorporating all agreements between the parties.
9.4.2 Within ten (10) days of receipt of the Form and Conditions of Contract the successful bidder will be required to sign the contract and return it to OGDCL.
9.5 Performance Bond
9.5.1 Within seven (7) days of the receipt of notification of intent to award the Contract from OGDCL, the successful bidder shall furnish a Performance Bond in the Form of Bank Guarantee (Annexure-XII) for an amount of ten percent (10 %) of the Contract Price as a guarantee for the due and faithful performance of the Contract. The said Performance Bond shall be valid up to twelve (12) months from the date of Taking Over Certificate. The performance Bond shall be issued by a Pakistani Scheduled Bank or an international Bank operating in Pakistan and acceptable to OGDCL.
9.5.2 Failure of the successful bidder to comply with the requirements of Instruction 9.4 or 9.5 shall constitute sufficient grounds for the annulment of the award and forfeiture of the Bid Bond, in which event OGDCL may make the award to the next lowest evaluated Bidder or call for new Bids.
Rs. 325,000,000/- being 10 percent of the contract price to fulfil all the obligations under the contract dated 19.4.2006 which the respondent retained up to the issuance of the impugned letter dated 16.8.2006. The concluded contract was created between the parties and the respondent is estopped from scrapping the lowest bid of the petitioner since the contract between the parties has been partly performed. The admitted position on the record is that in August, 2006 the respondent invited to receive the tender documents to offer bid. Section 2 (e) of the contract Act, 1872, says that every promise and every set of promises, forming the consideration for each other, is an agreement. According to Section 2 (a), when one person signifies to another his willingness to do or to abstain from doing anything thing, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal. The invitation to bid and tender document are not proposals as defined in Section 2 (a) of the Contract Act, 1872, therefore, such an investigation and tender documents, there was an obligation of the petitioner to participate in the bid process alongwith performance bond and this cannot be termed as discharge of obligation under the contract between the parties, because such an invitation and tender documents is considered only to make proposal. The effect of this is that bids submitted in response to the invitation and tender documents which was subsequently accepted by the respondent and the petitioners submitted the performance bond do not constitute an acceptance as defined in Section 2 (b) of the Contract Act, and therefore would not result in agreement as defined in Section 2(e) of the Act, or the contract as defined in Section 2 (h) of the said Act. A bid submitted and tender documents will itself constitute a proposal and such a proposal may be accepted or rejected by the person inviting the bid. Clause I of the letter of intent dated 19.4.2006 clearly indicates that LOI shall in no way be construed, as an award of contract as such no vested legal or contractual right shall accrue, in your favour, till such time, valid contract is executed in accordance with the terms and conditions, to be agreed between the parties. Submission of the learned counsel is that proposal was made by the petitioners in response to the invention duly made by the respondent OGDCL and the same was awarded in terms of the clause in compliance with the instructions of ITB and thereafter the Notification of the intent to award contract under clause 9 (c) (i) of ITB was to be issued and the OGDCL is not competent to get out of the contract arrived at between the petitioners and the OGDCL. Reliance is placed on the case reported as M/s. O.K. Agencies vs. Chief Controller etc. (NLR 2000 Civil 327) and an unreported judgment passed in Writ Petition No. 1339/95 decided on 21.11.1995.
Before I proceed further, at the out set I hold that the case of M/s. O.K. Agencies vs. Chief Controller, etc. (NLR 2000 Civil 327) referred to by the learned counsel is not applicable to the facts of the present case because in that case it was a common ground between the parties that the offer made by the bidder was accepted by the Pakistan Railways and in implementation of the contract the contractor was asked to take certain steps by the Pakistan Railways like extending the bank guarantee and thereafter without giving any reason the acceptance was withdrawn.
The legal effect of issuing of LOI would be discussed in the later part of the judgment, but here only I observe that the bank guarantee equivalent to 10 percent of the amount furnished by the petitioner was not in part performance of the contract. Similarly, in the case decided vide order dated 21.11.1995 in Writ Petition No. 1339 of 1995, the concluded contract between the parties did exist on the basis of the letter of award for Engineering Procurement and construction of Uch Production Surface Facility.
Clause 9 (1) of the ITB says that OGDCL reserves the right to accept or reject any bid or part of a bid and to annul the bidding process and reject all bids at any time prior to award of Contract, without thereby incurring any liability to the affected bidder or bidders or any obligation to inform the affected bidder or bidders of the grounds for OGDCL's action. This was so stated in the letter of intent. The question arises whether the petitioner has accrued any vested right by mere issuance of the letter of intent by submission of the performance bond and letter of intent. The above proposition of law was considered by the Honorable Supreme Court in Munshi Muhammad's case (1971 SCMR 533) and it was held that, "The view formed by the High Court is unexceptionable. Since the auctions in favour of the petitioners were not finally approved, they did not acquire any right in the properties, and had, therefore, no locus standi to ask for their transfer. According to the terms and conditions of the auction itself, the highest bids offered in the auctions were subject to the approval of the Additional Settlement Commissioner concerned who may or may not accept the bids, without assigning any reason for his action". In the case of Imperial Construction Company, Sahiwal and 30 others v. Chief Engineer (South) Public Health Engineering Department, Punjab and 2 others (1999 YLR 1153-Lahore) this Court had ruled that, "Mere highest bid at any auction or lowest bid in a tender did not mature into a promise, what to say of a binding agreement between the parties". This brings me to the expression "Letter of Intent". The "Letter of Intent" has not been defined in the Contract Act. However, according to the Blacks Law Dictionary, 5th Edition, the term letter of intent is defined as under:--
"A letter of intent is customarily employed to reduce to writing a preliminary understanding of parties who intend to enter into contract".
"Before I examine the submission advanced, I would point out that I have not been able to come across the expression "Letter of Intent" even in the commercial dictionaries, nor was learned counsel able to assist us on the meaning of this expression, although it has been used by the appellant. Be that as it may, the learned arbitrator was referred to an American Commentary on the subject but he did not agree with that view and observed that a "Letter of Intent" as its very name implies, includes (a) an intention to enter into a contract, (b) an authority to the contractor to start work before the formalities associated with the signing of the contract can be completed and (c) the right of the contractor to be compensated for the work done".
In the case reported as Javed Hotel (Pvt) Limited vs Capital Development Authority Islamabad through Chairman and another (PLD 1994 Lahore 315), wherein the above quoted case of Province of West Pakistan through the Secretary Public Works Department (PLD 1976 Karachi 458) was referred, this Court observed that. "All this shows that no particular words are required. It is the substance and the expression which matter and not form". In the case of M/s. Bagh Construction Company Vs. Federation of Pakistan and others (2001 YLR 279 Karachi), the Sindh High Court considered inter alia the effect of letter of intent and held that a letter of intent did not result in contract. In the case reported as Bhool Chand Vs. Port Qasim Authority (2005 CLC 476), it was held by the Sindh High Court that despite the fact that letter of intent had been issued to the plaintiff, he had no right to compel the defendant to convert the letter of intent into a contract. In the case reported as Union of India vs Bhimsen Walaiti Ram (AIR 1971 SC 2295) and in the case of Orissa vs Harinarayan Jaiswal (AIR 1972 SC 1816), the Indian Supreme Court held that by a merely giving the highest bid, the bidder had no right to force the person inviting tenders to enter into a contract.
It is contended that the petitioners had submitted performance guarantee bond. The submission of performance bond does not in any way add to the status of a bid. In the case of Kundan Lal vs Secretary of State (AIR 1939 Oudh 249) and the case of Bagh Construction Company vs. Federation of Pakistan and others (2001 YLR 2791) it was held that furnishing of bid bonds and earnest monies in connection with bid did not effect the outcome that bids gave no vested right. The writ for enforcement of the contract is not maintainable for the reason that the enforcement of the contract requires factual inquiry into the disputed questions, which is the function of the Court having primary jurisdiction. For this view I am supported by the case reported as Messrs Ittehad Cargo Service and 2 others vs. Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 SC 116), wherein while interpreting the provisions of Article 199 of the Constitution of Pakistan on the question that concluded contract whether open to judicial review it was held that the High Court in exercise of its Constitutional jurisdiction was possessed of power top examine the validity of order in regard to grant of a concluded contract and strike down the same on the grounds of mala fide, arbitrary exercise of discretionary power, lack of transparency, discrimination and unfairness etc. provided the challenge was made promptly and contentious questions of facts were not involved. In the case reported as Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) it was held by the honorable Supreme Court that, "... contractual dispute between the private parties and public functionaries are not open to scrutiny under the constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, Semi-Government or Local Authorities or like controversies if involving dereliction of obligations, flowing from a statute, rules or instructions can adequately be addressed for relief under that jurisdiction".
In the present case, whether the petitioners have complied with all the necessary conditions of the contract is a question of fact which cannot be determined by this Court in exercise of Constitutional jurisdiction.
Finally much stress has been given by the learned counsel for the petitioners that issuance of the impugned letter is absolutely against the principles of natural justice as the petitioners have not been given an opportunity of hearing before issuance of the impugned letter and that the impugned letter is completely devoid of any reason and therefore in violation of the respondents' Statutory obligation under Section 24-A of the General Clauses Act. The impugned letter has not been issued under any enactment. The question, therefore, is whether the respondent was under legal obligation to give an opportunity of hearing to the petitioners before issuance of the impugned letter and give reasons for issuing the impugned letter.
It is obligatory for an authority deriving power to make an order or give direction under any enactment to pass such an order or give direction reasonably, fairly, justly and for the advancement of the purpose of enactment and the authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall so far as the necessary or appropriate give reasons for making the order as the case may be for issuing the direction and shall provide a copy of the order as the case may be per Section 24-A of the General Clauses Act, 1887. The term `enactment' is defined in Section 3 (17) of the General Clauses Act, 1897, as including a Regulation and any Regulation of the Bengal or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid.
The term
enactment' has been interpreted by the honorable Supreme Court in the case reported as Mst. Hamida Begum vs Mst. Murad Begum and others (PLD 1975 SC 624) as follows. "The termenactment' connotes something which has been formally promulgated or enacted by an authority having the power to make laws in respect of the subject matter of the law as well as its territorial operation. To put it differently, the term `enactment' can only refer to a formal law made by the State in accordance with the relevant constitutional procedures applicable to law-making; it cannot extend to anything in the nature of rules, whether of evidence or substantive law, not contained in any statute, Regulation or Act formally promulgated or enacted". It is correct proposition of law that a contract, carrying element of public interest, concluded by functionaries of State has to be just, fair, transparent, reasonable and free of any taint of mala fides. This doctrine has further been recognized by insertion of Section 24-A in the General Clauses Act, 1897, which declares that where a statute confers a power to make any order or to give any direction to any Authority, office or person such would be exercised reasonable, fairly, justly and for the advancement of the purpose of the enactment. Reasons should also be reflected in the order. In the instant case, neither statute confers any power upon the ODCL to enter into a contract with the petitioner after issuance of the letter of intent nor concluded contract by functionary of the State/OGDCL with the petitioner, as observed earlier, has been reached between the parties. Therefore, Section 24-A of the General Clauses Act, 1897, is not applicable in this case. The argument of the learned counsel for the petitioner that the impugned letter is completely devoid of any reason for it was respondent's statutory obligation under Section 24-A of the General Clauses
Act and that it is against the requirement of procedural propriety and against the principles of natural justice, is not sustainable.
For what has been discused above, both the writ petitions fail and the same are dismissed.
(Malik Sharif Ahmed) Petitions dismissed.
PLJ 2007 Lahore 549
Present: Sh. Javaid Sarfraz, J.
MANSAB ALI--Petitioner
versus
ASGHAR ALI FAHEEM BHATTI, ADDITIONAL SESSIONS JUDGE, NANKANA SAHIB and 3 others--Respondents
W.P. No. 5034 of 2006, decided on 30.10.2006.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 176--Constitution of Pakistan, 1973, Art. 199--Exhumation of dead body--Scope--Ground of suspicision--Application for exhumation--Order passed for disinterment of body of deceased--Revision was dismissed--Assailed--Validity--Order of exhumation of dead-body of deceased was passed and in such like cases no interference by High Court was called for--Allegation of murder had been leveled against accused suspecting him of the murder of deceased--Body of deceased was exhumed so as to exonerate him from such allegation forever--Held: No illegality infirmity had been observed in order impugned by the petitioner--First Appellate Court would make arrangements for dis-interment and exhumation of dead-body of the deceased and then proceed in accordance with law. [P. 552] A & B
Mr. S.M. Nazim, Advocate for Appellant.
Mr. M. Khalid Sajjad Khan, Advocate for Respondents.
Date of hearing: 13.10.2006.
Order
Briefly the facts, according to the petition, are that the wife of the petitioner namely Mst. Sardaran Bibi died between the night of 5th/6th September, 2005. An application was moved on 27th September, 2005 by Respondent No. 3 for the exhumation of the grave of Mst. Sardaran Bibi, which was dismissed by learned Judicial Magistrate, Nankana Sahib on 14.2.2006. This was challenged by Respondent No. 3 before the learned Sessions Judge, Nankana Sahib through revision petition. It was heard by the learned Additional Sessions Judge, Nankana Sahib, who vide order dated 22.3.2006, remanded it to the trial Court, which on remand was accepted by Respondent No. 1/learned Senior Civil Judge/Judicial Magistrate, Nankana Sahib on 26.4.2006. This order was challenged before the Respondent No. 1/learned Addl. Sessions Judge, Nankana Sahib by filing of a revision petition by the petitioner herein, which was dismissed on 12.5.2006. The orders dated 12.5.2006 and 26.4.2006 passed by Respondent Nos. 1 & 2 respectively have been assailed through this petition.
Learned counsel for the petitioner in support of this petition submitted that the inquiry regarding the cause of death and to pass an order under Section 176 Cr.P.C. is not done on the judicial side, but on the executive side, that under Section 173 Cr.P.C also the learned Magistrate acts on the executive side and against the order passed under Section 173 Cr.P.C. revision petition is not competent. Refers to Hakam Ali etc vs The State (PLD 2006 Karachi 302); that order passed under Section 176 Cr.P.C. is also not revisable order; that under Section 435 Cr.P.C. the High Court or Sessions Judge may call for and examine the record of any inferior Criminal Court but under Section 176 Cr.P.C. the Magistrate is not working as a Criminal Court, therefore, the revisionary power is not available. Referred to "Troylokhanath Biswas and Ram Churn Biswas" (I.L.R 3 Cal. 742) and "Laxminarayan Timmanna Kavki" (AIR 1928 Bombay 390) and contended that order dated 14.2.2006 passed by the learned Magistrate under Section 176 Cr.P.C. was not a judicial order, therefore, the revision petition filed by the Respondent No. 3 against this order was not competent. Thus, the remanding order dated 22.3.2006 passed by the learned Sessions Judge in the revision petition was illegal and void. Hence, the order dated 14.2.2006 of learned Judicial Magistrate remains in the field whereby the application for exhumation was dismissed; that the High Court under the inherent jurisdiction may pass any such appropriate order as it may deem fit; that due respect should be given to the deceased and her body should not be exhumed; that this application is malafide. Reliance was also placed upon Abdul Majeed vs The State (2006 P.Cr.L.J 818). On the factual aspect he submitted that after Mst. Sardaran Bibi passed away, the matter was decided between the parties on oath, according to which, Respondent No. 3 had stated that he was satisfied that his sister Mst. Sardaran had a natural death and the petitioner had no role whatsoever; that in fact the dispute related to the dowry of Mst. Sardaran Bibi, which had been taken by her brother and this petition had been filed only because of the fact that the present petitioner was asking for that dowry. Correspondingly, two sisters of the petitioner, who were married in the respondent's family, were also turned out of their house and their dowry had not been returned to them and currently these two sisters were with the petitioner.
Conversely, the learned counsel for Respondent No. 3 submitted that the present case is covered by Section 174(7)(c) of Code of Criminal Procedure; that the Magistrate while holding inquiry sought comments from the police, who on 16.5.2005 submitted that there was a dispute between the present petition and his wife as he wanted to marry again which was opposed by his wife; that in the evening of 5th September, 2005 the deceased Mst. Sardaran was hale and hearty, but during night she was strangulated to death by the petitioner; that the order passed the learned Magistrate under Section 176 Cr.P.C. being a judicial order, therefore, revision petition was competent before the learned Additional Sessions Judge. In support of this, reference was made to Khuda Bakhsh vs Province of West Pakistan (PLD 1957 West Pakistan (Lahore) 662), The State vs Ch. Altaf Hussain Magistrate Ist Class, Gujrat and 2 others (PLD 1978 Lahore 1259), Muhammad Anwar vs Sheikh Qurban Ali and 3 others (1973 P.Cr.L.J 882) Ghulam Hussain vs Distt. Magistrate. M. Garb and 3 others (1993 K.L.R. (Cr.C) 179) and Mst. Nargis vs The District Magistrate Gujrat etc (1985 Law Notes 1010). While referring to Ghulam Nabi vs District Magistrate. Okara (1989 MLD 4147) it was further submitted that it was the right of any relative of the deceased to know the actual cause of death.
The learned AAG also opposed this petition.
Arguments heard.
The main argument of learned counsel for the petitioner that order of the learned Magistrate was passed on the executive side, therefore revision petition did not lie against his order before the learned Sessions Judge is misconceived. The learned Magistrate ordered for the disinterment of body of deceased vide order dated 26.4.2006. This order was challenged by the present petitioner by filing a revision petition, which was heard by the learned Additional Sessions Judge, Nankana Sahib, who dismissed the same. When the petitioner himself availed the same remedy by filing the revision petition against the order of Magistrate, therefore, the objection that the earlier revision petition against the order dated 14.2.2006 of the Magistrate could not be filed by Respondent No. 3 is frivolous. Neverthless, on a perusal of the judgments of the superior Courts as referred by the learned counsel for the Respondent No. 3, it has been seen that it is the consistent view of this Court that the order passed by the learned Magistrate under Section 176 Cr.P.C. is a judicial order and against this, a revision petition was competent before the learned Sessions Judge. In the light of these judgments, the Indian case law, referred to by the learned counsel for the petitioner is not being followed. Hakam Ali vs the State (Supra) and Abdul Majeed Vs The State (Supra) referred by him do not apply to the facts and circumstances of this case. The contention of the learned counsel for the petitioner that due respect should be given to the deceased, and her body should not be exhumed does not carry weight, as thee is an allegation that the deceased died an un-natural death, therefore, the only way to ascertain her real cause of death is by exhuming her body.
Respondent No. 3 is the brother of the deceased Mst. Sardaran Bibi and suspects that her death is not on account of natural causes and, thus, is interested in disinterment of her body in order to know the real cause of her death. The legal heirs of the deceased and other close relatives have the right to know the cause of death, if they feel that the deceased did not have a natural death. To get the body exhumed for this propose is their right. In "Ghulam Nabi vs District Magistrate Okara" (MLD 1989 4147), the application for disinterment of the dead body was moved by the brother of the deceased which was also allowed and the District Magistrate was directed to take action in this regard. Respectful reliance is also placed upon Ameer Afzal Baig vs Ahsan Ullah Baig (2006 SCMR 1468).
The deceased passed away on the night between 5/6th September, 2005 even after a lapse of 13 months, this order for disinterment could be passed. In Pakistan, there is no time limit fixed for the disinterment of body. Modi in his Medical Jurisprudence and Toxicology giving the time limit of exhumation writes:-
"In India-Pakistan, no time limit is fixed for the disinterment of a body. In France; this period is limits to 10 years, while it is 30 years in Germany".
Reliance is placed upon "Muhammad Ramzan vs State" (1987 SCMR 272) in which the Hon'ble Supreme Court of Pakistan did not interfere in the order passed by this Court even one year from the date of death of the deceased Mst. Ghazala Begum vs The District Magistrate, Khanewal (1996 P.Crl.L.J 389) is also referred.
It may be noted that even on simple ground of suspicision, an application for disinterment can be moved. This is more so because a person should have a right to ascertain the real cause of death of his dear one. In Ameer "Afzal Baig vs Ahsan Ullah Baig" (supra) on the ground of suspicion, the order of disinterment passed by this Court was up, held by the Hon'ble Supreme Court of Pakistan. It is, therefore, in the interest of justice that order of exhumation of dead body of the deceased is passed and in such like cases no interference by this Court is called for. Under the facts and circumstances of the present case, a serious allegation of murder has been leveled against the petitioner, suspecting him of the murder of the deceased. A fact which has been vehemently denied by the petitioner himself. It would, therefore, be in his interest also that the body of the deceased is exhumed so as to exonerate him from this allegation forever.
For what has been discussed above, no illegality, infirmity has been observed in the orders so impugned by the petitioner. Accordingly, by dismissing this petition the orders dated 12.5.2006 passed by the learned Additional Sessions Judge, Nankana Sahib and the order dated 26.4.2006 passed by the learned judicial Magistrate Section 30, Nankana Sahib are up-held. Resultantly, the learned Additional Sessions Judge, Nankana Sahib shall make arrangements for the dis-interment and exhumation of dead body of the deceased Mst. Sardaran Bibi and then proceed in accordance with law.
(R.A.) Order accordingly.
PLJ 2007 Lahore 553
[Rawalpindi Bench Rawalpindi]
Present: Muhammad Muzammal Khan, J.
HUSNAIN MOHYUDDIN--Petitioner
versus
ADDITIONAL SESSIONS JUDGE etc.--Respondents
W.P. No. 2584 of 2006, decided on 7.11.2006.
Constitution of Pakistan, 1973—
----Art. 199--Criminal Procedure Code (V of 1898), S. 157(2)--Custody of vehicle was given to respondent by Addl.D.J.--Assailed--Vehicle was recovered from a relative of respondent who had obtained route permit from the transport authority--He was also in possession of original registration book which had transferred in his name by the Excise and Taxation Officer--Petitioner claimed that he was owner of the vehicle, documents of which were stolen and thereafter the vehicle itself had removed by respondent unauthorizedly his concurrence, required determination after recording evidence by holding a full fledged enquiry which was not permissible in writ petition--Respondent had already filed a civil suit regarding his entitlement which was pending in Court--Petition dismissed.
[Pp. 554 & 555] A, B & C
Raja M. Farooq, Advocate for Petitioner.
Rana Zahid Ali, Advocate for Respondents.
Mr. Mudassar Khalid Abbasi, A.A.G. for State.
Date of hearing: 7.11.2006.
Order
Instant Constitutional petition assailed the order dated 11.10.2006 passed by the learned Additional Sessions Judge Gujar Khan, to be declared illegal, void and of no legal consequence, whereby custody of vehicle with Resuscitation No. LPT-1288 (Yellow Cab Model 1993 Bearing Engine No. 150054 Chassis No. 688853) was ordered to be handed over to Respondent No. 2, hence this petition.
Succinctly, relevant facts are that one Khalid Jamil reported to the police on 23.6.2005 that documents of Vehicle No LPT/1288 were misplaced. Thereafter, on 5.8.2005, petitioner lodged Rapt No. 13 that his vehicle with Registration No LPT-1288 (Yellow Cab Model 1993 Bearing Engine No. 150054 Chassis No. 688853) was stolen by un-known person. Police took into their custody this vehicle on 29.8.2006 vide Rapt No. 245 from Haji Mumtaz Ali Qureshi and initiated proceedings under Section 157(2) Cr.P.C. Both the petitioner and Respondent No. 2, filed their distinct applications for custody of the vehicle before the learned Allaqa Magistrate who dismissed both the applications on 12.9.2006.
Both the parties were not satisfied with the decision of the learned Magistrate and consequently they filed their separate Criminal Revisions before the learned Additional Sessions Judge where Respondent No. 2 succeeded as his revision petition was accepted and custody of vehicle was ordered to be given to him whereas petitioner's revision petition was dismissed through the same consolidated order dated 11.10.2006. Petitioner thereafter, filed instant Constitutional petition with the relief noted above. Respondents Nos. 2 and 3 have appeared in response to notice by this Court.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undeniably, the vehicle in question was recovered from a relative of Respondent No. 2 who had obtained Root Permit from the Transport Authority. He is also in possession of original registration book which was transferred in his name by the Excise and Taxation Office Sargodha.
Claim of the petitioner that he is owner of the vehicle, documents of which were stolen and thereafter the vehicle itself was removed by Respondent No. 2 unauthorizedly/without his concurrence, requires determination after recording of evidence and holding a full fledge trial but this course is not permissible on the petition in hand, Respondent No. 2 has already filed a suit regarding his title to the vehicle inquestion which is pending adjudication before the Civil Court at Rawalpindi and the petitioner has been arrayed as Defendant No. 2 therein. Respective stance of the parties regarding their claim of ownership shall be determined by the Civil Court and the impugned order dated 11.10.2006 has already been made subject to final verdict of the Civil Court. The learned Additional Sessions Judge has taken care of safe custody of the vehicle by Respondent No. 2 by requiring him to furnish surety bond in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of the learned Illaqa Magistrate. Scan of record and impugned order revealed that controversy was correctly put to rest without combatting any error of law/facts.
For the reasons noted above, no case for interference in Constitutional jurisdiction of this Court was made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit, is dismissed with no order as to costs.
(J.R.) Petition dismissed.
PLJ 2007 Lahore 555
Present: Tariq Shamim, J.
SHAKEEL AHMAD--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION CIVIL LINES, SIALKOT and 2 others--Respondents
W.P. No. 4039 of 2004, decided on 7.11.2006.
Constitution of Pakistan, 1973—
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Quashment of FIR--Allegation of fraud was alleged against accused that he had changed the date in the Iqrarnama out of malice and for ulterior motives--Statement of scribe prima facie connected him with commission of crime--No legal bar on continuing civil and criminal proceedings side by side--Petition was dismissed.
[Pp. 556 & 557] A, B & C
2006 SCMR 512; 2003 SCMR 1691 and 2006 SCMR 276 ref.
Ch. Muhammad Abdus Saleem, Advocate for Petitioner.
Mr. Arshad Hussain Bhutta, Advocate for Respondents.
Mr. Muhammad Arif Bhinder, Addl.A.G.
Date of hearing: 7.11.2006.
Order
Through this petition the petitioner seeks quashment of FIR No. 87 dated 12.3.2004 under Sections 420, 468, 471, 406 PPC registered at Police Station Civil Lines, Sialkot, inter-alia on the ground that a civil suit was filed by the petitioner as a counterblast to which the present FIR has been lodged against the petitioner; that the allegations leveled in the FIR are false and fabricated and that no offence has been committed by the petitioner as alleged in the FIR as no document was forged or fabricated by the petitioner.
On the other hand, the learned counsel appearing on behalf of Respondent No. 3 the complainant while opposing the petition contends that the petitioner has changed the dates in the agreements to sell as otherwise the suit filed by the petitioner would have become time barred; that serious allegations have been levelled against the petition in the FIR; that during investigation also the petitioner was found to be fully involved in the crime alleged against him; that the scribe of the document interpolated by the petitioner appeared before the police and also got his statement recorded under Section 164 Cr.P.C. before the learned Magistrate wherein he categorically stated that the agreement in question was executed in 1996 and not in 1998 and that the investigation having been completed the challan was likely to be submitted in the trial Court in the near future.
The learned Addl. Advocate General has adopted the arguments advanced by the learned counsel appearing on behalf of Respondent No. 3.
The writ petition was admitted to regular hearing by this Court vide order dated 25.3.2004 and an injunctive order was passed in favour of the petitioner to the effect that he would not be arrested in the meanwhile. A perusal of the order-sheet reveals that since the passing of the said order, the petitioner and his learned counsel have consistently been absent from the Court. as a consequence whereof the petition was dismissed for non-prosecution on 4.10.2006. However, the same was restored on an application filed by the petitioner in the interest of justice. Thus it is evident that the petitioner after the grant of interim relief by this Court has misused the same by deliberately failing to enter appearance on a number of occasions.
Even otherwise serious allegations have been leveled against the petitioner of committing fraud with the complainant which is evident from the fact that the copies of Iqrarnama produced by the learned counsel appearing on behalf of the Respondent No. 3 shown that the date shown in the document in question i.e 18.1.1996 had been fraudulently changed by the petitioner out 18.6.1998 to out malice and for ulterior motives. The scribe of the said document appeared before the police as well as the learned Magistrate and got his statements recorded under Section 161 and 164 Cr.P.C. in which he categorically stated that the petitioner, in order to commit fraud with the complainant, had changed the date of the execution of document from 18.6.1996 to 18.6.1998. The statement of the scribe recorded by the learned Magistrate prima facie connects the petitioner with the commission of crime alleged against him by the complainant. During the investigation also the petitioner was found to be fully involved in the commission of offence of forgery etc. Thus, on merits also the petitioner has not been able to make out case for quashment of the FIR. The argument of the learned counsel for the petitioner that a civil suit was pending between the parties regarding the subject-matter of the FIR and that criminal proceedings had been lodged as a counterblast to the same meriting quashment of FIR is devoid of any force as it has been consistently held by the Hon'ble Supreme Court that criminal as well as civil proceedings can continue side by side as the both relate to different laws. Reliance is placed on the cases of Rafique Bibi vs. Muhammad Sharif and others (2006 SCMR 512) and M. Aslam Zaheer vs. Ch. Shah Muhmmad (2003 SCMR 1691).
The allegations leveled in the impugned FIR and denial of the same by the petitioner necessarily requires holding of an inquiry into disputed questions of fact. Such exercise cannot be undertaken by this Court in proceedings under Article 199 of the Constitution. The police is under a legal obligation to investigate a crime reported to it and interfering in the statutory duty of the police would amount to stifling the prosecution. Further, the Hon'ble Supreme Court in the case of Col. Shah Sadiq vs. Muhammad Ashiq and others (2006 SCMR 276) has held that quashment of FIR would amount to short circuiting the normal procedure of law as provided under Cr.P.C. and Police Rules and that the accused has more than one alternate remedies available to him under the Code of Criminal Procedure.
No occasion has, thus, been found for interference in the matter by this Court. The petition is therefore, dismissed.
(J.R.) Petition dismissed.
PLJ 2007 Lahore 557
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rahman, J.
MUHAMMAD TARIQ--Petitioner
versus
SECRETARY GOVT. OF PUNJAB, ZAKAT & USHAR DEPARTMENT, LAHORE and 2 others--Respondents
W.P. No. 4193 of 2005, heard on 9.1.2007.
(i) Civil Servants (Seniority) Rules, 1993--
----R. 3--Constitution of Pakistan 1973, Art. 199--Civil Servant--Seniority--Proforma promotion--Determination--Final seniority list--Petitioner was senior than others--Petitioner moved an application for redressal of his grievance and claimed entitlement to proforma promotion--Case of petitioner falls on better footing than respondent as petitioner was listed at Serial No. 8 of the seniority list in which respondent was at Serial No. 11--Contention of respondents that petitioner was claiming under the rules could not be accepted--Civil servant also deserves relaxation granted to respondent who has also been superseded--Public functionaries while taking decisions on such like cases are required to deal with other similar cases on same footing rather than to show favouritism to one person and neglect the other--The promotes unfairness and shows that biasness of the public functionaries cannot be promoted--Civil servant would be considered on the same footings and he would have also been granted proforma promotion alongwith respondent--Petition accepted. [P. 560] A
(ii) Civil Servants (Appeals) Rules, 1997—
----R. 4(2)--Constitution of Pakistan, 1973, Art. 199--Scope--Constitutional petition--Maintainability--Proviso of--Civil Servants (Appeals) Rules, 1977 as in the matter pertaining to fitness or otherwise appeal does not lie, therefore the present petition was maintainable. [P. 560] B
Mr. Ahmad Raza, Advocate for Petitioner.
Mr. Zafarullah Khan, Khakwani, AAG.
Syed Najam-us-Saeed Shah Jilani, District Zakat Officer Multan.
Date of hearing: 9.1.2007.
Judgment
Through the instant writ petition, the petitioner seeks the grant of proforma promotion.
Brief facts necessary for the determination of the instant writ petition are that after qualifying M.A., the petitioner got a job in Zakat & Ushar Department on 25.11.1980 and presently he was working as Assistant in the office of DCO Vehari.
According to the final seniority list of the Assistants of Punjab Zakat Department on 5.7.1988, the petitioner was listed at Serial No. 8 while Naseer Ahmad Daula, Shafat Pervaiz, Waseem Ayoub and Shafqat Pervaiz were listed at Serial Nos. 11, 13, 21 and 23. They were all junior Assistants than the petitioner but they have been promoted by the department inspite of the fact that the petitioner was recommended by the Administrator Zakat and Ushar Department/Respondent No. 2 vide his Letter No. AS & U-1522/97 dated 11.11.1997, in which it was clearly recommended that the petitioner deserves proforma promotion.
The petitioner being aggrieved moved an application before the respondents for the redressal of his grievance and claimed that he being senior according to the seniority list is entitled to the proforma promotion, when his junior in the seniority list at Serial No. 11, namely, Naseer Ahmad Daula, had been promoted in relaxation of the existing rules for proforma promotion but the respondents did not pay any heed to the grievance of the petitioner. The petitioner was constrained to file W.P. No. 2196/05 in this Court seeking a direction to Respondent No. 1 to take decision on his application. Accordingly, a direction was issued to Respondent No. 1 vide this Court's order dated 21.4.2005. The petitioner appeared before Respondent No. 1 who rejected the application of the petitioner through order dated 7.6.2005. Hence this writ petition.
Comments were called from the respondent department and which have been received. The stand of the respondent department is that the petitioner joined the department in the capacity of Assistant on 25.11.1980. He was declared surplus and his services were placed on the strength of Services & General Administration Department on 30.11.2001. He is no more an employee of Zakat and Ushar Department and his parent department now is Services and General Administration Department. The final seniority list dated 27.6.1994 was issued as stood on 5.7.1988 as per advice of Regulational Wing of S&GAD. It was advised that Zakat Department is one function unit and separate seniority list cannot be maintained in one unit. The petitioner is claiming seniority against those promotions which are itself not covered under the rules and these promotions are liable to be reverted back. The claim of the petitioner is not based on any legal foundation. As the petitioner has failed to move the Service Tribunal within the period of limitation laid down in the law, therefore, this writ petition is not maintainable and is liable to be dismissed.
In the final seniority list of Assistants of Punjab Zakat Department as stood on 5.7.1988 annexed with the comments, the petitioner was listed at Serial No. 8. From the perusal of the minutes of the meeting of DPC held on 24.3.2004, it is crystal clear that Naseer Ahmad Daula who was at Serial No. 11 of the Final Seniority List, had been recommended for the grant of proforma promotion due to the reason that his case is that of hardship because three persons junior to him, namely, Shafat pervaiz, Waseem Ayyoub and Shafqat pervaiz, had been promoted on the basis of separate seniority list maintained by the Headquarter and he was allowed financial benefits. Later on vide Order No. SO(E)Z & U/5-27/99 dated 22.9.2004, Naseer Ahmad Daula in relaxation of the existing proforma promotion policy by the Chief Minister Punjab, was granted proforma promotion w.e.f. 21.7.1993 for financial benefits.
The case of the petitioner falls not only on the same footing but rather on better footing that of Naseer Ahmad Daula/Respondent No. 3 as the petitioner was listed at Serial No. 8 of the above-mentioned seniority list in which Naseer Ahmad Daula/Respondent No. 3 was at Serial No. 11. The contention of the respondents that what the petitioner is claiming is itself not covered under the rules cannot be accepted. The petitioner also deserves relaxation granted to Respondent No. 3 Naseer Ahmad Daula who has also been superseded by not three but four persons. The Public functionaries while taking decisions on such like cases are required to deal with other similar cases on the same footing rather than to show favourtism to one person and neglect the other. The same promotes unfairness and shows the biasness of the public functionaries. The same cannot be promoted. The petitioner's case should be considered on the same footings and he should have also been granted proforma promotion alongwith Naseer Ahmad Daula/Respondent No. 3.
Further the contention of the respondents that this writ petition is not maintainable as the matter should have been agitated by the petitioner before the Service Tribunal is contrary to Rule 4(2) proviso II of the Civil Servants (Appeal) Rules, 1977 as in the matters pertaining to fitness or otherwise, appeal does not lie, therefore, this writ petition is maintainable. In this regard reliance is placed upon 2001 SCMR 1446, in which it has been held as under:
"Service Tribunal Act, Section 4(1)--Civil Servants (Appeal) Rules, 1977, R. 4(2), Proviso II--Fitness of civil servant--Determination--Service Tribunal, Jurisdiction of--Scope--Service Tribunal had no jurisdiction against order or decision of Departmental Authority determining the fitness or otherwise of a person for promotion to higher post or grade".
Reliance is also placed upon PLD 1994 SC 539.
(N.F.) Petition accepted.
PLJ 2007 Lahore 561
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD YASIN--Petitioner
versus
PAKISTAN RAILWAY and others--Respondents
W.P. 6532 of 2006, decided on 21.12.2006.
Constitution of Pakistan, 1973—
----Art. 199--Vending License--Clause 12(b)--Factual and legal controversy--Constitutional petition--Terms and conditions--Vending licenses for installing were granted--Orders were assailed--Proceedings were conducted in an ex-parte manner--Violation of principles of natural justice--No verdict by criminal court under Pure Food Ordinance--License could not be revoked--Validity--Termination of contract even without any notice was not called for, because contract had been done without fulfilling the essential requirement of conveying unsatisfactory working to petitioners or breach of clause of license on their behalf--Competent court under relevant law provides a ground for revoking license and petitioners had been found guilty by competent Court--Respondent would have been justified to revoke their licenses for committing an act injurious to public health under Pure Food Ordinance--Held: In absence of specific findings can be recorded by a Court and not by any authority--Cancellation of license without giving any notice was not violative of principle of natural justice providing that no body to be condemned unheard but was violative of law--Further held: In future the concerned authority would ensure that before terminating the contract not only a proper notice be issued to contractors but action would be taken after providing opportunity.
[Pp. 562 & 563] A, B, C, D & E
Syed Zia Haider, Advocate for Petitioners.
Rao Muhammad Iqbal, Advocate for Respondents.
Date of hearing: 21.12.2006.
Order
In view of similarity factual and legal controversy, both the Writ Petitions (W.P. No. 6532/2006 & 6534/2006) are being disposed of through this single order.
Petitioners in both these petitions were granted Vending License for installation of Stall at Railway Station, Khanewal vide orders dated 15.9.2006 in W.P. No. 6532/2006 and on 23.5.2006 in W.P. No. 6534/2006. However, both these licenses were terminated by Respondent No. 2 by invoking clause 12(b) of the Vending License. Through, these constitutional petitions, both the above mentioned termination orders have been challenged on the ground that before termination neither any Show Cause Notice was issued to the petitioners nor any explanation was obtained from them and that entire proceedings were conducted in an ex-parte manner and in violation of the principles of natural justice; and that the ground on which the license has been terminated is not a part of the conditions of Vending License, even otherwise, there was no verdict by Criminal Court under the Pure Food Ordinance, the license could not be revoked on the ground mentioned in the termination order.
The report and parawise comments have been received from the respondents. Learned counsel for the respondent submits that Respondent No. 2 has got the authority in terms of condition 12(b) of the Vending License to cancel the license forthwith without giving any notice and without being liable to pay any compensation whatsoever to the licensee, therefore, the licenses were validly terminated/revoked and these writ petitions being not maintainable are liable to be dismissed.
I have considered the arguments of learned counsel for the parties and have also gone through the terms and conditions of the Vending License.
The relevant clause 12(b) of the License reads as follows:--
"In addition to the above penalty, it is also hereby expressly agreed that in the event of unsatisfactory working of the licensee/s or breach of any clause of this Agreement, the Railway Administration is authorized to terminate the contract/cancel the license forthwith without giving any notice, and without being liable to pay any compensation whatsoever to the licensee/s."
Even if the above, clause is admitted, even then before invoking the said clause, the respondents were obliged to issue notice to the petitioners pointing out their unsatisfactory working or breach of any clause of the agreement, but in the case in hand, the impugned orders were passed straight away without any such notice, therefore, the termination of the contract even without notice was not called for, because the same has been done without fulfilling the essential requirement of conveying the alleged unsatisfactory working to the petitioners or breach of any clause of the License on their behalf. The impugned orders, also suffer from jurisdictional defect as the same fail to point out any violation of Pure Food Rules without trial and conviction by the competent Court under the relevant law i.e. Pure Food Ordinance, which alone provides a ground for revoking the license and in case the petitioners had been tried and found guilty by the competent Court the respondents would have been justified to revoke their licenses for committing an act injurious to public health under the Pure Food Ordinance. But merely that samples were found to be substandard by the Laboratory Test from Government Analyst, Multan, is not sufficient to hold that petitioners in both these cases were guilty of commission of offence in the absence of any specific findings by competent Court to this effect, as such findings can only be recorded by a Court and not by any authority. Lastly, I find that the above-mentioned clause providing for cancellation of the license forthwith even without giving any notice is not only violative of principle of natural justice providing that no body to be condemned unheard but is also violative of the law declared by the Hon'ble Supreme Court of Pakistan in the case "FEDERATION OF PAKISTAN versus PUBLIC AT LARGE" (P.L.D. 1987 SC 304) providing that issuance of notice and affording opportunity of hearing is to be deemed an integral part of every action, hence the said Clause is struck down being against the principles of natural justice and respondents are directed not to act in such like manner and in case any action is required to be taken against any licensee the same can only be taken after giving notice and providing opportunity of hearing.
For what has been discussed above, both these petitions are allowed and declaring the termination of contracts of the petitioners as without lawful authority and of no legal effect, the respondents are directed to immediately restore the licenses of the petitioners.
I was inclined to burden Respondent No. 2 with heavy costs for terminating the contracts of the petitioners in any arbitrary manner but on the assurance of learned counsel for the respondent that in future the Railway Authorities shall ensure that before terminating the contract not only a proper notice should be issued to the contractors but action would also be taken after providing opportunity of hearing, I have decided not to burden the respondent with costs. However, it is made clear that in case such like act is repeated by the respondent, in view of above observations this Court would not be slow in burdening the concerned authorities with heavy costs. Copy of this order be immediately sent to Respondent No. 2 for compliance.
(N.F.) Petitions allowed.
PLJ 2007 Lahore 564
Present: Fazal-e-Miran Chauhan, J.
BASHARAT ALI--Petitioner
versus
EXECUTIVE DISTRICT OFFICER (EDUCATION), NANKANA SAHIB and anothers--Respondents
W.P. No. 13655 of 2006, decided 22.12.2006.
(i) Service Matter--
----Constitution of Pakistan, 1973, Art. 199--Civil servant--Appointment on contract basis--Withdrawal the appointment order--Legality--Order of appointment on contract basis was issued, executed and signed by respondent being without lawful authority, as the same was issued without getting approval from the District Recruitment Committee--Letter of appointment/contract was executed/issued correctly, then it was to be seen as to whether the writ petition was competent to get the agreement enforced by the parties--Petition dismissed. [P. 565] A
(ii) Interpretation of Law--
----Contractual obligation cannot be enforced through the writ petitions--Contractual services could be terminated and the termination order cannot be challenged by way of filling writ petitions--Termination of contractual service remedy lies for damages and not a writ petition as the employer cannot be compelled to employ against his will.
[P. 565] B
(iii) Constitution of Pakistan, 1973—
----Art. 212--Jurisdiction of High Court--Maintainability--Jurisdiction of High Court is barred by Art. 212 of the Constitution of Pakistan--Thus on account of bar of Art. 212, the Constitutional petition was not maintainable, it was not necessary to examine the question regarding maintainability of the writ petition, in case of withdrawal of the appointment order said to have been issued without lawful authority, without prior approval of the District Recruitment Committee--Petition was dismissed. [P. 565] C
Mr. Ghulam Murtaza Chaudhary, Advocate for Petitioner.
Date of hearing: 22.12.2006.
Order
Basharat Ali, the petitioner, was appointed as Lab Assistant (BS-1) on contract basis for three years at Government High School, Broia Chak No. 36/RB, District Nankana Sahib, vide order dated 16.8.2006. As per Condition No. 6 of the Appointment Order, one notice or on payment of one month's pay in lieu thereof on either side without assuming any reason could be terminated.
It is argued that; Respondent No. 2, vide impugned order dated 16.12.2006, without assuming any reason, terminated/withdrew the appointment order. This act of Respondent No. 2 is illegal and without lawful authority.
Heard. Record perused.
At first place, it appears from the impugned order that the order of appointment on contract basis was issued, executed and signed by Respondent No. 2, being without lawful authority, as the same was issued without getting approval from the District Recruitment Committee, District Nankana Sahib. Secondly, if at all, it is presumed that the letter of appointment/contract dated 16.8.2006 was executed/issued correctly, then it is to be seen as to whether the writ petition is competent to get the agreement enforced by the parties. It is settled law that a contractual obligation cannot be enforced through the writ petitions. Reliance is placed on M. Enver Shaukat vs. Federation of Pakistan and another (1980 Law Notes (Lahore) 752) and Muhammad Ramzan Ansari vs. Government of Pakistan and others (1983 PLC (CS) 52). Even otherwise, a contractual services could be terminated and the termination order cannot be challenged by way of filing writ petitions. On termination of contractual service, remedy lies for damages and not a writ petition, as the employer cannot be compelled to employ against his will. Reliance is placed on (1987 MLD 153) and Major (Retd.) Khalilur Rehman vs. Overseas Pakistanis Foundation & another (NLR 1984 Service 60).
So far as the maintainability of the writ petition is concerned, the jurisdiction of this Court is barred by Article 212 of the Constitution of Islamic Republic of Pakistan. Thus, on account of bar of Article 212, the constitutional petition is not maintainable, it was not necessary to examine the question regarding maintainability of the writ petition, in case of withdrawal of the appointment order/letter, said to have been issued without lawful authority, without prior approval of the District Recruitment Committee of the District. Reliance is placed on Muzaffar Hussain vs. The Superintendent of Police, District Sialkot (2002 PLC (CS) 442).
C
(N.F.) Petition dismissed.
PLJ 2007 Lahore 566
Present: Syed Shabbar Raza Rizvi, J.
SHAHID ASLAM and another--Petitioners
versus
ELECTION TRIBUNAL and 7 others--Respondents
W.P. No. 1555 of 2007, decided on 21.2.2007.
Punjab Local Councils Election Rules, 2005—
----Rr. 76 & 77--Constitution of Pakistan, 1973, Art. 199--Election petition--Manoeuvred matriculation certificate--Declared returned candidates--Respondents filed an election petition against the petitioners--Validity--Matriculation certificate was not genuine at the time of filing nomination papers--Election petition was allowed--Election Tribunal petitioner manoeuvred to obtain matriculation certificate of his namesake and used the name to file his nomination papers--High Court did not consider appropriate to interfere with the impugned order--Election Tribunal was in a position to pass the impugned order after recording evidence produced by the parties before him which exercise cannot be under taken under Constitutional jurisdiction--Petition dismissed.
[Pp. 566 & 568] A & B
Mr. Muhammad Shahzad Shaukat, Advocate for petitioners.
Date of hearing: 21.2.2007.
Order
Petitioners contested election of Nazim and Naib Nazim respectively to the Union Council No. 7, Wazirabad Town, District Gujranwala. Petitioners were declared returned candidates and their Notification was issued on 20.8.2005. The Respondents Nos. 3 and 4 filed an election petition who had lost election against the petitioners. The election petition was filed on the ground that Petitioner No. 1 was disqualified to contest the election as he was not in possession of a genuine matriculation certificate at the time of filing nomination papers. The election petition was allowed by the learned Election Tribunal vide its order dated 17.2.2007. Learned Election Tribunal framed issue "Whether matriculation certificate filed by Respondent No. 2 (present petitioner) Shahid Aslam along with his nomination papers is valid or not?"
According to the finding of the learned Election Tribunal petitioner manoeuvred to obtain matriculation certificate of his namesake and used the same to file his nomination papers. According to the impugned judgment documents Ex. P1 and Ex. P2 very clearly indicate that both Shahid Aslams have the same parentage. Petitioner Shahid Alsam is permanent resident of Wazirabad and appeared from Govt. Christian High School Wazirabad in the Matriculation Examination in Arts Group vide Ex. P. 2 but failed in the examination. However, taking the benefit of the similar parentage and examination in the same year he maneouvred a matriculation certificate of Shahid Aslam son of Muhammad Aslam resident of Baghbanpura, Lahore who appeared under Roll No. 32539. The date of birth of the said Shahid Aslam son of Muhammad Aslam is 7.10.1960 whereas Shahid Aslam (petitioner) appeared from Govt. Christian High School Wazirabad under Roll No. 26050 and his date of birth is 4.4.1959. On the basis of the above material and record produced before the Election Tribunal by Imtiaz Ahmad Superintendent of Record, Board of Intermediate and Secondary Education, Lahore. Sakhi Muhammad, Assistant Controller Board of Intermediate and Secondary Education, Lahore also appeared as PW-3 before Election Tribunal. On the basis of above evidence, the election petition was allowed vide impugned order dated 17.2.2007.
The learned Election Tribunal, in view of its finding on Issue No. 1, accepted the election petition and also declared petitioners i.e. Shahid Aslam and Mirza Muhammad Iqbal disqualified owing to bogus matriculation certificate. The learned Election Tribunal also declared Respondent Nos. 3 and 4 as returned candidates for the post of Nazim and Naib Nazim respectively.
The learned counsel for the petitioners submits that Respondent Nos. 3 and 4 failed to produce sufficient evidence on basis of which impugned order could be passed. Without repeating whatever has been discussed above, the contention of the learned counsel for the petitioner is not acceptable. The learned counsel for the petitioners also submits that declaration of Respondent Nos. 3 and 4 as returned candidates is also against law and relevant rules on the subject. However, in this context Rules 76 and 77 of the Punjab Local Councils Election Rules, 2005 are alluded to. According to Rule 76, the Tribunal shall declare the election of the returned candidate to be void if it is satisfied that:--
(a)......
(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Nazim or Naib Nazim as the case may be; or....
The above discussion is sufficient to hold that petitioners were rightly found disqualified at the time of filing of nomination papers as Petitioner No. 1 was not in possession of a genuine matriculation certificate.
Under Rule 77 the Tribunal can declare the election of a returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected. The prayer in the election petition clearly shows that it was prayed by the Respondent Nos. 3 and 4 that in view of disqualification of Petitioner No. 1, election be declared void and the petitioners (Respondent Nos. 3 and 4) be declared returned candidates. On the basis of evidence produced before the Election Tribunal, the Election Tribunal was satisfied to declare Respondents Nos. 3 and 4 returned candidates in place of petitioners, thus the Election Tribunal has exercised its jurisdiction under Rules 76 and 77 of the Punjab Local Councils Election Rules, 2005.
In view of the above discussion and reasons, this Court does not consider appropriate to interfere with the impugned order. It is also observed that the learned Election Tribunal was in a position to pass the impugned order after recording evidence produced by the parties before him which exercise cannot be undertaken under constitutional jurisdiction. Hence, this writ petition is dismissed.
(N.F.) Petition dismissed.
PLJ 2007 Lahore 568
Present: Muhammad Akhtar Shabbir, J.
SYED MUSHTAQ HUSSAIN SHAH--Petitioner
versus
JEWAN and 4 others--Respondents
W.P. No. 9311 of 2005, decided 21.2.2007.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 24--Constitution of Pakistan, 1973, Art. 199--Suit for pre-emption--Sale price of land--Zar-e-Soim did not deposit within 30 days--Question of deposit of amount within time or beyond specified time--Suit was dismissed for non-deposit of Zar-e-Soim--Application for recall was accepted--Revision petition was also dismissed--Assailed--Plaintiff was duty bond to deposit the amount within 30 days of filing of the suit--Power of Court is restricted and Court is not empowered to extend the time beyond 30 days of filing of the suit--The first proviso of S. 24 bars the discretion of the Court to extend time beyond 30 days--Therefore, if the period expires on one day earlier, then the deposit made by the plaintiff respondents cannot be extended and no benefit can be given to the plaintiffs--Legal aspect of the case has not been adverted to by Courts below and passed the impugned orders in extension of time violation of the statutory provisions of law--Petition accepted. [P. 571] B, C & D
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 24--Provision of law--Extension of time for depositing of Zar-e-Soim amount of the sale price would not extend beyond 30 days and the time would be reckoned from the date of filing of suit--The date on which the suit has been filed by the petitioner would not be excluded from the count--Day of the filing of the suit would be calculated. [Pp. 570 & 571] A
Syed Sajid Ali Bukhari, Advocate for Petitioner.
Mr. Muhammad Anees Khatana, Advocate for Respondents.
Date of hearing: 21.2.2007.
Order
Facts giving rise to the present writ petition are to the effect that the plaintiff Jewan and two others Respondents Nos. 1 to 3 had instituted a suit for pre-emption on a sale of land measuring 77 kanals situated in Mauza Jangal Katora, Tehsil & District Jhang transferred through mutation of Sale No. 444 dated 4.11.2003 in favour of Mushtaq Hussain defendant/petitioner on 4.3.2004. The Court directed the plaintiffs/respondents to deposit 1/3rd (Zar-e-Soim) sale price of the land within thirty days and the hearing was adjourned to 3.4.2004. The plaintiff did not deposit the "Zar-e-Soim" within 30 days. Resultantly, the suit was dismissed for non-deposit of "Zar-e-Soim" on 3.4.2004. On the same day, the plaintiff filed an application for re-call of the above-said order and the learned trial Court vide his order dated 30.9.2004 accepted the application and restored the suit. Feeling aggrieved, the present petitioner preferred a revision petition, which came up for hearing before the learned Addl. District Judge, Jhang, who vide his judgment dated 28.4.2005 dismissed the revision petition.
I have heard the arguments of the learned counsel for the parties and perused the record.
The question that boils down for determination in this case is that whether the "Zar-e-Soim"/1/3rd sale price of the suit has been deposited within 30 days as directed by the Court. It is an admitted position that the Court had adjourned the case to 3.4.2004 vide its order dated 4.3.2004 with the direction to deposit "Zar-e-Soim" within 30 days "Zar-e-Soim" was not deposited before 3.4.2004 and that is why the suit was dismissed on the said date. After dismissal of the suit, the plaintiff deposited the amount of "Zar-e-Soim" amounting to Rs. 4,12,667/- and filed an application for re-call of the order of dismissal and restoration of the suit.
Section 24 of the Punjab Pre-emption Act, 1991 contemplates as under:--
"Section 24 plaintiff to deposit sale price of the property.
(1) In every suit for pre-emption, the Court require the plaintiff to deposit in such Court one-third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix:
Provided that such period shall not extend beyond thirty days of the filing of the suit:
Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property, and a bank guarantee for the remaining two-third of such probable value:
(2) Where the plaintiff fails to deposit one-third of the sale-price or the probable value of the property and the required bank guarantee under sub-section (1) within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under sub-section (1), his suit shall be dismissed.
(4) Every sum deposited under sub-section (1) shall be available for the discharge of costs.
(5) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor."
4.3.2004 to 31.3.2004 28 days
] to 30 days
1.4.2004 to 2.4.2004. 2 days
Total 30 days calculating the days of month of March and April would be ending on 2.4.2004.
The pre-emptor is duty bond to deposit the 1/3rd sale price within 30 days of the filing of the suit and not from the date of passing of the order. Had the order not been passed by the Court even then the plaintiff was duty bond to deposit the amount within 30 days of filing of the suit. The power of Court is restricted and the Court is not empowered to extend the time beyond 30 days of the filing of the suit. The first proviso of Section 24 bars the discretion of the Court to extend the time beyond 30 days. Therefore, if the period expires on one day earlier, then the deposit made by the plaintiff/respondents cannot be extended and no benefit can be given to the plaintiffs/respondents. In this context reliance can be made to the cases of Awal Noor vs. District Judge, Karak and 8 others (1992 SCMR 746), Ijaz Ahmad Khan vs. Muhammad Asif (2000 CLC 808), Jamshed Ali and 2 others vs. Ghulam Hassan (1995 CLC 957) and Muhammad Jehangir vs. Muhammad Abbas and two others (2004 CLC 538).
This legal aspect of the case has not been adverted to by both the Courts below and passed the impugned orders/judgments in violation of the statutory provisions of law and the principles laid down by the Superior Courts.
For the foregoing reason, this writ petition is accepted and the impugned orders/judgments passed by both the Courts below are declared to have been passed illegally, without lawful authority and of no legal effect. Resultantly, the order dated 3.4.2004 passed by learned trial Court dismissing the suit is restored.
(N.F.) Petition accepted.
PLJ 2007 Lahore 572
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD ASGHAR--Petitioner
versus
STATE LIFE INSURANCE CORPORATION OF PAKISTAN through its Chairman Karachi and 3 others--Respondents
W.P. No. 5000 of 2006, decided on 27.9.2006.
Life Insurance (Nationalization) Order, 1972 (X of 1972)—
----Art. 49--Constitution of Pakistan, 1973, Arts. 199 & 2D--Removal from service--Departmental appeal was dismissed--Inquiry was conducted--Assailed--Violation of--Employee of a statutory corporation had been removed from service without issuing a show cause notice and giving him an opportunity of hearing--Charge sheet with statement of allegations was served--Inquiry was conducted and thereafter another opportunity was given to explain--Petitioner may file a suit for damages in case he believes that the proceedings were taken against him in violation of the said regulation--Petition was dismissed. [Pp. 573 & 574] A & B
Mr. Muhammad Suleman Bhatti, Advocate for Petitioner.
Date of hearing: 27.9.2006.
Order
The petitioner is an employee of the Respondent No. 1. While he was so serving as an Area Manager (Lodhran), he was served with a charge sheet (Annex-A) alongwith statements of allegations. He filed reply which was found unsatisfactory and an inquiry was instituted and he was found guilty vide report prepared by the said Inquiry Officer. He was provided with a copy of the inquiry report and given personal hearing. He was accordingly removed from service vide order dated 31.5.2000. He filed a departmental appeal which was dismissed and then he filed a service appeal in the Federal Service Tribunal which according to the petitioner has abated by virtue of the dictum of Hon'ble Supreme Court of Pakistan in the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602).
Learned counsel for the petitioner contends that since the respondent-Corporation was established under a Statute, the Rules are statutory and the breach thereof can be enforced by filing this writ petition. He relies on the cases of Arshad Jamal v. N.W.F.P. Forest Development Corporation and others (2004 SCMR 468) and Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (PLD 2002 SC 1079).
I have examined this writ petition and the documents accompanying it in the light of the said submissions of the learned counsel. Now the proceedings were initiated and concluded and the petitioner was dismissed under the State Life Employees (Service) Regulations, 1973. These are the Regulations which governed the relationship between the petitioner and the said employer. The consensus of judicial authority expressed in several judgments of the Hon'ble Supreme Court of Pakistan is that where the power to frame Regulations is given to the Corporation established under a Statute then such Regulations are not to be treated as a statutory Rules, the by whereof can be enforced by filing a suit or writ petition. Now the Respondent No. 1 is a creature of the Life Insurance (Nationalization) Order, 1972 (P.O. No. X of 1972). Article 49 of the said Order empowers the Respondent No. 1 to make Regulations with the previous approval of the Central Government. These include the terms and conditions of service of the employees or agents. Thus, the Government having not vested itself with the said power, the Regulations so framed by the said Corporation would not be statutory Rules.
Now in the said case of Arshad Jamal, it was found as a fact that the employee of a statutory Corporation had been removed from service without issuing a show cause notice and giving him an opportunity of hearing. In the present case, it is in the writ petition itself that a charge sheet with statement of allegations was served. The reply was given, and inquiry was conducted and thereafter another opportunity was given to explain. The said judgment is hardly attracted. So far as the case of Federal Government Employees Housing Foundation through Director-General, Islamabad and another is concerned, upon an appreciation of the circumstances of the case, it was again held as a fact that the said Housing Foundation is performing functions in connection with the affairs of the Federation and as such it being official agency of the Federal Government cannot be treated like a private Company registered under the Companies Ordinance, 1984. The facts and circumstances of this case are clearly distinguishable.
The writ petition is, therefore, found to be incompetent. However, if so advised, the petitioner may file a suit for damages in case he believes that the proceedings were taken against him in violation of the said Regulations. With these observations, the writ petition is dismissed in limine.
(N.F.) Petition dismissed.
PLJ 2007 Lahore 574
Present: Muhammad Muzammal Khan, J.
ZULQARNAIN KHAN--Petitioner
versus
GOVT. OF PUNJAB IN THE WELFARE DEPARTMENT through Additional Chief Secretary, Government of Punjab, Civil Secretariat, Lahore and 2 others--Respondents
W.P. No. 14003 of 2005, decided on 9.2.2007.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Payment of pension--Illegality and unauthorizedly--Possession of official accomodation--Determination--Pension was stoped in order to adjust his salary towards Penal Rent--Validity--Petitioner was permitted by the Court to continue with possession under a restraint order thus, petitioner was not occupying the house unauthorizedly--The word "illegal" is unlawful and in the given circumstances of present case, possession of petitioner over house in his occupation was not unlawful--Order granted in favour of petitioner was not vacated at any stage of those proceedings and writ petition was disposed of on his own concession to vacate the premises within specified period thus--Held: Possession of petitioner over official accommodation never became unauthorized or illegal, hence, respondents cannot deduct/adjust any Penal Rent under their policy--Petition was accepted. [P. 576] A & B
Malik Saleem Chaudhary, Advocate for Petitioner.
Ch. Muhammad Sadiq, Additional Advocate General with Khadim Hussain S.O. Litigation Welfare Wing.
Date of hearing: 9.2.2007.
Order
Instant constitutional petition prayed for a declaration that act of the respondents to stop the payment of petitioner's pension is illegal, void and of no legal consequence and they may be required to release his pension.
A short factual background of the case is that petitioner joined Judicial Service as a Civil Judge, without doing PCS (Judicial) and by passage of time he was promoted as Additional District and Sessions Judge, and gained superannuation age on 6.10.1997. He submitted an application to the Additional Chief Secretary Punjab for extension of his period of occupation of government residence already in his possession (52-B, GOR-III), Shadman Colony, Lahore. This application of the petitioner was not attended and he consequently filed a constitutional petition (WP. 2777-1997). This Court requisitioned the reply from the respondents therein and granted interim relief protecting his possession over the official accommodation. In the meanwhile, the petitioner was appointed as Judge, Special Court (Anti-Terrorism Lahore, III) to hold the office till further order vide notification dated 17.2.1998 and he joined the assignment. Since the petitioner was to be provided official residence, he continued to occupy the House No. 52-B, GOR-III and his possession was never disputed by the respondents. Service of the petitioner was terminated on 17.4.1999 and he seized to be Judge, Special Court (Anti-Terrorism) with effect from 21.4.1999. Respondents through letter-dated 10.5.1999 required the petitioner to vacate the official accommodation in his possession within 14 days and he consequently filed another Writ Petition No. 8575 of 1999. This Court again granted the injunctive order against the respondents, protecting his possession, as he had claimed protection of para (22-A) of the Government Policy regulating the possession of official accommodations, where under in case of dismissal/resignation/retirement from service/transfer, the government official in possession of official residence was entitled to retain the possession thereof for a period of two months. The constitutional petition remained pending till 2.4.2001 when the same was disposed of with a direction to the petitioner to handover the vacant possession of the premises within a period of 3 months i.e. till 2.7.2001. The petitioner undisputedly vacated the premises on 14.7.2001 but his pension was stopped by the respondents under para 30 (iv) of the government policy in order to adjust 60% of his basic salary towards Penal Rent of his occupation of the house, unauthorizedly and illegally. The petitioner being aggrieved of the act of the respondents filed instant 3rd constitutional petition with the relief noted above. Respondents in response to notice by this Court have appeared and were represented through the learned Additional Advocate General.
I have heard the learned counsel for the parties and have examined the record. The only question, which hinges for determination of this Court, is whether the petitioner was occupying the official accommodation unauthorizedly or illegally. Simple answer to it, is that he was permitted by this Court to continue with the possession under a restraint order thus he was not occupying the house unauthorizedly. Dictionary/literal meaning of the word "illegal" is unlawful and in the given circumstance of this case, the possession of the petitioner over the house in his occupation was not unlawful. This question was earlier dealt by this Court in the case of Sheikh Lutaf-ur-Rehman Versus Government of the Punjab etc. (W.P. No. 20833 of 1999) which was decided on 28.1.2003 and relevant portion of the judgment reads as under:--
"This Court, vide its order dated 5.11.1999 (C.M. No. 2/1999) restrained the respondent-department from dispossessing the petitioner, in the meanwhile." The petitioner has thus continued with the possession under injunctive order passed by this Court and the department, therefore, cannot be permitted to charge the penal rent from the petitioner for this period".
The above-reproduced judgment of this Court left no room to hold that occupation of the petitioner over his official accommodation was unauthorized or illegal, even in presence of injunctive order by this Court. Assuming that stance of the respondents is correct and they are permitted to deduct/adjust 60% of petitioner's basic salary towards the penal rent, it would amount to sit in appeal against the prohibitory order earlier passed by this Court though the same was never got recalled or challenged by the respondents before any higher forum but this course is not permissible under law. Dismissal of this petition will inject illegality to the possession, protected under a lawful/binding order and had this injunctive order been vacated/recalled by this Court or the Court of appeal, it would not have turned, the period of possession during the currency of stay order, as illegal. The said order granted in favour of the petitioner was not vacated at any stage of those proceedings and his Writ Petition No. 8575 of 1999 was disposed of on his own concession to vacate the premises within the above referred period thus I have no ambiguity that possession of the petitioner over official accommodation never became unauthorized or illegal, hence the respondents cannot deduct/adjust any penal rent under their policy dated 16.10.2002.
For the reasons noted above, instant petition is bound to succeed and is accordingly accepted and writ as prayed, is issued with no order as to costs.
(N.F.) Petition accepted.
PLJ 2007 Lahore 577
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rahman, J.
SYED UMAR FAROOQ--Petitioner
versus
BAHAUDDIN ZAKARIYA UNIVERSITY MULTAN through its
Vice-Chancellor 5 others--Respondents
W.P. No. 6466 of 2006, heard on 24.1.2007.
(i) Prospectus of B.Z University Multan, 2006—
----R. 5(iv)--Admission in reserved seat of employees son--Applied for transfer--Erroneus plea of principal--Concerned committee recommended that the unfilled reserved seat be converted into self Finance/Special charges seat with the approval of the Vice Chancellor on the recommendation of the Engineering College Admission Committee--Such act of the respondents was in violation of R. 5(iv) the Prospectus of Bahauddin Zakariya University Multan, 2006 in which, any reserved seat which remains unfilled will not be transferred to the merit quota--Petition accepted. [P. 580] A
(ii) Prospectus of B.Z University Multan, 2006—
----R. A-3.7--Transfer from department of Architechtural Engineering to Mechanical Engineering Department--Reserved seat of employee's son--Petitioner was to be transferred to the higher preferential discipline automatically--Petitioner was to be considered automatically as transferred to the said discipline i.e. the Department of Mechanical Engineering--Petitions accepted. [P. 580] B
Mr. Khurshid Ahmad Khan, Advocate for Petitioner.
Ch. Zulfiqar Ahmad Sindhu, Advocate for Respondents.
Date of hearing: 24.1.2007.
Judgment
Brief facts giving rise to the instant writ petition are that the petitioner has passed the Intermediate Examination (Pre-Engineering Group) in Ist Division from the Board of Intermediate & Secondary Education D.G. Khan in the year 2005. On the basis of his Pre-Engineering Qualification, he applied for admission in the B.Sc. Engineering Ist year class in the respondent University College of Engineering and Technology, Bahauddin Zakariya University, Multan, giving his preference in the following order of priorities:--
(i) Department of Electrical Engineering.
(ii) Department of Mechanical Engineering.
(iii) Department of Architectural Engineering.
The petitioner was given admission in B.Sc. Engineering Class in the Department of Architectural Engineering against the reserved seat of Employee's son.
"As the seat in the mentioned category is lying vacant, it is recommended that it may kindly be converted to Employee's category as it is a transferable according to Prospectus, "enclosed as "A".
Inspite of his own recommendations, the Chairman University College of Engineering and Technology Admission Committee, Bahauddin Zakariyya University, Multan/Respondent No. 5 in its meeting held on 16.11.2006, on the erroneous plea of the Principal, University College of Engineering & Technology/Respondent No. 4 that the unfilled reserved (kinship) seat had been converted into Self-Finance/Special Charges seat with the approval of the Vice-Chancellor on the recommendation of the Engineering College Admission Committee/Respondent No. 6 deprived the petitioner/employee's son of his vested right for admission in the discipline of Mechanical Engineering. Against the said omission on the part of the respondents, the petitioner has filed this writ petition.
It is contended by learned counsel for the petitioner that the petitioner applied for admission in B.Sc. (Pre-Engineering) in Bahauddin Zakariyya University, Multan; that the preferences of the petitioner were firstly Electrical Engineering, secondly Mechanical Engineering and thirdly Architecture Engineering; that the petitioner was given admission in Architecture Engineering against the reserved seat; thereafter the petitioner applied for transfer to Mechanical Engineering in accordance with Rule 3.7 of the University Prospectus, the seats had remained unfilled in the quota of Teachers' son; that Respondent No. 5 also recommended the application of the petitioner for the transfer sought by the petitioner and that under Rule 5 Clause (i) of the Prospectus the unfilled seat could be offered to the candidates of the other Kinship category.
On the other hand, learned counsel for the respondents has contended that the word "kinship" is not mentioned in Rule 5(i) of the Prospectus of the University of Bahauddin Zakariya Multan, therefore, the fulfilled seat could be converted into Self-Finance/Special Charges Seat and as such no illegality or irregularity has been committed by the respondents.
I have heard learned counsel for the parties and perused the comments.
First of all it is necessary to reproduce Rule 5(i) and A3.7 of the Prospectus of Bahauddin Zakariya University Multan, 2006, which are as under:
Rule 5(i) (Page 26 of the Prospectus).
"There shall be two seats in each discipline (morning/Evening) for real son/daughter of working or retired or deceased teacher of the Bahauddin Zakariya University, Multan, provided that till the closing date for admission, the concerned teacher has served the University in regular capacity for at least three years or has served the University in the same capacity for the same period before retirement from the University or before death during the service in the University, if unfilled, the seat/s will be offered to the candidate of other category."
Rule A3.7 Transfer on the basis of given preference (page 51 of the Prospectus).
"In case a seat in any discipline/category of higher preference given by a candidate falls vacant and he is eligible for transfer to that discipline/category on the basis of the merit, he shall be automatically transferred to the discipline/category. He will have no right to retain his admission in the previous discipline/category unless he submits a written withdrawal of higher preference well in time before displaying the next merit list".
Perusal of both the rules reveals that a working teacher's son in the Bahauddin Zakariya University Multan is eligible for offering an unfilled seat of other category and he is also eligible for transfer to unfilled/vacant seat in any discipline/category of higher preference given by him.
"Any reserved seat which remains unfilled will not be transferred to the merit quota."
Moreover, under Rule A3.7 of the Prospectus of Bahauddin Zakariya University Multan, 2006, the petitioner was to be transferred to the higher preferential discipline automatically. As a seat was vacant in the Department of Mechanical Engineering, the petitioner was to be considered automatically as transferred to the said discipline i.e. the Department of Mechanical Engineering.
The respondents could not deprive the petitioner of this right by converting the unfilled/vacant seat to that of Self-Finance/Special Admission Charges Seat on the basis of the afore-referred rules of the Prospectus of the respondents University.
In view of the above circumstances, this writ petition is accepted and the respondents are directed to transfer the petitioner to the Department of Mechanical Engineering by accepting his application dated 27.9.2006.
(N.F.) Petition accepted.
PLJ 2007 Lahore 581
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
ALLAH DITTA--Petitioner
versus
D.P.O., MULTAN and 4 others--Respondents
W.P. No. 408 of 2007, decided on 15.2.2007.
Constitution of Pakistan, 1973—
----Art. 199--Offence of Zina (Enforcement of Hadood) Ordinance, (VII of 1979, S. 11--Criminal Law Amendment (Protection of Women) Act, 2006, S. 9--Quashment of F.I.R.--Offence of abduction was not made out--Abductee stated that she had not been abducted by any person--Rather she affirmed that she is sui juris and being pubert girl had contracted marriage with the petitioner--Impugned F.I.R. was not warranted by law--Registration of case by the police would defeat the purpose of introducing the Amendment--Since the impugned F.I.R. was registered after enforcement of the Criminal Law Amendment (Protection of Women) Act, 2006 the same is not warranted by law--Petition allowed. [P. 583] A & B
Rana Muhammad Jehanzeb Khan, Advocate for Petitioner.
Mr. Muhammad Qasim Khan, A.A.G. with Mazhar Ali Shah Inspector (Legal) with Haq Nawaz, S.I.
Ch. Muhammad Siddique Sarwar, Advocate for Complainant.
Date of hearing: 15.2.2007.
Order
Through this petition the petitioner seeks quashment of F.I.R. No. 452 dated 15.12.2006 registered under Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 at Police Station Muzaffarabad Distt. Multan.
Brief facts of the case are that Muhammad Bashir complainant lodged a report at the police station that on the night intervening 14/15.12.2006 he was sleeping in his house with his family when in the morning he found the doors of the house open and his daughter Mst. Rabia Bibi aged 15 years was not present. Some golden ornaments and precious clothes were also missing. Complainant started searching his daughter, after he was told by the witnesses that Mst. Rabia Bibi had been seen going in the company of Allah Ditta petitioner and Muhammad Ramzan etc. The complainant approached Muhammad Ramzan etc. who accepted that they had abducted Mst. Rabia and promised to return her but later on they have refused to do so. Hence the F.I.R.
Learned counsel for the petitioner has submitted that the F.I.R. in question is based on mala fide and has been lodged by distorting the facts. Mst. Rabia is sui juris and being major she has contracted marriage with Allah Ditta petitioner of her own free will and volition according to the injunctions of Islam and her Nikah was duly performed and registered on 13.12.2006; that Respondent No.3 who is father of Mst. Rabia being annoyed of her marriage with the petitioner has got the impugned F.I.R. registered on 15.12.2006. It is further stated that Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 has been omitted by virtue of Criminal Law Amendment (Protection of Women) Act, 2006. Therefore; Section 11 of the Ordinance No. VII 1979 was no more an offence on the day of occurrence. Therefore the impugned F.I.R. is liable to be quashed on this score alone; that the complainant himself has stated in the F.I.R. that Mst. Rabia Bibi was 15 years old. It has been held by the superior Courts of the country that where a girl has attained puberty she is competent to contract marriage and the said Nikah is liable to be recognized. Reliance is placed on Mst. Zeenat Bibi and another Vs. The State and two others (2005 P.Cr.LJ. 1312), Mauj Ali vs. Syed Safdar Hussain Shah and another (1970 SCMR 437). It is also submitted that the witnesses of Nikah have later on been won over by the complainant therefore their affidavits denying the factum of Nikah are of no legal effect. Relying upon Mirza Allah Ditta alias Mirza Javaid Akhtar vs. Mst. Amna Bibi and another (2004 YLR 239) it is submitted that where both man and woman admit factum of Nikah and solemnizing marriage with each other, then requirement of producing two witnesses is not mandatory and presumption of truth would be attached to the Nikah which is acknowledged by both the spouses.
On the other hand learned counsel for the complainant has argued that Mst. Rabia Bibi is a minor girl of the age of 15 years. Her Nikah had been illegally got registered by concealing the fact declaring her to be 18 years of age; that the petitioner has not joined the investigation and that Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 would now fall under Section 375 P.P.C. i.e. Offence of rape and the same can be got amended. Hence no question arises for getting the F.I.R. quashed.
I have heard the learned counsel for the parties and gone through the record.
Criminal Law Amendment (Protection of Women) Act 2006 has been promulgated and brought on the Statute Book on 2.12.2006 and has come into force from the said date. By virtue of Section 17 of the Act, Section 11 of the Ordinance No. VII of 1979 has been omitted. Section 17 of the Criminal Law Amendment (Protection of Women) Act 2006 reads as under:
"Omission of Sections 10 to 16, 18 and 19, Ordinance VII of 1979. In the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979) Sections 10 to 16 and 18 and 19 shall be omitted."
As stated above the present occurrence took place on 15.12.2006 meaning thereby that till that date Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance had been omitted from the Statute book and was no more a part of the law.
Even as per contents of the F.I.R. the offence of abduction was not made out. Mst. Rabia Bibi is present in Court in person. She states that she had not been abducted by any person. Rather she affirms that she is sui juris and being pubert girl has contracted marriage with the petitioner. The contention of the learned counsel that Section 11 of Ordinance No. VII of 1979 can validly be amended with Section 375 P.P.C. is also of no avail. Section 375 P.P.C. deals with the cases of rape. The victim of this case i.e. Mst. Rabia Bibi who is present has not leveled allegation that she has been subjected to rape by any person. She is the star witness of the occurrence but she does not support the prosecution story. She urges that since being sui juris she has contracted Nikah with the petitioner of her own free will, therefore, her father being tired of her said action has got the impugned F.I.R. registered against the petitioner and others. In view of the statement of the alleged victim, provisions of either Section 11 of Ordinance No. VII of 1979 or Section 375 P.P.C. are not attracted. Since the occurrence had taken place on 15.12.2006 i.e. after 2.12.2006 when the new law had come into force which had omitted Section 11 of the Ordinance No. VII of 1979 from the Statute book, therefore, the impugned F.I.R. could not have been registered under the said section. If offence of Zina was alleged to have been committed, complaint of the same could only be filed in the Court as per Section 9 of the Criminal Law Amendment (Protection of Women) Act, 2006 and the impugned F.I.R. was not warranted by law. In fact the registration of case by the police would defeat the purpose of introducing the Amendment. Since the impugned F.I.R. was registered after enforcement of the Criminal Law Amendment (Protection of Women) Act 2006, the same is not warranted by law.
In view of the above discussion, this petition is allowed. Resultantly, F.I.R. No. 452 dated 15.12.2006 registered under Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 at Police Station Muzaffarabad Distt. Multan is quashed.
(N.F.) FIR quashed.
PLJ 2007 Lahore 584
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
MUHAMMAD ZAFAR YAB--Petitioner
versus
ADDITIONAL DITRICT JUDGE--Respondent
W.P. No. 6019 of 2004, decided on 28.2.2007.
Contract Act, 1872 (IX of 1872)—
----S. 28--Dissolution of marriage--Benefit of compromise/statement--Principle of estoppel would be fully attracted in the instant case--Petitioner would had the full opportunity of contesting the suit for dissolution of marriage and thereafter seeking its further remedies in accordance with law--Respondent made the statement and achieved the benefit of the statement and after filing of the suit for recovery of dowery article, in contrary to her undertaking in a Court of law, cannot be justified--Principle of estoppel will apply but Courts below have failed to look into such aspect of the case by not taking into consideration that respondent through her acceptance of the petitioner's statement and her statement had also used the process of law in getting benefit--It was a simple undertaking before a Court of law to avoid the rigorous of trial--It was a compromise effected between the parties on the basis of which respondent was granted the decree for dissolution of marriage by the Family Court.
[Pp. 587 & 588] A
Malik Muhammad Usman Bhatti, Advocate for Petitioner.
Rana Muhammad Shakeel, Advocate for Respondent No. 3.
Date of hearing: 28.2.2007.
Order
Mst. Robina respondent filed a suit for dissolution of marriage against the petitioner/defendant in the Court of learned Judge Family Court Lodhran. During trial of the said case, Muhammad Zafar Yab petitioner/defendant made an offer to the Court that if respondent/plaintiff agreed not to file any suit for recovery against him, he would be ready to give talaq to the plaintiff. This offer was accepted by the plaintiff. Both the parties made statements to this effect and on the basis of the said compromise, the learned trial Court vide order dated 3.10.2004 decreed the suit of the plaintiff.
Thereafter Mst. Robina filed a suit against the petitioner for recovery of dowry articles before the learned Judge Family Court Karor Pacca. The petitioner/defendant contested the suit and filed written statement in which he took preliminary objection that the suit was not maintainable because the plaintiff had obtained decree of khula on the basis of her statement made before the learned Judge Family Court that she will not file any suit for recovery against the petitioner. On the divergent pleadings of the parties, the learned trial Court framed the following issues:
Whether the plaintiff is entitled to recover the articles of dowry as mentioned in the plaint?
Whether plaintiff has no cause of action to file the instant suit and the same is liable to be dismissed?
Whether the instant suit is not maintainable in its present form.? OPD
Whether the instant suit is time barred? OPD
Whether the plaintiff is estopped to file the instant suit as per statement dated 3.10.2001 recorded before the Court of Senior Civil Judge/Judge Family Court? OPD
Whether the defendant is entitled to recover the special costs Rs. 25,000/-.
Relief.
At the trial the parties led their respective evidence and at the end of the trial the learned trial Court vide judgment dated 8.5.2004 decreed the suit in respect of all the articles of dowry mentioned in the plaint except golden ornaments.
Feeling aggrieved of the impugned judgment and decree Muhammad Zafar Yab petitioner/defendant filed an appeal in the Court of learned Addl. Distt. Judge Karor Pacca. Mst. Robina Begum also not feeling satisfied with the judgment, and decree of the learned trial Court, filed an appeal in the Court of learned Addl. Distt. Judge Karor Pacca. Both the appeals were consolidated and vide consolidated judgment dated 13.9.2004 the learned Addl. Distt. Judge accepted the appeal filed by Mst. Robina Begum and dismissed the appeal of the petitioner. Through this constitutional petition the petitioner has challenged the impugned judgments and decrees of both the learned Courts below.
Learned counsel for the petitioner has contended that Mst. Robina had obtained the decree for khula in the suit filed by her for dissolution of marriage on the condition that she will not file any suit for recovery against the petitioner. Therefore, now she cannot bring a second suit in view of the principle of estoppel; that no independent witness was produced by the plaintiff and she herself alongwith her father had entered into the witness box. They both are interest witnesses and their version need corroboration which was lacking in the present case and that both the learned Courts below had wrongly described the compromise as a contract reached between the parties in the Court on the basis of decree of khula and wrongly applied the provisions of Contract Act.
On the other hand learned counsel for the respondent has submitted that any contract made between the parties by which any party thereto was restricted from enforcing its right through Court is void and that even the respondent/plaintiff had vehemently denied in her cross-examination of having entered into any such agreement; that the petitioner himself had implied admitted that the respondent had brought dowry; that the learned trial Court had erroneously passed the decree to the extent of dowry articles amounting to Rs. 20,000/- and that the learned Addl. Distt. Judge Karor Pacca has rightly accepted the appeal of the respondent and rejected the appeal of the petitioner and that in writ jurisdiction factual controversy cannot be resolved, therefore, the present petition is not maintainable.
Arguments heard. Record perused.
Admittedly, both the parties i.e. the petitioner and Respondent No. 3, on 3.10.2001 appeared before the Judge Family Court, Lodhran. Initially, the petitioner recorded his statement as under:--
Thereafter, Respondent No. 2 got record her statement as below:--
Afterwards, the Judge Family Court, Lodhran passed for following order:--
Both the Courts below have taken the aforesaid statements to be a contract between the parties and have held that such like contracts having been entered into are against law & void ab-initio according to Section 28 of the Contract Act.
(R.A.) Petition accepted.
PLJ 2007 Lahore 588
Present: Mian Hamid Farooq, J.
SHAH AHMAD KHAN--Petitioner
versus
GOVERNMENT OF PUNJAB through Chief Secretary, Punjab and another--Respondents
W.P. No. 18810 of 2005, heard on 18.10.2006.
Appointments of Advisors--
----Public and tax payers money cannot be allowed to be swallowed by the persons unauthorisedly appointed--Validity--All the appointments of Advisors to Government of Punjab have been held to be illegal and unconstitutional and their appointments from the very inception were without jurisdiction--Advisors to Government of Punjab had no right to receive the salary and enjoy the perks from the Government exchequer and out of public money. [P. 619] R
Appointments of Advisors/Special Assistants--
----Appointment of convicted persons on the post of advisor-ship is in complete derogation of the findings of Supreme Court--Contempt was committed by them--Involvement of rowdyism--Validity--Notifications of appointment of convicted persons as Advisors to Government of Punjab were without jurisdiction illegal and without lawful authority and those persons were not eligible to be appointed to any public office or to any post of Provincial or Federation of Pakistan. [Pp. 622 & 623] U
Constitution of Pakistan, 1973--
----Arts. 199 & 98--Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance (LXXVI of 2002), S. 3--Constitutional petition--Appointment of Advisors/Special Assistants to Government by Chief Minister--Jurisdiction--High Court exercise of its Constitutional jurisdiction while examining the provisions of the Constitution and provisions of law has the power to declare that any act done by a person performing function in connection with affair of Federation, Provincial or a local authority has been done or taken without lawful authority and is of no legal effect. [P. 612] D
Constitution of Pakistan, 1973--
----Arts. 93(1)(2) & 57--Punjab Advisors (Salary, Allowances and Privileges) Ordinance, (LXXVII of 2002), S. 3--Appointments of Advisors to Government of Punjab--Void ab initio without jurisdiction illegal--Effect--Validity--Legal authority to appoint Special Assistant--Terms and conditions--Determination--President may on advice of the Prime Minister appoint not more than five advisors--Provisions of Art. 57 of the Constitution shall apply to Advisors and provides that P.M. Federal Ministers and the Attorney General shall the right to speak and otherwise take part in proceedings of either House, but shall not be entitled to vote--President of the country who enjoys vast powers under Constitution as compared to Chief Minister has no powers to appoint any Special Assistant or Advisor except to appoint not more than five Advisors and on the advice of Prime Minister.
[Pp. 613 & 614] F & G
Constitution of Pakistan, 1973--
----Arts. 98(2)(b) & 199(1)(a)--Punjab Advisors (Salary, Allowances and Privileges), Ordinance, 2002, S. 3--Writ of quo warranto--Functions of subordinate authorities--Writ jurisdiction--A person must be aggrieved and no such restriction could be placed which is in fact contemplated under Art. 199(1)(a) of the Constitution of Pakistan and accordingly any person irrespective of the fact whether he is an aggrieved person can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of public office by a person without having any lawful authority. [Pp. 609 & 610] A & B
Duty Bound--
----Appointment of Advisors to Chief Minister--Bureaucracy--No Government functionary ever took notice--Chief Secretary Punjab before issuing notifications of appointments of Advisors/Special Assistants was duty bound to bring fact to the notice of Chief Minister and apprised him about legal complications. [P. 622] T
Extra Power of Chief Minister--
----Spirit of Constitution--Chief Minister of Province can exercise more and extra powers than President of Pakistan which if allowed would be against the letter and spirit of Constitution. [P. 617] N
Locus Standi--
----Aggrieved person--Obligation to decide question of law--Principle--High Court is under legal and Constitutional obligation to decide important question of law regarding provisions of the Constitution and such sacred duty cannot be allowed to be sacrifice at the alter of mere technical objection such like "locus standi" or "aggrieved person" or incompetency of the petition. [P. 613] E
Punjab Advisors (Salary, Allowance and Privileges) Ordinance, 2002 (LXXVII of 2002)--
----S. 3--Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, (LXXVI of 2002), S. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointments of Advisors/Special Assistants to Government of Punjab by Chief Minister--Validity--Legal authority to appointment--Question of law--High Court cannot decide the question of law of highest importance and is debarred from examining the notification for appointment of the Advisors, who were not arrayed in petition. [P. 612] C
Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (LXXVII of 2002)--
----S. 2(a)--Words and Phrases--Defines the words "Advisor" to mean a person appointed as Advisor to Chief Minister under Ordinance, 2002. [P. 615] J
Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (LXXVII of 2002)--
----S. 3--Rules of Business (Punjab), 1974, R. 6-A--Constitution of Pakistan, 1973, Arts. 140(2) & 199--Contention--Appointment of Advisors to Government of Punjab--Legality--Evolved a new term--Accommodate, oblige and fit in certain influential persons--Legality--Chief Minister being conscious of the legal position that he has no jurisdiction as Advisors to Government of Punjab, in order to accommodate, oblige and fit in certain influential persons, has favorites, blue-eyed boys and the persons who have contacts in Government hierarchy--Held: Chief Minister after finding him handicapped in view of Section 3 of the Ordinance has find a novel way though illegal and unconstitutional, to appoint certain persons of his own choice on higher posts with salary and perks under nomenclature of unprecedented term Advisors to Government of Punjab. [P. 618] P
Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (LXXVII of 2002)--
----S. 3--Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, (LXXVI of 2002), S. 3--Rules of Business (Punjab), 1973, R. 6-A--Competent to five Advisors and five Special Assistants--Legal authority--Validity to appoint beyond five--Chief Minister in exercise of his power is within his legal authority and is competent to appoint not more than five Advisors and five Special Assistants to Chief Minister--Held: Appointment of five Advisors and five Special Assistants to C.M. are legal within competence and legal authority of the Chief Minister and if the Advisors/Special Assistants are appointed beyond that number that appointment will be deemed to be illegal and without jurisdiction. [P. 620] S
Rules of Business (Punjab), 1974--
----Rr. 2 & 6-A--Punjab Advisors (Salary, Allowances and Privileges) Ordinance, (LXXVII of 2002), S. 3--Constitution of Pakistan, 1973, Art. 139(3)--Governor empowered to make rules--Appointment of Advisors and Special Assistants--Governor has been empowered to make rules but he could make those rules which are for allocation and transaction of the business of Provincial Government--Governor Punjab in exercise of power under Art. 139(3) of the Constitution made rules known as The Punjab Government Rules of Business, 1974 under R. 6-A, the Chief Minister has been given power to appoint Advisors and Special Assistants to Chief Minister, however, he was not authorized even under said rule to appoint Advisors to Government of Punjab. [P. 615] H & I
Rules of Business (Punjab), 1974--
----R. 6-A--Punjab Advisors (Salary, Allowances and Privileges Ordinance, (LXXVII of 2002), S. 3--Constitution of Pakistan, 1973, Arts. 93 & 199--Appointment Advisors to Government of Punjab--Void ab initio without jurisdiction illegal and no legal effect--Validity--Legal authority to appoint Special Assistants--Neither the Chief Minister nor the Governor of Punjab has been empowered to appoint Advisors to the Government of Punjab, Chief Minister thereby curtailing the powers of the Chief Minister to appoint not more than five Advisors/Special Assistants--Order to restrict the power of Chief Minister to appoint any number of Advisors to Chief Minister as provided under Rule 6-A of Rules of Business Punjab, 1974, appear to be that power of Chief Minister to appoint Advisors should be in consonance and harmonize with Art. 93 of the Constitution.
[Pp. 616 & 617] L & M
Rules of Business (Punjab), 1974--
----R. 6-A--Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002, S. 3--Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002, S. 3--Notification No. SO/LCAB (1)2-3/03(a)--Appointment Advisors to Government of Punjab--Illegal and without jurisdiction--Neither the Constitution nor the Punjab Government Rules of Business, 1974 nor any other law empowers and authorizes the Chief Minister/Governor of Punjab to appoint Advisors to the Government of Punjab, therefore, appointment of all Advisors to Government is held to be illegal and without jurisdiction--Notification of their appointments are equally without jurisdiction and hereby quashed. [P. 619] Q
Words and Phrases--
----"Advisor to Government of Punjab"--The word Advisor to Government of Punjab are included in the terms "Advisors and Special Assistants to the Chief Minister used in Rule 6-A of the Rules of Business (Punjab), 1974. [P. 617 O
Words and Phrases--
----Definition of the word "Special Assistant" a person appointed as Special Assistant to the Chief Minister under Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002.
[P. 616] K
2004 SCMR 1299; PLD 1969 SC 42; PLD 1996 SC 324;
2000 SCMR 1969 & PLD 1995 SC 530 rel.
2000 SCMR 1969; 2004 SCMR 1299; PLD 1989 SC 166; 1984 SCMR 549; 2001 SCMR 1822; 2006 PLC (CS) 221; PLD 2005 SC 430;
PLD 2005 SC 530; PLD 1997 SC 582 and PLD 1994 SC 894 ref.
Mr. Shahid Maqbool,alongwith Petitioner.
Mr. Rizwan Mushtaq, Asstt. A.-G. for Respondent No. 1 alongwith Saghir Ahmed, S.O. (Cabinet) S&GAD.
Mr. Muhammad Shahzad Shaukat, for Respondent No. 2.
Mr. Munib Iqbal for Farrukh Mehmood Shah.
Mr. Taseen Gardezi for Makhdoom Ali Akbar and Makhdoom Iftikhar Hussain.
Alamgir for Sabah Sadiq, Kamil Ali Agha, Mian Abdul Sattar, Ch. Muhammad Siddiqui, Rahat Maqsood, Raja Muhammad Nasir, Malik Khalid Mehmood Waran, Hafiz Iqbal Ahmed Khan Khakwani.
Rana Muhammad Zahid for Asghar Hayat Kalyaf, Sadia Mobashar and Rana Ijaz Ahmed Khan.
Mr. Umer Zeshan for Dr. Javed Asghar and Dr. Faiza Asghar.
Mr. Kashif Nawaz Bajwa for Dr. Sohail Zafar Cheema.
Mr. Ahsan Boon for Shaukat Ali Laleeka.
Dates of hearing: 26.9.2006, 5, 9, 16 and 18.10.2006.
Judgment
Following are the detailed reasons for the short order dated 18.10.2006, which reads as follows:--
"I have heard the learned counsel for the petitioner, learned counsel representing different Advisors and the learned Assistant Advocate-General. After taking into consideration issues involved in the case, through the instant short order, which will be followed by detailed reasons later, it is held and directed as under:--
(i) As neither the Constitution of Islamic Republic of Pakistan, 1973 nor The Punjab Government Rules of Business, 1974 nor any other law empowers and authorizes the Chief Minister/Governor of Punjab to appoint Advisors to Government of Punjab, therefore, all the appointments of Advisors to Government of Punjab, made by the Chief Minister/Governor of Punjab, are hereby declared to be void ab initio, without jurisdiction, illegal and having no legal effect. Resultantly, Notifications issued by the Government of Punjab for appointment of Advisors to the Government of Punjab, are equally without jurisdiction, thus, cancelled, annulled and quashed.
(ii) Consequent to the above, all the Advisors to Government of Punjab shall cease to hold offices of Adviors-ship forthwith and the Chief Secretary, Government of Punjab is directed to immediately withdraw all the privileges and perks, attached to those offices.
(iii) Appointments of Mian Muhammad Munir and Akhtar Rasool Chaudhry (the respondents), as Advisors to the Government of Punjab, are also held to be void, illegal, without jurisdiction and having no legal effect on the grounds firstly as held in para (i) above and secondly that these persons were convicted by the Honourable Supreme Court of Pakistan in the case reported as Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others (2000 SCMR 1969); resultantly, on both the aforenoted counts notifications of their appointments as Advisors to the Government of Punjab are declared to be without jurisdiction, illegal and without lawful authority; they shall immediately cease to hold offices of Advisor-ship and the Chief Secretary, Government of Punjab, is directed to forthwith withdraw all the privileges and perks, attached to the offices.
(iv) As aforementioned two persons were convicted by the Hon'ble Supreme Court of Pakistan, therefore, in future they shall not be appointed to any of the Public Office/Advisor or Special Assistant to Chief Minister and to any post directly or indirectly under the Provincial or Federation of Pakistan under any nomenclature.
(v) Rule 6-A of the Punjab Government Rules of Business, 1974 was validly made by the Governor of Punjab in exercise of his powers conferred upon him under Article 139(3) of the Constitution of Islamic Republic of Pakistan.
(vi) The Chief Minister of Punjab, in exercise of his powers under Rule 6-A of the Punjab Government Rules of Business, 1974, read with Section 3 of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVII of 2002), is competent and empowered to appoint "Advisors to the Chief Minister" but not more than 5 Advisors and, thus, appointment of Advisors, if any, over and above the said number shall be deemed to be void, illegal and without jurisdiction.
(vii) Similarly, The Chief Minster of Punjab, in view of Rule 6-A of the Punjab Government Rules of Business, 1974, read with Section 3 of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVI of 2002), is within his legal authority to appoint not more than 5 "Special Assistants" and, thus, appointment of Special Assistants, if any, over and above the said number shal be deemed to be void, illegal and without jurisdiction."
Shah Ahmad Khan, the petitioner, filed the present constitutional petition, initially, against Government of Punjab (Respondent No. 1) and Mian Muhammad Munir (Respondent No. 2), thereby challenging Notification No. SO (CAB II) 2-2-/03 dated 13.11.2004, whereby Mian Muhammad Munir was appointed advisor to the Government of Punjab, with the prayer that the same be withdrawn. It was, inter alia, pleaded in the petition that the said respondent is not a highly qualified person; has no extraordinary specialization in any field; he is hardly a graduate and is also involved in criminal cases. It was also stated that Mian Muhammad Munir was convicted by the Hon'ble Supreme Court of Pakistan for raising banners and slogans against the Judiciary, and disturbing the proceedings of the Court and he was sentenced to undergo simple imprisonment for one month and a fine of Rs. 5000 or in default thereof to suffer simple imprisonment for further period of one month. Reference was made to the judgment reported as Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others (2000 SCMR 1969). It was the case of the petitioner that such a person is not entitled to hold any public job.
Government of Punjab submitted the parawise comments to the constitutional petition and besides raising preliminary objections, it was, inter alia, pleaded that Respondent No. 2 has risen from the position of Union Councillor to M.N.A.; he is a known political worker and that Respondent No. 2 is not presently appointed as advisor to the Chief Minister rather he was appointed as Advisor to the Government of Punjab in honorary capacity. The case of the Government of Punjab is that the Chief Minister, being the competent authority, has appointed Respondent No. 2 as Advisor to the Government of Punjab and the Chief Executive of the Province has appointed him in public interest. It appears appropriate to reproduce paras 6, 7 and 8 of the parawise comments, which reads as follows:--
"(6) Denied to the extent that Respondent No. 2 is not presently appointed/posted as Advisor to the Chief Minister Punjab, rather according to notification dated 15th March, 2005 (Annex. B) he was appointed as Advisor to Government of Punjab in an honorary capacity.
(7) The Chief Minister Punjab being the competent authority has appointed Respondent No. 2 as Advisor to Government of Punjab keeping in view the vast political experience of the incumbent.
(8) Denied. The appointment of Respondent No. 2 has been made by the Chief Executive of the Province in public interest. It is however submitted here for information that Respondent No. 2 had not assumed the charges of the post of the Advisor to the Government of the Punjab in pursuance of Government of the Punjab, S&GAD's Notification No. S.O (CAB-II) 2-3/03 (A) dated 13-11-2004 (Annex). Instead, Respondent No. 2 willingly offered his services to work an honorary capacity and as such the notification under reference, was revised and reissued on 15.3.2005 (Annex. B)."
Later on, upon an application (C.M. No. 515 of 2006), filed by the petitioner, he was allowed to amend the constitutional petition, so as also to challenge the latest Notification No. SO/(CAB II) 2-3/03(A) dated 15-3-2005 qua the appointment of Mian Muhammad Munir. Pursuant thereto amended petition was filed.
After hearing the learned counsel for respondents Nos. 1 and 2, the petition was admitted for regular hearing, and operation of latest notification was suspended till the final decision of the constitutional petition, vide order dated 16-3-2006, which reads as follows:--
"16-3-2006. M.Shahid Maqbool, Advocate for the Petitioner. Muhammad Hanif Khatana, Addl. A.G. for Respondent No. 1.
Shehram Sarwar Ch. Advocate for Respondent No. 2.
Learned counsel for the petitioner, while referring to judgment reported as State v. Tariq Aziz M.N.A. and 6 others (2000 SCMR 751), states that Respondent No. 2, alongwith other persons, was convicted by the Hon'ble Supreme Court of Pakistan for committing contempt of Court, therefore, he could not have been appointed as Advisor. He adds that no Article of Constitution empowers either Chief Minister or Punjab Government to appoint Advisor to the Government of Punjab. Learned Law Officer and the learned counsel appearing on behalf of Respondent No. 2 could not emphatically refute the said contentions.
After hearing the learned counsel for the parties, I feel that the contentions raised by them need deeper consideration.
Admit. Notice.
Since the respondents are represented by their learned counsel, therefore, there is no need to issues any formal notice to them.
C.M. No. 516/2006
Operation of Notification No. SO(CAB-II) 2-3/03(A) dated 15.3.2005 shall remain suspended till the final decision of the constitutional petition. The Chief Secretary, Government of Punjab/competent authority is directed to immediately withdraw all the privileges and perks attached to the said office."
"13-4-2006. Shahid Maqbool Sheikh, Advocate for the petitioner.
Muhammad Hanif Khatana, Addl. A.G. for Respondent No. 1 alongwith Saghir Ahmad, S.O. (Cabinet), S& GAD.
Shehzad Shaukat and Shehram Sarwar Chaudhary, Advocates for Respondent No. 2. Ch. Aitzaz Ahsan, Advocate.
This Court, on 27-3-2006, directed the Chief Secretary, Government of' Punjab to furnish, to this Court, the list of Advisors to Chief Minister/Government of Punjab and the details of monthly expenditures being incurred upon them. Respondent No. 1, in partial compliance with the said order, has furnished the following list of Advisors to Chief Minister and to Government of Punjab alongwith its written statement:-
List of Advisors to Chief Minister, Punjab
Col. (Retd.) Shujat Ahmad Initiatives in Food Sector
Khan (3.1.2003) Removal of Encroachment
Maj., (Retd.) Asghar Hayat Implementation of new
Kalyar (3.1.2003) initiatives including the Punjab
Marriage Act, 2003 and Punjab
Juvenile Smoking
Mr. Naeem Raza (3.1.2003) Punjab Marriage Act, 2003
Rana Ijaz Ahmad Khan (29.1.2003) Law and Human Rights
Malik Khalid Mehmood Waran 0698-7247
(24.11.2004)
Ms. Sabab Sadiq Chairperson (PSSB).
List of Advisors to Government of Punjab
Hafiz Muhammad Tahir Promotion of Religious Harmony
Ashrafi (25.4.2000)
Dr. Javaid Asghar (4.4.2003) New Health Initiative
(Telemedicine)
Dr. Faiza Asghar (4.4.2003) Child's Right
Mrs. Sadia Shahzad (10.9.2003) Teacher's Training Programme
Mr. Kamil Ali Agha Matters relating to Chief
(27.12.2003) Minister's Secretariat
Ch. Muhammad Siddique
(27.12.2003)
Mr. Rahat Quddusi
(27.12.2003).
Mr. Akhtar Rasool Chaudhary
Mian Muhammad Munir
Makhdoom Syed Iftikhar
Hussain Gillani (24.11.2004).
Sardar Allah Yar Haraj
Qaiser Amin Butt.
Haji Muhammad Hanif
Mr. Shaukat Ali Laleka
Pir Mukhtar Ahmed
Raja Muhammad Nasir
Mian Abdul Sattar
Farrukh Mehmood Shah, (Media Advisor).
Let notices be issued to aforesaid Advisors for 20-4-2006, except Mian Muhammad Munir, (because notification qua his appointment had already been suspended by this Court, vide order dated 16-3-2006) as to show cause under what authority of law they claim/hold the offices of Advisors to Chief Minister of Punjab and Government of Punjab.
I find that other portion of order dated 27-3-2006, qua details of monthly expenditures being incurred upon the Advisors, has not been complied with. Learned Law Officer is directed to provide the said details on or before the date fixed in this case.
M/s. S.M. Zafar, Abid Hassan Minto, Ch. Aitzaz Ahsan, Dr. Khalid Ranjha and Hamid Khan, Advocates are appointed as amicus curae, who shall assist this Court on the important legal question of public importance involved in this case.
Case to be listed on 20-4-2006."
On 30-3-2006 written statement was filed on behalf of Mian Muhammad Munir, thereby raising number of preliminary objections, viz. (i) the constitutional petition is not maintainable; (ii) if the writ petition is considered to be a writ of quo warranto, the same is incompetent as the respondent does not hold public office; (iii) notification of appointment of the said respondent as Advisor cannot be questioned by way of constitutional petition; (iv) respondent's appointment as advisor is purely on honorary basis; (v) the petition is tainted with mala fide as Mian Muhammad Munir was appointed as arbitrator in a dispute between the writ petitioner and his family members, wherein verdict went against the petitioner and that (vi) this Court has no jurisdiction to issue writ in exercise of its suo motu powers. On merits, it was submitted that the petitioner was elected as MNA twice, he had been involved in politics tor a period of more than 30 years and his vast experience as politician led to the appointment as Advisor and that the respondent holds MBA Diploma from Canada, however, conviction of Mian Muhammad Munir by the Honourable Supreme Court was not denied. It was added that "The answering respondent has already served out his sentence".
On the next date, Rashdeen Nawaz Kasuri, Advocate appeared for Ch. Akhtar Rasool, who was also convicted by Hob'ble Supreme Court of Pakistan in the case of Shahid Orakzai (ibid). After hearing his learned counsel, this Court, after finding that the case of Ch. Akhtar Rasool is at par with Mian Muhammad Munir, also suspended the notification for appointment of Ch. Akhtar Rasool as Advisor to the Government of Punjab. Office was directed to issue notices to all other Advisors.
On 20-7-2006, after hearing the learned Law Officer and the learned counsel of Respondent No. 2, this Court directed the office to issue notices to all the Advisors/Special Assistants. It would be advantageous to reproduce interim order dated 20-7-2006, which reads as follows:--
"20-7-2006. M. Shahid Maqbool Sheikh, Advocate for the Petitioner.
Muhammad Hanif Khatana, Addl. A.G. for Respondent No. 1 alongwith Saghir Ahmad, S.O. (Cabinet) S&GAD.
Muhammad Shehzad Shaukat, Advocate for Respondent No. 2.
Nemo for Respondent No.3.
Learned Law Officer, with reference to portion of preceding order, submits that although Government of Punjab, which issued the notifications under challenge, is defending its notifications issued in favour of the Advisors, yet they are entitled to show-cause notices. Muhammad Shahzad Shaukat, Advocate states that since this petition is not in the nature of "writ of quo warranto", and only notifications and appointments of Advisors have been challenged, therefore, there is no need to issue any notices to the Advisors, moreso when the Government of Punjab had continuously been represented by the learned Law Officer and is defending the notifications.
After hearing the learned counsel, I am inclined to summon the Advisors/Special Assistants, lest it be complained that they have been condemned unheard. Office is thus directed to issue notices to all the Advisors/Special Assistants, for 26-7-2006, which shall be served through Secretary (S&GAD).
In obedience to the preceding order, learned Addl. Advocate-General has placed on record the lists of Provincial Ministers, Parliamentary Secretaries and Special Assistants. The same is allowed to be placed on record. Its copy has been handed over to the learned counsel for the petitioner.
Learned Law Officer when asked to explain as to why, during the pendency of the present petition, Hafiz Muhammad Iqbal Khan Khakwani was appointed as Advisor, states that Ch. Naeem Raza resigned from his office, therefore, to fill the vacant office, Hafiz Muhammad Iqbal Khan Khakwani was appointed Advisor to the Chief Minister.
Present constitutional petition was instituted challenging the appointments of Advisors to the Chief Minister/Government of the Punjab on the grounds that two of them were convicted by the Hon'ble Supreme Court of Pakistan in a contempt case and that the appointments of these Advisors are incompetent and unconstitutional, inasmuch as none of the provisions of the Constitution of Islamic Republic of Pakistan empowers the Chief Minister/or other authority to appoint Advisors to the Government of Punjab/Chief Minister. This Court after calling for comments from the Government of the Punjab, and hearing all concerned, suspended the notification of appointment of Mian Muhammad Munir, vide order dated 16-3-2006. Subsequently, notification for appointment of Ch. Akhtar Rasool was also suspended vide order dated 21-4-2006. Undeniably, the appointment of Hafiz Muhammad Iqbal Khan Khakwani, as Advisor, was made on 2-4-2006, when the instant constitutional petition, involving important legal questions and constitutionality of the appointments of Advisors, was pending. It appears that the latest appointment was made in complete defiance, disregard and disrespect to the pending proceedings and this Court. It is true, as canvassed by the learned Law Officer, that no injunctive order was passed restraining the Government of Punjab for further appointing Advisors, however, propriety demands that Provincial Executives should as a mark of respect to this Court, have waited for the decision of the case. No "special circumstances" for this hasty and uncalled for action have been put forth by the learned Law Officer. It is unfortunate to observe that the Chief Minister of the Province has passed the order appointing Hafiz Muhammad Iqbal Khan Khakwani as Advisor.
It may be noted that the injunctive order was not passed with the genuine and reasonable expectation that the person/persons, at the helm of the affairs, would respect the pendency of the proceedings, but to the utter dismay of this Court, the concerned functionaries of the State have tried to lower the prestige, dignity and honour to this Court, which cannot be allowed to do under any circumstances.
In the above perspective, I have refrained myself from issuing contempt notices to the concerned person/persons, who have deliberately tried to frustrate the Court proceedings, however I am persuaded to pass an injunctive order. In view whereof, Government of Punjab is restrained from appointing any further advisor to the Government of Punjab/Chief Minister and the Chief Secretary is prohibited from issuing any notification qua such appointment if made, during the pendency of this petition.
It is high time to remind the bureaucracy of this country that it, civil servant and functionaries of the State are not bound to obey and comply with illegal, invalid, incompetent and unconstitutional orders passed by the Chief Minister/Ministers and are not obliged under the law to bow before the will of superiors Government servant is expected to only comply with those orders/directions of his superiors, which are legal and competently passed. Reference can be made to the judgment passed by the honourable Apex Court of the Country in a case reported as Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530. It appears appropriate to reproduce a portion of the said judgment, which, in fact, states the duties of a bureaucrat:--
".........We need not stress here that a tamed and subservient bureaucracy can neither be helpful to government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as Incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representative the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierachical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action.......".
Hon'ble Supreme Court of Pakistan in a recent judgment reported as Secretary, Education, N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17, while relying upon the case of Zahid Akhtar (ibid), has held that the respondent cannot be punished for the reason that he had refused to act illegally, rather his, normal courage should be appreciated.
Case to come up on 26-7-2006 for hearing the main petition.
The learned Law Officer is directed to communicate today's order immediately to the Chief Secretary and to the relevant quarters.
Office shall transmit a copy of today's order to the Chief Secretary, Government of Punjab, who is directed to circulate it to all the Secretaries to Government of Punjab for their guidance."
Aforenarrated order dated 20-7-2006 was challenged by the Government of Punjab through an Intra Court appeal before the Division Bench of this Court, however, on the asking of this Court, it was reported on every subsequent dates of hearing by the learned Law Officer that no injunctive order, either suspending order dated 20-7-2006 or staying the proceedings of this Court, was passed. It may be noted that even before pronouncement of short order, Rizwan Mushtaq, Assistant Advocate-General was asked as to whether proceedings of this Court have been stayed, his reply was in negative. It is settled law that mere pendency of appeal shall not operate as stay of proceedings.
In obedience to the notices issued to Advisors/Special Assistants. Almagir and Jehangir A. Jhoja, Advocates entered appearance to represent some of them, however, others choose to remain absent and resultantly notices were issued to the absentees vide order dated 6-9-2006 in the following manner:--
"(i) Copies of the notices shall be affixed at outer gates and walls of Civil Secretariat Punjab, Lahore and Chief Minister Secretariat, Club Road, GOR I, Lahore and
(ii) Notices shall be published in daily Newspapers i.e. "Nawa-i-Waqt" and "Dawn" for 26-9-2006."
Publication was effected in aforenoted two daily newspapers of their prints dated 12-9-2006. Additionally Deputy Secretary Cabinet addressed letter dated 18-9-2006 (copy whereof was placed on record) to all the Special Assistants/Advisors to Chief Minister and Advisors to the Government of Punjab, thereby advising them to appear before this Court on 26-9-2006. Pursuant to the above, all the Advisors/Special Assistants were represented through their learned counsel.
Since important legal questions were involved, therefore, this Court, vide order dated 13-4-2006, appointed M/s. S.M. Zafar, Abid Hassan Minto, Ch. Aitzaz Ahsan, Dr. Khalid Ranjha and Hamid Khan, Advocates to assist this Court, however, none of them except Ch. Aitzaz Ahsan, Advocate (who appeared once or twice) appeared to assist this Court.
I have heard, at length, the learned counsel for the petitioner, learned counsel representing Advisors/Special Assistants and the learned Assistant Advocate-General. It may be noted that at initial stages, learned Advocate-General argued the matter and highlighted the importance of rule 6-A of Rules of Business and Section 3 of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVII of 2002) and Punjab Special Assistant (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVI of 2002).
Learned counsel for the petitioner has contended that Mian Muhammad Munir and Akhtar Rasool were convicted by the Honourable Supreme Court of Pakistan in the case reported as Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969, therefore, they are not eligible to be appointed as Advisors to the Chief Minister Government of Punjab. He, while referring to para. 50 (page 2058) of the said judgment, stated that they were convicted under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). He has referred to Articles 130 and 139(3) of the "Constitution" to contend that "Constitution" does not empower the Governor/Chief Minister to appoint Advisors to the Chief Minister/Government of Punjab and the authority to make such appointments is absent in the "Constitution". In this regard he has pointed out to Article 93 of the "Constitution", which states that the President of Pakistan may, on the advice of the Prime Minister, appoint not more than five Advisors. Learned counsel has lastly submitted that even Rules of Business, 1974 are subject to the "Constitution". He has relied upon the case of Hakim Khan v. Nazeer Ahmed Lughmani and others 1990 MLD 89.
Alamgir, Advocate, representing Sabah Sadiq, Kamil Ali Agha, Mian Abdul Sattar, Ch. Muhammad Siddique, Rabat Maqsood, Raja Muhammad Nasir, Malik Khalid Mehmood Waran, Hafiz Iqbal Ahmed Khan Khakwani, states that Sabah Sadiq was appointed as Chairperson of Social Services Board under the provision of Punjab Social Services Board (Amendment) Act, 2004 (Act XXII of 2004) with the powers of Advisor to the Chief Minister, Kamil Ali Agha, though appointed as Advisor but he resigned on 2-6-2006; Raja Muhammad Nasir was appointed as Advisor to Government of Punjab, vide notification dated 6.12.2005, but he did not assume the office; Ch. Muhammad Siddique and Rahat Maqsood Qadusi, were initially appointed as political assistants vide notification dated 27-12-2003, but they were, subsequently, notified as special assistants and now they are performing their duties as Advisors to Government of Punjab and Malik Khalid Mehmood Waran and Hafiz Muhammad Iqbal Khakwani, were appointed as Advisors to Chief Minister vide notification dated 19-5-2006. Alamgir has contended that Rules of Business, 1974 were validly framed by the Governor in exercise of powers under Article 139(3) of "Constitution" and Rule 6-A empowers Chief Minister Punjab to appoint any number of his Advisors and Special Assistants. He has further submitted that "service of Pakistan" as defined under Article 260 of the "Constitution" does not include Special Assistant to Chief Minister and Advisor to Chief Minister. He has also referred to Punjab Advisor's (Salary Allowances and Privileges) Ordinance 2002 and Punjab Special Assistant (Salary Allowances and Privileges) Ordinance 2002 and Article 63(b) of the "Constitution".
Shehzad Shaukat, Advocate, representing Respondent No. 2 (Mian Muhammad Munir), has submitted that office of Advisor to the Chief Minister and Government of Punjab is not a "public office", which term means an office which confers certain powers to a particular person, but Mian Muhammad Munir was appointed as Advisor to Government of Punjab to have his advice on certain special issues. He has further stated that some of the Advisors declined to receive any remuneration and a few of them are receiving salary from the public exchequer. He has relied upon the judgments reported as Munir Ahmad v. Returning Officer, Karachi and others (PLD 1966 Karachi 1), Dr. Bushra Ashiq Siddiqui v. Muhammad Aslam (1989 MLD 1351) and Allah Ditta v. Muhammad Munir and others (PLD 1966 Lahore 770). He has added that although Mian Muhammad Munir was convicted in contempt case yet his conviction does not debar him from holding the office of the Advisor to the Government of Punjab. His next contention is that Mian Muhammad Munir was appointed as arbitrator in a dispute between the petitioner and his brothers and as arbitration award went against him, therefore, the present petition is tainted with mala fide. He has relied upon the cases of Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42), Dr. Azeem ur Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299) and Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan (PLD 1989 SC 166). He has lastly submitted that writ of quo warranto is not maintainable and that the petitioner has no "locus standi" to file the present petition and that writ cannot be issued by this Court suo motu. He has referred to the judgments reported as Akhtar Abbas and others v. Nayyar Hussain (1982 SCMR 549), Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCMR 1822), State v. Tariq Aziz M.N.A and 6 others (2000 SCMR 751) and Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others (2000 SCMR 1969).
Tehseen Gardizi, Advocate, representing Makhdoom Ali Akbar and Makhdoom Iftikhar Hussain submitted that Chief Minister is the competent authority to appoint five Special Assistants in view of the provisions of Punjab Special Assistants (Salary, Allowance and Privileges) Ordinance 2002. He has added that no financial advantage was received by these two persons.
Munib Iqbal, Advocate on behalf of Farrukh Mehmood Shah submitted that his client was appointed as Media Advisor to the Government of Punjab, vide notification dated 8th March, 2006 and that he accepted the appointment in good faith. However, he admitted that Punjab Advisors (Salary, Allowance and Privileges) Ordinance, 2002 and Rules of Business 1974 are silent regarding the appointment of Advisors to the Government of Punjab.
Umer Zeshan, Advocate representing Dr. Javed Asghar and Dr. Faiza Javed, has supported the appointments of his clients as Advisors to the Government of Punjab. He has added that these persons are highly qualified and experts in their respective fields. He has further submitted that Dr. Asghar Javed has introduced the emergency ambulance services in Punjab Province while Dr. Faiza Javed is U.S. Based Certified Child Specialist and she has an immense knowledge of children's issues.
Kashif Nawaz, Advocate, on behalf of Dr. Zafar, while referring to Article 260 of the Constitution and Section 3 of Punjab Special Assistant (Salary, Allowances and Privileges) Ordinance, 2002 has justified the appointment of Dr. Zafar and vehemently urged that his client has introduced new concepts of rural cottage industries, which would generate three million jobs in the Punjab Province.
Ahsan Bhoon, Advocate for Shaukat Ali Laleeka, has contended that no allegations have been levelled against Advisors in the constitutional petition and appointments of all the Advisors to Chief Minister/Government of Punjab have not been challenged. He has referred to Articles 129,130, 137 and 139(3) of the "Constitution" to contend that cabinet ministers act in aid and advice the Governor in exercise of his functions and it includes the Advisors. He has submitted that all the executive actions and administrative affairs are to be taken in the name of Governor and validity of such orders cannot be called in question before any Court of law. He has further submitted that Rules of Business 1974 were framed under Article 139(3) of the "Constitution" and that this Court has no jurisdiction to entertain this petition. His next contention is that appointments . of Advisors to Chief Minister/ Government of Punjab were made under Rule 6-A of Rules of Business, 1974, which authorizes the competent authority to appoint any number of Advisors and it is the prerogative of the competent authority. He referred Article 248 of the "Constitution" to contend that the said Article gives protection to the acts of the Chief Minister. He has further submitted that the petitioner is not an "aggrieved person" as none of his fundamental rights was infringed rather this litigation is in violation of the fundamental rights. He has referred to Article 260 to contend that Chief Minister can appoint Advisors and that Advisors are excluded from the definition of the word "service of Pakistan".
Rana Zahid, Advocate, representing Rana Ijaz Ahmed, Asghar Hayat Kalyar, Sadia Mobashar and Fawad Hussain, stated that none of the paras of the petition relate to his four clients. He has further submitted that Article 139(2) of the "Constitution" is to be read with Article 129 and that Rule 6-A of Rules and Business, 1974 authorizes the Governor/Chief Minister to appoint special assistants, who are experts and specialists in their respective fields. He has referred to Articles 93 and 57 of the "Constitution". He has added that writ petition is not maintainable.
At initial stages of the case Aftab Iqbal Chaudhry, learned Advocate-General projected Punjab Government's viewpoint, however, now Rizwan Mushtaq, Assistant Advocate-General has thoroughly argued the matter. He has submitted that (i) this writ petition is not maintainable having been filed by an incompetent person as the present petition does not fulfil the requirements and preconditions, which are necessary for entertaining a writ of quo warranto. Reliance has been placed on A. Ramachandran v. A. Alagiri-swami, Govt. Pleader High Court, Madras and another (AIR 1961 Madras 450) and Amarendra Chandra v. Narendra Kumar Basu and others (AIR 1953 Calcutta 114) (ii) Advisors are not holding public office, he has cited Allah Ditta v. Muhammad Munir and others (PLD 1966 Lahore 770); (iii) the appointments of Advisors by Government is matter of policy, which cannot be subjected to judicial review as it is within the exclusive domain of the executive and legislature, he relied upon Nazakat Abbas and 20 others v. Punjab Public Service Commission through Secretary and another (2006 PLC (CS) 221); (iv) Advisors to the Government of Punjab are not Advisors to any particular department but particular functions have been assigned to them; (v) Advisors to the Government of Punjab are in fact Advisors to Chief Minister and thus they could be appointed under Rule 6-A of Rules of Business; (vi) any number of Advisors could be appointed by the Chief Minister in exercise of powers under Rule 6-A of Rules of Business, which were framed under Article 139(3) of the "Constitution"; Scope of inquiry should be limited to Respondent No. 2 and it should not be extended in exercise of suo motu powers. He has added that although there is no provision in the "Constitution" for the appointment of ambassadors yet they are appointed by the Federal Government, because foreign affair is the subject, on which the Federal Government can legislate and that an Executive Authority of a Province has the powers to appoint Advisor. However, he concedes that neither the "Constitution" nor Rules of Business empowers the Chief Minister Punjab to appoint Advisor to Government of Punjab. He has further relied upon following judgments:--
(i) Messrs Gadoon Textile Mills Ltd. and another v. Chairman, Area Electricity Board, WAPDA (PESCO), Peshawar and others (PLD 2005 SC 430)
(ii) Akhtar Abbas and others v. Nayyar Hussain (1982 SCMR 549 at page 550).
(iii) Mirza Shaukat Baig and others v. Shahid Jamil and others (PLD 2005 SC 530).
(iv) Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582).
(v) Messrs V.N. Lakhani & Company v. M.V. Lakatoi Express and 2 others (PLD 1994 SC 894)
Learned Law Officer has furnished following details and information:--
(i) Total Members of Punjab Assembly 371
(ii) Members of the ruling party 268
(iii) Provincial Ministers 39
(iv) Parliamentary Secretaries 59
(v) Advisors to Government of Punjab 19
(vi) Advisors of Chief Minister 6
(vii) Special Assistants to Chief Minister 4
Original Petition.
"In view of the above-mentioned submissions it is most respectfully prayed that the writ petition of the petitioner may please be accepted and Respondent No. 1 may be directed to withdraw the Notification. No. SO (CAB.II2-2/2003 dated 13th November, 2004 forthwith and the Respondent No. 2 be removed from the post of Advisor to the Government of Punjab.
Any other relief, which this Honourable Court deems fit may also be awarded."
Amended Petition
"In view of the above-mentioned submissions it is most respectfully prayed that the writ petition of the petitioner may please be accepted and Respondent No. 1 may be directed to withdraw the Notification No. SO(CAB II) 2-2-2003 dated 30th November, 2004 and Notification No. SO (CAB.II) 2-3/03 (A) dated 15-3-2005 forthwith and the Respondent No. 2 be removed from the post of Advisor to the Government of Punjab.
Any other relief, which this Honourable Court deems fit may also be awarded."
Article 199 (1)(b)(ii) of the "Constitution", which deals with the writ of quo warranto, is reproduced below:-
"Article 199. Jurisdiction of High Court,-(1).....
(a) ...............................
(i) .....................................
(ii) .....................................
(b) ...............................
(i) .....................................
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
It is evident from the prayer made by the petitioner, reproduced above, that the petitioner did not file the writ petition requiring Mian Muhammad Munir to show under what authority of law he claims to hold office of Advisor-ship rather the prayer of the petitioner is that Government of Punjab may be directed to withdraw notification and remove Respondent No. 2 from the post of advisor-ship. Placing the prayer made in the petition in juxta-position with Article 199(l)(b)(ii) of the "Constitution", it is manifestly clear that the writ petition does not fall within the purview and scope of the said Article and thus it is not in the nature of quo warranto. The objection raised by the learned counsel is without any substance, thus repelled.
Even if it be taken that the present petition is in the form of quo warranto, it could not be held that it is incompetent as the petitioner is not an "aggrieved person". Honourable Supreme Court of Pakistan in the case reported as Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299) has held as under:--
"....... There is no cavil with the proposition that in respect of order of quo warranto it is not necessary that a person must be aggrieved and no such restriction could be placed which is in fact contemplated under sub-clause(a) of clause 1 of Article 199 of the Constitution and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the constitutional jurisdiction by way of writ of quo warranto against usurpation of public office by a person without having any lawful authority."
It has been held in Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42 and Munir Ahmad v. Returning Officer, Karachi and others PLD 1966 Kar. 1 that under Article 98(2)(b) any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority.
In this regard, it would be appropriate to reproduce Article 199(l)(a) of the "Constitution", which reads as follows:--
"Article 199, Jurisdiction of High Court.-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provide by law:--
(a) on the application of any aggrieved party, make an order:--
(i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do, or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect."
Prayer clause of the petitioner shows that the petitioner has sought two reliefs in the petition, one directing Government of Punjab to withdraw notification and secondly Respondent No. 2 be removed from the post of Advisor to Government of Punjab. Combined reading of reliefs claimed by the petitioner and Article 199(l)(a)(i) and (ii) of the "Constitution", it is clear that the present petition falls under Article 199(l)(a)(i) and (ii) of the "Constitution". The petition in hand is competent and maintainable.
"I am inclined to hold that not only a practising Advocate but even a member of the public is entitled to see that the three limbs of the State, namely the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affect the public at large......."
Although said principle of law was laid down by the Honourable apex Court of the Country with reference to Article 184(3) of the "Constitution", yet, to my mind, the same principle is equally applicable in the fact and circumstances of the present case. The petitioner, as noted above, as citizen of Pakistan and member of the public, is entitled to see that the Federal and Provincial Governments of Islamic Republic of Pakistan are run according to the "Constitution" and existing laws, of the Country and three limbs of the State act not in violation of any provision of the "Constitution". The petitioner in the present state of affairs has courage to come forward to unveil the unconstitutional and unlawful acts of the Punjab Government. I feel that citizens of Pakistan and members of public must be aggrieved by illegal and unconstitutional acts of the Punjab Government, which has appointed Advisors to the Government of Punjab without having any backing of law and is incurring millions and millions on the salary and perks of these Advisors. It cannot be ruled out that majority of the citizens must be aggrieved by illegal and unconstitutional acts of the Punjab Government of appointment of Advisors, but unfortunately, none of them has come forward before the Court of law to highlight the exercise of unfettered powers of the Provincial Government. Rather courage of the petitioner should be appreciated, who after spending time and hard earned money has come forward to state that the Punjab Government has appointed Advisors without any lawful authority, than to non-suit him on mere technicalities. In view of whereof, I am of the considered opinion, that the petitioner has "locus standi" to file the petition and can be termed as "aggrieved person" within the contemplation of law.
"I. Notice to the Advocate-General.--In any suit in which it appears to the Court that (any substantial question as to the interpretation of constitutional law) is involved, the Courts shall not proceed to determine the question until after notice has been given to the (Attorney-General for Pakistan) if the question of law concerns the Federal Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government."
In such like matters, this Court, in exercise of its constitutional jurisdiction, while examining the provisions of the "Constitution" and other provisions of law has the power to declare that any act done by a person performing functions in connection with the affairs of the Federation, a Provincial or a local authority has been done or taken without lawful authority and is of no legal effect. To my mind, in such like cases, this Court is not debarred from deciding the important questions of law, which is the prerogative and duty of the superior Courts in Pakistan. It would be relevant to reproduce a portion of para. 13 of the judgment of Al-Jehad Trust (ibid) which reads as follows:--
".............It is held by this Court in the case of Fazlul Qauder Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 that the interpretation of the Constitution is the prerogative as well as the duty of the superior Courts as envisaged in the Constitution and this interpretative function cannot be a mere academic exercise without relation to concrete dispute, either between a subject and subject or between a subject and the State. It is further held that cases of conflict between the supreme law of the Constitution an enactment might come for adjudication before the Courts and in such cases, it would be plain duty of the superior Courts, as its preservers, protectors and defenders, to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provisions. The power of judicial review therefore must exit in Courts of the country in order that they may be enabled to interpret the Constitution in all its multifarious bearings on the life of the citizens in this country....."
In view of the aforestated principle of law, this Court is under legal and constitutional obligation to decide such important questions of law regarding provisions of the "Constitution" and other laws and this , sacred duty cannot be allowed to be sacrificed at the altar of mere technical objections, such like "locus standi" or "aggrieved person" or it competency of the petition. I am of the view that powers of this Court to see, as to whether three organs of the State act within the orbit of the "Constitution" and other laws of the country, cannot be curtailed and circumvented under any circumstances, rather exercise of such jurisdiction would lend support to the independence of judiciary. Additionally as noted above, notices were issued to all the Advisors/Special Assistants through ordinary process and by proclamation in the newspapers. Pursuant thereto, all the Advisors/Special Assistants were represented through their learned counsel, who have been heard at considerable length, thus, it cannot be argued that they have been condemned unheard.
"93. Advisors.--(1) The President may on the advice of the Prime Minister, appoint not more than five Advisors, on such terms and conditions as he may determine.
(2) The provisions of Article 57 shall also apply to an Advisor."
"57. Right to speak in (Majlis-e-Shoora (Parliament).--The Prime Minister, a Federal Minister, a Minister of State and the Attorney General shall have the right to speak and otherwise take part in the proceedings of either House, or a joint sitting or any committee thereof, of which he may be named a member but shall not by virtue of this Article be entitled to vote."
260. Definitions.--(1)....................................... "Service of Pakistan" means any service, post or office in connection with the affairs of the federation or of a province, and includes an All-Pakistan service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of [Majlis-e-Shoora (parliament)] or of a Provincial Assembly but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, (Attorney-General, (Advocate-General), Parliamentary Secretary) or (Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to Chief Minister, Advisor to a Chief Minister) or member of a House or a Provincial assembly.). (Underlining is mine.).
It has been admitted by all the learned counsel including the learned Law Officer that the "Constitution" does not empower the Chief Minister to appoint Advisors/Special Assistants to the Chief Minister or/and Advisors to the Government of Punjab. It flows from the above narrative, that the "Constitution" does not empower the Chief Minister of a Province to appoint his Advisors or Special Assistants or/and advisors to the Government of Punjab.
"139. Conduct of business of Provincial Government.--
(1) ........................
(2) ........................
(3) The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government."
It flows from bare reading of Article 139(3) of the "Constitution" that the Governor has been empowered to make rules but he could make only those rules, which are for the allocation and transaction of the business of the Provincial Government. Governor of Punjab in exercise of powers under Article 139(3) of the "Constitution" made the rules known as "The Punjab Government Rules of Business, 1974". (Rules of Business) Rule 6-A of Rules of Business was added vide Notification No. CAB-1/II-46/85 dated 8th December, 1988. Said Rule 6-A provides that Advisors and Special Assistants to the Chief Minister shall be appointed from time to time and they shall hold their respective offices at the pleasure of the Chief Minister. Rule 6-A, ibid, reads as follows:--
"6-A. Advisors and Special Assistants:
There shall be Advisors and Special Assistants to the Chief Minister to be appointed by him for the performance of such duties and functions as may be specified from time to time. They shall hold either respective offices during the pleasure of the Chief Minister who shall also determine the terms and conditions of their appointment."
Under Rule 6-A, ibid, the Chief Minister has been given powers to appoint Advisors and Special Assistants to the Chief Minister, however, he was not authorized even under this Rule to appoint Advisors to the Government of Punjab. It may be noted that words "Advisors" and "Special Assistants" have not been defined in Rule 2 of the Rules of Business.
Section 2(a) of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVII of 2002) defines the word "Advisor", to mean "a person appointed as Advisor to the Chief Minister under this Ordinance". Section 3 of the said Ordinance states that the Chief Minister may appoint not more than five Advisors, who shall hold office during the pleasure of the Chief Minister. Section 3 of the said Ordinance is reproduced as under:--
"S.3 Appointment and term of office.--(1) The Chief Minister may appoint not more than five Advisors who shall hold office during the pleasure of the Chief Minister. (Underlining is mine)
(2) An Advisor shall perform such functions as may be assigned to him by the Chief Minister."
Section 2 (g) of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVI of 2002) gives the definition of the word "Special Assistant", to mean "a person appointed as Special Assistant to the Chief Minister under this Ordinance". Section 3 of later Ordinance provides that the Chief Minister may appoint not more than five Special Assistants. Sections 3 of the Ordinance is reproduced below:-
"S. 3 Appointment and term of office.--(1) The Chief Minister may appoint not more than five Special Assistants who shall hold office during the pleasure of the Chief Minister.
(2) A Special Assistant shall perform such functions as may be assigned to him by the Chief Minister." (Underlining is mine)
From the joint reading of the aforenoted provisions of "Constitution", Rule 6-A of Rules of Business and Section 3 of the aforenoted two Ordinances, it is manifestly clear that neither the Chief Minister nor the Governor of Punjab has been empowered to appoint Advisors to the Government of Punjab. It is important to note here that initially, when the Rules of Business were framed, which were enforced with effect from, first June 1974, there was no provision even for the appointment of the Advisors/Special Assistants to Chief Minister. It was subsequently, through the insertion of Rule 6-A, that Punjab Chief Minister was conferred with the powers to appoint Advisors/Special Assistants to the Chief Minister. Even Rule 6-A, which has heavily been relied upon by the learned counsel for Advisors and Law Officer, does not empower the Chief Minister to appoint Advisors to the Government of Punjab. Rule 6-A does not provide any number of Advisors/Special Assistants to the Chief Minister to be appointed by him. It appears that in order to overcome the said anomaly and unrestricted powers, Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 and Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVI of 2002), were enforced, in order to restrict, fetter and clip the omnipotent powers of Chief Minister to appoint any number of Advisors/Special Assistants to the Chief Minister. As noted above. Rule 6-A of Rules of Business does not provide any number of Advisors/Special Assistants to the Chief Minister and that might be the reason why the law makers thought it fit to promulgate the aforesaid two Ordinances, in order to clinch the unfettered powers of the Chief Minister thereby curtailing the powers of the Chief Minister to appoint not more than five Advisors/Special Assistants. Thus, Section 3 of the aforesaid two Ordinances have limited the powers of the Chief Minister to appoint Advisors/Special Assistants. It appears that the said Ordinances were enforced in order to restrict the powers of Chief Minister to appoint any number of Advisors/Special Assistants to the Chief Minister, as provided under Rule 6-A of the Rules of Business. Objective and driving force behind the Ordinances appear to be that powers of the Chief Minister to appoint his Advisors/Special Assistants should be in consonance and harmonize with Article 93 of the "Constitution", which empowers the President to appoint not more than five Advisors. Apart from the afore said provisions of law, the learned counsel representing the Advisors and the learned Law Officer could not point out any other provision of law, which empowers the Chief Minister of the Province to appoint Advisors to the Government of Punjab. Chief Minister of Punjab cannot be allowed to exercise the powers, which do not vest with him and have not been conferred upon him either under the "Constitution" or any existing law. It cannot be conceived that a Chief Minister of a Province can exercise more and extra powers than the President of Pakistan, which if allowed would be against the letter and spirit of the "Constitution". Learned Law Officer when confronted and asked to explain as to how in view of Rule 6-A of Rules of Business read with Section 3 of Ordinance No. LXXVII of 2002 and Ordinance No. LXXVI of 2002, the Chief Minister can appoint Advisors to the Government of Punjab, he has fallen back upon Rule 6-A of Rules of Business to state that in fact the word "Advisor" used in Rule 6-A means to include Advisors to the Government of Punjab as well, however, he could not substantiate his argument with reference to any provision of law or case law on the subject. The said argument, to say the least, on the face of it is misconceived and stands falsified from the bare reading of Rule 6-A, ibid which unequivocally states that there shall be Advisors and Special Assistants to the Chief Minister to be appointed by him. Rules of Business do not define the words, "Advisors to Chief Minister", "Advisors to Government of Punjab" and "Special Assistants to the Chief Minister". Even according to definition of "Advisor", given under Section 2(a) of Ordinance No. LXXVII of 2002, it is stated in clear terms that Advisor means a person appointed as Advisor to Chief Minister. It is not, however, understandable as to how and from which provision of law the learned Law Officer has inferred that the words "Advisors to Government of Punjab" are included in the terms "Advisors and Special . Assistants to the Chief Minister" used in Rule 6-A ibid. The learned Law Officer has taken another stand that the Advisors to the Government of Punjab are, in fact, the Advisors to the Chief Minister, as their appointing authority is the Chief Minister, their respective offices are at the pleasure of the Chief Minister and they perform the functions assigned to them by the Chief Minister. Even this summer sault is of no avail to the Respondent No. 1, as it is not supported by any law. The term "Advisors to the Government of Punjab" is alien to the prevalent laws as none of the laws, as noted above, even mention about the appointment of the Advisors to the Government of Punjab. The said argument cannot be accepted on two grounds, firstly the learned Law Officer could not put forth any law on the subject in order to substantiate his contention and secondly if this contention is accepted, it goes contrary to Rule 6-A of Rules of Business, 1974 and Section 3 of the Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 and Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVI of 2002). It appears that the Chief Minister being conscious of the legal position that he has no jurisdiction to appoint more than five Advisors/Special Assistants to him under the two Ordinances has, in his own wisdom, evolved a new term introduced as "Advisors to Government of Punjab", in order to accommodate, oblige and fit in certain influential persons, his favorites, blue-eyed boys and the persons who have contacts in Governmental hierarchy. It is interesting to note that even one of the learned counsel admitted that his client has been appointed only because of his contacts with high ups in the Punjab Government. It cannot be comprehended even for a moment that Chief Minister of Punjab is oblivious of the provisions of the "Constitution" or other laws, as the learned Advocate-General, who is the principal Law Officer of the Province is obliged and duty bound under the law to give advice to the Provincial Government upon legal matters per force of Article 140(2) of the "Constitution". It seems to me that the Chief Minister of Punjab after finding him handicapped in view of Sections 3 of the two Ordinances has find a novel way, though illegal and unconstitutional, to appoint certain persons of his own choice on the higher posts with salary and perks under the nomenclature of unprecedented term "Advisors to the Government of Punjab". It maybe noted that even definition of "Service of Pakistan". In Article 260 of the "Constitution", relied upon by majority of the learned counsel does not find mention about "Advisors to the Government of Punjab".
In the above perspective, I am of the considered view that the Chief Minister had no powers, authority and jurisdiction to appoint Advisors to the Government of Punjab, this is clear case of misuse of powers and authority and those appointments were made in excess of jurisdiction. The purported exercise of jurisdiction to appoint Advisors to the Government of Punjab never vested with the Chief Minister and thus all the appointments are held to be illegal, without jurisdiction, unconstitutional and lacks the legal backing.
In view of the above, it is held that neither the "Constitution" nor The Punjab Government Rules of Business; 1974 nor any other law empowers and authorizes the Chief Minister/Governor of Punjab to appoint Advisors to the Government of Punjab, therefore, the appointment of all the Advisors to the Government of Punjab is held to be illegal and without jurisdiction, thus, notifications of their appointments are equally without jurisdiction and hereby quashed.
There is another aspect of the case. In answer to a query raised by this Court, it has been informed that since appointments of these advisors. Government of Punjab, has incurred millions of rupees on the salary and perks of the Advisors. Public and tax payers money cannot be allowed to be swallowed like that by the persons who were unauthorisedly appointed. As all the appointments of Advisors to the Government of Punjab have been held to be illegal and unconstitutional and their appointments from the very inception were without jurisdiction, therefore, the Advisors to Government of Punjab had no right to receive the salary and enjoy the perks from the Government exchequer and out of public money. However, I have refrained myself from passing any order for the repatriation reimbursement of the amounts, so received by the Advisors to the Government of Punjab.
Now coming to the next question, as to whether Chief Minister is competent and empowered to appoint Advisors and Special Assistants to Chief Minister. Article 139(3) of the "Constitution" empowers the Governor of the Province to make rules for the allocation and transaction of the business of the Provincial Government. The Governor of Punjab in exercise of the said powers made Rules of Business. Subsequently Rule 6-A was added to the Rules of Business vide notification dated 8-8-1988. Next question arises as to whether Rule 6-A is for the "allocation and transaction of the business of the Provincial Government". To my mind, the power to appoint Advisors/Special Assistants to Chief Minister, of course, subject to the provisions and limitations of Section 3 of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 and Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002, is for the "allocation and transaction of the business of the Provincial Government". In view whereof, I am of the view that the Rules of Business and insertion of Rule 6-A in the Rules of Business were validly made by the Governor of the Punjab in exercise of the constitutional powers.
Rule 6-A of the Rules of Business provides that there shall be Advisors and Special Assistants to the Chief Minister to be appointed by him. Section 3 of the Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 provides that the Chief Minister may appoint not more than five Advisors. It is abundantly clear from the joint reading of Rule 6-A of the Rules of Business and Section 3 of the Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 that Chief Minister is competent and empowered to appoint not more than five Advisors to the Chief Minister. Similarly combined reading of Rule 6-A ibid, and Section 3 of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 leads to the conclusion that Chief Minister of Punjab has the powers to appoint his Special Assistants but not more than five.
In view whereof, it is held that the Chief Minister of Punjab, in exercise of his powers under Rule 6-A of the Rules of Business, 1974 read with Section 3 of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVII of 2002) and Section 3 of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 (Punjab Ordinance No. LXXVI of 2002), is within his legal authority and is competent to appoint not more than five Advisors and five Special Assistants to the Chief Minister. It is further held that the appointments of five Advisors and five Special Assistants to the Chief Minister are legal, within the competence and legal authority of the Chief Minister and if any Advisors/Special Assistants are appointed beyond that number that appointment will be deemed to be illegal and without jurisdiction.
Now coming to the cases of Mian Muhammad Munir and Akhtar Rasul. These persons were appointed as Advisors to the Government of Punjab despite the fact that they were convicted by the Honourable Supreme Court of Pakistan. In the preceding paras, after exhaustively discussing the entire law on the subject, it has been held that the Chief Minister/Governor of Punjab has no jurisdiction and legal authority to appoint Advisor to the Government of Punjab. On this ground notifications of their appointments as Advisors to Government of Punjab are held to be without jurisdiction and without lawful authority and quashed.
27 Secondly, there is another important aspect of the matter. Mian Muhammad Munir and Akhtar Rasul were convicted by the Honourable Supreme Court of Pakistan for committing act of rowdyism in the Supreme Court building in the case of reported as Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 it appears appropriate to reproduce paras. 3 ("15") and 50 of the judgment, which reads as follows:--
3("15"), Having heard the arguments on behalf of the parties we have come to the conclusion that respondent Tariq Aziz, Mian Muhammad Munir, Ch. Tanvir Ahmed Khan, Akhtar Rasul, Akhtar Mehmood Shahbaz Goshi and Sardar Muhammad Nasim Khan, who were a part of the crowd people who had gathered in and around this Court in the morning of 28th November, 1997, were involved in acts of rowdyism including raising slogans and display of baimers against the judiciary with the intention of bringing the authority of this Court into disrespect/disrepute and/or to lower its authority and/or to disturb the order or decorum of the Court, and by their actions they have committed contempt of this Court and rendered themselves liable to punishment under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Sections 3 and 4 of the Contempt of Court Act, 1976."
It is evident from the above narrative, that the honourable Apex Court of the Country, after finding that the petitioners alongwith other persons are guilty for committing of contempt of Court, convicted them under Article 204 of the "Constitution" and sentenced them to undergo simple imprisonment for one month and fine of Rs. 5000 each. It is astonishing and ironical that despite the conviction of these persons by the Honourable Apex Court of the Country, the Chief Minister in its own wisdom deem it fit to appoint these persons as Advisors to the Government of Punjab though he had otherwise no powers to appoint Advisors to Government of Punjab. It cannot be conceived even for a moment that the persons who were found guilty by the Honourable Supreme Court of Pakistan and that too in an offence for creating rowdyism and storming the Supreme Court building in order to take into custody judges, could be appointed advisors to Government of Punjab. To my mind, appointments of these two persons were made in complete derogation, disrespect, defiance, and in violation of the verdict of the Honourable Supreme Court of Pakistan. It cannot be said that their appointing authority was not aware either about the judgment of the Honourable Supreme Court or qua the conviction of these two persons or its legal implications and repercussion. It is unfortunate that no Government/State functionary ever took notice of the appointments of these persons as Advisors to the Government of Punjab. Even the Bureaucracy, which is presumed to be the cream of the nation, ignored and acquiesced over these appointments. To my mind, the then Chief Secretary Punjab before issuing notifications of appointments of these persons was duty bound to bring these facts to the notice of Chief Minister and apprised him about the legal complications. The Chief Secretary could have consulted the principal Law Officer of Province . Although a portion of the judgment by the Honourable Supreme Court of Pakistan, reported as Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development Lahore and 2 others PLD 1995 SC 530 has been reproduced in para. 9 above, yet here it appears appropriate to reproduce the said portion of the judgment, even at the cost of repetition, which is very much relevant in the present context:--
"............We need not stress here that a tamed and subservient bureaucracy can neither be helpful to government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as Incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action.......".
PLJ 2007 Lahore 623
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
SABIN BIBI--Petitioner
versus
SHO--Responent
W.P. No. 480 of 2007, decided on 15.2.2007.
Constitution of Pakistan, 1973—
----Art. 199--Criminal Procedure Code (V of 1898), S. 22-A--Registration of second FIR--Constitutional jurisdiction--Legal obligation--Hard and fast rule--SHO refused to record statement of petitioner--Jutice of Peace did not order registration of second FIR--Validity--Second F.I.R. cannot be registered in respect of a different version given by an aggrieved party of the same occurrence if it is not merely an extension to the first verison--Exercising Constitutional jurisdiction the High Court is not obliged to hold fact finding inquiry yet the jurisdiction can be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances--Justice of the Peace had directed to record statement of the petitioner in registered case and proceed strictly in accordance with law--Held: Petitioner has been able to make out a case for registration of second FIR--SHO was directed to perform his legal obligation and register the second FIR on statement of the petitioner and proceed strictly in accordance with law--Petition allowed. [Pp. 625 & 626] A, B & C
PLD 2005 SC 297 and PLD 1997 Kar. 119 rel.
Sh. Usman Hameed Khan, Advocate for Petitioner.
Mr. Zafar Ullah Khan Khakwani, A.A.G. for Responent No. 1.
Syed Mohtashamul Haq Pirzada, Advocate for Respondent No. 2.
Date of hearing: 15.2.2007.
Order
The petitioner through the instant petition seeks registration of second F.I.R. against Respondents No. 2 to 8.
It is submitted that in spite of comments filed by the investigating officer, the learned Justice of Peace did not order registration of a second F.I.R. according to the version of the petitioner rather vide order dated 6.12.2006 he directed Respondent No. 1 to record statement of the petitioner in the registered case and proceed strictly in accordance with law. The petitioner has filed the instant writ petition seeking setting aside of order dated 6.12.2006 and direction to Respondent No. 1 to register a second F.I.R. according to the version of the petitioner. It has been further stated that after the murder of Mst. Jannat Bibi, Respondent No. 2 got a suit instituted by his brother Shahmand Ali for specific performance in which it was stated that the plaintiff had paid Rs. 19,00,000/- to Ahmad Yar defendant/respondent for the purchase of land of Mst. Jannat Bibi/Defendant No. 2 on the basis of the general power of attorney in his favour. It is submitted that in the said suit Mst. Jannat Bibi was shown alive and notices were also served at her address. Relying upon the dictum laid down by the Hon'ble Supreme Court in Mst. Anwar Begum vs. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297) and Mrs. Ghanwa Bhutto and another vs. Government of Sindh and another (PLD 1997 Karachi 119) the petitioner prays for registration of a second F.I.R.
Learned counsel for the respondents has contended that the petitioner had filed a petition under Section 22-A Cr.P.C. after about 14 days with mala fide intention of getting the property of the deceased mutated; that Ahmad Yar respondent was the adopted son of the deceased who was given general power of attorney with regard to the land; that the F.I.R. had been promptly registered based on true facts of the occurrence; that the story cooked up by the petitioner in connivance with the local police is an after-thought and that even if the petitioner wants to get the case investigated on her statement, her version can validly be recorded as directed by the learned Justice of Peace in the investigation of the existing F.I.R.
Although the Courts of law normally use restraint to exercise discretionary powers under Article 199 of the Constitution to order registration of a second F.I.R. in presence of the alternate remedies such as filing of a private complaint or recording of version of the aggrieved party through statement during the course of investigation of the existing F.I.R., yet no hard and fast rule exists that a second F.I.R. cannot be registered in respect of a different version given by an aggrieved party of the same occurrence if it is not merely an extension to the first version. At the same time while exercising Constitutional jurisdiction the High Court is not obliged to hold fact finding inquiry yet the jurisdiction can be exercised in good faith, fairly, justicely and reasonably having regard to all relevant circumstances. In this regard I am fortified by the dictum laid down by the Hon'ble Supreme Court in Mst. Anwar Begum vs. Station House Officer, Police Station Karli West, Karachi and 12 others (PLD 2005 SC 297) and Mrs. Ghanwa Bhutto and another vs. Government of Sindh and another (PLD 1997 Karachi 119).
It is not denied that the petitioner is first cousin of Mst. Jannat Bibi and alongwith her sisters is her legal heir. The petitioner has been alleging that Ahmad Yar respondent obtained power of attorney from the deceased on the pretext of obtaining agricultural loan and thereafter in connivance with Respondents No. 3 to 8 had murdered Mst. Jannat Bibi in order to grab her land and evasively himself became the complainant. The stance of the petitioner is further fortified by the fact that one Shahamand Ali a real brother of Ahmad Yar respondent filed a suit for specific performance in the Court of learned Civil Judge Chichawatni on 23.11.2006 in which Mst. Jannat Bibi deceased was also arrayed as Defendant No. 2. It may be noted that Shahamand Ali plaintiff did not disclose in the plaint that he was real brother of Ahmad Yar defendant. Similarly it is impossible in view of the fact that the plaintiff and the defendants were residents of the same village that the plaintiff did not know that Mst. Jannat Bibi defendant was no more in the world at the time of institution of the plaint and had been murdered. Further more the comments filed by the respondent/S.H.O. also support the version of the petitioner. All these circumstances lead this Court to draw an inference that the version of Respondent No. 1 does not seem to be whole truth and there is substance in the version of the petitioner. Although the learned Justice of Peace had directed the Respondent/S.H.O. to record the statement of the petitioner in the registered case and proceed strictly in accordance with law, but in the given circumstances, I do not find the same sufficient to redress the grievance of the petitioner.
For the foregoing reasons I find that the petitioner has been able to make out a case for registration of second F.I.R. Resultantly this petition is allowed and Respondent No. 1 is directed to perform his legal obligation and register the second F.I.R. on the statement of the petitioner and proceed strictly in accordance with law.
(N.F.) Petition allowed.
PLJ 2007 Lahore 626
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
NORAIZ-UL-HAQ & another--Petitioners
versus
DISTRICT & SESSIONS JUDGE & 10 others--Respondents
Writ Petition No. 326 of 2006, heard on 6.3.2006.
Constitution of Pakistan, 1973—
----Art. 199--Recounting of votes--Effect--Irregularity in the counting of votes--Held: Election Tribunal had acted without lawful authority by proceeding to pass order without going through his file and taking notice of facts apparent on face of record--Election Tribunal was declared to be without lawful authority and was set aside--Petition allowed accordingly. [P. 628] A
2005 SCMR 1699 rel.
Ch. M. Iqbal Abid, Advocate for Petitioners.
Mr. Tanvir Haider, Advocate for Respondents.
Date of hearing: 6.3.2006.
Judgment
Moulvi Anwar-ul-Haq, J.--The petitioners, on the one hand, and Respondents Nos. 2 and 3, on the other, contested elections to the seats of Nazim and Naib Nazim, in Union Council No. 45 urban Sahiwal. On the close of the polls, the petitioners were declared returned. The Respondents No. 2 and 3 filed an election petition on 20.9.2005. A written statement was filed by the petitioners on 24.10.2005. On 24.1.2006 the learned Election Tribunal proceeded to order a re-count at Polling Stations No. 1 and 5 of the said constituency.
Learned counsel for the petitioners argues with reference to the contents of the election petition that no specific allegations were there which could be determined without recording any evidence and further that the contents of the election petition stood negated by the very documents appended with the same by the Respondents No. 2 and 3. The learned counsel for the Respondents Nos. 2 and 3, on the other hand, with reference to the case of Muhammad Naeem Kasi and another v. Abdul Latif and 7 others (2005 S.C.M.R. 1699) contends that the impugned order of the learned Election Tribunal cannot be held to be without lawful authority.
I have gone through the records of the learned Election Tribunal, with the assistance of the learned counsel for the parties. I have examined the election petition. Para-1 pertains to the factum of the contest of election by the said parties. In para-2 it was stated that under a pre-plan the Polling Agents of the respondents were not allowed to participate in the counting of votes at all the Polling Stations except Polling Stations No. 1, 3 and 6 and that they were not provided with copies of Form-XIV. In para-3 it was stated that the result which was handed over to the respondents by the Presiding Officer of Polling Station No. 1 was to the effect that the respondents had 518 votes while the petitioners had 274 votes. However, the Returning Officer entered 458 votes of the respondents and 334 votes of the petitioners. Similarly, at Polling Station No. 5202 votes were told to be those of the respondents while 227 votes of the petitioners but according to the result issued by the Returning Officer the respondents had 102 votes while the petitioners had 327 votes.
Now on the record I do not find any such result stated to have been issued by the Presiding Officers. I further find that the respondents themselves appended the certified copies of the consolidated result in Form-XV as also of the results issued by the Presiding Officers at all the Polling Stations including Polling Stations No. 1 and 5. Now at Polling Station No. 1, the petitioners have 458 votes while the Respondents Nos. 2 and 3 have 334 votes. Similarly, at Polling Station No. 5, the respondents have 327 votes while the respondents have 102 votes. These statements are available at pages 35 and 55 of the trial Court file.
It is but apparent that the learned Election Tribunal has proceeded to pass the impugned order without examining his file much-less applying the mind to the same. In the said circumstances, it cannot at all be said that any specific allegations were made and that some material was available to enable the learned Tribunal to proceed to order a re-count at Polling Stations No. 1 and 5. Similarly, there is no material available on record to support the contention that an application for re-count had been filed by the respondents before the Returning Officer.
Now so far as the said judgment in the case of Muhammad Naeem Kasi and another is concerned, their Lordships took note of the admitted fact that the respondents before them had pointed out the irregularity in the counting of votes at the concerned Polling Station and the change of result in writing to the Returning Officer and District Returning Officer before the commencement of the official result but the complaint remained un-attended.
Having, thus, examined the matter, I do find that in the circumstances of the present case, the learned Tribunal had acted without lawful authority by proceeding to pass the impugned order without going through his file and taking notice of the facts apparent on the face of the record. The writ petition accordingly is allowed. The impugned order dated 24.1.2006 of the learned Election Tribunal is declared to be without lawful authority and is set aside. The learned Tribunal will frame issues arising out of the pleadings, record evidence of the parties and thereafter decide the election petition and upon examination of the evidence so recorded if the learned Tribunal feels that a re-count is necessary, he may so order. The matter to be concluded preferably before the commencement of the Summer Vacations, 2006. No order as to costs.
A copy of this judgment alongwith the records be immediately remitted to the learned Election Tribunal.
(N.F.) Petition allowed accordingly.
PLJ 2007 Lahore 629
Present: Fazal-e-miran Chauhan, J.
ABDUL SATTAR alias MUHAMMAD SATTAR--Petitioner
versus
ZAFAR ULLAH KHAN TARAR, ADDITIONAL DISTRICT JUDGE, SARGODHA and 2 others--Respondents
W.P. No. 8606 of 2005, decided on 20.12.2006.
(i) Interpretation of Statutes--
----The word "filing" and "institution" are interchangeable and analogous term, which have been used by the Legislature in a different statutes but to signify the same meaning, therefore, word "filing" used in proviso to Section 24 of the Punjab Pre-emption Act, 1991 means institution of the suit, as has been mentioned in S. 36 and O. IV, R. 1 C.P.C. [P. 633] A
(ii)
(iii)
(iv)
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 24(1)--Zar-e-Soam--Statutory period of 30 days--Question of--Mutation was sanctioned on basis of registered exchange deed--Infact transaction was sale-deed which was fictitiously--Shown as an exchange--Right of pre-emption--Price be deposited within 30 days--Whether 30 days time would be reckoned from the date of institution/filing of the suit--It was required of the Court to pass an order directing the plaintiff to make deposit within such time, as may be fixed by the Court--S. 24(1) has been placed upon the authority of the Court that such time was not exceeded 30 days (of the fillings of the suit)--Petition accepted. [P. 633] B
(iii) Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 24--Zare-e-Soam--Depsoited within 30 days--No delinquency and default can be attributed--Legality--Dismissal of the petitioner's suit of deposit of Zar-e-Soem is illegal and without jurisdiction--The day on which the order has been passed by the Court, directing the pre-emptor to make the deposit, would be excluded and thus by exclusion thereof, the deposit made by the petitioner in present case, would be within 30 days time--Held: No delinquency and default can be attributed to the petitioner, therefore, dismissal of petitioner's suit by the lower appellate Court for non-compliance of the deposit of Zare-e-Soem was illegal and without jurisdiction, and could not be sustained in the eye of law--Petition accepted. [P. 634] C
2003 CLC 1597 and 2003 CLC 1661 rel.
Malik Muhammad Akram Khan Awan, Advocate for Petitioner.
Respondent No. 3 in person.
Date of hearing: 30.11.2006.
Judgment
Brief facts of the case as deciphered from the plaint are that; the petitioner filed a suit for possession through pre-emption on 22.4.2003 against Respondent No. 3-Ch. Muhammad Masood Jahangir in the Court of learned Civil Judge 1st Class, Sargodha stating therein that Mutation No. 718, dated 25.1.2003 was sanctioned on the basis of registered exchange deed, whereas, in fact, the transaction was sale-deed, which was fictitiously shown as an exchange, and on the basis of which, the petitioner is entitled for possession of the land, having the first right of pre-emption. On 23.4.2003, an order was passed by the learned Duty Judge directed that the suit be numbered and registered A/D as well as summon be issued to Respondent No. 3 with a further direction that it is a suit of pre-emption, therefore, 1/3rd of the total sale price be deposited within the statutory period. Thereafter, Respondent No. 3 filed written-statement alongwith application under Order VII Rule 11 C.P.C. alleging therein that Zar-e-Soem was deposited within 30 days of the order of the Court. The application was filed by the petitioner on 20.5.2003 seeking permission to deposit Zar-e-Soem, which was granted and the challan was passed for deposit of Zar-e-Soem by the Court on 21.5.2003 and Zar-e-Soem was deposited on 22.5.2003. The learned Civil Judge dismissed the application under Order VII Rule 11 C.P.C. filed by Respondent No. 3 vide consolidated order dated 9.2.2005.
Being aggrieved of the order passed by learned Civil Judge, Respondent No. 3 filed a revision petition before the learned District Judge, Sargodha, which was entrusted to the Court of learned Additional District Judge, Sargodha, who accepted the same, vide order dated 5.5.2005 on erroneous presumptions.
(i) Mst. Said Bibi vs. Additional District Judge, Bahawalpur and 5 others (2005 CLC 375 Lahore).
(ii) Muhammad Ilyas and 4 others vs. Munshi Khan (2003 CLC 1815 Lahore).
(iii) Raja Hasan Ali Khan vs. Additional District Judge, Islamabad and 2 others (2003 CLC 1819 Lahore).
(iv) Jamshaid Ali and 2 others vs. Ghulam Hassan (1995 CLC 957 Lahore).
(v) Ghulam Hassan vs. Jamshaid Ali and others (2001 SCMR 1001).
(vi) Ghulam Hassan vs. Jamshaid Ali and others (PLJ 2001 SC 1215).
(vii) Mian Muhammad Lutfi vs. Mian Muhammad Talha Adil (NLR 2000 Civil 422).
(viii) Ghulam Mustafa Khan vs. Ashiq Hussain and others (2003 CLD 1661 Lahore).
(i) Muhammad Yousaf and 3 others vs. Zafarullah and another (PLJ 1992 SC 41).
(ii) Mst. Wafa Jan vs. Mahram Zad (1995 CLC 2002 Lahore).
(iii) Ahmad Bakhsh vs. Nasir Khan and others (2002 CLC 119 Lahore).
(iv) Muhammad Jahangir vs. Muhammad Abbas and 2 others (2004 CLC 538 Lahore).
(v) Muhammad Sharif vs. Qutba and others (2006 YLR 1939 Lahore).
I have heard learned counsel for the parties, perused the record as well as gone through the case law, cited by learned counsel for the parties.
The questions raised in the writ petition are:
(a) whether the trial Court was required to pass order under Section 24 of the Punjab Pre-emption Act, 1991 for deposit of Zar-e-Soem 1/3rd of the sale price on the very first date, when the case was placed before the Court, after filing/institution and not on any subsequent date;
(b) whether the Court can direct the plaintiff to make the deposit within such time as may be fixed by the Court but subject to the proviso imposing limitation to make the deposit within 30 days of the filing of the suit.
Under Section 24 of the Punjab Pre-emption Act, 1991, it was mandatory for the Court to direct the plaintiff to make deposit in the Court 1/3rd of the sale price of the property in cash within such period, the Court may fix but the proviso (1) of the said section certainly imposed limitation on the Court not to extent the time of deposit beyond 30 days of the filing of the suit. Meaning thereby that the Court may, on the first date of hearing, fix any date or for deposit of 1/3 rd of the sale price in cash in Court but such period fixed by the Court for deposit shall not be extended beyond 30 days. No cavil with this proposition of law was raised by the learned counsel for the parties. However, it is argued by learned counsel for the petitioner that; the learned trial Court while dismissing the application for dismissal of the suit had rightly observed that the deposit made by the petitioner was within 30 days of the filing of the suit, as required by the proviso (2) to Section 24 of the Punjab Pre-emption Act, 1991. Further argued that though it was the duty of the Court to fix a certain date for the deposit of 1/3rd amount, however, when no such date fixed, such deposit cannot be made beyond 30 days of the filing of the suit and the deposit made by the petitioner on 23.4.2003 was within 30 days of the filing of the suit.
Conversely, contention of the learned counsel for the respondents was that; the suit was instituted on 22.4.2003 and the same was marked to the trial Court, where it was ordered to be registered and the same was presented on 23.4.2003, when the learned trial Court directed the plaintiff to make deposit of 1/3rd of the sale price within 30 days, but if 30 days are calculated from 22.4.2003 i.e. the date of the filing of the suit, the deposit made by the plaintiff was one day beyond the limitation.
Learned counsel for the respondents had tried to create some distinction between the word "filing" and "institution", by arguing that filing of the suit commence from the date, when the suit is put in the box of Senior Civil Judge or the plaint is presented to the Senior Civil Judge and the stamp is imposed and the period of 30 days shall commence from the filing of the suit.
I am afraid learned counsel for the respondents is trying to mix two words i.e. "filing" and "institution" The word used in Section 36 and Order 4 Rule 1 C.P.C. and by the Legislature while enacting the Pre-emption Law by using the word "filing" does not connote some other meaning. The word "filing" and "institution" are interchangeable and analogous term, which have been used by the Legislature in the different statutes but to signify the same meaning, therefore, word "filing" used in proviso to Section 24 of the Punjab Pre-emption Act, 1991 means institution of the suit, as has been mentioned in Section 36 and Order 4 Rule 1 C.P.C.
"It shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word "from" and for the purpose of including the last in a series of days or any other period of time to use the word "to".
Almost a similar proposition came under consideration of this Court in the case reported as Imran Ahmed and another vs. The District Judge, Dera Ghazi Khan and 2 others (2003 CLC 1597) and Ghulam Mustafa Khan vs. Ashiq Hussain and others (2003 CLC 1661). In both the above cited cases, it has been held that the day when the order was passed i.e. 23.4.2003 has also to be excluded under Section 8 of the West Pakistan General Clauses Act, 1956. Thus, on account of the reasoning given in Paragraph No. 4 and on the basis of these two judgments, I am constrained to hold that the day, on which the order has been passed by the Court, directing the pre-emptor to make the deposit, should be excluded and thus by exclusion thereof, the deposit made by the petitioner in this case, shall be within 30 days time and resultantly, no delinquency and default can be attributed to the petitioner, therefore, the dismissal of the petitioner's suit by the lower appellate Court for non-compliance of the deposit of Zar-e-Soem is illegal and without jurisdiction, and cannot be sustained in the eye of law.
For the foregoing reasons, the judgment & decree dated 5.5.2005 passed by the learned lower Appellate Court is set-aside and the order dated 9.2.2005, passed by the learned trial Court is restored. Writ petition is accepted.
(N.F.) Petition accepted.
PLJ 2007 Lahore 634 (DB)
[Multan Bench Multan]
Present: Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ.
SARDAR MASIH--Petitioner
versus
ANWAR SHAHZAD--Respondent
RFA No. 24 of 2006, heard on 20.12.2006.
(i) Civil Procedure Code, 1908 (V of 1908)—
----O. XXXVII, Rr. 2 & 3--Suit for recovery on the basis of pronote--Leave to appear and defend the suit was allowed--Surety bond--Documents were neither formally proved nor brought on record--No decree could be passed against appellant on the basis of documents, which were produced by the counsel for the plaintiff, who was not allowed to be cross-examined, and exhibited by trial Court of its own accord without properly and legally admitting the same in evidence--Execution of the pronote when his counsel was not in attendance and all the proceedings were undertaken in the presence of clerk for the appellant counsel, who had no authority to represent appellant--Held: Appellant was denied the services of his counsel and he was condemned unheard--Appeal was allowed. [P. 638] A & C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 11--S. 2(10)--Execution of the decree--Without any oral or written application--Role of an executing Court--Judgment debtor--Trial Court after passing the decree against the appellant, assumed the role of an executing Court and directed appellant to appear in the Court for payment of the decretal amount--It is note worthy that respondent did not submit any oral or written application for execution of the decree, as contemplated under Order XXI--Appellant, who had directed to make payment, was not a judgment debtor, as defined under Section 2(10) CPC in as much as he was not party to the proceedings/suit--Appeal was allowed.
[Pp. 638 & 639] B
(iii) Judicial Order--
----Numerous glaring illegalities--Impugned judgment and decree suffer from numerous glaring illegalities and cannot be called a judicial order within the parameters of law--Appeal allowed. [P. 639] D
PLD 1990 SC 713 and 2004 SCMR 959 rel.
Sh. Atif Munir, Advocate for Appellant.
Ch. Abdul Ghani, Advocate for Respondent.
Date of hearing: 20.12.2006.
Judgment
Mian Hamid Farooq, J.--Present appeal proceeds against judgment and decree dated 2.3.2006, whereby the learned Addl. District Judge decreed respondent's suit for recovery of Rs. 2,30,000/-, against the appellant.
"Issues:
Whether the plaintiff has got no cause of action and locus standi to file the suit ? OPD
Whether the plaintiff is estopped by his act and conduct to file the suit? OPD.
Whether the pronote and receipt pronote dated 7.2.2005 are forged, baseless and fictitious documents, hence the suit is liable to be dismissed? OPD.
Whether the suit of the plaintiff is liable to be dismissed in view of the preliminary Objection No. 4 of the written statement? OPD.
Whether the suit is counter blast, and vexatious, hence, the defendant is entitled to special costs? OPD.
Whether the plaintiff is entitled to the decree of
Rs. 2,30,000/- on the basis of pronote and receipt pronote dated 7.2.2005? OPP.
The learned Addl. District Judge called upon the respondent to produce evidence, however, he, instead of adducing his witnesses, filed the application for comparison of appellant's thumb impression by fingerprint expert bureau. The learned Court, after finding that the appellant has admitted his thumb impression on the pronote, exhibited the pronote and receipt (Ex. P1 and P2) and decreed respondent's suit for recovery of Rs. 2,30,000/- with costs against the appellant and directed Nawab Masih to appear in the Court for payment of the decretal amount, vide impugned judgment and decree dated 2.3.2006, hence the present appeal.
Learned counsel for the appellant contends that the impugned order is a non-speaking order and devoid of reasons as well, thus not sustained in law. He has further submitted that the suit was decreed only on the statement of the appellant, who had also stated that he executed the pronote as surety of Nawab Masih. The learned counsel for the respondent, while supporting the impugned judgment, states that as the consent decree was passed, therefore, no appeal is competent.
We have heard the learned counsel and examined the available record. The learned trial Court, after framing seven issues, adjourned the case to 13.2.2006 for recording respondent's witnesses, however, as no witness was produced by him, therefore, the suit was adjourned to 2.3.2006 for the same proceedings and as a last opportunity. On the said date the respondent, instead of producing his evidence, filed the application for comparison of thumb impression of the appellant and the learned trial Court on the basis of the alleged statement of the appellant, decreed the suit. It may be noted that on 2.3.2006, the case was decided against the appellant in the absence of his learned counsel. We find from the examination of the impugned judgment that the learned Addl. District Judge has evolved a novel procedure for determining the valuable rights of the parties and he, on 2.3.2006, instead of asking the respondent to produce his evidence, for which last opportunity was granted, proceeded to decide the suit only on the basis of so called statement of the respondent. It is evident from the record that no separate statement of the appellant was recorded, though his thumb impression and signatures of some other persons were obtained at the margin of the order sheet. It may be noted with concern that the learned trial Court exhibited the documents, i.e. the pronote and receipt, without legally admitting them in evidence, inasmuch as the documents were neither formally proved nor brought on record. The impugned judgment shows that the learned counsel for the plaintiff produced the original documents, which were illegally exhibited by the learned trial Court without adverting to the provisions of law regarding admission of documents in evidence and without affording any opportunity to the appellant to cross examine the learned counsel for the appellant. We have also examined the written statement, filed by the appellant and find that he has specifically denied the execution of those documents and, inter alia, pleaded that he did not obtain any loan from the appellant and the pronote is a result of dispute between the respondent and a relative of the appellant, namely, Nawab Masih. In view of the said averments, contained in the written statement, we feel that it was obligatory upon the learned Addl. District Judge to have decided the matter after providing opportunity to the parties to adduce evidence in support of their respective claims notwithstanding that the appellant admitted the execution of pronote and receipt. The learned trial Court framed the issues and called upon the respondent to produce evidence, however, he opted to decide the matter only after receiving the application for comparison of signature of the appellant, which course of action is not recognized under the law. It has been held in the case of Kamran Co. and others vs. Messrs Modern Motors and another (PLD 1990 SC 713) that when the appellant appeared and filed the written statement and issues were framed, then it was obligatory on the Court to have decided the case on merits. It appears appropriate to reproduce a portion of the said judgment, which reads as follows:--
"...........the appellant had appeared and filed the written statement. Thereafter, the issue had been settled. Therefore, it was obligatory on the Court to have decided the case on merits but as no evidence was produced by the respondent a decree could not be passed in the circumstances of the case. The judgments and decrees of the Courts below against the appellants are set aside."
"After having examined the contention of the learned counsel, we are of the opinion that statement so made by him is not correct because birth certificate was not produced by the attorney of the petitioner Mst. Fatima nor she herself entered into witness box to support its contents. Upon this, learned counsel stated that this document was tendered by the counsel for the petitioner. Suffice it to observe that because document was not formally brought on record, therefore, Courts were not obliged to take the same into consideration."
(underlining is ours).
In view of the above, we feel that no decree could be passed against the appellant on the basis of the documents, which were produced by the learned counsel for the plaintiff, who was not allowed to be cross examined, and exhibited by the learned trial Court of its own accord without properly and legally admitting the same in evidence.
As regards the solitary contention of the learned counsel for the respondent, we feel that this is not a consent decree and the appellant did not agree or give consent anywhere to make payment of the decretal amount. It has been stated in the impugned judgment that Nawab Masih son of Lara received the amount of Rs. 1,30,000/- from the plaintiff. In view of the said assertion, it can neither be urged nor held that the impugned decree is a consent decree.
There is another aspect of the case. The learned trial Court, after passing the decree against the appellant, assumed the role of an executing Court and directed Nawab Masih to appear in the Court on 16.3.2006 for payment of the decretal amount. It is note worthy that the respondent did not submit any oral or written application for execution of the decree, as contemplated under Order XXI Rule 11 CPC. Additionally, Nawab Masih, who was directed to make payment, is not a "judgment debtor", as defined under Section 2(10) CPC inasmuch as he was not party to the proceedings/suit. It is, however, not understandable, even from the tenor of the impugned judgment, that under what authority of law the learned Addl. District Judge after passing the decree against the appellant, directed Nawab Masih to make the payment.
We have noted that the impugned judgment was passed and the appellant allegedly admitted the execution of the pronote, when his learned counsel was not in attendance and all the proceedings were undertaken in the presence of clerk of the learned counsel for the appellant, who had no authority to present the appellant. Thus we feel that the appellant was denied the services of his learned counsel and he was condemned unheard.
Seeing from any angle, we feel that the impugned judgment and decree suffer from numerous glaring illegalities and cannot be called a "judicial order" within the parameters of law. We are persuaded to set it aside and to remand the case to the learned District Judge for its decision afresh.
In view of the above, the present appeal is allowed and the impugned judgment and decree dated 2.3.2006, is set aside with no order as to costs. Resultantly responent's suit titled "Anwar Shehzad vs. Sardar Masih" shall be deemed to be pending before the learned District Judge Khanewal, who shall himself decide the suit after recording evidence of the parties on the issues already framed and of course in accordance with law.
(N.F.) Appeal allowed.
PLJ 2007 Lahore 639 (DB)
Present: Mian Saqib Nisar & Fazal-e-Miran Chauhan, JJ.
COL. JAVED IQBAL LODHI--Appellant
versus
Lt. Col. NADEEM AHMAR and another--Respondents
R.F.A. No. 377 of 2004, heard on 12.12.2006.
(i) Civil Procedure Code, 1908 (V of 1908)—
----Preamble--Scheme and scope--An exhaustive law providing a comprehensive mechanism for the disposal of lis--Held: Civil Procedure Code which is quite an exhaustive law, providing a comprehensive mechanism for the disposal of lis from the time of its commencement, till its conclusion. [P. 646] A
(ii) Civil Procedure Code, 1908 (V of 1908)—
----O. VII, R. 10--Return of plaint--Lack of jurisdiction--No issuance of summons on pecuniary and territorial jurisdiction--Court's duty to see valid institution of suit inherent jurisdiction of Court--Contents of plaint are basis of pecuniary and territorial jurisdiction--Lack of jurisdiction entails return of plaint--Held: It was required of a Court to see, if, the suit had been validly instituted, the Court had inherent jurisdiction to try the case, it has jurisdiction over the parties and subject matter of suit, whether on the basis of contents of the plaint, the Court is possessed of the territorial and pecuniary jurisdiction--If such jurisdiction is lacking, the Court would refuse to issue summons and would return the plaint to the plaintiff under O. VII, R. 10 CPC to be filed before appropriate forum. [P. 646] B
(iii) Civil Procedure Code, 1908 (V of 1908)—
----O. VII, R. 11--Rejection of plaint--Invalid institution of suit--No cause of action-Suit barred by any law--Proper reason for rejection--Held: Court can reject the plaint in cases where either it is not validly instituted or it does not disclose cause of action or suit is barred by any law or Court fee is not paid within the time as required by the Court--Provisions of Order 7 Rule 11 are not exhaustive and there may be other instances justifying the rejection of plaint after summoning of defendant and even during the course of trial in appropriate cases--Court may exercise the power in a proper and legal manner at any stage of the proceedings. [P. 647] C
(iv) Civil Procedure Code, 1908 (V of 1908)—
----O. VIII, R., 1--Presentation of written statement--Period of 30 days--No action against plaintiff at preliminary stage--Defendant summoned--Defendant's right to file written statement--Held: Where the Court does not take the action against the plaintiff at the preliminary stage and has summoned the defendant, who has chosen to contest the matter, the defendant would have the right to file the written statement in order to join the trial--On the completion of the pleadings of the parties, the Court would frame the issues and require the parties to prove or disprove each others case by producing evidence. [P. 647] D
(v) Civil Procedure Code, 1908 (V of 1908)—
----O. XII, R. 6--Compromise between parties--Admission by defendant of plaintiff's claim--Scope--On account of admission of plaintiff's claim by the defendant, the plaintiff becomes entitled to the decree--Suit may apply for the appropriate judgment/order on the basis of admission of other side either made in pleadings or otherwise.
[P. ] E & F
(vi) Civil Procedure Code, 1908 (V of 1908)—
----O. XV, R. 1--Disposal of suit at the first hearing--Parties are not variant at any question of law or fact--Principle--If the parties are not at issue on any question of law or fact, the Court may also pronounce the judgment at the first date of hearing. [P. 647] I, G
(vii) Civil Procedure Code, 1908 (V of 1908)—
----O.VI, R. 18 r/w S. 148--Discretionary powers--Extension of time by Court--Condition precedent--Extension be seeked for an act prescribed or allowed by Code and not for other Acts--Held: Court has the power to extend time only for doing the act prescribed or allowed by the Code"--If act is not prescribed or allowed by the Code, the provisions of Section 148 CPC would not be applicable--Under Section 149 CPC for making of the deficiency in the payment of Court fee--Court has discretion under Section 148 CPC to extend the time likewise the time fixed in terms of O. 6, R. 18 CPC for the purpose of filing the amended pleadings can be extended under S. 148.
[Pp. 648 & 649] H
(viii)Civil Procedure Code, 1908 (V of 1908)—
----Ss. 148 & 151--Discretionary powers of Court--Extension of time--Condition precedent--Extension be seeked for an act prescribed or allowed by Code--No extension of time by Court where time has been stipulated by the consent of parties--Held: Where one party has made an offer to the other for the performance of an act within a particular period of time, and such act is not performed, the Court without the consent of the parties, making offer, cannot enlarge time while exercising its powers u/Ss. 148 & 151 of C.P.C. [P. 649] I & J
1979 SCMR 593; 1983 SCMR 836; 1985 SCMR 1719 & PLD 1988 Karachi 429.
Mr. Ahmad Awais, Advocate for Appellant.
Mian Zafar Iqbal Kalanauri, Advocate for Respondent.
Date of hearing: 12.12.2006.
Judgment
Mian Saqib Nisar, J.--The suit for the specific performance brought by Respondent No. 1 against the appellant has been decreed by the learned trial Court on 24.7.2004, on the basis that the appellant/defendant has made an offer to decree the suit provided the plaintiff/respondent makes the deposit of the balance amount of consideration in the Court, which has been so deposited within the time, allowed by the Court.
Brief facts of the case are that on 30.10.2002 Respondent No. 1/vendee (hereinafter called the respondent) brought a suit for the specific performance against the appellant (vendor) stating in the plaint that the parties through an agreement dated 11.9.2002 have agreed for the sale/purchase of a plot measuring 1 kanal bearing No. 00229/2 Sector-F Phase V situated in Defence Housing Authority Lahore Cantt for a consideration of Rs. 42,00,000/-, out of which the vendee paid Rs. 5,00,000/- to the vendor and for payment of balance consideration and the finalization of the transaction 23.10.2002 was fixed as the target date. The suit was filed without affixing the Court fee of a single rupee on the plaint, though in view of Paragraph No. 3 thereof, the maximum Court fee of Rs. 15,000/- was payable.
The suit was presented before the Court on 30.10.2002 and it was directed to the plaintiff to make up the deficiency of Court fee. There are repeated orders of the Court in this behalf but the Court fee was not paid till 9.9.2003. Another important feature of the case is that on 1.1.2003 the appellant through an application in writing made an offer that if the plaintiff, makes the payment of the balance consideration of Rs. 37,00,000/- within one week he has no objection for the decree of the suit. In this behalf Paragraph No. 4 of the application is re-produced.
"That to expedite disposal of the case the petitioner is still willing to execute the sale-deed and to complete necessary documents under the agreement to sell, subject-matter of the suit provided the respondent deposits a sum of Rs. 37,00,000/- in Court within one week failing which the suit of the plaintiff be dismissed."
"Denied being incorrect. "Simultaneous payment and execution of sale-deed is in the benefit of both the parties."
However, in reply to this offer, for the first time, a plea was raised by the respondent that against the suit plot, certain dues are outstanding towards the DHA, the payment whereof under the sale agreement is the responsibility of the appellant. It may be pertinent to mention here that this plea was not set out in the plaint, rather from the contents of the plaint, it seems clear that the respondent was ready to pay the full amount of Rs. 37,00,000/- as the balance consideration and for this purpose, he also claims to have got prepared a bank draft. Anyhow, no attempt was made by the vendee to request the Court that he is prepared to deposit the amount minus the dues of DHA or that the full amount shall be paid by the plaintiff while reserving his right for the adjustment, subject to the determination by the Court regarding the obligation of either party to pay such dues. Rather the respondent for no valid reasons, insisted for the personal appearance of the appellant, who at that time was abroad, making it a condition for the deposit of the amount.
It was further observed by the Court in the order, that from the record it transpires that the respondent has not yet provided the Court fee of the amount of Rs. 15,000/- therefore, he was also directed to make up the deficiency; the case was adjourned to 09.9.2003 and by/before that, the respondent furnished the Court fee, but he did not deposit the amount of the balance consideration as was directed by the Court till then. The appellant, therefore, moved another application praying for an action to be taken against the respondent in terms of the order dated 8.7.2003 for non-compliance of the above order; whereas the respondent on 10.9.2003 moved an application for seeking the review of the order dated 8.7.2003. The Court adjourned the matter to 25.9.2003 for arguments on the review application. The appellant again repeated an application under Section 151 CPC for enforcing the consequences of the respondent's failure to comply with the said order, which was resisted to by the respondent on unfounded grounds.
27.09.2003, 8.10.2003, 13.10,2003, 14.10.2003, 16.10.2003, 17.11.2003, 10.12.2003, 22.12.2003, 10.1.2004, 11.2.2004, 18.3.2004 and finally to 15.4.2004.
On 15.4.2004, the arguments upon the application under Section 151 CPC filed by the appellant for the dismissal of the suit for non-compliance of the order dated 8.7.2003 were heard and the Court, without there being any request on behalf of the respondent either in writing or oral for the extension of time, passed the following order:--
"The plaintiff/respondent though admitting the order dated 8.7.2003 but has not deposited the arrears Rs. 3.7 millions in the Court as the balance consideration in respect of the agreement to sell of the disputed property. In view of the order dated 8.7.2003, the respondent/plaintiff is directed to deposit the arrears of consideration amounting to Rs. 3.7 million in the Court by the next date of hearing, failing which; the suit would be considered to have been dismissed. Now to come up for 17.5.2004".
"The suit is hereby decreed in favour of the plaintiff and against the defendant. No order as to costs."
Learned counsel for the appellant contends, that the conduct of the respondent by not affixing the Court fee initially and thereafter when specifically required by the learned trial Court repeatedly, reflects upon his conduct and in such circumstances the plaint should have been rejected under Order 7 Rule 11 CPC as has been enunciated by the law laid down in cases Siddique Khan and 2 others vs. Abdul Shakur Khan and another (PLD 1984 SC 289), Mubarak Ahmad and 2 others vs. Hassan Muhammad through Legal Heirs (2001 SCMR 1868), Assistant Commissioner and Land Acquisition Collector Badin vs. Haji Abdul Shakoor and others (1997 SCMR 919) and Ch. Javed Iqbal vs. Mst. Zainab Bibi and 8 others (2005 CLC 197). It is further submitted that in order to avoid the delay in the matter and save the appellant from the loss in the value of money, he without in any manner admitting the claim of the respondent, at the very outset, made an offer that if the latter deposits the balance amount of consideration within a specified period, he shall have no objection to the decree of the suit, but the respondent neither accepted the offer nor deposited the amount, rather he raised frivolous and vexatious pleas to elude the payment and in this manner, was able to linger on the matter for a period of about one year, therefore, the respondent was not ready and willing to perform his part of the agreement; resultantly in terms of Section 22 of the Specific Relief Act he was/is not entitled to the grant of discretionary relief. It is also argued that the offer of the deposit and the decree of the suit was conditional; initially it was restricted to the period of one week only and the second time it was till the next date. Such offer for a limited period could not be extended by the Court, under Section 148 CPC and that too without there being any application or verbal request of the respondent for the extension of the time, and also without the consent of the appellant; especially in the situation, when the respondent was seeking the review of the order dated 8.7.2003, thus in the circumstances, the Court should have allowed, the appellant to contest the matter on merits and to decide the case in accordance with law. The learned counsel submits that in the above facts and circumstances, the respondent was not entitled to the discretionary relief. Reliance in this regard is placed on Mehmood Arshad vs. Ali Malik and 3 other (2005 YLR 2866) and Syed Ahmad Shah and 2 others vs. Muhammad Yar and 6 others (1974 SCMR 191).
The learned counsel for the respondent submits that the said respondent throughout was ready and willing to perform his part of agreement. According to various clauses of agreement to sell, it was the duty of the appellant to clear all the dues and the charges of DHA and also to transfer the plot in favour of the respondent free from all encumbrance/charges. But as the appellant failed to discharge his liability to the tune of Rs. 7,32,000/- towards DHA, thus, he could not validly transfer the plot; in this view of the matter, the respondent was under no obligation to make deposit of the amount of Rs. 37,00,000/- in the Court. It is also argued that the respondent was ready to make the payment, as he even before the target date, stipulated between the parties for the finalization of the sale transaction, got prepared the demand draft of the total balance consideration on 22.10.2002. It is lastly submitted that for the purpose of ascertaining if any dues against the appellant were outstanding, the Court had verified it from the DHA. About the Court fee it is submitted that the omission of the respondent to deposit the Court fee is not contumacious and therefore no penal action could be taken against him. In support of his contentions, the learned counsel has relied upon Siddique Khan and 2 others vs. Abdul Shakur Khan and another (PLD 1984 SC 289), Shah Nawaz and 6 others vs. Muhammad Yousaf and 3 others (1972 SCMR 179), Malik Allah Dad and others vs. Yasin and another (1990 SCMR 1638), Muhammad Nawaz and others vs. Muhammad Sadiq and another (1995 SCMR 105), Sultan Ahmad and others vs. Khuda Bux and others (1986 SCMR 1005), Ghulam Murtaza etc. vs. Ghulam Jillani etc. (NLR 2000 Civil 510) and Khan Muhammad vs. Barkat Ali and another (1984 CLC 582).
We have heard the learned counsel for the parties. The appellant had twice made an officer that if the respondent makes the deposit of the balance consideration of Rs. 37,00,000/-, he has no objection for the decree of the suit. In this behalf, firstly an application on 1.1.2003 was moved and this offer was restricted for a period of one week only. The respondent did not accept the offer or made the deposit and took up the plea that it cannot be so done, because the appellant has failed to discharge his liability regarding outstanding dues of the DHA. Again on 08.7.2003, the appellant repeated the offer and the period this time was till the next date of hearing. The Court adjourned the matter to 9.9.2003 and it was clearly directed in the order that in case the respondent/plaintiff by the next date fails to deposit the amount, his plaint shall be rejected. This offer too was not accepted by the respondent and the order of the Court was also not complied with, rathar he moved an application on 10.9.2003 seeking the review of the order dated 8.7.2003. It may be pertinent to state here that the appellant by that time had moved an application for the dismissal of the respondent's suit for his failure to make the deposit thus, it is clear that on both the occasions, the offers were time bound/restricted; these were never made for an indefinite period of time and were never accepted by the respondent. The offers thus, automatically stood withdrawn on the expiry of the time given by the appellant. And in any case, the offer was never perfected through acceptance by the respondent, in terms of Section 2(b) of the Contract Act, 1872 and therefore, it never culminated into a binding contract between the parties. Besides, there was no offer when the appellant moved an application under Section 151 CPC for enforcing the consequences of the default on the part of the respondent in making the deposit within the time given in the second offer and in terms of the order dated 08.07.2003.
It is clear from the record that the appellant thereafter, never has given any consent for the extension/enlargement of the time, rather throughout has been insisting for the dismissal of the suit because of the respondent's failure to make the deposit within the time offered. Still, the Court on its own, has granted the extension to the respondent perhaps by exercising its power under Section 148 or 151 of the Civil Procedure Code. But from the record it transpires that neither in this behalf any application was moved by the respondent nor an oral request was made and it looks to be a suo motu exercise of the discretion by the Court. Therefore, the key question, which arises for the consideration by this Court is, if the time under Section 148 or 151 CPC can be extended by the Court in the given circumstances of the case?
In order to answer the above question, we feel expedient to briefly touch upon the scheme and the scope of the Civil Procedure Code, which to our mind is quite an exhaustive law, providing a comprehensive mechanism for the disposal of the lis from the time of its commencement, till its conclusion. In this behalf it may be stated that even before issuing the summons of a case to the defendant, which can be termed as preliminary stage, it is required of a Court to see if, the suit has been validly instituted; the Court has the inherent jurisdiction to try the case; it has the jurisdiction over the parties and the subject matter of the suit; whether on the basis of the contents of the plaint, the Court is possessed of the territorial and the pecuniary jurisdiction, as the case may be. However, if such a jurisdiction is lacking, the Court shall refuse to issue the summons and shall return the plaint to the plaintiff under Order 7 Rule 10 CPC to be filed before the appropriate forum. The Court at this very stage can also reject the plaint in the cases where either it is not validly instituted or it does not disclose a cause of action or a suit is barred by any law or the Court fee is not paid within the time as required by the Court. It may also be mentioned that as the provisions of Order 7 Rule 11 CPC are not fully exhaustive and there may be other instances justifying the rejection or the plaint after summoning of the defendant and even during the course of the trial in appropriate cases, the Court may, therefore, exercise the above power in a proper and legal manner at any stage of the proceedings. But where the Court does not take the action against the plaintiff at the preliminary stage and has summoned the defendant, who has chosen to contest the matter, the defendant shall have a right to file the written statement in order to join the trial issues, thus, on the completion of the pleadings of the parties, the Court shall frame the issues and require the parties to prove or disprove each others case by producing evidence.
The above exercise, however, shall not be undertaken if at the preliminary stage or during the trial, either through the compromise between the parties the lis is settled by them, or on account of the admission of the plaintiff's claim by the defendant, the plaintiff becomes entitled to the decree. In this behalf, we feel expedient to specifically refer to the provisions of Order 12 Rule 6 CPC on account of which, any party to the suit may apply for the appropriate judgment/order on the basis of the admission of other side either made in the pleadings or otherwise.
It may also be mentioned that in terms of Order 15 Rule 1 CPC, if the parties are not at issue on any question of law or fact, the Court may also pronounce the judgment at the first date of hearing. But in all other cases where the parties have joined the issues, the lis (except in the case of dismissal for the non-prosecution or ex-parte, or on account of the application of Order 17 Rule 3 CPC) has to be decided by the Court on the basis of holding of the regular trial, through a judgment and decree. But this does not mean that the power of the Court to return the plaint or its rejection, as has been elucidated above, shall be circumvented after the preliminary stage has passed, and the matter is fixed at the pretrial stage or in the course of the trial.
Testing the present case on the above stated criteria, it is clear from the contents of the application dated 01.01.2003, that the appellant in order to avoid any delay in the matter, had offered for the deposit of the balance consideration amount by the respondent and never admitted his claim. Because in Paras No. 3 & 5 of the said application, it is stated that:--
"3. That the respondent never tendered any amount, rather he requested the petitioner for extension of time as money was not available with him. The petitioner was always ready to execute the sale-deed or any other document for completion of transaction, subject-matter of the agreement to sell but the respondent failed to honour his commitment under the agreement and as such as per agreement his earnest money stands forfeited.
Therefore, the instant case is not covered by Order 12 Rule 6 of the Civil Procedure Code, and the respondent also never asked the Court to pass the decree in terms of the offer of the appellant, rather joined the issue about the liability qua the DHA dues. The case also does not fall within the purview of Order 15 Rule 1 CPC. Resultantly, in the light of the scheme of the law, the Court should have permitted the appellant to exercise his right of contesting the matter by filing the written statement, rather than decreeing the suit of the respondent in the fashion it has been done.
"Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."
From the clear language of the Section, there is no room for ambiguity or doubt that the Court has the power to extend the time only "for the doing of any act prescribed or allowed by the Code". And if the act is not prescribed or allowed by the Code, the provisions of Section 148 CPC shall not be applicable. For the purposes of explaining, it may be mentioned that under Section 149 CPC for the making up of the deficiency in the payment of the Court fee, the Court has the discretion under Section 148 CPC to extend the time originally fixed for that purpose; likewise, the time fixed in terms of Order 6 Rule 18 CPC for the purpose of filing the amended pleadings can be extended under the said Section. There are some other instances where the Court may allow extension of time under Section 148, for doing of the acts, which all are "prescribed or allowed by the Code"; such as:--
Order 8 Rule 9, Order 9 Rule 9, Order 11 Rule 9 and 17, Order 17 Rule 4, Order 16 Rule 2, Order 21 Rule 17 and 33, Order 25 Rule I, Order 41 Rule 10, 19, 21, 22, 26, Order 43 Rule 3 and Order 47 Rule 7.
In all the above cases, even if the time originally fixed by the Court has elapsed, the Court obviously by adhering to the rules for the exercise of the discretion may enlarge the time and there can be no cavil or the grouse about the authority of the Court in this behalf.
If any judgments we required upon the point that the time fixed by the Court with the consent of the parties cannot be extended, reference can be made to the cases reported as Saat Malook vs. Rozi Khan (1979 SCMR 593), Sirajud Din Banjmin through his legal heirs and another vs. Haji Abdul Latif and 4 others (1983 SCMR 836), Mushtaq and others vs. Rabian Bibi and others (1985 SCMR 1719) and Synthetic Chemicals Company Ltd. (Judicial Miscellaneous No. 40 of 1979) PLD 1988 Karachi 429.
In the present case, there was even no consent ever given by the respondent to deposit the amount as offered by the appellant so as to constitute a valid contract between the parties as mentioned above, rather it was one sided offer, which was made by the appellant and that too for a specific period of time. For the first occasion it was for one week and on the second till the next date of hearing, but on both the occasions, the respondent did not accept the offer; And on one pretext or the other, resisted to make the deposit; even despite the order by the Court i.e. "plaint shall stand rejected if the deposit is not made" the deposit was not made. Therefore, we are constrained to hold that in such like cases, where one party has made an offer to the other for the performance of an "Act" within a particular period of time, and such Act is not performed, the Court without the consent of the party, making an offer, cannot enlarge the time while exercising its power under Section 148 or Section 151 of the Civil Procedure Code. It is only with the consent of the party offering that the time can be further granted. In the instant case, as has been specifically mentioned above, the appellant had moved an application immediately after 9.9.2003 that an action be taken against the respondent for his failure to comply with the order. This means that there was an express revocation of the offer by the appellant before it was accepted by the respondent, in the light whereof, the Court was left with no authority or the jurisdiction to grant the extension.
It may be pertinent to state here that even while depositing the amount of Rs 37,00,000/-, the respondent never again took up the plea that any amount is outstanding to the DHA, which should be paid by the appellant; this means that it was accepted to be the responsibility of the respondent, leading to an inference that earlier the respondent has been raising the plea with the purpose to avoid the deposit and in this manner, was able to buy time for about a year. We, therefore, are of the considered view that the judgment and decree of the Court below based upon the deposit of Rs. 37,00,000/- by the respondent after the expiry of the time offered by the appellant, which could not be enlarged by the Court under Section 148 and Section 151 CPC, is absolutely illegal and untenable, which is hereby set aside. The matter is remanded to the learned trial Court; the Court shall issue notice to the parties for their appearance before it, where the appellant shall be enabled to file his written statement and the Court shall decide all the issues joined by the parties, in accordance with law. Before parting we may state that the Court below shall decide the matter without being influenced by any observation or inference made/drawn in this judgment. The appeal is accordingly allowed.
(W.I.B.) Appeal allowed.
PLJ 2007 Lahore 650 (DB)
Present: Maulvi Anwar-ul-Haq & Syed Asghar Haider, JJ.
M/s ORIENT OCCIDENT (PVT.) LIMITED through its and 4 others--Appellants
versus
M/s UPAZA COMMERCIAL ENTERPRISES and 2 others--Respondents
R.F.A. No. 884 of 2001, heard on 28.11.2006.
(i) Civil Procedure Code, 1908 (V of 1908)—
----S. XXIII, R. 3--Pronouncement of judgment--Compromise between parties--Principle--Once a compromise had been recorded, the Court was bound to pass a decree in accordance therewith. [P. 654] A
(ii) Civil Procedure Code, 1908 (V of 1908)—
----O. IX, R. 6--Case was fixed for hearing of application--Exparte proceedings--Held: Application was called for hearing and the suit itself was neither fixed nor called for hearing--Trial Court could dismiss the application for non-prosecution but it had no jurisdiction to proceed against the defendant ex-parte. [P. 654] B
(iii) Limitation Act, 1908 (IX of 1908)—
----S. 3--Question of Limitation--Recording of compromising statement between the parties--Court proceeded expartee against defendant--Suit was not fixed for hearing--Held: Impugned judgment and decree was wholly without jurisdiction--Effect--Compromise had been effected and was infact recorded by trial Court and it had no option but to pass a decree in accordance. [P. 654] C
2002 SCMR 122; 1993 SCMR 1949; 2004 YLR 175 and
PLD 1971 SC 61 ref.
Ch. Imdad Ali Khan, Advocate for Appellants.
Respondent No. 1 proceeded exparte on 18.4.2006.
Respondents Nos. 2 & 3 proceeded exparte on 28.9.2006.
Date of hearing: 28.11.2006.
Judgment
Maulvi Anwar-ul-Haq, J.--On 22.10.1995, Respondent No. 1 filed a suit against the appellants and Respondents No. 2 & 3 for recovery of Rs. 32,39,412/-. In view of narration of the facts to follow the contents of the plaint need not be reproduced in detail, suffice it to say that as per details given in para-4 of the plaint, the defendants in the case were said to have purchased rice of the value of Rs. 38,39,412.62 from the Plaintiff/Respondent No. 1. As per para-7, the defendants made a payment of Rs. 6,00,000/ leaving a balance of Rs. 32,39,412/- i.e. the suit amount. A decree was accordingly prayed for. It appears that the record of the suit was burnt and the same was reconstructed and the matter was being adjourned accordingly. On 15.9.1996, the case was taken up in presence of Col.(R) Umar Khalid, Proprietor of Respondent No. 1/Plaintiff and Wazir Ahmad, Director of the Appellant No. 1. It was stated that a compromise has been entered into between the parties. Whereas the plaintiff has claimed a sum of Rs. 32,39,412/- from the defendants, it has been agreed that the plaintiff shall be paid a sum of Rs. 24,81,412/-. A sum of Rs. 3,00,000/- has already been paid in cash. A Bank Draft in the sum of Rs. 12,89,412/- drawn on National Bank of Pakistan dated 15.9.1996 has been delivered. The balance amount of Rs. 9,00,000/- will be paid on 30.9.1996 and the learned trial Court also recorded the receipt of said bank draft by said Umar Khalid. The case was adjourned to 30.9.1996. On this date the case was adjourned on the request received from the learned counsel for the defendants to 5.10.1996. On 5.10.1996, learned counsel for the defendants stated that Cheques No. 712826 to 712850 drawn against Account No. 8196-9 at National Bank of Pakistan are lying with Col.(R) Umar Khalid and in case he states that he will destroy the said cheques and that he or his heirs or any person would not use the said cheques, balance amount of Rs. 9,00,000/- is ready for payment to him and bank draft dated 3.10.1996 has been got issued. Photo copy of the same was presented. Learned counsel further stated that in case of non-compliance of the said condition he has instructions not to make balance payment.
The suit was later transferred to another learned Court where a Misc. Application under Section 151 CPC was filed by the defendants. The case was adjourned to 29.10.1996. A reply was filed on 23.11.1996. Thereafter the case was being adjourned from time to time for arguments on the said application. On 5.4.1997, the said application was called for hearing when the Plaintiff/Respondent No. 1 alongwith his counsel was present and none appeared for the defendants. Learned trial Court not only dismissed the said application for non-prosecution but also proceeded exparte against the defendants in the suit itself. Exparte evidence was recorded and the suit was decreed in the sum of Rs. 29,02,608/- on 16.4.1997. We may note here that while calculating the said amount learned trial Court adjusted the amount paid as a result of said compromise.
This appeal on the face of it is barred by time. Learned counsel contends that the impugned exparte judgment and decree is wholly without jurisdiction. According to him a compromise had been duly recorded and further acted upon and as such learned trial Court was bound to pass a judgment in the suit in accordance with the same. The appellant had never refused to make further payment rather bank draft was brought to the Court. Further points out that the date on which the exparte proceedings were ordered was not the date in the suit. The respondents have been proceeded against exparte in this case.
We have gone through the record with the assistance of the learned counsel and we have narrated above the details of the proceedings that have taken place before the learned trial Court. Before we proceed further, we may note here that the appellants prayed for the stay of execution of the decree vide C.M.No.2/C/01. This C.M. was taken up on 27.8.2002 in presence of the learned counsel for the appellant and Mr. Saeed Sabir, Advocate, learned counsel for the Plaintiff/Respondent No. 1/decree holder. The appellant offered that they are ready to make deposit of Rs. 9,00,000/- which was admittedly a balance compromise amount and to furnish security for the remaining amount. This offer was accepted by the learned counsel for Respondent No. 1. A direction was issued to the appellants to deposit the said amount and further allowed the Respondent No. 1 to withdraw the said amount. The execution was stayed. Learned counsel states at the bar that as per his instructions, the said amount has since been withdrawn by Respondent No. 1. Later Respondent No. 1 absented himself on 22.11.2005. Notice was issued to him which was duly served but he failed to appear and was proceeded against exparte on 18.4.2006.
As noted by us above, both the parties stated that a compromise has been effected, entire suit has been adjusted subject to payment of Rs. 24,81,412/- by the defendants to the Plaintiff/ Respondent No. 1. Receipt of Rs. 3,00,000/- in cash was acknowledged while bank draft for Rs. 12,81,412/- delivered unto Respondent No.
On 5.10.1996, the appellants had brought balance payment with them in the form of bank draft but their learned counsel put up the said condition regarding cheques which were in possession of the Respondent No. 1. Learned counsel for Respondent No. l stated that his client does not want to give any statement in this behalf. Learned trial Court proceeded to observe To our mind this observation is wholly without lawful authority. The compromise and conditions had been recorded and partly acted upon. Even if the defendants had not paid the balance, a decree could have been passed and the amount could have been recovered in execution. However, a compromise had been effected and already recorded. Learned counsel relies on the cases "Sourendra Nath Mitra and others v. Tarubala Dasi "(AIR 1930 PC 158), "Charles Hulert Kinch v. Edward Ketih Walcott and others" (AIR 1929 PC 289) and the judgment of AJK Supreme Court in the case Shaukat Habib and 5 others v. Raja Muhammad Bashir and another" (2004 YLR 175), to urge that once a compromise had been recorded, the Court was bound to pass a decree in accordance therewith. We also find that on 5.4.1997 only the said Misc. application was called for hearing and the suit itself was neither fixed nor called for hearing. Learned trial Court could dismiss the application for non-prosecution but it had no jurisdiction to proceed against the defendants in the suit exparte. Reference be made to the case of "Qazi Muhammad Tariq v. Hasin Jahan and 3 others" (1993 SCMR 1949).
This leaves the question of limitation in filing of this first appeal. As discussed by us above, the impugned judgment and decree is wholly without jurisdiction. The compromise had been effected and was in fact recorded by the learned trial Court and it had no option but to pass a decree in accordance therewith. Instead of doing the needful, learned trial Court proceeded against the defendants exparte on a date on which the suit was not fixed for hearing.
In the said circumstance of the case, question of limitation does not arise and in any case is of no significance. Reference be made to the case "Sardar Ahmad Yar Khan Jogezai and two others vs. Province of Baluchistan through Secretary C&W Department" (2002 SCMR 122). The following excerpt from the leading opinion in the said judgment is reproduced hereunder:--
"It is well settled that when essential features for assumption of jurisdiction are contravened or forum exercises powers not vested in it, or exceeds authority beyond limits prescribed by law, the judgment is rendered coram non-judice and inoperative. The question regarding bar of limitation in such exceptional cases loses significance. For authority reference can be made to the observation in cases :--
(i) Atta Muhammad Qureshi v. The Settlement Commissioner and others (PLD 1971 SC 61).
(ii) Mrs. Zubaida Begum v. Mrs. S.T. Naqvi (1986 SCMR 261).
(iii) Malik Khawaja Muhammad and another v. Provincial Government of Baluchistan through Collector Khuzdar (1986 CLC 2951).
Since the impugned decision of executing Court conflicts with judgment of High Court dated 4.11.1985, clearly contravening settled principles of justice and spirit of law, therefore, same is coram non-judice and devoid of lawful authority. Thus, in the peculiar circumstances bar of limitation would not apply, and delay in filing appeal for the above reasons is condonable. Accordingly I am inclined to exercise discretion in favour of the appellants by granting request concerning condonation of delay."
Delay in filing of this RFA is accordingly condoned. The entire amount in accordance with the compromise entered upon between the parties stands paid. The R.F.A. accordingly is allowed. The impugned judgment and decree dated 16.4.1997, passed by the learned trial Court is set aside and instead a decree is passed in favour of the Plaintiff/Respondent No. 1 and against the defendants in the suit in accordance with the compromise recorded on 15.9.1996 in the sum of Rs. 24,81,412/- which entire amount stands paid or deposited.
No orders as to costs.
Records of the learned trial Court be remitted back immediately.
(W.I.B.) R.F.A. allowed.
PLJ 2007 Lahore 655 (DB)
Present: Nasim Sikandar & Muhammad Sair Ali, JJ.
PASSCO--Appellant
versus
M/s OMER (PVT.) LTD.--Respondent
F.A.O. No. 104 of 2006, decided on 6.11.2006.
(i) Jurisdiction--
----Jurisdiction of Court--Concession or objection--Contrary to law concession and objection made by parties about jurisdiction--Effects--Held: Court system is created under the Constitution and laws--Jurisdiction of Courts is conferred and defined--Consent or concession of a party or parties cannot create or confer nor can it curtail or case out jurisdiction in a Court--As such objection of a defendant and concessional statement of plaintiff cannot absolve the Court of its duty to decide the question of existence or non-existence of its jurisdiction with reason and reference to law. [Pp. 658 & 659] A
1967 SC 314; PLD 2006 SC 328; 1990 CLC 821.
(i) Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)—
----S. 7--Civil Procedure Code (V of 1908), S. 9--Jurisdiction of Court--Objection about jurisdiction--Validity--Held: A plea on jurisdiction, when raised by a defendant, is a plea of defence of the suit--Such plea or objection can be taken by a defendant in the leave petition and also in the written statement if submitted after grant of leave. [P. 659] B
(iii) Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 10(i)--Provisions--Entitlement--Defendant would not be entitled to defend the suit unless he obtain leave from Banking Court as provided to defend same--Allegations affect in plaint would be deemed to be admitted and Banking Court may pass a decree in favour of plaintiff on the basis thereof. [P. 659] C
(iv) Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----Ss. 9(3) & 10--Leave to defend--Issaunce of summons--Effect--Held: Summons issued under the Ordinance of 2001 in a banking suit, only allow the defendant limited right to enter the Court for seeking its leave to defend the suit--Defendant has no right to enter the suit--It is only on the leave of the Court that defendant gets right to enter the suit for its defence. [P. 660] D
(v) Banking Companies (Recovery of Loans Advances Credit & Finances) Act, 1997-
-
----S. 10--Leave proceedings--Jurisdiction of Court--Determination--Held: Exercising the leave jurisdiction, the Court can only decide whether substantial question of law and facts have been raised in the leave petition by the defendant or not--If questions have been raised the leave is to be granted on terms or without terms--Leave petition is to be rejected if it does not show existence of triable defence questions--Court is only to examine the veracity, the seriousness and the substance of questions raised by the defendant in his leave application--Order accordingly. [P. 660] E
2006 CLD 816; PLD 2006 SC 328 & 2004 CLD 726 ref.
Mr. Sultan Tanvir Ahmed, Advocate for Appellant.
M/s Omer Aziz and M. Salman Masood, Advocates for Respondent No. 2.
Date of hearing: 6.11.2006.
Order
M/s Omer (Pvt.) Ltd. (Respondent No. 1) filed a suit in Banking Court No. 1, Lahore for declaration and permanent injunction against the appellant PASSCO, Saudi Pak Commercial Bank Ltd. (Respondent No. 2) and Allied Bank of Pakistan Ltd. (not impleaded in this appeal). The said plaintiff in the suit claimed non-encashability of the bank guarantees issued by the respective banks to guarantee its performance to PASSCO i.e. the appellant. Perpetual injunction against invocation by PASSCO and encashment by the banks of the said bank guarantees was also prayed for.
Upon service of summons, the suit defendants (including the appellant) respectively filed their applications for leave to defend the suit. The jurisdiction of the banking Court was also challenged in the applications. The leave applications remained undecided. Instead on 28.02.2006 the learned counsel for the Respondent No. 1 (the plaintiff) conceding to the objection of the defendants stated that the learned banking Court had no jurisdiction to entertain the suit. The learned Judge, banking Court thereupon returned the plaint to Respondent No. 1 i.e. the plaintiff for its presentation in the proper Court.
Against the above order dated 28.2.2006, the appellant i.e. PASSCO filed the present appeal. On notice through the special messenger, Mr. Omer Aziz, Advocate appeared for Respondent No. 2 i.e. Saudi Pak Commercial Bank Ltd. Respondent No. 1 (M/s Omer Private Ltd. i.e. the plaintiff) was duly served but despite calls, no one appeared for it. Respondent No. 1 was thus proceeded against ex-parte.
The learned counsel for the appellant conceding that an objection in the leave application was raised by the appellant qua the jurisdiction of the learned banking Court, contended that mere routine objection did not debar the appellants to file this appeal. And that if the routine objection of the appellant in the leave application could be stretched to mean the consent (though it was not) even then the same did not debar the appellant to file the appeal because an objection or concession against the law could neither bind the Court nor the parties and that there was no estoppel against the law. And that the learned Judge, banking Court passed a void order containing no reasons whatsoever for the return of the plaint merely on the statement of Respondent No. 1's counsel. Further that the learned Judge, banking Court was obligated under the law to first deal with and decide the leave applications of the defendants before proceeding to decide the objection or question of Court's jurisdiction. Reliance was placed on the case of "Messrs Suit Northern Gas Pipelines Ltd. through Deputy Chief (Legal) Vs Muslim Commercial Bank Ltd., Avari Hotel Branch, Lahore through Manager and another" (2006 CLD 816) in support of the contention that without the decision of the leave application, the learned banking Court could not proceed on the objection or concession on jurisdiction to return the plaint.
In the contrary arguments, the learned counsel for Respondent No. 2 supported the impugned order of the return of plaint by seeking to apply the consent bar upon the appellant to file the present appeal. The learned counsel also supported the impugned order dated 28.02.2006 by contending that the appellant being beneficiary of the guarantee, was not a "customer" under the Financial Institutions (Recovery of Finances) Ordinance, 2001 to maintain its suit.
Heard.
In the suit of Respondent No. 1, the leave applications were filed by the appellant and other defendants with objection to the jurisdiction of the learned banking Court. These leave applications remained undecided. Instead on 28.02.2006, the learned counsel for Respondent No. 1 i.e. the plaintiff conceding to the defendants' objection stated that the learned banking Court had no jurisdiction. Acting upon this statement, the learned Judge banking Court returned the plaint through order dated 28.02.2006.
Could the learned Court so act is the question before us.
In the impugned order dated 28.2.2006, no reason or ground was recorded by the learned Judge Banking Court on the absence of the Court's jurisdiction to entertain the suit. The impugned order was passed mechanically. The learned Judge proceeded merely upon the statement and concession of the learned counsel for the Respondent No. 1 i.e. the plaintiff. The appellant and the other defendant had although formally objected to the jurisdiction of the banking Court in their leave petitions yet the learned Judge did not hear them while ruling the jurisdiction out. They were neither asked nor did they specifically consent to the return of the plaint. The defendants were not even confronted as to whether they pressed their objection or not. The appellant or the other defendant were denied participation as well as the hearing in the proceedings. The learned Judge Banking Court also did not incline himself to inquire into and adjudge upon the reasons on the absence of the Court's jurisdiction. The Court also denied itself the benefit of the wisdom of law on the subject. The impugned order does not disclose the learned Judge's input or the applicability of mind. It is a non-speaking and inexplicit order containing no reasons to support the Judge's conclusion on the absence of Court's jurisdiction and consequent return of the plaint.
The blindfolded acceptance of the concession or objection on Court's jurisdiction without scrutinizing the legality of such objection or concession is a course contrary to the law. The Court system is created under the Constitution and the laws. Jurisdiction of the Courts is conferred and defined therein. The consent or concession of a party or the parties cannot create or confer nor can it curtail or case out jurisdiction in a Court. As such the objection of a defendant and concessional statement of a plaintiff thereto cannot absolve the Court of its duty to decide the question of existence or non-existence of its jurisdiction with reasons and reference to the law.
Court's jurisdiction under the special statute i.e. Banking Companies Ordinance, 2001 was a serious and important question of law (may be a mixed question of law and facts). It could not have been dealt with superficially as has been done in this case by the learned Judge Banking Court. Its determination could not be made without reference and examination of the legal provisions. Neither the facts of the case nor the provisions of law were referred to or considered by the learned Judge Banking Court in the impugned order.
The learned counsel for the appellant is justified in stating that even otherwise the appellant's objection on Court's jurisdiction was not relevant if under the law the Court had jurisdiction. An objection or concession contrary to the law did not bind the appellant or any party and the principles of estoppel were also inapplicable. The law on the subject has to be given effect to. In "Muhammad Afzal Vs Board of Revenue, West Pakistan and another" (1967 SC 314), mere submission of a respondent to the jurisdiction of a tribunal was held by the Hon'ble Supreme Court of Pakistan as a factor which "could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power."
Following the above precedent, it was reiterated in the case of "Multan Electric Power Company Ltd. Vs Muhammad Ashiq and others" (PLD 2006 SC 328) in terms of the case of "Chief Administrator of Auqaf, Punjab Vs Allah Ditta and another" (1990 CLC 821) that "term `jurisdiction' which refers to the legal authority and the competence of the Court to administer justice is conferred by law only. It can neither be conferred nor taken away by consent of parties. Even submission shall not confer jurisdiction where it does not exist. "
We are also of the considered opinion that a plea on jurisdiction, when raised by a defendant, is a plea of defence of the suit. Such plea or objection can be taken by a defendant in the leave petition and also in the written statement if submitted after grant of the leave. The suit in this case was terminated by the return of plaint even prior to the decision of the leave application. The suit did not reach the stage of the written statement.
Sub-section (1) of Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 bars the summoned defendant to defend the suit without first obtaining leave from the Banking Court. The provisions thereof are negatively mandated that "the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court as hereinafter provided to defend the same." sub-section (1) also prescribes a consequence of non-obtaining of the leave that "in default of his doing so, the allegations of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof........" The summoned defendant however can file an application for leave to defend the suit in terms of sub-sections (3) (4) and (5) ibid. On plaintiff's reply, the Banking Court under sub-sections (8) and (9) decides as to whether "substantial questions of law and facts have been raised in respect of which the evidence needs to be recorded...". In the absence of such questions, the Court is to reject the application and pass a decree as per the law. If in the opinion of the Banking Court such questions exist, it must grant leave to the defendant to defend the suit either on terms or otherwise. On unconditional leave, or if the leave is conditional on defendant's compliance with the condition (s), the learned Judge Banking Court is to treat the leave petition as the written statement and frame issues on the litigated questions. Evidence is then recorded and the suit is decided.
Stated precisely the summons issued under the Ordinance of 2001 in a banking suit, only allow the defendant a limited right to enter the Court for seeking its leave to defend the suit. The defendant has no right to enter the suit. It is only on the leave of the Court that the defendant gets the right to enter the suit for its defence.
In the leave proceedings, jurisdiction of the Court is also limited. Exercising the leave jurisdiction, the Court can only decide whether substantial questions of law and facts have been raised in the leave petition by the defendant or not and as to whether leave is to be granted to a defendant or not. If questions have been raised the leave is to be granted on terms or without terms leave petition is to be rejected if it does not show existence of triable defence questions. The Court is only to examine the veracity, the seriousness and the substance of the questions raised by the defendant in his leave application. The Court is not to decide these questions at the leave stage. It is on the grant of leave that the leave application will be deemed to be the written statement and the questions raised therein will be transposed into the issues and decided as such. In the present case the learned Judge Banking Court only received the leave petition and kept it pending. It was neither considered nor decided. But through the impugned order the plaint was returned.
In "S.M. Akil Fakree vs. Muhammad Qamaruz Zaman" (PLD 1982 Karachi 745), it was held that "without obtaining leave to appear and defend, a defendant will not be heard by the Court in defence of the action ........ and ........ unless the bar is removed the suit will not be ripe for trial and the question of stay will not arise at all." It was further held that "unless me defendant obtains leave to appear he cannot even file ..... an interlocutory applications."
In "Habib Bank Limited vs. Olympia Hosiery Works" (1988 CLC 1340) also it was observed that leave application of the defendant was to be decided first before entertaining application for the rejection of plaint.
"Messrs United Distributors Pakistan Limited vs. Ahmed Zarie Services and another" (1997 MLD 1835) further explained that till grant of leave, a defendant cannot file interlocutory application even on the jurisdiction of Court etc.
In "Messrs Platinum Insurance Company through Chief Executive vs. Messrs Highways Bridge, Contractor International (Pvt.) Ltd. And another" (1997 MLD 2394) the rule laid down was that in the absence of the grant of leave to defend the suit, it was premature for the defendants to raise the issue of suit maintainability or that of the cancellation of revenue stamps on the promissory notes.
In "Messrs Waheed Corporation through Proprietor and another vs. Allied Bank of Pakistan through Manager" (2003 CLD 245) it was adjudged that-----"As the suit was not fixed for hearing, therefore, the learned Banking Court could not have rejected the plaint ------ and ----- the defendant cannot even file any ancillary/interlocutory application and have no right to defend the suit, unless he is allowed by the Court to defend the suit." "Falcon Ventures Pvt. Ltd. Through Chief Executive, Iftikhar Ahmed vs. Punjab Banking Court No. II, Lahore and another" (2004 CLD 726) pronounced that allowing defendant's application under Order VII, Rule 11 CPC before allowing leave to defend, was against the object and purpose of law.
The learned counsel for the appellant also validly relied upon the case of "Messrs Sui Northern Gas Pipelines Ltd. through Deputy Chief (Legal) Vs Muslim Commercial Bank Ltd., Avari Hotel Branch, Lahore through Manager and another" (2006 CLD 816) wherein an Honourable Division Bench of this Court in identical circumstances decided that the learned Banking Court was obliged under the law to first decide respondent's application for leave to defend the suit before invoking the provisions of Order VII, Rule 10 CPC for the return of plaint for absence of jurisdiction.
We therefore hold that the impugned order dated 28.2.06 for the return of plaint as passed by the learned Judge Banking Court No. 1, Lahore was against the law and it is set-aside. The suit shall be deemed to be pending before the learned Banking Court who shall first consider and decide the leave applications filed by the defendants and then proceed to decide the question of its jurisdiction or/and the suit in accordance with law.
The learned counsel for the parties also informed us that after the impugned order dated 28.2.06, the Respondent No. 1 presented the plaint before the Civil Court and obtained an interim injunction against encashment of the guarantees. As the impugned order dated 28.2.06 has been set-aside by this Court, the proceedings in the suit and the orders passed therein by the learned Civil Judge shall cease to be of any legal effect. The case file shall be transmitted urgently by the learned Civil Judge to the learned Banking Court No. I Lahore who shall decide the leave applications and the question of its jurisdiction within a period of sixty days from the date of the receipt of case files from the Civil Court. If the learned Banking Court decides to proceed with the suit, the application for the temporary injunction shall also be re-decided.
Appeal accepted in above terms.
(W.I.B.) Appeal accepted.
PLJ 2007 Lahore 662
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
TARIQ RASHEED--Petitioner
versus
A.D.J. etc.--Respondents
W.P. No. 6754 of 2006, decided on 26.2.2007.
(i) Urban Rent Restriction Ordinance, 1959—
----S. 15(8)--Civil Procedure Code (V of 1908), O.I, R. 10--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Application by co-sharer for impleading as party was dismissed--Appeal was also failed--Assailed--Constitutional petition--Exhausting of all available remedies--Petitioner had filed writ petition when the order and judgment have attained finality and cannot be agitated or called in question in view of S. 15(8) of the Punjab Urban Rent Restriction Ordinance. [P. 667] A
(ii) Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----S. 15(8)--Constitution of Pakistan, Art. 199--Factual controversy between parties--Constitutional jurisdiction--Scope--Contentions raised by the petitioner involved factual controversies which cannot be interfered in the Constitutional jurisdiction of High Court.
[P. 667] B
2005 YLR 1126; PLD 2005 Lah. 422.
Malik Iqbal Rasool, Advocate for Petitioner.
Syed M. Ali Gilani, Advocate for Respondents.
Date of hearing: 26.2.2007.
Order
Through this constitutional petition, the petitioner has assailed the orders of ejectment passed by the two Courts below dated 29.4.2005 of the learned Senior Civil Judge/Rent Controller Khanewal and judgment dated 26.6.2006 passed by the learned Additional District Judge, Khanewal.
Brief facts succinctly required for the determination of the instant writ petition are that the respondent Mst. Rehana Ikram filed eviction petition before the Rent Controller, Khanewal, stating therein that the petitioner is a tenant in the rented property i.e. shop with Chobara at the rate of Rs. 15,000/- per month.
The property devolved upon the respondent and her brother Tariq Rasheed petitioner and according to their shares, she and her brother Tariq Rasheed became co-owner of the rented property. Thereafter, Tariq Rasheed exchanged his shop and chobara with her in lieu of agricultural land. The exchange deed was got registered on 19.4.2001 with the office of the Sub-Registrar, Khanewal, Thereafter the respondent duly informed the tenant Muhammad Arif. However, Muhammad Arif tenant did not pay rent to Mst. Rehana Ikram respondent, therefore, Muhammad Arif the tenant defaulted in the payment of the rent. Moreover, the respondent also urged her personal need.
Muhammad Arif tenant admitted the fact of being tenant in the property but his stand was that he is tenant under Tariq Rasheed who has received advance rent from him for a period till March, 2005 and he is not a defaulter. Further he also denied the relationship of landlord and tenant between himself and the respondent Mst. Rehana Ikram. No notice under Section 13-A of the Rent Restriction Ordinance, 1959 regarding change of Ownership had been issued to him.
The learned trial Court framed the following two issues:
whether the relationship of landlord, and tenant exists between the parties? OPA.
Relief.
During the pendency of the petition on 29.4.2003 Tariq Rasheed petitioner filed an application for being impleaded as party to the petition. The same was resisted by the respondent and the same was dismissed by the Rent Controller vide his order dated. 7.6.2004 on the ground that in the instant petition of ejectment the Rent Controller was to determine whether relationship of landlord and tenant exists between the respondent Mst. Rahana Ikram and Muhammad Arif. The petitioner filed a revision petition against order dated 7.6.2004 which stood dismissed as withdrawn vide order dated 7.1.2005.
In the meanwhile, Muhammad Arif tenant filed an application for staying the proceedings before the Rent Controller, the application was resisted by the respondent, the same was rejected and Muhammad Arif tenant was directed to produce evidence on 5.4.2005.
On 5.4.2005, Muhammad Arif tenant recorded his statement in the following terms:
"I had got the tenancy in respect of the suit property from Tariq Rasheed, brother of Mst. Rehana Ikram. Petitioner Tariq Rasheed has received the rent from me for the period till 28.3.2005. I have relinquished the tenancy and have handed over the possession of rented property to Tariq Rasheed. I am. no more in possession over the suit property in any capacity".
The petitioner Tariq Rasheed after the statement of Muhammad Arif on 3.4.2005 again moved an application for being impleaded as a party whose earlier application for being impleaded as party had been rejected vide order dated 7.6.2004 on the ground that since Muhammad Arif the tenant has stated in the Court that he has handed over the possession of the shop rented property to him, therefore, he is necessary party. At this stage Mst. Rehana Ikram respondent made a statement before the Rent Controller that the ejectment petition is pending for the last 3 years. She has produced her evidence but respondent/tenant Muhammad Arif did not produce any evidence rather he is in collusion with Tariq Rasheed are being upon to deprive her from the fruits of the property which is owned by her; in fact Muhammad Arif is uptil now in possession, it just to frustrates the instant ejectment petition and to further prolong the proceedings so she may not get justice for decades and prayed that eviction of the respondent/tenant Muhammad Arif and Tariq Rasheed be ordered. The Rent Controller keeping this background rejected the application of the petitioner for impleading as party and observed that register Haqdaran Zameen shows Mst. Rehana Ikram as owner of 4 marlas 5 sirsahi of the rented property and that the same was obtained under exchange deed available on record as Ex. A2 that respondent Mst. Rehana Ikram had become owner of the rented property on the basis of exchange deed and passed eviction order dated 29.4.2005 in terms that Muhammad Arif/respondent/tenant and Tariq Rasheed whoever is in possession of rented property shall vacate the rented property/shop within 15 days.
After passing of the eviction order, the petitioner filed an appeal against the order dated 29.4.05, the same was dismissed vide judgment dated 26.6.2006 upholding the eviction order dated 29.4.2005. Thereafter the respondent obtained possession of the disputed property on 31.5.2005 on the basis of warrant of possession issued by the Executing Court. Hence the instant writ petition.
It is inter alia contended that there was no notice through registered A.D. issued to the tenant regarding the change of ownership, under Section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 a notice was mandatory in absence whereof no ejectment order could be passed, that there was no possibility of Respondent No. 4 being defaulter because admitted advance rent uptil 28.3.2005 stood paid to the petitioner landlord, this fact had been admitted by Mst. Rehana Ikram Respondent No. 3 while compromising with Respondent No. 4 Muhammad Arif before the Rent Controller; that Rent Restriction Ordinance is a law which regulate the relationship of landlord and tenant but in the instant case the dispute was between co-sharer i.e. two land owners on the one hand and a tenant of the premises on the other hand; that the Rent Controller and the learned Additional District Judge could not order of ejectment against the tenant as well as against the petitioner; that eviction order passed against a co-sharer by the Rent Controller is ultra vires of jurisdiction hence illegal; that a status quo order was passed by a Civil Court which was intact uptil 9.9.2005; that the mode and manner adopted by Respondents No. 1 & 2 expose them as assuming a role of a party, which is not warranted under the law; that the exchange deed is nullified to the extent of possession, the question regarding the transfer of possession has not attended too, possession which was never delivered, that the petitioner was never allowed to be impleaded as party and that the impugned orders dated 29.4.2005 and 26.6.2006 be declared without lawful authority and illegal.
On the other hand, it is argued on behalf of the respondent that the instant, writ petition is not maintainable as the petitioner had filed appeal before the lower appellate Court (Annex:O) and the same was dismissed vide judgment dated 26.6.2006, thereafter the petitioner filed second appeal SAO NO.24/06 and the same was withdrawn on 30.11.2006 as such the order dated 29.4.2005 and the judgment dated 26.6.2006 has attained finality; that the petitioner after exhausting all the remedies available to him is through the instant writ petition is trying to again agitate factual controversies which are not allowed under Section 15(8) of the Urban Rent Restriction Ordinance, 1959 which is reproduced below:
"An order passed by the controller, the appellate authority or the High Court under the provisions of this Ordinance, shall not be called in question in any Court of law by a suit or otherwise, except as provided under this Act".
Hence the instant writ petition deserved to be rejected outrightly in accordance with law with heavy cost; that the petitioner has exhausted all the remedies available under the law and now under grab of frivolous objections has filed the instant writ petition to deprive the respondent of the benefits of inheritance, the petitioner is already enjoying the possession of agricultural land; that the writ cannot be issued in the circumstances; that the possession through Bailiff was taken from Muhammad Arif as per Bailiff's report and that no illegality or irregularity had been committed by the Courts below. In this regard reliance is placed upon Perviaz Alam v. Pakistan Diary Products (Pvt.) Limited Karachi and 2 others (2005 SCMR 1840), Aga Muzamil Khan through General Attorney and 8 others vs. Consolidation Officer, Lahore and 62 others (PLD 2005 Lahore 422) and Muhammad Husain vs. Cholistan Development Authority, Bahawalpur and others (2005 YLR 1126).
Arguments heard. Record perused.
On 5.4.2005, Muhammad Arif tenant got recorded his statement as under:
"I had got the tenancy in respect of the suit property from Tariq Rasheed, brother of Rehana Ikram (petitioner). Tariq Rasheed has received the rent from me for the period till 28.3.2005. I have relinquished the tenancy and have handed over the possession of rented property to Tariq Rasheed. I am no more in possession over the suit property in any capacity".
After the said statement, Tariq Rasheed petitioner moved another application for impleading him in the ejectment petition but the same was dismissed vide impugned order dated 29.4.2005.
"An order passed by the Controller, the appellate Authority or the High Court under the provisions of this Ordinance, shall not be called in question in any Court of law by a suit or otherwise, except as provided under this Act".
Moreoever, the contentions raised by the petitioner involved factual controversies which cannot be interfered in the Constitutional jurisdiction of this Court. Reliance in this behalf is placed upon Muhammad Husain vs. Cholistan Development Authority, Bahawalpur and others (2005 YLR 1126), wherein it has been held that "High Court, while exercising Constitutional jurisdiction could not to embark upon a factual inquiry as to the competing contentions of the parties ... Resolution of such factual disputes would take place through ordinary legal process", Pervaiz Alam vs. Pakistan Diary Products (Pvt.) Limited, Karachi and 2 others (2005 SCMR 1840), wherein it has also been held that "Factual controversy between parties --- Constitutional jurisdiction of High Court --- Scope --- High Court would normally abstain to exercise such jurisdiction and remain slow in interfering in such factual controversy and would exercise same reluctantly only in exceptional cases" and Agha Muzamil Khan through General Attorney and 8 others vs. Consolidation Officer, Lahore and 62 others (PLD 2005 Lahore 422), wherein it has also been held that "Factual controversies and disputed questions of facts which could not be decided without recording of evidence, having been raised by the petitioner, High Court, under Art. 199 of the Constitution, could neither enter into such factual controversies nor disputed questions of acts". Moreover, it appears that the intention of the petitioner is to deprive and frustrate the respondent his real sister of the fruits of the inheritance of the disputed property.
In view of the above circumstances, interference is not required in exercise of extra Constitutional jurisdiction of this Court, hence this writ petition is dismissed.
(W.B.I.) Petition dismissed.
PLJ 2007 Lahore 668
[Rawalpindi Bench Rawalpini]
Present: Maulvi Anwar-ul-Haq, J.
SHAKEEL AZHAR--Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, GUJAR KHAN, DISTT. RAWALPINDI and 3 others--Respondents
W.P. No. 2161 of 2004, decided on 23.1.2007.
Muslim Family Laws Ordinance, 1961—
----S. 9--Constitution of Pakistan, 1973, Art. 199--Writ petition--Dispute of past maintenance--Held: It look, unfair while the wife gets past maintenance, the children would not be deprived of such benefit--Petition dismissed. [P. 669] A
PLD 1958 (W.P.) 596; PLD 1991 SC 543 ref.
Raja Asif Qayyum, Advocate for Petitioner.
Raja Saghir-ur-Rehman, Advocate for Respondents No. 3 and 4.
Date of hearing: 23.1.2007.
Order
Maulvi Anwr-ul-Haq, J.--On 21-2-2001, Respondents No. 3 and 4 who are respectively the minor son and ex-wife of the petitioner filed a suit for recovery of maintenance at the rate of Rs. 2,000/- per month with effect from two years prior to the institution of the suit. The suit was resisted. Issues were framed and evidence of the parties was recorded. Respondent No. 4 was denied maintenance with reference to a decree granted to her on the basis of Khula whereas Respondent No. 3 i.e. the minor child was granted maintenance at the rate of Rs. 1000/- per month with effect from the month of July 1999. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Gujjar Khan, being incompetent.
Learned counsel for the petitioner with reference to the case of Mst. Ghulam Fatima. Vs. Sheikh Muhammad Bashir (PLD 1958 (W.P.) 596) contends that the past maintenance could not have been allowed to the minors. On the contrary, learned counsel for the respondents with reference to the case of Ghulam Nabi Vs. Muhammad Asghar and 3 others (PLD 1991 Supreme Court 543) contends that the past maintenance to the minor can lawfully be granted.
I have gone through the copies of available records with the assistance of the learned counsel for the parties. It will be seen that the only dispute is regarding the past maintenance. The said judgment being relied upon by the learned counsel for the petitioner was duly referred to by the Hon'ble Supreme Court in the case cited supra and dissented from with the observation made therein and held that it looks unfair while the wife gets past maintenance, the children should not be deprived of this benefit. In this view of the matter, writ petition is dismissed in limine.
(M.S.) Petition dismissed.
PLJ 2007 Lahore 669
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
HUSSAIN SHAH--Petitioner
Versus
BANO BIBI and 9 others--Respondents
Civil Revision No. 353/D of 1998, heard on 26.1.2007.
Civil Procedure Code, 1908 (V of 1908)—
----S. 11--Res-judicata--Suit was dismissed due to not file in a properly--Decree of subordinate Court merges into the decree of an appellate Court after the disposal of appeal--Held: Non of the issues arising in the present suit, stood finally decided--Suit filed for possession of the house-Courts below have acted without jurisdiction while non-suiting the petitioner--Revision allowed. [P. 670] A
Agha Muhammad Ali Khan, Advocate for Petitioner.
Malik Khalid Mazhar, Advocate for Respondents.
Date of hearing: 26.1.2007.
Judgment
For the order I propose to pass in this case, I will not be referring to the pleaded facts in much detail. Suffice it to say that on 4.12.1990 Hussain Shah the deceased petitioner filed a suit against the respondent for possession of the suit land, detailed in the plaint. In their written statement, the respondents, inter alia, objected that the suit is barred by res judicata. Issues were framed on 24.3.1991. Issue No. 1 covering the said objection was treated as preliminary. The documents were tendered by the respondents. Vide judgment and decree dated 22.2.1992 the learned trial Court found the issue in favour of the respondents and dismissed the suit. A first appeal filed by the petitioner was dismissed by a learned ADJ, Gujar Khan, on 27.3.1998.
Learned counsel for the petitioner contends that the judgment Ex. D. 3 and particularly judgment Ex. D. 4 have been mis-read by learned Courts below while non-suiting the petitioner. Learned counsel for the respondents has tried to support the impugned judgments and decrees.
I have gone through the copies of the records. Both the learned Courts below have referred to judgments Exs. D. 3 and D. 4 to hold that the suit is barred by res judicata.
I have examined the said documents with the assistance of the learned counsel for the parties. Ex. D. 3 is judgment dated 7.9.1986 passed by a learned Civil Judge, Gujar Khan. It was a suit for permanent injunction as also for mandatory injunction directing removal of a wall. Under Issue No. 1, it was found that Mst. Karim Khatoon was the wife of the petitioner. Under Issue No. 2, it was found that Haider Shah, the father of the said lady had not constructed the house. Under Issue No. 3, it was found that the petitioner is not the owner of the house. The suit was accordingly dismissed. A first appeal was filed against this judgment and decree. It was heard by a learned ADJ, Rawalpindi, camp at Gujar Khan. He observed that the petitioner was not in possession and a suit for injunction was not competent and even if he were to decree the said suit, it would be of no use to the petitioner. He concluded as follows in para-15 of his judgment dated 5.3.1988 (Ex. D.4):--
"15. In view of above, in my humble view it will be mere abuse of process of Court and wastage of time to dilate upon merits of the case as even detailed discussion on merits will not put soul into dead horse of the case of the appellant for the appeal shall have to be dismissed on the sole ground that the suit for permanent injunction was not maintainable."
It will, thus, be seen that ultimately the suit was dismissed only on the ground that it was not in a proper form.
Needless to state that it is a settled rule that a decree of the subordinate Court merges into the decree of an appellate Court after the disposal of the appeal. It will, thus, be seen that none of the issues arising in the present suit stood finally decided. There is no denial that the present suit has been filed for possession of the house.
I, therefore, do find that the learned Courts below have acted without jurisdiction while non-suiting the petitioner without examining the said judgment. The finding recorded on Issue No. 1 is accordingly reversed. The civil revision is allowed. Both the impugned judgments and decrees are set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending. Both the parties shall appear before Daud Sahi, learned Civil Judge, Gujar Khan, on 15.3.2007. The records will be requisitioned and after recording the evidence on the remaining issues the case shall be decided on merits. No orders as to costs.
A copy of this judgment be immediately remitted to the said learned Civil Judge, Gujar Khan.
(M.S.) Revision allowed.
PLJ 2007 Lahore 671
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
SHAUKAT HAYAT--Petitioner
Versus
JUDGE FAMILY COURT, FATEH JANG DISTT. ATTOCK
and another--Respondents
Writ Petition No. 162 of 2007, decided on 25.1.2007.
Family Courts Act 1964—
----Ss. 9(1)(b) & 10(4)--Suit for restituion of conjugal rights was filed by petitioner--Respondent filed written statement and by way of sets off claimed a decree for dissolution of marriage--Marriage was dissolved--Where no earlier suit for restitution of conjugal rights is pending there is no such condition in Section 9(1)(b) of the Family Courts Act which enables a wife to claim dissolution of marriage by way of set off in a suit for restitution of conjugal rights filed by husband--Proviso to S. 9(1) of Family Courts that S. 10(4) (Proviso) would apply where a decree for dissolution of marriage is to be passed--Petition dismissed.
[P. 672] A & B
Mr. Mazhar Masood Khan, Advocate for Petitioner.
Date of hearing: 25.1.2007.
Order
On 18-2-2006, petitioner filed a suit for restitution of conjugal rights against Respondent No. 2. She filed a written statement and by way of set off claimed a decree for dissolution of marriage on the ground of Khula. The efforts for reconciliation between the parties were made which failed. The statement of the lady was recorded and the marriage was dissolved. She gave up her claim to dower and maintenance etc.
Learned counsel for the petitioner argues that since a suit for dissolution of marriage already filed by the respondent on 5-1-2006 was pending, a set off could not have been claimed. He refers to Section 9(1) (a) of the Family Courts Act, 1964. Further contention is that the provisions of Section 10(4) are applicable only to a regular suit for dissolution of marriage and not to the set off.
I have given some thoughts to the said contention and found the same to be without any force. The provision being relied upon by him applies to a claim of set off by a husband in a suit of his wife for dissolution of marriage wherein it has been stated that the set off can be claimed where no earlier suit for restitution of conjugal rights is pending. However, there is no such condition in Section 9(1)(b) of the Family Courts Act, which enables a wife to claim dissolution of marriage by way of set off in a suit for restitution of conjugal rights filed by the husband. The proviso to Section 9(1) of the said Act lays down that Section 10(4) (proviso) shall apply where a decree for dissolution of marriage is to be passed in said circumstances. Writ petition is accordingly dismissed in limine.
(M.S.) Petition dismissed.
PLJ 2007 Lahore 672
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD FAROOQ--Petitioner
Versus
MUHAMMAD AMIN, TRUST CHAKWAL through
Chairman--Respondent
C.R. No. 160 of 2000, heard on 16.1.2007.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 23(1)(a)--Land was purchased for purpose of trust--Occupancy rights of suit being co-sharer--Price was fixed in good faith--Question of applicability--Vendor nor the petitioner were owners rather they were occupancy holders under recorded owners--Land had been purchased for the charitable purpose and was the property of charitable trust--Prohibition was regarding the sale of a Waqaf property or property used for charitable purposes--Property purchased for charitable user from the rigours of exercise of right of pre-emption--Bar contained in Section 23 of the Act 1991 is applicable--Revision dismissed. [P. 674] A & B
Mr. Sajid Ilyas Bhatti, Advocate for Petitioner.
Mr. Muhammad Amir Butt, Advocate for Respondent.
Date of hearing: 16.1.2007.
Judgment
Vide Mutation No. 7228 attested on 25.6.1996 the respondent purchased the suit land, mentioned in the plaint, for a consideration of Rs. 4,00,000/-. On 30.9.1996 the petitioner filed a suit for possession by pre-emption. According to him, the land had, in fact, been sold for Rs. 1,00,000/-. He claimed to be a Shafi Sharik, Khalit and Jar. Performance of talbs was pleaded. The respondent in its written statement took the plea that it is a charitable trust and the land had been purchase for the purposes of the said trust. It was that the price was fixed in good faith at Rs. 4,00,000/- and actually paid. The rest of the allegations were denied. Issues were framed. Evidence of the parties was recorded. Vide judgment and decree dated 31.7.1998 the learned trial Court dismissed the suit. I may note here that the learned trial Court found that the petitioner had performed talbs. However, it was found that he has no superior right of pre-emption. A further finding recorded was that the suit is barred under Section 23 of the Punjab Pre-emption Act, 1991 as it has been purchased by a charitable trust for the said purposes. A first appeal filed by the petitioner was dismissed by a learned ADJ, Chakwal, on 9.12.1999.
Learned counsel for the petitioner contends with reference to document Ex.P.3 that his client was a co-sharer in the suit land. The other adverse finding is questioned with the plea that only such land stands exempted which already belongs to a Waqaf or is being used for charitable purposes. Learned counsel for the respondent supports the impugned judgments and decrees.
Copies of the records have been examined, with the assistance of the learned counsel for the parties. None of the parties has produced the said Mutation No. 7228 attested on 25.6.1996. However, the land had been described in the plaint and description has not been questioned. According to this description, the land sold by Mst. Dil Bibi widow of Hakim Din to the respondent-trust is comprising Khasra No. 7193/6419. Its Khewat number is 1443 and the Kathuni number is 2055. I have examined Ex.P.3 which is the copy of Register Haqdaran Zamin for the year 1992-93. In the column of ownership Shamlat Patti Islampur is recorded to be the owner of 64328/66672 share while Central Government is recorded to be owner of the remaining 2344/66672 share. The petitioner Muhammad Farooq is recorded in the possession of column of Khasra No. 7194/6420 measuring 35 Kanals 9 Marlas alongwith his mother, brother and sisters as an occupancy tenant. On the other hand, in the possession column of Khasra No. 7193/6419 i.e. the suit land Mst. Dil Bibi is recorded to be in possession to the extent of 9/16 share as an occupancy tenant alongwith others. In the remarks column, reference has been made to Mutation No. 7228 in favour of the respondent-trust in Khasra No. 7193/6419. It is but apparent that the petitioner alongwith his family is an occupancy tenant in Khasra No. 7194/6420 where-from no land has been sold while Mst. Dil Bibi has sold her 9/16 share in the occupancy tenancy vis-a-vis Khasra No. 7193/6419. Thus, there is no question of the petitioner being a co-sharer with the said Mst. Dil Bibi in the occupancy rights of the suit land which has been sold by her to the respondent. It is, however, true that as per copy of Aks Shijra Kishtwar (Ex.P.10) both the Khasra numbers are adjacent. However, nothing turns on the same. The reason being that the right of a Shafi Jar is relatable to ownership of the immovable property whereas neither Mst. Dil Bibi vendor nor the petitioner are owners rather they are occupancy holders under the said recorded owners. I, therefore, do up-hold the findings of the learned Courts below on the question of superior rights of pre-emption.
Coming to the question of applicability of Section 23 of the Punjab Pre-emption Act, 1991, Section 23(1) (a) lays down that no right of pre-emption shall exist in respect of sale of Waqaf property or property used for charitable, religious or public purpose. There is no denial on record that the respondent is a trust or Waqaf and purchased the property as such. The deed of trust has been produced as Ex.D.5. it is a registered document. The purposes of the trust are the setting up of a Hospital on modern lines and to serve the people of the locality and around village Hastal. Raja Nazar Hussain, Chairman of the said respondent-trust appeared as DW-1 to state that the land has been purchased for constructing a Hospital. Not a single question was put to him in cross-examination to challenge the said statement. The evidence of the PWs including Muhammad Farooq petitioner PW-1 is also silent in this regard. The learned Courts below have, therefore, correctly concluded that the land had been purchased for the said charitable purpose and is the property of charitable trust. Upon a plain reading of the said provision, it does appear that the prohibition is regarding the sale of a Waqaf property or property used for charitable purposes. The intention of the Legislature, however, clearly appears to save the property purchased for charitable user from the rigours of the exercise of right of pre-emption. In view of the said evidence on record, I do find that the bar contained in Section 23 of the said Act of 1991 is applicable. The civil revision accordingly is dismissed but without any orders as to costs.
(M.S.) Revision dismissed.
PLJ 2007 Lahore 675
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
RASHEED AHMAD--Petitioner
versus
Mst. SHAMSHAD BEGUM and 3 others--Respondents
Writ Petition No. 1190 of 2005, decided on 24.1.2007.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 14(2)(c)--Limitation Act, (IX of 1908), Art. 120--Limitation--Past, maintenance could have been granted-Art 120 of limitation Act applies to a suit for maintenance--Held: Past maintenance as also for enhancement of rate of maintenance--Appeal was not barred by law--Petition was dismissed. [Pp. 675 & 676] A & B
PLD 1972 SC 302, followed.
Syed Masood Hussain, Advocate, for Petitioner.
Ms. Shaista Altaf, Advocate for Respondents No. 1 to 3.
Date of hearing: 24.1.2007.
Order
In a suit filed by Respondents No. 1 to 3 against the petitioner for recovery of maintenance, after contest, was decreed by a learned Judge Family Court, Rawalpindi, on 15-12-2003 inasmuch as he awarded maintenance at the rate of Rs. 1000/- per month each to Respondents No. 2 and 3, minor daughters of the petitioner, with effect from the date of institution of the suit with 10% increase after every three years. Feeling aggrieved, the respondents filed first appeal, which has been allowed by a learned Additional District Judge, Rawalpindi, on 30-11-2004 inasmuch as while maintaining the rate of maintenance, he directed that the maintenance will be paid with effect from six years prior to the institution of the suit.
Learned counsel for the petitioner contends that the first appeal was not competent as the rate of maintenance was Rs. 1000/- per child. He refers to Section 14(2)(c) of the Family Courts Act, 1964. Further contends that the maintenance could have been granted only for three years prior to the date of institution of the suit. Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree.
I have examined the copies of record. It will be seen that the only point being agitated is as to the period wherefrom the past maintenance could have been granted. In the case of Muhammad Nawaz. Vs. Mst. Khurshid Begum and 3 others (PLD 1972 Supreme Court 302), a Bench comprising of four Hon'ble Judges headed by the Hon'ble Chief Justice of the Supreme Court upheld a decision rendered by the erstwhile High Court of West Pakistan holding that Article 120 of the Limitation Act applies to a suit for maintenance. The learned Additional District Judge has, therefore, acted within his domain while passing the impugned judgment and decree.
So far as the said first contention of the learned counsel is concerned, the same is, rather, misconceived. Respondent No. 1 filed an appeal, both in the matters of past maintenance as also for enhancement of rate of maintenance. The appeal was not barred by law. Writ petition is dismissed in limine without any order as to costs.
(M.S.) Dismissed in limine.
PLJ 2007 Lahore 676
Present: Fazal-e-Miran Chauhan, J.
BRIG. (RETD.) MUHAMMAD ZUBAIR HASHMAT KHAN-Petitioner
Versus
GOVT. OF PAKISTAN through Secretary, Defence Pak Secretariat, Islamabad and 3 others--Respondents
W.P. No. 1550 of 2004, decided on 19.12.2006.
(i) Qanoon-e-Shahadat Order, 1984 (10 of 1984)—
----Art. 6--Production of documents relating to affairs of state--Claim of privilege--Requirement--Paramount public interest--Principle--It is not all records relating to affairs of State that are privileged but only those, the disclosure of which would result in an inquiry being caused to the public interest--Public interest must be paramount and private interest must give way when there is conflict between public and private interest. [P. 680] A & B
(ii) Qanoon-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 158--Determination of claim of privilege--Requirements--Production of document and inspection by Court--Principle--Such could be done on inspection of document by the Court--Respondent in possession of the order is bound to produce the document for inspection of Court to decide whether privilege with regard to the same can be claimed or not. [P. 681] C
PLD 1969 SC 14; PLD 1969 Lah. 928.
(ii) Qanoon-e-Shahadat Order, 1984 (10 of 1984)—
----Art. 129--Illustration--Non production of document--Effect--Held: Non-production by a party of a material document placed him under the recognised prohibition of law and presumption under Art. 129, Illustration G presumption for withholding the best evidence/ document if produced would have been unfavourable to the party withholding it--Petition accepted. [P. 681] D
Dr. A. Basit, Advocate for Petitioner.
Ch. Zafar Iqbal, Deputy Attorney General .
Raja Hashim Sabir, AAG.
Hafiz Khalid Ahmad, Advocate for Respondent.
Mr. Muhammad Rafiq Chaudhry, Advocate for Respondent.
Date of hearing: 2.11.2006.
Judgment
By filing the instant writ petition the petitioner has challenged the order dated 1.9.2003 cancelling the initial allotment of agricultural land allotted to the petitioner in which proprietary rights were intended to be transferred and order dated, 5.1.2004 dismissing the representation made by the petitioner to the competent authority.
Brief facts of the case are that on. 24.2,1999 the petitioner being serving as Brigadier in the Army Air Defence while posted at Multan, applied for allotment of agricultural land and was allotted 40 acres of agricultural land in Tehsil Jaranwala under GHQ Settlement Scheme Phase IV Punjab. The possession of the land was given to the petitioner on 13.3.2000. The petitioner retired from the Pakistan Army and ceased to be subjected to the Pakistan Army Act, 1952. That some financial irregularities in the Headquarter of National Guard Multan Section were reported to have taken place during the tenure of the petitioner as Commander, thereof and a Court of inquiry was appointed to inquire in the matter. The said inquiry stood terminated by acceptance of proposal made by the petitioner, which contained an undertaking duly received by the competent authority and the inquiry so initiated was dropped by the respondents. The petitioner received a cancellation letter dated 1.9.2003 cancelling the allotment of 40 acres of agricultural land from the name of the petitioner. After receiving this letter, the petitioner made representation on 22.9.2003 to the Vice Chief of Army Staff (competent Authority) stating therein that he had deposited the amount agreed between the parties on clear understanding that no further adverse action would be taken against the petitioner, despite that, the agricultural land allotted to the petitioner had been cancelled which amounted to double punishment and requested that cancellation order be reconsidered and order for restoration of agricultural land may be passed. Petitioner received a letter from Lt. Col Nasir Khan dated 5.6.2004 informing the petitioner that his representation has been rejected by the competent authority. Hence this writ petition.
It is argued by the learned counsel for the petitioner that; impugned order has been passed by the respondents without affording an opportunity of hearing to show cause against cancellation of land allotted to the petitioner; since a right in the said land has accrued in favour of the petitioner and the same cannot be cancelled without affording an opportunity to the petitioner, no ground or reason had been stated in the cancellation order or in the subsequent order, whereby the representation made by the petitioner was rejected, hence cancellation order dated 1.9.2003 and subsequent order dated 5.6.2004 are not speaking orders. Further submits that the petitioner was served with a notice and a Court of inquiry was appointed to conduct inquiry in the case of alleged embezzlement committed during the posting of the petitioner as Incharge Air Defence Multan; that the inquiry was conducted beyond the period of 6 months after his retirement and in this view of the matter the inquiry so conducted under the Military Act after lapse of 6 months of the retirement of the petitioner was without lawful authority. Further adds that terms of Section 10(3) of Colonization of Govt. Lands Act, 1912 was amended time to time; the allotment order is to be governed by the terms and conditions of Army Welfare Scheme as laid in the policy letter issued by the respondent Board of Revenue on 3.4.1999. The true interpretation of the policy letter is that the allotment was intended to culminate in a sale treaty on payment of the full price. The price so assessed by the competent authority of the allotted land had been paid in toto hence the proprietary rights already stood transferred in favour of the petitioner and not withstanding the failure on the part of the respondent Board of Revenue and the functionaries under its control to finalize the execution of sale treaty in favour of the petitioner. Only cause or basis of cancellation of the land was the findings of Court of inquiry, which were never conveyed to the petitioner and that Court inquiry stood terminated on the basis of mutual settlement on the undertaking given by the petitioner and an amount of Rs. 20,00,000/- was deposited. Offer of the petitioner was accepted by the respondents and as logical result of the same the alleged charge should have been dropped. Further submits that in case the undertaking given by the petitioner having been accepted by the respondents and the proceedings having been terminated, the Court of inquiry, as per settlement has no justification for taking any adverse action against the petitioner. The petitioner initially filed a suit for declaration in the Court of Civil Court but withdrew the same keeping in view the bar contained under Section 36 of Colonization of Govt. Lands Act. Further submits that the respondents had failed to place on record any order passed by the inquiry committee approved by the competent authority against the petitioner. Since a right had accrued in favour of the petitioner on payment of the price of the land allotted the petitioner thus same cannot be terminated by the respondents taking one sided action without, affording opportunity to the petitioner. Finally argued that since, the order passed by the Court of enquiry is not privileged document and respondent should have filed the same in the Court or should have produced the document and claim privilege under the law. Since the order has not been produced despite the undertaking of department. The presumption under Act, 158 of Qanoon-e-Shahadat would go against the respondents.
Conversely, learned counsel for the respondents argued that; within 6 months of the retirement of petitioner some misappropriation of funds was unearth and respondents served the petitioner with a show cause notice to appear before Court of inquiry. Petitioner was heard and convicted through administrative action by the competent authority. Further submits that; the allotment was made to the petitioner as a defence personal on merit. However after confirmation from personal services Directorate (PS Dte) General Headquarters that the petitioner was found involved in misappropriation/embezzlement, therefore, the allotment of land has been cancelled by GHQ. Further submits that; petitioner provided wrong information in the application submitted for allotment of agricultural land in his name, the same later-on was rightly cancelled for providing wrong information. Further adds that; the petitioner has got no legal vested right to claim for the allotment of land. The land was allotted for his benefit according to the policy, but when he was found to be involved in embezzlement of Govt. Funds, the allotment was rightly cancelled according to the rules. The petitioner, during his posting as Commander Head quarter Air Defence Force section Multan was found to be involved in financial irregularities, which were disclosed after his retirement and he confessed the guilt and agreed to deposit.
Rs. 20,00,000/-. The involvement of the petitioner in embezzlement of Govt Funds created adverse reflection in the dignity of Pakistan Army so the competent authority cancelled the allotment of the petitioner in accordance with the rules. Further adds that, the petitioner was found involved in the embezzlement of Govt. funds, and the petitioner, himself offered to deposit the embezzled amount, which amounts to confession on his part, accordingly he became disentitle to retain any benefit received by him from the respondents. So the allotment made in his favour was cancelled according to the rules. Finally argues that respondents claimed privilege against inquiry proceedings and order passed by the competent authority.
I have heard the learned counsel for both the parties at length.
During the course of arguments, the learned counsel for the respondents was directed to produce the order passed against the petitioner in the inquiry proceedings by the Court of inquiry, subsequently approved by the Competent Authority. The learned counsel claimed privilege to the production of the said document on the ground that the order was passed in an inquiry proceedings secretly conducted. On this stance taken by the respondents, the learned Deputy Attorney General was directed to show the documents to the Court and thereafter Court could decided as to whether respondents can claim privilege with regard to the document or not. Article 6 of the Qanoon-e-Shahadat Order deals with the evidence as to affairs of State. The principle of the article is that it is not all records relating to affairs of the State that are privileged but only those, the disclosure of which would result in an inquiry being caused to the public interest. The article gives effect to the principle that, public interest must be paramount and private interest must give way when there is any conflict between public and private interest. This article constitutes a serious departure from ordinary rules of evidence, since a document which is material and relevant is allowed to be withheld from the Court contrary to the general rule of presumption of Article 129 of the Qanoon-e-Shahadat Order.
Production of documents. A witness summoned to produce a document shall, if it is in his possession of power, bring it to Court notwithstanding any objection which there may be to its production or to its admissibility, the validity of any objection shall be decided or by the Court.
(2) The Court, if it seems fit, may inspect the document, unless it refers to matters of State, or the other evidence to enable it to determine on its admissibility.
(3) If for such a purpose it is necessary to cause any document to be translated the Court may, if it thinks fit, direct the translator to keep the contents secrete, unless the document is to be given in evidence and if the translator disobeys such direction he shall be held to have committed an offence under Section 166 of the Pakistan Penal Code. (Act XLV of 1860).
Article 158 of the Order authorizes the Court to decide whether the privilege claimed against the production of a document is well found or not. This could only be done on the inspection of the document by the Court. Under Article 158 of Qanoon-e-Shahadat Order respondent, or the person in possession of the order is bound to produce the document for inspection of the Court to decide whether privilege with regard to the same can be claimed or not. Reliance is placed on PLD 1969 SC 14 and PLD 1969 Lahore 928.
As per the contention of the learned Deputy Attorney General, that petitioner was convicted by the Court of inquiry, therefore, the benefit of allotment given to the petitioner was rightly withdrawn. As discussed above the respondent is relying on the order of competent authority but the same was neither conveyed to the petitioner nor the same have been produced in this Court. Non-production by a party of material document placed him under the recognized prohibition of Law and the presumption under Article 129 Illustration (G) "presumption for withholding the best evidence/document if produced would have been unfavorable to the party withholding it.
Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened regard being had to be common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Since the inference from non-production of evidence is one of the strongest presumption known to law and the law allows it against the party who is withholding the evidence by which the nature of his case would be manifested. The learned counsel for the respondents was directed to show the order to this Court in order to rebut the arguments advanced by the learned counsel for the petitioner that no termination order was passed rather the matter was settled between the parties and it was agreed between the parties that if an amount of Rs.20,00,000/- is paid by the petitioner the charges against him would stand dropped. As a result of that the petitioner deposited Rs. 20,00,000/- and petitioner offered to the respondents vide letter dated while appearing as PW.1. The offer so made before the Court of inquiry was received on 23.4.2002 and as a consequence of that the petitioner deposited Rs. 20,00,000/- with the respondents but violating the agreement proceeded against him. However any adverse order reflecting on the service of the petitioner has been passed by the respondent was not convened to the petitioner. The learned Deputy Attorney General appearing on behalf of the respondents on one date undertook to produce the proceedings of the Court of inquiry and order passed in the said inquiry in the Court for judicial inspection. Despite this undertaking neither the proceedings nor any document has been produced rather learned Deputy Attorney General states that the respondents are not responding the letter issued by him for the production of the said document. However on the request of the learned Deputy Attorney General vide order dated 10.10.2006 Adjutant General Headquarters AG,s Branch (W&R Dte) Rawalpindi was directed to supply the requisite information sought by the DAG on the direction of this Court. The order was conveyed to the Lt Colonel for Adjutant General but no action was taken. However on the date of final arguments, the learned Deputy Attorney General after arguing the case concluded his arguments requesting that more time may be granted to him to produce the said proceedings before this Court for inspection. Further submits that since the respondent is claiming privilege against the production of said proceedings and order. It is the common practice that the privilege of certain documents not to be produced in the Court but these must show during the proceedings of the Court, in confidence to show that such proceedings were conducted and order was passed in the same. In the instant case despite the direction of this Court nothing has been produced by the respondents for inspection. Letter dated 3.11.2006 from Col Saddiq Ashraf has been placed on the record by the learned Deputy Attorney General. Again it was informed to the learned DAG that copy of Court of inquiry cannot be recorded due to service reason. Since the respondents have failed to produce the order of inquiry despite that direction. Thus a strong presumption is attached under Article 129 Illustration (G) that the document has been deliberately withheld as the same would have been gone against the respondents, if produced. In this view of the matter no penal action could be taken against the petitioner in the shape of cancelling his agricultural land.
As discussed above 40 acres of agricultural land was allotted to the petitioner on his retirement and cost of the said land was also deposited by him with the respondents thereafter he was served with a notice from the Court of inquiry to appear and explained his stand. A settlement was arrived at between the parties and the petitioner deposited Rs. 20,00,000/- to compensate the loss sustained by the respondents. As per contention of the petitioner on his deposit of Rs. 20,00,000/- he was given impression that inquiry would be dropped. However the said inquiry was not dropped and while ex-parte adverse order was passed against him and consequence of that the benefit given to the petitioner for his services were drawn. Resultantly, cancellation order of 40 acres of land was passed by the competent authority. A valuable right in the property had accrued to the petitioner, and he cannot, be deprived of the same by the respondents on the pretext that an adverse order has been passed against him holding him of the guilty of misappropriation which was proved by the competent authority when the same was never conveyed to him by the respondents. The said action on the part of the respondents appears to be one sided and if any order has been passed the respondents should have produced the same taking the Court in confidence. Non-production of the record/order by the respondent on the pretext of claiming privilege is not accepted. A valuable right had been accrued in favour of the petitioner and he cannot be deprived of the same by the respondents without affording an opportunity of hearing to him and conveying the order passed, against him in any such proceedings.
For what has been discussed above, this petition is accepted and the impugned order dated 1.9.2003 cancelling the initial allotment of agricultural land of the petitioner is set-aside. No order as to costs.
(W.I.B.) Petition accepted.
PLJ 2007 Lahore 683 (DB)
[Multan Bench Multan]
Present: Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ.
ALLAH DITTA, etc.--Appellants
Versus
CHIEF ENG. etc.--Respondents
Intra Court Appeal No. 58 of 2005, heard on 21.2.2007.
Constitution of Pakistan, 1973—
----Art. 199(2)--Law Reforms Ordinance, 1972, S. 3--Right of compensation a fundamental right--Rights not be usurped by an agreement between Govt. and a Bank-Duty of Courts--Held: Any condition advanced by the Asian Development Bank which had been accepted by the respondents, cannot usurp the rights of the appellants as they were entitled for the said compensation under the Land Acquisition Act--Rights of the appellants are to be fully safe guarded under the fundamental rights by Constitution--Act was not adopting the procedure of acquisition of the land of the appellants has resulted in Breach of the fundamental rights which Court is bound to enforce under the provisions of Art. 199(2) of Constitution of Pakistan, 1973--Appeal accepted. [P. 685] A
Malik Muhammad Tariq Rajwana, Advocate for Appellants.
Mr. Zafarullah Khakwani, AAG for Respondents.
Date of hearing: 21.2.2007.
Judgment
Iqbal Hameed-ur-Rehman, J.--The present appeal under Section 3 of the Law Reforms Ordinance, 1972 proceeds against the order dated 2.3.2005 passed by the learned Single Judge in Chamber, whereby he dismissed W.P. No. 1030/05 with the observation that if the acquired land is possessed without adequate compensation in accordance with law, the petitioners appellants may approach Respondent No. 1.
Brief facts leading to this appeal are that the appellants are owners of a parcel of land in Mauza Muhammad Pur Khoata, Tehsil Multan City Multan. The respondents planned to construct a Super (Bund) on the land of the petitioners/appellants allegedly to control the flood water of river Chenab, which flows at some distance from the land of the appellants. The respondents had also earlier constructed a Super (Bund) on the other land of the appellants adjacent to the land where the new "spur" (Bund) has been planned and initial work had started and valuable fertile land of the appellants had been acquired alongwith mangoes orchard and date-palm farm with millions of rupee in the year 1999 but till date no compensation has been paid to the appellants despite knocking at the door of the respondents. Now further acquisition of their land is being made due to the construction of another Bund planned on the rest of the land or any other proceedings have been made as provided in the Land Acquisition Act, 1894, neither any objections have been invited so act of the respondents is illegal, without lawful authority and in violation of the law. The learned Single Judge in Chamber dismissed the writ petition with the observation that the appellants/petitioners may approach Respondent No. 1 with their grievances vide its judgment dated 2.3.2005. Hence this ICA.
The appeal was admitted and the comments were called from the respondents and the same have been submitted, wherein it was stated that Spur Bund has since been completed on the land of the appellants; that earlier old spur Bund was constructed in the year 1993 to protect Multan City Shujabad Branch and infrastructures and the PC-I for land compensation was approved vide Sectary I&P No. M-82-SO(P)/2004 dated 4.9.2004; that the appellants namely, Allah Ditta and Haji Ahmad, were called by Respondent No. 3 on 13.6.2005 to receive the cheques on the ground that the compensation should be paid at the present market rates and not at the rate when the land was acquired in the year 1993; that new spur bund was proposed as a result of model study of Trimmu-Punjnad reach conducted by Hudranlic Research Station, Nandipur and the work of extending guide head spur 3-B RD: 252000 Shujabad Branch had been completed on the land of the appellants; that the said spur bund has been constructed for the safety of the life and property of the inhabitants/appellants for their own welfare; that the loan for the construction was given by Asian Development Bank with the condition that no compensation shall be allowed for the land coming under spur bund and that the construction of proposed spur bund is the need of the present day and the appellants being non-technical persons cannot appreciate the threat of river water in case of high flood.
It is argued on behalf of the appellants that the matter involves the title and possession which is protected under the fundamental rights safe-guarded under the Constitution and that the land/property of the appellants had been taken over without acquisition even for public purpose and this is a breach of his fundamental rights which this Court is bound to enforce under the provisions of Article 199 and sub-Article (2) of the Constitution. Further that 8 kanals have been acquired for constructing a bund but no compensation thereof has been paid. It is contended by the learned AAG that the land stated to have been acquired by the respondents is under the River Creek as such the appellants are not entitled to any compensation with regard to the land acquired for the construction of new spur bund.
We have heard learned counsel for the appellants as well as the learned AAG and also perused the comments.
Admittedly, the land of the appellants had been acquired without compensation for the construction of new spur bund of Trimmu-Punjnad which is stated to be constructed for the safety of life and property of the inhabitants/appellants for their welfare by the respondents because the loan was obtained by the respondents from the Asian Development Bank with the condition that no compensation shall be allowed for the land coming under the new spur bund. Any condition of loan advanced by the Asian Development Bank which had been accepted by the respondents, cannot usurp the rights of the appellants as they were entitled for the said compensation under the Land Acquisition Act, which fully safe-guards their vested rights. Thus, the rights of the appellants are to be fully safeguarded under the Fundamental Rights by the Constitution, The act of the respondents by not adopting the procedure of acquisition of the land of the appellants has resulted in a breach of the Fundamental Rights which this Court is bound to enforce under the provisions of Article 199 and sub-Article (2) of the Constitution of Islamic Republic of Pakistan, 1973. The same cannot also be justified on any touchstone of justice and equity as it is based on sheer arbitrariness, an abuse of the process of the authority without compliance to the legal provisions of law and against the principles of natural justice.
In view of the above circumstances, this appeal is accepted and the impugned order dated 2.3.2005 is set aside. The respondents are directed to pay compensation to the appellants after adopting proper procedure.
(W.I.B.) Appeal accepted.
PLJ 2007 Lahore 686
Present: Syed Shabbar Raza Rizvi, J.
FOZIA SHABBIR--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, LAHORE
and 8 others--Respondents
W.P. No. 1343 of 2006, decided on 28.3.2006.
(i) Criminal Procedure Code, 1898 (V of 1898)—
----S. 164--Constitution of Pakistan, 1973, Art. 199--Recording of second statement--No prohibition--Held: S. 164 Cr.P.C. does not indicate that statement of a person cannot be recorded under S. 164 Cr.P.C. if it already stands recorded--S. 164 does not expressly or impliedly prohibit recording of second statement. [Pp. 687 & 688] A & C
(ii) Criminal Procedure Code, 1898 (V of 1898)—
----S. 164--Test of genuineness of statement--Validity--For the validity or genuineness of a statement under Section 164, the first and foremost condition is that it should be freely recorded. [P. 688] B
Mr. Maqsood Buttar, Advocate for Petitioner.
Mr. Naveed Inayat Malik, Advocate for Respondents.
Date of hearing: 28.3.2006.
Order
The brief facts of this case are that allegedly Respondent No. 4 kidnapped petitioner on 26.2.2005 but in the evening he allowed petitioner to go back to her home. Respondent No. 4 filed a suit of conjugal rights in March, 2005, whereupon petitioner and her father came to know that Respondent No. 4 had forged a Nikah Nama. Respondent No. 4 blackmailed the petitioner's parents and got Rs. 2,00,000/- for giving divorce to the petitioner. However, after some time, on 5.11.2005 Respondent No. 4 again kidnapped the petitioner. On that, FIR No. 490/05 dated 5.11.2005 was registered against him under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Respondent No. 4 was arrested on 6.11.2005. However, his accomplices, Respondent Nos. 5 and 6 took the petitioner to Nankana city and under threat and coercion got petitioner's statement recorded under Section 164 Cr.P.C. on 15.11.2005. Respondent Nos. 5 and 6 applied for bail before-arrest which was fixed before the learned Addl. Sessions Judge, Lahore. Petitioner's father was informed by the police who also came in the Court to oppose the bail application of Respondent Nos. 5 and 6. When petitioner saw her father she ran towards him and narrated him the details of her abduction by Respondent Nos. 4, 5 and 6. Police took the petitioner into custody and recorded her statement under Section 161 Cr.P.C. Thereafter, the police took her to the Court of learned Magistrate for recording her statement under Section 164 Cr.P.C. On 29.11.2005, the learned Magistrate recorded her version but refused to treat it as a statement under Section 164 Cr.P.C. on the ground that already her statement under Section 164 Cr.P.C. was recorded on 15.11.2005. Against the order of learned Magistrate dated 29.11.2005, a revision petition was filed which was dismissed by the learned ASJ, Lahore vide his order dated 4.2.2006. Against the above two orders present petition has been filed.
The learned counsel for the petitioner submits that there is no prohibition under the law to record second statement under Section 164 Cr.P.C., particularly, in peculiar circumstances as narrated above. In this regard, the learned counsel refers to PLD 1984 Lah. 424 and WP No. 4869 of 2004 decided by this Court.
Learned counsel representing Respondent Nos. 7 and 9 submits that apparently there is no bar for recording second statement under Section 164 Cr.P.C., however, it has to be seen in the overall facts and context of this case. There was no element of coercion or threat when the petitioner got recorded her first statement under Section 164 Cr.P.C.
I have heard both the learned counsel and also perused the orders of the learned Magistrate as well as that of the learned ASJ. Neither the learned Magistrate in his order dated 29.11.2005 nor the learned ASJ in order dated 4.2.2006 advanced any cogent reason to refuse recording of second statement of petitioner under Section 164 Cr.P.C. Reading of Section 164 Cr.P.C. does not indicate that statement of a person cannot be recorded under this section if it already stands recorded. Particularly, when, in the present case, the petitioner herself is urging that when she got recorded her first statement before the learned Magistrate she was not a free agent. She was abducted by the respondents and was in their custody. She was forced to make a statement which favoured the respondents. The moment she got opportunity, she joined her father and narrated him whatever happened to her.
For the validity or genuineness of a statement under Section 164, the first and foremost condition is that it should be freely recorded. In the present case the petitioner claims that she was not a free agent when her statement was recorded under Section 164 Cr.P.C. Apparently, in the facts and circumstances of the present case it seems that she was not a free agent and the statement was not made voluntarily by her. As she was being accompanied by Respondent Nos. 5 and 6 and after recording of statement petitioner remained with them, therefore, she cannot be deemed as a free agent and her statement cannot be treated as voluntary. Section 164 Cr.P.C. does not expressly or impliedly prohibit recording of statement second time.
In view of the above discussion and reasons, this writ petition is allowed and orders of the learned Magistrate dated 29.11.2005 and the learned ASJ dated 4.2.2006 are set aside. The concerned learned Magistrate is directed to record petitioner's statement under Section 164 Cr.P.C. as contemplated under the law, if she so desires.
(W.I.B.) Petition allowed.
PLJ 2007 Lahore 688
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
MUHAMMAD RAMZAN--Petitioner
versus
MULTAN DEVELOPMENT AUTHORITY--Respondent
W.P. No. 5833 of 1996, heard on 31.1.2007.
(i) Punjab Land Acquisition (Housing) Rules, 1973—
----R. 6--Punjab Development of Cities Act, 1976, S. 38--Punjab Land Acquisition Act, 1973, S. 4--Land was acquired for purpose of establishing colony--Notice was given to petitioners to vacate their
houses--No substituted plot was given to the petitioners--Multan Development Authority submitted terms and conditions before the Deputy Commissioner that already existing Abadies would not be taken into Scheme, if acquired so full compensation would be paid to the affectees--Held: MDA was bound to fullfil the terms and conditions--Petitioners were entitled to get equal land for their houses and costs of their structures.
[Pp. 689, 690, 691, 692] A, B, C, D, E & F
(ii) Constitution of Pakistan, 1973—
----Art. 199--Punjab Development of Cities Act, 1976, S. 38--Punjab Land Acquisition (Housing) Rules, 1973, R. 6--Constitutional jurisdiction--Exercise of extra-ordinary Constitutional jurisdiction of High Court--Land originally earmarked for public utility park alloted to Ex. MPA for installation of petrol pump in contravention of policy that public plots cannot be converted for any other purpose whereas demands of the petitioners are being denied despite the policy not to acquire Orchard and Abadies and if acquired, full compensation be paid--Recommendation that petitioner's case being hardship, they may be granted relaxation for settlement--Reason for adopting such double standard cannot be logically comprehended and can be described as sheer arbitrary whims of the authorities and against principles of equity and justice which would be rectified through interference in the exercise of extra ordinary Constitutional jurisdiction of High Court. [P. 692] G, H, I
Ch. Muhammad Sharif, Mr. Muhammad Arif Alvi, and Malik Muhammad Jamshed Awan, Advocates for Petitioners.
Mr. Muhammad Ameen Malik, Advocate/Legal Advisor for Respondent.
Date of hearing: 31.1.2007.
Judgment
This judgment shall dispose of W.P. No. 5833/96, W.P. No. 1491/97 and 1290 of 1997.
Brief facts leading to these writ petitions are that the petitioners in all these writ petitions are owners and inhabitants of Katchi Abadi "Dogar Colony, F-Block, Shah Rukn-e-Alam Colony Multan, where they are residing before the acquisition of land for the purposes of establishing Colony namely, Shah Rukn-e-Alam Colony, by the respondent Multan Development Authority.
On 27.8.1996, the respondent MDA has given notices under Section 38 of the Punjab Development of Cities Act, 1976 to the petitioners to vacate their houses within 24 hours, otherwise their houses would be demolished by the respondent Authority and expenses occurred on that would be recovered from them. On 28.2.1997, same notice was given to the petitioner Muhammad Boota in W.P. No. 1491 of 1997. On 22.2.1997, again same notice was given to the petitioner Mst. Safia Bibi in W.P. No. 1290 of 1997.
Through these writ petitions, the petitioners seek setting aside of the afore-said notices being illegal, void and without lawful authority.
It is contended by learned counsel for the petitioner that according to the Housing Scheme Shah Rukn-e-Alam Colony, one third of land in the shape of plots was given to the owners of land by the respondent MDA in the Shah Rukn-e-Alam Colony Multan on the payment of development charges of the said area but the above said rule was not adopted in this case; that the compensation for securing the property in question yet remains to be paid in accordance with the order of the competent authority and that the petitioners are bona fide occupants of the houses which they had built for their residential purpose at the exempted land.
On the other hand, learned counsel for the respondent MDA has contended that prior to acquisition of disputed land the petitioners were residing there but after acquisition of the same they have no legal right to occupy MDA land; that the petitioners have been compensated according to their entitlement and there exists no Dogar Colony as such and that the impugned notices were issued to the petitioners with lawful authority after giving them opportunity of personal hearing.
I have heard, learned counsel for the parties and perused the record as well as the impugned notices and the comments, as well as Local Commission Report.
It is an admitted fact that the Housing Scheme Shah Rukn-e-Alam Colony, Multan, was approved by the MDA on 5.8.1979. After completion of formalities land was acquired and the award for compensation in respect of standing buildings and fruit trees belonging to the petitioners and others was announced by the Land Acquisition Collector MDA Multan on 31.12.1984. Being aggrieved of the said order, the petitioners and others filed appeals before the Commissioner Multan Division Multan on 10.2.1985, which were accepted on 28.10.1985 with the direction to compensate the petitioners. But till now the respondent MDA has not paid compensation amount to the petitioners.
It is necessary to mention here that before publication of notice under Section 4 of the Punjab Land Acquisition Act, 1973 Multan Development Authority submitted terms and conditions before the Deputy Commissioner, Multan, regarding the acquisition of land for the Colony "Shah Rukan-e-Alam Multan, vide letter dated 22.4.1984, wherein the MDA assured the Deputy Commissioner that already existing Abadies would not be taken into Scheme, if acquired so, full compensation would be paid to the affectees. In this regard, Term No. 2 and Term No. 4 mentioned in the said letter are as under:
"Terms No. 2
the abadi that exists on the land will be left over as per requirements of the scheme.
Term No. 4
it is our policy not to acquire Orchards and Abadies if acquired full compensation is paid".
Under Rule 6 of the Punjab Land Acquisition (Housing) Rules, 1973, the respondent MDA is bound to fulfil the terms and conditions referred above.
According to the Scheme the petitioners are entitled for substituted plots for their residences but till today, no substituted plot is given to the petitioners. The attitude of the respondent pertaining to acquiring the land of houses and not giving the petitioners substituted equal plots for residences is also discriminatory one because earlier the respondent MDA when acquired land consisted of houses in Shah Rukan-e-Alam Colony, the owners like Muhammad Yar, Muhammad Azam, Zubaida Begum, Saeeda Begum and Fazal Akram, who were also inhabitants of Shah Rukn-e-Alam Colony Multan were given substituted land against their houses.
The respondent wants to include the Abadi Land in the proposed park named Jinnah Park adjacent to Block-F of Shah Rukan-e-Alam Colony Housing Scheme Phase-II Multan. Therefore, the petitioners are entitled to get equal land for their houses and costs of their structures because their houses are situated in the southern and western corner of the proposed Park Land. For the said purpose, on 16.2.1997 Mr. Irfan Wyne, Advocate, was appointed as Local Commission. He was directed to visit the Jinnah Park and submit his report to this Court. Report of the Local Commission dated 26.5.1997 is placed on the record, wherein it is stated that it was admitted by the MDA Authorities that in 1984 and 1985 the Petrol Pump was not included in the map and the same was sanctioned to one MPA namely Atta Muhammad Qureshi by Chief Minister in the year 1986, the area of the petrol pump is 4 kanals and the possession of the petrol pump was handed over to the said allottee on 26.1.1987. The Local Commission was of the view that "when the MDA has given 4 kanals to the MPA, the petitioners and others can easily be accommodated on the opposite direction of the petrol pump because the area left after accommodation is quite sufficient for Car Parking". Even a letter dated 20.9.2004 addressed to the Secretary HUD & PHE Department Government of the Punjab Lahore by the Multan Development Authority also supports the report of the Local Commission, wherein it is stated that a petrol pump at the land measuring 4 Kanals at the land of Jinnah Park was established in the year 1986 on the direction of the Chief Minister and the same has been allowed by the Government of the Punjab to continue the same; it is also a case of hardship and, therefore, necessary relaxation may be granted for settlement of encroachers of the land of Jinnah Park.
It is observed that four kanals land out of land originally earmark for said public utility park is allotted to Mian Atta Muhammad Qureshi Ex-MPA vide Order No. 7664/EM/MDA dated 24.5.1988 for installation of a Petrol Pump at the site of Jinnah Park in contravention of policy that public utility plots cannot be converted for any other purpose is so graciously allotted, whereas the demands of the petitioners are being denied despite the policy not to acquire Orchards and Abadies and if acquired full compensation be paid. Further they are being denied also inspite of the assurance that existing Abdies would not be taken into the Scheme and if required, full compensation would be paid to the affectees vide Letter No. 3318/EM/MDA dated 22.4.1984. Even further through letter dated 20.9.2004 it had been recommended that the petitioners' case being of hardship, they may also be granted relaxation for settlement. The reason for adopting such double standard vis-a-vis the petitioners and the allotment of 4 kanals of plot to Mian Atta Muhammad Qureshi Ex-MPA cannot be logically comprehended and can be described as a sheer arbitrary whims of the authorities and against principles of equity and justice which should be rectified through interference in the exercise of extraordinary constitutional jurisdiction of this Court.
In view of the above circumstances and also keeping in view the letters dated 22.4.1984, 20.9.2004 and report of the Local Commission dated 26.5.1997 and particularly the decision of the Commissioner Multan Division Multan dated 28.10.1985, whereby the appeals of the petitioners were accepted, this writ petition, W.P. Nos. 1491 and 1290 of 1997 are accepted and the impugned notices dated 27.8.1996, 28.2.1997 and 22.2.1997 are set aside.
(W.I.B.) Petition accepted.
PLJ 2007 Lahore 693
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
AFIFA ARSHAD--Appellant
versus
D.E.O., etc.--Respondents
I.C.A. No. 73 of 2006, decided on 20.2.2007.
(i) Service Tribunals Act, 1973 (IX of 1973)—
----S. 4--Termination of Service--Illegal appointment--Illegality and lapses committed by department--Validity--Once the appointee is qualified to be appointed, his service cannot be subsequently terminated on the basis of lapses and irregularity committed by department. [P. 695] A
1996 SCMR 413 and 2006 SCMR 285.
Ch. Abdul Sattar Goraya, Advocate for Appellant.
Mr. Mughees Aslam Malik, Advocate for Respondent No. 2.
Mr. Zafarullah Khan Khakwani, AAG.
Capt. (Retd.) Zahid Saeed, Special Secretary Education, Govt. of the Punjab, Lahore, Mrs. Shahida Anwar, DEO(W)/Respondent No. 1 and Mrs. Samina Zafar Ex Deputy DEO (W) Shujabad/Inquiry Officer.
Date of hearing: 20.2.2007.
Order
Brief facts leading to this ICA are that in the year 1995 certain posts of Elementary English Teachers (BS-14) under the administrative control of Respondent No. 1 had fallen vacant to be filled in by a method of direct recruitment. The appellant applied for the appointment as Elementary English Teacher. She was appointed as Elementary English Teacher in BS-14 by Respondent No. 1 vide order dated 2.9.1995 but the same had never been conveyed to her.
In the month of October, 1999, a person posing himself to be a peon of the office of Respondent No. 1 paid visit at the house of the appellant and told her that she has been selected and she should join at the place of posting. The petitioner went to the office of Respondent No. 1 and confirmed the above information. The petitioner also came to know that Respondent Nos. 1 & 2 had been drawing her salaries with her forged signatures and they had been passing transfer orders as well as they had been granting leave to the petitioner but all these proceedings were fictitious in nature. In fact the petitioner never received even a single benefit from the respondents and she neither joined service at any school nor she performed duties at any time.
The petitioner requested the respondents to allow her to join and perform her duties as Elementary English Teacher but they had refused to do so. Therefore, the petitioner filed W.P. No. 412 of 1999 which was dismissed on the ground of laches by the learned Single Judge in Chamber vide order dated 3.5.2006. Against the said order, the appellant has filed this ICA.
On 30.11.2006, a pre-admission notice was issued to the respondents. In response to the said notice, the learned AAG had appeared on 8.1.2007 and stated that inquiry proceedings are underway and likely to be concluded within a week. On 18.1.2007, the learned Law Officer had sought yet another adjournment in order to file a copy of the inquiry report. On 31.1.2007, the learned Law Officer had placed on record photo copy of the inquiry report of the Deputy District Education Officer (W.EE) Tehsil Shujabad District Multan. They Inquiry Officer in his inquiry report, found the allegations levelled by the appellant against the respondents contained in the writ petition to be valid but declared the appointment order of the appellant as bogus because the same was not recorded in the despatch register.
It is stated by the Special Secretary Education present in Court that the original record of the appointments could not be traced and photo copies of the same have been traced and the appointment of the appellant in the list of the selected candidates is not recorded nor any appointment letter is available whereby the appointment of the appellant has been made.
It is contended by learned counsel for the appellant that the appellant is M.A. B.Ed and is fully qualified to be appointed as Elementary English Teacher and that on the basis of her qualification, the appellant was selected and appointment order was issued, therefore, she had a right to join and get employment on the basis of the order dated 2.9.1995.
We have heard learned counsel for the parties and have gone through the order dated 3.5.2006 passed by the learned Single Judge in Chamber as well as the inquiry report of the Deputy District Education Officer (W.EE) Tehsil Shujabad District Multan.
In fact the appellant was appointed as Elementary English Teacher in BS-14 by Respondent No. 1 District Education Officer
(W-EE) Multan vide order dated 2.9.1995, a copy of which is placed on the file of W.P. No. 412/99 as Annex:A. Even in her application dated 27.6.2006 (Annex:B of the Inquiry report of the Deputy District Education Officer (W-EE) Tehsil Shujabad District Multan) Respondent No. 2 stated that the appointment order of the appellant was also issued. Perusal of the recommendation mentioned in the inquiry report of the Deputy District Education Officer (W-EE) Tehsil Shujabad Multan also reveals that during the period of Respondent No. 2 as AEO, the petitioner was appointed and she was responsible to certify the validity of the appointment order of the petitioner but she failed to do so. But as the appointment order was never conveyed to the appellant, she neither joined service at any school nor she performed her duties at any time.
So far as the illegal appointment of the appellant is concerned, it is observed that once the appointee is qualified to be appointed, his services cannot be subsequently terminated on the basis of lapses and irregularities committed by the department itself. As the irregularities were committed in the appointment of the appellant by the officials of the department, the appellant could not be made to suffer for the illegalities and irregularities committed. Reliance in this behalf is placed upon Secretary to Government of NWFP Zakat/Social Welfare Department, Peshawar and another vs. Sadullah Khan (1996 SCMR 413) and Muhammad Zahid Iqbal and others vs. DEO Mardan and others (2006 SCMR 285).
In view of the above circumstances, this appeal is accepted and the impugned order dated 3.5.2006 passed by the learned Single Judge in Chamber is set side. The respondents are directed to allow the petitioner to join her duty and she will be entitled for the salaries from the date of her joining the post. However, arrears of her salaries shall not be paid to her, as is undertaken by her learned counsel before this Court.
The appeal stands finally disposed of in the above terms.
(W.I.B.) Appeal disposed of.
PLJ 2007 Lahore 695
Present: M. Bilal Khan, J.
MUHAMMAD BASHIR alias BAKOLA and 8 others--Petitioners
versus
SUPERINTENDENT OF POLICE CITY DIVISION LAHORE and 9 others--Respondents
W.P. No. 11676 of 2006, decided on 14.2.2007.
(i) Criminal Procedure Code, 1898 (V of 1898)—
----S. 195(1)(c)--Constitution of Pakistan, 1973, Art. 199--Applicability--Taking of cognizance--Recording of FIR--Two separate concepts--No embargo--Principle--S. 195(1)(c) Cr.P.C. does not place any embargo against registration of case--Taking of cognizance and recording of FIR are two separate concepts which are not to intermingled.
[P. 698] A & B
2006 SCMR 483.
Dr. A. Basit, Advocate for Petitioners.
Mr. Tahir Mehmood Gondal, Assistant Advocate-General for State.
Mian Gauhar Rafique, Advocate for Respondent No. 4.
Date of hearing: 14.2.2007.
Order
The petitioners, nine in number, seek quashing of FIR No. 1231/2006 dated 14.10.2006, registered with Police Station Lower Mall, Lahore for offences under Sections 420, 468, 471 PPC.
The allegation in the FIR registered at the instance of Iftikhar-ud-Din son of Shah Din, the complainant, was that on 16.5.1973 he had purchased a parcel of land measuring 4 Kanal 5 Marla & 92 Sq. Ft. from one Chiragh Din son of Ameer Din caste Arain for a total consideration of Rs. 25,500/- and had taken over possession from the vendor; the land was mutated in his favour vide Mutation No. 5473 on 25.6.1973 and the marginal witness of the sale-deed was Khushi Muhammad Lumberdar, a real brother of Muhammad Bashir alias Bakola (Petitioner No. 1); that he (complainant) had been involved in litigation regarding the plot in question with Evacuee Trust Property Board, in various Courts of law for about twenty six years; after the Supreme Court had remanded the case, Mr. Justice Moulvi Anwar-ul-Haq, of the Lahore High Court decided the case on 31.10.2001; that the accused persons mentioned at Serial Nos. 1 to 16 of the FIR had neither produced the registered sale-deed in any Court nor had they become parties in the litigation; that Muhammad Bashir alias Bakola, Muhammad Adnan, Muhammad Rizwan, Muhammad Imran, Muhammad Nazeer alias Jeera, Muhammad Shaaban alias Jaggu sons of Muhammad Bashir, Rana Abdullah Advocate, in consultation with one another got a forged deed prepared through one Rizwan Butt alias Pappi son of Ijaz Butt wherein signatures of Chiragh Din had been forged; the said forged deed was Document No. 16226, Book No. 1, Volume No. 563 registered on 23.12.1972; the said deed was got registered in connivance with Chiragh son of Nathu Khan, Muhammad Ibrahim son of Karam Din and Ghulam Hussain son of Jamal Din for a consideration of Rs. 1000/-; on the basis of this forged registered sale-deed one Muhammad Irfan manoeuvred a fake power of attorney in his favour purported to have been executed by Shafqat Hameed Sheikh; thereafter Muhammad Irfan filed a suit on behalf of Shafqat Hameed, her brothers Sheikh Shahid, Shahzad Hameed, sons of Sheikh Abdul Hameed and Mst. Shazia Aafaq in a Civil Court at Lahore; in the said suit the signatures of Shafqat Hameed, etc. (plaintiffs) had not been obtained but fraudulently Muhammad Irfan signed on their behalf; address of the plaintiffs had also not been correctly mentioned in the suit; that the accused persons in connivance with one another and by committing fraud got the said civil suit decreed in their favour ex parte on 17.7.2006; the complainant applied for a certified copy of the decree but the same has not been provided to him; that the "Qabza Group" wants to deprive the complainant of his property worth Crores of rupees and has forcibly occupied the said property. Resultantly the instant FIR had been recorded.
In support of this petition for quashing the FIR, it has been aruged that the sale-deed, in relation to which the offence is stated to have taken place has already been produced before a Civil Court which has proceeded to issue a declaratory decree with consequential relief; that as the document in question has been produced before a Civil Court, no criminal Court has the jurisdiction to entertain the matter for the purpose of trial unless a written complaint is made to the Civil Court before whom the document in question was produced; that the registration of FIR is in violation of mandatory provisions of Section 195(1)(c), Cr.P.C. that any investigation on the basis of FIR in violation of Section 195(1)(c), Cr.P.C. would be infructuous and without any legal value; that Capital City Police Officer, Lahore had no jurisdiction to order registration of case in that, if the SHO had refused to register a case the proper course for the complainant was to seek relief under Sections 22-A, 22-B, Cr.P.C.; that it can easily be gathered from the contents of the FIR was a civil suit has been transformed into a criminal liability so as to obtain advantage in the pending civil litigation.
On the other hand the learned counsel for the complainant argued that criminal action can proceed simultaneously with a civil suit; that the investigation is still in progress and quashing the case at initial stage would amount to sitfling the prosecution case.
The learned Assistant Advocate-General also opposed the prayer made in this petition.
I have heard the learned counsel for the parties at limine stage and have perused the available record.
The investigation is still pending and I am told that while hearing bail application (Crl. Misc. No. 9582-B/2006) filed by Muhammad Bashir (Petitioner No. 1) my brother M.A. Shahid Siddiqui, J. had asked the Investigating Officer to send certain documents for the opinion of the handwriting exerpt. Any interference by this Court with the process of investigation at this stage is not called for. The Hon'ble Supreme Court in its latest pronouncements in the case of Haji Sardar Khalid Saleem versus Muhammad Ashraf and others (2006 SCMR 1192) and Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and two others (2006 SCMR 1957) had deprecated the practice of quashing of the FIRs when the case involves controversial questions of law and fact. In order to appreciate the contentions raised by the learned counsel for the petitioners a factual inquiry needs to be undertaken which cannot be resorted to by this Court while seized of a constitutional petition. Section 195(1)(C), Cr.P.C. does not place any embargo against registration of case. In this connection reference may profitably be made to the case of Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others (2006 SCMR 483) where the Hon'ble Supreme Court once again reiterated that taking of cognizance and recording of FIR are two separate concepts which are not to be intermingled. There is no merit in this petition, which is accordingly dismissed in limine.
(W.I.B.) Petition dismised.
PLJ 2007 Lahore 698
Present: Kh. Muhammad Sharif, J.
Mst. HAFIZAN BIBI and another--Petitioners
versus
SHO, P.S. MANGTANWALA, DISTT. NANKANA SAHIB--Respondents
W.P. No. 20 of 2007, decided on 22.2.2007.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 561-A--Quashing of FIR--Marriage of sui juris girl with a man of her choice--Registartion of case of abduction against her husband at the instance of her parents--Determination--Court has to see whether the alleged abductee and her alleged husband are sui juris or not--Held: Whenever a sui juris girl contracts marriage with a man of her choice without the wishes of her parents, false criminal cases are registered against the couple after having prepared false Nikah Namas of a date prior to the date of original Nikah--Continuation of the criminal proceedings initiated pursuant to the registration of impugned FIR would be an abuse of the process of the Court--F.I.R. was quashed. [P. 700] A & B
Mr. Imtiaz Ahmad Awan, Advocate for Council with Petitioners.
Ch. Muhammad Hanif Khatana, Additional Advocate General Punjab for Respondents.
Mr. Shafique Ahmad Gill, Advocate for Respondent No. 3.
Date of hearing: 22.2.2007.
Order
Report from the office of the Director FIA (Technical), Headquarters, G-9/4, Islamabad has been received and perused, it reads as under:
"The examination of the documents under VSC (Documents Examination System) has revealed that the questioned Urdu Signatures now marked as Q on the Nikah Nama does not tally in characteristics such as formation & design as compared to the specimen signatures now marked as S/1 to S/4 of Mst. Hafizan Bibi".
Learned counsel for the respondent Aamer has placed on record an alleged affidavit of the alleged Nikah Khawan Ziaur Rehman to contend that the said Nikah Khawan did not perform the Nikah of both the petitioners i.e. Hafizan Bibi and Muhammad Ashiq. Further contends that the said Nikah Khawan should be summoned by this Court and his statement be recorded. Then, he has produced a photostat copy of an affidavit allegedly made by Hafizan Bibi dated 10.10.2006 to the effect that she wanted to marry Ashiq. He has also placed on record a photostat copy of the Nikah Name between Ashiq and Hafizan Bibi to the effect that their Nikah was performed on 15.8.2006. To sum up the submissions, learned counsel for the complainant vehemently contends that in the above situation, Hafizan Bibi should not have sworn affidavit on dated 10.10.2006.
The learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana submits that the report received from the office of the Director FIA (Technical), Headquarters, G-9/4, Islamabad is against Aamer respondent and Nikah Nama of Hafizan Bibi with the said Aamer has been found to be false and fabricated one. Adds that both the petitioners i.e. Hafizan Bibi and Muhammad Ashiq are present in Court and have admitted their Nikah, they are sui juris, so, there is no value of the alleged Nikah Nama of Hafizan Bibi with Aamer respondent. He has no objection to the acceptance of this petition.
Heard. Court has to see whether the alleged abductee and her alleged husband are sui juris or not. Both the petitioners i.e. Hafizan Bibi and Ashiq are present in Court, have admitted their Nikah and admittedly are sui juris. I have noted in many cases of the similar nature, like the one in hand, that whenever a sui juris girl contacts marriage with a man of her choice without the wishes of her parents, false criminal cases are registered against the couple after having prepared false Nikah Namas of a date prior to the date of the said Nikah. It is definitely done with the active connivance of the complainant party with the police. Similar is the position in the instant case. In order to reach at a just conclusion of the case, I had sent specimen signatures of Hafizan on the alleged Nikah Nama with Aamer respondent which, according to the report of the office of the Director FIA (Technical), Headquarters, G-9/4, Islamabad, have been found to be false and fabricated one, so, the said alleged Nikah Nama of respondent Aamer with Hafizan Bibi is declared as a bogus one. Both the petitioners i.e. Hafizan Bibi and Muhammad Ashiq are present in Court and have admitted their Nikah with each other and further submitted that they are sui juris which factum of majority of the petitioners has not even been denied by the complainant/respondent side. In the afore-referred circumstances and as the learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana has no objection to the acceptance of this petition, this Court is of the affirmed view that continuation of the criminal proceedings initiated pursuant to the registration of the impugned FIR would be an abuse of the process of the Court, therefore, this petition is allowed and the impugned FIR is hereby quashed.
(R.A.) Petition allowed.
PLJ 2007 Lahore 700
Present: Tariq Shamim, J.
NOOR ZAIDA--Petitioner
versus
MUHAMMAD KHALID and 6 others--Respondents
W.P. No. 9703 of 2006, decided 9.2.2007.
(i) Criminal Procedure Code, 1898 (V of 1898)—
----Ss. 22(A)(B) & 537--Illegal Dispossession Act, 2005--S. 3--Miscarriage of justice--Justice of Peace--Registration of case--Accused forcibly demolished the wall--Petitioner submitted an application for registration of the case which was dismissed--Being dissatisfied the petitioner filed criminal complaint which was also dismissed by trial Court--Assailed--No finding, sentence or order passed by reversed or altered on account of error, omission or irregularity unless such error omission or irregularity has occasioned miscarriage of justice--Held: Court had failed to notice any miscarriage of justice on account of non-recording of reasons or that any prejudice had been caused to petitioner--Perusal of material available on record did not reveal that respondents have credentials or antecedents of Qabza Group or Land Mafia--Matter was sub-judice before Civil Court which was competent to decide the disputed between the parties.
[Pp. 702 & 703] A & E
(ii) Criminal Procedure Code, 1898 (V of 1898)—
----Ss. 202 & 203--Provisions of--Recording of statement--Legality--Provisions of S. 203 Cr.P.C. are quite explicit which provide that Court might dismiss the complaint if in the judgment of the Court, there are no sufficient grounds for proceeding by briefly recording--In view of S. 203 Cr.P.C., no illegality has been committed by Court.
[P. 703] B
(iii) Illegal Dispossession Act, 2005—
----S. 3--Criminal Procedure Code, (V of 1898), S. 537--Summoning of accused--Prima facie--Contentions--If the Court holding such an inquiry issues summons to accused person before issuing process, it would not vitiate the proceedings as it would be a mere irregularity curable u/S. 537 Cr.P.C. the Court after recording statements of the witnesses and perusing the documents, concluded that no illegal dispossession as alleged by petitioner in complaint within contemplation of S. 3 of Illegal Dispossession Act, had taken place--Material produced before Court by petitioner fell short of establishing a prima facie case. [P. 703] C
(iv) Illegal Dispossession Act, 2005—
----Preamble and object--Scope of Illegal Dispossession Act, is restricted to cases of illegal dispossession from immovable property at hands of a class or group of person who have antecedents of being property grabbers Qabza Group and the act has no applicability to ordinary cases involving disputes over possession of immovable property.
[P. 703] D
Nemat Ali Nagra, Advocate for the Petitioner.
Ch. Muhammad Jamil Zahid, Advocate for Respondents.
Mr. Shahbaz Ahmad Dhillon, Assistant Advocate-General for State.
Date of hearing: 9.2.2007.
Order
Through this petition, the petitioner has assailed the orders of the learned Addl. Sessions Judge, Lahore dated 3.7.2006 and 12.7.2006 passed on a complaint filed by the petitioner under the Illegal Dispossession Act of 2005.
The brief facts of the case are that the petitioner submitted an application to the SHO concerned for registration of a case against Respondent Nos. 1 to 5 on the premise that on 14.5.2005 the accused had forcibly gained entry into his plot and had demolished the outer wall. The matter was probed into by the SHO who opined that the complaint was false. The petitioner thereafter proceeded to file a petition under Section 22-A, 22-B Cr.P.C. before the learned Addl. Sessions Judge/Ex-Official Justice of Peace which was dismissed on 1.6.2005 by the learned Judge holding that the petitioner was not able to establish his possession in respect of the disputed plot and that the entire story narrated by the petitioner was false. Being dissatisfied, the petitioner instituted a criminal complaint under the Illegal Dispossession Act, 2005, which was dismissed by the learned trial Court while concluding that in the light of the investigation as well as the documents available on the record no case of illegal dispossession was made out. Hence this petition.
The learned counsel for the petitioner contended that the learned Court had summoned the respondents at the preliminary stage which was not in consonance with the spirit of Section 200 Cr.P.C. as the said provision of law did not require the Court to associate the accused with the inquiry proceedings and that the impugned order dated 12.7.2006 not being a speaking order was passed in violation of Section 202 Cr.P.C. Thus, vitiating the entire proceedings.
The learned counsel appearing on behalf of Respondent Nos. 1 to 5 while supporting the impugned order contended that the learned Additional Sessions Judge had passed the order based on the evidence produced by the petitioner which lacked credibility.
I have heard the learned counsel and perused the record with their able assistance.
The arguments advanced by the learned counsel for the petitioner are devoid of any force. I disagree with the proposition that in all cases where there has been a departure from the provisions of Section 202 Cr.P.C. the end result is bad proceedings liable to be set aside. In the first instance, Section 537 Cr.P.C. which is applicable to the proceedings of a criminal Court clearly lays down that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity unless such error, omission or irregularity has occasioned miscarriage of justice. In the instant case, I have failed to notice any miscarriage of justice merely on account of non-recording of reasons or that any prejudice has been caused to the petitioner. The evidence led by the petitioner before the learned Addl. Sessions Judge was not sufficient to satisfy the learned Judge as to the correctness of his case. Even otherwise, the provisions of Section 202 Cr.P.C. are enabling provisions and not obligatory. Further, the provisions of Section 203 Cr.P.C. are quite explicit which provide that the Court may dismiss the complaint if, in the judgment of the Court, there are no sufficient grounds for proceeding by "briefly recording" the reasons for doing so. Thus, in view of the provisions of Section 203 Cr.P.C. no illegality has been committed by the learned Court.
In so far as the other contention regarding summoning of the accused at preliminary stage is concerned, suffice it to say that if the Court holding such an inquiry issues summons/notice to the accused persons before issuing process, it would not vitiate the proceedings as it would also be a mere irregularity curable under Section 537 Cr.P.C. The learned Court after recording the statements of the witnesses and perusing the documents, including the investigation report, concluded that no illegal dispossession as alleged by the petitioner in the complaint within the contemplation of Section 3 of the Illegal Dispossession Act, 2005, had taken place. Thus, the material produced before the learned Court by the petitioner fell short of establishing a prima facie case.
It has further been noticed that the dispute essentially is a private dispute between two parties over possession of the plot in question which is sub-judice before a Civil Court since before filing of the complaint, by the petitioner. It is evident from the facts and circumstances of the case that the complaint was filed against Respondent Nos. 1 to 5 by the petitioner to circumvent the normal civil proceedings and to create pressure on the respondents by resort to criminal process.
Moreover, the scope of the Illegal Dispossession Act is restricted to cases of illegal dispossession from immovable property at the hands of a class or group of persons who have the antecedents of being property grabbers/Qabza Group and the act has no applicability to ordinary cases involving disputes over possession of immovable property. A perusal of the material available on the record does not reveal that the respondents have the credentials or antecedents of a Qabza Group or land Mafia. Further, the matter is sub-judice before a Civil Court which is competent to decide the dispute between the parties.
In view of the above, I am of the considered view that the impugned order does not call for interference. The writ petition being devoid of any merit stands dismissed.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 704
[Rawalpindi Bench Rawalpindi]
Present: Muhammad Muzammal Khan, J.
MUHAMMAD EHSAN and another--Petitioners
versus
MUHAMMAD YOUSAF and another--Respondents
W.P. No. 3216 of 2006, decided on 6.3.2007.
(i) Illegal Dispossession Act, 2005—
----Ss. 3 & 7 & Preamble--Criminal Procedure Code, (V of 1898) S. 265-K--Constitution of Pakistan, 1973--Art. 199--Invocation of jurisdiction--Illegaly/forcibly dispossessed--Restoration of possession--Respondent filed a complaint--Petitioner moved an application u/S. 265-K Cr.P.C. whereas respondent filed an applications u/S. 7 of Illegal Dispossession Act, 2005--Applications were disposed of applications allowing interim restoration of possession declining invocation of jurisdiction--In absence of any allegation or proof, complaint u/S. 3 of Illegal Dispossession Act, 2005 could not have been entertained, proceeded or decided by Addl. Session Judge, because pre-amble of Illegal Dispossession Act, is explicit and is reproduced for convenience--Impugned order directing return of possession to respondents was coram non judice--Petitioners might have been forcibly dispossessed from land in question but they have other remedies available to them under ordinary law of land.
[P. 705] A & C
2007 P.Cr.R. 2001.
(ii) Illegal Dispossession Act, 2005—
----Preamble--"Property Grabbers" used in Illegal dispossession Act, 2005 as Qabza Group/Land Mafia and made it obligatory for the Court of Session to prima facie satisfy that persons complained had credentials antecedents of property grabbing. [P. 705] B
Mr. Saeed Yousaf Khan, Advocate for Petitioners.
Qazi Ibrar Hussain, Advocate for Respondents.
Date of hearing: 6.3.2007.
Order
This constitutional petition assailed the order-dated 23.5.2006. passed by the learned Additional Sessions Judge Chakwal, to be declared illegal, void and of no legal consequence, whereby petitioners were directed to put Respondent No. 1 in possession of the disputed property, within seven days.
Succinctly, relevant facts are that Respondent No. 1 on 6.3.2006 filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 with the allegations that the petitioners on 20.2.2005 illegally/forcibly dispossessed him from land measuring one Kanal out of Khasra No. 1446 of khewat No. 1076 of Village Kallar Kahar District Chakwal. Petitioner appeared before the learned Additional Sessions Judge and moved an application under Section 265-K Cr.P.C. whereas Respondent No. 1 filed an application under Section 7 of the Act (ibid) for interim possession of the land in question.
The learned Additional Sessions Judge, seized of the matter, after hearing the parties, disposed of three different applications, allowing the interim restoration of possession of Respondent No. 1, declining invocation of his jurisdiction under Section 265-K Cr.P.C. Petitioners, thereafter, filed instant constitutional petition with the relief noted above. Respondents in response to notice by this Court appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Respondent No. 1 had claimed ownership/possession over the disputed land on the basis of registered gift deed dated 22.12.1994 from his father-in-law Mian Khan. In Para 3 of the complaint by Respondent No. 1, he asserted that petitioners dispossessed him on 20.2.2006 in his absence and dispossession came to his knowledge on 4.3.2006. He did not plead/assert or bring any proof that petitioners were property grabbers or they belong to some Qabza Group/Land Mafia. In absence of any such allegation or proof, complaint under Section 3 of the Illegal Dispossession Act, 2005 could not have been entertained, processed or decided by the learned Additional Sessions Judge because pre-amble of the Act (ibid) is explicit and is reproduced for convenience/ready reference and reads as under:--
"Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession there from by the property grabbers".
Besides the language of the preamble, a Full Bench of this Court has interpreted the term. "Property Grabbers" used in the said Act as Qabza Group/Land Mafia and made it obligatory for the Court of Sessions to prima facie satisfy itself that the persons complained had the credentials/antecedents of property grabbing. In the case in hand, as noted above, there is no allegation of this kind against the petitioners thus, the impugned order directing return of possession to the respondents was coram non judice. Petitioners might have been forcibly dispossessed from the land in question but they have other remedies available to them under ordinary law of the land, as pointed out by the Full Bench of this Court in the case, above referred, in the case of Zahoor Ahmad and 5 others Versus the State and 3 others (2007 P.Cr.R. 201) to which they may have resort for restitution of their possession, if proved. Scan of record and impugned order revealed that dispute amongst the parties was correctly decided and jurisdiction under the Illegal Dispossession Act, 2005 was wrongly assumed/exercised.
For the reasons noted above, instant petition is bound to succeed and is accordingly accepted. Impugned order dated 23.5.2006 is declared to be void and non-existent in the eye of law. There will be no order as to costs.
(R.A.) Petition accepted.
PLJ 2007 Lahore 706
Present: Sh. Azmat Saeed, J.
UNIVERSITY OF HEALTH SCIENCES through its Vice Chancellor Khyaban-e-Jamia Punjab, Lahore --Petitioner
versus
Dr. AZEEM-UD-DIN ZAHID and another--Respondents
W.P. No. 8388 of 2006, decided 12.2.2007.
Punjab Office of the Ombudsman Act, 1997—
----S. 10(9)--Constitution of Pakistan, 1973, Art. 199--Powers of Provincial Ombudsman--Maintainability--Direction to University to produce answer books to determine the condition of university--Assailed--Determination of fair evaluation of paper--Respondent filed an application before the University for rechecking of papers but was rejected--Complaint was filed before Provincial Ombudsman, who passed the impugned order--Contention of the University that no order directing production of answer books either by the Court or by Provincial Ombudsman could be passed in view of the dictim of law laid down by the Apex Court--Question of mathematical error in computation result--Jurisdiction of the High Court--Regulation as framed by the University perceived of an application by a student to the nominated functionary of the University to check whether every question attempted had been marked, and inadvertently no question had been left out and to see whether there was any mathematical error in the computation of the final result--Functionary of the University can exercise the power which cannot be exercised by respondent especially, when specific powers have been conferred upon him by virtue of S. 10(9) of the Punjab Office of the Ombudsman Act, 1997 are co-extensive with a functionary of the University--High Court while setting the guidelines that in Provincial Ombudsman might examine the papers in-question for limited purpose only and strictly in accordance to the dictim laid down in the case reported as 1996 SCMR 676--Petition was dismissed.
[P. 708] A, B, C & D
1996 SCMR 676 distinguished.
Mr. Asif Ismail, Advocate for Petitioner.
Malik Zafar Iqbal Awan, Addl. A.G. for Respondents.
Date of hearing: 12.2.2007.
Order
This writ petition is directed against the interim order dated 17.7.2006 passed by Respondent No. 2 directing the petitioner University to produce the answer books of Respondent No. 1 to determine whether the conditions mentioned in regulation 7 (VII) (a to f) of the University have been fulfilled.
Facts of the case are that Dr. Azeem ud Din Zahid, hereinafter to be referred as Respondent No. 1, appeared in 2nd Annual 2005 examination for the qualification of Master in Public Health conducted by the petitioner University and failed in two papers namely Public Health Policy and Management & Epidemiology. Being Aggrieved Respondent No. 1 filed an application before the university apparently for re-checking, but said application was rejected vide order dated 27.4.2005, whereafter, Respondent No. 1 filed a complaint before Provincial Ombudsman, and during the course of proceedings, impugned order was passed directing production of said answer books for the purpose mentioned in the order itself.
Counsels for the parties have been heard and record appended herewith perused. It is contended on behalf of the University that no order directing production of answer books either by the Court or by Respondent No. 2 could be issued in view of the dictum of law laid down by the Apex Court in the case reported as Board of Intermediate & Secondary Education Lahore vs. Saima Azad (1996 SCMR 676).
Learned counsel for the respondents controverts the contentions raised on behalf of petitioner by contending that said judgment is inapplicable to the facts and circumstances of the case. In the case referred to and relied upon by the learned counsel for the petitioner supra, this Court while exercising its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan by way of an interlocutory order directed the examiners of papers A and B to appear in Court alongwith answer books of the whole lot of examinees. Said order was challenged before the Apex Court by the Board through Civil appeal which was accepted by means of judgment referred to herein above holding that this Court while exercising jurisdiction under Article 199 of the Constitution was not justified in summoning answer books of the whole lot of examinee in order to find out whether the examiners had carried out marking of numbers in case of examine correctly or not. And that jurisdiction of this Court was principally meant for correcting jurisdictional error in the order and proceedings of Tribunal and executive authorities. It was further held that solemnity of educational institutions and process of examination could not be allowed to be sacrificed on the altar of expediency by allowing every student to challenge his result in a Court of law.
It may be noticed that in the said case, a student had raised the question of discrimination regarding fair evaluation of the papers claiming higher marks than awarded to her, and this Court had directed the examiners of paper A and B to appear in Court on the next date of hearing alongwith lot of answer books examined by the same examiners. In the instant case no such exercise is being undertaken.
Regulation as framed by the University perceives of an application by a student to the nominated functionary of the University to check whether every question attempted has been marked, and inadvertently no question had been left out and further to see whether there is any mathematical error in the computation of the final result. In the present case said application was filed and was rejected by the University.
The impugned order has been passed merely to ascertain that every question attempted has in fact been checked and marked, and there is no mathematical error in the tabulation of the total marks as is apparent from the impugned order itself. In these circumstances dictum of law referred to above, would not be deviated from. It is also difficult to accept that a functionary of the University can exercise the powers which cannot be exercised by Respondent No. 2, especially, when specific powers in this behalf have been conferred upon Respondent No. 2 by virtue of Section 10(9) of the Punjab Office of the Ombudsman Act, 1997. Even otherwise, present petition is directed against an interlocutory order.
For the foregoing reasons, this Court is not persuaded to interfere in the matter. However, Respondent No. 2 may examine the papers in question for the aforesaid limited purpose only and strictly in accordance with the dictum of law laid down by the Apex Court in the case reported as 1996 SCMR 676. Resultantly, this petition is dismissed with the above observations.
(M.A.) Petition dismissed.
PLJ 2007 Lahore 709 (DB)
Present: Sh. Javaid Sarfraz and Mian Muhammad Najam-uz-Zaman, JJ.
Y.K. LEE, CHIEF EXECUTIVE DAEWOO, LAHORE--Petitioner
versus
DIG, SARGODHA and 4 others--Respondents
W.P. No. 704 of 2007, decided on 12.2.2007.
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----Ss. 7 & 19(3)--Criminal Procedure Code (V of 1898), S. 190(c)--Pakistan Penal Code, (XLV of 1860)--Ss. 324, 440, 148 & 149--Constitution of Pakistan, 1973--Art. 199--Jurisdiction--Ingredients--Legality--Summoned the record of case--Procedure and power--Ingredients of S. 7 of Anti-Terrorism Act are not attracted in circumstances of the case and special judge exercised power u/S. 19(3) of Anti-Terrorism Act, has erroneously directed investigation officer to apply S. 7 of Anti-Terrorism Act--Impugned order to that extent was neither justifiable nor sustainable--Case was remanded back to Special Judge for fresh adjudication upon the matter with observation that if the Court was satisfied that provisions of S. 7 of Anti-Terrorism Act, were attracted the Court after taking cognizance of the matter would proceed further as required under the law and in eventuality petitioner would be at liberty and application would be decided on merits--Petition disposed of. [P. 711] A
Mr. Nadeem-ud-Din Malik, and Mr. Fauzi Zafar, Advocates for Petitioner.
Malik Saeed Hassan, Advocate for Respondent.
Dr. Badar-uz-Zaman Chattha, Advocate for Respondent No. 5.
Ms. Salma Malik, A.A.G.
Date of hearing: 12.2.2007.
Order
Mian Najam uz Zaman, J.--Petitioner is involved in case FIR No. 14/2007 dated 20.1.2007 for the offences under Sections 324/440/148/149 PPC registered at Police Station Bhera District Sargodha.
"In view of above I direct SHO to apply Section 7 of the Anti-Terrorism Act, 1997 in FIR forthwith and then to proceed for further investigation strictly on merits without being influenced from any observation contained in this order. Record shall be produced again to show progress in investigation on 26.1.2007. Copy of the order be supplied to SHO free of cost for reference."
Through the instant petition legality of the said order has been challenged on the grounds that ingredients of Section 7 of Anti Terrorism Act are not attracted in the circumstances of the case and learned Special Judge while exercising his power under Section 19(3) of the ibid Act has erroneously directed the Investigating Officer to apply Section 7 of the said Act.
Heard. File perused.
For deciding the matter, a glance at the relevant provisions of law i.e. sub-section (3) of Section 19 of the Anti Terrorism Act, 1997 is necessary. The said sub-section reads as under:
Section 19: Procedure and powers of (Anti Terrorism Court)"
(1) ...........................................
.................................................
(2) ...........................................
.................................................
(3) The Anti Terrorism Court may directly take cognizance of a case triable by such Court without the case being sent to it under Section 190 of the Code.
The bare of perusal of said provision of Law reveals that Special Judge is competent to take cognizance in a matter falling within the ambit of Anti-Terrorism Act, 1997 directly but the said provision is absolutely silent qua the authority of the trial Court whereby it could direct the Agency to conduct the investigation on particular lines. If the Special Judge was of the opinion that circumstances of this case attract the provisions of Section 7 of Anti-Terrorism Act, then he should have taken the cognizance and proceeded with the matter. Though the word cognizance has not been defined either in the Criminal Procedure Code or in the Anti-Terrorism Act, 1997 but the same has been interpreted by the Courts as a judicious application of mind to proceed further in the matter i.e. calling the accused, framing charge, summoning the evidence etc. In case titled Muhammad Nawaz Khan vs. Noor Muhammad and others (PLD 1967 Lahore 176), it has been observed that Magistrate can be said to have taken cognizance of offence only when he decides to proceed against offender with a view to determine his guilt and the said stage does not arise unless police submits challan under Section 173 Cr.P.C. Similarly in case titled Muhammad Haneef and another vs. The State (1979 P.Cr.L.J. 1078) (D.B), taking cognizance has been defined as conscious application of judicial mind by the Court to determine the guilt of the accused. Relevant portion of the judgment reads as under:
"Therefore, keeping in view all these situations and the essential ingredients deliberated in the precedent cases, it can be said that in the context of criminal proceedings, a Magistrate or a Court can be deemed to take cognizance of a case when it consciously applies its judicial mind to the facts placed before it and then decides to proceed with the matter in accordance with the Criminal Procedure Code with the ultimate object of determining the guilt of the offender."
The Courts are created/established for doing justice between the parties and not for the purpose of giving guidelines to the agency to collect the data for proving certain charges against the accused person. The impugned order to the extent of directing the Investigating Officer to apply Section 7 of the ibid Act forthwith and then to proceed for further investigation strictly on merits, is against the spirit of criminal jurisprudence. Th impugned order to that extent is neither justifiable nor sustainable. Accordingly, while allowing the instant petition, case stands remanded back to the Special Judge for fresh adjudication upon the matter with the observation that if the Court is satisfied that the provisions of Section 7 of the ibid Act are attracted, the Court after taking cognizance of the matter, shall proceed further as required under the law and in that eventuality petitioner would be at liberty to move application under Section 23 of the said Act seeking transfer of the case and the said application shall be decided on merits at the earliest. With this observation the instant petition is allowed and disposed of.
(R.A.) Petition disposed of.
PLJ 2007 Lahore 712
Present: Sayed Zahid Hussain, J.
M/s M.A. ALEEM KHAN & SONS (Pvt.) Ltd.--Petitioner
versus
PROVINCE OF PUNJAB through the Secretary, Communication and Works Department Civil Secretariat, Lahore and 4 others--Respondents
W.P. No. 9896 of 2005, heard on 25.11.2005.
Constitution of Pakistan, 1973—
----Arts. 18 & 199--Infringement of fundamental rights--Freedom of trade & business--Audi Alterm Partem--Black listing of contractor--Assailed--Order passed without hearing--Deprivation of fundamental right--Held: Black listing of a firm or company results in deprivation of its business activity--It amounts to commercial killing of a company having multiple implications including the infringement of Fundamental Right No. 18 of the Constitution of Pakistan 1973--Action of black listing was taken without hearing the petitioner--Petition accepted. [P. 713] A & B
PLD 1999 SC 1126 and PLD 2001 Lahore 13.
Rana Muhammad Sarwar, Advocate for Petitioner.
Ch. Aamir Rehman, Addl.A.G. Punjab alongwith Nawazish Ali Shah, S.D.O. Highway Pasrur for Respondents.
Date of hearing: 25.11.2005.
Judgment
Order dated 20.5.2005 whereby the petitioner was "blacklisted" has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 inter alia on the ground that such an order has been passed without hearing the petitioner.
The learned counsel for the petitioner as also the learned Additional Advocate General, Punjab have been heard in the matter.
Leaving aside, for the present, the other assertions and controversies, it is evident from the perusal of the impugned order itself that the order was passed without hearing the petitioner. Though the order makes mention that despite opportunity afforded to the petitioner for personal hearing, the same was not availed yet some explanation is sought to be advanced by the petitioner in this respect stated in clause (b) of the grounds of the petition. The fact of the matter, however, is that the petitioner indeed was not heard before passing of the impugned order. The import and effect of the said order is that the petitioner was blacklisted and was "forbidden to participate in future tendering in the Province of the Punjab and is not allowed to register a new contracting firm with any of the Government/Semi Government Agencies. The name of the firm with all its Partners and Directors is also removed from the approved list of Contractors/Firms with immediate effect." The consequences to follow such order are obvious and drastic. The blacklisting of a firm or company as is evident from the above, results in deprivation of its business activity. It amounts to the commercial killing of a company having multiple implications including the infringement of Fundamental Right No. 18 of the Constitution of Islamic Republic of Pakistan, 1973. In New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi (PLD 1999 SC 1126) it was observed that "It may be pointed out thus the fall-out of the blacklisting of the appellant is to prevent it from the privilege and advantage of entering into lawful relationship with the respondent for the purpose of gains which is violative of Article 18 of the Constitution, which lays down that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. The blacklisting of a company/firm/person, also tarnishes the reputation of it/has, as to its/his credibility to honour its/his commitments which may dissuade other parties from entering into contracts with the former. Thus the consequences of blacklisting a company/firm/person are of great magnitude, which warrant that before taking such an action, there should be material on record prima facie to indicate that the delinquent Insurance Company's refusal to pay claim was not warranted in the circumstances of the case." In Zulfiqar Ali v. Divisional Superintendent (Workshops), Pakistan Railways, Moghalpura, Lahore and another (PLD 2001 Lahore 13) this Court had in a matter of blacklisting of contractor (which was done without show-cause notice and hearing him) declared such an action as of no legal effect. In the instant case, it appears that the respondent-Government was willing to afford personal hearing to the petitioner and intimation to that effect had even been issued but the petitioner could not avail the said opportunity for the reasons mentioned by the learned counsel. As the action of blacklisting was taken without hearing the petitioner, the same is not sustainable in law.
I am, therefore, inclined to declare the order as of no legal effect with the observation that the respondent should pass a speaking order afresh with due application of mind for which purpose the petitioner may appear before the Respondent No. 1 on 19.12.2005 so that a meaningful hearing is granted to him.
The petition is accepted to this extent, with no order as to costs.
(W.I.B.) Petition accepted.
PLJ 2007 Lahore 714
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD AFZAL and another--Petitioners
versus
LEARNED ELECTION TRIBUNAL (UNION COUNCIL NO. 83) BUREWALA and 7 others--Respondents
W.P. No. 4060 of 2006, heard on 2.10.2006.
(i) Punjab Local Govt. Election Rules, 2005—
----R. 35(4)(iii)(a)--Applicability--Bear signatures--No official marks--Validity--Votes bear the seal of presiding officer, but not signed by the presiding officer-exclusion of votes--Held: Such votes can be excluded from the count which bears no official marks--Votes did bear the seal of the P.O., they could not have been excluded from the count. [P. 716] B
(ii) Interpretation of Statute--
----Evidence--Allegation of--Validity--Issues framed evidence recorded--Parties at variance on re-count of votes polled at particular polling stations--Held: In the first instance, the re-count has in fact been ordered after recording evidence and, in second, in view of the specific allegations made in the election petition, the re-count would have been ordered even if no evidence has been recorded.
[Pp. 715, 716 & 717] A & C
Mr. M. Mahmood Ashraf Khan, Advocate for Petitioners.
Mian Abbas Ahmad & Ch. M. Gulzar, Advocates for Respondent Nos. 2 & 3.
Mr. M. Ihsan Alvi, Advocate for Respondents.
Nemo for others.
Date of hearing: 2.10.2006.
Judgment
The petitioners and the private respondents contested elections to the seats of Nazim and Naib Nazim in Union Council No. 83, Burewala. Upon the close of polls, the petitioners were declared returned with 2250 votes, the Respondent Nos. 2 and 3 following with 2120 votes while the Respondents No. 6 and 7 obtained 1670 votes. The Respondents No. 2 and 3 challenged the said election by filing an election petition. The grievance primarily was made with reference to the illegalities committed during the count of votes. The petition was resisted by the petitioners. Issues were framed. Evidence of the parties was recorded. At this stage, Respondents No. 2 and 3 filed an application that in case a re-count is ordered at Polling Stations No. 9 and 10, they will be withdrawing the other grounds. This application was resisted. It was decided with reference to the evidence on record and allowed on 2.6.2006. A re-count was conducted and as a result of the said re-count, it was found that the total number of votes polled by the Respondents No. 2 and 3 are 2096 while those of the petitioners and Respondents No. 6 and 7 are 2006 and 1575 respectively. The election petition was accordingly allowed and Respondents No. 2 and 3 were declared returned vide judgment dated 25.7.2006.
Learned counsel for the petitioners has argued that 135 votes cast in favour of the petitioners had been illegally rejected by the learned Election Tribunal when they did carry official stamps. He has also argued that the recovery of 54 votes polled in favour of the Respondents No. 2 and 3 from the envelope of the petitioners is not free of doubt. Mian Abbas Ahmad, Advocate, representing the contesting respondents has straightway offered that let all the votes rejected on the said ground (i.e. bearing the stamp but not signatures of the P.O.) be counted as valid. Now, there is no valid objection to the recovery of said 54 votes either before the learned Election Tribunal or in this Court. The precise contention is that even if the votes so rejected are treated as valid and counted in favour of the respective parties, the result would be the same i.e. the Respondents No. 2 and 3 have the majority.
I have gone through the copies of the records, appended with this writ petition. The consolidated statement is available at page 27 of the file. There were total 11 Polling Stations in the constituency. There is no dispute regarding Polling Stations No. 1 to 8 and 11. The re-count was conducted for reasons recorded on 2.6.2006 at Polling Stations No. 9 and 10.
At P.S. No. 9, the petitioners had 638 valid votes, the Respondents No. 2 and 3 had 68 votes while Respondents No. 6 and 7 had 33 votes. A total number of 34 votes were rejected at this P.S.
Now as a result of re-count, valid votes of the petitioners were found to be 415 while the invalid votes were 224. These include the said 135 votes that were rejected because of absence of signatures of the P.O. The Respondents No. 2 and 3 were found to have 42 valid votes while 26 votes were rejected on the same ground. Now 54 valid votes cast in favour of the Respondents No. 2 and 3 were also found in the envelope of the petitioners. So far as the Respondents No. 6 and 7 are concerned, they were found to have 26 valid votes while 7 were rejected on the aforementioned ground.
At P.S. 10, the petitioners had 245 votes, the Respondents No. 2 and 3 had 356 votes while Respondents No. 6 and 7111 votes. The number of rejected votes were 46. Upon a re-count, the total number of votes recovered from the envelope of the petitioners were 244 and out of these 20 were found to be double stamped while 224 were found to be valid, in the envelope of the Respondents No. 2 and 3, 364 votes were found and out of these 358 were valid and six were double stamped. There was no change in the result of Respondents No. 6 and 7. Now I may note here that the said 54 votes were also rejected because of absence of the signatures of the P.O.
Now so far as the said contention of the learned counsel as to rejection of 135 votes on the ground that these do not bear the signatures of the P.O. whereas they do bear the stamp, does carry force. Under Rule 35(4) (iii)(a), of the Punjab Local Government Elections Rules, 2005, only such vote can be excluded from the count which bears no official marks. Since the said votes did bear the seal of the P.O., they could not have been excluded from the count and same goes for the votes cast in favour of the Respondents No. 2 and 3 and rejected for the same reason. Thus, I do hold that the said 135 votes are to be counted in favour of the petitioners while the said 54 plus 26 votes are to be counted in favour of the Respondents No. 2 and 3 (P.S. No. 9).
Now so far P.S. 10 is concerned, the allegation is that the respondents somehow or other double stamped the said 20 votes cast in favour of the petitioners and the learned Tribunal has refrained from making any observation in this matter. When confronted, learned counsel for the respondents states that either the double stamped votes of both the set of candidates be excluded or the same be included and in both the cases the result would not be materially changed.
This leaves the question of the said 54 votes found in the envelope of the petitioners. I do not find any objection before the learned Tribunal with regard to the same. However, before me, it has been sought to be argued that somehow or the other those 54 votes were removed and then fresh 54 votes were re-inserted. There is no material on record to prima facie support the said contention so as to institute an inquiry into the same. The learned counsel then tried to argue that the re-count could not have been ordered without recording evidence. The contention is baseless. In the first instance, the re-count has, in fact, been ordered after recording evidence and, in the second, in view of the specific allegations made in the election petition, the re-count would have been ordered even if no evidence had been recorded.
Thus, while maintaining the ultimate judgment of the learned Election Tribunal declaring Respondents No. 2 and 3 to be successful candidates, the writ petition is disposed of with a modification that the result would be consolidated after adding the said 135 votes in favour of the petitioners and the said 54 and 26 votes in favour of the Respondents No. 2 and 3 as valid votes. The schedule to the impugned judgment shall accordingly stand amended after the said addition of 135 votes in the valid votes of the petitioners (Muhammad Afzal, etc.) and of 80 votes in the valid votes of Respondents No. 2 and 3 (Malik Iftikhar, etc.) at P.S. No. 9 No orders as to costs.
(W.I.B.) Petition disposed of.
PLJ 2007 Lahore 717
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Mst. SIRAJ BIBI--Petitioner
versus
MUHAMMAD SHAFI (deceased) through his Legal Representatives
and others--Respondents
C.R. No. 613-D of 1989, heard on 2.10.2006.
(i) Appreciation of evidence--
----Gift mutation--Denial by maker--Onus to prove on beneficiary missing motive not an iota of evidence as to declaration of the gift, its acceptance and delivery of possession--Discrepancies in evidence--Contradiction about report and proceedings by Tehsildar--Held: Case of no evidence and the impugned judgments to be the results of gross misreading of evidence on record. [P. 720] A
2002 SCMR 1938 and PLD 1990 SC 1.
Syed Muhammad Ali Gillani, Advocate for Petitioner.
Mr. Abdul Rashid Sheikh, Advocate for Respondents No. 1a to
1-f, 3, 5 & 6.
Respondents Nos. 13, 14 & 15 exparte vide Order dated 13.1.2003.
Nemo for others.
Date of hearing: 2.10.2006.
Judgment
On 4.3.1982 the petitioner filed a suit against the respondents and in the plaint it was stated that the suit land, mentioned in the plaint and located within the municipal limit of Mian Channu devolved upon her after the death of her father. Her brothers namely Respondent No. 1 and Siraj, the predecessor-in-interest of Respondent Nos. 2 to 6 got attested a gift Mutation No. 20 dated 19.4.1964 after getting Report No. 361 entered on 7.4.1964. According to the petitioner lady she had never made a gift in favour of her said brothers and had never appeared before any revenue officer in the matter of said mutation. According to her she came to know about the said mutation in the year 1981 and immediately filed an appeal which was accepted. However, an Additional Commissioner allowed the appeal of the respondents and directed the parties to approach Civil Court. According to her she is married lady with male children and she had no reason, whatsoever, to gift the property to her brothers. In their written statements the respondents asserted positively that the lady appeared before the revenue officer and got the mutation attested. Following issues were framed by the learned trial Court.
Whether suit is not maintainable in its present form? OPD
Whether suit is bad for mis-joinder of parties? OPD
Whether plaintiff is estopped to file the suit? OPD
Whether defendants are entitled to special costs u/S. 35-A of C.P.C.? OPD
4-A. whether Mutation No. 20 dated 19.4.1964 is incorrect, against law and facts, based on fraud and forgery, null and void and ineffective against the rights of the plaintiff and liable to be set aside and order of A.C. dated 1.2.1982 is also incorrect, against law and facts and liable to be set aside? OPP
4-B. Whether plaintiff is owner in possession of the suit land and entitled to the decree prayed for? OPP
4-C. Whether plaintiff validly gifted away the disputed land in favour of Muhammad Shafi and Siraj Din ? OPD
Evidence of the parties was recorded. Vide Judgment & Decree dated 12.12.1987 the learned trial Court found Issues Nos. 1, 4-C, 4-A and 4-B in favour of the respondents while the remaining issues were answered in favour of the petitioner. The suit was dismissed. A first appeal filed by the petitioner was heard by a learned Additional District Judge, Khanewal who reversed the findings on Issue No. 1 and found the suit to be competent but affirmed the findings on the remaining issues. The appeal was accordingly dismissed on 12.7.1989.
Learned counsel for the petitioner contends that the learned Courts below in particular the learned Additional District Judge, Khanewal treated the mutation to be sacrosanct document notwithstanding the law declared by the superior judiciary to the contrary. According to the learned counsel there was no evidence for a valid gift or a mutation on record. Learned counsel for the respondents on the other hand has supported the impugned Judgments & Decrees urging that it was for the petitioner to prove fraud and that the main issue on merits have been correctly decided.
I have gone through the copies of the records. Now as noted by me above, the petitioner had specifically denied having made any gift or having gone before any revenue officer to state in favour of her brothers. The defendants had on the other hand categorically stated that she made a valid gift in their favour and got the mutation attested. The burden of Issue No. 4-C was thus correctly placed upon the respondents and it was rather heavy. Now so far as the learned trial Court is concerned, after referring to the evidence on record he has abruptly concluded that all the witnesses produced by the respondents have supported their case. Now so far as the learned Additional District Judge is concerned, he has been impressed with the testimony of Nawab Din Lambardar who had identified the lady before the Tehsildar.
Now I have gone through the evidence with the assistance of the learned counsel for the parties and I do find that the same has been misread. Now the said Nawab Din appearing as DW4 proceeded to state that the petitioner lady met him one fine morning and told him that she has to gift her land to brothers Shafi and Siraj Din and that he should go to the Patwari whereupon he went to the Patwari and got the report entered at No. 361 and signed the same. Thereafter the Tehsildar came to the Chak and Mst. Siraj Bibi appeared and he identified her. In his cross-examination he admitted that Mst. Siraj Bibi was married at that time but he was not aware as to whether she had a child or not. Now Shafi respondent appeared as DW8. Now he proceeded to state that the said report was got entered by the petitioner lady herself who accompanied them to the Patwari. To my mind apart from the fact that Nawab Din has no business to get the gift recorded, the said Shafi himself completely belies his testimony. So far as the two other chance witnesses i.e. Ghulam Nabi and Faqir Muhammad DWs 6 and 5 are concerned, suffice it to say that whereas they stated that the plaintiff lady went inside the room where the Tehsildar was sitting the said Shafi stated that there was no room and the Tehsildar conducted the proceedings while sitting under a tree.
Apart from the said discrepancies apparent on the face of the record, the entire written statement and the entire evidence led by the respondents is silent as to why the petitioner gifted the land to them. Admittedly she was married and also has male children. Nothing has been suggested to her as well in the witness box as to why she made the gift. Now this circumstance has attained much importance and has been duly taken note of by the Hon'ble Supreme Court of Pakistan in the case of Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938). Learned counsel though tried to argue that the suit was brought 18 years after the mutation and that possession has throughout been with the brother, nothing turn on the same in view of the law laid down in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Needless to state that there is not an iota of evidence as to declaration of the gift, its acceptance and delivery of possession there-under. I, therefore, find it to be a case of no evidence and the impugned judgments to be the results of gross misreading of evidence on record. The civil revision accordingly is allowed. Both the impugned judgments and decrees are set aside and the suit filed by the plaintiff-petitioner is decreed as prayed for against the respondents.
(W.I.B.) Revision allowed.
PLJ 2007 Lahore 720
Present: Mian Saqib Nisar, J.
MUHAMMAD ZAHID PERVAIZ--Petitioner
versus
MUHAMMAD SHAFQAT IQBAL--Respondent
C.R. No. 201 of 2007, decided on 6.2.2007.
Duty of Court--
----Wrong provisions of law--Effects on litigants--Wrong mentioning of the correct provisions of law does not disentitle the litigant for the appropriate relief available to him, because it is duty of Court to apply the correct law and to grant proper relief. [P. 721] A
Civil Procedure Code, 1908 (V of 1908)—
----O.XXXIX, Rr. 1 & 2, S. 151--Constitution of pakistan, 1973, Art. 23--Provision as to property--Entitlement--Validity--Grant of injunctive order in pre-emption suits--Injunction discretionary in nature fundamental right--Held: Injunctive order would not be lightly granted because the vendee in such cases is absolute and exclusive owner till the time decree for pre-emption is passed in favour of pre-emptor--Even if the pre-emptor has prima facie established his right of pre-emption on record, still the owner of property cannot be put under restraint to use his property, which may tantamount to the breach of his fundamental right as enshrined by Art. 23 of the Constitution of Pakistan. [Pp. 721 & 722] B, C & D
Mr. S.M. Masud, Advocate for Petitioner.
Date of hearing: 6.2.2007.
Order
The petitioner is a plaintiff of the pre-emption suit filed against the respondent; alongwith the suit, he had applied for the grant of temporary injunction seeking restraint against the respondent from changing the nature of the suit property; the said application has been rejected by the learned trial Court vide order dated 21.6.2006 and the appeal of the petitioner has also failed on 22.12.2006.
Learned counsel for the petitioner contends that both the Courts below have held that the application under Order 39 Rules 1 and 2 CPC is not competent and that the petitioner should have filed an application under Section 151 CPC; but this is absolutely misconceived.
Heard. About the view of the two Courts below that in a suit for the pre-emption, a temporary injunction cannot be granted under Order 39 Rules 1 & 2 CPC and the petitioner should have moved an application under Section 151 CPC; suffice it to say that wrong mentioning of the correct provision of law, does not disentitle the litigant for the appropriate relief available to him, because it is the duty of the Court to apply the correct law and to grant the proper relief.
In the pre-emption suits, I am of the view that the injunctive order should not be lightly granted because the vendee/defendant in such cases is the absolute and exclusive owner of the property till the time the decree for the pre-emption is passed in favour of a pre-emptor. Without going into the question, whether the right of pre-emption is predatory or otherwise, but it is settled, that the decree for the pre-emption under the Act, 1991 is subject to a very important proof about the making of two Talabs about which, it cannot be prima-facie ascertained, whether the Talabs have been made or otherwise, especially this shall be true for Talb-e-Muwathibat. Thus, even if the pre-emptor has prima facie established his right of pre-emption on the record, still the owner of the property cannot be put under restraint to use his property, which may tantamount to the breach of his fundamental right as enshrined by Articles 23 of the Constitution of Islamic Republic of Pakistan, 1973. The injunction, therefore, should not be ordinarily granted regarding the suit property which is a bare land, and the claim of the plaintiff/pre-emptor is to simply restrain the vendee/defendant from the improvement of his property till the final decision of the case, which may take years for its final adjudication. Obviously, the development and the improvement of the land made by the vendee during the pendency of the case shall be at his own risk and cost and he shall not be entitled to any compensation for the construction/development etc., from the pre-emptor made after the institution of the suit.
However, where a suit for the pre-emption has been filed with regard to any property having a superstructure, which is a part of the sale and the vendee intends to demolish the superstructure in order to defeat the right of substitution of the pre-emptor, may be the Court, on the basis of the facts of that case, is inclined to grant the injunction. But, in the instant case, this is not the position, and the petitioner only wants to prevent the respondent/vendee from improving his property by raising the construction. When questioned in this behalf, Mr. S.M. Masud, learned counsel for the petitioner, states that in this manner, the access to the petitioner's land shall be so what hindered. This is not the case of the petitioner even in his application and he has also not been able to prove any right of easement from the suit land or any other legal obligation on part of the respondent not to raise the construction over the property which he has validly purchased.
For the foregoing reasons, I am not inclined to interfere in the impugned orders. The revision petition thus, has no merits and is hereby dismissed.
(W.I.B.) Petition dismissed.
PLJ 2007 Lahore 722
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD GULZAR and 2 others--Petitioners
versus
DEPUTY DISTRICT OFFICER, (REVENUE)/SPECIAL MAGISTRATE 1ST CLASS, MULTAN and 2 others--Respondents
W.P. No. 4738 of 2006, heard on 5.10.2006.
Price Control and Prevention of Profiteering and Hoarding Act, 1977—
----Ss. 3, 6 & 2--Constitution of Pakistan, 1973, Art. 199--Imposition of penalty--Special magistrate authority challenged--Whether definition of essential commodity cover the fruits--Essential commodity--Held: Fruit has not been declared as an essential commodity within the meanings of law--Power to impose penalty and recover the same being dependent upon passing of an order under Ss. 3 & 6 of the Act, 1977--Essential commodity and fruit not being such a commodity the respondents have no lawful authority to impose fine and recover the same from the petitioner as they have not contravened any such order for the simple reason that such an order does not exist.
[P. 724] A & B
Mr. Shahid Tasawar, Advocate for Petitioners.
Mr. Zafarullah Khan Khakwani, A.A.G. with Tanvir Iqbal, D.D.O (R) & Shahid Mehmood Khan, Inspector Ministry of industries and production for Respondents.
Date of hearing: 5.10.2006.
Judgment
The petitioners are stated to be in the business of retail sale of fruit at their shops. They feel aggrieved of the act of Respondent No. 1 in imposing and recovering fines from the three petitioners respectively vide (Annexures A, B & C). It was contended on behalf of the petitioners that fruit has not been declared as an essential commodity and included in the schedule to the Price Control and Prevention of Profiteering and Hoarding Act, 1977. The respondents were accordingly issued a notice calling upon them to explain as to under what lawful authority have they imposed and recovered the said fines. The said officers have appeared alongwith the learned A.A.G.
No. 7 in the schedule to the said Act, 1997 covers fruits. Learned counsel for the petitioners on the other hand contends that upon a plaint reading of the said item alongwith other items mentioned in the schedule it cannot at all be read to include fruits.
I have given some thought to the said respective contentions of the learned counsel and the learned law officer. Now Section 2(C) of the said Act of 1977 defines essential commodity to mean any of the commodities or classes of commodities mentioned in the Schedule. Section 3 empowers the Federal Government to pass an order inter alia for controlling price at which any essential commodity may be bought or sold in any area. Section 6 empowers the Controller General to fix specific maximum prices of essential commodities. Section 6(2) provides that no person shall sell or re-sell any essential commodity at a price higher than the maximum price so fixed. Section 7 prescribes the penalties for contravention of any order passed or issued under Section 3 or Section 6. Section 12 empowers the Federal Government to amend the schedule through a notification in the official gazette by adding or omitting from it any commodity or class of commodities.
Now Item No. 7 of the said schedule being relied upon by the respondents reads as follows:
"Aerated water, fruit juices and squashes"
To my mind upon a plain reading of the said item as also reading of the entire schedule, it cannot at all be said that fruit has been declared as an essential commodity within the meaning of said law. The term "fruit juices" is in between the Aerated Water and Squashes which is a class of goods besides when one goes through the schedule one finds specific mention of the articles which are declared as essential commodity. For example potato, onion, beef, mutton etc. However, one finds no mention of any fruit or fruits of all sorts as a class.
The power to impose penalty and recover the same being dependent upon passing of an order under Section 3 and Section 6 of said Act, 1977 vis-a-vis an essential commodity and fruit not being such a commodity the respondents have no lawful authority to impose fine and recover the same from the petitioners as they have not contravened any such order for the simple reason that such an order does not exist. The writ petition, therefore, is allowed. The impugned action of the respondents in imposing and recovering fines from the petitioners/fruit sellers is declared to be void and without lawful authority and is set aside. The respondents shall, upon applications filed by the petitioners immediately refund the amount of fine against receipt. No order as to costs.
(W.I.B.) Petition accepted.
PLJ 2007 Lahore 724
Present: Muhammad Akhtar Shabbir, J.
ABDUR REHMAN BHATTI and another--Petitioners
versus
MEMBER (COLONIES), BOARD OF REVENUE PUNJAB LAHORE and another--Respondents
W.P. No. 13538 of 1998, decided on 18.1.2006.
Word and Phrases--
----Tenant--Meaning of--"Tenant" means purchaser from Government who has been placed in possession of land by order of the Collector--Remaining tenant under the Govt. till he pays the full amount of purchase to the Government and after payment of full price of the land he becomes absolutely owner of the property comes out of ambit of colony. [P. 726] A
Colonization of Government lands Act, 1912 (V of 1912)—
----S. 17--Applied for exchange of proprietary land to Board of Revenue--Request was considered under policy and rules--Assailed--Exchanged after proprietary rights--Held: Collector was empowered to allow exchange in the same Colony land purchased at auction cannot be exchanged without express order of the Government which would be sought in exceptional cases--No application for exchange can be entertained once proprietary rights have been acquired in a grant.
[P. 726] B & C
Constitution of Pakistan, 1973—
----Art. 199--Colonization of Government Lands Act, (V of 1912) S. 17--Constitutional jurisdiction--Discretionary--It is Policy of Government ordinarily not allow exchange of proprietary land with State land ordinarily which discretion jurisdiction of Government cannot be interfered with by High Court in the exercise of its Constitutional jurisdiction. [P. 727] D
Mr. M. Naeem Sadiq, Advocate for Petitioners.
Mr. M. Akbar Tarar, Addl. A.G. for Responents.
Date of hearing: 18.1.2006.
Judgment
The writ petitioners owners/proprietors of agricultural land measuring 255 Kanals 10 Marlas situated in Muaza Rakhwan, Tehsil Karor Lal Easan. District Layyah had applied for exchange of their proprietary land with State land situated in Chak No. 11/UCC, Tehsil Ferozwala, District Sheikhupura to the Board of Revenue Punjab, Lahore. Their case was assessed but resultantly vide letter dated 11.4.1998 by the Board of Revenue the petitioners were informed that the request of exchange of land has been considered and filed under the existing policy and rules. The petitioners have voiced their grievance against the said order/letter and prayed for setting aside the same.
The learned counsel for the petitioners has contended that the petitioners have been treated discriminately and the respondents have allowed the exchange of land from one colony to another colony to some other influential persons.
On the other hand, the arguments of the learned counsel for the petitioners have been vehemently opposed by the learned law Officer contending that the case of the petitioners was not fit for exchange of their land with some other land out of the District.
I have heard the arguments of the learned counsel for the parties, perused the record and examined the law. Section 17 of the Colonization of Government Lands Act, 1912 empowered the Collector to allow the exchange of the land which reads as under:
Section 17 Exchange.--"Subject to any orders that he may receive from the (Executive District Officer (Revenue), the Collector may allow any tenant to exchange the whole or any part of his tenancy for other land in the colony, and the land so taken in exchange shall, in the absence of any special conditions to the contrary recorded in writing by the Collector, be deemed to be held on the same conditions and subject to the same obligations as the surrendered land was held".
The above referred proposition of law authorized the
Collector to allow any tenant to exchange his land. The tenant under the
Colonization of Government Lands Act would mean a purchaser from Government of land who has been placed in possession of the land by order of the Collector shall be deemed' to be atenant' of such land until the full amount of the purchased money without any interest due thereon has been paid and the other conditions set forth in the statement of conditions of sale issued by the
Collector have been fulfilled. It would mean that a person remains a tenant under the Government till he pays the full amount of purchase to the Government and after payment of full price of the land he becomes absolutely owner of the same and the property comes out of the ambit of the Colony/Revenue hierarchy.
Reference in this context can be made to the cases of Ilam Din versus Muhammad
Din (PLD 1964 SC 842), Ali Muhammad versus Mst. Rabia Bibi and three others
(PLD 1971 (B.J) 38) and Azmat Ali versus Member, Board of Revenue etc. (PLD 1978 Lah. 1148).
The petitioners are the proprietors of the land and not the tenants thus Section 17 of the Colonization of Government Lands Act is not attracted to their case on the following grounds; firstly they have ceased to be tenant of the land and secondly that the Collector is empowered to allow exchange in the same colony only but the petitioners have applied for exchange of their land from one colony to another colony and the Government enjoys only this power. The request of the petitioners had been declined by the Board of Revenue having authority of the Government. Paragraph No. 364 of the Colonies instruction provided in Colony Manual contemplates that the land purchased at auction or otherwise cannot be exchanged without the express order of the Government which should only be sought in exceptional cases. Similarly no application for exchange can be entertained once proprietary rights have been acquired in a grant. There is no denial to the factum that the petitioners have acquired the proprietary rights of their land situated in Tehsil Keror Lal Easan. It is the policy of the Government ordinarily not to allow exchange of the proprietary land with the State land ordinarily which discretion/jurisdiction of the Government cannot be interfered with by the High Court in exercise of its constitutional jurisdiction. The learned counsel for the petitioners, when confronted with the above legal as well as factual position of the case could not respond and failed to persuade the Court to interfere in exercise of its discretionary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
For the foregoing reasons, this writ petition being devoid of any merit is dismissed.
(W.I.B.) Petition dismissed.
PLJ 2007 Lahore 727
Present: Tariq Shamim, J.
ABID--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, JHANG and 16 others--Respondents
W.P. No. 1301 of 2007, decided on 14.2.2007.
Illegal Dispossession Act, 2005—
----S. 3--Constitution of Pakistan, 1973, Art. 199--Provision--Possession was taken forcibly--Effect--Miscarriage of Justice--Disregard of evidence--Complaint was dismissed--Assailed--Petitioner admitted that possession was never been recorded in any of the Khasra Girdawaries fact was accepted that Khasra Girdawari of such land had been recorded in accused's name--Civil suit was pending between the parties in which an injunctive order had been passed in favour of accused by Civil Court--Petitioner had not been able to substantiate his claim of being illegally dispossessed by respondents from such property--Petitioner had failed to bring on record any evidence to the effect that respondents had the antecedents of property grabbers or that they belonged to a "Qabza Group" which is a sine qua non for applicability of the provisions of Illegal Dispossession Act--Additional Sessions Judge was justified in dismissing the complaint filed by the petitioner as the provisions of S. 3 are prima facie not attracted in the case--Petitioner had not been able to point out any illegality, infirmity or jurisdictional error in the impugned order--Petition dismissed.
[Pp. 729 & 730] A, B, C & D
Mr. Munir Ahmad Khan Zia, Advocate for Petitioner.
Date of hearing: 14.2.2007.
Order
Through this petition, the petitioner has assailed the orders of the learned Addl. Sessions Judge Jhang dated 5.6.2006 whereby the complaint filed by him under Section 3 of the Illegal Dispossession Act, 2005 was dismissed.
The brief facts of the case are that the petitioner filed a complaint under the provisions of Illegal Dispossession Act on the allegations that Respondents Nos. 2 to 17 on 28.9.2005 had forcibly taken over possession of the land measuring 67 kanals 7 Marlas belonging to the petitioner. The learned Addl. Sessions Judge sought a report from the SHO P.S. Massan District Jhang in which the stand taken by the petitioner was affirmed and consequently Respondents Nos. 2 to 17 were summoned by the Court to stand trial. After framing of the charge, to which the said respondents pleaded not guilty, the learned trial Court proceeded to record the evidence of the parties and at the conclusion of the trial dismissed the complaint.
The learned counsel for the petitioner contended that the judgment of the learned Court was against the law and facts; that the learned trial Court failed to properly appreciate the evidence produced by the petitioner; that the impugned judgment was not a speaking one and as the same had been passed in complete disregard of the evidence it had resulted in miscarriage of justice and that the learned Court had committed illegality by ignoring the report submitted by the SHO and the Halqa Patwari and therefore, the impugned order deserves to be set-aside.
I have heard the learned counsel and gone through the documents placed on the file.
It would be appropriate to reproduce para 7 of the impugned judgment which reads as under:--
"The above said report carries no weight in the eye of law unless the person who has made this report appears before the Court to corroborate the same. The complainant has closed his evidence without production of SHO before this Court as witness, consequently the report wherein neither any date of occurrence has been specified nor the facts of the occurrence as alleged by complainant of this document appears before the Court and face the test of cross-examination but this witness has also not been adduced by the complainant in the prosecution evidence and under the circumstances the presumption cannot be drawn in favour of complainant. The complainant of the case has admitted during his cross-examination that his possession had never been recorded in any of the Khasra Girdawaries. He has further admitted that Girdawari of the land for the year 2005 has been recorded in the name of accused and that his alleged sowing of Maiz crop has never been recorded. He has also admitted that according to Khasra Girdawari, the accused are in possession of the land. He has also not denied the fact that suit filed by accused for permanent injunction regarding the same suit land is pending before learned Civil Judge, Jhang. The above said statement of complainant wherein he has admitted manifestation of accused in the Khasra Girdawari and issuance of temporary injunction in favour of accused by a Civil Court, does not lend any support to the case of prosecution. The resume of my above discussion is that the complainant has failed to prove beyond shadow of doubt that accused 16 in number illegally occupied the land mentioned in the complaint on 28.9.2005. The offence under Illegal Dispossession Act, 2005 alongwith delivery of possession is punishable with imprisonment which may extend to ten years and fine alongwith compensation in accordance with the revisions of Section 544 of Cr.P.C. Hence the evidence required to prove this case should be of the same standard as envisioned by the Higher Courts in other heinous offences, so all accused are hereby acquitted in this case by extending them benefit of doubt. Their sureties are relieved of their obligation in this case."
From the above, it is evident that the petitioner in his cross-examination admitted that his possession had never been recorded in any of the Khasra Girdawaries and has further accepted the fact that the Khasra Girdawari of the land in question for the year 2005 had been recorded in the name of Accused/Respondents Nos. 2 to 17. It has further been accepted by the petitioner that according to the Khasra Girdawari Respondent Nos. 2 to 17 are in possession of the land. Further, the record reveals that a civil suit is pending between the parties in which an injunctive order has been passed in favour of the accused by the learned Civil Court. In the nutshell the petitioner has not been able to substantiate his claim of being illegally dispossessed by the said respondents from the property in question. Further, the petitioner has failed to bring on the record any evidence to the effect that the respondents had the antecedents of property grabbers or that they belonged to a "Qabza Group" which is a sine qua non for the applicability of the provisions of the Illegal Dispossession Act, 2005. Reference is made to the case of Zahoor Ahmad and 5 others vs. The State and 3 others (W.P. No. 11952 of 2006 decided on 19.1.2007) wherein it has been observed by a Full Bench of this Court that the Illegal Dispossession Act, 2005 applies to the dispossession from immovable property only by property grabbers/Qabza Group/land Mafia and a complaint under the Illegal Dispossession Act can be entertained by a Court of Sessions only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property. The complaint under the Illegal Dispossession Act would not be entertained when the matter of possession of the relevant property is being regulated by Civil or Revenue Courts. The facts and circumstances of the case reveal that the dispute between the parties is a private dispute regarding possession of the property in question and the same is also subject-matter a civil suit which is still pending adjudication before a Civil Court in which an injunctive order has also been passed. It has been observed in the judgment referred to above that in such like cases the provisions of the Illegal Dispossession Act shall not be applicable. Thus, the learned Addl. Sessions Judge was justified in dismissing the complaint filed by the petitioner as the provisions of Section 3 of the Illegal Dispossession Act are prima facie not attracted in the case. The learned counsel for the petitioner has not been able to point out any illegality, infirmity or jurisdictional error in the impugned order calling for interference by this Court in its constitutional jurisdiction.
For what has been stated above, this petition has no force which stands dismissed in limine.
(N.F.) Petition dismissed.
PLJ 2007 Lahore 730
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD HAYAT--Petitioner
versus
SIKANDAR ABBAS--Respondent
C.R. No. 515 of 2002, heard on 22.12.2006.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 5--Right of pre-emption--No adverse inference is to be drawn in case of denial by any of the party to accept offer of special oath--A.D.J acted with material irregularity in exercise of jurisdiction while holding the transaction to be a sale. [P. 734] A
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 5--Sakni land--Relevancy--Dispensation--Right of pre-emption--Co-sharer in khata--Land was "Sakni" was of no relevance u/S. 5 of Punjab Pre-emption Act 1991--Right of Pre-emption arises in a case of sale of immovable property. [P. 734] B
1999 SCMR 378, followed.
Mr. Dost Muhammad Kahot, Advocate for Petitioner.
Sh. Naveed Shehryar, Advocate for Respondent.
Dates of hearing: 12.12.2006 & 22.12.2006.
Judgment
Vide registered exchange deed dated 4.12.1995 the petitioner acquired the suit land measuring 20 kanals, mentioned in para-1 of the plaint. On 1.4.1996, the respondent filed a suit for possession of the suit land by pre-emption. According to him the suit land had in fact been sold by Abdul Qadeer to the petitioner for a consideration of Rs. 2,25,000/-. He claimed to be shaf-e-sharik, khaleet and Jar. Performance of talabs was also pleaded. The petitioner filed a written statement stating that the transaction is a bona fide exchange and he had transferred his land measuring 24 kanals to Abdul Qadeer in exchange for the suit land. He further stated that he has earlier acquired land in the same khata from said Abdul Qadeer. Further allegations in the plaint were denied. Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit on 20.9.2000. First appeal filed by the respondent was allowed by learned Addl. District Judge, Jhang on 1.2.2002 who decreed the suit subject to payment of Rs. 2,25,000/-.
Learned counsel for the petitioner contends that the evidence on record has been misread by the learned ADJ. According to him there is no evidence on record that the transaction was a sale for a cash price. Learned counsel for the respondent, on the other hand, supports the impugned judgment and decree by alleging that in the course of his evidence the petitioner himself described the transaction as a sale and further that the offer of special oath was refused by him hence adverse inference was to be drawn. Learned counsel for the petitioner rejoins to cite the case of "Bashir Ahmad vs. Muhammad Luqman" (1999 SCMR 378) that refusal to take oath does not lead to any adverse inference.
I have gone through the copies of the records appended with this file with the assistance of the learned counsel for the parties. Muhammad Hayat, petitioner, appeared as DW-1 to state that he gave 24 kanals and some marlas of land in exchange for 20 kanals of suit land. The possession was also exchanged. He was cross-examined at length. It was not even suggested to him that he had purchased the land for Rs. 2,25,000/-. It was not even suggested to him that the possessions of the respective lands were not exchanged. The only suggestion given and denied by the witness is as follows:--
There is no suggestion that the land given is not proportionate to the suit land in area or in value. Ex. D. 1 is the said exchange mutation deed, containing the particulars of the exchange, attested in favour of Muhammad Hayat, petitioner on the basis of exchange Ex. D. 3 attested in favour of Abdul Qadeer with reference to Ex. D.1 and Ex. D.4. Sikandar Abbas, respondent appeared as PW-1. He has simply stated that the exchange is "Jhoota". He also stated that he is ready to take oath that, "it is not an exchange". According to him the suit land is situated at the edge of the road whereas the land given in exchange is two miles away from the same. He was confronted with his plaint where he had not taken any such plea. Statement of Farhat Abbas, PW-2 is also silent in this matter. In para-3 of the plaint, it has been stated that the respondent came to know about the sale on 14.2.1996 when he alongwith Ghulam Abbas and Farhat Abbas was present at the suit land. The petitioner came there and declared his intention to get possession and told that he has purchased the land from Abdul Qadeer for Rs. 2,25,000/- on 4.12.1995 but in order to save himself from exercise of right of pre-emption he has disguised the transaction as an exchange. This is also what has been stated by respondent as P.W. 1 and Farhat Abbas P.W. 2. The petitioner, of course, had denied the said fact. It is highly improbable that after going through the said exercise of disguising the transaction to save himself from a pre-emption suit, the petitioner, out of all the persons in the world, would approach the only person who had filed the pre-emption suit against him and to have disclosed the said secret. Be that as it may, there is nothing on record, even remotely, to suggest that the transaction was not one of exchange but of sale for consideration. Learned trial Court, therefore, had properly read the evidence while holding the transaction to be an exchange.
Coming to the judgment of the learned ADJ; he has proceeded to deal with the matter as if the parties to the said exchange had challenged the very existence and validity of the transfer itself. He has proceeded to object as why Abdul Qadeer was not produced. He has also objected to the non-production of marginal witnesses to the exchange. He has also observed that whereas Abdul Qadeer purchased the land from brother of the respondent five years prior to the said exchange for Rs. 5,10,000/- the value is written in the exchange document as Rs. 2,25,000/-. According to him, this is proof of the incredibility of the transaction of exchange. I wonder as to on what principle the mentioning of a lower price can affect the credibility of the transfer itself when it was not questioned by any of the parties to the exchange. Learned ADJ has also observed that the respondent as PW-1 offered to take oath on Holy Quran and also that he will accept oath of the opposite party but the petitioner refused. Here again learned ADJ has not cared to read the relevant portion of the statement which is as follows:--
The petitioner appeared as DW-1. He gave the following reply to the relevant questions:--
Learned counsel for the respondent refers to the case, "Muhammad Aslam vs. Muhammad Hayat", (1999 SCMR 1346) to urge that the said refusal on part of the petitioner to accept said offer of the respondent is by itself sufficient to establish that the transaction was a sale.
I have gone through the said judgment. The relevant facts are mentioned in para-7 at page 1348 of the said report. During the pendency of the C.R. before this Court, an application was filed by the pre-emptor for settlement of the dispute on special oath to be taken by the vendee. This was refused. The application was not pressed and was dismissed. This Court observed that the said fact lead to a genuine inference that the parties were themselves not sure with regard to the correct nature of the transaction and that they were not truthful in their claim that it was a transaction or an exchange. It further appears that before the learned ADJ, in the course of hearing of first appeal as well said offer was made and was refused. Learned ADJ had made the following observations in his judgment.
"The defendant not only turned down this offer but they also frankly conceded that it was a sale."
The said observation was not challenged before this Court. Apart from this, the categorical finding recorded by this Court in the said case of Muhammad Aslam, was that the plot stated to have been given in exchange for the suit land in the said case did not exist pursuant to the case set up by the pre-emptor that the vendees did not own any plot in the said residential area and the same was never handed over to the vendor. Said facts are clearly distinguishable. On the other hand, the legal position laid down in the said case of Bashir Ahmad by the Hon'ble Supreme Court of Pakistan is that no adverse inference is to be drawn in case of denial by any of the party to accept offer of special oath. I, therefore, do hold that the learned ADJ has acted with material irregularities in exercise of his jurisdiction while holding the transaction to be a sale. His finding on the relevant Issue No. 1 is accordingly reversed and that of learned trial Court is restored.
So far as the matter of superior right of pre-emption is concerned, I do find that both the parties are co-sharer in the khata. There is no denial on the record that the petitioner had not purchased 6-1/2 marlas of land in the same khata from Abdul Qadeer. Mutation Ex. D. 5 is sufficient to establish the said fact in a suit of instant nature. Both the parties, therefore, have equal right of pre-emption. The reasoning given by learned ADJ that the said land is "Sakni" is of no relevance under the present dispensation i.e. Punjab Pre-emption Act, 1991, as under Section 5 thereof, the right of pre-emption arises in a case of sale of immovable property. Learned ADJ had in his mind the provisions of old Act, 1913 as interpreted by the superior judiciary. So far as the matter of talabs is concerned, I have already made my observations above as to the apparent falsity of the plea taken in the plaint and sought to be proved in the course of evidence.
C.R. accordingly is allowed. The impugned judgment and decree dated 1.2.2002 of learned ADJ., Jhang, is set aside while the one passed by learned trial Court dismissing the suit of the respondent, is restored.
No order as to cots.
(M.S.) Revision allowed.
PLJ 2007 Lahore 735
Present: Ijaz Ahmad Chaudhry, J.
KHALID MEHMOOD--Petitioner
versus
TALHA--Respondents
W.P. No. 1625 of 2007, heard on 26.4.2007.
Constitution of Pakistan, 1973—
----Art. 199--Entitlement to get maintenance allowance--Respondents were declared entitled to get maintenance allowance with annual enhancement at specified rate with annual automatic enhancement--Validity--Concurrent findings of facts--Quantum of maintenance awarded to minors--Respondents were studying in school--Expenses will increase day by day with promotion in next class and being grown up--Being a father the petitioner was responsible to maintain them in all needs wherever they live till the age of majority--Rate of inflation in Court and increase of demands of the minors with the passage of time as they will go to higher classes--Held: Trial Court has rightly ordered for annual increase in maintenance allowance--Trial Court has committed no illegality while allowing fixed annual increase in maintenance allowance--Petition was dismissed.
[P. 736 & 737] A
2005 CLC 1913 and PLD 1969 SC 187
Rana Nasrullah Khan, Advocate for Petitioner.
Mr. Muhammad Iqbal Mohal, Advocate for Respondent Nos. 1 and 2.
Date of hearing: 26.4.2007.
Judgment
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioner/defendant has challenged the judgment and decree dated 17.5.2006 passed by the learned Judge Family Court, Sialkot through which Nayyar Sultana was held entitled to get maintenance allowance at the rate of Rs. 2,000/- for Iddat period (3 months) whereas Respondents No. 1 and 2 were declared entitled to get maintenance allowance at the rate of Rs. 2,000/- per month per head with annual automatic enhancement at the rate of 10% from June 2001 till their age of majority and the judgment and decree dated 20.11.2006 passed by the learned Addl. District Judge, Sialkot whereby the appeal filed by the petitioner has been dismissed. The petitioner has filed the instant writ petition which came up for hearing before this Court and the petitioner only challenged the increase of 10% and to this extent this petition was admitted for regular hearing and notices were issued to the respondents/decree-holders.
Learned counsel for the petitioner contends that 10% increase in the maintenance allowance is not justified as the petitioner is employed in the Post Office and drawing salary of Rs. 9450/- per month, who cannot afford payment of such fixed increase as his pay is not being enhanced with such ratio. Also contends that the respondents can file second suit for the increase of maintenance allowance, if need be so and the Court at that time keeping in view the financial position of the petitioner can enhance the maintenance, but fixed increase has caused great inconvenience to the petitioner being a low paid employee.
Learned counsel appearing on behalf of Respondents No. 1 and 2 opposes this petition on the ground that respondent Talha Mahmood is student of 10th class while Usama Mahmood the other son of the petitioner is student of 8th class, who are studying in the school and day by day their expenses are likely to be increased, which is the responsibility of the petitioner to do the needful. It is also contended that instead of moving again and again to the Court, which is not easy task for increase in the maintenance, the learned trial Court has settled the dispute between the parties for ever and no illegality has been committed. Relies upon Ijaz Ahmad through Attorney vs. Judge, Family Court and 5 others (2005 CLC 1913 (Karachi) and Adnan Afzal vs. Capt. Sher Afzal (PLD 1969 SC 187) in support of his contentions.
I have heard the learned counsel for the parties and also gone through the impugned judgments of the Courts below as well as the evidence led by the parties. The concurrent findings of fact have been arrived at by both the Courts below after well appreciation of the evidence on the record, which cannot be interfered with by this Court in writ jurisdiction. Even otherwise quantum of maintenance awarded to the minor respondents/decree-holders has not been challenged by the petitioner. So far as the annual increase of maintenance at the rate of 10% is concerned, it is admitted that both the respondents are students of 10th class and 8th class respectively and are studying in school. Their expenses will increase day by day with promotion in the next class and being grown up. Being a father the petitioner is responsible to maintain them in all needs, wherever they live till the age of their majority. Keeping in mind the rate of inflation in the country and increase of demands of the minors with the passage of time as they will go to the higher classes, the learned trial Court has rightly ordered for annual 10% increase in the maintenance allowance. It will safe the minor sons of the petitioner to knock the door of the Court again and again praying for the grant of additional allowance, which is not an easy task and thereby they will waste their time and also money. As such, I am of the view that the learned trial Court has committed no illegality while allowing fixed annual increase in the maintenance allowance, through the impugned judgment and decree, which is maintained and this writ petition being devoid of any merit is dismissed.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 737
Present: Sh. Azmat Saeed, J.
MUHAMMAD IFTIKHAR and another--Petitioners
versus
PUNJAB PHARMACY COUNCIL, LAHORE through its Ex-Officio Chairman and 3 others--Respondents
W.P. No. 2010 of 2007, decided on 12.4.2007.
Pharmacy Act, 1967 (XI of 1967)—
----Ss. 25(2), 29 & 30--Constitution of Pakistan, 1973--Art. 199--Requisite qualification to be registered as Apprentice Pharmacists--Entitlement to participate in examination--Petitioner who possess requisite qualifications to be registered as Apprentice Pharmacy Act and possess qualifications would be entitled to participate in examination provided they did not suffer from any disqualification in such behalf--Held: None of the petitioners would be denied the right to sit in examination on the ground that they were not registered as Apprentice Pharmacists as such registration had admittedly been discontinued by respondent--Petition was disposed of. [P. 738] A
Dr. Ehsan-ul-Haque Khan, Advocate for Petitioners.
Malik Zafar Iqbal Awan, Additional Advocate-General Punjab for Respondents.
Date of hearing: 12.4.2007.
Order
The grievance of the petitioners is that they possess the requisite qualifications to be registered as Apprentice Pharmacists in terms of the Pharmacy Act (XI of 1967). However, they were not registered as such as admittedly the process of registration had been discontinued by the respondents for over a decade. It is further contended that the petitioners also possess the requisite qualification as to age and educational qualifications as mentioned in Section 30 of the Pharmacy Act, and, hence, are entitled to participate in the forthcoming examination being conducted by the respondents in terms of Section 29 of the Pharmacy Act for registration as Pharmacists.
Similar matter came up before this Court in Writ Petition No. 1806 of 2007 which was disposed of with appropriate directions issued on the undertaking of the respondents.
Consequently, this Constitutional Petition is also are disposed of with the direction to the respondents to hold an Examination for the registration as Pharmacists by or before 1st of September, 2007. Such of the petitioner who possess the requisite qualifications to be registered as Apprentice Pharmacists as enumerated in Section 25(2) of the Pharmacy Act and further possess other qualifications as are mentioned, inter alia, in Section 30 of the Pharmacy Act shall be entitled to participate in the said Examination provided they do not suffer from any disqualification in this behalf as mentioned in Pharmacy Act or Rules and Regulations framed thereunder. None of the petitioners shall be denied the right to sit in the Examination on the ground that they are not registered as Apprentice Pharmacists as such registration has admittedly been discontinued by the respondents.
Disposed of accordingly.
(R.A.) Petition disposed of.
PLJ 2007 Lahore 738 (FB)
Present: Justice Syed Sakhi Hussain Bukhari, Chairman, Justice Syed Hamid Ali Shah and Justice Muhammad Bilal Khan, Members.
MUJAHID HUSSAIN SHEIKH--Appellant
versus
REGISTRAR--Respondent
S.A. No. 78 of 2001, heard on 30.3.2007.
Punjab Civil Servants (Efficiency and Discipline) Rules, 1999—
----R. 4(a)(ii)--Regular inquiry was conducted--Inquiry officer opted for imposition of minor penalty--Authority did not agree with I.O. and dismissed the civil servant from service--Assailed--Age of superannuation--Punishment was converted--Appellants service record throughout was unblemished and earlier received good reports--No adverse entry in his previous ACRs--High Court had seen record carefully and held that imposition of major penalty of dismissal from service was not called for as same was excessive/harsh--Appellant submitted that he had reached the age of super annuation--Held: Request was considered that appellant had already retired from service, as also for the reason that Inquiry Officer also opted for imposition of a minor penalty--Appeal was partly accepted. [P. 742] A, B, C & D
Mian Bilal Bashir, Advocate for Appellant.
Mr. Nayyar Iqbal Ghouri, Advocate for Respondent.
Date of hearing: 30.3.2007.
Judgment
Syed Sakhi Hussain Bukhari, J.--Mujahid Hussain Sheikh has filed this appeal against the order dated 27.4.2001, whereby, he was dismissed from service.
Relevant facts for the disposal of this appeal are that appellant was serving as District & Sessions Judge and on 24.4.2000 charge sheet was issued against him. He filed reply, whereupon, regular inquiry was conducted against him. After completion of inquiry, the Inquiry Officer opted for imposition of minor penalty, therefore, proposed to impose minor penalty of withholding of annual increments for three years and withholding of promotion for one year whenever it became due within the meaning of Rule 4(a)(ii) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999. Thereafter, show-cause notice was issued to appellant to show-cause why a minor penalty indicated above, should not be imposed upon him and on 19.8.2000, learned Inquiry Officer ordered that annual increment for three years and promotion for one year of the appellant should be withheld. However, Authority did not agree with the report/opinion of Inquiry Officer and issued notice for enhancement of aforesaid punishment to one of the major penalties under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 and directed him to submit reply within ten days from the date of receipt of notice. The appellant filed reply. The final show-cause notice was issued and after granting him opportunity of personal hearing, the Authority dismissed him from service vide order dated 27.4.2001. Hence this appeal.
We have heard the arguments of learned counsel for the parties and perused the record.
As mentioned above, the appellant was serving as District and Sessions Judge. He was posted at Hafizabad when on some complaints, following charge sheet was served upon appellant on 24.4.2000:--
"(a) (i) That while working as District and Sessions Judge, Hafizabad, 39 Advocates of District Bar Association, Hafizabad, made a complaint annexe `A' containing allegations that you acquitted the accused in murder cases after receiving illegal gratification and you convicted innocent persons after receiving bribe from the complainants.
(ii) That the
Traders Board, Hafizabad, addressed a complaint dated 17.12.1999 to the Hon'ble
Chief Justice signed by Sh. Naseer Ahmad, Chairman and Mr. Amjad Ali Qadri, General Secretary, Annexe B' demanding inquiry into the complaint AnnexeA'.
A news item about the complaint was published in the Daily "ASAS", Lahore dated 15.12.99 Annexe C', Daily "Jang", Lahore dated 15.12.1999 AnnexeD', Daily "Awaz", Lahore dated 15.12.1999 Annexe
E', Daily "Sahafat", Lhr dated 14.12.1999 AnnexeF' and Daily
"Khabrain", Lahore dated 18.12.1999 Annexe `G'.
(b) That a complaint Annexe `H' from Mr. Tahir Jamil Kang, Advocate and eight other Advocates of District Bar Association, Hafizabad, was made against you containing the allegations that you had leased a Canteen in the compound of Sessions Court, Hafizabad, and allowed it to function during the month of Ramazan violating the provisions of Ihtiram-e-Ramazan Ordinance, 1981, inasmuch as you yourself did not observe fast.
(c) That a complaint Annexe `J' was made against you signed by a delegation consisting of Ch. Qamar Javed and twelve other Advocates of District Bar Association, Hafizabad, branding you as a corrupt Judicial Officer, who has jeopardized integrity of lawyers and made a mockery of Court of justice in the eyes of public and alleging that you received illegal gratification in the following cases:--
(i) Case FIR No. 337/98 dated 8.11.98 registered at Police Station, Jalalpur Bhattian, under Sections 302, 324, 148/149 PPC. It was alleged that you granted pre-arrest bail to the accused who had remained absconders for 11 months and armed with Kalashnikovs and fired effective shots on the body of the deceased and the injured PWs.
(ii) Case FIR No. 451 dated 14.9.1997 under Section 302 PPC registered at Police Station, City Hafizabad. It was alleged that you acquitted the accused after receiving huge bribe.
(iii) Pre-arrest bail titled "Riasat Ali vs. State" under allopathic System 1962. It was alleged that despite the fact that the offence being bailable, you rejected the bail application on 10.11.1999 as the accused did not pay any bribe to you.
(iv) Case FIR No. 302/99 titled "State vs. Ijaz" under Section 302 PPC registered at Police Station, City Hafizabad. It was alleged that despite the pardon tendered by the parents to the accused Ijaz, you sentenced the accused to 14 years imprisonment without any evidence as they did not fulfil your demand of illegal gratification.
(v) Case FIR No. 250/96 under Section 302 PPC registered at Police Station, Kassoki District Hafizabad, titled "State vs. Amir". It was alleged that the accused were acquitted after receiving huge amount as bribe".
After receiving his reply, regular inquiry was conducted. However, learned Inquiry Officer opted for imposition of minor penalty. Paras Nos. 33 and 34 of the Inquiry Report read as under:--
"Question which further arises is whether the accused judge should be given major or minor penalty. Since the charges which stand proved against him are violation of rules and highly irregular exercise of discretion without there being any concrete proof of getting precuniary advantage with his service record which I have carefully scrutinized and do not find any adverse entry in his ACR dossier, I will opt for imposition of minor penalty.
In the exercise of powers conferred on me as an Enquiry Officer under Rule 7(a) I hold the charges referred to above to have been proved and I propose to impose a minor penalty of with-holding of annual increments for three years and also withholding of promotion for one year when-ever it becomes due, within the meaning of Rule 4(a)(ii) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999. An opportunity should be afforded to the accused judge of showing cause as to why action proposed by me be not taken. A show-cause notice shall be issued to him to appear on 19.8.2000 at 10 a.m. to show-cause why minor penalty indicated above, should not be imposed against him."
Thereafter, show-cause notice was issued to him as to why action proposed by Inquiry Officer be not taken against him and after receiving his reply, learned Inquiry Officer imposed aforesaid penalty. However, Authority did not agree with the opinion of Inquiry Officer and imposed major penalty and dismissed the appellant from service. We have examine the record and find that the appellant was recruited as Additional District and Sessions Judge in the year, 1988 and later on he was promoted as District & Sessions Judge. The complaint was filed against him when he was serving as District and Sessions Judge, Hafizabad in the year, 2000. We have carefully seen ACR dossier of the appellant. His service record throughout was unblemished and earlier he received good reports. There was no adverse entry in his previous ACRs. Learned counsel for the appellant submits that he reached the age of superannuation on 7.8.2004. So, it is clear that if appeal is allowed, he would not be reinstated into service. As stated above, learned Inquiry Officer too opted minor penalty keeping in view facts of the case. We have seen the record carefully and we find that imposition of major penalty i.e. dismissal from service is not called for as the same is excessive/harsh. Learned counsel for the appellant has prayed for converting the punishment of dismissal from service to that of compulsory retirement. In four opinion, in the circumstances of the case, his request is reasonable considering the fact that appellant has already retired from service, as also for the reason that learned Inquiry Officer also opted for imposition of a minor penalty. Reliance can be placed upon the case of Fida Muhammad Khan vs. Water and Power Development Authority through Chairman, WAPDA Lahore and another (1996 PLC (CS) 1103). This judgment was challenged before Hon'ble Supreme Court of Pakistan but appeal was dismissed (Water and Power Development Authority through Chairman, WAPDA Lahore and another vs. Fida Muhammad Khan (1996 PLC (C.S.) 7000). So, we partly accept this appeal, order of dismissal is modified to that of compulsory retirement and, in our opinion, this would meet the ends of justice.
No order as to costs.
(N.F.) Appeal partly accepted.
PLJ 2007 Lahore 743
Present: Muhammad Muzammal Khan, J.
AMIR ABDULLAH KHAN--Petitioner
versus
ADDITIONAL SESSIONS JUDGE MIANWALI and another--Respondents
W.P. No. 7527 of 2006, decided on 31.10.2006.
Illegal Dispossession Act, 2005--
----S. 3/4--Criminal Procedure Code, (V of 1898), Ss. 9(4) & 265-K--Constitution of Pakistan, 1973, Art. 199--Application for acquittal was declined--Assailed--Applicability--Jurisdiction of Additional Sessions Judge--Held: Definition of Courts of Sessions Judge given in Section 9(4) of Criminal Procedure Code--No ambiguity that an Additional Sessions Judge is a Sessions Judge within meaning of Illegal Dispossession Act, 2005. [P. 744] A
Mr. Muhammad Zafar Chaudhry, Advocate for Petitioner.
Syed Iqbal Hussain Shah Gillani, Advocate for Respondents.
Date of hearing: 31.10.2006.
Order
Instant constitutional petition assailed judgment/order dated 6.7.2006 passed by the learned Additional Sessions Judge, Mianwali, to be declared illegal, void and of no legal consequence, whereby petitioner's application under Section 265-K Cr.P.C. was dismissed.
Succinctly, relevant facts are that Respondent No. 2 filed a complaint under Section 3/4 of the Illegal Dispossession Act, 2005 against the petitioner and 14 others, with the allegations that they on 16.11.2005 at about 10.00 a.m. committed criminal trespass into his lands while riding on a tractor, armed with lethal weapons and forcibly dispossessed his servants. Learned Additional Sessions Judge, cognizant of the complaint filed by Respondent No. 2, summoned the accused before him and they moved an application under Section 265-K Cr.P.C. for their acquittal but the same was declined, as noted above. Petitioner thereafter filed instant constitutional petition and Respondent No. 2 in response to notice by this Court appeared and was represented through his counsel.
I have heard the learned counsel for the parties and have examined the record. Besides the lawful reasons weighed with the learned Additional Sessions Judge in refusing petitioner's application under Section 265-K Cr.P.C., none of the three submissions of the learned counsel for the petitioner persuaded me to upset/set aside the well reasoned/balanced order dated 6.7.2006. The first submission of the learned counsel for the petitioner that learned Additional Sessions Judge could not be termed as Sessions Judge holding the Sessions Division of Mianwali, is belied by definition of Court of Sessions Judge given in Section 9(4) of the Criminal Procedure Code. There is no ambiguity that an Additional Sessions Judge is a Sessions Judge within the meaning of Illegal Dispossession Act, 2005. As regards second submission of the learned counsel for the petitioner that on suit of the petitioner, Civil Court has already restrained the complainant from entering into land in his possession, thus there is no probability of his conviction on the complaint in hand, the same has no legal value because neither the complainant (Respondent No. 2) nor the WAPDA have been impleaded to the suit, thus any injunctive order passed at the back of the owner/lesser, would not bind it or would adversely effect the rights of the complainant. The third submission regarding non-commission of offence in terms of Section 3 of the Illegal Dispossession Act, 2005 by the petitioner is premature, as no such finding can be given without holding a trial or recording of evidence. Learned Additional Sessions Judge has rightly referred to reports requisitioned by him from the SHO concerned, according to which dispossessed of the complainant at the hands of the petitioner and his companions did take place.
Respondent No. 2 was leased out the land in question by WAPDA through lease deed dated 20.10.2005, where-under possession was delivered to him. Tentatively, petitioner has no lawful right to repossess the land or dispossess the complainant under the garb of injunctive order dated 13.5.2006. Scan of record and impugned order revealed that controversy was correctly put to rest, without committing any error of law/facts.
For the reasons noted above, no case for interference in constitutional jurisdiction of this Court was made out. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs.
(W.I.B.) Petition dismissed.
PLJ 2007 Lahore 745
[Multan Bench Multan]
Present: Asif Saeed Khan Khosa, J.
MUHAMMAD--Petitioner
versus
SUPERINTENDENT, CENTRAL JAIL, BAHAWALPUR
and 2 others--Respondents
W.P. No. 6870 of 2006, decided on 28.2.2007.
Estoppel--
----Remissions of sentence--Benefit of--Re-claim--Violation of--Contravention or infringement of law--Jail authorities--History ticket with such remission--No vested right had accrued to accused in that regard--No estoppel against law and accused could not reclaim a benefit by him earlier on in contravention or infringement of law.
[P. 746] A
Constitution of Pakistan, 1973--
----Arts. 189 & 199--Two views--Contradictory and destructive of each other--Provisions of--Binding on other Courts--Binding mandate of Constitution must have a sway over any question of propriety coming in way. [P. 748] B
Sardar Tariq Sher Khan, Advocate for Petitioner.
Malik Ramzan Khalid, Additional Advocate-General, Punjab for Respondents with Mr. Ali Akbar, Assistant Superintendent, New Central Jail, Multan with record.
Date of hearing: 28.2.2007.
Judgment
The petitioner is a convict undergoing his sentence of imprisonment in a jail. When the petitioner was still an under-trial prisoner the jail authorities had accredited his `history ticket' with the benefit of certain remissions which were legally admissible only to convicts undergoing their sentences but after his conviction and after a declaration of the correct legal position regarding such remissions by the Hon'ble Supreme Court of Pakistan the petitioner's history ticket was certified by the jail authorities and the benefit of remissions extended to the petitioner during the period when he was an under-trial prisoner was withdrawn. Through this writ petition the petitioner has sought restoration of the said benefit to him maintaining that after extension of such benefit to him earlier on the jail authorities could not have subsequently withdrawn the same. The learned counsel for the petitioner has placed a whole hearted reliance in this regard upon a judgment rendered by a learned Full Bench of this Court in the case of Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others [PLD 2006 Lahore 561].
The prayer made by the petitioner through this writ petition cannot be granted as the law on the subject stands settled by the Hon'ble Supreme Court of Pakistan in the case of Haji Abdul Ali v. Haji Bismillah and 3 others [PLD 2005 SC 163]. In the said case it had authoritatively been declared by the Hon'ble Supreme Court that the benefit of remission of sentence is admissible only to a convict who has already been sentenced and not to an under-trial prisoner who is yet to be convicted and sentenced. In that case too, as in the present case, the benefit of remissions had been accredited to an under-trial prisoner's history ticket maintained in the jail but after recording of his conviction and sentence the said benefit had been withdrawn through a judgment passed by the Hon'ble High Court of Balochistan and the Hon'ble Supreme Court had upheld that part of the judgment passed by the Hon'ble High Court of Balochistan. In the case in hand if the jail authorities had initially accredited the petitioner's history ticket with any such remission erroneously and in violation of the law then no vested right had accrued to the petitioner in that regard. It goes without saying that there is no estoppel against the law and the petitioner cannot reclaim a benefit received by him earlier on in contravention or infringement of the law.
It may be observed with profound respect that the above mentioned judgment rendered by a learned Full Bench of this Court in the case of Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others (PLD 2006 Lahore 561] may not ensure to the benefit of the petitioner for the following reasons:
(a) In the case of Inayat Bibi v. Amjad Hussain and others [PLD 2006 Lahore 587] heard on the same day the same learned Full Bench had taken an absolutely opposite view of the same matter and had refused to restore the benefit of remissions withdrawn from an under-trial prisoner after his conviction.
(b) In the judgment rendered by the learned Full Bench of this Court in the case of Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others [PLD 2006 Lahore 561] the learned Full Bench had deemed it appropriate to rely upon a judgment delivered by this Court in the case of Chaudhry Aamir Ali v. The State [2002 YLR 1902] wherein the judgment handed down by this Court earlier on in the case of Inayat Bibi v. Amjad Ali and others [2001 P.Cr.LJ. 1453] had been dissented from. It had not been appreciated by the learned Full Bench that the judgment rendered in the case of Inayat Bibi v. Amjad Ali and others [2001 P.Cr.LJ. 1453] had been upheld by the same learned Full Bench itself in the case of Inayat Bibi v. Amjad Hussain and others [PLD 2006 Lahore 587] and in the case of Haji Abdul Ali v. Haji Bismillah and 3 others [PLD 2005 SC 163] the Hon'ble Supreme Court had referred to the case of Inayat Bibi v. Amjad Ali and others [2001 P.Cr.L.J. 1453] with approval and acceptance.
(c) In its judgment passed by the learned Full Bench of this Court in the case of Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others [PLD 2006 Lahore 561] the learned Full Bench had placed reliance upon the judgment delivered in the case of Lt.-Col. G.L. Bhattacharya v. The State [PLD 1963 Dacca 422] which was upheld by the Hon'ble Supreme Court of Pakistan in the case of Lt.-Col. G.L. Battacharya v. The State and 3 others [PLD 1964 SC 503]. It had not been appreciated by the learned Full Bench of this Court that the said case pertained to a remission of sentence lawfully granted to a convict undergoing a sentence and not to a remission of sentence unlawfully or mistakenly accredited in favour of an under-trial prisoner.
(d) The learned Full Bench of this Court had held that the benefit of a remission of sentence already accredited to the advantage of an under-trial prisoner in his history ticket maintained by the jail authorities cannot be withdrawn at any subsequent stage. Recognition and acceptance by the learned Full Bench of a convict's right to cling on to a benefit received by him unlawfully or mistakenly as an under-trial prisoner ran contrary to the law already declared by the Hon'ble Supreme Court of Pakistan in the afore-referred case of Haji Abdul Ali v. Haji Bismillah and 3 others [PLD 2005 SC 163] according to which the benefit of remission of sentence is admissible only to a convict who has already been sentenced and not to an under-trial prisoner who is yet to be convicted and sentenced. In the said case withdrawal of such wrongly extended benefit by the Hon'ble High Court of Balochistan had been upheld by the Hon'ble Supreme Court.
(e) The Hon'ble Supreme Court of Pakistan had subsequently reiterated the same view in the case of Amanullah v. Superintendendent Jail (Criminal Miscellaneous Application No. 149-L of 2005 decided on 21.7.2005).
Propriety demands that a judgment rendered by a learned Full Bench of this Court should be followed by this Bench but in the matter in hand the same learned Full Bench had expressed two views on the same day which views were mutually contradictory and destructive of each other. Apart from that the provisions of Article 189 of the Constitution of the Islamic Republic of Pakistan 1973 mandate that an enunciation of the relevant law by the Hon'ble Supreme Court is binding upon this Bench. It goes without saying that the binding mandate of the Constitution must have a sway over any question of propriety coming in the way.
For what has been discussed above this writ petition is hereby dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 748
Present: Kh. Muhammad Sharif, J.
CH. MUHAMMAD KHAN--Petitioner
versus
INSPECTOR GENERAL OF POLICE PUNJAB, LAHORE and 6 others--Respondent
W.P. No. 3861 of 2007, decided on 4.5.2007.
Police Order, 2002--
----Art. 18(6)--Constitution of Pakistan, 1973--Art. 199--Investigation was conducted by SSP--Powers to transfer investigation--Investigation was entrusted to SSP who had completed the investigation and found accused guilty in the case--There was no need to issue letter by Add I.G. to Inspector General of Police when Investigation had already been changed by competent board u/Art. 18(6) of Police Order--Letter has been issued due to misunder-standing or manoeuvered one as submitted for complainant--Petition was dismissed. [P. 750] A & B
Mr. Azam Nazeer Tarar, Advocate for Petitioner.
Ch. Muhammad Hanif Khatana, Addl. Advocate General alongwith Saleem Sikandar AIG (Legal) and Ch. Qamar-uz-Zaman SSP (Investigation) for Respondents.
Mr. Atir Mahmood, Advocate for Complainant.
Date of hearing: 4.5.2007.
Order
Learned counsel for the petitioner submits that investigation of this case was conducted by Qamar-uz-Zaman SSP Provincial Crime Branch and it was directed by this Court in W.P No. 17962-2005 titled as Professor Muhammad Yahya Chaudhry vs. The State etc. in following terms:--
"Therefore, the investigation of the case is, hereby deemed to be pending. In the peculiar facts and circumstances of this case, I am inclined to direct the DIG/CCPO Lahore to get the investigation of this case changed strictly in terms of Article 18 (6) of the Police Order 2002 and it shall be handed over to some senior police officer not under the supervision of SSP (Investigation) Lahore who had previously dealt with the case".
Learned counsel further submits that order of this Court has not been complied with in letter and spirit as required under Article 18 (6) of Police Order, 2002. He has referred to Annexure "D" which has been placed on record a letter from Addl: I.G Police Investigation Branch, Punjab to Inspector General of Police, I Punjab dated 07.03.2007.
On the other hand learned Addl: Advocate General submits that in compliance with the order of this Court in the above said writ petition a board for second change of investigation was constituted and he has referred Annexure-"B" placed on record by the Police Department alongwith the reply dated 29.6.2006 in which recommendation for change of investigation was made; then he referred Annexure "C" of reply filed by the police department according to which recommendation of the board was approved.
At this stage learned counsel for the petitioner submits that said CCPO Khalid Farooq at that time had referred the matter to A.I.G for entrustment of investigation because CCPO had no authority as it was directed in the order of this Court that no subordinate of Shafqaat Ahmad SSP hold the investigation.
3-A. At this stage learned Addl: A.G submits that CCPO Lahore has all powers to transfer investigation under Article 18(6) of Police Order 2002 which are also with the Inspector General of Punjab Police at provincial level; that matter was only referred to AIG because CCPO Lahore had no domain over the Provincial Crime Branch. Learned Addl: A.G submits that as far as Annexure "D" placed on record by the petitioner which was addressed by AIG to Inspector General of Police dated 7.03.2007 is concerned, that was issued under confusion and that there was no need for transfer of investigation as investigation had already been transferred on the approval of board and this letter was addressed by AIG to Inspector General Punjab Police when Qamar-uz-Zaman S.S.P had already completed the investigation in December 2006.
I had also summoned AIG (Legal) who submits that there is a note of earlier Inspector General of Police Major Zia-ul-Hassan to give approval for the transfer of investigation to Provincial investigation Branch for the purpose of investigation; that thereafter a board was constituted, which consists of one DIG and 2 SSP; that recommendation of board was approved by AIG and then investigation was taken up that Major Zia-ul-Hassan Ex I.G Punjab Police had entrusted the investigation to Qamar-uz-Zaman SSP present in Court, he had completed the investigation in December 2006; that he is unaware of the letter issued by AIG Investigation to Inspector General Punjab Police dated 7.03.2007 although there was no need of the same because the investigation had, already been completed in December 2006 and it was issued due to some misunderstanding.
Learned counsel for the complainant submits that this letter Annexure "D" filed by the petitioner is manoeuvred one and the same has been issued in order to prolong the matter as the petitioner was on bail before arrest and it is mala fide on the part of the petitioner.
I have heard learned counsel for the parties. The order of this Court has been complied with by Ex-Inspector General of Punjab who had domain over whole police hierarchy in the Punjab. The investigation was entrusted to Qamar-uz-Zaman SSP who had completed the same in December 2006 and he found the present petitioner guilty in this case. There was no need to issue letter dated 07.03.2007 by Addl. I.G. (Investigation) to Inspector General of Police when the investigation of this case had already been changed by the competent board under Section 18(6) of the Police Order, 2002 and entrusted to Qamar-uz-Zaman SSP Punjab Crime, even completed in December, 2006. As already submitted by AIG (Legal) who represents police department that this letter has been issued due to some misunderstanding or a manoeuvred one as submitted by the learned counsel for the respondent/complainant Professor Muhammad Yahya Chaudhry. Whether it is wrong or correct as submitted by AIG or a manoeuvred one but I cannot dilate upon it. I may mention here that against the order of this Court passed in W.P No. 17962-2005 co-accused of the petitioner had approached the Honourable Supreme Court of Pakistan but said petition was dismissed.
After having heard learned counsel for the parties and going through the record, I am of the considered opinion that no case for interference is made out. This petition stands dismissed.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 751
[Multan Bench Multan]
Present: Hasnat Ahmad Khan, J.
MUHAMMAD TAHIR MALIK--Petitioner
versus
DISTRICT POLICE OFFICER, MUZAFFARGARH
and 5 others--Respondents
W.P. No. 6842 of 2006, decided on 8.2.2007.
Police Function--
----Under the law function of the police is only to collect the evidence and their opinion is neither admissible in evidence and nor binding upon the Court. [P. 753] A
Police Order, 2002--
----Art. 18(6)--Constitution of Pakistan, 1973--Arts. 4 & 199--Constitutional Petition--Violation of--Provisions of--Transfer of investigation--Cancellation report--DSP disagreed with cancellation report and no vested right accrued in favour of the petitioner on the basis of the report submitted by investigating officer--Even if the cancellation report had been submitted before the concerned Magistrate he too could have disagreed being decided by trial Court--Challan submitted before Court of competent jurisdiction no interference at this stage was called for--No illegality justifying the acceptance of writ petition has been found--Petition was dismissed.
[P. 753] B
Mr. Ahmad Raza, Advocate for Petitioner.
Malik Ashiq Hussain, Advocate for Respondent No. 6.
Date of hearing: 8.2.2007.
Order
Through this petition filed by Muhammad Tahir, Malik who is nominated accused of the FIR No. 165 of 2006 dated 03.06.2006 under Sections 337-A(ii)/337-F(i)/337-L(ii)/148/149 PPC registered at Police Station Shehar Sultan District Muzaffer Garh, the investigation conducted by the DSP, Circle Jatoi, has been called in question on the ground that same was conducted in violation of Provisions of Article 18(6) of Police Order, 2002.
According to the said FIR which had been registered at the instance of Respondent No. 6, precise allegation against the petitioner is that on 1.6.2006 at 8.00 p.m. Sajjad Hussain brother of the complainant while returning to home was intercepted by the petitioner and his accomplices. All of them caused blunt weapon injuries to Muhammad Tariq and Sajjad Hussain, injured P.Ws. The petitioner has been attributed the role of causing blunt weapon injuries on the wrist of Sajjad Hussain, injured P.W.
In support of the writ petition, learned counsel for the petitioner has contended that initially the case was investigated by the local police and same was found to be false and report of cancellation of case was prepared, thereafter in violation of Article 18(6) of Police Order, 2002, DPS/SDPO, Jatoi, conducted the investigation and challaned the accused. He adds that without order of the transfer of first investigation as envisaged under the afore mentioned Article said DSP had got no jurisdiction to investigate the case. He further maintains that in view of the judgment of the Hon'ble Full Bench of this Court reported as Khizar Hayat and others vs. Inspector-General of Police (PLD 2005 Lahore 470, said DSP could only verify the investigation. To supplement his arguments he has further placed reliance upon Imran Shaukat vs. Incharge (Investigation), Police Station Nawankot, Lahore and 2 others (2006 MLD 501 (Lahore).
On the other hand, learned counsel for the complainant has contended that the petitioner being a technician in a hospital, got medico legal report in his favour, on the basis of which the concerned S.H.O. recommended for the cancellation of case but said cancellation report was never forwarded to the Court of competent jurisdiction. When the same was placed before the afore mentioned DSP for approval he did not agree to said report as the facts of the case and the medico legal report indicated accused to be guilty. Therefore he directed for submission of the challan which has already been submitted before the trial Court. He adds that the complainant was cited as a witness in FIR No. 124 dated 08.05.2006 registered against the petitioner at the same Police Station. The petitioner did not like this and as a revenge caused injuries along with his co-accused to the brother of the petitioner.
After hearing the arguments of both the sides and going through the record, I have noticed that on the application of the petitioner the order dated 09.06.2006 was passed by the Additional Inspector General of Police (Investigation), Punjab, Lahore, whereby DPO Muzaffar Garh was directed to get the case investigated in accordance with law. Said order shows that it was the petitioner himself who had obtained order in violation of Article 18(6) of the police Order, on the basis of which he succeeded in getting favourable report of cancellation of case. Respondent No. 2 DSP/SDPO, who is present in person has submitted that he neither investigated the case nor collected any fresh material and as such there is no violation of the above mentioned article. He had simply dis-agreed with the cancellation report in view of the material available on the record and recommended for submission of the challan. Said statement coupled with other circumstances clearly shows that it was not a case of transfer of investigation and concerned DSP had simply disagreed with the cancellation report and recommended for the submission of the challan which had already been submitted before the concerned Court on 13.1.2007. Under the law function of the police is only to collect the evidence and their opinion is neither admissible in evidence and nor binding upon the Courts. Ultimately it is function of the Court to decide the fate of the case. The challan in this case has already been submitted to the Court where the petitioner would be having all the opportunities to plead his case and defend himself. It is also observed that the cancellation report prepared by the SHO was never placed before the competent forum and before reaching said stage the same was upset by the aforementioned SDPO. Therefore no vested right accrued in favour of the petitioner merely on the basis of said report submitted in his favour by the investigating officer. Even if the said cancellation report had been submitted before the concerned Magistrate he too could have dis-agreed to the same resulting in the case being decided by the trial Court. As the challan of the case stands submitted before the Court of competent jurisdiction, no interference at this stage is called for. The case law cited by the learned counsel for the petitioner, instead of advancing his case is damaging the same. Consequently no illegality justifying the acceptance of this writ petition has been found in this case and resultantly this petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 753
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
Mst. TASNEEM IQBAL--Petitioner
versus
ARSHAD KHAN annd another--Respondents
W.P. No. 57 of 2006, heard on 23.5.2007.
Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)--
----S.17(4)--Constitution of Pakistan, 1973--Art. 199--Bonafide--Requirement for personal use--Occupation by lady and her husband--Ejectment order--Appeal was allowed by First Appellate Court--Assailed--Contested--Breach of terms of contract--Validity--Lady would be required to get lease deed executed in favour of the purchaser by tenant in possession--Contract was admitted by occupant--Court did not find any malafide emanating on the part of petitioner with reference to transaction entered into by her--Petition was accepted. [P. 755] A
Raja Tauqeer Ahmad Satti, Advocate for Petitioner.
Mr. Mujeeb-ur-Rehman Kiani, Advocate for Respondent No. 1.
Date of hearing: 23.5.2007.
Judgment
On 20-3-2004, the petitioner filed an application against the respondent for his ejectment from a shop located in Islamabad urban area. The ejectment was sought on the ground of bona fide requirement for personal use and occupation of the petitioner-lady and her husband. The said allegation was denied by the respondent in his written reply. Issues were framed. Evidence of the parties was recorded. Vide order dated 15-12-2004, learned Rent Controller allowed the application and passed an ejectment order after recording the findings in favour of the petitioner under Issue No. 1 pertaining to the said requirement for personal use and occupation. A first appeal filed by the respondent has been allowed by the learned Additional District Judge, Islamabad, on 14.6.2005, who has reversed the said findings and dismissed the ejectment application filed by the petitioner.
Learned counsel for the petitioner contends that the learned Additional District Judge has misread the evidence on record as also the pleadings while holding that the application was filed mala fide. Learned counsel for the respondent, on the other hand, has contended that admittedly the land-lady wanted to sell the property in dispute to a third party and a suit for specific performance is pending. The precise contention is that the ejectment was sought for delivery of possession to the proposed vendee.
I have gone through the copies of the record. The petitioner entered in the Witness-box to state her case and made a statement on oath that the shop is bona fide required for her personal use and occupation. Correspondingly, the respondent appeared as RW-1. Upon a reading of the said evidence, the said personal requirement is established and further she is not in possession of any other similar building in the said urban area. The learned Additional District Judge has disagreed with the learned Rent Controller and while doing so has observed that the petitioner has acted mala fidely as she has concealed a fact that she has filed another ejectment petition as well. The other reason given is that it was stated by her in the Witness-box that she required the shop for her husband. I find that in Para-6 of the ejectment petition itself, it was stated by the petitioner that she had filed an application for ejectment regarding the other shop as well, as she needs both the shops for her personal use. Thereafter, in her very examination-in-chief as AW-1, she has stated that the other shop also belongs to her which has been let out to one Mustafa and that she has filed an ejectment petition against the tenant as well. One has only to wonder that as to how the learned Additional District Judge had arrived at a conclusion that the petitioner-landlady has concealed the said fact. Similar is the case with the other reason. It is in the ejectment petition itself that the shop is required for both the spouses. Apart from this fact, law as contained in Section 17(4) of Islamabad Rent Restriction Ordinance, 2001, enables a landlord/land-lady to get the building vacated on the ground of her personal requirement as also that of her family and as per definition of "family" given in Section 2(f) of the said Ordinance, the term includes a spouse.
Coming to the said contention of the learned counsel, he has shown me from his brief the records of a civil suit filed by one Syed Imran Hussain Shah against the petitioner-lady for specific performance of an agreement to sell. I find that it is being contested on the ground of breach of the terms of the said contract by the said plaintiff. Learned counsel has also shown me a copy of the said agreement to sell which is dated 1-6-2001. I do not find any term in the said agreement that the lady is required to deliver vacant possession of the building to the said plaintiff. On the other hand, the condition is that the said lady would be required to get lease deed executed in favour of the said purchaser by the tenant in possession. I may further note here that even in the course of her cross-examination, she admitted that she entered into a contract for sale with the said Imran but he failed to pay the balance amount. The ejectment petition was filed on 20-3-2003 whereas the suit was filed by the said Imran on 24-1-2004. I, therefore, do not find any mala fide emanating on the part of the petitioner-lady with reference to the said transaction entered into by her.
Writ petition is accordingly accepted and the respondent is directed to deliver vacant possession of the shop in dispute to the petitioner/land-lady on or before 30-6-2007 failing which she can get the ejectment order executed and in such an eventuality, the learned Executing Court shall invoke all available process including the Police aid for execution of the said order. The records of the learned lower Courts be returned immediately.
(R.A.) Petition accepted.
PLJ 2007 Lahore 756 (DB)
[Multan Bench Multan]
Present: Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ.
PAKISTAN RAILWAYS through Chairman Pakistan Railways Islamabad and another--Appellants
versus
MUHAMMAD YASEEN--Respondent
I.C.A. No. 2 of 2007 in W.P. No. 6534 of 2006, decided on 7.2.2007.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3 (amendment)--Vending License Clause 12(b)--Common questions of law and facts--Constitutional petition--Termination of license--Opportunity of hearing--Legality--No doubt the appellants could under Clause 12(b) of Vending License cancel the license but appellants were obliged at least to issue notices to respondents pointing out unsatisfactory working or breach of any clause of agreement and straight away termination order could not be passed--Held: Terms of conditions of the Vending License providing the termination without notice as against principles of natural justice as such of Vending License was declared as contrary and appellant's were directed not to act in such manner and action is required to be taken after giving notice and providing opportunity of hearing and accepted the petitions by declaring the termination of contracts of respondents as without lawful authority and of no legal effect and ordered immediate restoration of licenses of respondents--Appeals dismissed. [Pp. 757 & 758] B & D
Vending License--
----Clause 12(b)--Law Reforms Ordinance, 1973--S. 3 (amendment)--Principle of natural justice--Termination of Vending licenses for installation--Validity--Before terminating the license, the appellant neither served any show cause notice nor obtain any explanation and the whole proceedings were conducted in an ex-parte and in violation of the principle of natural justice. [P. 757] A
Principle of Natural Justice--
----Cancellation of Licenses without giving any notice--Violation of--Cancellation of licenses without giving any notice is not only violative of the principle of natural justice but it amounts to condemning a person unheard in view of law. [P. 757] C
PLD 1987 SC 304, rel.
(iv) Principle of Law--
----Any proposed action must be taken in lawful manner and not arbitrarily the principle of justice demands that proper notice should be reserved. [P. 758] E
Rao Muhammad Iqbal, Advocate for Appellants.
Date of hearing: 7.2.2007.
Order
This single order shall dispose of I.C.A. No. 2/07 in W.P.No. 6534/06 & I.C.A. No. 3/07 in W.P. No. 6532/06 as in both these appeals, common questions of law & facts are involved and also being the offshoot of the same Judgment, impugned herein, wherein the learned Single Judge-in-Chamber allowed both the said Constitutional petitions.
The brief facts succinctly required for adjudication of the Intra Court Appeals are that the respondents filed W.P. Nos. 6532/06 & 6534/06 challenging the termination of their Vending License for installation of Stall at Railway Station, Khanewal vide orders dated 15.9.2006, & 23.5.2006, respectively, by invoking clause 12(b) of the Vending License. The said termination orders were challenged by the respondents on the ground that before terminating the vending license, the appellant neither served any show-cause notice on them nor obtain any explanation and the whole proceedings were conducted in an ex-parte manner and in violation of the principle of natural justice. The respondents also urged that the ground on which their licenses had been terminated is not a part of the conditions of Vending License. More-over, they had not been challaned by any competent Court under the Pure Food Ordinance, as such, their licenses could not be revoked.
The learned Single Judge-in-Chamber after issuing notice and calling for the comments from the appellants accepted both the above numbered Constitutional petitions vide the impugned order dated 21.12.2006 holding that no doubt the appellants could under Clause 12(b) of the Vending License cancel the licenses but the appellants were obliged at least to issue notices to the respondents pointing-out their unsatisfactory working or breach of any clause of agreement and straight away termination orders could not be passed. It was also declared that any permission in clause in terms and conditions providing for cancellation of the licenses forthwith without giving any notice is not only violative of the principles of natural justice but it amounts to condemning a person unheard in view of the law declared by the apex Court in the case reported in "Federation of Pakistan vs. Public at Large (PLD 1987 S.C. 304) providing that issuance of notice and affording opportunity of hearing is to be deemed an integral part of every action. Hence, the learned Single Judge-in-Chamber held the clause of terms and conditions of the Vending License providing the termination without notice as against the principles of natural justice; as such, Clause 12(b) of Vending License was declared as contrary to the same and the appellants were directed not to act in such like manner and in any case the action is required to be taken, the same can only be taken after giving notice and providing opportunity of hearing and accepted the petitions of the respondents by declaring the termination of the contracts of the respondents as without lawful authority and of no legal effect and ordered immediate restoration of the licenses of the respondents.
It is urged on behalf of the appellants that licenses were terminated according to Clause 12(b) of the terms and conditions of the Vending License as the respondents were selling substandard food items and the respondents had misstated the facts by tampering the laboratory report dated 11-11.2006 as 18.11.2006 and also fraudulently concealed the fact regarding the latest two other laboratory reports dated 27.11.2006 which were concluded against the respondents as substandard food items were being sold by them. The learned Single Judge-in-Chamber did not take into consideration that the respondents had approached the Court with unclean hands by way of cheating, misstatement & concealment, The substandard food items being sold by the respondents had been declared as harmful to the health of the passengers which was a sheer violation of the Pure Food Rules, 1965 as well as the Clause 12(b) of the Agreement. This act of the respondents entails their termination, as such, the impugned order be set-aside. However, the learned counsel for the appellants during the course of arguments unequivocally conceded that the termination orders dated 15.9.2006 and 23.5.2006 were issued without any service of notice and appellants would, in future, issue such termination orders after serving the notices.
We have given anxious consideration to the contentions of the learned counsel for the appellants but are not inclined to upset the order of the learned Single Judge-in-Chamber which has been passed keeping in view the golden principle of settled law that any proposed action must be taken in a lawful manner and not arbitrarily; the principle of justice demands that proper notice should be served. The impugned order in fact, shows a beckon of light for all concerned not to proceed or act in an arbitrary manner. It has also been acknowledged and courageously conceded by the learned counsel for the appellant, that in future the appellant could issue any termination order after due service of notice.
A perusal of the impugned order suggests by all means that the same has been passed on a due appreciation of law & facts and no exception with regard thereto can be taken in these appeals which stand dismissed.
(R.A.) Appeal dismissed.
PLJ 2007 Lahore 759 (DB)
[Multan Bench Multan]
Present: Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ.
MUHAMMAD HUMAYUN AKHTAR--Appellant
versus
PAKISTAN RAILWAYS through Chairman Pakistan Railways Islamabad and 5 others--Respondents
C.M. No. 36 of 2007 in R.F.A. No. 106 of 2003, decided on 7.2.2007.
Court Fee Act, 1870 (VII of 1870)--
----S. 13--Refund of Court fee--Memorandum of appeal--Provisions of--Applicability--Entitlement--Question of--If suit was remanded in appeal for a second decision by lower Court, the Appellate Court would grant to appellant a certificate authorizing him to receive back from Collector the full amount of fee paid on memorandum of appeal--Held: Applicant is entitled for refund of full amount of Court fee paid on memorandum of appeal--Application was allowed. [P. 760] A & B
Mr. Amin ud Din Khan, Advocate for Appellant.
Mr. Abdul Razaq Raja, Advocate for Respondents.
Mr. Muhammad Ramzan Khalid, Addl. Advocate General.
Date of hearing: 7.2.2007.
Order
Mian Hamid Farooq, J.--Instant application, under Section 13 of Court Fee Act, 1870 has been filed for refund of Court fee, paid on the memorandum of appeal (RFA-No. 106/2006), which. was decided by this Court on 5.12.2006.
Learned counsel of the applicant, while referring to Section 13 of the Court Fee Act states that applicant is entitled for refund of Court Fee affixed in appeal. The learned Addl. Advocate General, who has appeared on Court's notice, when confronted with Section 13, ibid, has not much to say. However, the learned counsel for the respondent has stated that as the appeal was decided, therefore, this application after the decision of the appeal is not competent.
We have heard the learned counsel and examined the available record. This Court, vide judgment dated 5.12.2006, allowed applicant's appeal (RFA No. 106/2006) and remanded the case to the learned trial Court for recording evidence by setting aside the judgment and decree dated 5.4.2003, whereby the learned trial Court rejected the plaint in appellant's suit for specific performance of contract. Section 13 of the Court Fee Act envisages that if an appeal or plaint has been rejected by the lower Court, which is ordered to be received or if the suit is remanded in appeal for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal. The plaint in this case was rejected by the learned trial Court through the decree, which stood set aside by this Court and the suit was remanded for recording evidence and disposal of the suit. To our mind, the provisions of Section 13 of Court Fee Act are fully applicable in the present case. Under the present scenario and in view of Section 13 of the Court Fee Act, we feel that the applicant is entitled for the refund of full amount of Court fee, paid on the memorandum of appeal. In arriving the aforesaid conclusion, we are also fortified by the judgment reported as Muhammad Saeed Mazhari Vs. Muhammad Sharif etc. (NLR 1991 AC 227), wherein, the Division Bench of this Court under the similar circumstances ordered for the refund of full amount of Court fee.
In view of the above, the application is allowed and office is directed to issue certificate to the applicant, authorizing him to receive back from the Collector the full amount of Court fee paid on the memorandum of appeal.
(R.A.) Application allowed.
PLJ 2007 Lahore 760
Present: Syed Asghar Haider, J.
AKHTAR HUSSAIN--Petitioner
versus
MUHAMMAD ASLAM--Respondent
C.R. No. 1591 of 2006, heard on 9.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Punjab Pre-emption Act, 1991--S. 13--Legal requirements--Produced three witnesses--Tendered documentary evidence--Respondent appeared as own witness and tendered in evidence--Determination--Adjudication--Requirements of Appellate Court--Petitioner produced in evidence three witnesses and also tendered in evidence--First Appellate Court had not adverted to such evidence or discussed it in the judgment--Specific plea was raised in the ground of appeal, pleading that document was not proved in accordance with law--There was no proper determination or decision on the touchstone of grounds as enumerated in O. XLI, R. 31 of CPC--Case was remanded. [P. 762] A
Ch. Muhammad Masood Jehangir, Advocate for Petitioner.
Mr. Muhammad Sharif Chohan, Advocate for Respondent.
Date of hearing: 9.4.2007.
Judgment
The property in dispute was owned by Noor Zaman and Mst. Sameena Yasmin, they sold the suit property to the Respondent/Defendant Muhammad Aslam, vide Mutation No. 1201, dated 8.11.1999. The petitioner filed a suit for pre-emption after fulfilling legal requirements of Section 13 of the Punjab Pre-emption Act, 1991. The defendant/respondent filed written statement, of the divergent pleadings of the parties issues were framed, parties were put to trial, the petitioner produced three witnesses and tendered documentary evidence, Exh. P-1 to P-5. The respondent appeared as his own witness and tendered in evidence Exh. D-1 (Rupt Roznamcha Waqiati). After contest the suit was dismissed. Aggrieved thereof the petitioner filed appeal, which was allowed and the matter was remanded to the trial Court. On 4.1.2006 the suit was again dismissed, the appeal also met the same fate. Hence, the present petition.
Learned counsel for the petitioner contended that Exh. D-1 was given undue credence, and weight-age although the document was not proved in accordance with law. Learned counsel further contended that vide judgment dated 20.10.2005, the lower appellate Court had given a specific direction to the trial Court to give findings afresh on Issue No. 8 alone, however the trial Court proceeded to give findings on Issue No. 7 as well, material evidence on Issue No. 8 has not been discussed in the impugned judgment. The petitioner was non-suited by both the Courts below relying on the statement of P.W.3, whereas other material evidence on this point was neither appraised nor discussed. To fortify his contentions he relies on Ghulam Abbas Versus Noor Hussain Shah (2007 C.L.C. 12), Muhammad Afzal and 2 others Versus Mst. Marrayam Bibi (2007 C.L.C. 20), Altaf Hussain Shah and another Versus Abdul Qadeer and 2 others (2004 Y.L.R. 824), Shoukat Hayat Versus Liaquat Khan (2005 Y.L.R. 60), Noor Muhammad Versus Abdul Ghani (2002 C.L.C. 88), Versus Bashir Ahmad (1989 C.L.C. 140), Muhammad Younus Versus Shahid Naveed (1989 C.L.C. 837) Sattar Muhammad and 2 others Versus Hussain and 3 others (P.L.D. 1988 Peshawar 48).
Learned counsel for the respondent conversely submits that notwithstanding the effect of Exh D-1, the plaintiff has to prove his case upon the strength of his evidence and cannot rely upon the infirmities in defence of the other party. The trial Court could look into Issue No. 7, notwithstanding the effect of the specific direction issued by the lower appellate Court as the word afresh means decision of the entire matter. To fortify his contentions he relies on Rahmat Shah and 2 others Versus Sarwar and another (P.L.D. 1971 Peshawar 205), Federation of Pakistan through Secretary Ministry of Law Versus Zafar Awan, Advocate (PLD 1992 SC 72), Muhammad Ramzan versus Lal Khan (1995 SCMR 1510), Khurshid Alam and another versus Al-Khair Gadoon Limited (2004 C.L.C. 1266). Under Order XLI Rule 31 CPC, the Appellate Court was required to determine the points for adjudication and give decision thereon with reasons. The record reflects that the petitioner produced in evidence, three witnesses PW-1 to PW-3 and also tendered in evidence Exh. P-1 to, Exh. P-5. The lower Appellate Court has not adverted to this evidence or discussed it in the impugned judgment. Likewise, Exh-D-1 is a copy of Register Roznamcha Waqiati, a specific plea was raised in the grounds of appeal, pleading that the stated document was not proved in accordance with law. The impugned judgment reflects that Exh. D-l was relied upon without deciding the petitioners objections raised in this regard, thus, there is no proper determination or decision on the touchstone of grounds (a), (b) and (c) as enumerated in Order XLI Rule 31 CPC. The impugned judgment is, therefore, not tenable in law and amounts to non-exercise of proper jurisdiction as well as non-reading of evidence. The precedents referred to by the learned counsel for the respondent are distinguishable on facts. Resultantly, this petition is allowed, the impugned judgment and decree is set-aside, the proceedings are remitted to the lower Appellate Court and it is directed to scan and appraise the entire oral and documentary evidence tendered by the parties to the dispute, decide the objections of the petitioner qua Ex.D-1 and thereafter proceed to determine and decide the matter in accordance with the requirements of Order XLI Rule 31 C.P.C, after hearing the parties. No order as to costs.
(R.A.) Case remanded.
PLJ 2007 Lahore 763 (DB)
Present: Kh. Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ.
MUHAMMAD AKRAM--Petitioner
versus
PRESIDING OFFICER SPECIAL COURT NO. 2, GUJRANWALA
and 2 others--Respondents
W.P. No. 4530 of 2007, decided on 14.5.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 347(7)--Pakistan Penal Code, (XLV of 1860), S. 338-E--Offence of Zina (Enforcement of Hudood) Ordinance, S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Dying declaration--Bona fides--Affidavits were made two days prior to death of the victim--Exhausted remedies--Offence of Zina was not compoundable--Bona fides--Victim denied and two days prior stated before deponents that she had falsely implicated accused--Validity--Non-satisfactory--Reasons--During one year accused never approached the Court and conveniently filed a writ petition a day prior to date of execution of death warrant--High Court are not persuaded with bonafides of the petitioners or legal heirs of the deceased who are seeking relief Constitutional jurisdiction--Petition was dismissed. [P. 764] A & B
Syed Mazahar Ali Akbar Naqvi, Advocate for Petitioner.
Mr. Tahir Mahmood Gondal, AAG for Respondents.
Date of hearing: 14.5.2007.
Order
This order will be read in continuation of our order of even date and in response to the directions made to the learned law officer, it is submitted that the offence for which the petitioners have been sentenced, that is, Section 10(4} of the Offence of Zina (Enforcement of Hadood) Ordinance, is not compoundable and in this regard has drawn our attention to sub-section (7) of Section 345 Cr.P.C.
Further submits that the so called dying declaration, according to affidavits were made two days prior to death of the victim, that is, on 19.5.2006 but for one long year the petitioners as also the legal heirs of the victim kept mum. According to learned law officer, Section 338-E, PPC is not applicable to the facts of the instant case. He has relied upon 2006 PSC (Criminal) 152.
We have heard learned counsel for the parties. The petitioners were sentenced to death under Section 10(4) of the Ordinance No. VII of 1979. Criminal Appeal Nos. 46. and 47/J of 1998 were dismissed by this Court and Murder Reference No. 458 of 2002 was replied in Affirmative whereby the death sentence of both the petitioners was confirmed. Both the petitioners challenged their conviction and sentence before the Hon'ble apex Court through Criminal Appeal No. 207 of 2002 and Jail Petition No, 86 of 2002 but their appeals were dismissed by the Court vide judgment dated 25.5.2006. The petitioners have exhausted all the remedies available to them under the law. Admittedly the offence under Section 10(4) of the Ordinance VII of 1979 is not compoundable, so question of granting leave to compound the offence especially in these collateral proceedings does not arise.
Now, we may advert to the facts of the case and bona fides in filing this Constitutional petition. According to affidavits of the legal heirs of victim Mst. Khalida who has died her natural death, the victim died on 21.5.2006 and two days prior thereto, that is on 19.5.2006, she had stated before the deponents that she had falsely implicated the petitioners. The date of death of the victim being 21.5.2006 is of much significance for the reason that appeals of the both the petitioners was heard by the apex Court on 25.5.2006 but the improvement which is now being urged as a ground for stay of execution of death warrant, was never brought to the notice of the Apex Court either by the petitioners or by legal heirs of the victim and they kept mum. The affidavits of legal heirs of the deceased are dated 3.5.2007 affirming a statement made by Mst. Khalida on 19.5.2006. No reason has been given whatsoever for such a long delay spreading over one year. During all this one year, the petitioners never approached the Hon'ble apex Court and conveniently filed this writ petition a day prior to the date of execution of death warrant. We are not therefore persuaded with bona fides of the petitioners or the legal heirs of the deceased who are seeking relief in Constitutional jurisdiction.
For what has been above, there is no merit in this petition and the same is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 765
Present: Syed Shabbar Raza Rizvi, J.
COMMERCIAL ADVERTISERS LAHORE, through its Managing Partner--Petitioner
versus
TEHSIL MUNICIPAL ADMINISTRATION, SARGODHA and 3 others--Respondents
W.P. No. 6886 of 2006, decided on 15.5.2007.
(i) Words and Phrases--
----"Contract out"--According to Oxford Advanced Learners Dictionary 7th Edition page 332--Meaning--Whereas to "contract" means to make an agreement with somebody or an agreement. [P. 767] A
(ii) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003--
----Rs. 2--Punjab Local Government Ordinance 2001--Ss. 54(2) a & 191--Function and Power of Tehsil Adminitration--Statutory Rules--Words and Phrases--Auction of contract for "Collection of publicity Board Tax"--Challenge to--Respondent was declared as successful bidder--Violative of rules--Validity--"Contract" means a person, firm or a company eligible to make contract with local Government--Respondent was not disqualified to participate in auction proceedings--Petition was dismissed. [P. 767] B
Ch. Anwarul Haq, Advocate for Petitioner.
Mr. Imtiaz Hussain Khan Baloch, Advocate for Respondents.
Date of hearing: 15.5.2007.
Order
The petitioner has challenged the auction of contract for "Collection of Publicity Board Tax", dated 19.6.2006, conducted by the Respondent No. 3 for the period from 1.7.2006 to 30.6.2007. According to the learned counsel, the impugned auction was violative of Section 54(2) of the Punjab Local Government Ordinance, 2001 and also against the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003.
Briefly, the petitioner-firm is engaged in the business of advertisement. Respondent No. 1 publicized in daily `Khabrain' Lahore dated 9.6.2006 auctioning of its various contracts. The petitioner showed interest in Item No. 17 given in the said programme of auction.
In the second round of auction, the bid started from Rs. 16 lacs. Respondent No. 4 offered bid of Rs. 18,20,000/-. The petitioner enhanced it to 22 lacs. Nevertheless, Respondent No. 4, was declared as successful bidder by the Respondent No. 3, though no final approval was granted.
According to the learned counsel, the said auction proceedings in favour of Respondent No. 4 were violative of Rule 5(5) of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 as the reserved price was not mentioned in the publication. The learned counsel further submitted that contract had been given to Respondent No. 4 who was an "individual", whereas, under Section 54(2) of the Punjab Local Government Ordinance, 2001, it could only be given to an "organization". The learned counsel has relied upon 2004 YLR 366 and an unreported decision of this Court in Writ Petition No. 2659/2004.
I have heard both the learned counsel. It is correct that reserved price is not mentioned in the publication, Annex-C, however, no prejudice is caused to the petitioner for the above lapse. The record shows that the required reserved price i.e. Rs. 10,55,000/- was published on the Notice Board of Respondent No. 3. It was also announced, prior to the commencement of auction proceedings of Item No. 17; the copy of the same was also distributed amongst all the bidders. This circumstance did not exist in the cases mentioned by the learned counsel for the petitioner as precedents. Therefore, the cited cases are distinguishable from the instant case, and as noted above, no prejudice is caused to the petitioner on this count. It may further be pointed out that at the end of auction proceedings of Item No. 17, all the bidders including petitioner having Token No. 5 signed statement of auction proceedings, The petitioner gave impression as he had offered Rs.22,00,000/- against bid amount of Rs. 18,20,000/- offered by Respondent No. 4. But it is not proved from the record. As a matter of fact, at the end of Auction Proceedings, all bidders signed it including petitioner.
The learned counsel heavily relied upon Section 54(2)(a) of the Punjab Local Government Ordinance, 2001, which reads as under:--
"54(2). The Tehsil Municipal Administration may--
(a) assign or contract out. on such terms and conditions as are approved by the Tehsil Council and after inviting public objections, any of its functions to any public-private, public or private organization."
According to the learned counsel, the "contract", subject-matter of this petition, could only be awarded to an "organization". The Respondent No. 4 is an "individual" instead of an "organization", therefore, he was not qualified to be awarded the contract. When I heard the learned counsel, I was struck anguishly that the learned counsel was reading expression, "contract out" in sense of "contract". Both these expressions i.e. "contract out" and "contract" are different expressions with different meanings. For example, according to Oxford Advanced Learners Dictionary, 7th Edition, page 332, "contract out" means, to formally agree that you will not take part in something; To arrange for work to be done by another company rather than your own. Whereas, to "contract" means, to make an agreement with somebody or an agreements. Contract is employed both as a Verb and Noun, but in both situations, it is a different word than "contract out". Even otherwise, Section 54 is part of, Chapter 5, the Punjab Local Government Ordinance, 2001, which deals with Tehsil and Town Municipal Administration. Section 54 categorically relates to functions and powers of the Tehsil Municipal Administration. Sub-section (1) of Section 54 gives detail of functions and powers of Tehsil Administration which it conducts itself. Sub-section (2) of Section 54 provides list of functions which Tehsil Administration may "assign" or "contract out" to some other public or private organization instead of doing it itself. It has nothing to do with the subject of auction of Contract of Collection of Tax. For the said purpose, the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 have been provided. The said Rules have also been relied upon by the learned counsel for the petitioner. I respectfully express that probably this aspect was not considered in the judgments cited and relied upon by the learned counsel for the petitioner. The Statutory Rules above mentioned, are framed under Section 191 of the Ordinance, 2001, and Rule 2 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, provides that "contractor" means a person, firm or a company eligible to make contract with Local Government. Therefore, Respondent No. 4 was not disqualified to participate in the auction proceedings.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 767 (DB)
[Multan Bench Multan]
Present: Muhammad Sayeed Akhtar and Muhammad Jehangir Arshad, JJ.
MUHAMMAD NAEEM FAROOQ--Appellant
versus
MUHAMMAD ASLAM--Respondent
R.F.A. No. 215 of 2004, heard on 1.2.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 96 & O.XXXVII, Rr. 2 & 3--Negotiable Instruments Act, 1881--S. 87--Suit for recovery on the basis of pronote was dismissed--Assailed--Original pronote contains cuttings as well as addition--Amount of loan--Figures were changed--Interpolation--Alteration--Neither signatures or thumb impressions of respondent nor gives explanation for changing figure--Alteration without consent of respondent is sufficient to discharge from his liability in respect of consideration under pronote in question in the absence of evidence--Plea in preliminary objections that disputed pronote as well as receipt were fictitious, collusive and based on fraud and contained interpolation in order to burden with disputed amount--Appeal was dismissed.
[Pp. 770 & 771] B
(ii) Negotiable Instruments Act, 1881 (XXVI of 1881)--
----S. 87--Original pronote--Cutting as well as addition--Figures were changed--Alteration of Pronote without consent--Sufficient to discharge from liability--Pronote in-question in absence of any evidence--Alteration was made in order to carry out common intention of the parties as required by S. 87 of Negotiable Instruments Act. [P. 770] A
Mr. Khadim Nadim Malik, Advocate for Appellant.
Mr. Muhammad Shahid Tassar, Advocate for Respondent.
Date of hearing: 1.2.2007.
Judgment
Muhammad Jehangir Arshad, J.--This R.F.A. is directed against the judgment and decree dated 5.11.2004 passed by learned Additional District Judge, Dera Ghazi Khan, whereby the suit filed by the appellant under Order 37 C.P.C. for recovery of Rs. 12,00,000/- on the basis of pronote and receipt, was dismissed.
The facts in brief are that on 1.2.2003 the appellant filed a suit before the learned trial Court under Order 37 C.P.C. stating therein that as relations between the appellant and respondent were close, cordial and also fiduciary, and the brother of respondent was also employed with the appellant, thus the respondent approached him with the prayer that as he had suffered huge financial loss in his pharmaceutical business and his Company had run into losses, for the restoration which some capital was required, therefore, he was in urgent need of money for a period of six months and as the appellant was a man of sound financial means and he had also sold his house, therefore, on the pressing demand of the respondent and keeping in view the stressing financial condition of the respondent, the appellant gave him Rs. 12,00,000/- as loan on 25.6.2002 in the presence of the witnesses and in token thereof the respondent executed on the same day a pronote and receipt (Ex.P-1 and Ex.P-2) and also orally undertook to return the amount without failure as early as possible, but as the respondent failed to honour his commitment and did not pay back the said amount, the appellant was therefore, obliged to file the suit.
On receipt of notice of the suit, the respondent entered appearance before the learned trial Court and moved an application seeking leave to appear and defend the suit, which application was allowed by the learned trial Court on 6.4.2003. The respondent/defendant thereafter filed written statement wherein besides denying the averments of the plaint the respondent also denied the execution of the pronote as well as receipt by terming the same as fictitious and forged one containing unauthorized cuttings/alterations. Keeping in view the pleadings of the parties, the learned trial Court framed the following issues:--
ISSUES:
Whether the defendant executed a promissory note in favour of the plaintiff on 25.6.2002 alongwith a receipt in acknowledgement of the amount in dispute? OPP.
Whether the pronote in dispute is forged and fabricated? OPD.
Whether the pronote in dispute is without consideration? OPD.
Whether the defendant is entitled to special cost, if so what should be quantum of costs? OPD.
Whether the plaintiff is entitled to the recovery of sum of Rs. 12,00,000/- from the defendant under the pronote and receipt in dispute? OPP.
Relief.
The plaintiff/appellant in his affirmative evidence himself appeared as PW-1, produced Kamal Rustamani (PW-2) and Muhammad Fayyaz (PW-3) two witnesses of the said pronote (Ex.P-1) and receipt (Ex.P-2) and closed his evidence. The respondent/defendant appeared himself as DW-1 and closed his evidence. After completion of the trial, the learned trial Court vide judgment and decree dated 5.11.2004 dismissed the suit. Hence, this appeal.
It has been argued by learned counsel for the appellant that as the respondent has not denied the execution of the pronote as well as receipt (Ex. P-1 & Ex.P-2) and the appellant has successfully proved the execution of both the documents by producing two witnesses namely Kamal and Fayyaz (PW-2 and PW-3), therefore, there was no justification for the learned trial Court to have dismissed the suit of the appellant by deciding Issues No. 2 and 3 against him merely on surmises and conjectures.
On the other hand, learned counsel for the respondent has vehemently opposed this appeal by arguing that findings of the learned trial Court on Issues No. 2 and 3 being based on evidence as well as law, therefore, the suit of the appellant was rightly dismissed.
We have considered the arguments of learned counsel for the parties and have also examined the original pronote as well as receipt available on the file of the learned trial Court.
We have noticed that the original pronote Ex.P-1 contains cuttings as well as addition so far as it relates to the amount of loan allegedly paid under the same. Firstly the amount in figures appears to have been changed from Rs. 2-lacs to Rs. 12-lacs, secondly the amount of two lacs originally written in words has been changed by making " " into " " and this interpolation becomes more obvious because when it is read it makes " " into " ", meaning thereby that the word " " has been inserted before " " and " " of the word " " has been tried to be made " " Again it appears that half of Rs. 12,00,000/- has been converted into Rs. 6,00,000/- in figures and also " " in words.
Although the learned counsel for the appellant has tried to justify this tampering by referring to a note on the margin of the pronote stating that " "
yet this alone cannot rectify the alteration especially when this note neither contains the signatures or thumb impressions of the respondent nor gives any explanation for changing the figure (2) into (12), both in words and figures. Further the above alteration without the consent of the respondent is sufficient to discharge him from his liability in respect of the consideration under the pronote in question in the absence of any evidence that said alteration was made in order to carry out common intention of the parties as required by Section 87 of the Negotiable Instruments Act.
(R.A.) Appeal dismissed.
PLJ 2007 Lahore 771 (DB)
[Multan Bench Multan]
Present: Muhammad Sayeed Akhtar and Muhammad Jehangir Arshad, JJ.
AHMAD YAR--Petitioner
versus
S.H.O. SHAH KOT DISTT. SAHIWAL and 8 others--Respondents
I.C.A. No. 41 of 2007 in W.P. No. 480 of 2007, decided on 27.2.2007.
(i) Second F.I.R.--
----Registration of second F.I.R--Different version--Second FIR should not contain the facts for mere amplification of first version. [P. 773] A
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 63--Law Reforms Ordinance, 1972--S. 3(i)--Report for cancellation of FIR--Power of Magistrate--Discharged from Magistrate u/S. 63 Cr.P.C.--Report for cancellation of the case before Magistrate who may refuse to take cognizance of the matter on the basis of such report--Intra Court Appeal was dismissed. [P. 773] B
Malik Javed Akhtar Vains, Advocate for Appellant
Date of hearing: 27.2.2007.
Order
Muhammad Jehangir Arshad, J.--This I.C.A. proceeds against the judgment dated 15.2.2007 whereby the learned single Judge in chamber while accepting Writ Petition No. 480 of 2007 filed by Mst. Saban-respondent seeking registration of second FIR, directed the S.H.O. Police Station Shahkot to perform his legal obligation and register the second FIR on the statement of Mst. Saban writ petitioner and proceed strictly in accordance with law.
(i) That although registration of second FIR was not barred by law yet the fact remains that the story being set up by Respondent No. 2 is not consistent with the one already incorporated in the earlier FIR No. 376/2006 dated 14.11.2006;
(ii) That Respondent No. 2 despite claiming herself to be the eye-witness of the occurrence dated 14.11.2006 kept mum till 24.11.2006 filed a petition before the learned Justice of Peace under Section 22-A Cr.P.C. on 28.11.2006 i.e. after lapse of fourteen days but this fact has been ignored by the learned single Judge in chamber while passing the impugned order;
(iii) That the learned Justice of Peace in exercise of his jurisdiction under Section 22-A Cr.P.C. did not direct registration of case but only directed the S.H.O. to record statement of the petitioner and proceed strictly in accordance with law, whereas, the learned single Judge in chamber wrongly construed the same as a direction for registration of case which type of direction could not be issued in constitutional jurisdiction; and
(iv) That Mst. Jannat Bibi (deceased) for whose murder the order for registration of case has been passed by learned single Judge in chamber, had appointed the appellant in her life time as her General Attorney in respect of her land because she was issueless and had adopted the appellant as her son, therefore, the respondents in furtherance of their common object/ intention committed the murder of Mst. Jannat Bibi and then in order to save their skin, they have tried to implicate the appellant in the said case but this fact has also not been taken into consideration by the learned single Judge.
We have considered the arguments of learned counsel and perused the entire material available before us.
Learned counsel for the appellant has not been able to point out that the impugned order of the learned single judge either suffers from any jurisdictional defect or has been passed in wrong exercise of jurisdiction. As held by the Hon'ble Supreme Court of Pakistan in the case "Mst. Anwar Begum v. Station House Officer, Police Station, Kalri West, Karachi and 12 others (P.L.D. 2005 S.C. 297) and "Mrs. Ghanwa Bhutto and another v. Government of Sindh and another" (P.L.D. 1997 Karachi 119), also relied upon by the learned single Judge in the impugned order, there is no embargo with regard to registration of second FIR in respect of different version given by the aggrieved party of the same occurrence and the only impediment is that second FIR should not contain the facts for the mere amplification of the first version. It is the case of Respondent No. 2 that she alongwith her sister being first cousins of Mst. Jannat (deceased) are her legal heirs and Ahmad Yar appellant in order to grab the property of Mst. Jannat, murdered her in connivance with respondents No. 3 to 8, whereas, according to the first FIR No. 376 got lodged by Ahmad Yar appellant, Mst. Jannat was murdered by Respondents No. 3 to 8 and this fact can only be determined during investigation and not through this Intra Court. Appeal. The appellant would have a chance to place all his cards before the Investigation Officer and as held by the Hon'ble Supreme Court of Pakistan in the case "Col. Shah Sadiq versus Muhammad Ashiq and others" (2006 SCMR 276), if the appellant is found innocent, the Investigation Officer may submit report for cancellation of case. Further, if as a result of investigation the appellant is found innocent the Investigation Officer may get him discharged from the concerned Magistrate under Section 63 Cr.P.C. or may submit report, for cancellation of the case before the Magistrate who may refuse to take cognizance of the matter on the basis of such report. The question of delay in approaching the Court by the respondents and keeping mum from 14.11.2006 to 24.11.2006 may also be taken into consideration either by the Investigation Officer or by the learned trial Court during trial. Finally, the maintainability of this appeal filed against a direction for registration of the FIR, is also doubtful in the light of the judgment of the Hon'ble Supreme Court in the case "NAWAZUL HAQ CHOWHAN v. THE STATE" (2003 SCMR 1597) holding that "Intra Court Appeal against the order of learned Single Judge of the High Court passed in Constitutional jurisdiction under Art. 199 of the Constitution quashing the F.I.R., was not maintainable" and the said principle would equally apply to the present "proceedings", which in the light of the above-mentioned judgment of the Hon'ble Supreme Court does not include the word "FIR", so as to file Intra Court Appeal in terms of proviso to Section 3(1) of the Law Reforms Ordinance, 1972.
Resultantly, this Intra Court Appeal has no force and is dismissed in limine.
(R.A.) Appeal dismissed.
PLJ 2007 Lahore 774
[Multan Bench Multan]
Present: Muhammad Sayeed Akhtar, J.
ISHRAT JABEEN SAEED--Petitioner
versus
MULTAN DEVELOPMENT AUTHORITY through its DIRECTOR GENERAL and another--Respondents
W.P. No. 6128 of 2006, decided on 7.3.2007.
Allotment Letter--
----Clause 7--Entitlement--Husband and wife being members of same family are not entitled to more than one plot in their individual capacity. [P. 777] B
Constitution of Pakistan, 1973--
----Art. 199--Disposal of Lands by Development Authorities (Regulation) Rules, 2002, R. 6--Violation of--Eligibility for allotment of plot--Spouses submitted separate forms--Husband sold plot--No conflict--Entitlement--Provision--Offers subject to--If both husband and wife were successful in the draw of plots only one spouse will be entitled to retain the plot of his or her choice. [P. 776] A
Disposal of Lands by Development Authority (Regulation) Act, 1998--
----S. 4(g)--Disposal of Land by Development Authorities (Regulation) Rules, 2002--R. 6--Constitution of Pakistan, 1973--Art. 199--Purpose of scheme--Condition--Not bound--Contention--Entitlement to retain plot by spouse of their choice--No such condition exists in terms approved by Government of Punjab is devoid of any force--Petition was dismissed. [P. 777] C
Syed Muhammad Ali Gillani, Advocate for Petitioners (in W.P. No. 6128 of 2006).
Mr. Abdul Aziz Khan Niazi, Advocate for Petitioners for Petitions (in W.P. No. 6476 of 2006).
Mr. Muhammad Amin Malik, Advocate for Respondent.
Mr. Muhammad Qasim Khan, A.A.G.
Date of hearing: 7.3.2007.
Order
A common question of law and fact is involved in W.P. Nos. 6128/2006 and W.P.No. 6476/ 2006, I propose to dispose of these two by this common order.
Succinctly stated, Multan Development Authority (M.D.A.) through advertisement in the press invited applications for allotment of plots in Fatima Jinnah Town through balloting. The petitioners (in both the petitions) and their husbands submitted separate forms for allotment of residential plots in the said Town. In the ballot held on 29th May, 2006 the petitioners and their husbands were declared successful and were allotted plots. Their husbands after getting the allotment in their names disposed of the plots by way of sale. The petitioner (in W.P. No. 6128/2006) was allotted Plot No. 78-C. Similarly Mst. Nadia Hameed Khan, petitioner (in W.P. No. 6476/2006) was allotted Plot No. 66-F. They have received cancellation notice on the ground that as per Clause 7 of the allotment letter "spouses can retain only one plot of their choice and other plot has to be surrendered."
Learned counsel for the petitioner contends that there was no such condition in the advertisement issued in the press. No such embargo can be imposed upon the petitioners subsequently. The contract was complete as soon as the petitioners were declared successful in the draw of plots, The respondent had accepted Rs. 1,00,000/- even after the balloting, they are estopped by their conduct from cancelling the plot. It is further urged that as per parawise comments the respondent had sought the relaxation from the Government of Punjab under Section 4(g) of the Disposal of Lands by Development Authorities (Regulation) Act, 1998 seeking permission for disposal of residential plots in M.D.A. Fatima Jinnah Town (a housing scheme). In the said permission no such condition was imposed. The respondent M.D.A. on its own cannot put such restriction.
Conversely the learned counsel for the respondents submitted that the petitioners were offered allotment of plot vide letter dated 4th July, 2006 and 3rd June, 2006 subject to the aforementioned condition which was accepted by the petitioners and thereafter they submitted an affidavit that they will be bound by the terms and conditions of the allotment. In this view of the matter husband and wife both are not entitled to the allotment of the plot. He further submitted that the petitioners cannot be allowed plots in violation of Rule 6 of the Disposal of Lands by Development Authorities (Regulation) Rules, 2002.
"6. Ineligibility:-- No person shall be eligible for allotment who--
(a) owns a plot or a house in his name in any area of the Punjab, or
(b) has been allotted a plot or a house in any planned or approved housing scheme in the Punjab and has transferred it to the wife, or as the case may be, husband, or dependent children but has sold it out: or
(c) owns a plot or a house in the name of wife or, as the case may be, husband or dependent children in any area of the Punjab, or
(d) has been convicted of corruption charges, or an enquiry for corruption is pending, or
(e) has been dismissed from Government Service, or
(f) has been convicted for anti-state, anti-social activities and heinous crimes, or
(g) is a minor except destitute.
It is thus clear that the petitioners are not eligible for allotment of any plot under Clause (c).
Under the Law of Contract no contract between the parties came into being. The advertisement in the press is merely an invitation to treat. An offer was made to the petitioners for allotment of the plots subject to the condition that if both husband and wife all successful in the draw of plots only one spouse will be entitled to retain the plot of his or her choice. Condition No. 7 of the offer letter reads as under:--
"SURRENDER OF PLOT
IMPORTANT: If you had submitted more than one application (in one name) for the allotment of plot in this scheme and have been declared successful in balloting for more than one plots, you can retain only one plot of your choice of any size and in this regard you will have to give your choice in writing. Rest of the plots will have to be surrendered to MDA. Similarly, if husband and wife both had applied for a plot in this scheme and the both have been declared successful in the balloting then either of the spouse can retain only one plot of own choice. Rest of the plots will have to be surrendered to MDA and you will have to furnish an affidavit to this effect. If wrong information is provided, the allotment will be cancelled from your name and the amount deposited will be forfeited."
The object of the scheme appears to be to accommodate as many families as possible and not to dole out the plots to the members of the same family if they happen to be lucky in the balloting. The husband and wife being members of the same family are not entitled to more than one plot in their individual capacity. The purpose of the Scheme seems to be reasonable and fair. The petitioners accepted the embargo imposed on them by Clause 7 and filed an affidavit to this effect. They cannot be allowed to have volte face and say that they are not bound by the condition. Their husbands have already disposed of the plots allotted to them. The contention of the learned counsel for the petitioners that no such condition exists in terms approved by the Government of Punjab is devoid of any force. The summary sent to the Chief Minister reveals that the M.D.A. had sought permission to dispose of the residential plots on the precedent of Multan Model Town Phase-III Housing Scheme. The said proposal was approved by the Chief Minister. The existence of such condition in the Multan Model Town Phase-III Housing Scheme is not denied by the learned Counsel. At any rate if the submission of the forms is considered as an offer, the acceptance is subject to a condition. The minds of the parties were not Ad idem. No contractual relationship between the parties came into existence. Even otherwise the enforcement of the contract cannot be ordered through a constitutional petition. I do not find any substance in these petitions, therefore, dismiss the same.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 777
Present: Syed Asghar Haider, J.
MUEEN-UD-DIN and 8 others--Appellants
versus
ADMINISTRATOR GENERAL OF AUQAF, PAKISTAN, ISLAMABAD and another--Respondents
F.A.O. No. 185 of 1991, decided on 17.4.2007.
Words and Phrases--
----Malikan-i-Qabza--Meaning--Proprietor of plot--Person having fully right in his own holding, but who has lost (or never had) any share in profits of the entire village or estate. [P. 780] A
Punjab Waqf Properties Ordinance, 1979 (IV of 1979)--
----S. 2(e)--Auqaf (Federal Control) Act, (XLVI of 1976) S. 11--Question of--Document--Determination of status of property--Deed of dedication--Permanent--Religious or pious purpose--Chief Administrator Auqaf--Notification was issued--Assumed administration control management and maintenance of property and shrine--Aggrieved--No such document on record, the property cannot be termed as waqf because the disputed property was not permanently deducted for a religious or pious purpose--Appeal allowed. [P. 781] B
Syed Zafar Ali Shah, Advocate for Appellants.
Mr. Naghman Haider Zaidi, Advocate for Respondent.
Date of hearing: 17.4.2007.
Judgment
The dispute emanates of parcels of land measuring 68-kanals, 02-marlas located in Mauza Kot Shakir and 291-kanals, 04-marlas, located in Mauza Alyana, Tehsil and District Jhang, purportedly, allotted to Khankah Mauzaz-ud-Din, in-lieu of land in village Sanam, Patiala State, India. The petitioners/appellants allege that the land belongs to them. Hazrat Muazaz-ud-Din, a fore-father of their's, was buried in this land, being his private property, he was a noble and pious person, referred to as a Pir, therefore, his shrine became known as Khankah Hazrat Qazi Muazaz-ud-Din. On 14.6.1976, the Chief Administrator, Auqaf, issued a notification and assumed administration, control, management and maintenance of this property and the shrine. The appellants/petitioners aggrieved thereof, filed a petition under Sec. 11 of the Auqaf (Federal Control) Act, 1976 which after contest, was dismissed by the District Judge, Jhang. Aggrieved thereof, the appellants filed F.A.O. No. 145 of 1981, in this Court, which was allowed and the matter remanded to the District Judge. Thereafter, the District Judge dismissed the petition again. Hence the present appeal by the appellants.
The learned counsel for the appellants contended that there has been mis-reading as well as non-reading of evidence by the Trial Court, the evidence of PW-1 has been completely mis-read, the provisions of Sec. 2 of the Punjab Waqf Property Ordinance 1979 have been mis-interpreted, there is no evidence on record to establish that the property was a dedicated Waqf, Exh. P-l has been ignored, this was the most vital document on record, therefore, the proceedings be set-aside, to fortify his submissions, he relied on the following precedents:- (A.I.R 1924 Lahore 382) "Ali Muhammad Khan versus Ali Akbar Khan and others", (1984 C.L.C 3419) "Chief Administrator or Auqaf, Punjab versus Muhammad Anwar and others", (P.L.D 1973 Lahore 675) "The Chief Administrator of Auqaf West Pakistan, Lahore versus Ilam Din" and (P.L.D 1991 Supreme Court 596) "Chief Administrator of Auqaf, Punjab, Lahore versus Koura alias Karam Ilahi and another".
The learned counsel for the respondents has vociferously defended the impugned judgment and has submitted that there are conclusive findings on Issue No. 4, which squarely establish that the property is a Khankah and not a private property, the revenue record clearly affirms this position.
I have heard the learned counsel for the parties and perused the impugned judgment.
The appellants produced one witness PW-1, the respondents did not produce any oral evidence but tendered in evidence, Exh. R-1 to Exh. R-6. Exh. R-3 to Exh. R-5 were objected to by the appellants and later not considered by the Trial Court.
The foremost and pivotal question for the adjudication is "whether the disputed land is a private property or not". The Trial Court dismissed the petition by referring to, Explanation 5 of Sec. 2, of the Punjab Waqf Properties Ordinance, 1979 and held, that the disputed property is a Khankah, therefore, the appellants cannot claim it, to be a private property.
Sec. 2 (e) of the Punjab Waqf Properties Ordinance, 1979 reads:
"Waqf Property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any waqf such as is described in Section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants".
The ingredients therefore, which determine the status of property as waqf and laid down in this definition are, a permanent dedication and that to for a religious, pious or charitable purpose. If these ingredients are missing or not proved, the property cannot be declared as a Waqf property.
Explanation 5 to Sec. 2 reads:--"Property permanently dedicated for the purpose of a mosque, takia, Khankah, dargah, or other shrine shall be deemed to be waqf property".
This definition further expands the purpose of dedication.
Explanation 2 to Sec. 2 reads:--
"Property allotted in lieu of or in exchange of waqf property Left in India shall be deemed to be waqf property".
It therefore, means that a property which was a waqf property in India and is exchanged in Pakistan, would be treated as a waqf property.
Translated, it means "Khankah being managed by the owners in possession".
The word `Malikan-i-Qabza' has been defined in Law Lexicon. "The expression Malikan-i-Qabza means, proprietor of plot, or holding in his possession; used of a person having full right in his own holding, but who has lost (or never had) any share in the profits of the entire village or estate".
Douie's Settlement Manual (6th Edition) Para 142 defines this as under:--
"A man who owns the land actually in his possession; but has no, share in the common property of the village community".
The Land Revenue Act, by Mian Muhammad Siddique Kamyana defines "Malikan-i-Qabza" as a person or proprietor who holds ownership and possession in his own right.
The Land Revenue Act, by Sardar Muhammad Iqbal Khan Mokal defines "Malikan-i-Qabza"
"A person who owns the land actually in his possession; but has no share in the common property of the village community".
Therefore, Exh. P-1, clearly reflects that property is a Khankah, managed by the owners in possession, Thus, the status of property is private and not waqf.
The disputed land was allotted in exchange of this property left in India. Para 29 of the Land Settlement Act, 1958, mandates that allotment, in exchange of properties left in India, is required to be given, in accordance with the entries in the special Jamabandies. In the present matter, (Exh. P-1). The Trial Court was persuaded to determine the status in accordance with the Jamabandi of the year 1972-73 (Exh. R-1). This document has to be read with Exh. P-1 and cannot be read in isolation, if read together, (as mandated by para 29 of the Settlement Laws), the status of property clearly emerges as private and not waqf, thus Exh. R-1 was mis-read.
The most important document to determine the status of property as waqf, as required by law is, the deed of dedication, by virtue of which, permanent dedication has been made for a religious or pious purpose. There is no such document on record, as such on the touchstone of definition of Sec. 2(e) of the Punjab Waqf Properties Ordinance, 1979, the property cannot be termed as waqf because the disputed property was not permanently dedicated for a religious or pious purpose. I am fortified in this context from (P.L.D. 1991 Supreme Court 596) "Chief Administrator of Auqaf, Punjab, Lahore versus Koura alias Karam Illahi and another".
Therefore, this appeal is allowed, the impugned judgment is set-aside and the petition granted as prayed for. No order as to costs.
(N.F.) Appeal allowed.
PLJ 2007 Lahore 782 (DB)
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman and Mian Hamid Farooq, JJ.
MUHAMMAD NADEEM--Petitioner
versus
DPO etc.--Respondents
I.C.A. No. 107 of 2007, decided on 15.5.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A--Pakistan Penal Code, (V of 1860) S. 406--Registration second FIR--Bar to--Petition dismissed--Writ petition was accepted--Version of respondent--Independent perspective--No bar in registering the second FIR--Held: High Court was right in giving direction for registration of a criminal case. [P. 783] A & B
Mr. Muhammad Tariq Nadeem, Advocate for Petitioner.
Date of hearing: 15.5.2007.
Order
Instant ICA is filed to recall the order dated 23.4.2007 passed by the learned Single Judge in Chamber in W.P. No. 1951/07.
Brief facts succinctly required for the adjudication of the instant appeal are that the appellant is complainant of a criminal case FIR No. 78 dated 24.3.2007 under Section 406 PPC registered at P.S. City Dunyapur. The allegations against Respondent No. 3 in the said FIR are that the appellant got booked hundred bales of cotton worth Rs. 11,04,062/- and the same were loaded in Vehicle No. 2654/LHP owned by Bao Ehsanullah, which was driven by Muhammad Ishfaq. Thereafter on 21.3.2007 at 2.30 a.m. Bao Ehsanullah informed the appellant telephonically that cotton bales have been looted on account of dacoity. The appellant alongwith others reached Dunyapur and on probe, the appellant got suspicion that no dacoity has been committed. The driver Muhammad Ishfaq, Bao Ehsanullah, Muhammad Younis and two unknown helpers have confessed that they with common intention have committed theft of the cotton bales, as such the said case was registered against Respondent No. 3 and others.
On the registration of the above said case, Respondent No. 3 Muhammad Ishfaq driver of the bus filed a petition under Section 22-A Cr.P.C. before the learned Additional Sessions Judge/Justice of Peace Lodhran, seeking registration of a criminal case regarding the occurrence of dacoity. The comments were called and thereafter the petition of the respondent under Section 22-A Cr.P.C. was dismissed vide order dated 2.4.2007. Thereafter the respondent filed W.P. No. 1951/07 and the same was accepted by the learned Single Judge in Chamber vide his order dated 23.4.2007 and the DPO Lodhran was directed to get a case registered on the complaint of Respondent No. 3 and to ensure its fair and impartial investigation. Hence this appeal.
It is contended on behalf of the appellant that FIR No. 78 dated 24.3.2007 under Section 406 PPC has been registered at P.S. City Dunyapur and registration of the second FIR on behalf of the respondent is simply a drama to create a defence and to usurp cotton bales worth Rs. 11,04,062/- and the learned Additional Sessions Judge/Justice of Peace Lodhran was justified in rejecting the petition for registration of a case about the same occurrence, for which an FIR has already been registered; that the learned Single Judge in Chamber, without hearing the appellant, ordered for registration of the case which has caused prejudice to the appellant; that the counter version of Respondent No. 3 could have been easily recorded in the above-said FIR, as such the second FIR cannot be lodged and in this respect reliance is placed upon Habibullah vs. Political Assistant, Dera Ghazi Khan and others (2005 SCMR 951) and that the appellant being a necessary party has not been made a party in the writ petition before the issuance of the direction for registration of the FIR, as such he was condemned unheard and in this respect, reliance is placed upon Sajjad Ahmad vs. SHO P.S. Kunjah and another (PLD 1993 Lahore 18).
We have heard learned counsel for the appellant and perused the impugned order.
The learned Single Judge in Chamber had taken into consideration the version of Respondent No. 3 in an independent perspective. The case of the appellant is that Respondent No. 3 alongwith his co-accused had committed theft of the cotton bales and in order to create defence, the respondent is seeking the registration of the case while the case of the respondent is that a dacoity had taken place in which 10/12 persons were involved, who came on an unnumbered truck and took the respondent and his two helpers in desert place on gun point and looted the goods from the truck of the respondent, as such his case is based on independent set of witnesses and accused persons. Under these circumstances, there is no bar in registering the second FIR, as has been held in Mst. Anwar Begum vs. SHO P.S. Kalri West Karachi and 12 others (PLD 2005 SC 297) and Mrs. Ghanwa Bhutto and another vs. Government of Sindh and another (PLD 1997 Karachi 119).
In view of the above circumstances, we are of the view that the learned Single Judge in Chamber was right in giving direction for registration of a criminal case. Therefore, this appeal is dismissed.
(N.F.) Appeal dismissed.
PLJ 2007 Lahore 784 (DB)
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rahman and Mian Hamid Farooq, JJ.
SYED GHAUS BAKHSH etc.--Appellants
versus
LAND ACQUISITION COLLECTOR etc.--Respondents
F.A.O. No. 115 of 2002, decided on 28.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 33--Provisions--Power of Appellate Court--Appropriate relief to non-appealing parties--Appellate Court has ample power under provisions of O. XLI, R. 33, C.P.C. to grant relief to party who had neither filed appeal nor cross objection--Appeal allowed.
[P. 786] A
Syed Kabeer Mahmood, Advocate for Appellants.
Mr. Zafar Ullah Khan Khakwani, Asst. A.G. for Respondents.
Date of hearing: 28.3.2007.
Judgment
Iqbal Hameed-ur-Rehman, J.--This First Appeal is directed against the order dated 22.7.2002 passed by the learned Senior Civil Judge/executing Court, Rajanpur.
"As a result of the afore-going discussion we have no difficulty in reaching the conclusion that the award rendered by the Land Acquisition Collector is untenable and is accordingly set aside. The appellants are adjudged to be entitled to the compensation of the acquired land at the rate of Rs. 3630.23 per marla for 64 kanals 19.20 marlas in proportionate to their entitlement. The appellants shall be further entitled to 15% compulsory acquisition charges alongwith benefits under Sections 28 and 34 of the Act".
The Land Acquisition Collector acquired 81 kanals 4 marlas of land, out of which 24 kanals of land was owned by the appellants. The appellants after passing of the aforesaid order by this Court, moved an execution application for implementation/payment of the compensation which stood dismissed vide order dated 22.7.2002 passed by the learned Senior Civil Judge/Executing Court, Rajanpur, on the ground that the appellants had not challenged the order before this Court, therefore, they had no locus standi to file the execution petition.
It is contended on behalf of the appellants that the award-in-question was set-aside wholly and not partially in R.F.A. No. 76/1993; that the tenor of the judgment passed in the said appeal suggests by all means that 81 kanals 4 marlas land was acquired by the Land Acquisition Collector and after deduction of 20% area from the total area, it was held that the compensation of the acquired land will be given @ Rs. 3630.23 per marla for 64 kanals 19.20 marlas in proportionate to the entitlement. This being so, 24-kanals of the land acquired was the part of the acquired land measuring 64 kanals 19.20 marlas. Although, the appellants had not filed an appeal but the appeal filed by Masih-ul-Islam had taken into consideration the acquired land of the appellants as well, as such, they are also entitled to the compensation @ Rs. 3630.23 per marla.
The appellants moved an application for execution of the judgment & decree dated 11.10.1995 passed by this Court, for the payment of compensation of the acquired land in accordance with the said Judgment before the Senior Civil Judge, Rajanpur who dismissed the execution petition of the appellants on the ground of it being incompetent and also due to the reason that the appellants had not challenged the order before this Court as well as before the apex Court, they had no locus standi to file the execution petition. Through the instant F.A.O. the appellants call-in-question the said order.
Arguments heard. The order dated 31.7.1993 passed in R.F.A. No. 76/93 has been perused.
Admittedly, this Court had taken into consideration the total area of the acquired land i.e. 81 kanals 4 marlas against which the award had been passed and as per judgment rendered in R.F.A. No. 76/1993, this Court held after deducting 20% area from the total area, that the compensation of the acquired land will be given @ Rs. 3630.23 per marla for 64 kanals 19.20 marlas in proportionate to the entitlement. The land owned by the appellants which was acquired by the Land Acquisition Collector, is a part of the total acquired land, hence, according to the judgment dated 11.10.1995 of this Court, the appellants are also entitled for the compensation determined by this Court in the said R.F.A. No. 76/93 @ Rs. 3630.23 per marla. A decree is binding on the parties and an aggrieved party must seek remedy against it but in view of the Order XLI, Rule 33, C.P.C. it is stipulated as under:
"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection".
The appellate Court is empowered, in the interest of justice, to allow appropriate relief to non-appealing parties where the appeal is with regard to whole of the decree and very wide discretion is given to appellate Court in terms of the Order, XLI Rule 33, C.P.C. in order to prevent the ends of justice from being defeated, as propounded by the august Supreme Court in PLD 1993 Supreme Court 418 (North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another). It has further been held in 1992 CLC 1775 (Muhammad Rafique Khan v. Province of Punjab through Collector Bahawalpur, and another) that, the appellate Court has ample power under provision of Order XLI, Rule 33, C.P.C. to grant relief to party who had neither filed appeal nor cross-objection.
(N.F.) Appeal allowed.
PLJ 2007 Lahore 787
Present: Iqbal Hameed-ur-Rehman, J.
KH. MUKHTAR RASOOL and 5 others--Petitioners
versus
GOVERNMENT OF THE PUNJAB through Secretary Education Civil Secretariat, Lahore and 3 ohers--Respondents
Civil Revision No. 867 of 2007, heard on 1.6.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--O. VII, R. 11--Civil revision--Requirement for adjudication--Entitlement to inherit--Assets--Legal heirs--Controversies--Verdict on merits--Procedure--Civil servant died issuless--Nominated her mother to receive pension and other services benefits--Plaintiff (nominee) filed applications to departments of education but she was refused--Suit for declaration was filed to entitle of pension and other services benefits--Respondent filed an application under O. VII, R. 11 CPC--During pendency of suit, the plaintiff expired--Application and the suit were dismissed by trial Court--Appeal was accepted--Determination of benefits of services--Civil revision--Findings of trial Court--Mandatory requirements of law and procedure--Cannot sustain--Appellate Court had given authority to respondents to decide the matter, yet the matter purely falls within domain of Civil Court to adjudicate and pronounce proper verdict on merits after adopting mandatory procedure envisaged by law--Respondents had relied upon rules and special laws which cover the applicability of all the benefits claimed by plaintiff and implications of law can only be adjudicated upon and determined by Civil Court and by authorities--Held: Blanket cover given by the verdict of appellate Court to authority cannot be maintained--Case remanded back to trial Court to decide the suit on merits after framing of issues and recording of evidence.
[P. 793] A & B
Mr. Ahmad Waheed Khan, Advocate for Petitioners.
Mr. Shahbaz Ahmad Dillon, AAG for Respondents No. 1 and 2.
Mian Israr-ul-Haq, Advocate for Respondent No. 3.
Nemo for Respondent No. 4.
Date of hearing: 1.6.2007.
Judgment
Brief facts succinctly required for the adjudication of this civil revision are that one late Mst. Imtiaz Begum, who was the mother of the deceased Mst. Raheela Arjumand, widow of Respondent No. 3, filed a suit for declaration and permanent injunction, stating that Mst. Raheela Arjumand daughter of Kh. Fazal Rasool has been serving in the Education Department Govt. of the Punjab, Lahore, as a Secondary School Teacher. She died on 7.8.2003 when she was working as a Headmistress in Govt. Shah Din Middle School Hamad Colony Sher Shah Road, Shadbagh, Lahore. Respondent No. 3 Kishwar Qadoos Pal/Defendant No. 3 is husband of Mst. Raheela Arjumand while Petitioner No. 1, Kh. Mukhtar Rasool/Defendant No. 4 and Petitioner No. 2 Kh. Ijaz Rasool/Defendant No. 5 are her brothers and Mst. Ghazala Qayyum Petitioner No. 3/Defendant No. 7, Mst. Shaheen Anwar Petitioner No. 4/Defendant No. 9, Mst. Rukhsana Khawaja Petitioner No. 5/Defendant No. 9 and Mst. Bushra Petitioner No. 6/Defendant No. 10 are her real sisters. While joining the duties late daughter Mst. Raheela Arjumand nominated late Mst. Imtiaz Begum/plaintiff to receive family pension, gratuity, general provident fund, group insurance, outstanding and other benefits payable under the law at her death. The said nomination was made as a mother of late Govt. Employee, as per Civil Services Punjab Rules. After the death of Mst. Raheela Arjumand, the plaintiff Mst. Imtiaz Begum filed a number of applications to Respondent No. 2, Deputy Directress presently D.O. Directorate of Education Lahore Division Lahore but she refused to release all the benefits to the petitioner Mst. Imtiaz Begum, resultantly she filed a suit for declaration and permanent injunction claiming therein that since she was nominee of Mst. Raheela Arjumand, therefore, was entitled to pension and other service benefits. Respondents No. 1 to 3 contested the suit by filing written statements on the grounds that the suit was pre-mature, without any cause of action and the status of the nominee was also disputed and that Respondent No. 3 was entitled to the benefits claimed by the plaintiff Mst. Imtiaz Begum.
"It is settled law that a nominee cannot have the assets of the deceased. A nominee is merely to collect the assets and distribute them among the legal heirs. Where a nominee is also one of the legal heirs, he can retain his share only and the rest is to be distributed. In the case in hand, deceased plaintiff set up her claim against all the other legal heirs. She claimed her exclusive right to the assets of the deceased. By such, she excluded Defendants No. 4 to 10 also. Now the plaintiff has expired. Although Defendants No. 4 to 10 are sons and daughters of the deceased yet plaintiff had no title to the whole of the assets of Mst. Raheela Arjumand. Her share was only being mother and now upon her death, it also stands transferred to the Defendants No. 4 to 10. In this perspective of the matter, to allow the Defendants No. 4 to 10 to be impleaded in the plaint will be a futile exercise. No exclusive rights to the whole of the assets of the deceased Mst. Raheela Arjumand can either be granted to Mst. Imtiaz Begum or Defendants No. 4 to 10.
As a result of the above discussion, assets of the deceased are now to be distributed among her husband Defendant No. 3 and her brothers and sisters Defendants No. 4 to 10."
Against the said order, Respondent No. 3 filed an appeal which was accepted by the learned Additional District Judge, Lahore, vide order dated 4.11.2006 and the order of the learned trial Court dated 19.9.2005 was set aside, directing the concerned authorities to work out benefits in accordance with prevalent rules regarding determination of pension, gratuity, Provident Fund Benevolent Fund and any other benefit which was due to her if she would have been alive to receive herself, these emoluments. The learned Additional District Judge in his order observed as under:
"The declaration was pre-mature and if she was desirous of to prefer any claim she should have filed petition before the concerned authority. It is strange to observe that when the declaration was only to determine the status of nominee claimed by the plaintiff Imtiaz Begum who died during the pendency of trial of the declaratory suit in this respect then the observation recorded by the learned trial Court was not warranted by law ....................................................
The learned counsel for the appellant produced the Punjab Provident Rules regarding determination of due benefits to be received by Respondent/Defendant No. 3 husband of Mst. Raheela Arjumand but it is to be decided by the department as they are supposed to be fully conversant with the Prevalent Rules to this effect. The claimant Imtiaz Begum who had claimed during her life time her sole entitlement as nominated nominee is in no way a hurdle to decide the case for the benefits to be given to deceased/husband etc. This very contention of the learned counsel for the petitioners/appellants has some substance that the husband does come in the term of family".
Again the said order dated 4.11.2006, the petitioners have filed this civil revision.
It is contended by learned counsel for the petitioners that although the learned trial Court had neither framed any issue nor recorded any evidence yet the suit was dismissed and the learned trial Court had not rejected the plaint and even in those circumstances, the petitioners stood satisfied with the observations of the trial Court and they chose not to file any appeal but Respondent No. 3 filed an appeal which was accepted by the learned Appellate Court vide order dated 4.11.2006. That both the Courts below have not disposed of the lis in a legal way, when the parties were at variance both on law and facts the Courts below are left with no option but to frame issues and direct the parties to produce evidence in support of their pleas and render the judgment on merits or in the alternative, the plaint could be rejected under the provisions of Order 7, Rule 11 CPC; that these were the only two options, one was to reject the plaint under Order 7, Rule 11 CPC and the other was to frame issues and decide the suit on merits after recording of their evidence but the same has not been done in the instant case and the findings in the instant case do not meet with the mandatory procedure laid down under the law, therefore, these cannot sustain in the eyes of law that there were controversies (i) whether the deceased Mst. Imtiaz Begum mother of Mst. Raheela Arjumand was a nominee or not? (ii) what would be the effect if she was proved to be nominee? and (iii) whether if she was alive and not having been able to prove herself as nominee, was she entitled to inherit according to Sharia and if she has died, whether her legal heirs were entitled to it and keeping these factors, it was needed for framing of issues so that the matter could be properly adjudicated and finally decided on merits; that the petitioners were satisfied to some extent with the observations of the learned trial Court as some relief had been granted but when the appellate Court came to the conclusion otherwise, the petitioners constrained to file this petition; that the learned appellate Court had absolutely no option except to remand the case to the learned trial Court to proceed according to the law either to frame issues and call upon the parties to produce their evidence before the trial Court and the same be decided on merits or the suit was to be rejected as not being competent; that the judgment of the learned lower appellate Court is highly unusual and totally illegal as the mode of disposal of the lis with the learned appellate Court failed to render any verdict; that in the observations of the learned appellate Court it is stated that "nominee is in no way a hurdle to decide the case for the benefits to be given to deceased husband etc". and the petitioners can be said to have fallen in the category of etc., as such the findings of the learned appellate Court cannot sustain and it had given complete authority to Respondents No. 1 & 2 to determine and decide the case on merits as such the judgment of the learned appellate Court cannot sustain and the same be set aside and the case be remanded to the learned trial Court by restoring the suit of the petitioners and the same be decided on merits after framing of issues and recording of evidence.
On the other hand, learned counsel for the respondents contended that the matter comes within the circumference of special law and the special law is applicable and the same is to prevail in the matter; that after the death of the plaintiff Mst. Imtiaz Begum, the suit had abated; that benevolent fund cannot be said to be inherited property of a Government servant and in this respect reliance is placed upon Federal Government vs. Public-at-large (PLD 1991 SC 731), wherein it has been held that:
Reliance is also placed upon Punjab General Provident Fund Rules, 1978 and according to the said rules, the definition of family means--
"in the case of a female subscriber, the husband and children of a subscriber, and the widow or widows and children of a deceased son of a subscriber".
As such the mother cannot be appointed as a nominee as she does not fall within the definition of the family. Reliance is also placed upon proviso to Rule 1.7 of the said Rules, which is as under--
"if at the time of making the nomination the subscriber has a family the nomination shall not be in favour of any persons other than members of his family".
that payment to be made on the death of subscriber is prescribed under Rule 1.34 of the said Rules, which is as under:
"(i) When the subscriber leaves a family:--
(a) If a nomination made by the subscriber in accordance with the provisions of Rule 1.7 in favour of a member or members of his family subsists, the amount standing to this credit in the Fund or the part thereof to which the nomination relates shall become payable to his nominee or nominees in the proportion specified in the nomination ;
(b) If no such nomination in favour of a member or members of the family of the subscriber subsists, or if such nomination relates only to a part of the amount standing to his credit in the Fund, the whole amount or the part thereof to which the nomination does not relate, as the case may be, shall, notwithstanding any nomination purporting to be in favour of any person or persons other than a member or members of his family, become payable to the members of his family in equal shares".
Accordingly, only the family members, as defined under the rules are entitled to receive the payment and no other person is entitled; that the rules are exhaustive and the authorities are fully competent, as such the findings of the learned appellate Court are fully justifiable and no illegality or irregularity and jurisdictional error has been committed; that the suit was pre-mature and the plaintiff Mst. Imtiaz Begum should have first approached the Respondents No. 1 & 2; that actually the petitioners have not approached this Court with clean hands and have made factual concealments from the Court; that there is no nomination in the name of Mst. Imtiaz Begum available on the record of the department; that the observations of the learned Civil Judge Ist Class, Lahore, cannot sustain and the suit should have been dismissed and in these circumstances, the learned appellate Court rightly accepted the appeal of the respondent and no illegality or irregularity has been committed.
I have heard learned counsel for the parties and perused the impugned orders.
Admittedly, in the suit no issues were framed and no evidence was recorded. The pleadings of the parties were at variance. The deceased Mst. Raheela Arjumand died issueless. Her assets were to be devolved upon her legal heirs according to Sharia. Accordingly, Respondent No. 3 and other legal heirs were entitled to their respective shares in the inheritance in accordance with law, as has been observed in the impugned judgments. Further live controversies were to be decided by the learned trial Court on the questions (i) whether the deceased Mst. Imtaiz Begum mother of Mst. Raheela Arjumand was a nominee or not? (ii) what would be the effect if she was proved to be a nominee? and (iii) whether if she was alive and not having been able to prove herself as a nominee, was she entitled to inherit according to Sharia and if she has died, whether her legal heirs were entitled to it. These facts called for the framing of issues so that the matter could have been adjudicated and finally decided on merits. As such the findings of the learned trial Court do not meet with the mandatory requirements of law and procedure and, therefore, the same cannot sustain. Although it appears from the perusal of the observations of the learned appellate Court that the appellate Court had given authority to Respondents No. 1 & 2 to decide the matter, yet the matter purely falls within the domain of the Civil Court to adjudicate and pronounce proper verdict on merits after following the mandatory procedure envisaged by law. Learned counsel for the respondents has relied upon the rules and the special laws which cover the applicability of all the benefits claimed by the plaintiff and the said implications of the law can only be adjudicated upon and determined by the Civil Court and not by the authorities, therefore, the blanket cover given by the verdict of the appellate Court to the authority cannot be maintained.
In view of the above perspective, this revision petition is accepted, impugned orders are set aside and the case is remanded back to the learned trial Court to decide the suit of the petitioners/plaintiffs which shall be deemed to be pending before it, on merits after framing of the issues and recording of the evidence. The parties are directed to appear before the learned Civil Judge Ist Class, Lahore on 15.6.2007, who shall expeditiously decide the matter. No order as to costs.
(R.A.) Petition accepted.
PLJ 2007 Lahore 793
Present: Tariq Shamim, J.
DOST MUHAMMAD--Petitioners
versus
Mian KAUSAR HUSSAIN and 5 others--Respondents
W.P. No. 1297 of 2007, decided on 10.5.2007.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Proceeding by Anti-Corruption--Quashing of proceeding--Legality--Oral sale--Determination--Validity--Maintainability--Allegations--Resolution of controversial question of fact--Jurisdiction--High Court cannot interfere in inquisitorial exercise being conducted by an investigating agency and secondly determination of the validity or allegations entails resolution of controversial questions of fact which exercise cannot be undertaken by High Court--Civil as well as criminal proceedings can continue side by side as they both relate to different laws and can be instituted simultaneously--Held: Petitioner had not been able to satisfy the Court as to the maintainability of the writ petition--Petition dismissed. [P. 795] A & B
Ch. Muhammad Aslam, Advocate for Petitioner.
Mr. Shahbaz Ahmed Dhillun, Assistant Advocate General for Respondents.
Mr. Muhammad Azam, C.O.
Date of hearing: 10.5.2007.
Order
Through this petition, the petitioner seeks quashing of proceedings initiated by the Anti-Corruption Establishment against the petitioner on an application submitted by Respondent No. 1.
The brief facts of the case are that Respondent No. 1, the nephew of one Muhammad Aslam filed an application with the Anti-Corruption Establishment, Punjab, questioning the legality of Mutation No. 1083 entered on the basis of oral sale in favour of the petitioner, alleging fraud committed by the petitioner with the active connivance of the revenue filed staff. Enquiry was initiated but on withdrawal of the application, the enquiry was dropped. The petitioner has again been summoned by the Additional Director, Anti-Corruption Establishment. Hence this petition.
The learned counsel inter alia contended that the matter stood finally decided by D.D.O. (R), Okara vide order dated 4.10.2005 whereby the disputed mutation stood restored which even otherwise was a civil dispute and that the matter having been finally settled by the revenue authorities, continuation of proceedings by the Anti-Corruption Establishment was unwarrantend.
The learned Assistant Advocate General on instructions from Respondent No. 5-Circle Officer contended that the enquiry had been finalized in which the petitioner was found to be implicated in the crime and, therefore, registration of F.I.R. had been recommended and that even otherwise the writ petition was not maintainable.
I have heard the learned counsel and the learned AAG and have gone through the record.
It has been noticed that the petitioner has called in question the enquiry proceedings initiated by the Anti-Corruption Establishment on the application of Petitioner No. 1 which stands finalized on the basis of material produced before it. This Court, in the first place, cannot interfere in the inquisitorial exercise being conducted by an investigating agency and secondly the determination of the validity or otherwise of the allegations entails resolution of controversial questions of fact which exercise cannot be undertaken by this Court in its constitutional jurisdiction. The argument that since the matter has been finally settled by the revenue authorities and, therefore, the proceedings being conducted by the Anti-Corruption Establishment are unwarranted, has no force. Determination of a dispute by revenue authorities can by no means wipe out the criminal liability of a person, who on the basis of material collected by the investigating agency, is prima facie found to be implicated in the crime. The other argument, that the matter is essentially one of civil nature and, therefore, continuation of proceedings by the investigating agency is uncalled for, is also devoid of any force. Civil as well as criminal proceedings can continue side by side as they both relate to different laws and can be instituted simultaneously. Further, the learned counsel for the petitioner has not been able to satisfy the Court as to the maintainability of the writ petition.
In view of the above, I am not inclined to interfere in the matter. Consequently, the petition stands dismissed.
(N.F.) Petition dismissed.
PLJ 2007 Lahore 795
Present: Syed Sakhi Hussain Bukhari, J.
ALLIED BANK LIMITED--Appellant
versus
REHMATULLAH--Respondent
L.A. No. 284 of 2004, heard on 25.4.2007.
Limitation Act, 1908 (IX of 1908)--
----S. 5--Service Tribunals Acts, (LXX of 1973) S. 2-A--Question of--Condonation of delay--Unexplained delay of 23 days--Appeal accepted--Respondent had not given any explanation for delay in filing the grievance petition--In service matters strict view of limitation should be taken--Even if time spent before Federal Service Tribunal and Supreme Court was excluded, there was no explanation about delay, therefore grievance petition was liable to be dismissed on such score alone. [P. 798] A
Service Tribunal Acts, 1973 (LXX of 1973)--
----S. 2-A--Limitation Act (IX of 1908), S. 5--Condonation of delay--Unexplained--Time barred--Time consumed during litigation--Civil servant was bound to explain each day's delay but respondent had not given any cause--So, there is no ground for condonation of delay--Held: Grievance petition brought by civil servant time-barred and was liable to be dismissed--Appeal accepted. [P. 798] A & B
Mr. Shahid Anwar Bajwa, Advocate for Appellant.
Sheikh Abdul Hameed, Advocate for Respondent.
Date of hearing: 25.4.2007.
Judgment
This appeal is directed against the judgment dated 30.5.2002 passed by learned Presiding Officer Punjab Labour Court No. 5, Sargodha whereby grievance petition brought by respondent was accepted.
Relevant facts for the disposal of this appeal are that respondent was serving with appellant-bank as Cashier and on 13.1.1998 he was served with charge sheet. He filed reply but appellant found his reply unsatisafactory and regular inquiry was conducted against him. After receiving report of inquiry officer, respondent was dismissed from service on 17.7.1999. He served grievance notice and filed grievance petition. The respondent stated that dismissal order is mala fide and inquiry is defective. The appellant mentioned in reply that inquiry was conducted fairly and in accordance with law. The charge against respondent was proved, therefore, competent authority dismissed him from service. Learned trial Court recorded evidence and accepted the grievance petition brought by respondent vide judgment 30.5.2002. Hence this appeal.
I have heard the arguments and perused the record.
As mentioned above, respondent was serving as Cashier with appellant bank but he was dismissed from service vide order dated 17.7.1999. He served grievance notice but did not file grievance petition rather filed appeal before Federal Service Tribunal but the same was returned for presenting before competent forum. The respondent filed CPLA before Hon'ble Supreme Court of Pakistan and the same was dismissed on 9.1.2002. Thereafter respondent filed grievance petition before Labour Court on 1.2.2002. Learned counsel for the appellant submits that grievance petition is time barred. Further submits that respondent had filed application under Section 5 of the Limitation Act for condonation of delay in filing the grievance petition but there is no ground/sufficient cause for condonation of delay in filing the grievance petition. He has argued that learned trial Court has not given any finding on this point, therefore, impugned judgment is liable to be set aside and grievance petition is liable to be dismissed being time barred.
On the other hand learned counsel for the respondent submits that after serving grievance notice, respondent had been prosecuting his appeal before Service Tribunal and after dismissal of the same he had filed appeal before the Hon'ble Supreme Court of Pakistan but the same was dismissed on 9.1.2002 on the ground that in relation to the matters of employees of Allied Bank of Pakistan, after privatization the jurisdiction vests with the learned Labour Court and respondent should approach Labour Court for redressal of his grievance. Further submits that there are sufficient grounds for condonation of delay in filing the grievance petition.
I have considered the submissions made by learned counsel for the parties with care. As mentioned above respondent was dismissed from service on 17.7.1999. However he filed grievance petition on 1.2.2002. So grievance petition is time barred. Admittedly after serving grievance notice, respondent filed appeal before Federal Service Tribunal and on 18.11.2000 the same was returned for presenting before competent forum. The respondent filed appeal thereagainst before Hon'ble Supreme Court of Pakistan but the same was dismissed on 9.1.2002. However as mentioned earlier respondent filed grievance petition on 1.2.2002 which shows that he remained silent for 23 days even after order dated 9.1.2002 passed by Hon'ble Supreme Court. The respondent has filed application for condonation of delay in filing the grievance petition but he has not mentioned any ground for condonation of delay. The application under Section 5 of Limitation Act brought by respondent reads as under:--
"1. That the petitioner has filed the accompanying petition before this Honourable Court, the contents of which be read and considered as an integral part of this application.
Under the circumstances, it is, therefore, most respectfully prayed that delay, if any, in filing the accompanying petition, the same may kindly be condoned in the interest of justice with the applicant and the case of the applicant may please be decided on its own merits."
It is clear from the said application that respondent has not given any explanation for delay in filing the grievance petition. Learned counsel for the appellant submits that in service matters strict view of limitation should be taken. Further submits that even if time spent before Federal Service Tribunal and Hon'ble Supreme Court is excluded, there is no explanation about delay after 9.1.2002, therefore, grievance petition is liable to be dismissed on this score alone. He has relied upon the case of Dr. Anwar Ali Sahto and others Versus Federation of Pakistan and others (PLD 2002 Supreme Court 101) and Almas Ahmad Fiaz Versus Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2007 PLC 64). Admittedly grievance petition is time barred. If time consumed during litigation is excluded even then there is unexplained delay of 23 days. It is well settled that respondent was bound to explain each day's delay but as mentioned above he has not given any reason/sufficient cause. So there is no ground for condonation of delay in filing the grievance petition. In these circumstances I find that grievance petition brought by respondent is time barred and the same is liable to be dismissed on this score alone.
(R.A.) Petition accepted.
PLJ 2007 Lahore 799
Present: Tariq Shamim, J.
NAZIR AHMAD KHAN--Petitioner
versus
TANVEER AHMAD and 3 others--Respondents
W.P. No. 9595 of 2006, heard on 17.4.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & 22-B--Constitution of Pakistan, 1973, Art. 199--Illegal Dispossession Act, 2005, Ss. 3 & 4--Constitutional petition--Dispossessed from land--Illegality--Direction to register case as per law--SHO declined to register a case against accused--Complaint u/Ss. 3 & 4 of Illegal Dispossession Act, 2005 was also dimissed--Assailed--Civil litigation was pending between parties--Complaint does not absolve the petitioner of such duty to mention in private complaint--Petition was dismissed. [P. 801] A
Illegal Dispossession Act, 2005--
----S. 3--Constitution of Pakistan, 1973--Art. 199--Property grabber--Alternative remedy--Availability--Demonstrates--Calculated effort--Illegal Dispossession Act, 2005 was not designed to apply to ordinary cases relating to dispossession from immovable property where the aggrieved person has remedy available to him before civil or revenue Court--Petition was dismissed. [P. 802] B
Mr. Ghulam Nabi Bhatti, Advocate for Petitioner.
Mr. M. Abdullah Ch., Advocate and Mr. Shehbaz Ahmed Dhillon, Asstt. A.G. for Respondent.
Date of hearing: 17.4.2007.
Judgment
Through this petition, the petitioner has challenged the order dated 15.7.2006 passed by the learned Additional Sessions Judge, Ferozewala, whereby the private complaint filed by the petitioner under Sections 3/4 of the Illegal Dispossession Act, 2005 was dismissed.
The brief facts of the case are that the petitioner, who claims to be the owner of 14 Kanals 16 Marlas of land sold to him by Asghar Ali vide Mutation No. 1412 dated 21.12.2004 apprehending that Respondents No. 1 and 2 would disturb his possession over the property, filed a suit for permanent injunction. The learned Civil Judge vide order dated 13.6.2006 granted status quo order to the extent of possession of the petitioner. According to the petitioner, on 14.6.2006, Respondents No. 1 and 2 alongwith some other persons interfered in his lawful possession and dispossessed him from his land. The petitioner filed an application under Sections 22-A and 22-B Cr.P.C. seeking registration of a criminal case against the accused which was disposed of on 20.6.2006 by the learned Additional Sessions Judge, Ferozewala, with a direction to the SHO to look into the complaint of the petitioner and to proceed strictly in accordance with law. The petitioner approached the SHO, who declined to register a case against the accused-respondents and consequently, the petitioner filed a complaint under Sections 3/4 of the Illegal Dispossession Act, 2005 which was dismissed by the learned trial Court vide the order impugned in this petition.
The learned counsel for the petitioner contended that the petitioner was lawful owner of the property in question and had been illegally dispossessed by Respondents No. 1 and 2 who belong to a Qabza Group, that the petitioner was dispossessed during the pendency of the status quo order issued by the learned Civil Court in a suit filed by the petitioner and thus, the respondents have violated the injunctive order issued on 13.6.2006; that the learned trial Court without minutely perusing the record had passed the order haphazardly which was based on conjectures and surmises and that the learned Additional Sessions Judge had wrongly dismissed the complaint on the ground that no date of dispossession was mentioned by the petitioner in the complaint.
Learned counsel appearing on behalf of Respondents No. 1 and 2 contended that the petitioner filed a civil suit in which status quo order had been issued by the Civil Court and if there was any violation of the status quo order the petitioner had the remedy by filing a contempt petition before the learned Court; that this Court was seized of Intra Court Appeal in which allotment in the name of Mst. Rahmi and subsequent sale including the sale in favour of the petitioner had been challenged that the entries of Khasra Girdawari and Jambanadi relied upon by the petitioner were fake and had been got recorded in collusion with the Patwari; that the alleged allotment in the name of Mst. Rahmi was wholly illegal and similarly Mutation No. 672 in the name of Mst. Kishwar Sultana and Mst. Anjum Sultana were illegal and ineffective; that consequently, the sale made by Mst. Kishwar Sultana etc. in favour of Muhammad Arif and Kaneez Begum and subsequent sale by Muhammad Arif through Mutation No. 137 in favour of Asghar Ali was bad and ineffective; that the sale made by Asghar Ali in favour of the petitioner was also illegal and based on fraud which was evident from the fact that the alleged sale in favour of the petitioner took place on 21.12.2004 whereas in the Register Haqdaran for the year 2001/2002 the petitioner had been shown as full owner of the property, therefore, entries of Jamabandi and Khasra Girdawari were false and incorrect regarding which the answering respondents had made an application for correction of entries in the revenue record on which Tehsildar concerned had reported that the entries made in Jamabandi and Khasra Girdawari were bogus; that it was proved beyond any doubt that the father of Respondents No. 1 and 2 had been in possession of the suit land since long and therefore, the allegation of illegal dispossession of the petitioner from the land on 14.6.2006 was based on a false claim. Lastly stated that the petitioner had failed to show or establish that Respondents No. 1 and 2 belong to a Qabza Group or had history of illegally dispossessing people from their properties and keeping in view the observations made in the case of Zahoor Ahmed and 5 others v. The State and 3 others (PLD 2007 Lahore. 231), the private complaint was misconceived and, therefore, not maintainable.
I have heard the learned counsel as well as the learned Assistant Advocate General.
The sale of the land in question took place in favour of Nazir Ahmed petitioner on 21.12.2004 whereas in the Register Haqdaran for the years 2001/2002 the petitioner is shown as full owner of the property. Prima facie the entries in the Jamabandi and Khasra Girdawari relied upon by the petitioner in support of his case appear to be false. The report of the Tehsildar dated 12.7.2006 on an application filed by the respondents for correction of entries in the revenue record, reveals that the father of Respondents No. 1 and 2, namely, Muhammad Akbar has been in possession of the suit land for the last about 25 to 30 years. Even the report submitted by the SHO on the application filed under Sections 22-A and 22-B Cr.P.C. does not advance the case of the petitioner in any manner.
Admittedly civil litigation is pending between the parties and the possession of the property in question is being regulated by the learned Civil Court through an injunctive order. The petitioner in the complaint failed to disclose the date on which he was allegedly dispossessed by Respondents No. 1 and 2. Mere mentioning of the date of dispossession in a petition filed under Sections 22-A and 22-B Cr.P.C. which has no nexus with the complaint, does not absolve the petitioner of his duty to mention the same in the private complaint.
Moreover, the allotment of land in favour of Mst. Rahmi, the original allottee, is sub-judice before the Civil Court as well as in Intra Court Appeal No. 557/2004. It is, therefore, apparent that the matter essentially pertains to possession of the property between two private parties asserting their right of ownership on the basis of competing title documents.
Further, it has been observed that the petitioner has neither mentioned in the private complaint nor produced any evidence before the learned trial Court to the effect that the respondents have the credentials or antecedents of property grabbers/Qabza Group/land mafia. A complaint under Section 3 of the Illegal Dispossession Act, 2005 can be entertained by a Court of Sessions only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim and the same must be in a manner so as to expose the person as a property grabber. Moreover, the Illegal Dispossession Act, 2005 was not designed to apply to ordinary cases relating to dispossession from immovable property where the aggrieved person has remedy available to him before the civil or the revenue Courts. Reliance is placed on the case of Zahoor Ahmed and 5 others v. The State and 3 others (PLD 2007 Lahore 231). The order impugned cannot, by any stretch of imagination, be termed as illegal, unlawful, arbitrary, whimsical or fanciful. It is well reasoned and based on correct appreciation of facts and proper application of law on the point.
Resultantly, this petition has no force which is dismissed. There shall be no order as to costs.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 802
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rahman, J.
GHULAM RASUL--Petitioner
versus
Mst. SIDDAN etc.--Respondents
Civil Revision No. 956 of 1996, heard on 26.4.2007.
Bona Fide Purchaser--
----Agreement to sell--Registration--Application for cancellation--Entitlement to get decree for specific performance--Validity--Consideration with notice--Burden of proof--Insufficient to prove an agreement--Petitioner is not entitled to get a decree for specific performance--Valid agreement to sell--Respondent was going to alienate the property, he should have at least sent a notice to respondent to bring to her knowledge that he had contracted to purchase the suit property and she should not purchase the property in dispute on payment--Petition was dismissed. [Pp. 804 & 805] A
Mr. Khizar Hayat Khan Punian, Advocate for Petitioner.
Mr. Abdul Aziz Khan Jaskani, Advocate for Respondents.
Date of hearing: 26.4.2007.
Judgment
Brief facts leading to this civil revision are that the petitioner/plaintiff filed a suit for specific performance of an agreement against Respondent No. 2, Nazir Ahmad alias Nazir Ahmad Shah/defendant narrating the facts in the plaint that Respondent No. 2/defendant entered into an agreement to sell for land measuring 8 kanals, 19 marlas for a total consideration of Rs. 75,000/-. Rs. 10,000/- were paid as earnest money and vide registered agreement dated 16.1.1989, the rest of the amount of Rs. 65000/- was to be paid till 15.2.1989. The petitioner/plaintiff brought the remaining amount at the office of Sub-Registrar, Muzaffargarh, on 15.2.1989 and moved an application to the Sub-Registrar but Respondent No. 2/defendant did not mark his attendance. At 4.00 p.m. Respondent No. 2/defendant reached and moved an application to the Sub-Registrar for cancellation of the agreement. As the petitioner/plaintiff was ready to perform his part of the agreement by payment of Rs. 65000/-, the Sub Registrar asked Respondent No. 2/defendant to honour the agreement but Respondent No. 2/defendant refused and went away. The suit was contested by Respondent No. 2/defendant by filing a written statement. Issues were framed. The parties adduced their respective evidence. The learned Senior Civil Judge, Muzaffargarh, after hearing arguments of learned counsel for the parties, decreed the suit vide judgment dated 30.11.1995 in favour of the plaintiff/petitioner for a total consideration of Rs. 75,000/-. As Rs. 10,000/- were already paid by the plaintiff/ petitioner, he was directed to pay rest of the consideration amount of Rs. 65,000/- within one month. The respondents/defendants were directed to execute a registered sale-deed with respect to the land in favour of the petitioner/plaintiff, failing which the petitioner/plaintiff would be entitled to get the sale-deed registered through filing an execution petition in the Court. Against the said judgment, Mst. Saddan/Respondent No. 1 filed an appeal against the petitioner/plaintiff and Respondent No. 2 Nazir Ahmad alias Nazeer Ahmad Shah. The same was accepted by the learned Additional District Judge-I Muzaffargarh, vide his judgment dated 10.7.1996 and the judgment dated 30.11.1995 was set aside. Against the said judgment, the petitioner/plaintiff has filed this civil revision.
It is contended on behalf of the petitioner that the judgments of the Courts below are at variance and the learned appellate Court without applying its mind to the evidence on record unlawfully reversed the findings on Issue No. 3 and that the petitioner's agreement to sell dated 16.1.1989 was a registered document and, therefore, it was a public document and the petitioner was not required to give any notice of his transaction to the public and the learned appellate Court has omitted to keep this fact in consideration.
On the other hand, it has been argued on behalf of the respondents that original owner, Nazir Ahmad/Respondent No. 2/defendant has stated in his written statement that vide Mutation No. 728 dated 18.2.1989, he transferred the property in favour of Mst. Saddan Respondent No. 1 and in this regard no question or suggestion was put to Respondent No. 2 Nazir Ahmad and that Respondent No. 1 Mst. Saddan being a bona fide purchaser was entitled to notice by the petitioner but no notice was given to her because at the time of purchase, she had no knowledge about the earlier agreement to sell and, therefore, the learned appellate Court rightly accepted the appeal of Respondent No. 1 Mst. Saddan.
In have heard learned counsel for the parties and perused the impugned judgment.
Admittedly, Respondent No. 1 after the attestation of Mutation No. 728 dated 18.2.1989 Ex. D2 is in possession of the disputed property because the same was handed over to her by Respondent No. 2 Nazeer Ahmad Shah, who was original owner in the revenue record and for this very reason, the impugned mutation was attested in favour of Respondent No. 1. The evidence available on the record also shows that no notice about the transaction between the petitioner and Respondent No. 2 had been given to her. Total amount of sale consideration had been paid by Respondent No. 1 at the time of taking possession of the disputed property which was shown to be free from all incumberances. It has rightly been held that Respondent No. 1 was a bona fide purchaser for consideration without notice. Learned counsel for Respondent No. 1 has drawn the attention of this Court to written statement filed by Nazeer Ahmad/Respondent No. 2 in which he had stated that he had sold the property in dispute to Mst. Saddan Respondent No. 1, therefore, burden of proof was shifted upon the petitioner and rightly dismissed the suit of the petitioner/plaintiff while relying upon Messers Pak. United Housing Enterprise vs. Ramzan and 7 others (1992 CLC 1678). The learned appellant Court further held that the petitioner/plaintiff is not entitled to get decree for specific performance, even though he was in a position to prove that he has purchased the property through a valid agreement to sell. He remained negligent because when it had come to his notice that Respondent No. 2 was further going to alienate the property, he should have at least sent a notice to Respondent No. 1 to bring to her knowledge that he had contracted to purchase the suit property and she should not purchase the property in dispute on payment. But he failed to do so. In view of the same, the learned appellate Court had rightly accepted the appeal and set aside the judgment dated 30.11.1995 passed by the learned trial Court relying upon Messers Pak United Housing Enterprise vs. Ramzan and 7 others (1992 CLC 1678).
In view of the above circumstances, this petition is dismissed.
(N.F.) Petition dismissed.
PLJ 2007 Lahore 805
[Multan Bench Multan]
Present: Mian Hamid Farooq, J.
Mst. KARAM SAWAI alias KARAMO MAI and another--Petitioners
versus
GUL SHER and 3 others--Respondents
C.R. No. 126-D of 2007, heard on 28.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O.XVII, R.3--Limitation Act (IX of 1908), S. 5--Condonation of delay Closed of evidence--Bar of--Various opportunities were provided--Parda Nasheen Lady--Justification--Ignorant from law--Plea was not raised at any stage--Application nor urged before the First Appellate Court--Litigant cannot be allowed to raise altogether a new and different plea before the Appellate Revisional Court, which were not urged before the lower forums--Litigant while seeking condonation of delay has to explain each day's delay in filing the lis--`Pardah Nasheen lady was ignorant of law' was not a justification for condonation of delay--Petition dismissed. [P. 807] A & B
Mr. Rafiq Ahmad Malik, Advocate for Petitioners.
Mr. Muhammad Ramzan Khalid Joyia, Advocate for Respondents.
Date of hearing: 28.3.2007.
Judgment
The petitioners/plaintiffs instituted the suit for declaration, against Respondents No. 1 to 3, wherein Respondent No. 4 was impleaded as proforma defendant, thereby challenging the validity and legality of mutation of Tamleek No. 25 and 2001 dated 29.9.93 and 6.7.2000, respectively. Respondents No. 1 to 3 resisted the suit through the written statement. The learned trial Court framed the issues and called upon the petitioners to produce evidence, however, they despite providing various opportunities failed to produce evidence, therefore, the learned trial Court, while invoking the provisions of Order XVII Rule 3 CPC, closed their evidence and dismissed the suit vide judgment and decree dated 25.7.2006. The petitioners filed time barred appeal together with an application under Section 5 of the Limitation Act for condonation of delay. The learned Addl. District Judge held that the appeal is barred by time and there is no sufficient cause for condonation of delay dismissed the appeal being barred by time, vide impugned judgment and decree dated 23.11.2006, hence the present revision petition.
Learned counsel for the petitioners states that since the matter involved in the suit relates to inheritance and the petitioners were deprived from their respective shares by their real brother, therefore, in these circumstances, there was sufficient cause for condonation of delay and thus the impugned judgment is not sustainable. He has relied upon Mst. Qabal Jan vs. Mst. Habab Jan and 9 others (1992 SCMR 935) and Hyderabad Development Authority through M.D. Civil Centre, Hyderabad Vs. Abdul Majeed and others (PLD 2002 SC 84). Conversely, the learned counsel for the respondent, while supporting the impugned judgment, has submitted that there was no sufficient cause for condonation of delay and that a litigant is under an obligation to explain each day's delay in filing a lis. He has relied upon (PLD 1980 Lahore 171 No case), Muhammad Nazir and others vs. Punjab Province and others (1984 CLC 1386), Muhammad Hussain and others vs. Settlement and Rehabilitation Commissioner and others (1975 SCMR 304), Mst. Hajran vs. Sardar Muhammad (1970 SC 287), and Mahmooda Begum etc. vs. Major Malik Muhammad Ishaq etc. (1986 MLD 806).
I have heard the learned counsel and examined the available record. The learned trial Court dismissed petitioners' suit on 25.7.2006, they applied for certified copy of the said decision on 16.9.2006 when the period for filing appeal had already been expired, copies of the judgment and decree were supplied to them on the same day, while the appeal before the First Appellate Court was filed on 19.9.2006, therefore, petitioners' appeal was barred by time. The petitioners, alongwith the appeal, filed the application under Section 5 of the Limitation Act for condonation of delay on the ground that the petitioners are "Parada Nasheen" ladies and are ignorant from law. It appears appropriate to reproduce para 3 of the application, which reads as follows:--
To my mind, the aforesaid two reasons are neither plausible nor in accordance with the parameters set up under Section 5 of the Limitation Act justifying condonation of delay. It may be noted that the plea of inheritance now pleaded by the learned counsel for the petitioners was neither taken in petitioners' application under Section 5 of the limitation act nor urged before the learned First Appellate Court. It is for the first time before this Court this plea has been raised. It is settled law that a litigant cannot be allowed to raise altogether a new and different pleas before the appellate/revisional Court, which were not urged before the lower forums. Reference can be made to Anwar Ali and others vs. Manzoor Hussain and another (1996 SCMR 1770) and Amir Shah vs. Ziarat Gull (1998 SCMR 593).
4-A. Now coming to the judgments relied upon by the learned counsel for the petitioners. In the case of Mst. Qabal Jan, ibid, the Honourable Supreme Court of Pakistan after finding that the valuable rights of the parties to the inheritance is involved proceeded to examine the case itself to satisfy about correctness and legality of the judgment in exercise of its powers under Section 5 of the Limitation Act read with Article 185(3) of the Constitution of Islamic Republic of Pakistan. The Honourable Supreme Court of Pakistan in such like matters had ample powers to condone delay, while this Court in exercise of its jurisdiction has to confine itself within the four corners of Section 5 of the Limitation Act. Furthermore, the Honourable Supreme Court of Pakistan has exhaustive powers under Supreme Court Rules to condone delay. Additionally, the Honourable Supreme Court of Pakistan, per force of Article 187(I) of the Constitution of Islamic Republic of Pakistan, has unlimited powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. Obviously all such powers are not vested with this Court. Similarly, the case of Hyderabad Development Authority, supra, is of no avail to the petitioners as the Honourable Supreme Court has held that the Court should not be reluctant in condoning delay depending upon the facts of the case in consideration. In the case in hand only cause put forth for condonation of delay, as noted above, does not justify condonation of delay. None of the judgments, relied upon by the learned counsel, is of any avail to the petitioners.
(F.F.) Petition dismissed.
PLJ 2007 Lahore 808
Present: Fazal-e-Miran Chauhan, J.
Mst. SOBIA NAWAB--Petitioner
versus
DIRECTOR GENERAL, POPULATION WELFARE DEPARTMENT, GOVT. OF PUNJAB--Respondents
W.P. No. 6517 of 2006, decided on 17.5.2007.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Educational Institution--Candidate with lesser qualifications were selected--Malafide was attributed to selection committee--Violation of recruitment policy--Assailed--Selection committee was the best judge--Ability of the candidates--Courts would not interfere and thrust their opinion subsequently changing verdict of Selection Committee except when it has been made other than capability of the petitioner or smacks of malafide--Petition was dismissed. [P. 810] A
Ch. Jamil Ahmad Sindhu, Advocate for Petitioner.
Mr. Faisal Ali Qazi, Assistant Advocate General, Punjab alongwith Faiza Rashid Director General Population for Respondents No. 1 and 2.
Nemo for Respondents No. 3 to 6.
Date of hearing: 17.5.2007.
Judgment
The facts giving rise to this constitutional petition are that in response to the advertisement published in Daily Pakistan dated 24.11.2005 for recruitment of FWA (Female) in District Kasur, the petitioner being eligible and fulfilling all the requirements for the said posts applied on 8.6.2006 and appeared in interview alongwith other candidates. The respondents announced the result and final list of selected six female ladies for the said post was out. The petitioner being dissatisfied with the result filed a representation before Respondent
No. 1 voicing her grievance that candidate with lesser qualifications were selected and malafide was attributed to the Selection Committee. Since no reply was given by the respondents, the present writ petition was filed. Report and parawise comments to the writ petition was filed by the respondents.
It is contended by the learned counsel for the petitioner that Respondents No. 3 to 6 where appointed in violation of the recruitment policy. Respondents No. 3 to 6 possess less qualification or less grade as possessed by the petitioner. The number of posts was malafidely reduced to 6 in order to oust the petitioner. The malafide is evident from the fact that the other six posts were re-advertised just after 20 days. Respondents No. 3 to 6 does not possess qualification to be posted. At the time of filing of the writ petition six posts were lying vacant.
Conversely, learned Assistant Advocate General argued that admittedly 12 posts of F.W. A(F) were advertised and after interview six candidates i.e. Respondents No. 3 to 6 were selected by the Selection Committee after holding the interview of the candidates and decision of the recruitment committee cannot be challenged by way of filing constitutional writ petition. The recruitment committee is the best Judge at the given time to evaluate the ability, capability and suitability of a candidate for the post. The petitioner could have applied second time when advertisement of the six posts was made. On merit list petitioner secured 45 marks. By adding 5 marks less given to the petitioner her total comes to 50 and by any stretch of imagination she cannot claim to have attained 75 marks. Further argues that no malafide is specifically pleaded in the writ petition or has been pointed out in the arguments.
The petitioner had an other opportunity to apply again in response to the advertisement published on 16.6.2006. The petitioner cannot claim to reconsider on the basis of her previous interview.
In view of the above, there is no merit in this petition, which is dismissed.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 810
[Multan Bench Multan]
Present: Farrukh Lateef, J.
Mst. SHAMIM AKHTAR and 2 others--Petitioners
versus
MUHAMMAD DIN--Respondent
C.R. No. 305 of 2004, heard on 12.3.3004.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, Rr. 23-A, 24 & 25--Suit for specific performance--Executed--Execution of agreement--Litigation--Land in-question--Prove of--Thumb-impression--Misconceived--Never requested for comparison of thumb-impression--Appellate Court without adverting to reasons and findings recorded by trial Court--Case was remanded for recording evidence on all issues without justification--Appeal was disposed of by appellate Court by ignoring the provisions or O. XLI, Rr. 23-A, 24 & 25 of C.P.C. by remanding the case on a frivolous and irrelevant ground which was not even raised in appeal--Revision disposed of. [P. 813] A, B & C
Mr. Muhammad Ramzan Khalid Joya and Mr. Muhammad Siddique Kamiana, Advocates for Petitioners.
Nemo for Respondent.
Date of hearing: 12.3.2004.
Judgment
Respondent had filed a suit for specific performance of an agreement allegedly executed by Petitioner No. 1 in his favour on 1.2.1979. Petitioner No. 1 filed written statement wherein she denied execution of the said agreement and asserted that litigation regarding land in question was pending between her and Petitioners No. 2 and 3. Later on said petitioners were impleaded in the suit as Defendants No. 2 and 3. They claimed that they were in possession of the land in question as owners by way of exchange from Petitioner No. 1 and a decree regarding that land was passed in their favour by Civil Court. They claimed to be bona-fide transferees.
After framing necessary issues and recording evidence, finding of the trial Court was that respondent could not prove the execution of sale agreement and payment of alleged sale consideration thereunder; it was a fabricated document and that Respondents No. 2 and 3 were bona-fide transferees of the suit land. Suit was resultantly dismissed on 17.5.1987.
On appeal by the respondent, the aforesaid judgment/decree was set aside by the learned appellate Court vide judgment dated 5.3.1988 and the case was remanded to the trial Court with the direction to obtain thumb impression of Petitioner No. 1, to send the same for comparison with her alleged thumb impression on the sale agreement Ex. P.1 and thereafter to decide the case fresh after recording the evidence on all the issues.
Said judgment of the learned appellate Court is assailed in this civil revision by the petitioners (defendants in the suit) on the short ground that the respondent (plaintiff in the suit) had neither applied to the learned trial Court nor before the learned appellate Court for comparison of the thumb impressions of Petitioner No. 1; no request in that regard was made before the appellate Court by any of the parties, hence, there was absolutely no justification for remanding the case on a ground which was never agitated before the appellate Court by any of the parties. It was also submitted that there was no request from any of the parties for producing further evidence on any issue nor it was held by the appellate Court that evidence on any issue was not sufficient, therefore, further evidence was required on such issue.
Petitioner's counsel has been heard. Civil revision and its annexures perused.
A perusal of the judgment of the trial Court shows that case was decided on merits. Judgement of the appellate Court reveals that although some evidence was discussed but no finding was given on any issue. Findings of the trial Court on any of the issues was neither set aside nor reversed. It was also not held that trial Court had omitted any material issue on fact or that evidence on record was not sufficient for deciding the case on merits.
Reason which weighed with the learned appellate Court for remanding the case was that during the proceedings Petitioner No. 1 had moved an application for comparison of her thumb impression with that on the alleged agreement and on the register of petition writer; said application was disposed of by trial Court with the observation that she may agitate it after conclusion of the evidence but subsequently she appears to have changed her mind as was evident from her cross-examination that she was not prepared to get her thumb impression compared with her alleged thumb impression on sale agreement Ex. P. 1.
Annexure-E was the application which was submitted by Petitioner No. 1 on 5.4.1981 for comparison of her thumb impression with her alleged thumb impression on the register of petition writer. Comparison of her thumb impression with her alleged thumb impression on the sale agreement was not requested in this application, as was incorrectly observed by the learned appellate Court in the impugned judgment.
About six years thereafter i.e. 25.1.1987, statement of petition writer was recorded as DW.1 wherein he said that sale agreement Ex. P.1 was scribed by him; during cross examination he admitted that he had written the same on the dictation of Muhammad Din (respondent); that Mst. Shamim Akhtar Petitioner No. 1 was not present and had not affixed her thumb impression on the said agreement in his presence and that sale agreement Ex. P.1 was taken away by Muhammad Din respondent on the pretext that he would bring it back after showing it to his Advocate but he did not turn up thereafter. He also said that entry of that agreement in his register at Sr. No. 116 does contain thumb impression of Mst. Shamim Akhtar-Petitioner No. 1.
Statement of Petitioner No. 1 Mst. Shamim Akhtar was also recorded on the same day by the trial Court wherein she had said during cross examination that she was not willing to get her thumb impression compared with her alleged thumb impression on the agreement deed.
Learned appellate Court was therefore misconceived in observing that Petitioner No. 1 had subsequently changed her mind inasmuch as said respondent in her application had never requested for comparison of her alleged thumb impression on the sale agreement but specifically requested for comparison with her alleged thumb impression on the register of petition writer only.
The petitioner writer had deposed before the trial Court that entry regarding sale agreement Ex. P.1 at Sr. No. 116 of his register does not bear thumb impression of the Petitioner No. 1, hence, aforesaid application moved by the Petitioner No. 1 had become infructuous on account of non-availability of her thumb impression on the register of petition writer.
Decision was given by the trial Court on all the issues. The learned appellate Court without adverting to the reasons and findings recorded by the trial Court and without setting aside the findings on any issue, had set-aside the judgment and decree and had remanded the case for recording evidence on all the issues without any justification.
The appeal was disposed of by the learned appellate Court by ignoring the provisions or Order 41 Rules 23-A, 24 and 25 of the C.P.C. by remanding the case on a frivolous and irrelevant ground which was not even raised in appeal by any of the parties. It had, therefore, acted in the exercise of its jurisdiction illegally and with material irregularity.
The impugned judgment is accordingly set-aside. The appeal would be deemed as pending before the learned Additional District Judge who shall disposed of the same in accordance with law within a period of six months from the date of receipt of this judgment after notice to the parties concerned.
Civil revision is accordingly disposed of.
(N.F.) Revision disposed of.
PLJ 2007 Lahore 814
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rahman, J.
M. MUSA--Petitioner
versus
STATE etc.--Respondents
W.P. No. 828 of 2007, heard on 20.3.2007.
Offence of Zina (Enforcement o Hudood) Ordinance, (VII of 1979)--
----S. 2-A--Puberty--Nikah--Valid--Adult at the time of marriage--Marriage by a woman on attaining puberty is valid--Sui juris muslim female can enter into valid nikah. [P. 817] A
Constitution of Pakistan, 1973--
----Art. 199--Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), S.11--Quashment of F.I.R.--Star prosecution witness--Nikah got registered--Constitutional petition--Validity of nikahnama--Appreciation of evidence--Star prosecution witness stated that she is a sui juris and major and of her own free will and consent, she had contracted marriage with petitioner and nikah has been solemnized according to sharia and also not registered--No offence has been committed by the petitioner--Case against petitioner is concocted and fabricated--Law does not permit a stranger to challenge the validity of Nikahnama when its contents are admitted by husband and wife--F.I.R. was quashed. [P. 817] B & D
Muhammadan Law--
----S. 251--Attained--Puberty--Validity--Contract of marriage--13/4 years old age--Physical appearance--Every Muhammadan of sound mind, who has attained property may enter into a valid contract of marriage. [P. 817] C
Nikah--
----Consent of Wali--Nikah of an adult girl is not invalid for want of permission of wali and further marriage was not invalid on account of alleged absence the consent of wali. [P. 818] E
Syed Shahbaz Ali Rizvi, Advocate for Petitioner.
M/s Tahir Mehmood and Rana Muhammad Nazir Saeed, Advocates for Complainant.
Mr. Muhammad Iqbal, Inspector/SHO and Wali Muhammad Sial, ASI in person.
Date of hearing: 20.3.2007.
Judgment
The petitioner Muhammad Musa through this Constitutional petition, seeks quashment of FIR No. 285 dated 14.10.2006 registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at P.S. Choti D.G. Khan.
Briefly stated the prosecution case as contained in the FIR is that Mst. Farhana Azam, daughter of the complainant, namely, Muhammad Azam, aged about 13/14 years, is a student of 10th class. Muhammad Musa Raza (petitioner) was engaged as her tutor who had been giving tution for five/six years. The complainant had family terms with the petitioner. In the absence of the complainant and his family, the petitioner Muhammad Musa had developed illicit relations with daughter of the complainant, namely, Mst. Farhana Azam. On 14.10.2006 at 10.30 a.m., Mst. Kalsoom daughter of Ghulam Haider, Kubra Mai wife of Riaz Hussain, Fida Hussain, uncle of the petitioner Muhammad Musa Raza, and the petitioner Muhammad Musa Raza came at the house of the complainant in a white car. At that time, Muhammad Idress a Muhammad Aziz were present in the house along with family. The petitioner Muhammad Musa Raza and others told that they have to go to Chah Mazarawla to see Ghulam Mustafa, son in law of the complainant and let Mst. Farhana Azam accompany them. They left after taking Mst. Farhana Azam. The complainant and his family waited for them a lot but they did not return. The complainant along with the witnesses went to Ghulam Mustafa, his son in law, who told that they had not come to his house. When the complainant and the witnesses were coming back, Javed and Mumtaz met them in the way and told that Fida Hussain, Muhammad Musa Raza (petitioner) along with Mst. Kalsoom, Kubra Mai and Mst. Farhana Azam were going on Mamuri Road by car. The said persons told that they were going to Dera Ghazi Khan. The complainant and the witnesses went to the house of Muhammad Musa Raza petitioner but they were not there. The petitioner Muhammad Musa Raza along with others had abducted the unmarried daughter of the complainant, namely, Mst. Farhana Azam, for the commission of Zina.
It is contended on behalf of the petitioner that the petitioner got married to Mst. Farhana Azam, daughter of Respondent No. 3, with her freewill and consent according to Sharia and nikah was duly registered; that parents and other relatives of Mst. Farhana Azam, wife of the petitioner, became annoyed with the said marriage and therefore, Respondent No. 3, father of Mst. Farhana Azam has got registered this false case against the petitioner; that the petitioner while contracting marriage with Mst. Farhana Azam has not committed any offence; that Mst. Farhana Azam had also got recorded her statement under Section 164 Cr.P.C. before the Magistrate at Islamabad, wherein she had stated that she is the legally wedded wife of the petitioner and requested that she be lodged in Dar ul Aman as her parents and relatives are extending threats of her murder, therefore, she was lodged in Dar ul Aman Rawalpindi by the order of the Magistrate; that on the filing of the instant petition, Mst. Farhana Azam was summoned and brought before this Court from Dar ul Aman Rawalpindi and she appeared and has in categorical terms stated that no one had abducted her, she of her own free-will and consent and being sui juris has contracted marriage with the petitioner Muhammad Musa Raza and according to the Injunctions of Islam and her nikah was duly registered on 18.2.2004, Respondent No. 3, who is her father, being annoyed by her marriage with the petitioner has got registered a completely false and fabricated case against the petitioner. Learned counsel for the petitioner further contends that Mst. Farhana Azam had attained puberty, therefore, she was adult at the time of marriage and under Section 2-A of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, marriage by a woman on attaining puberty is valid and in this behalf reliance is placed upon Mst. Hajra Khatoon and another vs. Station House Officer, Police Station Fateh Jhang, District Attock and 2 others (PLD 2005 Lahore 316); that consent of Wali is not required and a sui juris Muslim female can enter into valid nikah/marriage of her own freewill and the marriage is not invalid on account of the absence of consent of Wali and in this respect reliance is placed upon Hafiz Abdul Waheed vs. Mrs. Asma Jehangir and another (PLD 2004 SC 219); that even under Section 251 of Muhammedan Law, every Muhammedan of sound mind, who has attained puberty, may enter into a contract of marriage. That the witnesses of the Nikah had been later on won over by the complainant and, therefore, the affidavits denying the factum of Nikah it has no legal value as it has been held in Mirza Allah Ditta alias Mirza Javed Akhtar vs. Mst. Amna Bibi and another (2004 YLR 239) that where both man and woman admit factum of Nikah and solemnizing marriage with each other, then requirement of producing two witnesses under the law is not mandatory and the presumption of truth would be attached to the Nikah which is acknowledged by both the spouses.
On other hand, it has been argued on behalf of the complainant that Mst. Farhana Azam is a minor girl and she is of the age of 13/14 years and her nikah had been illegal got registered by declaring her to be of 16 years; that the witnesses of the Nikah have sworn affidavits that they have no knowledge about the nikah; that according to the school leaving certificate issued by Govt. Middle School Thatha Gabulan Tehsil & District D.G. Khan, Mst. Farhana Azam was born on 10.10.1992 and, therefore, she had not attained puberty at the time of marriage, as has been held in Mushtaq Ahmad vs. Mirza Muhammad Amin and another (PLD 1962 (W.P.) Karachi 442) that according to Muslim Law the minority of a male or female terminates when he or she attains puberty and puberty is presumed on the completion of the 15th years according to the law by which the parties are governed. In this respect reliance is also placed upon Abdul Razak vs. Muhammad Muller (PLD 1956 Karachi 454); that the marriage of Mst. Farhana Azam with the petitioner without the Wali is invalid and that in these circumstances no question for quashing of the FIR arises.
I have heard learned counsel for the parties and have gone through the record.
The star prosecution witness in the case is Mst. Farhana Azam. She was summoned from Dar-ul-Aman Rawalpindi by this Court. She appeared in Court. By her appearance, she seems to have attained puberty and is full grown up lady. She in categorical terms stated before this Court that she is a sui juris and major and of her own free-will and consent, she has contracted marriage with the petitioner and nikah has been solemnized according to Sharia and also got registered. No offence has been committed by the petitioner. The case against the petitioner is concocted and fabricated which was registered by father of Mst. Farhana Azam/Respondent No. 3 being annoyed due to the marriage.
The age of Mst. Farhana Azam as stated in the FIR is 13/14 years out her physical appearance belies the same. She is a full grown up lady and has certainly attained puberty and according to Muhammedan Law Section 251, every Muhammedan of sound mind, who has attained puberty may enter into a valid contract of marriage. Reliance is placed upon Mst. Hajra Khatoon and another vs. Station House Officer, Police Station Fateh Jang, District Attack and 2 others (PLD 2005 Lahore 316).
The contents of the Nikahnama have been admitted by the petitioner as well as Mst. Farhana Azam. Statement of the wife of the petitioner/accused, namely, Mst. Farhana Azam, and the Nikahanma belies the prosecution story as narrated in the FIR which could not be believed. The petitioner/accused has proved to have lawfully married to Mst. Farhana Azam, daughter of the complainant. The law does not permit a stranger to challenge the validity of a Nikahnama when its contents are admitted by the husband and his wife. In this respect, reliance is placed upon Dr. Ghulam Mustafa Solangi and 5 others vs. The State (2005 P.Cr.L.J. 1638). Moreover, the nikah of an adult girl is not invalid for want of permission of Wali and further marriage is not invalid on account of the alleged absence the consent of Wali. Reliance in this behalf is placed upon Muhammad Imtiaz and another vs. The State (PLD 1981 FSC 308) and Hafiz Abdul Waheed vs. Mrs. Asma Jahangir and another (PLD 2004 SC 21).
In view of the above circumstances, this writ petition is accepted and FIR No. 285 dated 14.10.2006 registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at P.S. Choti D.G. Khan is quashed.
Before parting with the judgment, Mst. Farhana Azam, wife of the petitioner, has repeatedly requested that she be sent back to Dar-ul-Aman Rawalpindi, where she has been inducted under the orders of the Ist Class Magistrate Rawalpindi on her application. Therefore, request of Mst. Farhana Azam being genuine is acceded to and Muhammad Iqbal Inspector/SHO, Wali Muhammad Sial ASI and Kausar Parveen No. 375/C who have brought Mst. Farhana Azam from Dar-ul-Aman, Multan, are directed to safely conduct Mst. Farhana Azam and lodge her at Dar-ul-Aman Rawalpindi.
(N.F.) FIR quashed.
PLJ 2007 Lahore 818
Present: Syed Sakhi Hussain Bukhari, J.
ALLIED BANK LIMITED--Appellant
versus
M. IQBAL SIPRA--Respondent
L.A. No. 82 of 2005, heard on 25.4.2007.
Grievance notice--
----Service matter--Respondent was serving with appellant as accountant and he was served with charge sheet--Grievance petition--Charge sheet was proved--Dismissal from service--Grievance petition was accepted--Assailed--Validity--Appellate authority--Appellate authority is always considered to be distinct and different from appointing authority--There was no valid grievance notice--Grievance petition brought by respondent was liable to be dismissed--Appeal was accepted. [P. 819] A
Mr. Shahid Anwar Bajwa, Advocate for Appellant.
Mr. Mahmood Ahmad Qazi, Advocate for Respondent.
Date of hearing: 25.4.2007.
Judgment
This appeal is directed against the judgment dated 30.5.2002 passed by learned Presiding Officer Punjab Labour Court No. 5, Sargodha whereby grievance petition brought by respondent was accepted.
Relevant facts for the disposal of this appeal are that respondent was serving with appellant-bank as Accountant and on 13.1.1998 he was served with charge sheet. He filed reply but appellant found his reply unsatisfactory and regular inquiry was conducted against him. After receiving report of inquiry officer, respondent was dismissed from service on 17.7.1999. He served grievance notice and filed grievance petition. The respondent stated that dismissed order is mala fide and that inquiry is defective. The appellant mentioned in reply that respondent is not a workman, as he was serving as Grade-III Officer of the Bank. The appellant further mentioned that inquiry was conducted fairly and in accordance with law. The charge against respondent was proved, therefore, competent authority dismissed him from service. Learned trial Court recorded evidence and accepted the grievance petition brought by respondent vide judgment 30.5.2002. Hence this appeal.
I have heard the arguments and perused the record.
As mentioned above Muhammad Iqbal Sipra, respondent was serving as Accountant with appellant bank but he was dismissed from service vide order dated 17.7.1999. He served grievance notice and filed grievance petition. The appellant contested the case. Learned trial Court recorded evidence and accepted the grievance petition. Learned counsel for the appellant submits that respondent had not served grievance notice upon his employer rather he had served grievance notice upon appellate authority (Board of Directors through President Allied Bank of Pakistan, Head Officer Karachi) and he had filed appeal also before the said Board, therefore, grievance petition is liable to be dismissed on this score alone. He has relied upon the case of Khushal Khan Versus Muslim Commercial Bank Ltd. and others (2002 SCMR 943) and Allied Bank of Pakistan Limited through Attorneys and 2 others Versus Muhammad Bashir Khan (2006 PLC 39). The record shows that respondent served grievance notice (Ex. P.1) upon Board of Directors President Allied Bank of Pakistan, Head Office Karachi. However dismissal order (Ex. P.4) was passed by Secretary Disciplinary Action Committee Central Office, Karachi. The respondent had filed appeal (Ex. P.14) before Board of Directors through President Allied Bank of Pakistan, Head Office Karachi. So it is clear that respondent was aware about the fact that Board of Directors is the Appellate Authority but he served grievance notice also upon the Board of Directors. As such he has not served grievance notice upon employer (appointing authority). The Appellate Authority is always considered to be distinct and different from Appointing Authority. As such there is no valid grievance notice. Reliance can be placed on the case of Khushal Khan Versus Muslim Commercial Bank Ltd. and others (2002 SCMR 943) and Allied Bank of Pakistan Limited through Attorneys and 2 others Versus Muhammad Bashir Khan (2006 PLC 39). So in the circumstances of the case, I find that grievance petition brought by respondent is liable to be dismissed.
The upshot of the above discussion is that this appeal is accepted, impugned judgment is set aside and grievance petition brought by respondent is accordingly dismissed. No order as to costs.
(R.A.) Appeal accepted.
PLJ 2007 Lahore 820 (DB)
[Multan Bench Multan]
Present: Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ.
MANZOOR AHMAD--Appellant
versus
DIG, etc.--Respondents
I.C.A. No. 21 of 2005, decided on 23.4.2007.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Criminal Procedure Code, (V of 1898)--S. 22-A--Determination of the appeal--Electric motor of petitioner had been stolen and petitioner had a great apprehension in his mind--No prima facie cogent evidence or clue--Involvement of respondents had been given in his complaint nor in his subsequent petition u/S. 22-A Cr.P.C. nor in petition--Held: Mere apprehension in mind of appellant did not make a person liable for any cognizable offence--I.C.A. was dismissed.
[P. 821] A
Sardar Tariq Sher Khan, Advocate for Appellant.
Nemo for the Respondents despite service, as such they are proceeded ex-parte.
Date of hearing: 23.4.2007.
Order
Mian Hamid Farooq, J.--Through the instant Intra Court Appeal under Section 3 of the Law Reforms Ordinance, the appellant seeks setting aside of the order dated 14.1.2005 passed by the learned Single Judge in Chamber whereby he dismissed the writ petition Bearing No. 244/05.
Brief facts succinctly required for the determination of this appeal are that the appellant constructed a residential house and got connection for drinking water from Municipal Committee D.G. Khan and for this purpose he installed an electric motor to fetch the drinking water. On 3.10.2004, when the appellant came back after morning walk, he switched on the electric motor but the same did not work. The appellant found the electric motor missing from its place. The appellant has a great apprehension that the electric motor of the appellant has been taken away with the abetment of Respondents No. 4 & 5 as he has a political rivalry against Respondents No. 4 & 5 and he being a worker of the Pakistan Peoples Party contested the elections against father of Respondent No. 4 Sardar Ahmad Khan Laghari and he defeated him.
The appellant approached Respondent No. 3 SHO P.S. Civil Lines D.G. Khan but he declined to register a criminal case. Thereafter, he filed a petition under Section 22-A Cr.P.C., wherein comments of Respondent No. 3 were called by the learned Additional Sessions Judge, D.G. Khan/Justice of peace vide order dated 13.12.2004. Abdul Hameed ASI P.S. Civil Lines D.G. Khan submitted his report. The learned Additional Sessions Judge, D.G. Khan after perusing the report of the ASI, disposed of the petition, holding that political enmity is admitted between the parties as such he was not inclined to issue any direction for registration of case. However, the learned Additional Sessions Judge further observed that the appellant has an alternate remedy by way of filing a complaint, if so advised. Thereafter the appellant approached this Court by filing W.P. No. 244/05, seeking a direction for the registration of a criminal case. The learned Single Judge in Chamber dismissed the said writ petition vide order dated 14.1.2005, holding that "there is no doubt that it contains allegation of theft, but the involvement of Sardar Farooq Ahmad Khan Laghari and his son Sardar Jamal Khan Laghari appears to be without any substance and the complaint appears to have been instituted with mala fide intention". The learned Single Judge in Chamber further observed that" this Court in the exercise of constitutional jurisdiction would not encourage such type of litigation and was of the view that the appellant has not come to the Court with clean hands.
We have heard learned counsel for the appellant and perused the impugned order.
The learned Single Judge in Chamber after careful examination of the documents and taking into consideration the allegations of the appellant, had rightly dismissed the constitutional petition. In para 4 of the writ petition, the appellant has stated that "admittedly the electric motor of the petitioner has been stolen away and the petitioner has a great apprehension in his mind that Respondents No. 5 & 6 have abetted the offence and theft has been committed with their connivance". Apart from the said apprehension in his mind, no prima facie cogent evidence or clue regarding the involvement of Respondents No. 4 & 5 had been given in his complaint nor in his subsequent petition under Section 22-A Cr.P.C. nor in the writ petition. Mere apprehension in the mind of the appellant does not make a person liable for any cognizable offence. Therefore, we are not inclined to interfere in the impugned order. Resultantly, this Intra Court Appeal is dismissed.
(R.A.) I.C.A. dismissed.
PLJ 2007 Lahore 822 (DB)
[Multan Bench Multan]
Present: Muhammad Sayed Akhtar and Muhammad Jahangir Arshad, JJ.
MUHAMMAD AFZAL--Petitioner
versus
BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through its Vice-Chancellor and 2 others--Respondents
W.P. No. 424 of 2007, decided 13.2.2007.
Educational Institution--
----Constitution of Pakistan, 1973, Art. 199--Regulation 18--Violative of--Entitlement to appear in annual examination without clearing back log of the failing papers--Disentitlement had been declared--Validity--High Court cannot come to help of the petitioner merely because he is carrying four papers of lower class which include a paper of first year and under Regulation--Held: Unless he clears all the papers of first year he cannot be allowed to appear in final year examination--Petition was dismissed. [P. 824] A
Mr. Muhammad Amir Bhatti, Advocate for Petitioner.
Mr. Muhammad Tariq Rajwana, Advocate for Respondents.
Date of hearing: 13.2.2007.
Order
This petition has been filed with the following relief:--
"It is therefore respectfully prayed that act of the respondents in denying the petitioner to appear in the forthcoming final year examination may kindly be declared to be mala fide, illegal without lawful authority and of no legal effect.
It is further prayed that the petitioner may graciously be allowed to appear in the final year examination viz-a-viz the failing papers without any let or hindrance in the interest of justice."
"In view of the above it is humbly prayed that this petition may kindly be accepted and respondents may kindly be directed to allow the petitioners to appear in the final terms of examination of Civil & Electrical Engineering which is being held in the first week of December, 2005."
The said writ petition, however was dismissed by this Court on 29.11.2005 and I.C.A. No. 254/2005 was also rejected by a learned Division Bench of this Court on 23.5.2006 holding that appellant (present petitioner) was not at all entitled to appear in the annual examination without clearing the said back log of the failing papers. On 6.2.2007 the learned Law Officer was directed to seek instructions from the respondents. Today, Mr. Muhammad Tariq Rajwana, Advocate has appeared on behalf of the respondent University and has filed report and parawise comments.
It is argued by learned counsel for the petitioner that since in the earlier round of litigation the prayer of one of the appellants in I.C.A. No. 254/2005 namely Shahid Hussain was allowed and relief was granted to him despite the fact that he had nine failing subjects, whereas, requirement under Regulation-18 was that only such candidate could be allowed to appear in the final year examination who carries eight papers of the lower class, but the petitioner at present is only carrying four failed papers of lower class, therefore, the petitioner at this stage be given a chance to appear in the final examination.
On the other hand, learned counsel for the respondent University has argued that firstly after dismissal of his writ petition as well as the I.C.A. the petitioner cannot re-agitate the matter and secondly that in the earlier round of litigation it was expressly held by the learned I.C.A. bench that unless petitioner cleared all his papers of first year he could not be allowed to sit in the final year examination and since the petitioner is still failing in one paper of first year, therefore, despite carrying four failed papers of lower class, he could neither be allowed to sit in the final year examination nor could be allowed any relief by this Court under Regulation-18.
We have considered the arguments of learned counsel for the parties and have also gone through the judgment earlier recorded by this Court in the writ petition as well as in the I.C.A. The learned Division Bench while dismissing I.C.A. No. 254/2005 made the following observations:--
"We find that Appellants No. 1, 3 (present petitioner) and 5 are not at all entitled to appear in the annual examination without clearing the said back log of the failing appears."
However, the learned I.C.A. bench allowed relief to Shahid Hussain one of the appellant in the said I.C.A. on the ground that he had passed all the papers of the first year examination, therefore, he was held deserving for a chance to appear in the annual examination. In the presence of expressed findings by the learned Division Bench declaring the petitioner disentitled from appearing in the final year examination for the reason that he failed in first year's one paper and without clearing the said back log of failing papers, we cannot come to the help of the petitioner merely because he is carrying four papers of the lower class which include a paper of the first year and under the said Regulation unless he clears all the appears of first year he cannot be allowed to appear in the final year examination in terms of Regulation-18 and in case we decide to give such relief to the petitioner the same would not only be violative of said Regulation but would also amount to sitting over the earlier decision of learned Division Bench dismissing I.C.A. No. 254/2005 which otherwise has attained finality. We therefore, find no force in this petition which is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 824
Present: Muhammad Muzammal Khan, J.
SHANA and 4 others--Petitioners
versus
MEMBER BOARD OF REVENUE PUNJAB, LAHORE and 12 others--Respondents
W.P. No. 9079 of 2006, decided on 26.4.2007.
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----Ss. 135 & 161--Constitution of Pakistan, 1973--Art. 199--Jurisdiction Application praying partition of joint land--Partition was approved as proposed by the parties--Appeal was dismissed--Another appeal was filed, and concealed the fact of dismissal of earlier appeal, which was dismissed--Revision Petition also dismissed by D.O.R.--Assailed--Provisions--Held: Collector E.D.O.(R) could examine the legality or order passed by Tehsildar only once and subsequent appeal filed before D.O.R. through concealment of earlier decision was not competent. [P. 826] A
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 162--Constitution of Pakistan, 1973--Art. 199--Lapse of two years and three months--Limitation of 30 days--Barred by--Jurisdiction--Petitioners in subsequent appeal before D.O.R. had challenged the order by filing the appeal after lapse of about two years and three months which was barred by limitation of 30 days provided by S. 162 of Land Revenue Act, 1967--Whereby petitioner's appeal was dismissed by Distt. Collector was not further challenged and had finality hence the Court working in revenue hierarchy correctly declined interference without committing any error of law and facts--Held: No case for interference in Constitutional jurisdiction of High Court was made out--Petition was dismissed. [P. 826] B
Mr. Fakhar-uz-Zaman Tarar, Advocate for Petitioner.
Ms. Sumera Afzal, Advocate for Original Counsel for Respondents.
Mr. Mohsin Raza Gondal, Advocate
Date of hearing: 26.4.2007.
Order
Instant constitutional petition assailed the orders dated 14.12.1999, 4.1.2003, 12.8.2003, 6.4.2006 and 6.7.2006 passed by Respondents No. 1 to 4, to be declared illegal, void and of no legal consequence, whereby joint holding was partitioned and the same was maintained by the officials/Courts in revenue hierarchy.
Precisely, relevant facts are that Respondents No. 5 to 7 filed an application under Section 135 of the Land Revenue Act, 1967 praying partition of joint land measuring 262 kanals 2 Marlas situated in revenue estate of village Jia District Mandi Baha-ud-Din, duly detailed in the application before Tehsildar/Assistant Collector Grade-I. Petitioners being respondents in the application seeking partition consented to the partition and the said Court approved mode of partition of land proposed by the parties. Tehsildar/A.C-I cognizant of the matter, accepted the application of Respondents No. 5 to 7 on 4.12.1999 and directed the Halqa Patwari/Girdawari to prepare "Naqsha Jaat" etc.
Petitioners were not satisfied with the "Naqsha Taqseem" and consequently, filed an appeal before the District Collector, which was dismissed on 8.3.2001. Petitioners, thereafter by concealment of dismissal of their earlier appeal, on 1.6.2002 filed another appeal before the Collector/D.O. (R) and the same was again dismissed on 4.11.2003. Petitioners then filed a revision petition before the E.D.O. (R) challenging dismissal of their appeal vide order dated 4.1.2003 but without any success, as the same was also dismissed on 12.8.2003. They then challenged revisional order before the learned Member, Board of Revenue by maintaining, ROR No. 1620 of 2003 which also met the same fate of dismissal on 6.4.2006. Petitioner's review petition was also declined by the learned Member, Board of Revenue on 6.7.2006. They have now filed instant constitutional petition, with the relief noted above. Private respondents in response to notice by this Court have appeared and were represented through their respective counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Under the provisions of Section 161 of the Land Revenue Act, 1967, the Collector/D.O. (R) could examine the legality or otherwise of the order dated 4.12.1999 passed by Tehsildar/AC-I, only once and the subsequent appeal filed before the Collector/D.O.(R) through concealment of earlier decision dated 8.3.2001, was not competent. Petitioners in their subsequent appeal before the D.O.(R) had challenged the same order dated 14.12.1999 by filing the appeal on 6.3.2002 after lapse of about two years and three months which was patently barred by limitation of 30 days provided by Section 162 of the Act of 1967. These facts were duly noted by the E.D.O (R) in his order-dated 12.8.2003. Above all, petitioners had undisputedly, consented to the partition of joint holding and its mode, before the Tehsildar/A.C.-I and were estopped to challenge it through an appeal. Besides it, order dated 8.3.2001 whereby petitioner's appeal was dismissed by the District Collector was not further challenged and the same had attained finality, hence in presence of this order, the Courts working in revenue hierarchy correctly declined interference, without committing any error of law/facts.
For the reasons noted above, no case for interference in constitutional jurisdiction of this Court was made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit, is dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 827
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rahman, J.
MUHAMMAD RAMZAN and 15 others--Petitioners
versus
MULTAN DEVELOPMENT AUTHORITY, MUTLAN through its Director General--Respondent
W.P. No. 5833-M of 1996, heard on 31.1.2007.
Punjab Land Acquisition (Housing) Rules, 1973--
----R. 6--Punjab Land Acquisition Act, 1973--S. 4--Punjab Development of Cities Act, 1976--S. 38--Constitution of Pakistan, 1973--Art. 199--Acquisition of land for the purpose of colony--Entitlement for substituted plots--Notice was issued to vacate houses--Assailed--Constitutional petitions--Housing Scheme was approved after completion of formalities--Challenge to--Respondent did not compensate to petitioners--Held: Petitioners were entitled for substituted plots for their residence but no substituted plot was given to petitioners--Attitude of the respondent pertaining to acquiring the land of houses and not giving the petitioners substituted equal plots for residences is also discriminatory one because M.D.A. when acquired land consisted of house in colony, the owners who were inhabitants were given substituted land against their houses--Petitioners were entitled to get equal land for their houses and costs of structures because their houses are situated in corner of the proposed park land. [P. 829] A & B
Ch. Muhammad Sharif, Advocate Mr. Muhammad Arif Alvi, Advocate & Malik Muhammad Jamshed Awan, Advocate for Petitioners.
Mr. Muhammad Ameen Malik, Advocate/Legal Advisor for Respondent.
Date of hearing: 31.1.2007.
Judgment
This judgment shall dispose of W.P. No. 5833/96, W.P. No. 1491/97 and 1290 of 1997.
Brief facts leading to these writ petitions are that the petitioners in all these writ petitions are owners and inhabitants of Katchi Abadi Dogar Colony, F-Block, Shah Rukh-e-Alam Colony Multan, where they are presiding before the acquisition of land for the purposes of establishing Colony namely, Shah Rukh-e-Alam Colony, by the respondent Multan Development Authority.
On 27.8.1996, the respondent MDA has given notices under Section 38 of the Punjab Development of Cities Act, 1976 to the petitioners to vacate their houses within 24 hours, otherwise their houses would be demolished by the respondent Authority and expenses occurred on that would be recovered from them. On 28.2.1997, same notice was given to the petitioner Muhammad Boota in W.P. No. 1491 of 1997. On 22.2.1997, again same notice was given to the petitioner Mst. Safia Bibi in W.P. No. 1290 of 1997.
Through these writ petitions, the petitioners seek setting aside of the afore-said notices being illegal, void and without lawful authority.
It is contended by learned counsel for the petitioner that according to the Housing Scheme Shah Rukne-Alam Colony, one third of land in the shape of plots was given to the owners of land by the respondent MDA in the Shah Rukn-e-Alam Colony Multan on the payment of development charges of the said area but the above said rule was not adopted in this case; that the compensation for securing the property in question yet remains to be paid in accordance with the order of the competent authority and that the petitioners are bona fide occupants of the houses which they had built for their residential purpose at the exempted land.
On the other hand, learned counsel for the respondent MDA has contended that prior to acquisition of disputed land the petitioners were residing there but after acquisition of the same they have no legal right to occupy MDA land; that the petitioners have been compensated according to their entitlement and there exists no Dogar Colony as such and that the impugned notices were issued to the petitioners with lawful authority after giving them opportunity of personal hearing.
I have heard learned counsel for the parties and perused the record as well as the impugned notices and the comments as well as Local Commission Report.
It is an admitted fact that the Housing Scheme Shah Rukah-e-Alam Colony, Multan, was approved by the MDA on 5.8.1979. After completion of formalities land was acquired and the award for compensation in respect of standing buildings and fruit trees belonging to the petitioners and others was announced by the Land Acquisition Collector MDA Multan on 31.12.1984. Being aggrieved of the said order, the petitioners and others filed appeals before the Commissioner Multan Division Multan on 10.2.1985, which were accepted on 28.10.1985 with the direction to compensate the petitioners. But till now the respondent MDA has not paid compensation amount to the petitioners.
It is necessary to mention here that before publication of notice under Section 4 of the Punjab Land Acquisition Act, 1973, Multan Development Authority submitted terms and conditions before the Deputy Commissioner, Multan, regarding the acquisition of land for the Colony "Shah Rukan-e-Alam Multan", vide letter dated 22.4.1984, wherein the MDA assured the Deputy Commissioner that already existing Abadies would not be taken into Scheme, if acquired so, full compensation would be paid to the affectees. In this regard, Term No. 2 and Term No. 4 mentioned in the said letter are as under:
"Term No. 2
the abadi that exists on the land will be left over as per requirements of the scheme.
Term No. 4
it is our policy not to acquire Orchards and Abadies if acquired full compensation is paid".
Under Rule 6 of the Punjab Land Acquisition (Housing) Rules, 1973, the respondent MDA is bound to fulfil the terms and conditions referred above.
According to the Scheme the petitioners are entitled for substituted plot for their residences but till today, no substituted plot is given to the petitioners. The attitude of the respondent pertaining to acquiring the land of houses and not giving the petitioners substituted equal plots for residences is also discriminatory one because earlier the respondent MDA when acquired land consisted of houses in Shah Rukan-e-Alam Colony, the owners like Muhammad Yar, Muhammad Azam, Zubaida Begum, Saeeda Begum and Fazal Akram, who were also inhabitants of Shah Rukh-e-Alam Colony Multan were given substituted land against their houses.
The respondent wants to include the Abadi Land in the proposed park named Jinnah park adjacent to Block-F of Shah Rukan-e-Alam Colony Housing Scheme Phase-II Multan. Therefore, the petitioners are entitled to get equal land for their houses and costs of their structures because their houses are situated in the southern and Western corner of the proposed Park Land. For the said purpose, on 16.2.1997 Mr. Irfan Wyne, Advocate, was appointed as Local Commission. He was directed to visit the Jinnah Park and submit his report to this Court. Report of the Local Commission dated 26.5.1997 is placed on the record, wherein it is stated that it was admitted by the MDA Authorities that in 1984 and 1985 the petrol pump was not included in the map and the same was sanctioned to one MPA namely Atta Muhammad Qureshi by the Chief Minister in the year 1986, the area of the petrol pump is 4 kanals and the possession of the petrol pump was handed over to the said allottee on 26.1.1987. The Local Commission was of the view that "when the MDA has given 4 kanals to the MPA, the petitioners and others can easily be accommodated on the opposite direction of the petrol pump because the area left after accommodation is quite sufficient for Car Parking." Even a letter dated 20.9.2004 addressed to the Secretary HUD & PHE Department Government of the Punjab Lahore by the Multan Development Authority also supports the report of the Local Commission, wherein it is stated that a petrol pump at the land measuring 4 kanals at the land of Jinnah Park was established in the year 1986 on the direction of the Chief Minister and the same has been allowed by the Government of the Punjab to continue the same; it is a also a case of hardship and, therefore, necessary relaxation may be granted for settlement of encroachers of the land of Jinnah Park.
It is observed that four kanals land out of land originally earmark for said public utility park is allotted to Mian Atta Muhammad Qureshi ex-MPA vide order No. 7664/EM/MDA dated 24.5.1988 for installation of a petrol pump at the site of Jinnah Park in contravention of policy that public utility plots cannot be converted for any other purpose is so graciously allotted, whereas the demands of the petitioners are being denied despite the policy not to acquire Orchards and Abadies and if acquired full compensation be paid. Further they are being denied also inspite of the assurance that existing Abadies would not be taken into the Scheme and if required, full compensation would be paid to the affectees vide letter No. 3318/EM/MDA dated 22.4.1984. Even further through letter dated 20.9.2004 it had been recommended that the petitioners' case being of hardship, they may also be granted relaxation for settlement. The reason for adopting such double standard vis-a-vis the petitioners and the allotment of 4 kanals of plot to Mian Ata Muhammad Qureshi ex-MPA cannot be logically comprehended and can be described as a sheer arbitrary whims of the authorities and against principles of equity and justice which should be rectified through interference in the exercise of extra ordinary Constitutional jurisdiction this Court.
In view of the above circumstances and also keeping in view the letters dated 22.4.1984, 20.9.2004 and report of the Local Commission dated 26.5.1997 and particularly the decision of the Commissioner Multan Division Multan dated 28.10.1985, whereby the appeals of the petitioners were accepted, this writ petition, W.P. No. 1491 and 1290 of 1997 are accepted and the impugned notices dated 27.8.1996, 28.2.1997 and 22.2.1997 are set aside.
(R.A.) Order accordingly.
PLJ 2007 Lahore 831
Present: Muhammad Muzammal Khan, J.
Mst. SAIFA BIBI and 5 others--Petitioners
versus
HIDAYAT and 4 others--Respondents
W.P. No. 6401 of 2000, heard on 13.2.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2), O.XXIII, R. 1--Qanun-e-Shahadat Order, 1984, Art. 129(e)--Fraud/misrepresentation--Proof of--Presumption of correctness attached to judicial proceedings--Predecessor-in-interest of the petitioners was withdrawn-after some time--Application u/S. 12(2) CPC was also withdrawn--Orders of withdrawal were passed by two different Civil Judges who have distinctly noted in each order--Held: Mere bald allegations of fraud/misrepresentation were not enough to rescind the judicial proceedings, which at the same time were not qua the Court--Presumption of regularity/correctness is attached to judicial proceedings which could not be dispelled by the petitioners.
[P. 834] B & C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Fraud/misrepresentation in collusion--Proof of--Stance of--Suit was filed through different counsel--Application u/S. 12(2) CPC was filed--Concurrent reasoned judgments--All three senior Advocates cannot be imagined to have colluded to grab the land of the petitioners, in the name of the respondents to whom they were not to succeed and that too, without any proof in such behalf. [P. 833] A
2004 SCMR 964 (ref.)
Mr. Mehdi Khan Chohan, Advocate for Petitioners.
Hafiz Khalil Ahmad and Ch. Ahmad Khan Gondal, Advocates for Respondents.
Date of hearing: 13.2.2007.
Judgment
Instant Constitutional petition assailed the judgments/orders dated 11.7.1995 and 23.12.1999 passed by the learned Civil Judge and the learned Additional District Judge, Jaranwala District Faisalabad, to be declared illegal, void and of no legal consequence, whereby petitioner's application under Section 12(2) CPC and their revision petition were dismissed, respectively.
Succinctly, relevant facts as deciphered from the record, are that one Yara predecessor-in-interest of the petitioners and Respondent No. 3 were owner of land measuring 15 kanals 14 marlas situated in Chak No. 237/GB Tehsil Jaranwala District Faisalabad, which he allegedly sold through a Sale Mutation No. 17 dated 15.10.1986 in favour of Respondents No. 1 and 2. Yara, the owner of the land, filed a suit for declaration with permanent injunction challenging the sale Mutation No. 17, doubing it as fake, fictitious/forged. He asserted that he did not enter into any bargain of sale with Respondents No. 1 and 2 did not receive any sale price and did not appear before the Revenue Officer at the time of attestation of the mutation thus prayed that the same may be declared to be void. He also prayed for a decree for permanent injunction by way of consequential relief may be issued in his favour permanently restraining the Respondent No. 1 and 2 from alienating the suit land. This suit was filed through Muhammad Afzal Qureshi Advocate.
The said Yara subsequently filed an application under Order XXIII Rule-1 CPC praying withdrawal of suit through another counsel Naseer Ahmad Advocate which was accepted and the withdrawal prayed was allowed by the trial Court vide order dated 1.6.1987. The above-referred Yara then filed an application under Section 12(2) CPC on 15.6.1987 with the averments that he was made to understand by the defendants/vendees that his suit shall be decreed but they in collusion with his counsel defrauded and got recorded his statement regarding withdrawal of his suit. This application was again withdrawn on 19.3.1988 on move by some other counsel namely Muhammad Asghar Niazi, Advocate.
Yara reported to have died on 15.3.1990 and petitioners being his descendants as widow and daughter filed yet another application under Section 12(2) CPC on 3.9.1990 against order of withdrawal dated 19.3.1988. This application was opposed by Respondents No. 1 and 2 by filing their written replies. Issues arising out of controversial stance of the parties were framed and evidence was recorded by the trial Court. The learned Civil Judge seized of the matter, through order dated 11.7.1995 dismissed the application filed by the petitioners.
Petitioners being aggrieved of the order dated 11.7.1995, filed a revision petition before the learned Additional District Judge, but remained unsuccessful as the same was dismissed on 23.12.1999, thereafter, they filed instant Constitutional petition which was admitted to regular hearing and after completion of record, the same has now been placed for final determination. Respondents No. l and 2 who are the real contestant, in response to notice by his Court, have appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record. Undisputedly, suit on behalf of Yara was withdrawn on 1.6.1987. The then, learned Civil Judge besides a regular application under Order XXIII Rule 1 CPC duly thumb marked by Yara and signed by his counsel, moved for withdrawal of the suit, recorded statement of Yara son of Dad regarding his prayer of withdrawal of the suit and got thumb impression of Yara in the margin of the order sheet duly counter signed by his counsel. Similar is the position on the date i.e. 19.3.1988 when Yara made a statement before the trial Court regarding withdrawal of his application under Section 12(2) CPC, His both the statements carry his thumb impression and signatures of his counsel in the margin of the order sheet of the trial Court which were not disputed by him or his heirs. Yara lived for a period of about 2 years after withdrawal of his application under Section 12(2) CPC and did not initiate any kind of proceedings against Respondents No. 1 and 2 or his counsel through complaint before the Punjab Bar Council or in any other form including criminal prosecution . Stance of the petitioners that suit was filed by Yara through a different counsel whereas it was withdrawn by Ch. Naseer Ahmad Khan, Advocate, and that he moved an application under Section 12(2) CPC through Muhammad Afzal Qureshi, Advocate but the same was withdrawn through Muhammad Asghar Khan Niazi, Advocate and thus, fraud/misrepresentation qua the Court was proved to the hilt, has not impressed me to upset the concurrent reasoned judgments for the reason that all the three Senior Advocates cannot be imagined to have colluded to grab the land of the petitioners, in the name of the Respondents No. 1 and 2 to whom they were not to succeed and that too, without any proof in this behalf. The other thing, which goes against the petitioners, is that Ch. Naseer Ahmad, Advocate through whom Yara withdrew his suit on 1.6.1987, was arrayed as Respondent No. 3 in the application under Section 12(2) CPC and in this application, Yara did not level any malpractice/ misconduct on the part of his counsel. According to my estimation, engagement/appearance of different counsel for Yara, goes to prove transparency/purity of the proceedings conducted on behalf of Yara. Above all, Yara had not explained that as to why Respondents 1 & 2 accompanied him to make the alleged concession in his suit, for decree in his favour and what prompted them to have sale in their favour adjudged and for what consideration.
Under law a presumption of regularity/correctness is attached to judicial proceedings which could not be dispelled by the petitioners, as per judgment; by the apex Court in the case of Fayyaz Hussain Versus Akbar Hussain and others (2004 SCMR 964). Both the orders of withdrawal of suit and application under Section 12(2) CPC were passed by two different learned Civil Judge who have distinctly noted in each order that statement of Yara recorded by them were read over to him and his counsel who in token of correctness of the same, thumb-marked/signed those. Mere bald allegations of fraud/ misrepresentation were not enough to rescind the judicial proceedings, which at the same time were not qua the Court. Respondents No. 1 and 2 had summoned Muhammad Asghar Khan Niazi, Advocate and Ch. Naseer Ahmad Khan, Advocate, to appear as their witnesses as RWs. 1 and 2 who were cross-examined at length by the petitioners but they could not extract any thing to support their case. Naseer Ahmad Khan Advocate (RW.2) might have been engaged by Respondents No. 1 and 2 as their counsel, which will make out a case of professional misconduct but would not vitiate the proceedings conducted by the learned Civil Judge or statements by Yara. Averments in both the applications under Section 12(2) CPC one by Yara and the other by the petitioners, admitted that Yara had gone to make a statement before the Court for getting decision in his suit thus, the fact of making statements before the Court and thumb marking those was admitted. The petitioners' case that Respondents No. 1 and 2 cheated Yara in getting the statement recorded for withdrawal of the suit whereas the same was to be decreed, remained thirsty of the proof and thus could not be contributed especially when the Petitioner No. 1 had been divorced by Yara on 7.11.1989 vide effectiveness certificate Ex.R.1, Scan of record and impugned judgments/orders revealed that controversy was correctly put to rest, without committing any error of law/facts.
For the reasons noted above, no case for interference in Constitutional jurisdiction of this Court was made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit, is dismissed with no order as to costs.
(R.F.K.) Petition dismissed.
PLJ 2007 Lahore 834 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Sayed Zahid Hussain and Syed Sajjad Hussain Shah, JJ.
Malik MUHAMMAD FAISAL and another--Appellants
Versus
STATE LIFE INSURANCE CORPORATION through its Chairman
and 2 others--Respondents
R.F.A. No. 56 of 2001, decided on 28.2.2007.
(i) Insurance Act, 1938 (IV of 1938)--
----S. 45--Policy of insurance--Repudiation of--Deliberate concealment of information--Ground for avoiding contract of insurance--Insurer has the legal rights to repudiate all liabilities under the policy of insurance--If it is found by the insurer that the policy-holder had suppressed the material facts at the time of proposal of insurance--Policy of insurance is a contract of good faith between the parties--Deliberate concealment of information in proposal form is a ground for avoiding contract of insurance. [P. 838] A
(ii) Insurance Act, 1938 (IV of 1938)--
----S. 45--Policy of insurance--Rescission of contract--Material facts to be disclosed to avoid rescission of the contract--Duty to disclose material facts--Conclusion of the contract--Contracts of insurance as also Contracts of Life Assurance are contracts--Material fact must be disclosed--There is a good ground for rescission of the contract--Duty to disclose material facts continues right up to the conclusion of the contract--If there are any misstatements or suppression of material facts--Insurer certainly has the right to repudiate the claim made under a Policy which was obtained on the basis of suppression of truth. [P. 838] B
(iii) Date of Birth--
----Proof of--Difference in dates--NIC and educational certificates--Date of birth mentioned in the National Identity Card is taken to be correct unless proved contrary by cogent and convincing evidence--Scope--Predecessor of the appellants while filling up the form of Secondary School Examination stated his date of birth to be 8.3.1940--Difference of five years--In such situation correct and true date of birth, would be the one as recorded in the School/Board record being earliest in time--Irrefutable evidence produced by the respondents the date of birth mentioned in National Identity Card cannot be taken as correct. [P. 838] C & D
PLD 1983 SC 421, 1993 CLC 790, 1979 SCMR 295, AIR 1962 SC 814, AIR 1981 Madhya Pradesh 69, AIR 2004 Jharkhand 134, ref.
Raja Muhammad Azam, Advocate for Appellants.
Mr. Tahir Malik, Advocate for Respondents.
Date of hearing: 15.2.2007.
Judgment
A suit for recovery of Rs.14,00,000/- instituted by the appellants i.e. the successors in interest of Malik Maqbool Ahmed deceased under Order 37 of the Code of Civil Procedure, 1908 was dismissed by the learned trial Court on 20.12.2000, which has given rise to this appeal.
"1. Whether the plaintiff has no cause of action and locus standi to file the instant suit ?OPD.
Whether the defendant is entitled to special costs ?OPD.
Whether the cheque on the basis of which the suit has been filed, was obtained by fraud ?OPD
If the above issue is not proved whether the plaintiff is entitled to recover Rs. 14,00,000/-? OPP.
Relief.
The parties led evidence. The learned trial Court on appreciation of the evidence came to the conclusion that "Ex.D. 4 is the insurance policy of Malik Maqbool Ahmed deceased. His age is shown as of 51 years. This policy was issued on 15.7.96. Ex.D.5 is copy of national Identity Card of Malik Maqbool Ahmed which was provided by him at the time of submitting proposal form in which his date of birth was mentioned as 8.3.1945. Ex.D.6 is another letter in which Malik Maqbool Ahmed intimated on 30.6.96 that he had no proof of age other than his Identity Card which had already been enclosed with the papers. He requested to accept the same. The defendants examined Nazir Hussain Record Keeper of Board of Secondary Education, Lahore who brought original Register and proved copy of certificate Ex.D.1 according to which, the date of birth of Malik Maqbool Ahmed was entered as 8.3.1940 in the Board record. On the request of the defendants he was directed to bring the actual Gazette. He brought the Gazette on 27.4.2000 and proved the certified copy of Page No. 397 as Ex.D.1 confirming that date of birth of Malik Maqbool Ahmed at Roll No. 51026 was mentioned as 8.3.1940. He was not cross-examined by the plaintiffs. The plaintiff Malik Muhammad Faisal has admitted that his father was Matriculate. He could not tell if year of birth of his father was entered as 1940 in the Matriculation Certificate. There is thus no rebuttal of the documentary evidence produced by the defendants that the date of birth of Malik Maqbool Ahmed was 8.3.1940 but he mentioned it in proposal form as of 1945. ............... In such a situation the contesting defendants were justified in withholding payment of cheques issued to the plaintiffs as legal heirs of Malik Maqbool Ahmed regarding the policy taken by the deceased on 15.7.96 who died on 4.6.97 i.e. within one year of taking the said policy. Fraud was committed at the time of getting the policy and the cheques Ex. P. 1 and Ex.P.2 were issued on the basis of said policy obtained through fraud and misrepresentation. The issue is decided in favour of the defendants in this say. "
The learned counsel have been heard and record has been perused with their assistance.
The issuance of the insurance policy (Ex.D-4) as also the two cheques dated 20.4.1998 (Ex.P-1 and Ex.P-2) covering the claim amount were not in dispute but what became the bone of contention was the age disclosed by late Malik Maqbool Ahmed while obtaining the said policy. The date of birth he had disclosed was 8.3.1945, which eventually was found as incorrect, as his real date of birth was 8.3.1940 recorded in the School/Board of Secondary Education, Lahore records. He had appeared in the Secondary School Examination commencing 1st March 1958 under Roll No. 51026 and had filled up the form (Ex.D.1) disclosing his date of birth as 8.3.1940. Result Sheet (Ex.D.2) also mentioned the same date of birth. Nazar Hussain Record Keeper, Board of Secondary Education, Lahore DW-1, who had produced the record had stated that according to the Board record the date of birth of Malik Maqbool Ahmed was 8.3.1940. Ex.D-5 was the copy of National Identity Card produced by the deceased at the time of issuance of policy, which showed his date of birth as 8.3.1945. He had informed the Insurance Corporation that there was no other proof of age except National Identity Card. It turned out to be a false declaration made by him at the time of issuance of the policy. Mushtaq Ahmed Alvi, Deputy Manager, State Life Insurance Corporation, Rawalpindi had appeared as DW-3 and disclosed the background of the matter including the fact that Malik Maqbool Ahmed was Sales Manager of State Life Insurance Corporation. His medical history of ailment was also disclosed to show the state of his feeble health. There was nothing to controvert/rebut such evidence. The main reliance of the appellants was upon the date of birth as recorded in the National Identity Card and factum of issuance of policy. Ordinarily once the policy had been issued and the claim had been processed and cheque issued, the matter would have been a fait accompli, however, his own family members disclosed the truth, which followed an enquiry resulting in stoppage of payment. The legal position stated in State Life Insurance Corporation v. Mst. Begum Jan (PLD 1983 S.C. 421) gets attracted to this case as the factual background thereof was also quite relevant as in that case also at the time of obtention of insurance policy, the age disclosed by insured was 49 years when in fact he was of 55 years of age. Though such a disclosure of age made by him was the same as mentioned in the National Identity Card yet it was observed by the Hon'ble Supreme Court that as the age disclosed by him had been proved to be materially different, it would render the contract void. In State Life Insurance Corporation v. Mamoor Khan (1993 CLC 790) it was observed that "the insurer has the legal rights to repudiate all liabilities under the policy of insurance if it is found by the insurer that the policy-holder had suppressed the material facts at the time of proposal of insurance. The Policy of insurance is a contract of utmost good faith between the parties. Deliberate concealment of information in proposal form is a ground for avoiding contract of insurance as held by judgment report of Supreme Court of Pakistan (1979 SCMR 295)". Even the precedents in the neighbouring country as to the import of S.45 of Insurance Act, 1938 are to the same effect that suppression of material facts vitiate the policy issued on such basis. Reference in this context may be made to Mithoolal Nayak v. Life Insurance Corporation of India (AIR 1962 S.C. 814). In Smt. Rami Bai v. Life Insurance Corporation of India, Bhopal (AIR 1981 Madhya Pradesh 69) it was observed that documentary evidence as to correct age of the insured was admissible even after issuance of policy and if it is found that a false statement as to age had been made, the policy could not be enforced. In Smt. Saroj Agrawal v. Life Insurance Corporation of India and others (AIR 2004 Jharkhand 134) it was observed that "It is well settled that contracts of Insurance as also Contracts of Life Assurance are contracts Uberrima fides and every, material fact must be disclosed, otherwise there is a good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract. If there are any mis-statements or suppression of material facts, the insurer certainly has the right to repudiate the claim made under a Policy which was obtained on the basis of suppression of truth". Great value and importance thus is attached to the conduct of the person concerned in such matters.
An ancillary question that may arise is about the worth of date of birth as recorded in National Identity Card and the one recorded in School/Board record. Ordinarily the date of birth mentioned in the National Identity Card is taken to be correct unless proved to the contrary by cogent and convincing evidence. In the instant case as mentioned above late Malik Maqbool Ahmed had in the year 1957, while filling up the form himself stated his date of birth as 8.3.1940. That was the time when he perhaps was not conscious of its future implications. It was an innocent disclosure then made by him. However, long thereafter when National Identity Card was issued it contained a different date of birth. There was a difference of five years in his age. To my estimation, in such a situation the correct and true date of birth would be the one as recorded in the School/Board record being earliest in time. In presence of such irrefutable evidence produced by the respondents the date of birth mentioned in National Identity Card cannot be taken as correct.
The predecessor-in-interest of the appellants late Malik Maqbool Ahmed was not any ordinary person or illiterate. He had been in the same business of insurance and was a Sales Manager. Incidentally almost in less than a year before his death, he had obtained the policy for Rs.14,00,000/- by giving his date of birth as 8.3.1945. Whereas his real date of birth was 8.3.1940. At this juncture, while considering the facts and circumstances of this case, I am reminded of an old adage that "the love of money is the root of all evils and that money never makes a man happy, yet, nor will it........ The more a man has, the more he wants". His doings could not be fruitful even to his successors. His falsity and mis-statement has even landed them into this litigation, not to gain but to loose. That may be the natural corollary of human failings.
Keeping all aspects of the matter in view, we find that the suit instituted by the appellants was rightly dismissed by the trial Court. The appeal is dismissed accordingly but leaving the parties to bear their own costs.
(R.F.K.) Appeal dismissed.
PLJ 2007 Lahore 839
Present: Umar Ata Bandial, J.
AMJAD IKRAM--Petitioner
versus
LAHORE CANTT. CO-OPERATIVE HOUSING SOCIETY LTD. and 2 others--Respondents
W.P. No. 2414 of 1995, heard on 23.1.2007.
(i) Defence Housing Authority Order, 2002--
----Art. 18--Residential property for commercial purposes--Prohibition of--Plea of promissory estoppel--Estoppel cannot validate illegal act for the future at best the past commercial user by petitioner--Without authorisation from DHA, can be safeguard against penal action.
[P. 842] A
(ii) Defence Housing Authority Order, 2002--
----Art. 18--Purpose of allotment--Residential property for commercial purposes--Conversion of user--Discrimination--Question of--Respondent is discriminating the petitioner by allowing other schools to operate in residential premises--Validity--Largest size of allotted residential plot in the DHA whereas in the case pointed out by the petitioner, a plot of 5 kanals land has been allocated and allotted for the purpose of setting up a school--Such a large plot cannot result from the conversion of a residential plot but indicates an allotment for the specified purpose--Held: Facts of school facts of the said school are altogether distinguishable and do not amount to discrimination as to conversion of user. [P. 843] B
(ii) Estoppel--
----Application--Bar of--Impugned action consistent with the proprietary rights of the petitioner--Estoppel pleaded by the petitioner held, does not create a legal bar where the impugned action is consistent with the proprietary rights of the petitioner, in furtherance of the intent of the byelaws of the authority in vogue from inception. [P. 843] C
Dr. Mubashir Latif Ahmad, Advocate for Petitioner.
Mr. Ashtar Ausaf Ali, Advocate for Respondents.
Date of hearing: 23.1.2007.
Judgment
The petitioner opened a school in the year 1987 in a residential plot Bearing No. 19-E, Defence Housing Authority ("DHA"), Lahore. Learned counsel for the petitioner submits that the said property is owned by the petitioner who was encouraged to set up the school by the respondent DHA, which at the relevant time was a cooperative society registered under the Cooperative Societies Act, 1925. The petitioner claims to have invested a large sum of money to run the school which was not objected by the respondent society and that went on for a period of 2 years. In 1989 the petitioner received a notice from the DHA threatening expulsion from its membership.
A dispute between the parties followed on the question of alleged wrongful use of the petitioner's residential property for a commercial purpose. Ultimately, in 1991 arbitration was commenced between the parties under Section 54 of the Cooperative Societies Act, 1925 resulting in a majority award dated 30.5.91. This award gave conditional relief to the petitioner and was appealed before the Joint Registrar by the respondent society. The appeal was decided on 27.2.1992 whereby the petitioner was given five years to run his school in the existing residential premises during which he could make alternate arrangements on his own for relocating his school. The said decision was again challenged before the Secretary Cooperatives by both the parties. Vide order dated 15.9.94 the Secretary Cooperatives modified the appellate order by reducing the period granted to the petitioner from 5 years to 3 years for user of his residential premises for the purpose of a school.
In order to protect his school the petitioner thereafter filed this petition in which ex-parte ad interim order was granted on 27.2.95. The matter has since been pending in this Court for the last 10 years. Ultimately it was argued at length by the learned counsel now. The points raised by the learned counsel for the petitioner are as follows:--
(a) The respondent DHA has permitted other residential properties to be used for the purpose of schools and has thereby discriminated the petitioner by objecting to similar use of the petitioner's property. The case of Alma-Junior School has been specifically mentioned in this behalf;
(b) The petitioner invested a vast amount of money to establish his school in respect of which the respondent DHA had at relevant time had raised no objection. Therefore the respondent DHA is estopped from removing the petitioner's school;
(c) By-laws of the respondent society do not prohibit use of residential house as a school;
(d) That the petitioner has paid property tax on his house as a commercial and not residential property which qualifies its use as such;
(i) The Defence Housing Authority Order, 2002 was promulgated on 19.9.2002. Article 18 thereof prohibits the use of residential property for commercial purpose. The right, if any, claimed by the petitioner stands defeated by change of law.
(ii) The construction by-laws of the respondent DHA in particular. By-laws No. 3 Chapter No. 2, prohibits the conversion of a property to a use/purpose other than for which it is allotted. The petitioner's house was allotted for residential purpose and cannot be utilized for any other purpose;
(iii) The petitioner challenged the impugned order dated 15.9.94 by a delay of 5 months wherefor the petition suffers from laches and acquiescence.
(iv) The petition purports to convert the present proceedings into an appeal whereas no such jurisdiction vests in the Court nor any ground of lack of jurisdiction or illegality has been made out consequently, the petition is not maintainable.
The essential facts of the case are agreed by the two sides. The crucial question, in the case, is whether the petitioner has a right to convert residential property to commercial use, namely, as a school; and if so, whether the respondent DHA, has any grounds to object such user. It may be borne in mind that almost 17 years have elapsed since the first notice for expulsion was served on the petitioner. During this time the petitioner has used his residential property for the commercial purpose of a school except ultimately when he was stopped from doing so after respondent DHA was converted from a society into an authority. It is also settled that the construction bye-laws of the DHA do prohibit the use of a property for purpose other than for which it is allotted. Yet in the present case the DHA did initially permit the petitioner to use his residential property for the purpose of a school. The DHA was converted from a society into an authority by the DHA Order 2002. By that legislation a statutory prohibition against the use of residential property for any other purpose has come into the field.
In the background of the foregoing change in the law, the petitioner's case is actually seeking relief that is against the statute and is therefore illegal. Insofar as plea of promissory estoppel is concerned, it cannot validate an illegal act for the future, at best the past commercial user by the petitioner of his house from 1989 until 2002 without authorization from the DHA can be safeguarded against penal action. In any event, such user constitutes sufficient accommodation to the petitioner, which goes far beyond the term fixed by either of the impugned orders. Accordingly, the main contentions of the petitioner have lost force by efflux of time.
Be that as it may, two points of significance raised by the learned counsel for the petitioner may have present application; firstly that the DHA is discriminating the petitioner by allowing other schools to operate in residential premises. Reference was made to the case of Alma Junior School. Accordingly, on Court's order the respondent DHA has produced a certificate dated 19.1.2007 which is in the following terms:
"It is informed that no other residential building/plot is being used for running a school. The plot (comprising 5 kanal of land) of Alma Junior School has been specifically allocated and allotted for setting up a school. It is not a residential plot whereas Plot No. E-19 is a residential plot and cannot be used for any other purpose except for residential purposes. "
It is an established fact that the largest size of allotted residential plot in the DHA measures 2 kanals whereas in the above case a plot of 5 kanals land has been allocated and allotted for the purpose of setting up a school. Clearly, such a large plot cannot result from the conversion of a residential plot but indicates an allotment for the specified purpose. The facts of the Alma Junior School are therefore altogether distinguishable and do not amount to discrimination as to conversion of user. Learned counsel for the petitioner now explains that the said school was allocated and allotted its plot on the application by its management, whereas a similar application by the petitioner was not acceded. That is a completely different point from the question now in issue. In fact it concedes that the objection of discrimination urged by the learned counsel for the petitioner has no weight.
The second point of some relevance is that the respondent DHA is estopped from preventing the petitioner from using his property for the purpose of a school; because it encouraged the petitioner in the first place to set up a school to run the same for several years before issuing the impugned expulsion notice. The petitioner has claimed protection of the Court for the investments made by him. A perusal of the record shows that the learned lower forums granted the petitioner 5 years to utilize and profit from the investment by him in the establishment of a school. That period expired in 1997, however, on account of the present proceedings the said enjoyment of the petitioner continued until 7.11.2002. The grace period allowed to the petitioner by the lower forums is sufficient to cater for any loss that may occur for petitioner to relocate. The property in dispute remains in the ownership of the petitioner and the impugned action does not forfeit any of his proprietary rights. Only the use of his property is required to be made compliant with the bye-laws of the DHA and provisions of the DHA Order, 2002. Estoppel pleaded by the learned counsel for the petitioner does not create a legal bar where the impugned action is: consistent with the proprietary rights of the petitioner, in furtherance of the intent of the; bye-laws of the authority in vogue from inception, and inconvenience, if any, to the petitioner having been duly compensated. Indeed, the change in law on account of Article 18 of the DHA Order also constitutes an answer to alleged estoppel against future action being taken by the authority.
In the circumstances, there is no merit in the petition. But it is observed that for period of enjoyment that the petitioner had during the course of the present proceedings, the respondent authority shall not take any action against the petitioner in terms of burdening him with
costs or otherwise causing embarrassment or distress to him. Petition dismissed with no order as to costs.
(R.F.K.) Petition dismissed.
PLJ 2007 Lahore 844
Present: Tariq Shamim, J.
MUHAMMAD YAQOOB ALI TABASSUM and another--Petitioners
versus
CHAIRMAN PRIVATISATION COMMISSION AWAMI HOUSE ISLAMABAD and 2 others--Respondents
W.P. No. 10692 of 2006, decided on 12.3.2007.
(i) Constitution of Pakistan, 1973--
----Art. 199--"Past and Closed Transaction"--Principle of--Benefits of Voluntary Separation Scheme--Payments were voluntarily accepted--Time was extended--If new scheme was introduced, workers will be given benefits of the said scheme--Golden Hand Shake Scheme subsequently introduced was under different circumstances which was not applicable to the petitioners--Held: Petitioners cannot wriggle out from the situation as the Scheme has been acted upon--Principle of past and closed transaction fully attracted to the case of the petitioners. [P. 846] A
(ii) Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Principle of laches--Petitioners approached High Court after a lapse of 9 1/2 years--Petition is liable to be dismissed on well known principle of laches. [P. 847] B
(iii) Constitution of Pakistan, 1973--
----Art. 199--Discrimination--Question of--Reasonable classification, permissible under the law--Petitioners exercised their option on the basis of the scheme offered by the respondents whereas the subsequent Scheme was offered to the employees who did not exercise option on the basis of the Old Scheme and remained in service of the respondents--Held: No discrimination has been occasioned to the petitioners as even otherwise reasonable classification is permissible under the law. [P. 847] C
(iv) Privatization Commission Ordinance, 2000 (LII of 2000)--
----S. 16 & Preamble--Contention--Alleviation programmes--Remaining ninety percent for retirement of Federal Government debt--Differential amount--Not sustainable--Provision of law--Privatization of the unit not completed--Privatization Commission, has no concern with the Scheme announced by the respondents. [P. 847] D
PLD 1973 SC 17 and PLD 1997 SC 304 ref.
Ch. Muhammad Saleh Naru, Advocate for Petitioners.
Mr. Muhammad Rafiq Shad, Advocate for Respondents.
Date of hearing: 12.3.2007.
Order
The brief facts giving rise to the instant petition are that the petitioners and some other employees of Lyallpur Chemical & Fertilizer Corporation, Faisalabad, were relieved from service under the Voluntary Separation Scheme 1+2. The petitioners after receiving the benefits under the said Scheme were relieved from service in the year 1997. Later on, VSS/Golden Hand Scheme 1/4 was introduced in order to achieve better results for separation/relieving of the workers from service which offered better benefits. The petitioners and others being aggrieved made representations to the competent authority Respondent No. 2 for payment of differential benefits between the two Schemes. However, the matter was put off by Respondents No. 2 and 3 and consequently, this petition has been filed.
The learned counsel for the petitioners contended that great injustice had been done by the respondents by extending discriminatory treatment to the petitioners as the other workers of the same establishment as well as other units were extended benefits VSS/Golden Hand Shake Scheme 1+4 which was violative of fundamental rights provided under Article 4 of the Constitution. Further maintained that the workers of Pak Saudi Fertilizers Company had been given/paid the arrears of Golden Hand Shake Scheme, so the petitioners were also entitled to the same treatment. Also maintained that Respondents No. 2 and 3 were willing to pay arrears/differential amount to the petitioners, however, Respondent No. 1, Privatization Commission was not willing in the said regard.
The learned counsel for Respondent No. 1 contended that the writ petition was barred by laches as the petitioners had failed to agitate the matter before this Court for the last about 9 years. Also stated that the petitioners opted for Voluntary Separation Scheme 1+2 and had received the benefits without raising any objection and, therefore, the petitioners were estopped by their own conduct to agitate the matter before the Court. The learned counsel also maintained that the petitioners were never given any understanding by the respondents that in case new Scheme was introduced, the workers would be given benefit of the said Scheme and as per office Memorandum dated 22.2.1997 it was specifically stated that the workers were entitled to VSS @ 1+2 only and those workers who declined to avail the benefits of the said Scheme might be considered for retrenchment under the existing Labour Laws. The petitioners and others in order to avoid retrenchment accepted the Scheme and had received payment voluntarily without raising any protest. This decision was conveyed through letter dated 28.2.1997. It was further stated that the Golden Hand Shake Scheme 1+4 was not applicable to the petitioners and other workers who had accepted VSS 1+2 and had received payment in accordance therewith. It has also been stated by the learned counsel that recourse to Article 199 of the Constitution was misconceived in view of the provisions of Sections 28/29 of Privatization Commission Ordinance 2000 and that the matter essentially involved resolution of disputed questions of facts which exercise could not be undertaken by this Court in its Constitutional jurisdiction. Also maintained that the offer made to the petitioners was accepted and that the petitioners could not wriggle out of the same after obtaining payment as the Scheme had been acted upon. Lastly maintained that the Unit had not yet been privatized, therefore. Privatization Commission had no concerned with the Scheme announced by Respondents No. 2 and 3 at their own.
I have heard the learned counsel for the parties and have gone through the documents placed on the file as well as the report and parawise comments submitted by the respondents.
It has been noticed that the petitioners worked under the answering respondents and were relieved from their service on 28.2.1997 by accepting the benefits of Voluntary Separation Scheme 1+2. The payments were voluntarily accepted by the petitioners without raising any protest. The learned counsel for the petitioners has not been able to show that at the relevant time any understanding was extended by the respondents that in case a new Scheme was introduced the workers would be given the benefits of the said Scheme. Subsequently, the Golden Hand Shake Scheme 1+4 was introduced under different circumstances which was not made applicable to the petitioners and others. After having accepted payment under the Voluntary Separation Scheme 1+2 the petitioners cannot wriggle out from the situation as the Scheme has been acted upon. The principle of `past and closed transaction is fully attracted to the case of the petitioner as has been laid down by the Hon'ble Supreme Court in Miani's case (PLD 1973 SC 17).
The petitioners have approached this Court after a lapse of 9 years. Therefore, the petition is liable to be dismissed on the well known principle of laches as has been laid down by the Hon'ble Supreme Court in the case of Khaili Khan v. Haji Nazir Ahmad and 4 others (PLD 1997 SC 304). The petitioners exercised their option on the basis of the Scheme offered by the respondents in the year 1997 whereas the subsequent Scheme was offered to the employees who did not exercise option on the basis of the old Scheme and remained in service of the respondents. Thus, it is obvious that no discrimination has been occasioned to the petitioners as even otherwise reasonable classification is permissible under the law.
Under Section 16 of Privatization Commission Ordinance 2000, the privatization proceeds can be utilized by the Federal Government for two purposes only viz--
"(a) ten percent to be used for poverty alleviation programmes; and
(b) the remaining ninety percent for retirement of the Federal Government debt. "
The contention of the learned counsel for the petitioners that on privatization, the funds would be available with Respondent No. 1, from which the petitioners could be given differential amount is not sustainable in terms of the provision of law referred to above. Even otherwise, the privatization of the Unit has not yet been completed and therefore, Privatization Commission has no concern with the Scheme announced by Respondents No. 2 and 3 at their own.
(R.F.K.) Petition dismissed.
PLJ 2007 Lahore 847
Present: Syed Hamid Ali Shah, J.
ZAHOOR AHMAD and 309 others--Petitioners
Versus
MEMBER CONSOLIDATION, BOARD OF REVENUE PUNJAB, LAHORE and 23 others--Respondents
Objection Case No. 19471 of 2006, decided on 30.11.2006.
Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Joint petition--Community of interest--Determination--Right to relief--Common question of law and fact--No restraint on several petitioners to file a joint petition where right to relief arises from the same act or transaction; or when common question of law and fact is involved, or where petitioners are jointly interested in cause or causes of action; or when the evidence/proof for determination of controversy is the same. [P. 850] A
Civil Procedure Code, 1908 (V of 1908)--
----Preamble--Constitution of Pakistan, 1973, Art. 199--Jurisdiction--Provisions of--Not conflicted with the High Court Rules and Orders--To conduct the proceedings under writ jurisdiction, the procedure of Code of 1908, is always resorted to, being general law of procedure.
[P. 851] B
Court Fee--
----Valuation of--Maximum--Different amount--Claims of different plaintiffs based on distinct subjects, are to be valued separately--Plaintiffs were directed to pay Court fee on their respective--Claims instead of paying maximum Court fee of Rs. 15000/- only. [P. ] E
Constitution of Pakistan, 1973--
----Art. 199--High Court Rules & Orders--Chap. 3 Clause 10(i)--Writ Jurisdiction--Joint petition--Court Fee--Payment of--Cause of action--Petition by each one of the petitioners in a joint petition, would be deemed independent and each of such person, would be liable to pay Court fee separately--Held: Court fee in such petition, is not legal.
[P. ] F
Constitution of Pakistan, 1973--
----Art. 199--Writ Jurisdiction--Joint Petition--One set of Court Fee--Payable--One set of Court fee, is payable by several petitioners only when a jural relationship subsists i.e. association of persons registered as a firm or incorporated company etc, or in the case of public injury leading to public interest litigation, or in case where series of complained/impugned acts arise out of one action or order.
[P. ] G
AIR 1935 Calcutta 573, PLD 1970 SC 1, PLD 1967 Lahore 520, AIR 1981 AP 301, AIR 1984 SC 484, PLD 1986 Peshawar 72, 1984 CLC 2705, 1985 SCMR 1991, ref.
Ch. Iqbal Ahmad Khan, Advocate and Hafiz Abdur Rehman Ansari, Advocate.
Ch. Azeem Sarwar, Advocate for Petitioners.
Date of hearing 30.11.2006.
Order
This single order will dispose of office objections, on writ petition titled "Zahoor Ahmad etc. versus Member (Consolidation) BOR etc." and eight petitions with the title of "Mst. Amina Bibi etc versus Member (Judicial--II) Board of Revenue etc.", as the office objection, in these petitions involves common question of law.
Various petitioners in a joint petition have paid Court-fee of Rs. 500/- (rupees five hundred only) despite the office objection that it is payable as per Chapter 3 clause 10(i) of High Court Rules and Orders at the said rate, per petitioner.
It is contended by Hafiz Abdur Rehman Ansari, Advocate in eight cases with the title of "Mst. Amina Bibi etc. versus Member (Judicial-II) Board of Revenue etc." that order of Member (Judicial--II) Board of Revenue dated 12.07.2006 is being assailed having common questions of law and one cause of action. He added Court-fee is payable is Rs. 500/- (rupees five hundred only) in respect of one writ petition, where impugned order has been passed through a single judgment and challenged by various persons. He has submitted that earlier in Writ Petitions No. 14967 of 2004 and 18774 of 2005, more than one petitioners, assailed single order by affixing stamp paper of Rs. 500/- (rupees five hundred only), the writ petition was entertained and office objection was over ruled. Learned counsel with specific reference to his case has submitted that a landlord can seek ejectment of various tenants through single petition, similarly different petitioners can seek the redemption of mortgage through one petition. The single order, in such proceedings, is assailable through filing joint writ petition and Court-fee leviable thereon, is per petition and not on the basis of per petitioner. Learned counsel went on to argue that according to the provisions of Order I, Rule 1 CPC and Order II, Rule 3 CPC, where common questions of law or fact arise, all persons can join in one suit as plaintiff, for one cause of action. The object is to prevent further litigation and multiplicity of proceedings. He has referred to the case of "Ava A Cowasjee and 8 others versus Nasreen Nizam Shah and 4 others" (1984 CLC 2705) and "Arbab Ghulam Ali Khan and 14 others versus Arbab Muhammad Hussain and 14 others" (PLD 1986 Peshawar 72) to contend that maximum Court-fee of Rs.15,000/- (rupees fifteen thousand only) is payable, in a suit having distinct subjects. Valuation of all claims can be made separately but to the maximum of Rs.15,000/-. He went on to argue that separate valuation on all claims made separately and on different footings by different plaintiffs, having common cause of action in one suit, is not legally tenable. Learned counsel supported this contention by placing reliance on "Haru Bepari, and others versus Roy Kshitish Bhusan Roy Bahadur and others" (AIR 1935 Calcutta 573).
Ch. Iqbal Ahmad Khan, learned counsel for the petitioners in Zahoor Ahmad etc. versus MBR" has submitted that the order impugned in the writ petition is by Member Board of Revenue, where through single order the grievance against the consolidation proceedings was disposed of. Learned counsel submitted that matter involved in this writ petition is a consolidated order in respect of a joint cause of action thus legally the Court-fee payable is only Rs.500/- (rupees five hundred only). He has referred to the case of "Hussain Bakhsh versus Settlement Commissioner and others" (PLD 1970 SC 1) to contend that Civil Procedure Code is applicable to the matters falling in writ jurisdiction. Learned counsel in support of this argument found support from the case of "Abdul Malik versus Chief Settlement Commissioner etc." (PLD 1967 Lahore 520). He has submitted that Court-fee as per Chapter 4 para 3 clause 10(i) of the High Court Rules and Orders, is payable on each petition. The term used in the above provision is one "petition'' and not "petitioner''. The petition filed by various petitioners, as per the above referred provision of law, is subject to payment of one Court-fee. Office objection that Court-fee is leviable by each petitioner, in a joint petition, is without any lawful justification.
Heard learned counsel for petitioners and record perused.
Petitioners have refuted the office objections, raising the plea that relief sought for, arises from same order/judgment/act/transaction; there is a common of law and fact; petitioners are jointly interested in causes of action or proof/evidence required for determination; the question involved in the controversy is the same/common. One petition can jointly be filed in such circumstances. Court-fee on petition cannot be legally more than the maximum on aggregate value on all claims made separately. Law is settled that several petitioners, having community of interest and common grievance can file joint petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The question does not need any determination. There is no restraint on several petitioners to file a joint petition where right to relief arises from the same act or transaction; or when common question of law and fact is involved, or where petitioners are jointly interested in cause or causes of action; or when the evidence/proof for determination of controversy is the same.
It is not disputed that provisions of Code of Civil Procedure 1908, govern the matters falling in writ jurisdiction, as far as they are not in conflict with the High Court Rules Orders. To conduct the proceedings under writ jurisdiction, the procedure of Code of 1908, is always resorted to, being general law of procedure.
Now I revert to the other question i.e. leviability of Court-fee on joint petition by several petitioners. Court Fees Act, 1870 (Act VII of 1870) nowhere prescribes any fee for the petition filed in the High Court, under Article 199 of the Constitution. The Court-fee of Rs.500/- (rupees five hundred only) on each petition is leviable under Rule 10(i) Part III of Part J. Chapter 4-F of High Court Rules and Orders, Volume V. The question arises, whether several petitioners who have filed one petition, would be liable to pay one set of Court-fee, simply because they have joined as petitioners in one petition.
The question of payment of Court-fee by several petitioners/ plaintiffs in a joint petition/suit, came up for consideration in various cases. The case-law on this specific question needs mention:--
(i) Several traders, who are registered dealers in rice and broken rice, challenged in a writ petition the interference in the free movement of rice or broken rice, in second or subsequent sale either by rail or by road, within the state or other states of the country. It was held by the Andra Pardesh High Court in the matter of Grain International (AIR 1981 AP 301) that several petitioners could join in filing a single writ petition. Even if they were allowed to join, they would be liable to pay Court-fee as if each one of them had filed a separate writ petition.
(ii) In the case of "Mata Singh versus state of Haryana" (AIR 1984 SC 484) it was held that several truck operators who filed single petition, challenging the imposing of tax, each one has his own cause of action, arising out of liability to pay tax individually and each of such persons would be liable to pay Court-fee separately.
(iii) A plaintiff who through a single suit claimed, different amounts from various defendants. Aggregate amount was more than 25,000/-, while his claim against each defendant separately, was below Rs.25,000/-, viz exempted from levy of Court-fee." It was held by a learned Division Bench of Peshawar High Court in the case of "Arbab Ghulam Ali Khan and 14 others versus Arbab Muhammad Hussain and 14 others" (PLD 1986 Peshawar 72) that claim of plaintiff against each of the Defendants No. 1 to 21 is to be valued separately for the purposes of Court-fee.
(iv) In the case of "Ava A Cowasjee and 8 others versus Nasreen Nizam Shah and 4 others" (1984 CLC 2705) a plaintiff filed a single suit claiming different amounts. It was held that claims of different plaintiffs based on distinct subjects, are to be valued separately. Plaintiffs were directed to pay Court-fee on their respective claims instead of paying maximum Court-fee of Rs. 15,000/- (rupees fifteen thousand only).
(v) In the case of "Ainullah versus Abdul Rashid" (1985 SCMR 1991) two appeals against the order of ejectment passed by the Rent Controller were filed before the High Court, which were disposed of through a consolidated judgment. Consolidated judgment was assailed before the apex Court against which an objection was raised that the consolidated judgment has been passed in two appeals and it is not clear that judgment in which of the two appeals, was assailed in the Supreme Court. The Hon'ble Supreme Court instead of treating the memo of appeal in one appeal, treated the memo in both the appeals, while holding that the objection is valid but being technical in nature, can be ignored and directed to make up the Court-fee by tendering additional Court-fee in respect of other appeal.
From the survey of above case-law, it can safely be concluded that each petitioner, in a joint petition has his/its own cause of action and relief claimed by such petitioner is to his extent and grievance of each petitioner is individual. The petition by each one of the petitioners in a joint petition, shall be deemed independent and each of such person, shall be liable to pay Court-fee separately. The object, of allowing joint petitions, is to avoid conflicting judgments or to allow litigants to conveniently and properly file one petition without going into a hassle of filing and documenting the petition separately. This however does not absolve the petitioners from payment of Court-fee, separately. Single set of Court-fee in such petition, is not legal.
One set of Court-fee, is payable by several petitioners only when inter se the petitioners a jural relationship subsists i.e. association of persons registered as a firm or incorporated company etc, or in the case of public injury leading to public interest litigation, or in case where series of complained/impugned acts arise out of one action or order.
In view of what has been discussed above, the objection sustains and the petitioners, who have jointly filed petition, are liable to pay separate Court-fee.
(R.F.K.) Order accordingly.
PLJ 2007 Lahore 853
Present: Jawwad S. Khawaja, J.
HUMAYUN MIRZA--Petitioner
versus
Mrs. SHAHIDA A. RAJPUT and another--Respondents
C.R. No. 2525 of 2006, heard on 8.3.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. I, R. 10--Joinder of--Suit for annulment--Agreement to sell--Suit for specific performance--Pendings--During the pendency of the suits the respondent entered into an agreement to sell--Buyer filed an application under Order I Rule 10 which was allowed by trial Court--Revision petition--Original agreement between the parties gave an independent right to respondent to enter into an agreement with the said buyer--Obligation assumed by the petitioner is that he will execute documents in favour of the respondent or her nominee--No right has been assigned to respondent to enter into further agreements with third parties--Petitioner has retained with himself the right to sign transfer documents whether in favour of the purchaser or her nominee--Held: Revision was allowed and the application under Order 1 Rule 10 filed by buyer was dismissed.
[Pp. 855 & 856] A & C
Transfer of Property Act, 1882 (IV of 1882)--
----S. 54--Civil Procedure Code, (V of 1908), S. 115, O. I, R. 10--Agreement--Interest in property--Mere agreement to sell does not create any interest in the property--Matter of agreement--Held: Agreement to sell between the parties did not confer any right or interest in favour of the buyer--Respondent who herself did not have any interest in the suit property, could not enter into any agreement for the sale of the same--Held: Application u/O. I, R. 10 filed by the buyer was dismissed. [P. 856] B
2000 SCMR 937 (ref.)
Mr. Hamid Ali Mirza, Advocate for Petitioner.
Mr. Muhammad Rashid Ch., Advocate for Respondent No. 2.
Date of hearing: 8.3.2007.
Judgment
Humayun Mirza petitioner-plaintiff impugns the order of the learned trial Court dated 1.12.2006, whereby an application filed by Mst. Azra Asghar (Respondent No. 2) under Order 1 Rule 10 CPC has been allowed and she has been directed to be impleaded as a defendant in the suit.
The petitioner filed a suit on 31.5.2003 praying, inter alia, for annulment of an agreement dated 7.6.2000 and for recovery of damages against the Defendant-Respondent No. 1, namely, Mrs. Shahida A. Rajput. It was the petitioner's case that he had entered into an agreement to sell the suit property to Respondent No. 1 for a total consideration of Rs. 63,00,000/- out of which he had received Rs. 15,00,000/- on the execution of the agreement. The petitioner also admitted receiving Rs. 6,00,000/- through a cheque dated 29.6.2000 and a further sum of Rs.4,00,000/- through a cheque dated 26.7.2000. He, however, alleged that Respondent No. 1 had falsified the receipts for the two cheques, mentioned above, through interpolation and instead of the figures of Rs. 6,00,000/- and Rs.4,00,000/-, the amounts therein were respectively interpolated as Rs. 16,00,000/- and Rs.14,00,000/-.
Respondent No. 1 Mrs. Shahida A. Rajput also filed a suit seeking specific performance of the above-referred agreement dated 7.6.2000. This suit was filed on 28.9.2000. According to her, the petitioner-plaintiff had been delaying execution/transfer of the property to her name and also that time for performance of the agreement was not of the essence.
Both suits were consolidated and are being tried together by the learned trial Court. On 10.10.2006, Mst. Azra Asghar (Respondent No. 2) filed the above-referred application under Order 1 Rule 10 CPC. She claimed that Mst. Shahida Rajput (Respondent No. 1) had entered into an agreement dated 22.3.2005 to sell the suit property to her (Mst. Azra Asghar) for a total consideration of Rs. 1,00,00,000/- out of which a sum of Rs. 80,00,000/- had been paid while the balance sum of Rs. 20,00,000/- was outstanding. A similar application was filed by Mst. Azra Asghar in the suit for specific performance filed by Mst. Shahida Rajput.
Learned counsel for the petitioner has argued that the applicant Mst. Azra Asghar has no locus standi in the case, firstly, because the alleged agreement between her and Mst. Shahida Rajput was entered into during the pendency of the two suits, mentioned above. Secondly, it was contended that the applicant could, at best, have filed a suit against Respondent No. 1 because of her alleged agreement with the said respondent but she had no cause of grievance against the petitioner-plaintiff because there was no privity of contract between the two.
Learned counsel for Mst. Azra Asghar could not dispute the fact that there was no privity of contract between Mst. Azra Asghar and the petitioner Humayun Mirza. He, however, stated that the agreement to sell between Humayun Mirza and Mrs. Shahida A. Rajput (Respondent No. 1) contained in clause-4 in the following terms:-
"That the SELLER will make himself available and sign all the documents which he is called upon by the above to sign by the PURCHASER or the Society (L.C.C.H.S) in connection with the transfer of the above said property in favour of the PURCHASER or any of her nominee."
The term SELLER' in the agreement has been used for the petitioner while the respondent Mst. Shahida A. Rajput has been described therein as thePURCHASER'. It was submitted on behalf of Mst. Azra Asghar that the above clause gave an independent right to Mrs. Shahida A. Rajput to enter into an agreement with Mst. Azra Asghar. This contention is wholly misconceived. The obligation assumed by the petitioner under the said clause is that he will execute documents in favour of Mrs. Shahida A. Rajput or her nominee. No right has been assigned to Mrs. Shahida A. Rajput to enter into further agreements with third parties. It is also clear that the petitioner has retained with himself the right to sign transfer documents whether in favour of the purchaser or her nominee. Through this device he has ensured his own direct involvement in all cases where rights in favour of third parties are to be created.
It is clear from the wording of this clause that the Second Party, ( ), had specifically been granted authority to enter into an agreement with a third party without the intervention of the original owners. The said clause in effect amounted to the purchaser being an authorized attorney of the original owners, capable of executing agreements as of right, in favour of third parties. No such construction can be placed on clause-4 of the agreement between the petitioner and Mrs. Shahida A. Rajput. As noted earlier, the petitioner has not given any authority to Mrs. Shahida A. Rajput to execute an agreement on her own with a third party without involving the petitioner. In the circumstances, the precedent cited on behalf of Mst. Azra Asghar cannot be treated as authority in support of her case.
There is yet another aspect of the case which requires consideration. Section 54 of the Transfer of Property Act expressly stipulates that a mere agreement to sell does not, by itself, create any interest in the property which is subject-matter of such agreement. It is thus clear that the agreement to sell between the petitioner Humayun Mirza and the respondent. Mst. Shahida A. Rajput did not confer any right or interest in favour of the said respondent. It, therefore, follows that Mst. Shahida A. Rajput, who herself did not have any interest in the suit property, could not enter into any agreement for the sale of the same. This aspect of the present case also distinguishes it from the case of Sana Ullah vs. Rashid Ahmad Khokhar supra.
In view of the foregoing discussion, this petition is allowed. As a consequence the application filed by Mst. Azra Asghar under Order I Rule 10 CPC is dismissed with costs.
(R.F.K) Petition allowed.
PLJ 2007 Lahore 857
Present: Sardar Muhammad Aslam, J.
SOHAIL SARWAR BUTT and another--Petitioners
versus
LAHORE DEVELOPMENT AUTHORITY through its Director General, Egerton Road, Lahore and another--Respondents
W.P. No. 14990 of 2004, decided on 8.3.2007.
Constitution of Pakistan, 1973--
----Art. 199--Writ Jurisdiction--Exercise of--Pre-requisite--Constitutional jurisdiction is exercised only where the order of statutory authority is without jurisdiction, illegal and against facts admitted on record.
[Pp. 859 & 860] A
Constitution of Pakistan, 1973--
----Art. 199--Writ Jurisdiction--Pendency of civil suit--Constitutional jurisdiction--Principle--Once a litigant opts a remedy he must exhaust the same and is not allowed to switch over to any other remedy in mid of proceedings just at his own sweet will--Rationale behind in expressing confidence and to avoid any mistrust in Courts and tribunals, which may undermine the confidence of public.
[P. 860] B
Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Maintainability--Civil suit filed on the same cause of action--Petitioner, during pendency of Constitutional petition has of its own, voluntarily filed a civil suit, exactly on the same cause of action, before a civil Court held, cannot turn around to canvass the maintainability of Constitutional petition--Petition dismissed. [P. 860] C
PLD 1972 SC 279, 1982 SCMR 173, 1985 SCMR 359, 1980 CLC Lahore 1980, PLD 1988 Lahore 243, 1992 CLC Karachi 1017, PLD 1962 Lahore 151, PLD 1975 SC 244, PLD 1992 SC 847, PLD 1993 SC 434, 1994 SCMR 859, 1975 SCMR 489 and 2000 SCMR 1689 (ref.)
Syed Kazim Bokhari, Advocate for Petitioners.
Mr. Muhammad Ghani, Advocate/Legal Advisor for Respondent-LDA.
Date of hearing: 8.3.2007.
Order
Precisely the case of the petitioners is that they are owners in possession of land measuring 9 kanals 1 Marla, consisting Khasra No. 830 (2-K 12-M) and Khasra No. 833 (6-K 9-M) situated in Mauza Bhobtian Tehsil and District Lahore, which was purchased by the petitioners through sale on 18.02.1996.
Contends that the respondents-authority acquired the aforenoted land under political pressure and that price of the land was assessed incorrectly.
Respondent-LDA in response to the notice entered appearance and submitted parawise comments. They have stated that the acquisition and possession proceedings of the land have been carried out entirely in accordance with the relevant provisions of Land Acquisition Act, 1894.
Respondent's learned counsel, at the very outset, raised a preliminary objection in regard to maintainability of this Constitutional petition on account of petitioners' approaching Civil Court in a suit for declaration claiming exactly the same relief, sought herein, hence the instant writ petition merits dismissal.
On the other hand learned counsel for the petitioners in response argued that filing of a civil suit is not an efficacious remedy, and, thus he can maintain this petition. He relied on The Muree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279); Province of Punjab and 2 others v. Ch. Zahoor Elahi etc. (1982 SCMR 173); Ch. Abdul Hamid v. Deputy Commissioner and others (1985 SCMR 359); Muhammad Mubarak Khan v. The Settlement and Rehabilitation Commissioner, Multan and Bahawalpur Division, Multan and 3 others (1980 CLC Lahore 1980); M.N. Steel Mills v. The Water and Power Development Authority (PLD 1988 Lahore 243); and Messrs Haroon Brothers v. Drugs Registration Board and another (1992 CLC Karachi 1017).
I have heard gone through the judgments cited by the learned counsel for the petitioners.
In Murree Brewery Co. Ltd. case supra, it was held that when very jurisdiction of the authority to make acquisition is under challenge then insisting to avail remedy of statutory departmental appeal, may be an exercise in futility. However, such a situation is not obtaining herein.
In Province of Punjab and 2 others Supra the matter arose out of a civil suit, hence the same is not applicable.
In Ch. Abdul Hameed's case supra the Honourable Supreme Court reiterated its view taken in Murree Brewery Co. Ltd. case, aforementioned.
In Muhammad Mubarak Khan's case supra a learned Judge in chamber of this Court was pleased to hold that a remedy of Constitutional jurisdiction is not barred even when a civil suit is pending by placing reliance on the views expressed in Mst. Sattan and others v. Group Captain Masroor Hussain (PLD 1962 Lahore 151) and Salahuddin and others v. Frontier Sugar Mills & Distillery Ltd. (PLD 1975 SC 244), not in accord with the latest pronouncement of the Hon'ble Supreme Court.
In M.N. Steel Mills supra, a learned Judge in chamber of this Court noticing the cases listed above exercised Constitutional jurisdiction.
In Messrs Haroon Brother's case supra, a learned Division Bench of Sindh High Court, Karachi held that where alternate remedy was not efficacious nor speedy, will not debar litigant to seek relief in the Constitutional jurisdiction.
In case of the Commissioner of Income Tax, Karachi and 2 others v. Messrs. N.V. Phillip's Gloeilampenfabriaken (PLD 1993 SC 434) while reiterating the view taken in the above case the Hon'ble Supreme Court was pleased to observe as under:-
"In our view, once a party opts to invoke the remedies provided for under the relevant statute, he cannot at his sweet will switch over to Constitutional jurisdiction of the High Court in the mid of the proceedings in the absence of any compelling and Justifiable reasons."
In Export Promotion Bureau and others v. Qaiser Shafiullah (1994 SCMR 859), it was held that Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. The Constitutional jurisdiction is only pressed into service against an order, which is without jurisdiction or intended with malice or is violative of a provision of the Constitutional law and not to correct a finding of fact.
After examining the law cited by both sides it becomes crystal clear that Constitutional jurisdiction is exercised only where the order of statutory authority is without jurisdiction, illegal and against facts admitted on record. Pendency of civil suit was considered to be not an efficacious, alternate remedy to deprive a litigant from invoking Constitutional jurisdiction. However, by now, the Hon'ble Supreme Court has held that once a litigant opts a remedy he must exhaust the same and is not allowed to switch over to any other remedy in mid of proceedings just at his own sweet will. The principle enshrined in the above judgments had a rationale behind in expressing confidence and to avoid any mistrust in Courts and tribunals, which may undermine the confidence of public.
The petitioner, during the pendency of Constitutional petition has of its own, voluntarily filed a civil suit, exactly on the same cause of action, before a Civil Court and, thus, cannot turn around to canvass the maintainability of Constitutional petition. Reference can be had to Mukhtar Ali and others v. Settlement Commissioner (Lands) Sargodha and others (1975 SCMR 489) and Mir Zaman v. Mst. Sheda and 58 others (2000 SCMR 1689).
For what has been discussed above, this petition merits dismissal on the ground of maintainability and is dismissed as such.
(R.F.K.) Petition dismissed.
PLJ 2007 Lahore 860 (DB)
Present: Muhammad Sayeed Akhtar and Syed Sakhi Hussain Bukhari, JJ.
AL-AMARIA MASOOMA ZAINAB--Petitioner
versus
THE PRINCIPAL, ALLAM IQBAL MEDICAL COLLEGE, LAHORE and 3 others--Respondents
W.P. No. 1105 of 2006, heard on 12.4.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Educational institution--Chances permissible under rules--Examination of M.B.B.S.--Exhausted all chances--Prayer for--An opportunity for clearing the examination--Not provided sufficient time for preparation of supplementary examination--Availed chances--Petitioner opted to avail the earliest opportunity for clearing the examination--Petitioner cannot be allowed to have a volt face at stage that she was not provided sufficient time. [P. ] A
(ii) Educational Institution--
----Right to seek education--Eligibility--Availed chances--Statute/ Regulations framed by the university--If a student fails to clear the examination in the prescribed chances, he ceases to become eligible for further medical education--Petition dismissed. [P. ] B
Mr. Abdul Sadiq Chaudhry, Advocate for Petitioner.
Mr. Rasal Hassan Syed, Advocate for Respondents.
Date of hearing: 12.4.2006.
Judgment
Muhammad Saeed Akhtar, J.--The petitioner was admitted in the Alama Iqbal Medical College in the First Year M.B.B.S. She appeared in the First Professional M.B.B.S. Part-I Examination 2003 but failed. She re-appeared in the Supplementary Examination held in 2004 and qualified the exam. She took the First Professional M.B.B.S. Part-II Annual Examination 2004 but remained unsuccessful. She again appeared in the Supplementary Examination held in April, 2005 and Annual Examination held in December, 2005 but could not qualify. She thus exhausted all the three chances permissible under the rules.
Conversely the learned counsel for the respondent University submitted that Part-I and Part-II of the First Professional M.B.B.S. are independent parts. As per University Regulations three chances are provided for passing each part. Learned counsel relied upon the judgment of the Hon'ble Supreme Court dated 24.10.2005 passed on C.P. Nos. 1448, 1459 and 1460-L/2005 and order dated 26.1.2006 passed on C.P. No. 45/2006.
"3. A candidate who fails to pass First Professional Part-I Examination in three consecutive chances, availed or unavailed, after becoming eligible for First Professional Part-I Examination shall cease to become eligible for further medical education.
The P.M.D.C. Regulations on the subject is as follows:--
"PMDC Regulation
Any student who fails to pass the first professional MBBS Part-I and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue farther medical education in Pakistan."
The bare reading of the aforementioned regulations reveals that the First Professional M.B.B.S. comprises of two independent parts i.e. Part-I and Part-II and for each part three consecutive chances, availed or unavailed, have been provided for qualifying the same. The three chances are part specific and by no stretch of imagination can be carried forward. The language of the said regulations is unambiguous and leaves no doubt in our mind that the left over chances of the First Part cannot be carried over to the Part-II. The desired interpretation of the regulations cannot be achieved without doing violence to the language of the said regulations. The Hon'ble Supreme Court in the case of Muhammad Umar Wahid, etc. Vs. University of Health Sciences etc. C.P. No. 45/2006 observed that the judgment of the Peshawar High Court "turned on the interpretation and the relevant provision in the prospectus and cannot be cited as laying down a general principal."
As far as the argument of the learned counsel for the petitioner that the petitioner was not provided enough time for preparation of Supplementary examination held in April, 2005 suffice to say that the petitioner voluntarily appeared in the said exam and never agitated the matter before the competent authority. The petitioner opted to avail the earliest opportunity for clearing the examination. She cannot be allowed to have a volte face at this stage and say that she was not provided sufficient time. The Hon'ble Supreme Court in the case of Sadua Firdous Vs. Government of Punjab etc., C.P. Nos. 1448, 1459 and 1460-L/2005 observed as under:--
"It may be noted that the petitioners voluntarily appeared in the examination whenever the same was scheduled and there is nothing on the record to show that they ever agitated not to take the examination for the reasons, including on premises on which case is being argued."
We are of the view that the right of the petitioner to seek education is subject to Statutes/Regulations framed by the University to regulate the studies. If a student fails to clear the examination in the prescribed chances, he ceases to become eligible for further medical education.
(N.F.) Petition dismissed.
PLJ 2007 Lahore 863 (DB)
Present: Maulvi Anwarul Haq and Syed Asghar Haider, JJ.
Mian JAVED IBRAR-UL-HAQ--Appellant
versus
PROVINCE OF PUNJAB through Secretary Local Govt. and Rural Development, Civil Secretariat and 5 others--Respondents
ICA No. 372 of 2006 in W.P. No. 9031 of 2006, decided on 21.2.2007.
(i) Punjab Local Government (Property) Rules, 2003--
----Rr. 9(2) & 16--Punjab Local Government Ordinance, 2001, S. 124--Proviso--Mandatory terms Immovable Properties--Local Government would not be sold or alienated--Question of--Determination--Competitive bidding--Public auction--Immovable property of a local Government would be given on lease through a competitive bidding and procedure prescribed in Rule 9(2) has been made applicable mutatus mutandis in the matter of the giving on lease of the property of the Local Government. [P. ] A
(ii) Punjab Local Government Ordinance, 2001--
----S. 196(2)--Lease can be granted--Effect of--Repeal of legislative--Provisions--Agreement--Not affected--Lease granted can be extended--Binding on Local Council--Lease granted can be extended by the respondent--Section 124 read with the such rules framed under Punjab Local Government Ordinance binds a Local Council to lease out the property only through competitive bidding in an open auction--ICA dismissed in limine. [P. ] B
Ch. Khan Muhammad Bajwa, Advocate for Appellant.
Ch. Naeem Masood, AAG, Punjab (on Court Call).
Date of hearing: 21.2.2007.
Judgment
This ICA proceeds against the judgment dated 27.11.2006 passed by a learned Single Judge, in Chamber, of this Court, whereby W.P. No. 9031/06 filed by Respondent No. 6 was disposed of with a direction to the Respondents No. 2 to 5 to re-auction the contract for lease of the property of the said local body fixing Rs. 2,00,000/- as the reserved price.
Learned counsel for the appellant contends that the initial contract was awarded to his client in the year 2000 and as such by virtue of Section 196 of the Punjab Local Government Ordinance, 2001, will continue to take effect notwithstanding anything to the contrary in the said Ordinance. Learned AAG who has put in appearance on Court call, on the other hand, draws our attention to the provisions of Section 124 of the said Ordinance as also the Punjab Local Government (Property) Rules, 2003. He opines that in case of an inconsistency the provisions of the Ordinance are to prevail.
We have considered the said submissions of the learned counsel and the learned Law Officer. Section 124 of the Punjab Local Government Ordinance, 2001, lays down in mandatory terms that immovable properties of local Governments shall not be sold or permanently alienated. However, an exception has been made in the proviso to the effect that such properties may be given on lease through competitive bidding by public auction. Rule 16 of the Punjab Local Government (Property) Rules 2003, provides that the immovable property of a local Government shall be given on lease through a competitive bidding and procedure prescribed in Rule 9 (2) has been made applicable mutatus mutandis in the matter of the giving on lease of the property of the local Government.
Coming to the said contention of the learned counsel, Section 196 of the said Ordinance provides for repeal, of the several legislative enactments mentioned in sub-section (1) thereof. The reliance of the learned counsel is on sub-section (2) of the said Section 196. We have examined the said provisions and we do agree with the learned Law Officer that, inter alia, a document or agreement made shall not be affected provided it is not inconsistent with any of the provisions of the Ordinance. The learned counsel is insisting that under the said agreement, the lease granted in the year 2000 can be extended by the respondent-Local Government. However, Section 124 read with the said Rules framed under the said orindance binds a Local Council to lease out the property only through competitive bidding in an open auction. This is what the impugned judgment precisely directs the Respondents No. 2 to 5 to do. We have noted with concern that the said judgment was passed in presence of all concerned on 27.11.2006 and still the said judgment has not been complied with.
The ICA is dismissed in limine. A copy of this order be immediately remitted to Respondents No. 2 to 5 who shall proceed to comply with the judgment dated 27.11.2006 of the learned Single Judge and file a compliance report within six weeks to the Additional Registrar (Judicial) of this Court.
(N.F.) I.C.A. admitted.
PLJ 2007 Lahore 864
[Rawalpindi Bench Rawalpindi]
Present: Sayed Zahid Hussain, J.
FAHEEM AHMAD--Appellant
versus
MUHAMMAD SIDDIQUE--Respondent
F.A.O. No. 173 of 2006, heard on 19.2.2007.
(i) Cantonment Rent Restriction Act, 1963--
----S. 24--Requirement of shop--Personal use--Ejectment petition--Case of the landlord that he was conducting in business at some other rented premises and wanted to start business in his own property--Such an assertion of the land lord found favour with additional rent controller--Choice of the suitability of the premises ultimately rested with the landlord--Validity--Held: Landlord himself was running his business at some rented premises he had every right to get the premises vacated for lis own use and occupation--Finding of the rent controller on this aspect hardly called for any interference--Appeal was dismissed--However six months time was granted to the appellant for winding up of his running business and making some alternate arrangement, coupled with the clarification that during that period the appellant could continuously deposit the rent of the premises. [P. ] A & B
1986 SCMR 651; 1988 SCMR 772; 1989 SCMR 1366; 1990 SCMR 1070 and PLD 1995 Lahore 469, ref.
Syed Muzammil Ullah Shah, Advocate for Appellant.
Mr. Asif Taufeeque, Advocate for Respondent.
Date of hearing: 19.2.2007.
Judgment
This is appeal under Section 24 of the Cantonment Rent Restriction Act, 1963 against the order passed by the Additional Rent Controller, Cantonment dated 25.9.2006 whereby the ejectment petition was accepted.
The learned counsel for the parties have been heard and the record has been perused with their assistance.
Two shops adjacent to each other Bearing No. 141-E3 and 141-E4 situated in Bakar Mandi Dhok Syedan Rawalpindi Cantt. had been rented out to the appellant where he had been carrying on his business. One of the shop i.e. 141-E4 according to him was vacated by him keeping in view the wishes of the landlord in 2000 whereas 141-E3 was retained by him. Through the ejectment petition, his ejectment was sought from this shop on the ground of default in payment of rent and the requirement of shop for personal use and occupation. The case pleaded and sought to be proved by the respondent/landlord was that he was conducting business at some other place i.e. Poonch House, Adam Jee Road, in rented premises and wanted to start business in his own property and that shop already vacated by the appellant was not sufficient to cater for his needs, which was lying vacant since 2000. According to his learned counsel he wanted to start his business on vacation of shop by appellant in both the shops, which were adjacent to each other. Such an assertion of the respondent/landlord found favour with the learned Additional Rent Controller. The learned counsel has cited number of precedents including Muhammad Mubin v. Abdul Hakim and others (1986 SCMR 651), Ismail v. Mst. Sher Bano through her Legal Heirs (1988 SCMR 772), Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366), Haji Hohibullah & Co. and others v. Khawaja Bahauddin (1990 SCMR 1070) and Gohar Rashid v. Fazal Hasan Mazhar (PLD 1995 Lahore 469), to contend that the choice as to suitability of the premises ultimately rests with the landlord. In view of the settled position of law, there can be no cavil that when a landlord himself is running his business at some rented premises he has every right to get the premises vacated for his own use and occupation. The finding of the Rent Controller on this aspect hardly call for any interference.
According to the learned counsel the sole dependency of the appellant is the business which he is conducting in the rented shop. Undoubtedly, for making alternative arrangement a reasonable time would be required. Keeping all aspects in view while dismissing the appeal, I consider it just and fair that six months time should be given to the appellant for winding up of his running business and making of some alternate arrangement. It is however, observed and clarified that during this period the appellant would continuously deposit the rent of the premises. No order as to costs.
(M.A.) Appeal dismissed.
PLJ 2007 Lahore 866
Present: Maulvi Anwar-ul-Haq, J.
Mst. AYESHA--Petitioner
Versus
MATEEH-UR-REHMAN and others--Respondents
C.R. No. 346 of 2007, decided on 20.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Qanun-e-Shahadat Order, (10 of 1984), Art. 33--Referee's--Statement to be taken as admission--Statement made by a Referee is to be treated as an admission on behalf of the parties referring--Admission which is wrong in point of fact or otherwise can be withdrawn. [P. 869] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Qanun-e-Shahadat Order, (10 of 1984), Art. 33--Referee--Statement of--Withdrawal of the statement of referee--Referee had not consulted the records while making the statements before the trial Court would be evident from examining of his statements noted in the last two civil revisions where the referee had left it to the Court to discover any mistake in the revenue records--Held: It had been rightly assumed by First Appellate Court that the statements in other cases were also given by the Referee without examining the revenue records--Revisions dismissed. [P. 869] B
Mr. Irshad Ahmad Qureshi-I, Advocate for Petitioner.
Date of hearing: 20.2.2007.
Order
This order shall decide Civil Revisions No. 346 to 353 of 2007 as a common question is involved.
The learned trial Court passed the following order on the said date in all these cases:
"Present counsel for the parties.
Keeping in view the statement of counsel for the parties. Malik Gehla Khan s/o Mahla Khan caste Jasra, r/o Pelovance, Tehsil Noorpur Thal, is appointed as referee. He is present in the Court. He is directed to decide the matter after hearing the parties and perusal of the Revenue Record available in this respect. No body will file objection on the report of Referee.
Now to come up on 8.9.2005."
On 14.12.2005 the said Gheela Khan. Referee, got recorded his statements in favour of the petitioners. On 20.12.2005 the said referee filed applications stating that he has made wrong statements without examining the records and the records have been examined by him and his statements he recorded accordingly. Vide orders dated 17.3.2006 in all these cases the learned trial Court dismissed the said applications and proceeded to decree all the suits. Feeling aggrieved the respondents filed eight first appeals which have been allowed by a learned ADJ, Khushab, on 7.10.2006 who has set aside the said decrees and remanded back the cases to the learned trial Court for decision of the suits on merits.
Learned counsel for the petitioners contends that the matter was referred to the said Referee by the parties with their free consent and also agreed not to question his statement and as such the learned ADJ has acted without jurisdiction while passing the impugned orders.
I have gone through the copies of the records, appended with all these civil revisions, with the assistance of the learned counsel. I have already noted above the relevant proceedings in these cases. The Referee was required by Court to decide the matter after hearing the parties and perusal of the revenue records. I deem it appropriate to reproduce there the statements made by the said Gheela Khan in these cases:-
(i) C.R. No. 346/07.
(ii) C.R. No. 347/07.
(iii) C.R. No. 348/07.
(iv) C.R. No. 349/07.
(v) C.R. No. 350/07.
(vi) C.R. No. 351/07
(vii) C.R. No. 352/07
(viii) C.R. No. 353/07.
In all these cases the Referee filed written applications on 22.12.2005 stating that the statements noted above were given by him on 14.12.2005 without examining the records and that he has now checked up the records, with the assistance of the Patwari and his earlier statements are incorrect and the correct position is that the suits filed by the petitioners are liable to be dismissed.
The learned trial Court had dismissed the said applications not on the ground that what the Referee has pleaded is not correct but on the ground that the respondents cannot controvert the statements of the Referee. It is but obvious that the learned trial Court completely lost sight of the fact that in terms of Article 33 of the Qanun-e-Shahadat Order, 1984, a statement made by a Referee is to be treated as an admission on behalf of the parties referring. It is also by now a settled law that an admission which is wrong in point of fact or otherwise can be withdrawn. It was a case where the Referee had moved the Court stating that he had made wrong statements and he be allowed to make correct statements as the earlier statements were made by him without examining the revenue records as directed by the Court. Learned counsel then contends that the referee at a later point of time colluded with the respondents and made the said applications which were rightly ignored by the learned trial Court. I am not inclined to agree with the learned counsel in view of the clear orders of the learned trial Court that the Referee was to decide the matter after hearing the parties and consulting the revenue records. The fact that the Referee had not consulted the records while making the statements on 14.12.2005 would be evident from examining of his statements noted in the last mentioned two civil revisions. I wonder as to how the learned trial Court decreed the suits subject-matter of the said civil revisions on the said statements as the Referee had left it to the Court to discover any mistake in the revenue records. In view of the said position, it has been rightly assumed by the learned ADJ that the statements in other cases were also given by the Referee without examining the revenue records.
Even if the said contention of the learned counsel is taken at its face value then in my humble opinion it was absolutely dangerous for the learned trial Court to have relied upon the statements of such a person as being depicted by the learned counsel for the purposes of decision of the suits. All the civil revisions are accordingly dismissed in limine.
(R.F.K) Civil Revisions dismissed.
PLJ 2007 Lahore 870
Present: Muhammad Akhtar Shabbir, J.
ALI HASSAN--Petitioner
Versus
SHER MUHAMMAD and another--Respondents
C.R. No. 194 of 2004, heard on 6.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 75, O. XXVI, R. 10--Report--Local Commission--Objections--Reliability--Disposing of the objections condition precedent--Objection on the report of local commissioner has not been disposed of and the Court has not given its findings separately before the final judgment that whether the report was maintainable and is liable to be rejected in the eyes of law--Held: Report of local commission cannot be relied upon without disposing of the objections to the report. [P. 872] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 75, O. XXVI, Rr. 9 & 10--Credibility of report--Local Commission--Determination--Objection--Findings--Maintainability--Judicial or quasi-judicial authority--Once the report was accepted, same would carry no ordinary weight--Acceptance of report could be on the basis of rejection of objection to that report or alternatively on no objection having been raised at all. [P. 872] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 75, O. XXVI, R. 10(3)--Report of Local Commission--Objections--Dissatisfied--Confirmation--Without accepting or turning down the objections and without confirmation of the report of the local commissioner, it could not have been relied for the decision and for this purpose. Trial Court had to apply its judicial mind for passing a specific order. [Pp. 872 & 873] C
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & 75, O. XXVI, Rr. 9 & 10--Revisional Jurisdiction--Objections on the report of Local Commission--Validity--Court was under legal obligation to accept or reject the report of the local commissioner but no such exercise was taken by the learned trial Court or appellate Court and unconfirmed report of the local commissioner had been relied upon--Held: Judgements and decrees of the Trial Court as well as Appellate Court were passed with material irregularities and illegalities calling for invocation of revisional jurisdiction by this Court, hence are set aside. [P. 873] D
NLR 1993 UC (Civil) 792, 1991 MLD 1774 and 2004 MLD 1107 (ref.)
Hafiz Khalil Ahmad, Advocate for Petitioner.
Mr. Khan Imtiaz Ali Khan, Advocate for Respondent No. 1.
Mian Ghulam Rasool, Advocate for Respondent No. 2.
Date of hearing: 6.3.2007.
Judgment
This revision petition under Section 115 C.P.C. has been filed to call in question the judgments and decrees dated 6.9.2001 and 17.1.2004 passed by the Courts below.
re-construction of the plot, the defendant/petitioner Ali Hassan had no concerned with the said plot. The suit was contested by the defendant/petitioner; who filed his written statement denying the averments of the plaint.
From the factual controversy appearing on the pleadings of the parties, learned trial Court led to frame the various issues.
After recording and appreciating the evidence of the parties, learned trial Court dismissed the suit vide judgment and decree dated 23.10.1997. Feeling aggrieved thereby, an appeal has been filed before the appellate Court. The learned appellate Court appointed the Local Commissioner for determination of the question in dispute and thereafter remanded the case. The Local Commissioner appointed by the learned trial Court submitted his report and thereafter, the trial Court, vide its judgment and decree dated 6.9.2001 decreed the suit of the plaintiff/respondent. The appeal filed by the petitioner had also been dismissed.
Learned counsel for the petitioner contends that the trial Court has called the objections qua the report of the Local Commission, who before passing the final judgment has not disposed of the objections of the petitioner. Further contends that the Court has based its findings on the report of the Local Commission without being decided the maintainability of the same.
On the other hand, learned counsel for the respondents have vehemently opposed the arguments of the learned counsel for the petitioner contending that non disposal of the objections of the petitioner is not a ground to set-aside the concurrent findings of the Courts below.
I have heard the arguments of the learned counsel for the parties and perused the record.
It is an admitted position that the petitioner has filed the objection against the report of the Local Commissioner. The Local Commissioner has also been examined as a Court witness by the learned trial Court on 25.1.2001 and the case was adjourned for the arguments on the point of maintainability of the report of Local Commissioner in the eyes of law to 4.9.2004. The record of the trial Court was requisitioned and examined. From perusal of the order-sheet, it reveals that on 25.7.2001, the case was adjourned to 4.9.2001. The order is re-produced as under:-
"Arguments heard. Now to come up for orders on 6.9.2001."
The above-said order is un-signed order and the next date i.e. 6.9.2001 whereby the suit was decree is also un-signed.
From minute scrutiny of the record, it is established that the objection on the report of the Local Commissioner has not been disposed of and the Court has not given its findings separately before the final judgment that whether the report was maintainable and is liable to be rejected in the eyes of law. It is settled preposition of law by the superior Courts that the report of local commission cannot be relied upon without disposing of the objections to the report. In this context reliance can be made to the case of Muhammad Sharif Vs. Addl. District Judge, etc. (N.L.R 1993 UC (Civil) 792). In the case of Messrs Kausar & Co. Vs. Messrs Universal Insurance Co. (Pvt.) Limited (1991 M.L.D 1774), the credibility of report of Commissioner has been dealt with and it has been observed that the Commissioner was always a neutral person and what he would opine in a report duly submitted by him, would have the stamp of an impartial and non-partisan approach to the question entrusted to him and if it was otherwise, it was open to a disputant to lodge due objection whereupon it would come before the judicial or quasi-judicial authority, as the case may be, to determine how far the Commissioner's version was acceptable, on being duly tested. Once the report was accepted, same would carry no ordinary weight. Acceptance of report could be on the basis of rejection of objection to that report or alternatively on no objection having been raised at all. In another case of Muhammad Yousaf alias Bala Vs. Khuda Dad and 11 others (2004 M.L.D 1107), it has been observed that the trial Court was obliged under Order XXVI Rule 10 (3) CPC to decide objection to the report of the Local Commissioner and while doing so, to confirm it or if dissatisfied for any reason, to direct such further inquiry as may be necessary. In that case, it has further been observed that without accepting or turning down the objections and without confirmation of the report of the Local Commissioner, it could not have been relied for the decision and for this purpose, trial Court had to apply its judicial mind for passing a specific order.
In the instant case, the petitioner has filed the objection, reply to the same has also been filed by Respondents No. 1 & 2 but the Court has not disposed of the objections filled by the petitioner either the Court was under legal obligation to accept or reject the report of the Local Commissioner but no such exercise was taken by the learned trial Court or appellate Court and un-confirmed report of the Local Commissioner had been relied upon. In the circumstances, I am constrained to set-side both the judgments and decrees dated 12.9.2001 and 17.1.2004 passed by the learned Trial Court as well as lower appellate Court, respectively, which have been passed with material irregularities and illegalities calling for invocation of revisional jurisdiction by this Court.
For the foregoing reasons, this revision petition is accepted and the judgments and decrees dated 12.9.2001 and 17.1.2004 passed by the learned Trial Court as well as lower appellate Court, respectively are set-aside. The case is remanded to the learned trial Court for decision afresh after deciding the fate of the report of Local Commissioner and taking into consideration the objections raised by the petitioner.
(R.F.K) Petition accepted.
PLJ 2007 Lahore 873
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD SHAFI--Petitioner
versus
CH. NAZIR AHMED, EXECUTIVE DISTRICT OFFICER (REVENUE), TOBA TEK SINGH and others--Respondents
C.R. No. 820 of 2005, heard on 6.3.2007.
Transfer of Property Act, 1882--
----S. 52--Civil Procedure Code (V of 1908), S. 115--Lis Pendens--Applicability of--Lis pending and decided by the Revenue Officer and the Collector--Property transferred--Partition application was pending before the Revenue Officer and secondly to the petitioner, after the appeal was filed and the same was pending adjudication--Review application filed by the petitioner against the order passed in appeal--Sanction sought by DO(R) refused by the EDO(R)--Validity--Transactions are to have no effect on the result of the lis--Rule of lis pendens being a rule of equity is certainly applicable to the lis that was pending and decided by the Revenue Officer and the Collector--EDO(R) has, therefore, acted within his domain while refusing the sanction to review--Revision dismissed. [P. 875] A
Mian Muhammad Aslam, Advocate for Petitioner.
Mr. Hashim Sabir Raja, AAG for Respondent No. 1.
Mr. Riasat Ali, Advocate for Respondent No. 2.
Nemo for other Respondents.
Date of hearing: 6.3.2007.
Judgment
On 15.5.2002 the petitioner file a suit against the respondents. In the plaint, it was stated that the land, measuring 52, kanals 5 marlas, described in the plaint, was owned by Muhammad Alam Respondent No. 2 and his brother Ali Muhammad, the predecessor-in-interest of Respondents Nos. 3 to 6. Both the brothers had effected a private partition and were enjoying separate possession. Respondent No. 2 filed a partition application which was heard and allowed by the Revenue Officer on 13.10.1996. The Wandas were approved. Against this order, the Respondent No. 2 filed an appeal. The grievance was that a passage be provided to approach his separate share. This appeal was allowed on 3.4.2001 and a passage of Two Karms in Khasra Nos. 15 and 16 (Eastern) was given and an equal area was given from the Wanda of the Respondent No. 2 in Khasra No. 6 to the opposite party. It was explained that the appeal was filed on 31.10.1996 whereas Ali Muhammad had gifted away his land to his sons i.e. Respondents No. 3 to 6 on 23.8.1996. However, they were not impleaded as parties. Besides Ali Muhammad himself died during the pendency of the appeal and his sons had sold the land to the petitioner on 23.1.2001 and 15.3.2001 but he was not impleaded while the appeal was allowed on 3.4.2001. He filed a review application whereupon sanction was sought by the D.O. (R) vide order dated 15.11.2001 which was refused by the EDO (R) on 9.4.2002. This order was sought to be declared illegal and void and that the Respondent No. 2 is not entitled to any passage or its use. Alongwith this suit, an application was filed for grant of temporary injunction suspending the operation of the said appellate order. The suit and the application were primarily contested by Muhammad Alam, the deceased Respondent
No. 2. According to him, all the said transactions took place during the pendency of the partition proceedings and were not to have any effect. The application was dismissed by the learned trial Court on 9.2.2005. A learned ADJ, T.T. Singh, dismissed the first appeal of the petitioner on 12.4.2005.
Learned counsel for the petitioner contends that the said appellate order is void as the petitioner has been condemned unheard and its operation ought to have been suspended. Learned AAG argues that in view of the circumstances apparent on the face of the plaint, the EDO(R) had correctly refused to sanction the review. Mr. Riasat Ali, Advocate learned counsel for Respondent No. 2 contends that, admittedly, the said transactions had taken place during the pendency of the partition proceedings and were not reported to the Revenue Officers and as such the order shall take effect and the rights acquired by the Respondent No. 2 on the basis of the said pleadings will not at all be affected by the said transactions.
I have gone through the copies of the records. I have already narrated above the contents of the pleadings of the contesting parties particularly that of the plaint. Admittedly, Muhammad Alam and his brother Ali Muhammad were the two co-sharers of the land. Muhammad Alam filed the partition suit against his brother Ali Muhammad. The suit was decided and Wandas were approved on 13.10.1996. A first appeal was available and Muhammad Alam filed the same on 31.10.1996. This appeal remained pending when Ali Muhammad died and his LRs i.e. Respondents No. 3 to 6 were impleaded. The appeal was ultimately decided on 3.4.2001.
The case of the petitioner is that, in the first instance, Ali Muhammad gifted away the land to Respondents No. 3 to 6 on 23.8.1996. This is a point of time when the partition application was pending before the Revenue Officer. Thereafter, the Respondents No. 3 and 5 i.e. sons of said Ali Muhammad sold their share of the land to the petitioner on 23.1.2001 and 15.3.2001 respectively. This is a point of time after the filing of the appeal and before its decision on 3.4.2001. To my mind both the said transactions are to have no effect on the result of the lis. The rule of lis pendens embodied in Section 52 of the Transfer of Property Act, 1882, being a rule of equity is certainly applicable to the lis that was pending and decided by the Revenue Officer and the Collector. The EDO (R) has, therefore, acted within his domain while refusing the sanction to review. The impugned orders, therefore, do not at all attract the mischief of Section 115 CPC. The civil revision is accordingly dismissed but without any orders as to costs.
(R.F.K.) Revision dismissed.
PLJ 2007 Lahore (DB) 876
Present: Sh. Azmat Saeed and Sardar Muhammad Aslam, JJ.
MUHAMMAD ASAD LALI, EX-LAND ACQUISITION COLLECTOR, PUNJAB HIGH DEPARTMENT, LAHORE--Petitioner
versus
NATIONAL ACCOUNTABILITY BUREAU through its Chairman, Islamabad 2 others--Respondents
W.P. No. 6491 of 2005, decided on 15.11.2005.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Constitution of Pakistan, 1973--Constitutional petition--Bail after arrest--Prayer for--Medical monitering--Entitlment--Various ailments including backache, hepatitic-C--Accused was entitled to be enlarge on bail at such stage--However on no account can the accused be deprived of requisite and proper medical treatment which must be ensured and for that purpose, accused may be moved to hospital as indoor patient, if necessary, so that proper medical care and treatment can be guaranteed--Petition was dismissed. [P. ] A
Raja Amir Khan, Advocate for Petitioner.
Mr. Asad Manzoor Butt, Special Prosecutor for N.A.B.
Date of hearing: 15.11.2005.
Order
Through this constitutional petition it has been prayed that the petitioner who is an accused in a N.A.B Reference pending before the Accountability Court No. V, Lahore be enlarged on bail after arrest.
It is contended that the allegations against the petitioner are factually incorrect and in the facts and circumstances no case is made out against the petitioner. It is further contended that the petitioner is suffering from various ailments including backache, hepatitis-C and ulcers which cannot be satisfactorily treated within the Jail premises.
As directed by this Court Report and parawise comments have been filed by the respondents, who have taken the plea that the petitioner who was posted as Land Acquisition Collector, Punjab Highway Department, Lahore, criminally misappropriated a sum of Rs. 10,00,000/- by releasing it to a co-accused without following the provisions of Land Acquisition Act, 1894 and such act constitutes corruption and corrupt practices as defined by the N.A.B Ordinance, 1999. It is further stated in the report that the petitioner has never complained of his illness on the basis whereon bail has been sought.
During the course of the proceedings of the present constitutional petition, pursuant to the orders of this Court a Special Medical Board of the Services Hospital, Lahore was constituted to examine the petitioner. The said Board has submitted two separate reports which form part of the record.
The learned Counsel for the parties have been heard and the record appended with this petition has been perused.
It is contended by the learned Counsel for the petitioner that in the facts and circumstances of the case the allegations against the petitioner are factually incorrect. It is further contended that the petitioner suffers from chronic ailments which cannot be treated within the Jail premises which fact, it is contended, is borne out by the reports of the Special Medical Board constituted under the orders of the Court and in the circumstances the petitioner is entitled to be enlarged on bail. Reliance in this respect is placed on un-reported order of this Court dated 25.7.2005 passed in Writ Petition No. 10234/2005 titled "Shahbaz-ud-Din Chaudhry v. NAB etc."
The learned Special Prosecutor for N.A.B has seriously controverted the contentions raised on behalf of the petitioner. It is contended that the allegations against the petitioner are of very serious in nature and there is sufficient evidence on record to connect the petitioner with the crime. Furthermore, trial of the case before the Accountability Court is in progress. Several prosecution witnesses have been examined. The learned Special Prosecutor farther adds that it is apparent from the reports of the Special Medical Board that confinement of the petitioner in Jail is not per se hazardous to his life. The petitioner is obviously entitled to proper medical treatment for his ailments and if such treatment is not possible in the Jail Hospital, the respondents would have no objection if the petitioner is shifted to a regular hospital to ensure requisite treatment. In the circumstances the learned Counsel for the respondents contends that the petitioner is not entitled to be released on bail. Reliance in this behalf is placed on the cases reported as The State v. Haji Kabeer Khan (PLD 2005 Supreme Court 364) and Shahbazuddin Chaudhry & another v. State (PLJ 2005 SC 60).
Adverting first to the contentions of the learned Counsel for the petitioner on merits, suffice it to say that the said contentions are seriously controverted by the opposite side and determination of the veracity of such contentions would require deeper appreciation of the material and evidence on record which would not be advisable at this stage as it would prejudice the trial where progress has been made and several prosecution witnesses have already been examined.
This Court vide order dated 8.7.2005 directed the Superintendent Jail, wherein the petitioner is confined, to get the petitioner medically examined from a Special Medical Board of the Services Hospital, Lahore. Consequently, such a Special Board was constituted and the petitioner was examined and a report dated 20.7.2005 was submitted to this Court. The relevant portion of the said report reads as follows:--
"1. He needs to continue his treatment under care of Orthopedic Surgeon for his chronic backache.
According to the investigations available he is found to be a case of Hepatitis-C and would need therapy with interferons and ribavirin.
He needs to continue the therapy for his gastritis."
Subsequently, vide order dated 20.9.2005 the Medical Board was asked to submit a report as to whether the petitioner could be treated for the said ailments within the Jail premises and whether his stay in the Jail is detrimental to his life. Pursuant to the aforesaid order a report dated 27.9.2005 has been submitted by the said Medical Board, the opinion whereof reads as follows:--
"The Board is of the opinion that Hepatitis-C and backache are chronic ailments. The treatment of Hepatitis-C needs continuous monitoring of blood picture, especially Hemoglobin percentage and platelet count and liver function tests. While on interferon therapy, he is likely to be immunocomprised and thus will be prone to lot many other complications if he stays inside the Jail. For backache, he needs regular physical therapy for long period of time for complete recovery."
From the perusal of the opinion of the Board expressed in its report dated 27.9.2005 as reproduced above, it is clear and obvious that it has not been stated that the petitioner's continued confinement in the Jail per se is detrimental to his life. However, it has been stated that for the treatment of Hepatitis-C repeated blood tests would be required so as to monitor Hemoglobin percentage and platelet count. Similarly regular Liver Function Test would be required. It also appears that the treatment and cure for Hepatitis-C is not free from complications and would also require medical monitoring. Similarly for backache periodic and regular physical therapy for long period is also necessary for proper treatment of the petitioner. It appears that such monitoring and treatment may not be available in the Jail premises.
The apex Court in Shahbazuddin Chaudhry's case (Supra) while dealing with the issue of grant of bail on medical grounds was pleased to hold as follows:--
"There must exists strong reasons to believe that despite the availability of modern medical technology, life saving drugs, advance medical treatment and care, accused still requires treatment which is not generally available. Irrespective of above, medical opinion should be so explicit in nature that further detention of accused in jail would be hazardous to his life."
Examining the reports of the Special Medical Board in the context of law as laid down by the apex Court in Shahbazuddin Chaudhry's case (Supra) reproduced above, we are not inclined to agree with the learned Counsel for the petitioner that the petitioner is entitled to be enlarged on bail at this stage. However, on no account can the petitioner be deprived of requisite and proper medical treatment which must necessarily be ensured and for that purpose the petitioner may be moved to the Services Hospital as an indoor patient, if necessary, so that proper medical care and treatment can be guaranteed.
With the above observation, this petition is dismissed.
(N.F.) Petition dismissed.
PLJ 2007 Lahore 879
Present: Maulvi Anwar-ul-Haq, J.
WALI MUHAMMAD & others--Petitioners
versus
PROVINCE OF PUNJAB through District Collector/District Officer (Revenue) Khushab at Jauharabad and others--Respondents
C.R. No. 308 of 2003, heard on 9.2.2007.
(i) Punjab Tenancy Act, 1887--
----Ss. 114 (2)(c), (5)--Civil Procedure Code (V of 1908), S. 115--Revisional jurisdiction--Concurrent findings of fact--Limitation--Occupancy tenant--Extinguishment of the occupancy--Mutation attested--Occupancy right--Conferment of ownership right--Mortgaged with non-muslim--Mortgagee further mortgaged the land with other non-Muslim--No entry of mortgage in column of possession--Validity--Occupancy tenant acquiring land in accordance with the provisions of S. 14(2) would acquire it free from all encumbrances--The mortgage itself extinguished upon conferment of proprietary rights on the petitioners, therefore the later mutation on behalf of the Federal Govt. was wrongly incorporated in the revenue record in violation of the clear provision of law--Lower Courts failed to read and apply the relevant law and thus acted without jurisdiction in refusing the relief to the petitioners. [P. ] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Punjab Tenancy Act, 1887, S. 114--Revision jurisdiction--Confirment of proprietary rights--Being bona fide transferees for value--Admitted fact of extinguishment of tenancy and conferment of proprietary rights upon the petitioners free from all encumbrances by operation of law--Civil revision was dismissed. [P. ] B
1989 SCMR 780, ref.
Mr. Muhammad Farooq Qureshi Chishti, Advocate for Petitioners.
Sh. Naveed Shehryar, Advocate for Respondents.
Date of hearing: 9.2.2007.
Judgment
On 13.2.1993, the petitioners filed a suit against the respondents. In the plaint it was stated that the petitioners were in possession of the suit land as occupancy tenant. Upon amendment of the Punjab Tenancy Act, 1887, the occupancy extinguished and they were declared owners vide Mutation No. 278 attested on 24.11.1956. The land was mortgaged with non-Muslim but it was subject to occupancy rights of the petitioners and upon conferment of the ownership rights, the mortgage became, extinguished for all purposes. The said mutation was incorporated in the revenue record but the factum of mortgage continued to be mentioned illegally. On the basis of the said illegal entry the Federal Government transferred the land to the Respondents No. 3 and 4 vide Mutation No. 233 attested on 25.4.1983. It was stated that they have been illegally dispossessed in the year 1986-87. They accordingly sought a declaration and possession. The suit was contested by the Respondents No. 3 & 4. They claimed to be bona fide purchasers for value from the Central Government with notice. Following issues were framed by the learned trial Court:--
Whether this Court has got jurisdiction to try the suit?
Whether the plaintiffs have no cause of action and locus standi?
Whether the plaintiffs are estopped by their conduct to file the suit?
Whether the suit is bad for non-joinder of necessary parties?
Whether the suit is wrongly valued and deficiently stamped. If so, its effect?
Whether the suit is within time?
Whether the Defendants No. 3 & 4 are bona fide purchasers for value without notice. If so, its effect?
Whether the suit is frivolous and a such defendants are entitled to recover special costs under Section 35-A CPC?
whether the plaintiffs were occupancy tenants of the suit land, as such Mutation No. 278 dated 24.11.1956 is valid and by virtue of that mutation plaintiffs are owners of the suit land?
Whether the transfer of the suit land in favour of Defendants No. 3 and 4 vide Mutation No. 233 dated 25.4.1983 is illegal, against facts, exparte void and in effective upon right of the plaintiff?
Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 5.11.1996, learned trial Court dismissed the suit. I may note here that under Issue No. 6 the suit was found to be barred by time. Issues No. 9 & 10 were taken up together. It was observed that it is an admitted fact that the petitioners were occupancy tenant and have become owners by operation of law. However, it was held that since the rights were subject to the mortgage and it was not redeemed, the land was accordingly transferred to Respondents No. 3 & 4. Both the issues were accordingly answered against them. Issue No. 7 was found in favour of the respondents. Issues No. 4 and 8 were not pressed. Under Issue No. l it was held that the Civil Court has no jurisdiction. Issue No. 3 was also found against the petitioners alongwith Issue No. 2. Under Issue No. 5 it was held that the value of the suit for the purposes of Court-fee and jurisdiction is Rs. 55000/- and Court-fee of Rs. 3775/- is payable. They were directed to pay the Court-fee failing which it was to be recovered as arrears of land.
The petitioners filed first appeal which was heard by learned District Judge, Khushab who reversed the findings of the learned trial Court on Issues No. 1 and 9. However, findings on remaining issues were confirmed. Regarding Issues No. 4 & 5 it was observed that this Court has settled the matter vide judgment dated 15.3.2002 and the requisite Court-fee has been paid. The appeal accordingly dismissed on 25.9.2002.
Learned counsel for the petitioners contends with reference to the case 1989 SCMR 780 that upon conferment of proprietary rights, the mortgage stood extinguished. Further contends that the learned Courts below have failed to see that only 1/18 share of the land in ownership column was mortgaged and as such the transfer of entire land was wholly without lawful authority. Learned counsel for the respondents, on the other hand, contends that the mortgage remained subsisting and equity of redemption stood extinguished. He also states that proper Court-fee has not been paid on the C.R. with reference to the contents of the decree prepared by the learned appellate Court. Learned counsel for the petitioners rejoins to state that the Court-fee was paid under orders of this Court on the plaint as well as the memo of first appeal and in the decree the entire amount of Court-fee was shown. According to him the Court-fee paid on the memo of C.R: is rather excessive.
I have gone through the copies of the records appended with this file. There is no dispute at all that the petitioners were occupancy tenants. Upon extinguishment of the occupancy tenancy they were declared owners and Mutation No. 278 was attested on 24.11.1956 accordingly. The parties produced revenue record. Earliest being for the years 1944-45 i.e. Ex.P.11. The land has been divided into 18 shares Lal Khan is recorded to be the owner of 17/18 shares while 1/18 shares of land is stated to be mortgaged with non-Muslim and the said mortgagee farther mortgaged the land with other non-Muslim. There is no entry of any mortgage in column of possession where the predecessor-in-interest of the petitioners are recorded as occupancy tenants. The rent is payable in cash. Said Mutation No. 278 attested on 24.11.1956 (Ex.P.8 and D.3 was incorporated into revenue records showing the petitioners to be owners of 17/18 shares and mortgagers of 1/18 shares with Central Government as mortgagee of 1/18 share.
The rent being payable in cash, the matter is covered by Section 114(2) (C) of the Punjab Tenancy Act, 1887. The mutation was, of course, attested after payment of the cash compensation. Section 114 (5) of the said Act, lays down in categorical term that a occupancy tenant acquiring land in accordance with the provisions of Section 114(2) shall acquire it free from all encumbrances created in respect of that land by the landlord. The mutation was, thus, wrongly incorporated in the revenue records in violation of the said clear provision of law. The mortgage itself extinguished upon conferment of proprietary rights on the petitioners. The learned Courts below have failed to read the relevant law and thus acted without jurisdiction in refusing the relief to the petitioners to which they were otherwise entitled.
So far as question of Court-fee is concerned, I find that after recording evidence of the parties on the said issue as directed by this Court vide judgment dated 15.3.2002 in C.R. No. 266-01, learned District Judge worked out the Court-fee payable on the appeal as Rs.2385/-. He accordingly directed the petitioner to pay the said Court-fee on the plaint as well as on the appeal which has been paid as observed by the learned District Judge. In the decree sheet, the Court-fee has been mentioned as Rs.4750/- which, of course, is the total amount of Court-fee paid on the plaint as well as the first appeal. Thus the Court-fee of Rs.2400/- paid on this C.R. is not only sufficient but is in excess.
There is no question of the respondents being bona fide transferees for value in view of the admitted factum of extinguishment of occupancy tenancy and conferment of proprietary rights upon the petitioners by operation of law free from all encumbrances. The civil revision accordingly is allowed. Both the impugned judgments and decrees are set aside and the suit filed by the petitioners is decreed as prayed for. No orders as to costs.
(M.A.) Revision dismissed.
PLJ 2007 Lahore 883
Present: Syed Shabbar Raza Rizvi, J.
CH. MUHAMMAD YOUNAS--Petitioner
versus
DISTT. RETURNING OFFICER and 2 others--Respondents
W.P. No. 1598 of 2007, decided on 22.2.2007.
Punjab Local Government Ordinance, 2001--
----Ss. 83, 87, 91, 148(1), 156, 158 & 162--Constitution of Pakistan, 1973, Art. 199--Officiating--Election of Nazim was recalled--Petition also filed nomination papers--Objection was accepted--Petitioner's nomination paper were rejected--Appeal also failed--Assailed--Qaulfiication to contest election--Members of concerned U.C. elected an officiating Union Nazim--Retain his office as Member--Nazim or Naib Nazim--Contested--An Officiating Nazim or Naib Nazim holds office temporarily to oversee the worth of Nazim or Naib Nazim untill they are elected in a by election as no office can be left vacant even for a single day--Officiating Nazim/Naib Nazim was also allowed to resign to contest in by election, it would lead to vacuum and inconvenience to the functioning of the respective council--Officiating Nazim of Zila Council, Tehsil Council, Town Council and Union Council shall not be a candidate in by election to be held for the respective councils--Therefore, whether the resignation was tendered by the petitioner or not, he could not contest in by election as it was expressly barred by provisions of Ss. 156 & 158 of the Ordinance--Held: Distt. Returning Officer wrongly referred to S. 83 to hold that resignation of the petitioner was not submitted to the competent authority, as the provisions of Ss. 83, 91 and 158 were not applicable to the Officiating Nazim--Officiating Nazim or Naib Nazim of all Councils, under the Ordinance, is a separate entity that the Nazim and Naib Nazim of such councils. [P. ] B, C, & E
(ii) Words & Phrases--
----Words "Officiate" means to oversee as per Ballentine's Dictionary; and according to new Illustrated Oxford Dictionary, Vol. II Page 1170, it means `to act in some official capacity especially on particular occasion--Therefore, Officiating Nazim means a person who oversees or looks after work of Union Nazim in his absence of until his election. [P. ] A, D
Raja Zulqarnain, Advocate for Petitioner.
Date of hearing: 22.2.2007.
Order
The petitioner is a General Councillor in Union Council No. 146/7, Sargodha. The Nazim of the said Union Council was recalled, thus, petitioner was elected as an Officiating Nazim as required under Section 156(7) of the Punjab Local Government Ordinance, 2001 [hereinafter referred as Ordinance]. Under the same section, a vacancy of Union Nazim is required to be filled through by-election within 120 days of the occurrence of vacancy in accordance with sub-section (1) of Section 148 of the Ordinance. By-election to the seat of Nazim of Union Council No. 146/7 of Sargodha has been scheduled.
The petitioner also filed his nomination papers to contest for the seat of Nazim Union Council. Considering himself subject to Section 158 of the Punjab Local Government Ordinance, 2001, the petitioner resigned from post of Officiating Nazim of the Union Council to contest the by-election. However, Respondent No. 3 filed an objection petition to the nomination papers of the petitioner. The objection was accepted and petitioner's nomination papers were rejected on 15.2.2007 by Respondent No.2. The petitioner filed an appeal before Respondent No. 1 which was also dismissed on 17.2.2007. The learned counsel for the petitioner has called in question before this Court the above mentioned orders.
According to the learned counsel for the petitioner, the Respondents No. 1 and 2 failed to appreciate the law and rules on the subject, and passed incorrect and illegal orders. The petitioner has a constitutional and statutory right to contest the election and he cannot be deprived of the said right. The learned counsel further submits that the petitioner resigned from his office as required under Section 162 of the Ordinance.
The order of Respondent No.2 reads that nomination papers of the petitioner were rejected as he was not qualified to contest the election under Section 156(7) being Officiating Union Nazim. According to order of Respondent No.1 the petitioner had not resigned from his office. On the contrary, Secretary Union Council had certified that the petitioner was performing his duties as Officiating Naib Nazim on the day of filing nomination papers. The respondent further observed that even if it is presumed that the petitioner-appellant submitted the resignation, it was not submitted to the competent authority in accordance with provisions of Section 83 of the Ordinance, 2001.
I agree to the proportion that the petitioner is not qualified to contest the election for the seat of Union Nazim but for different reasons than referred to by the Respondent No.1 learned District Returning Officer/District and Sessions Judge, Sargodha. Under Section 87 of the Ordinance, there shall be a Union Council in each Union comprising 13 members. Under Section 148 of the Ordinance. Members of a Union Council including Union Nazim and Union Naib Nazim shall be elected through direct ejection based on adult franchise and on the basis of joint electorate. Under Section 156(7) of the Ordinance when the office of Union Nazim and Union Naib Nazim fall vacant, the Members of concerned Union Council shall, by a majority vote elect an Officiating Union Nazim or, as the case may be, Naib Nazim from amongst its members and the person so elected shall continue to retain his officer as a Member as well; provided that the Officiating Nazim or Naib Nazim shall not be a candidate in the by-election to be held for the Union Nazim or as the case may be, Union Naib Nazim. Under Section 158 of the Ordinance, a Zila Nazim, Zila Naib Nazim, Tehsil Nazim, Tehsil Naib Nazim, Town Nazim, Town Naib Nazim, Union Nazim and Union Naib Nazim may contest election for any political office after resigning from the office of Nazim, or as the case may be, Naib Nazim. It is further provided that a member of the above mentioned councils may contest election for any other political office without resigning from the membership of such council. It is also provided that such Member shall not hold more than one office at one time. The above mentioned list of Nazims and Naib Nazims do not include Officiating Nazim of any Council including a Union Council. That means provisions of Section 158 of the Punjab Local Government Ordinance, 2001 are not applicable to Officiating Nazim of a Union Council According to the Ballentine's Dictionary, to officiate means to oversee. Therefore, Officiating Nazim means a person who oversees or lookafter work of Union Nazim in his absence or until his election. And according to Section 156(4) of the Ordinance, a vacancy of Union Nazim or Union Naib Nazim shall be filled through by-election within 120 days of occurrence of the vacancy. My view is further strengthened by proviso to sub-section (7) of Section 156 of the Ordinance, which reads as under:--
"Provided that the Officiating Nazim or Naib Nazim shall not be a candidate in the by-election to be held for the Union Nazim or as the case may be, Naib Nazim."
Above view is further supported by provisions of Section 158 of the Ordinance which bars holding dual membership, it does not contain office of Officiating Nazim in the above context. Moreover, Sections 156 (6) & (7) of the Ordinance allow Officiating Nazims of all the Councils mentioned therein to retain their offices as Member also, their holding office of Officiating Nazim does not bar them to hold office of a Member, as a second office despite provisions of 2nd proviso of Section 158 which reads. "Member shall not hold more then one office at one time". An Officiating Nazim is not considered by law as a permanent or regular incumbent, that is why, bar contemplated under Section 158 does not include Officiating Nazim. An Officiating Nazim or Naib Nazim holds office temporarily to oversee the work of Nazim or Naib Nazim until they are elected in a by-election as no office can be left vacant even for a single day. Therefore, an Officiating Nazim/Naib Nazim may function from the day of his election until arrival of an elected Nazim/Naib Nazim within 120 days of the occurrence of vacancy. If Officiating Nazim/Naib Nazim was also allowed to resign to contest in by-election, it would lead to vacuum and inconvenience to functioning of the respective council/union council. Thus, the provisions of proviso of sub-section (6) and proviso of sub-section (7) of Section 156 expressly provide that Officiating Nazim of Zila Council, Tehsil Council, Town Council and Union Council shall not be a candidate in by-election to be held for the respective councils. Therefore, whether the resignation was tendered by the petitioner or not, he could not and cannot contest in by-election as it is expressly barred by provisions of Sections 156 and 158 of the Punjab Local Government Ordinance, 2001.
"The Union Nazim may resign from his office by tendering resignation in writing addressed to Naib Zila Nazim.
Section 91 reads as under:--
"Naib Union Nazim may resign from his office by tendering resignation in writing addressed to Naib Tehsil Nazim."
Both the above Sections do not mention resignation of Officiating Nazim or Naib Nazim. As a matter of fact, the whole Ordinance does not provide for resignation of an Officiating Nazim or Naib Nazim. The reason for not providing so is obvious. As elaborated above, an Officiating Nazim or Naib Nazim holds office only temporarily from the day vacancy fails until by-election is held within 120 days of the occurrence of vacancy. According to the new Illustrated Oxford Dictionary, Volume II, page 1170, "Officiate" means to act in some official capacity especially on particular occasion.
Above are the reasons on basis of which, I hold that an Officiating Nazim or Naib Nazim of any council is not entitled to contest by-election as he is expressly barred by Section 158(6) and (7) of the Ordinance, even if he resigns from the office of Officiating Nazim. I further hold that an Officiating Nazim or Naib Nazim of all Councils, under the Ordinance, is a separate entity than the Nazim and Naib Nazim of such Councils.
As a sequel to the above discussion, this writ petition is dismissed, in limine.
(M.A.) Petition dmissed.
PLJ 2007 Lahore 887
Present: Muhammad Muzammal Khan, J.
MUHAMMAD ZAMAN--Petitioner
versus
FAUZIA BIBI and another--Respondents
W.P. No. 15830 of 2003, heard on 25.1.2007.
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Muslim Family Courts Act, 1964, S. 9--Suit for recovery of articles and maintenance allowance--Closure of right of filing written statement--Opportunities within 20 days--No doubt the suit filed by the respondent was a family suit and required expedition disposal but petitioner/defendant should have been given fair opportunity of defending the same by filing written statement, which was not provided in the case in hand. [P. ] A
Muslim Family Courts Act, 1964--
----S. 17--Applicability of CPC to the Family suits--Contention--Striking of right of file written statement--Rules were not sustainable at law, especially when S. 17 of Act expressly excluded the applicability of the CPC, High Court held, appeared to have some worth but Family Court which trying a suit had to adopt procedure of his choice as the Act being not exhaustive does not make provision for every conceivable opportunity and unforeseen circumstances. [P. ] B
Muslim Family Court Act, 1964--
----Preamble--Family Judges would be denuded of jurisdiction to take any punitive action against the defendants, despite their prolonged/consistent defaults and the suit would not proceed till infinity; thus this interpretation being opposed to the purposes of Family Courts Act, 1964 could not be contributed. [P. ] C
Administration of Justice--
----Strict applicability of CPC to the proceedings before a Family Court cannot be urged but adoptation of general principles of procedure by such Court being a Rule of law, cannot be prohibited to advance the due administration of justice. [P. ] D
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, Rr. 1 & 10--Application of CPC to suits triable by Family Courts--Held: that the Judge Family Court having opted to follow the procedure prescribed for trial of civil suits committed no error of law; but in said procedure provided a period of one month for filing written statement--Since the Family Judge exhibited unnecessary haste at the cost of dispensation of justice by passing impugned order within a span of 20 days only, the same deserved to be reversed being tainted with patent illegalities--One single final opportunity was granted subject to cost of Rs. 5000/- Writ Petition accepted. [P. ] E & F
Ch. Irshad Ullah Chattha, Advocate for Petitioner.
Respondent by Ex parte vide order dated 28.6.2006.
Date of hearing: 25.1.2007.
Judgment
Instant constitutional petition assailed order dated 7-10-2003 passed by the learned Judge Family Court, Sheikhupura, to be declared illegal, void and of no legal consequence, whereby on account of non-filing of written statement by the petitioner his this right was closed and case was taken up for ex parte proof by Respondent No. 1.
Precisely, relevant facts are that Respondent No. l was married with the petitioner but relations between the spouses did not remain cordial and ultimately resulted in separation. Respondent No. 1 filed a suit for recovery of her dowry articles and maintenance allowance. Petitioner being defendant in the suit, in response to notice by the learned Judge Family Court, appeared where he was required to file written statement On 7.10-2003 petitioner inspite of availing repeated opportunities, failed to file the written statement which led to punitive action through impugned order. Petitioner being aggrieved of closure of his right to file written statement, filed instant constitutional petition, which was admitted to regular hearing and after completion of record has now been placed for final hearing. Respondent No. l avoided service of notice issued by the office of this Court, whereupon citation in daily Urdu newspaper "Nawa-e-Waqt" was published, carrying notice for appearance of Respondent No. 1 but she did not appear. Second citation in daily Urdu newspaper "Pakistan" was ordered to be published for her appearance and on her failure, she was proceeded against ex parte, vide order dated 28.6.2006.
I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Record revealed that on 17.9.2003 petitioner appeared in person before the learned Judge Family Court, whereupon case was adjourned to 18.9.2003 for filing of written statement, which was not filed and thereafter petitioner was granted a final opportunity for filing the written statement on 27.9.2003. On the next date of hearing i.e. 3.10.2003 some counsel appeared on behalf of the petitioner and filed his power of attorney, whereupon case was adjourned to 7.10.2003 for filing of written statement. This is the date, on which punitive action of striking of right to file written statement was ordered. All this exercise was done within a period of twenty days. No doubt the suit filed by Respondent No. 1 was a family suit and required expeditious disposal but petitioner/defendant should have been given fair opportunity of defending the same by filing his written statement, which was not provided in the case in hand.
Learned counsel for the petitioner, relied on the judgments in the case of Bashir Ahmed vs. Mst. Zubaida and another (1990 ALD 180), Maqsood Ahmad vs. Judge, Family Court, Burewala and 5 others (2001 CLC 567) and Muhammad Ashraf vs. Nasreen Begum through legal heirs and 3 others (PLD 1989 Lahore 69) to contend that in absence of any provision for taking punitive action of striking of right to file written statement in the Family Courts Act, 1964 or Rules framed there-under, the impugned order is not sustainable at law, especially when. Section 17 of the Act (ibid) expressly excluded applicability of the Civil Procedure Code, 1908, appeared to have some worth but a Judge Family Court while trying any suit mentioned in schedule of Family Courts Act, 1964 has to adopt procedure of his choice as this enactment is not exhaustive and does not make provision for every conceivable eventuality and unforeseen circumstances/situations. Judgments in support of this proposition, are in the cases of Khalilur Rehman Bhutta vs. Razia Naz and another (1984 CLC 890) and Shahzada Jawaid vs. Mst. Sadia Rauf and another (2000 MLD 1301).
Now if we follow the view taken in the judgments relied by the learned counsel for the petitioner, the result would be that learned Family Judges shall be denuded of jurisdiction to take any punitive action against the defaulting defendants, inspite of their prolonged/consistent defaults and the suit will not proceed till infinity but this interpretation being opposed to the purposes of the Family Courts Act, 1964, cannot be contributed. Preamble of the Act of 1964 reads as under:--
"Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for the matters connected therewith;"
Now keeping in mind the Preamble of the Act, if the judgments relied by the learned counsel for the petitioners are examined and followed, the result would be contrary to purposes of the legislation but this interpretation cannot be given effect. Strict applicability of Civil Procedure Code, 1908 to the proceedings before a Family Court can not be urged but adoption of general principles of procedure by the Presiding Officer of such Court being a Rule of law, cannot be prohibited to advance the due administration of justice.
In the case in hand, learned Judge Family Court having opted to follow the Procedure prescribed for trial of civil suits, committed no error of law but this Procedure as well limited period for filing of written statement to one month as per proviso to Rule 1 of Order VIII. Since Respondent No. 2 exhibited unnecessary haste at the cost of dispensation of justice by passing impugned order within a span of twenty days only, the same deserved to be reversed being tainted with patent illegalities. It goes without remarking that another opportunity for filing, the written statement would not only have served the ends of justice but would have also completed the period of one month, as noted above but this course was not adopted.
For the reasons noted above, instant petition is bound to succeed and is accordingly accepted and impugned order dated 7.10.2003 is declared to be void and of no legal consequence with the result that petitioner is granted one single final opportunity of filing his written statement on a date to be fixed by the learned Judge Family Court (Respondent No.2) subject to payment of costs of Rs. 5000 to Respondent No. 1 who unnecessarily suffered on account of lapse of the petitioner for a period of four years. In case of failure of the petitioner to file written statement on the date so fixed by the trial Court, order dated 7.10.2003 shall stand revived. There will be no order as to costs as far as instant proceedings are concerned.
(M.A.) Petition accepted.
PLJ 2007 Lahore 891
Present: Syed Hamid Ali Shah, J.
YOUSAF SUGAR MILLS--Petitioner
versus
TRUST LEASING etc.--Respondents
W.P. No. 7916 of 2005, decided on 15.5.2006.
(i) Banking Companies Ordinance, 1962--
----S. 25-A--Constitution of Pakistan, 1973, Arts. 4, 18, 25 & 199--Sugar production companies--Lease Finance agreements--Dispute arose and referred to sole arbitrator--Decision of arbitrator--Money paid--Award accepted--Names were not cleared--Assailed--Liabilities--Validity--Petitioners as per award have paid off their liabilities, respondent has conveyed acceptance of award which is further affirmed by encashments of the cheques presented by the petitioner to arbitrator--Held: Action of respondent regarding placement of the petitioners on the CIB list without notice and without ascertaining the geniuses of the information is violative of articles 4, 18 and 25 of the Constitution of of Pakistan--Impugned placement of petitioners on CIB list declared without lawful authority and with no legal effect. [P. ] E & F
2005 CLD 1830; 2003 SCMR 629; PLD 1999 SC 1126; 2003 SCMR 1547 and 2006 CLD 55, referred.
(ii) Constitution of Pakistan, 1973--
----Arts. 18 & 199--Placement of names on the CIB list--Non issuance of notice--Validity--The act of black listing or preventing a company from the privilege and advantages of entering into a lawful relationship with to bank for the purpose of gain, is violative of Art. 18 of the Constitution--The consequences of black listing a person, are of great magnitude and warrant that before taking such action there should be a fair and proper trial, through an impartial Court or Tribunal--Held: If the name of a person is brought on the list without any verification, it will adversely affect the reputation as well as the business of such borrower--Further held: Before such placement, the concerned individual is entitled to notice. [P. ] B, C & D
(iii) Constitution of Pakistan, 1973--
----Art. 199--Credit Information Bureau--Collection of data--Primary purpose and object--Primary purpose of collecting information is to equip all banks and NBFIs, about their customers and financial status, available with them--The object is to enable bank/DFIs to decide the course of their business transaction with their customers so that financial institution may not be deceived by the defaulters. [P. ] A
Mr. Shahid Karim, Advocate for Petitioner.
Mr. Rissal Hassan Syed, Advocate for Respondent No. 1.
Mr. Rehan Nawaz, Advocate for Respondents No. 2 & 3.
Date of hearing: 1.2.2006.
Order
This single order will dispose of four writ petitions i.e. Writ Petition No. 2916-2005 titled "Yousaf Sugar Mills Ltd. versus Trust Leasing Corporation Ltd and two others", Writ Petition No.2917-2005 titled "Abdullah Sugar Mills Ltd versus Trust Leasing Corporation Ltd and two others", Writ Petition No. 2918-2005 titled "Haseeb Waqas Sugar Mills Ltd. versus Trust Leasing Corporation Ltd. and two others" and Writ Petition No. 2919-2005 titled "Haseeb Waqas Engineering Mills Ltd. versus Trust Leasing Corporation Ltd. and two others" as common questions of law and facts are involved in all these petitions.
The background giving rise to the institution of these petitions is that petitioners are public companies limited by shares, incorporated under the Companies Ordinance, 1984 and form part of Haseeb Waqas Group of Companies. These companies are mainly involved in the business of sugar production. The relationship between the petitioners and Respondent No. 1 is that one of the hire grantor and the lessee, created under various Lease Finance agreements. A dispute arose between the petitioners and Respondent No. 1, which was referred to the sole arbitrator, appointed by the mutual consent of the parties. Sole arbitrator gave/announced his award on 22.12.2003. As a result thereof, the petitioners were held liable to pay a sum of Rs. 140 million, which sum was paid through various cheques. Respondent No. 1 was to release security documents on clearance of these cheques. Respondent No. 1 accepted award vide letter No. TLCL/CF/2004/1307 dated 08.4.2004. Petitioners after encashment of the cheques, requested Respondent No. 1 for clearance of the name of the petitioners from CIB list, reported on 30.11.2003 to the Respondent No. 2. Name of the petitioners despite settlement of the dues as per the terms of the award, was not removed from the CIB list, which gave cause to the petitioners to call in question the act of omission of the respondents through these petitions.
Learned counsel for the petitioners has submitted that the Respondent No. 1 has accepted award and conveyed the acceptance through letter dated 08.04.2004. Payments through various cheques, in terms of the award, had already been made, therefore, there is no justification for keeping the name of the petitioners on the list of defaulters. Further, the encashment of cheques, issued on the basis of award, amounts to the acceptance of award. Learned counsel, in this respect, has referred to the case of "Sayed Paper Mills (Pvt) Ltd. and 2 others versus Trust Investment Bank Ltd" (2005 CLD 1830). It was contended that as per the decision of the sole arbitrator name, of the petitioners was to be removed from the CIB List, on encashment of the cheques. The terms of award are binding on Respondent No. 1, thus Respondent No. 1 is under an obligation to remove the name of the petitioners from CIB list. The petitioners are facing difficulty in availing the financial assistance from other banks, due to placement of their name in CIB Data base, maintained by Respondent No. 3. Learned counsel has then submitted that Respondent No. 2 has the powers to collect and furnish credit information with regard to the Banking Companies. Respondent No. 1 is registered and incorporated as a leasing company and not a banking company, therefore, Respondent No.2 has no control over it. Provisions of Section 25 of Banking Companies Ordinance, 1962 restrict the furnishing of information, by a banking company to State Bank. Learned counsel while referring to the case of "Badshah Begum and others versus The Additional Commissioner (R) Lahore Division and others" (2003 SCMR 629) contended that if an authority has no power or jurisdiction in the matter under law, such jurisdiction cannot be conferred. The actions taken by an authority or quasi judicial forum, is to ensure the command of law and in cases of patent illegality and lack of jurisdiction, the Court can interfere in its constitutional jurisdiction to protect rights and to undo a wrong done. Learned counsel while placing reliance on the case of "New Jubilee Insurance Company, Karachi versus National Bank of Pakistan Karachi" (PLD 1999 SC 1126) has contended that the act of blacklisting or preventing a company from the privilege and advantages of entering into a lawful relationship with the bank for the purpose of gain, is violative of Article 18 of the Constitution. The consequences of blacklisting a person, are of great magnitude and warrant that before taking such action there should be a fair and proper trial, through an impartial Court or Tribunal by providing such person reasonable opportunity to defend the allegations made against him. Learned counsel has submitted with vehemence that unless a dispute is settled through proper adjudication before a competent forum, a party cannot be penalized. Learned counsel in this respect has found support from law laid down in the case of "Agricultural Development Bank of Pakistan and others versus Abid Akhtar and others" (2003 SCMR 1547)
Learned counsel for Respondent No. 1, on the other hand, has argued that the object of collecting information from all-banks/NBFIs, pertaining to their customers and their financial status, is a mechanism adopted to save the financial institutions, falling prey to the defaulters and to provide financial assistance to only those customers, who possess credit worthiness. The CIB List is prepared to equip the financers with opportunity "to look before they leap". Learned counsel has submitted that the placement of a customer on CIB List is mere an information. The banks or DFIs, if feel satisfied, can grant loan despite the placement of a customer on the list. Learned counsel in support of his contentions has referred to the case of Abdul Aziz Nawab Khan and Company versus Federation of Pakistan, Minister of Finance and others" (2006 CLD 55). It was submitted that the dispute with the petitioners has not so far been finally resolved, the matter is sub judice before Court and the Respondent No. 1 has rightly provided the information of default, to Respondent No. 2. Respondent No. 1 is bound to furnish such information, in response to circular dated 09.12.2004 and CIB Circular No. 1 dated 12.01.1992, in a specified manner through quarterly statements. Non-compliance of these circulars, entails penal consequences of imposition of penalty under Banking Companies Ordinance, 1962. Reference to Circular No. 2 of 2004 dated 21.01.2004 pertaining to "Prudential Regulations for Non-banking Finance Companies (NBFCs)" was made to contend that Securities and Exchange Commission of Pakistan, has directed all NBFCs, to submit all information, returns and statements etc to Credit Information Bureau (CIB) of State Bank of Pakistan in the same manner as previously prescribed. Learned counsel then referred to prudential regulations for Non-Banking Finance Companies as well as the prudential regulations for corporate/commercial banking. It has been provided in part-I in clause 2 (1) that if the credit reports indicate defaults the facility shall be extended only after recording reasons to do so. Learned counsel contended that it means that according to the prudential regulations, there is no impediment in granting loan to a borrower who is placed on CIB list except that lending institution has to record reason for granting loan. Learned counsel has lastly contended that the power to convey to State Bank of Pakistan the information of defaulters, vests with Respondent No. 1 by virtue of Section 3-A of the Banking Companies Ordinance, 1962.
Learned counsel for Respondents No.2 and 3 has submitted that State Bank only collects data which is received from various banks/DFIs. The name of a defaulter is placed in the database on the information, which is provided to it. The State Bank is merely registering authority. The State Bank divests itself with the task to scrutinize the information received by it. The CIB list is prepared on the information received from Banks and DFIs and preparation of data base is for a limited purpose, to enable a lending institution to know about the factum of default. It was submitted that the State Bank does not involve itself in determination of correctness or genuineness of default.
Heard learned counsel for the parties and examined the record.
Credit Information Bureau is a project of State Bank of Pakistan for collecting data. The primary purpose of collecting information is to equip all banks and NBFIs, about their customers and their financial status, available with them. The object is to enable banks/DFIs to decide the course of their business transaction with their customers so that financial institution may not be deceived by the defaulters. Placement of the name of a company/customer is to caution the lending institutions about default. The lending institution, however, is at liberty to extend financial assistance to a borrower despite the placement of name of a customer on CIB list. Learned counsel for the State Bank has frankly conceded that the list of defaulters is maintained on the information which is received from the lending institutions and State Bank of Pakistan while placing a defaulter on the list neither examines the correctness of the information nor seeks explanation from the defaulter/borrower.
The power to call for information and collect data vests with the State Bank of Pakistan under Section 25-A of the Banking Companies Ordinance, 1962. Section 25-A is reproduced for ready reference:--
"25-A Power of the State Bank to collect and furnish credit information.--
(1) Every Banking Company shall furnish to the State Bank credit information in such manner as the State Bank may specify, and the State Bank may, either of its own motion or at the request of any banking company, make such information available to any banking company on payment of such fee as the State Bank may fix from time to time:
Provided that, while making such information available to a banking company, the State Bank shall not disclose the names of the banking companies which supplied such information to the State Bank:
Provided further that, a banking company which proposes to entering into any financial arrangement which is in excess of the limit laid down in this behalf by the State Bank from time to time shall, before entering into such financial arrangement, obtain credit information on the borrower from the State Bank.
(2) Any credit information furnished by the State Bank to a banking company under sub-section (1) shall be treated as confidential and shall not, except for the purposes of this Section or with the prior permission of the State Bank, be published or otherwise disclosed.
(3) No Court, Tribunal or other authority, including an officer of Government, shall require the State Bank or any banking company to disclose any information furnished to, or supplied by, the State Bank under this section."
From the bare perusal of Section 25 (ibid) it is evident that State Bank of Pakistan can collect credit information from the Banking Company only. A Leasing Company does not fall within the definition of Banking Company. A Banking Company is under the control of State Bank of Pakistan while Leasing Company, as against a Banking Company, is under the control of Securities and Exchange Commission of Pakistan. The Securities and Exchange Commission of Pakistan has control over all companies including the Leasing Company and any direction by SECP is binding on the Leasing Companies exactly in the same manner as the direction of State Bank of Pakistan is binding on the Banking Company. The SECP can call for information and statements from the Leasing Companies and can collect and maintain such data either with itself or with any other organization. The prudential regulations for NBFCs were issued vide Circular No.2 of 2004 Bearing No. SE/NBFC/PR-2004 dated 21.01.2004 wherein it was clarified that all NBFCs, House Building Finance Corporations and Investment Corporation of Pakistan shall continue to submit the return and statements etc, to SECP and Credit Information Bureau (CIB) of State Bank of Pakistan in the same manner and format as previously prescribed. The regulating authority of a Leasing Company i.e. SECP is empowered to direct for the submission of informations through prescribed returns and statements, to State Bank of Pakistan, so as to introduce a uniform set of regulations to improve effective management capabilities. The information called by SECP and submitted to State Bank of Pakistan at the instance of SECP cannot be avoided. The State Bank of Pakistan collects credit information from all the banks under Section 25 (ibid) while from NBFIs on the direction of SECP and by virtue of provisions of Section 3-A of the Banking Companies Ordinance, 1962. The directions of SECP are binding in nature and there is no illegality of furnishing information by a Leasing Company to the State Bank of Pakistan.
The act of blacklisting or preventing a company from the privilege and advantages of entering into a lawful relationship with the bank for the purpose of gain, is violative of Article 18 of the Constitution. The consequences of blacklisting a person, are of great magnitude and warrant that before taking such action there should be a fair and proper trial, through an impartial Court or Tribunal by providing such person reasonable opportunity to defend the allegations made against him. The effect of placement of a person's name on the list that facility of finance is extended to such person, only after recording the reasons, according to para 2 (a) (ii) of the Prudential Regulations. It has the effect of negating the facility to a borrower in the ordinary course. If the name of a person is brought on the list without any verification, it will adversely effect the reputation as well as the business of such borrower. The Hon'ble Supreme Court of Pakistan in the case of "New Jubilee Insurance Corporation versus National Bank of Pakistan Karachi" (PLD 1999 SC 1126) held that when an act or order inflicts civil consequences on a person in respect of his reputation or property which is harmful to his interest, he is entitled to be heard before such an action or order is taken or passed. It will be appropriate to produce relevant part of the judgment:--
"It may be pointed out thus the fall-out of the blacklisting of the appellant is to prevent it from the privilege and advantage of entering into lawful relationship with the respondent for the purpose of gains which is violative of Article 18 of the Constitution, which lays down that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. The blacklisting of a company/firm/person, also tarnishes the reputation of it/has, as to its/his credibility to honour its/his commitments which may dissuade other parties from entering into contracts with the former. Thus the consequences of blacklisting of a company/firm/person are of great magnitude, which warrant that before taking such an action, there should be material on record prima facie to indicate that the delinquent Insurance Company's refusal to pay claim was not warranted in. the circumstances of the case."
The placement of a person on CIB List of defaulters places a restraint on his business to enter freely into a contract with banks etc. therefore, before such placement, the concerned individual is entitled to a notice. State Bank of Pakistan which regulates the affairs of banks etc. has the responsibility at least to see the genuineness and truthfulness of claim of a Banking Company or NBF1 qua the default of a borrower. The stance taken by the State Bank of Pakistan in the reply that it places the name of a defaulter on the list without any verification or notice to such person is not in accord with the law laid down by the Hon'ble Supreme Court of Pakistan in the case of New Jubilee Insurance Corporation (supra.). The petitioners as per award dated have paid off their liabilities while Respondent No. 1 has conveyed its acceptance of the award which is further affirmed by encashment of the cheques presented by the petitioners to the arbitrator. Respondent No. 3 is under an obligation as per award to release the security documents. Prima facie there is justification for placement of the petitioners on CIB List. The action of Respondent No. 3 regarding placement of the petitioners on the CIB list without notice and without ascertaining the genuineness of the information is, therefore, violative of Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan. Impugned placement of the petitioners, on CIB List, is declared without lawful authority and with no legal effect. The impugned order is thus set aside.
It is still open to Respondent No. 2, to verify the genuineness and correctness of information. Respondent No. 2, after due notice to petitioners, if feels satisfied that information received is correct, can place the name of the petitioners on CIB List.
For the foregoing, the constitutional petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2007 Lahore 898
Present: Sayed Zahid Hussain, J.
Engineer JAMEEL AHMAD MALIK--Petitioner
versus
SHOUKAT AZIZ and 6 others--Respondents
E.P. No. 2 of 2004, decided on 20.4.2007.
Administration of Justice--
----Whenever there is any uncertainty or obscurity about a legal position qua any particular proposition, the view expressed by a larger Bench prevails and when the Benches are of equal strength than the latest expression by the Bench holds the field. [P. 906] C
Administration of Justice--
----When the law requires a thing to be done in a particular manner, it has to be done in that manner only. [P. 907] E
Administration of Justice--
----To follow the law cannot be termed as adherence to the technicalities.
[P. 908] F
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 52, 54, 55 & 63--Civil Procedure Code, (V of 1908), O. IV, R. 15--Constitution of Pakistan, 1973, Art. 187--Election petition--Election for National Assembly--Challenge to--Maintainability of--Non-compliance of mandatory requirement of law--Verification of petition, its non-confirmity with provisions of law--Allegations of corrupt and illegal practices--Non-filing of affidavits of the proposed witnesses--Effect of--Provisions--Validity--Election Tribunal observed that the trend of judicial approach reflected from the case law discussed in the judgment was that even small and trivial deviations from procedure and from prescribed by the election laws had resulted in dismissal of the election petitions--Strict compliance of provision of election laws--Election of a returned candidate--Assailed--Returned candidate having won the election with the vote and support of the electorate, should not unnecessarily be entangled in litigation and such election should be challenged only on firm and sound footings by complying with all requirement of law--Filing of affidavits of the witnesses were one of the mandatory requirement of law--Petitioner did not file any affidavit; even the affidavit of the person who photographed/prepared the video cassette, was placed on record--Petitioner could hardly be of any significance as his sole statement could not be a substitute for due proof of the allegations leveled by him--Petition could not be kept pending for the reason that other issued be also framed; even the disposal of miscellaneous application could not stand in way of decision of issue--Non compliance of mandatory requirement of law were quite apparent and the defects in the petition were of fatal nature going to the very route of the matter, and could be taken up at any stage of the proceedings; therefore there would be no use of the trial on other issues and petitioner was liable to be dismissed.
[Pp. 905, 907, 909, 911 & 912] A, B, D, G, H, I, J, K & L
2000 SCMR 250 and PLD 1967 SC 486, rel.
AIR 1954 SC 210; AIR 1956 Allahabad 19; AIR 1983 SC 558; 2004 YLR 1742; 2005 CLC 172; 2005 CLC 1577; PLD 2005 SC 600; 2005 CLC 1493; 2007 SCMR 34; Judgment in C.A. No. 17116/2003; 1996 SCMR 426; PLD 1963 SC 382; PLD 1975 SC 678; PLD 1985 SC 345; PLD 1993 SC 332; PLD 2001 Lahore 149; 2002 YLR 3148; 2004 CLC 914; 1997 CLC 1724; 1997 CLC 1132; 1994 MLD 2293; 1988 MLD 2116; PLD 1989 SC 249; 1999 MLD 2989; AIR 1984 SC 305; AIR 1990 SC 924; AIR 1998 Bombay 60; AIR 2000 Madhya Pradesh 56; AIR 2000 MP 111; AIR 2000 Bombay 362; AIR SC 388; AIR 1991 SC 1557; AIR 2001 Gauhati 52; AIR 2005 Rajasthan 34; 2007 CLC 671; Judgment dated 19.12.2006 in Malik Umar Aslam case (C.A. No. 176/2003); 1987 MLD 2460; 1988 CLC 1289; 1991 CLC 175; 1992 CLC 1766 & 1995 CLC 394.
Petitioner in person.
M/s. Waseem Sajjad, Ali Sajjad and Idrees Ashraf, Advocates for Respondent No. 1.
Respondent No. 5 in person.
Exparte for Respondents.
Dates of hearing: 23.2.2007, 27.2.2007, 28.2.2007 (RWP) & 16.3.2007 (Lah.).
Judgment
N.A.59, Attock-III, is one of the constituency of National Assembly which fell vacant and by-election was announced to be held on 18.8.2004. In that by-election Engineer Jameel Ahmed Malik the petitioner was one of the contestants with seven others including Shaukat Aziz Respondent No. 1. The petitioner was able to secure 113 votes whereas Respondent No. 1 by securing 76156 votes was declared the returned candidate and notified as such. None other assailed the election except the petitioner who has filed this petition under S. 52 of the Representation of the People Act, 1976 for the declaration of the election of Respondent No. 1 as void and that his name be denotified. Notices were issued to all the seven respondents who were served. Except Respondent No. 1, (the returned candidate) and Respondent No.5, all others are exparte. The ultimate contest however remained between the petitioner and Respondent No. 1. The later filed reply with number of preliminary objections as to maintainability of the petition including that the petition was liable to be rejected on account of failure of the petitioner to comply with the provisions of S. 54 and S. 55 of the Representation of the People Act, 1976. Respondent No. 5 has not contested the petition and prays that "the answering Respondent No. 5 may kindly be declared as duly elected from the constituency of NA-59, Attock-III and his name may kindly also be notified in the official Gazette Notification accordingly".
During the proceedings C.M. No. 1062/2005 was filed by Respondent No. 1 seeking dismissal of the petition under S. 63 of the Representation of the People Act, 1976. To that reply was filed by the petitioner. While the said application was pending, C.M. No. 6/2006 was filed to urge additional grounds. Reply to that application was also filed by the petitioner. Both the applications (C.M. No. 1062/05 and C.M. No. 6/06) were fixed for hearing on 13.10.2006 when as a result of consensus the same were disposed of and issues were framed. Issue No. 1 was "Whether the petition is liable to be dismissed for non-compliance with the provisions of S. 55 and S. 63 of the Representation of the People Act, 1967 OPR-1". For the purpose of deciding Issue No. 1 the matter has been heard.
Since the said issue has been framed in view of the objections raised by Respondent No. 1, his learned counsel contends that the petition is not maintainable and is liable to be dismissed for non-compliance of the provisions of S. 55 and S. 63 of the Representation of the People Act, 1976 and that as this issue can clinch the fate of the petition it need to be decided first. According to him the verification of the petition is not in conformity with the provisions of S. 55 (3) of the Representation of the People Act, 1976 read with provisions of Rule 15 of Order VI of the Code of Civil Procedure, 1908. It is contended that while verifying the contents of Paragraph 4 and 11 of the petition, the petitioner does not state that the contents thereof are correct to the best of information received and that the information is believed to be true. It is contended that without such affirmation the verification becomes meaningless as the petitioner does not take any responsibility for such an allegation/statement. It is contended that since the contents of the said paragraph contained serious allegations of corrupt and illegal practices and that Respondent No. 1 was allegedly an American citizen, the verification of such statement required strict compliance of the provisions of Rule 15 of Order VI of the Code of Civil Procedure, 1908. Likewise the allegation of concealment of assets as contained in paragraph-11 required similar affirmation and verification. Another defect that is sought to be pointed out is that the stamp put by the Oath Commissioner for the purpose of verification is conditioned by certain paragraphs, which also is fatal. It is pointed out that S. 55 of the Representation of the People Act, 1976 mandates that every annex or schedule to the petition must also be verified in the manner laid down in Order VI, Rule 15 of the Code of Civil Procedure, 1908 which has not been done in its entirety in this matter. It is contended that a video cassette has been referred as Annex-R to this petition but despite being shown as an annex to the petition it has not been verified in the prescribed manner and the verification at page-735 of the petition is about the views of the petitioner about the said video but not the contents of the video itself. It is further contended that the petition contains averments in loose form leaving the paragraphs unnumbered, contents whereof remain unverified. Another omission in the petition is the non-filing of affidavits of the proposed witnesses. For seeking dismissal of the petition on the above grounds that the defects are serious and fatal, reference has been made to Jagan Nath v. Jaswant Singh and others (AIR 1954 S. C. 210), Devi Prasad v. Chairman of the Court of Election Tribunal, Gorakhpur and another (AIR 1956 Allahabad 19), M. Karunanidhi v. H.V. Handa and others (AIR 1983 S. C. 558), Iqbal Zafar Jhagra's case (2000 SCMR 250) Muhammad Ashraf Rasool v. Ali Abbas & 13 others (2004 YLR 1742), Haji Ch. Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner (2005 CLC 172), Ch. Muhammad Saboor Kasana v. Muhammad Ajmal Cheema and another (2005 CLC 1577), Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 S. C. 600), Muhammad Saeed v. Tahir Malik and others (2005 CLC 1493), Ch. Muhammad Ashraf v. Rana Tariq Javed and others (2007 SCMR 34) and Judgment dated 19.12.2006 in Civil Appeal No. 17116/2003.
The petitioner who himself has conducted his case, contends that since all the issues have been framed, Issue No. 1 should not be treated as a preliminary issue and should be decided alongwith other issues. According to him, Issue No. 1 covers controversy of mixed question of law and fact, therefore, there is no scope in law for deciding this issue at this stage. According to him, procedure laid down by the Election Commission of Pakistan vide Notification dated 17.3.1985 is to be applied as laid down in Jam Mashooq Ali v. Shahnawaz Juneio (1996 SCMR 426). It is contended that since at a stage an application (C.M.No.1062/05) was made by Respondent No. 1 under S. 63 of the Representation of the People Act, 1976, which was disposed of on 13.10.2006, it cannot now be urged by Respondent No. 1 to decide this issue separately. It is contended that the petition and all the Annexes are duly verified and attested by the Oath Commissioner supported by a separate affidavit, therefore, necessary requirements of law have been fulfilled. It is contended that strict adherence to procedure/technicalities should not be insisted which may defeat the cause of justice. Reference for this purpose is being made to Imtiaz Ahmad v. Ghulam Ali and others (PLD 1963 S. C. 382), Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 S. C. 678), Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 S. C. 345), Mir Mazar v. Azim (PLD 1993 S. C. 332), Munir Ahmad and 7 others v. Additional District Judge, Kasur and 14 others (PLD 2001 Lahore 149), Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 S. C. 600) and Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others (2002 YLR 3148). According to him, even if there be any defect in the verification and attestation, it is not fatal, cites, S. M. Ayub v. Syed Yousaf Shah and 2 others (PLD 1967 S. C. 486), Engineer Jameel Ahmad Malik v. Ghulam Sarwar Khan and 6 others (2004 CLC 914), Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan and 3 others (1997 CLC 1724), Muhammad Azad Gul v. Said Muneer Said and 11 others (1997 CLC 1132), Haji Mian Aziz-ur-Rehman Chan v. Mian Abbas Sharif and another (1994 MLD 2293) and Bostan Ali Hoti v. Haji Aziz Karim (1988 MLD 2116). It is contended that video recording is admissible in evidence in view of Collector of Customs and another v. Saeed-ur-Rahman and others (PLD 1989 S. C. 249) and Syed Abdul Hameed v. Syed Boo Ali Shah Zaidi (1999 MLD 2989).
According to him since none was prepared to appear as a witness, therefore, their affidavits could not be filed. Thus the position taken by the petitioner is that the election petition should be tried without adverting to Issue No. 1 at this stage.
"All the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by the Supreme Court in F.A. Sapa v. Singora, AIR 1991 SC 1557: (1991 AIR SCW 1492), the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition; it can be cured [See: Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545; A.S. Subbaraj v. M. Muthiah, (1953) 5 ELR 21]. In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried. For want of affidavit in required form and also for lack of particulars, the allegations of corrupt practice could not have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings". (Underlined by me for its import).
In Sri T. Phungzathangh v. Sri Hangkhanltan (MLA) and others (A.I.R 2001 Gauhati 52), the petition was dismissed for the reasons that the copies of the affidavit accompanying the copies of the petition supplied to the respondent, were not similar to the original one. In Heera Singh Chouhan v. C.D. Dewal and others (A.I.R 2005 Rajasthan 34), the petition was dismissed on the ground as the contents of the affidavits did not meet the requirement of law and was not in the prescribed form.
The trend of judicial approach reflected from the above is that apparently even small and trivial deviations from procedure and from prescribed by the election laws has resulted in dismissal of the election petitions.
Here in our country as well the legal position is not different. Even the recent trend as is spelt out from Iqbal Zafar Jhaghra's case (2000 SCMR 250), a judgment by the learned Bench comprising seven Honourable Judges of the Apex Court, strict compliance of provisions of election laws (as to verification and attestation of the petition) was insisted upon despite the observations in S. M. Ayub's case (PLD 1967 SC 486). The legal position thus stated is being followed in the subsequent cases. In Muhammad Ashraf Rasool v. Ali Abbas & 13 others (2004 YLR 1742) it was held by the Election Tribunal that the requirements of S. 55(3) of the Act were mandatory. The verification did not show which paragraphs of the petition had been verified on the basis of information received which was believed to be true. It was defective, and, therefore, the petition was dismissed. In Haji Ch. Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner and 7 others (2005 CLC 172), it was held that the provisions of S. 55(3) of the Act read with S. 63 were mandatory in nature and that there can be no waiver or estoppel against the Statute. The petition was dismissed accordingly. In Ch. Muhammad Saboor Kasana v. Muhammad Ajmal Cheema and another (2005 CLC 1577) and Muhammad Saeed v. Tahir Malik and others (2005 CLC 1493) also similar view was taken by the learned Tribunals. In Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 S. C. 600), while referring to Iqbal Zafar Jhaghra's case it was taken as a settled law "that the verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory." In Ch. Muhammad Ashraf v. Tariq Javed and other (2007 SCMR 34), the above position was reiterated and order of the Election Tribunal dismissing the election petition, which had not been verified and attested in the manner laid down by law, was upheld. Similar view has been taken in Muhammad Tariq Khan Swati v. Shujah Salam Khan and 7 others (2007 CLC 671), by the Election Tribunal of N.W.F.P. following the above legal position and dismissing the election petition. Last but not the least is the recent judgment (19.12.2006) by the Apex Court by a learned Bench comprising three Honourable Judges in Malik Umar Aslam v. Sumera Malik (C.A. No. 1716 of 2003). On consideration of the provisions of law and precedents on the subject it has been held "In the case of Iqbal Zafar Jhagra (ibid) a larger bench of this Court had held that provision of Section 55(3) of the Act, 1976 is mandatory in nature and its non-compliance has been visited with a penalty of dismissal of petition, therefore, the Tribunal had no jurisdiction to allow such amendment and for such reason alone, Election Petition deserves to be dismissed. Thus, the judgment in the case of Ghulam Bibi (ibid) is not attracted. As far as the case of Mst. Barkat Bibi (ibid) is concerned, it is also not applicable to the facts and circumstances of the case in hand, firstly for the reason that in this case leave was refused, and secondly it has been observed that the objection on the amendment of the pleadings has to be raised before allowing amendment and once the amendment is allowed, no such objection can be raised. Therefore, we are of the opinion that amendment in the verification clause of the petition was not permissible, as the application was submitted much after the period of limitation i.e. 45 days as provided in Section 52(2) of the Act 1976 for filing of election petition. In addition to it, a right in favour of the respondent had been created, as such we are not persuaded to subscribe to the view point of the learned counsel for appellant:
Lastly, it was contended by the learned counsel that the appellant could not move application for amendment of verification clause immediately after filing of the written statement by Respondent No. 1 because there was no such objection nor issue was framed in this behalf. In this context, suffice to observe that ignorance of law is no excuse. The appellant who had approached the Election Tribunal was bound to fulfill the requirement of the law including the verification of plaint in terms of Section 55(3) of the Act, 1976. It may also be added at this juncture that notwithstanding the fact that the defect has been pointed out by the respondent or not, the Court is always empowered to ensure that the law under which proceedings have been initiated before it stands complied with fully particularly in the cases where non-compliance of mandatory provision prescribes a penalty. "
It needs no reiteration that whenever there is any uncertainty or obscurity about a legal position qua any particular proposition, the view expressed by a Larger Bench prevails and when the learned Benches are of equal strength then the latest expression by the Bench holds the field. Thus to the present case the view expressed by the larger bench in Iqbal Zafar Jhagra's case and the latest in Malik Umar Aslam's case is attracted.
"however the video prepared by the petitioner during the election campaign and on the day of polling of 18/8/2004 is enclosed herewith as Annex R, and this video shows how Ameen, sagacious, righteous and an honest person he is. " The defect in verification (with reference to page 735 of the petition) is that the petitioner has only made comments about the video but has not verified the contents of the video itself.
The petitioner has vehemently stressed that even if there be some defect in the verification, such a technicality should not impede the administration of justice and such technicalities should be overlooked by the Tribunal. This misconception prevailing in the mind of the petitioner need to be allayed inasmuch as that the law relating to election petitions has some special significant features. It insists upon the fulfillment of certain prerequisites and conditions. While assailing the election of a returned candidate the petition must be drawn and filed as contemplated and prescribed by law. The reason is quite obvious that the returned candidate having won the election with the vote and support of the electorate should not unnecessarily be entangled in litigation and that his election should be challenged only on firm and sound footings by complying with all requirements of law. It is a settled law by now that when the law requires a thing to be done in a particular manner, it has to be done in that manner only. To follow the law cannot be termed as adherence to the technicalities. The general observations in precedents (other than the election laws) that technicalities should not impede the dispensation of justice, cannot be invoked to the proceedings before the Election Tribunal in an election petition. A special Tribunal, like the election Tribunal is obliged to follow the law and to insist upon the observance of the special provisions and procedure laid down in the relevant law i.e. the Representation of the People Act, 1976, the Representation of the People (Conduct of Election) Rules, 1977 and the procedure laid down by the Election Commission of Pakistan through Notification dated 17.3.1985. The reliance of the petitioner upon Imtiaz Ahmed case (Supra) and other precedents thus is inappropriate and inadequate as none of those cases arose in election matter and also that the Hon'ble Supreme Court in addition to its other powers and jurisdiction has the power to do complete justice by virtue of Article 187 of the Constitution of the Islamic Republic of Pakistan, 1973.
"(1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Secretariat Block 'S' Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner alongwith the receipt including that the copies of the petition and the attached documents and the affidavits annexed to the petition have been supplied to the respondent."
(2). .....
(3). .....
(4) The petitioner shall make available for cross-examination all witnesses whose affidavits are filed with the petition for cross-examination on the first date of hearing before the tribunal. "
In the present case, except the affidavit of the petitioner himself, affidavit of none other has been filed with the petition. Not even of the person who photographed/prepared the video cassette. There are hundreds of press-clippings/photographs appended with the petition but affidavit of none has been placed on record. It is one of the mandatory requirement of law which has not been fulfilled. At page-52 of the petition some explanation is sought to be advanced to the effect that "the public are not willing to appear as witness in the instant election petition" and that "the petitioner himself has decided to appear in the instant election petition." But the self serving appearance of the petitioner alone can hardly be of any significance as his sole statement cannot be a substitute for due proof of the allegations leveled by him. He has given a list of "private witnesses" as follows:
"Private Witnesses
"(i) Engineer Jameel Ahmed Malik
(ii) Video recorded during election campaign
(iii) Documentary evidence from Annexure "A" to "U".
It is evident from the above that even the names of the persons have not been mentioned what to say of their affidavits. They, according to the petitioner himself are "private witnesses". If their affidavits have not been filed with the petition how can they be examined by him or produced for cross-examination. He has failed to comply with the requirement of law. Apart from that a list of "official witnesses" has been filed, but their status as "official witnesses" has been disputed in the reply filed by Respondent No. 1 (Preliminary Objection No.3). Without dilating upon this aspect whether they can be treated as official witnesses or not, the legal position as to non-filing of affidavits of admittedly "private witnesses" may be examined.
In Maulvi Abdur Rahim v. Shahzada Mohayuddin (1987 MLD 2460) (Peshawar) it was held "Para (1) provides that the election petition shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner." ..."Taking this view of the matter, the decision on preliminary Issue No.4 would go against the petitioner insofar as he had failed to file the list of his witnesses and their affidavits alongwith the election petition." In Mahr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah (1988 CLC 1289) (Lahore) it was held "Clause (1) of the Notification has conferred a valuable right of the petition to know before hand the documents and the substance of the evidence of the witnesses as desired to be produced by the petitioner in proof of his election petition and it will certainly not be possible for him to append with the written statement counter-documents and counter-oral evidence unless he is aware of the kind of the documents and the nature of the evidence intended to be produced against him. I am convinced that failure on the part of the petitioner to supply documents and the affidavits of the witnesses as desired to be produced by him will certainly cause incurable prejudice to the defence of the respondent. It seems to me that clause (1) of the Notification is not that of general policy of realm but confers a valuable right and privilege on respondent to know the documents relied upon by the petitioner, the names of the witnesses which he intends to produce and the substance of their evidence before he is called upon to file written statement. So, mere delivery of petition to the respondent without documents and the affidavits of the witnesses mentioned in clause (1) of the Notification will not serve the object of clauses (1) and (3) of the Notification and failure on the part of the petitioner to annex documents, affidavits of the witnesses and the receipt of acknowledgement with the petition will render the provisions of clause (1) as well as (3) of the Notification futile and nugatory. For all these reasons, I am of the view that clause (1) of the Notification is a mandatory provision which obliges the petitioner to supply documents, affidavits of the witnesses desired to be produced by him and also attach acknowledgement receipt from the respondent indicating that he had received not only the petition but also the documents and affidavits attached thereto and a petition which is not accompanied by these documents will not be maintainable." In Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175) (Peshawar) it was held "From the provisions of the Notification dated 16.3.1985 issued by the Election Commission of Pakistan in exercise of its powers under Section 62 of the Act, it is obvious that every election petition shall not only be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner.".... "The underlying idea behind this provision is that unless the requirement of clause (1) of the Notification regarding supply of documents and affidavits of the witnesses of the petitioner to the respondent, is complied with and he knows beforehand the documents which he has to meet and the names of the witnesses as well as substance of their evidence which he has to rebut, it will not be possible for him to put forward an effective defence to the election petition. In 1988 CLC 1289 it was held that clause (1) of the Notification is a mandatory provision which obliges the petitioner to supply documents affidavits of the witnesses desired to be produced and also to attach acknowledgement receipt from the respondent indicating that he had received not only the petition but also the documents and affidavits attached thereto and a petition which does not comply with this requirement of law is not maintainable." In Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others (1992 CLC 1766) (Baluchistan), it was held, "The conditions laid down for filing affidavits of witnesses appears to be absolute in its nature and no departure can be allowed. No hard or fast rule of universal application can be laid down for determining mandatory or directory character of particular statute. However, when provisions are found to be absolute, strict compliance is necessarily called for.
As examined earlier notification specifying procedure for filing petitions clearly creates an obligation upon the petitioner to file affidavits alongwith petition, thus any contravention therefrom would not be lightly ignored. All the points agitated by learned counsel for petitioners have been fully answered by the observations in above reports.
Accordingly for the above discussion and the law enunciated in afore-quoted judgment, I am inclined to hold that election petition without filing affidavits or list of official witnesses alongwith petition is not maintainable. In Peter John Sahotra v. Returning Officer and others (1995 CLC 394) (Lahore) it was held "The petitioner has not placed on record his own affidavit or the affidavit of any of his witnesses or any document in the prescribed manner to support his plea..... "The procedure of the Election Commission of Pakistan, therefore, should be observed in letter and spirit by the parties as well as by the Election Commission itself. There being no evidence on the record and even the allegations being too vague, therefore further, proceedings in the matter will serve no useful purpose." In Muhammad Azad Gul v. Said Muneer Said and 11 others (1997 CLC 1132) (Karachi), it was held "The petitioner has failed to file the names of the witnesses alongwith the gist of evidence to be given by them before the Tribunal. He has also failed to file affidavits of such witnesses, if any. In view of the consistent view taken by the Courts and above all, in view of the mandatory and punitive provisions of Section 63 of the Act, the instant petition is liable to be dismissed summarily"
The view expressed by the Courts is quite consistent as to the strict compliance of requirement of law, deviation wherefrom cannot be afforded. If a petition lacks the essential legal requirements, it deserves to be buried instantly.
The petition is dismissed accordingly. The parties are, however, left to bear their own costs.
(M.A.) Petition dismissed.
PLJ 2007 Lahore 912
Present : Mian Saqib Nisar, J.
CRESCENT JUTE PRODUCTS LIMITED, FAISALABAD through its Secretary and another--Appellants
versus
MONOPOLY CONTROL AUTHORITY, ISLAMABAD through its Chairman and another--Respondents
F.A.O. No. 358 & 359 of 2000, decided on 2.3.2007.
Monopolies and Restrictive Trade Practices (Control and Prevention), Ordinance, 1970--
----Ss. 2, 3, 4(b), 11 & 12--Companies Ordinance, 1984, S. 208--Jurisdiction of MCA--Liabilities of associated companies--Undue concentration of power-Allegation of--Mark-up bearing loan by investor company to its associate company--Amount, invested by associated company in some contractual work undertaken for WAPDA, could not be recovered in time--Board of Directors of investor company decided not to charge mark-up on the principal amount but the Monoply Control Authority, considering it to be a case of undue concentration of economic power, order was set aside by HC that show-cause notice was not given to the associated company--MCA again ordered both the companies to submit a time frame and modus operandi as to how the associated company would pay to the associated company the principal amount and advances alongwith mark-up thereon at market rate--Assailed--Question was whether the appellants were guilty of undue concentration of economic power, and that in MCA had the jurisdiction power to direct them as stated under the law--Validity--Section 208 of the Companies Ordinance prevents a company from making any investment in its associated company undertaking except under the special resolution of the investor company--Held: Directors of the investor company would be penalised with fine and would make good the loss suffered by the company for the breach of the conditions--Further held: S. 208 of the Companies Ordinance was not applicable and neither expressly nor impliedly barred the jurisdiction the MCA to take action against the appellants when a case of "undue concentration of economic power" had been made out; as the purpose and object of the Ordinance, 1970 was to curb and remove such vice committed by such associations. [P. 916] A, B, C & D
1986 CLC 2489 ref.
PLD 1986 Lahore 346 not applicable.
Words & Phrases--
----"Dealings"--means ordinarily any transaction between two parties--Grant of loan by one to any other person is a dealing. [P. 917] E
Monopolies and Restrictive Trade Practices (Control & Prevention) Ordinance, 1970--
----S. 2(2)--Associated undertaking--Three directors of un-associated company are related to two directors & investor company, as such, within the purview of S. 2(2) of the Ordinance, 1970, both the appellants were undertakings under a common management and this, were associated undertakings. [P. 917] F
1986 CLC 2764 and 1986 CLC 8867, rel.
Monopolies and Restrictive Trade Practices (Control & Prevention) Ordinance, 1970--
----Ss. 11 & 12(1)(a)(iii)--Jurisdiction and powers of MCA--Show-cause notice was only confined to the freezing of the mark-up but in the impugned order, the direction was given not only to return the mark-up, but also the actual amount--Held: There was no prohibition under the law that the direction for purposes of passing an appropriate order should be confined to the contents of the show-cause notice--MCA has ample power to pass an order prescribing the circumstances on which and the conditions on which associated undertakings may deal with each other thus, the return of the loan amount alongwith the mark-up was strictly covered by the MCA--Appeal was dismissed. [P. 918] G
Mr. Ahmer Bilal Soofi, Advocate for Appellants.
Mr. Asad Munir, DAG for Respondents.
Date of hearing: 2.3.2007.
Order
FAO No. 358 and FAO No. 359 of 2000 are being decided together, as both these involve the common questions of law and facts.
"The Authority accordingly, hereby orders the undertakings CJPL and CGSL to submit to the Authority a time frame within three months of the issuance of this Order and modus operandi as to how the CGSL shall pay to CJPL, which should not go beyond December 31, 2002, the principal amount of these loans and advances alongwith mark-up thereon at market rate. Mark-up must be paid by CGSL/recovered by CJPL at the prevailing market rate computation of which should be submitted to the MCA within three months of the issuance of this Order. Transactions in compliance of this Order must be prominently shown by both the undertakings in their books of accounts and copy of the annual audited accounts be submitted to MCA with reference to this Order by the close of year 2001 and 2002."
The factual backdrop of the cases are that M/s Crescent Jute Products Limited (CJPL), the appellant in FAO. No. 358 of 2000, had given a markup bearing loan of an amount of Rs. 285.867 Million to its associated company i.e. M/s Crescent Group Services Pvt. Ltd. (CGSL), in the year 1995. According to the appellants' case, the loan amount was invested by the CGSL in some contractual work undertaken for the Wapda, which amount could not be recovered in time and, therefore, the loan could not be repaid to the CJPL. However, the CJPL continued charging the markup upon the said loan till the year 1996, where-after a decision was taken by the Board of Directors of the CJPL that the markup since onward should be frozen, whereas only the principal amount alongwith markup occurring till then shall be recovered from the CGSL. The Monopoly Control Authority, constituted under the provisions of the Monopolies and (Restrictive Trade Practices (Control and Prevention), Ordinance, 1970 (the Ordinance), while considering it to be a case of undue concentration of economic powers, by invoking Section 4(b) read with Section 3 and while exercising its powers under Sections 11 and 12 of the Ordinance, after issuing the show-cause notice, passed an order that the loan amount should be recovered from the CGSL with markup for the entire period. The said order was challenged by both the lender and the loanee companies through FAO No.315 and FAO.No.339 of 1999, which were accepted by this Court vide judgment dated 10.10.2000 on the ground that the CGSL was not given any show-cause notice and thus, has been condemned unheard. After the above decision, show-cause has been repeated to all the concerned, and the final order has been passed by the MCA, the operative part whereof has been reproduced above.
The appellants are aggrieved of the above order and impugn the same on the grounds that the MCA had no jurisdiction to pass the order because the loan was advanced to CGSL in terms of Section 208 of the Companies Ordinance and the said provision provides a complete remedy and a mechanism to cater for the breach of the section and for the recovery of the investment made thereunder; thus no direction could be issued under the Ordinance for the return of the loan; under Section 12 of the Ordinance, the MCA has no power to give direction to the tender to charge and the loanee to pay the markup; the markup was frozen by the Board of Directors of CJPL, which had full authority under its Articles of Association, with bona fide intention as the loanee was not able to recover the amount from Wapda where it was invested by it; the grant of loan or freezing of the markup does not constitute "dealings" in terms of Section 4(b) of the Ordinance; besides, both the companies are not the "associated undertakings" within the meaning of the above section; furthermore, Section 4(b) is contingent on two important conditions "unfair benefit" and "public interest", which are conspicuously missing in the matter, therefore, as the requisite conditions of the section are not met, resultantly it has no application to the facts and circumstances of this case; the show-cause notice is only confined to seek an explanation for the appellants as to why markup has been frozen, but the impugned order has traveled beyond that, directing the return of the loan amount and also the markup to the lender; it is lastly submitted that the impugned order is not covered by the provisions of Section 12 (ii) of the Ordinance. In support of his propositions, Mr. Ahmer Bilal Soofi, learned counsel for the appellants, has relied upon the judgment reported as Rafhan Maize Products Company Ltd. vs. Monopoly Control Authority and 9 others (PLD 1986 Lahore 346).
On the contrary, Mr. Asad Munir, the learned Deputy Attorney General, submits that Section 208 of the Companies Ordinance belongs to a separate regime, which altogether cater for a different situation; the theme of the Ordinance is remedial and corrective, whereas Section 208 is penal in nature. He has read before the Court the preamble of the Ordinance to highlight the purpose of the law and how the impugned action by the MCA is legally justified. It is also submitted that the two companies are associated undertaking within the meaning of Section 4(b) of the Ordinance.
I have heard the learned counsel for the parties and find that the facts of the case are not much in issue, rather are admitted. It is only on the basis of interpretation of the relevant law that it has to be determined, whether the appellants are guilty of undue concentration of economic power and the action by the MCA against them is legally tenable within the purview of Sections 3, 4(b), 11 and 12 of the Ordinance, besides the effect of Section 208 of the Companies Ordinance upon the case, needs examination.
I shall first deal with the proposition about the application and the effect of Section 208 of the Companies Ordinance on the matter in hand. The section from its clear wording is a prohibitory provision, which prevents a company from making any investment in its associated company or associated undertaking except under the special resolution of the investor company, which shall indicate the nature and the amount of the investment and the terms and conditions thereof. It is not the case of either party that while providing the loan, the aforementioned conditions were not followed by CJPL. I do agree with the learned Deputy Attorney General that Section 208 pertains to a separate regime altogether, and is meant to cater for a different situation, but it is not well founded to argue that the Section is remedial or corrective in its nature, rather according to the plain and simple language of sub-section (5), it is a penal provision whereby in case of the violation of the conditions of Section 208(1), the directors of the investor company shall be penalized, and shall be saddled with the penalty of fine, besides they shall also make good the loss suffered by the company for the breach of the conditions. This law by no means provides any remedy to the company making the investment for the recovery of the amount of investment, which has been made in violation of the section. Besides, the section has nothing to do with the purpose and the object of the Ordinance which has been promulgated with the primary intent to curb and remove the vice of "undue concentration of economic power" by such associations which have the common management but have the semblance of separate management. Reference in this behalf can be made to Habib Bank Ltd. vs. Monopoly Control Authority (1986 CLC 2489). Such a vice, which if admittedly found in a case, could only be dealt with under the Ordinance.
In my considered view, Section 208 of the Companies Ordinance is not applicable and in no way either expressly or by necessary implication, bars the jurisdiction of the MCA to take action against the appellants under the provisions of the Ordinance, when a case of "undue concentration of economic power" has been made out.
Now in order to dilate if the appellants are guilty of undue concentration of economic power, reference should be made to Section 4(b) of the Ordinance, which reads as:--
"Undue concentration of economic power shall be deemed to have been brought about, maintained or continued if--
(a) ---------------
(i) ---------------
(ii) ---------------
(b) there are any dealings between associated undertakings which have or are likely to have the effect or unfairly benefiting the owners or share-holders of one such undertaking to the prejudice of the owners or shareholders of any other of its associated undertakings."
The plain and simple language of the Section envisages two broad conditions for its application; (1) dealings between two associated undertaking (2) effecting or unfairly benefiting owners or shareholders of one such undertaking to the prejudice of the owner or shareholder of its other associated undertaking. The word "dealings" has been used in the provision in its ordinary meaning, which contemplates any transaction between the two parties. Obviously, the grant of loan by one to another person is a dealing. As regards, whether the appellants are associated undertaking, the expression has been defined in Section 2(b) of the Ordinance and when read alongwith Section 2 (2) thereof, it is clear that an individual shall be deemed to own, hold or control a thing if it is owned, held or controlled by the individual or his spouse, or by a brother or sister of the individual or by any of the lineal ascendants or descendants of the individual. In the present case, the CJPL is a public limited company having nine directors, whereas CGSL has three directors and alt the three directors namely Khalid Bashir, Nasir Shaft and Humayun Mazher are related to Shaukat Shaft and Mazher Karim, the directors of CJPL falling within the purview of sub-section (2) of Section 2 of the Ordinance, therefore, both the appellants are undertaking under a common management and thus, are associated undertaking. Reliance in this behalf can be placed upon the judgments reported as Messrs (Colony) Sarhad Textile Mills Ltd. (File No. 6/R/IND/MCA of 1972 (1986 CLC 2764) and Habib Bank (Overseas) (1986 CLC 2867).
As regards the question whether any unfair benefit etc. shall be attained by the owners and the shareholders of the CGSL and/or shall be to the prejudice of the shareholders etc of CJPL, suffice it to say that if the recovery of the loan amount is deferred for an indefinite period and the markup is frozen and not recovered from the CGSL, it undoubtedly shall give unfair advantage and benefit to the owners and shareholders of the CGSL and would be disadvantageous and shall prejudice the shareholders of the CJPL, who shall be deprived of the benefits of the capital and the markup payable to CJPL, which ultimately shall be for their benefit. I am not convinced if the judgment (PLD 1986 Lahore 346) cited by the learned counsel for the appellants has any application to the facts of this case.
The submission of Mr. Ahmer Bilal Soofi, learned counsel for the appellants, that show-cause notice was only confined to the freezing of the markup, but in the impugned order, direction has been given to the CGSL not only to return the markup but also the actual amount, suffice it to say that there is no prohibition under the law that the direction for the purposes of passing an appropriate order should be confined to the contents of the show-cause notice. Ample power has been given by the Ordinance to the MCA under Section 12(1)(a)(iii) read with Section 11 of the Ordinance to pass an order prescribing the circumstances in which and the conditions on which the associated undertakings concerned may deal with each other. Thus, the return of the loan amount alongwith the markup is strictly covered by the above authority.
In the light of above, these appeals have no merits and are hereby dismissed.
(M.A.) Appeals dismissed.
PLJ 2007 Lahore 918
Present: Maulvi Anwar-ul-Haq, J.
ASHIQ ALI CH. and another--Petitioners
versus
MEMBER (CIVIL) BORDER AREA COMMITTEE, LAHORE
and another--Respondents
W.P. No. 127-R of 2006, heard on 5.6.2007.
(i) Constitution of Pakistan, 1973--
----Art. 199--NOC for alienation--Requirements to obtain NOC from GHQ--Land was allotted--Allottee died and had survived son and daughter--Further mutations were attested--Allotment was cancelled owing to without prior approval of GHQ (Army)--Validity--Allottee or his heir could not alienate land without obtaining NOC from GHQ--Question of--No action was taken when his heir made gift or alienation and of course nothing happened when the petitioner purchased land prima facie--Held: Such scrutiny may take place even after alienation--Petition was dismissed subject to that petitioner may file application within 30 days with competent authority for NOC for alienation--Petitioner would not be disturbed till decision of the application if filed within the period of time.
[Pp. 920 & 921] A, B, D & E
(ii) Border Area Regulations, 1959--
----Object and purpose of--Army Authorities would be satisfied about credential of a person who on the basis of an alienation made by allottee or his heir enters into land. [P. 920] C
Ch. Muhammad Anwar and Rai Wali Muhammad, Advocates for Petitioners.
Mr. Amir Zahoor Chohan, Advocate for Respondents.
Date of hearing: 5.6.2007.
Judgment
The land mentioned in para 2 of the plaint was allotted to Syed Akbar Ali Shah by the Respondent No. 2, on 30.8.1965. The said allottee died and was survived by a son namely Shabbir Haider and . a daughter namely Mehmooda Begum. Mutation No. 235 of inheritance was attested in their favour on 23.4.1992. Shabbir Haider proceeded to gift away his share in favour of his wife and two sons vide Mutation No. 278 attested on 29.3.1994. On the same date vide Mutation No. 279 Ashraf Begum one of the donees sold away land measuring 36 kanals to Petitioner No. 1, while Sarfraz Ahmad and Ali Raza Haider, donees, transferred their share in favour of Petitioner No. 2 vide Mutation No. 373 attested on 5.6.2000. The petitioners have filed this writ petition being aggrieved of order dated 22.12.2005 passed by Respondent No. 2 (Annexure-E), whereby the said allotment in favour of Syed Akbar Ali Shah has been cancelled on the ground that the said transactions made by son of the allottee and those made by the donees of the said son are void having been entered without prior approval of GHQ (Army).
The learned counsel for petitioners contends that the allotment having been made to Akbar Ali Shah in the year 1965, the same could not have been cancelled with reference to the condition, which was imposed in the year 1981 vide Ordinance No. III of 1981, whereby Schedule III of West Pakistan Border Area Regulations, 1959 was amended.
The learned counsel for respondents, on the other hand, contends that notwithstanding the fact that the said condition was added in the year 1981 any transaction made by the allottee or his heir was to be governed by the same. He has relied upon the case of Rehmat Ali Vs. Border Area Committee and another (PLJ 1997 Lahore 1426).
I have given some thought to the said contention of the learned counsel for parties. Prima facie, Condition No. 11 requiring an allottee to obtain NOC from GHQ (Army) before alienating the allotted land was added in Schedule III in the said Border Area Regulation, 1959 vide Amendment Ordinance No. Ill of 1981 and applying the Fundamental Rules it should not have retrospective effect. However, the said judgment being relied by the learned counsel for respondent fully supports his contention. I have examined the same and am in respectful agreement with the reasoning of his lordship in the said dictum holding that an allottee in Border Area would be requiring prior permission of GHQ (Army) before alienating the allotted land so that the spirit and purpose of the said Regulations are made effective.
I, therefore, do hold that the allottee or his heir could not alienate the land without obtaining NOC from GHQ (Army). The matter, however, does not end here. A large number of cases have come up before this Court where 3rd or 4th vendees, or sometime line is even longer, are trapped and bound to loose because of invocation of the said Condition No. 11. In the present case, itself, the allotment was made in the year 1965. The allottee died somewhere in the year 1992. No action was taken when his heir made gift or alienation and of course nothing happened when the present petitioners purchased the land, prima facie, after paying consideration. Several years thereafter the petitioners are confronted with the said cancellation order. The purpose of Border Area Regulations, 1959 appears to be that the Army Authorities should be satisfied about the credential of a person, who on the basis of an alienation made by the allottee or his heir, enters into the land. To my mind such scrutiny may take place even after alienation. The reason being that I have not been able to find out any criterion or any body or authority in the said Statute through which Respondent No. 2 or the said authority can check the alienation itself. As noted by me above most of the times the citizens approached this Court, when they purchased the land from 2nd or 3rd transferee.
The respondents should give a thought to this matter so as to adapt some measure to check such alienation itself. Upon a query the learned counsel for respondents is unable to point out even a single instance where a Village Officer or a Revenue Officer has been hauled up and proceeded against for facilitating and ultimately effecting such alienation. The writ petition is accordingly dismissed. However, the petitioners, if so advised, may file an application within 30 days from today with the competent authority for a NOC for the said alienation in their favour so that after scrutiny appropriate orders, as are deemed fit by the authority, may be passed. The petitioners, if are in possession, shall not be disturbed till the decision of said application, if filed within the said period of time. A copy of this order shall immediately be remitted to the respondents.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 921
Present: Nasim Sikandar, J.
M/s. OKARA TEXTILES LIMITED and another--Petitioners
versus
DEPUTY DISTRICT OFFICER (Registration) OKARA
& another--Respondents
W.P. No. 17807 of 2005, decided on 17.4.2007.
Stamp Act, 1899 (II of 1899)--
----Ss. 27(A) & 3(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Question of jurisdiction--Demand of stamp duty on the sale-deed--Local council fee on transfer of property--Urban and rural lands--Impugned demand without jurisdiction raised by DDO (Registration) and Zila Council officer, after passing as many 24 long years of the date of registration of sale-deed for payment of stamp duty on enhancement of total value of property--No explanation as to reason for awakening of respondents from deep slumber after a period of 24 years of the registration document--Zila Council Officer propelling the DDO (Registration) to initiate the action that sale-deed in-question was "definitely under valued" and it was a fraudulent transaction--Sale-deed in-question was executed by Federal Government through a senior functionary--Registration Act or Stamp Act not confer any jurisdiction on the Zila Council Officer, as the same was otherwise not available to him under the law--Neither the District Collector nor the Provincial Government in any manner was competent to fix the value of property which was subject matter of a sale-deed presented for its verification registration--Petitioner having a sale-deed executed directly by a senior functionary being a representative of the Federal Government at a particular value under the Stamp Act--Instruments of sale-deed having been executed on behalf of government, no duty was chargeable to it in view of proviso (1) to the charging Section 3 of stamp Act, 1899--Petition allowed.
[Pp. 925, 926, 927 & 929] A, B, C, D, G & H
Constitution of Pakistan, 1973--
----Art. 199--Principle--Assumption of jurisdiction--No Court, tribunal or forum howsoever high can confer a jurisdiction to a forum, Court to tribunal which is not available to it under the law nor it can deprive a forum, Court or Tribunal of a jurisdiction which is available to it under the law--It is only law enacted by legislation which can be invoked to exercise a jurisdiction. [Pp. 927 & 928] E & F
Syed Mansoor Ali Shah, Advocate for Petitioners.
Mr. Rafey Ahmed Khan, AAG for Respondent No. 1.
Mr. Mian Subah Sadiq Klasson, Advocate for Respondent No. 2.
Date of hearing: 27.3.2007.
Judgment
On 12.5.1981 the petitioner M/s. Okara Textiles Limited purchased a factory owned and possessed by M/s. Sutlej Cotton Mills Limited Okara which was earlier declared as Enemy Property under the provisions of Defence of Pakistan Ordinance, 1965. The aforesaid Mill comprised on 105-Acres, 4-Kanals 4-Marlas and 7-Sarsai together with buildings, superstructures, fixtures and fittings. The sale-deed evidenced payment of a consideration of Rs.40,00,000/-. At the time of registration the parties to the transaction namely Brig. Mansoor-ul-Haq Malik, Addl. Custodian, Enemy Property, Ministry of Communications, Government of Pakistan Islamabad and Petitioner No. 2 Mr. Javaid A. Zia, Chairman and Managing Director Okara Textiles Limited the purchaser company, made an undertaking in writing which reads as under:
"This Is To Certify that the area and building under the Sutlej Cotton Mills, Okara have been sold out for Rs.40,00,000/- (Rupees Forty Lacs only). This is the actual amount which has been fixed and paid as the sale price of the said premises. However, it comes to the notice of the authorities concerned at a later stage that the property was under-valued, it would be the liability of the parties concerned to make up the deficiency towards stamp duty etc."
The Deputy District Officer (Registration), Okara Respondent No. 1 on 03.8.2005 issued a demand notice for payment of stamp duty of Rs. 31,36,46,000/- on the alleged total value of the property transacted through the said sale-deed at Rs.3,48,89,55,556/-. Another notice was issued by the Respondent No.2/Council Officer, District Council Okara on 05.7.2005 raising a demand of local council fee at Rs.6,79,23,889/- on transfer of said property.
These notices were challenged before this Court through Constitutional Petition No. 14651 of 2005. That petition was disposed of by me on 22.8.2005 directing that the impugned recovery notices shall be deemed to be show-cause notices, which will be replied to by the petitioners. Also the petitioners will be heard by the respondent Deputy District Officer (Registration) Okara before passing of an order. On 22.9.2005 the Respondent No. 1 passed an order raising demands against the petitioners of Stamp Duty, Registration Fee, Local Council Tax (Zila Council) and Local Council Tax (M.C. Okara) respectively at
Rs. 15,78,00,805/-, Rs. 2,86,91,055/-, Rs.6,69,28,889/- and Rs.47,98,750/-.
That order is sought to be challenged through this Constitutional petition inter alia, on the grounds that after registration of the sale-deed the Respondent No. 1/Registration authority became functus officio and, therefore, had no jurisdiction to reopen and decide the questions relating to alleged deficiency of stamp duty, that Respondent No. 1/DDO (Registration) Okara has no jurisdiction to look into the alleged deficiency in stamp duty nor he has the jurisdiction to determine the question of fee on transfer of property chargeable under the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981; that the alleged "undertaking" has no nexus nor the same could confer any jurisdiction on the Respondent No. 1 to adjudicate and raise the aforesaid demands; that no evidence worth the name was brought on record to hold that the value of the property was under-stated; that the respondent failed to consider the distinction between the expressions "Instrument" and "Transaction" as canvassed by the counsel for the petitioners; that the instrument of sale-deed was properly stamped on the value chargeable on the date of its execution; that the estimation of value by the respondents on the basis of the valuation table notified under Section 27-A of the Stamp Act, 1899 (for short the Act) was per-se illegal inasmuch as these provisions were added to the Statute in the year 1986 by the Punjab Finance Act, 1986, that the document having been executed by a senior functionary of the Federal Government and having certified the payment of the consideration even in the undertaking the Respondent No. 1 could not lay his hands upon the deed after 24 years of its execution; that the said undertaking has totally been mis-construed by the Respondent No. 1; that the issues of stamp duty on the sale-deed and the local council fees on transfer of property were past and closed transactions which could not be reopened in one guise or the other; that the claim of the Respondent No. 1 in the impugned order that he was assuming jurisdiction under the said direction of this Court is dearly a mis-statement of law as well as fact; that the allegation made in the impugned order qua the petitioners having intentionally deprived the Government of duties and making a reference for proceedings on criminal side is intimidating, malafide and an attempt to harass the petitioners unjustly and illegally; that Brig. Mansoor-ul-Haq Malik acted on behalf of Government under the powers conferred on him by the Government under Rule 185 of the Defence of Pakistan Rules, the possibility of any under valuation was totally baseless; that the Mill in question was a sick unit and despite various attempts the Government and the Custodian Enemy Property failed to run it and, therefore, it was finally decided to dispose it of and that legally the Government of Pakistan being seller no stamp duty was chargeable on the deed in view of proviso to Section 3 of the Act.
The respondents in their reply have supported the impugned order. Without mentioning the exact provisions of law under which it was recorded the Respondent No. 1 has claimed that he was legally competent to pronounce the order; that the issue of jurisdiction had already been decided by this Court while referring the matter to him for adjudication; that by virtue of the undertaking dated 12.5.1981 the petitioner was bound to make good deficiency on account of stamp duty and local taxes; in sub-para (e) of reply to the grounds taken in the petition the respondents state as under:--
"Incorrect. The material facts were concealed at the time of registration of sale-deed. In fact it was a transaction of mill, buildings, superstructure, fixtures, machinery and land comprising 106-acres 4-kanals 4-marlas were Rs. 80 millions, but the sale-deed was prepared for Rs.40-lacs only, causing huge loss to Government exchequer. Its stands proved on the force of evidence tendered that the actual sale consideration agreed between the parties was 80-million and was fraudulently shown only 4-million to evade Government taxes. The Letter No. 3(3) CEP/2005-Pt 522 dated 8.09.2005 of Deputy Secretary/Additional Custodian Enemy Property, Ministry of Communication, Govt. of Pakistan and Summary for the Cabinet No 3(8)-CEP/81 dated 11.05.1983 submitted by Federal Secretary Communication are on record and proved beyond any shadow of doubt that the property was under valued at least 20-times to evade Government taxes etc."
It is further stated that the impugned order is bonafide and has been passed in public interest and that petitioners being vendees and beneficiaries of the sale-deed are responsible to make up deficiency in the stamp duty and also to pay other local council fees.
(i) The Respondent No. 1 has failed to point out the provisions of law under which he could assume jurisdiction and to raise the impugned demand after passing of as many as 24 long years of the date of registration of sale-deed. The reliance of the learned counsel for the petitioner in that regard on the ratio settled in three judgments of this Court and one Full Bench Judgment of the Madhya Pradesh High Court is therefore, pertinent and relevant. In the first judgment re. Thakar Das and others vs. The Crown, (AIR 1932 Lahore 495) a Full Bench of this Court inter alia, held that a Register requiring production of a document under Section 33 of the Stamp Act (1899) on the ground that it was not duly stamped after it had been registered and delivered to the party concerned could not be said to be acting "in performance of his functions". Further that a reference by him to the Collector under Section 33 was also ultra vires as was the order of the Collector raising demand of extra duty and penalty. In the second case re. Lala Uttam Chand vs. Perman Nand and others, (AIR 1942 I.C. Volume 203 page 7) a Single Bench of this Court while interpreting the word "produced" as used in Section 33 of the said Act concluded that a party could not be compelled to produce the document after its registration. In the third case a Full Bench of the Madhya Pradesh High Court in re. Komal Chand and another vs. The State of Madhya Pradesh, (AIR 1966 Madhya Pradesh 20) again while interpreting the expression "in the performance of functions" held that the registering authority became functus officio after registration of document and it had no jurisdiction to impound the document as contemplated in Section 33(1) of the Act. In the last judgment relied upon at the bar, Amjad Ali, J. in re. Khurshid Begum vs. Sub-Registrar & 2 others, (2001 CLR 337) while disposing of a number of identical Constitutional petitions set aside the impounding of documents by the registration authority after these had been registered.
(ii) There is no explanation whatsoever as to the reason for awakening of the Respondents Nos. 1 and 2 from the deep slumber after a period of 24 years of the registration of the document. Para-2 of the impugned order opens with the words "when it came in the notice of concerned authority through Council Officer, Zila Council Okara vide his Letter No. 1706-8/CO/ZC/OK dated 25.06.2005 that an area of 82-acre 4-kanal 4-marla & 7-sarsahi out of 106-acre 4-kanal 4-marla 7-sarsahi was in the territorial limits of Zila Council Okara and the same was under-valued at the time of registration in the sale-deed because in the sale-deed all buildings, super structures and all the fixture fittings installed therein in the Mill or all trees, fences, hedges, sewer drains, water course, rights, liberties, privileges, it was definitely registered under-valued". Such reason or justification on the part of the registering authority to raise the impugned demand for the various reasons stated in the impugned order is again not supported either by a provision of law or the rules framed thereunder. The view of the Council Officer/Respondent No. 2 propelling Respondent No. 1 to initiate the action that the sale-deed in question was "definitely under valued" and that it was a fraudulent transaction is also not supported from any material on record.
(iii) I am surprised that an officer of the Provincial Government and the District Council had the audacity to allege fraud on the part of the Federal Government. The sale-deed in question was executed by the Federal Government through a senior functionary. The contention that the sale consideration was agreed between the parties at Rs. 80 million while it was fraudulently shown only at Rs.4 million is sought to be supported by the letter referred to in para-5 above. That letter written by Deputy Secretary/Deputy Custodian (EP), Govt. of Pakistan dated 8.9.2005 in all reads as:
"I am directed to refer to Deputy District Officer (Registration's) Letter No. 371-73/ SR(O) dated 6th September, 2005 on the above subject and to say that in pursuance of Cabinet Decision, Sutlej Cotton Mills, Okara, an Enemy Property, was transferred to Mr. Javaid A. Zia who picked up liabilities of the Mills amounting to Rs. 80 million and there was no cash transaction."
In the first place that letter as against recitals containing in the sale-deed is hardly of any avail. Secondly, even if it is accepted that no cash transaction actually took place and it was only for the transaction in hand that a certain amount was declared to have been received by the Federal Government, the Registrar at the relevant time had no jurisdiction to dispute the value of a property as disclosed by parties to the transaction. His competence to proceed to require making up deficiency in the stamp was relatable only to the declared value and not a value assessed by him. His competence to insist upon a minimum value notified under Section 27-A of the Stamp Act only came into being in the year 1986. Therefore, the computation of the value of the property transacted in the year 1981 on the basis of the table notified under Section 27-A of the Act for the current year viz 2005 is all the more fallacious. As a matter of fact learned counsel for the respondents realizing the illegality in estimating the value of the property at the current rate which stood registered some 24 years-back has offered to re-consider the same in order to fix its valuation at the rate prevalent in the year of its registration. That request is too optimistic to be considered seriously. As rightly pointed out by the petitioner the provisions of Section 27-A of the Act were added to the Stamp Act in the year 1986 by Punjab Finance Act 1986 to provide for the competence of the District Collector to fix minimum value in respect of rural and urban lands for the purpose of charge of the duty. Earlier to the insertion of that section neither the District Collector nor the Provincial Government in any manner was competent to fix the value of a property which was subject matter of a sale-deed presented for its verification/registration. Therefore, the desire of the respondents to undertake an exercise in the year 2007 which it could not undertake in the year 1981 cannot legally be granted.
(iv) The alleged assumption of jurisdiction on the basis of undertaking is also devoid of any force. It is an established preposition of law that except where provide by law itself, the consent of the parties cannot confer jurisdiction on any Court, Tribunal or Authority which is otherwise not available to it. By the same token the consent or undertaking of parties cannot deprive a forum, Court, tribunal or authority of the jurisdiction which is vested in it by law. I am also of the view that the respondents are attempting to approbate and reprobate. They are relying upon the contents of the undertaking to assume jurisdiction but are not ready to accept a part of it which clearly stipulates that the Mill in question was sold for Rs. 4 million which was the actual price fixed and paid. The respondents cannot blow hot and cold in the same breath.
If they are relying upon the undertaking then they must accept the document as a whole and not the mere holding out that in case subsequently the property is found to be under valued they will make good the loss to the provincial revenue.
(v) I am also in agreement with the petitioner that the conclusion drawn by Respondent No. 1 while recording the impugned order that he was assuming jurisdiction on the basis of my order dated 22.8.2005 is legally as well as factually incorrect. In that Constitutional petition I had accepted the contention of the petitioners that raising of a demand without notice and affording an opportunity of hearing was improper. That order did not confer any jurisdiction on the Respondent No. 2 as the same was otherwise not available to him either under the Registration Act or the Stamp Act. It is only the law enacted by the legislature which can be invoked to exercise a jurisdiction. No Court, tribunal or forum howsoever high can confer a jurisdiction to a forum, Court or tribunal which is not available to it under the law nor it can deprive a forum, Court or tribunal of a jurisdiction which is available to it under the law.
(vi) A fraud has to be alleged in every detail which is certainly not a case in hand. Mere opinion of the Respondent No. 2 conveyed to Respondent No. 1 that the transaction was "definitely fraudulent" is neither here nor there. The move made by the Respondent No. 2/the Council Officer and the impugned order passed by Respondent No. 1 speak of the approach of a Tax Collector dressed in the straight jacket of obsession for recovery. In P.T.R. No. 92 of 2001 re. M/s. Shan Traders vs. The Assistant Commissioner of Income and others decided on 15.11.2006, the assessing officer estimated the value of the property purchased by the assessee from Lahore Development Authority at Rs.16,92,000/- per kanal as against the one indicated by the transfer letter at Rs.12,00,000/- per kanal. While speaking for the Division Bench I disapproved the enhancement of value of the property by the assessing officer on the ground that the transfer letter issued by an official agency supporting the transaction at a certain amount could not be held to have been a case of under statement. Also that the investment made in the plot/land and declared in the wealth statement having been supported by a document issued by an official agency there was no occasion at all to place a higher value to it and to deem the balance as unexplained investment. The present petitioner having a sale-deed executed directly by a senior functionary being a representative of the Federal Government at a particular value has a better case under the Stamp Act.
(vii) The objection against maintainability of this petition cannot be sustained. The impugned order for the reasons recounted above being without jurisdiction on the face of it, the objection is rejected. And, (viii) I will also agree with the petitioner that the instrument of sale-deed having been executed on behalf of Government no duty was chargeable to it in view of proviso (1) to the charging Section 3 (Instrument chargeable with duty) of the Stamp Act, 1899.
(A.S.) Petition allowed.
PLJ 2007 Lahore 929 (DB)
Present: M. Bilal Khan and Tariq Shamim, JJ.
Begum AFSAR SULTAN QAZALBASH and 4 others--Petitioners
versus
Mian NISAR ELAHI and 2 others--Respondents
R.A. No. 70 of 2005 in W.P. No. 2178 of 2005, decided on 26.4.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 114 & O. XLVII, R. 1--Constitution of Pakistan, 1973--Art. 199--Review applications--F.I.R. quashed--Question of fact--Beyond scope of writ jurisdiction--Scope of review--Limited--Granting of--Discretion of Court--There is an error or mistake apparent on face of the record--Review is neither substitute for full fledged appeal not it is akin to re-hearing of the whole matter--Even if view taken by Court is erroneous it does not warrant review of decision which can be exercised when error or mistake is manifestly to float on the face of record which is so patent that if allowed to remain intact would perpetuate illegality and gross injustice. [P. 935] A
(ii) Application for review--
----Matter of evidence--Patent error or mistake--Application for review has to show discovery of new and important matter of evidence, which after exercise of due diligence was not with his knowledge or could not be produced at the time when order was made. [P. 935] B
(iii) Review--
----Jurisdiction--Misconstruction or misappreciation of documents--Law applicable--Facts of case--Remedy--Review jurisdiction cannot be invoked as a routine matter or to re-hear a case which has already been decided--Conscious decision on a point of fact or law does not warrant review, rather remedy of aggrieved party lies elsewhere.
[P. 936] C
Mr. A. K. Advocate for Petitioner.
Date of hearing: 26.4.2007.
Order
We propose to dispose of two Review Applications No. 70 and 71 of 2005 arising, out of consolidated judgment dated 13.7.2005 passed in Writ Petition No. 2178 of 2005, whereby two connected petitions bearing Writ Petition No. 2178 of 2005 (Begum Afsar Sultan Qazalbash & four other v. Mian Nisar Elahi & 2 others) and Writ Petition No. 2l79 of 2005 (Riza Ali Khan Qazalbash & three others v. Mian Nisar Elahi & 2 others) had been allowed and F.I.Rs. No. 97 and 96 of 2005 (impugned therein), got registered by the applicant, namely, Mian Nisar Elahi, with Police Station Satto Katla, district Lahore for offences under Sections 419, 420, 467, 468, 471 P.P.C. allegedly committed by Begum Afsar Sultan Qazalbash and others, were ordered to be quashed.
Precisely case of Mian Nisar Elahi, applicant, as it unfolded in F.I.R. No. 96/2005 (impugned in Writ Petition No. 2179/2005) was that on 1.1.2004, Nawabzada Riza Ali Khan Qazalbash had executed an agreement in his favour through registered deed for sale of his land measuring 203 kanals 5 marlas, situated in Mauza Rakha Khamba at the rate of Rs. 4,00,000/- per kanal, for a total consideration of
Rs. 8,13,00,000/- and after receiving an amount of Rs. 1,00,00,000/- as earnest money had delivered possession of the land to the applicant, that the latter having completed boundary wall at the site was continuing in possession, that although Nawabzada Riza Ali Khan Qazalbash had received the earnest money, yet the applicant had to file a suit for specific performance of the agreement dated 1.1.2004 and during pendency thereof it had come to light that Nawabzada Riza Ali Khan Qazalbash in connivance with Hammad Arshad a also the Chief Executive and other Directors of Eden Developers had illegally and fraudulently fabricated forged documents with a view to usurping the land and earnest money paid by the applicant; that in order to accomplish their designs, a forged and fake Power-of-Attorney had been got executed in favour of Hammad Arshad; that in this way, Nawabzada Riza Ali Khan Qazalbash having connived with Hammad Arshad and others had got prepared a fake and forged sale-deed in favour of Eden Developers and had got the same registered with a view to accomplishing a fake Housing Scheme; that with dishonest intention and in order to defraud the general public, advertisements are being published about the aforesaid land, and with a view to usurping the earnest money paid by the applicant, attempt was being made to accomplish a Housing Scheme in a fake and fictitious name; that the sale-deed by Nawabzada Riza Ali Khan Qazalbash in favour of Eden Developers is forged, fictitious, without any foundation, conceived out of fraud and was also without consideration; that the intention of the accused right from the very beginning was dishonest, deceitful and based on fraud; that Nawabzada Riza Ali Khan Qazalbash and others have committed forgery and fraud and are liable to be proceeded against.
On finding out about the registration of the cases, two writ petitions bearing W.P.No. 2178 of 2005 had been filed by Begum Afsar Sultan Qazalbash, Anwar Qazalbash, Mazahir Baig, Hammad Arshad and Muhammad Arshad, for quashing of F.I.R. No. 97 of 2005 and another bearing W.P. No. 2179 of 2005 was filed by Riza Ali Khan Qazalbash, Mazahir Baig, Hammad Arshad and Muhammad Arshad for quashing of F.I.R. No. 96 of 2005, Both the Constitutional petitions were heard by a learned Single Judge in Chambers and by order dated the 13th of July 2005, the same were allowed, consequently both the F.I.Rs. had been quashed, by inter-alia holding that so far as the execution of General Power-of-Attorney in favour of Hammad Arshad was concerned, since the executants thereof were owning up to the same as a genuine document, no offence could be said to have been committed. Further no offence of cheating was also held to have been made out on the facts alleged in the F.I.R. read with the documents, authenticity whereof had not been challenged. Since the original owners of the land were supporting the validity of the sale-deeds and admitted having received the amount of consideration, the learned Single Judge in Chambers had held that the sale-deeds executed by Hammad Arshad in favour of Eden Developers could not be said to be forged documents and that, therefore, no offence of fabrication or forgery was held to have been committed. It was emphasized that if Begum Afsar Sultan Qazalbash and other owners of the land, had any criminal intent, they would not have parted with the possession of the entire land in favour of the complainant, only on receiving the earnest amount of Rs. 1,00,00,000/-. Reference was made to the terms of the subsequent agreements and the fact that the complainant had already approached the Civil Court of competent jurisdiction seeking specific performance of the agreements to sell, which proceedings were being contested tooth and nail by Begum Afsar Sultan Qazalbash and others. Above all, in the view of the learned Single Judge in Chambers, it was essentially a dispute of civil nature between the parties.
We have heard Mr. A.K. Dogar, the learned counsel for the applicant. With his assistance, we have also examined the impugned judgment. Review of the judgment dated 13th of July, 2005 has been sought on the grounds that the presumptions drawn by the learned Single Judge could not be raised; that the intention behind the agreement, dated the 28th of February 2000 which was followed by the agreements, dated the 1st January 2004 being a question of fact was beyond the scope of writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; that the conduct of the writ petitioners had not been ascertained adequately; that no opinion has been expressed regarding relevancy or otherwise of certain documents filed on behalf of the applicant herein; that the veracity of the allegations contained in the KIR. and whether on the facts alleged therein any offence was made out or not could not be the proper subject of a Constitutional petition; that the facts have not been appreciated in their true perspective; that certain documents have either not been referred to in the order, or have been misinterpreted and the case-law has been misapplied to the facts of the case; that some of the observations made in the order of the learned Single Judge in Chambers were not warranted either on facts or in law; and that this Court, in review jurisdiction should draw certain inferences from the allegations contained in the F.I.R.; that this Court should not hold that certain alienations pertaining to the property subject-matter of the agreements in favour of the applicant could not be lawfully made. In support of his argument that in view of the law declared recently by the Hon'ble Supreme Court of Pakistan, the learned Single Judge in Chambers in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, was not, at all, competent to quash the two F.I.Rs., reliance has been placed on Col. Shah Sadiq v. Muhammad Ashiq and others (2006 S.C.M.R. 276), because, in his submission, by doing so the ordinary course of trial of the case before the Court stands deflected, and that in the instant case the learned Judge had even otherwise erred in law in appreciating the documents produced by the writ-petitioners, whereas those filed on behalf of the complainant had been ignored. The facts of the precedent case, cited by the learned counsel, were quite distinguishable from those of the instant case Besides, a careful examination of the decision, relied upon makes a different reading inasmuch as their lordships of the Supreme Court of Pakistan have not laid down that in no circumstance can a F.I.R. be quashed by the High Court in the exercise of its Constitutional jurisdiction. In this context, reference may advantageously be made to the following observation recorded in paragraph 16 of the judgment:--
"It is a settled proposition of law that when there are extraordinary circumstances. High Court is duty bound to protect life, liberty, honour and dignity of every citizen. It must, therefore, take extraordinary measures specially when the statute law is not sufficient to meet a situation and provide protection to the citizens. It is here that the extraordinary jurisdiction under Article 199 of the Constitution must come to the aid of citizens."
The submission of the learned counsel that even though the judgment sought to be reviewed was delivered on 13th of July 2005, whereas the Hon'ble Supreme Court of Pakistan gave the afore-referred decision on 15th of December, 2005, which was reported in 2006, still this Bench seized as it is of the review petition, can set aside the impugned order, has also not impressed us. We have already shown that the Hon'ble Apex Court has not laid down an unyielding prohibition of universal application, and it depends on the facts and circumstances of each particular case whether or not the limitations postulated and alternate remedies outlined in the afore-referred to decision of the Hon'ble Supreme Court would stand in the way of the High Court to exercise its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashing an F.I.R, Reliance by the learned counsel on Abdul Ghaffar, Abdul Rehman and others v. Asghar Ali and others (P.L.D. 1998 S.C. 383) is also ill-suited because in paragraph 18 of the said judgment, the factual and legal errors in the judgment under review were clearly brought out to be manifest and floating on the surface of the earlier decision itself. Similarly, the decision of the Hon'ble Apex Court, lastly relied upon by the learned counsel and reported as Faqir Muhammad Khan v. Mir Akbar Shah (P.L.D. 1973 SC 110), is of no help to the applicant. In the said case a learned Single Judge of the West Pakistan High Court, Peshawar Bench, on the facts of that case, had held that clause (c) of Section 5 of the North-West Frontier Province Pre-emption Act was attracted to the case. Review of the judgment was sought on the ground that, while delivering the judgment, a Full Bench decision of the same High Court, to the contrary, had escaped notice of the learned Single Judge. The learned Single Judge, after examining a number of decisions, came to the conclusion that the failure to notice even a judgment binding on him, but not till then reported, was not a sufficient ground for review under Rule 1 of Order XLVII of the Code of Civil Procedure and the review petition was accordingly dismissed. Although their lordships of the Supreme Court found, as a fact, that the Full Bench decision could not be said to be not within the notice of the learned Judge, yet his decision was maintained by observing inter-alia as follows:--
"Nevertheless we must also point out that the granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles."
Doubtless, one of the reasons for upholding the decision of the learned Judge was that in the afore-quoted precedent ease, their lordships had not approved the decision of the Full Bench. Be that as it may, it was held that granting of review was in the discretion of the Court. We would like to observe that the scope of review is very limited. The applicant seeking review must show that there is an error or mistake apparent on the face of the record. Review is neither a substitute for a full-fledged appeal nor it is akin to re-hearing of the whole matter. Even if the view taken by the Court is erroneous, it does not warrant review of the decision which can only be exercised when an error or mistake is manifestly shown to float on the face of record, which is so patent that if allowed to remain intact, would perpetuate illegality and gross injustice. Besides a patent error or mistake, the applicant for review has to show discovery of new and important matter of evidence, which after exercise of due diligence was not within his knowledge, or could not be produced at the time when the order was made. The learned counsel for the applicant has not been able to show that there is any error or mistake apparent on the face of the record. Each bit of the documents referred to by the learned counsel for the parties had been discussed and rightly appreciated by the learned Single Judge in Chambers. Moreover, the case law relied upon by the parties in support of their respective contentions was exhaustively considered, analyzed and dealt with by the learned Single Judge in Chambers, Categorical findings recorded after careful and conscious appreciation of all the pros and cons of the matter cannot be re-opened with a view to reappraising the same and for taking a contrary view, which otherwise did not suffer from misconstruction or misappreciation of documents and the law applicable to the facts of the case, Review jurisdiction cannot be invoked as a routine matter or to re-hear a case which has already been decided. Needless to add that a conscious decision on a point of fact or law does not warrant review, rather the remedy of the aggrieved party lies elsewhere. The learned counsel has also failed to point out any material irregularity in the order constituting judicial fallibility. Having gone through the review petitions very minutely, we have not been able to find any fault with the order of the learned Single Judge in Chambers so as to warrant its review within the parameters laid down by the Superior Courts for exercise of review jurisdiction.
(R.A.) Review dismissed.
PLJ 2007 Lahore 936
Present: Maulvi Anwar-ul-Haq, J.
Mst. MUBASHRA RIAZ--Petitioner
versus
Mst. ALIA SHAHZADI and 4 others--Respondents
C.R. No. 476 of 2007, heard on 26.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXII, R. 3 & S. 115--Limitation Act, (IX of 1908), S. 5--Seeking for--Declaration and cancellation of gift--Question of--Filing of amended plaint--Dismissed by Courts below--Civil revision--Without jurisdiction--Sufficient cause for condonation of delay--Plain reading of records--First instance was lunatic and in second was dead--Trial Court to bring on record the LRs when the list had been filed--Neither the parties nor the Civil Judge was present while only counsel for defendant was present--Plea was taken by petitioner that she was not aware of the passing of such order by civil judge and acquired knowledge at a later point of time, is absolutely plausible--Even otherwise, suit was dismissed by the Court below itself constitute a sufficient cause for condonation of delay--Held: Impugned orders and decrees attract mischief of Section 115 CPC--Petition allowed. [P. 939] A & B
Mr. Amjad Pervaiz Chaudhry, Advocate for Petitioner.
Ch. Muhammad Maqsood Ahmad, Advocate for Respondent
No. 1.
Nemo for other Respondents..
Date of hearing: 26.4.2007.
Judgment
On 4.9.1994, Mst. Wazir Begum, predecessor in interest of the petitioner and Respondents No. 2 to 5 (hereinafter to be referred to as plaintiff), filed a suit against the Respondent No. l seeking declaration and cancellation of a gift purported to have been made by her in favour of Respondent No. 1 qua 1/2 share of the suit house. Respondent No. 1 was served. She filed written statement. Issues were framed on 16.5.1996. Evidence of three witnesses was recorded. On 5.10.1998, it was reported that the plaintiff has lost balance of mind and proceedings are being filed before the learned District Judge. On 25.11.1998, on the request of both the parties, the proceedings were adjourned sine die till such time that the proceedings before the learned District Judge are concluded. On 29.01.2001, the plaintiff through her guardian. Qamar Riaz, filed an application, informing that learned District Judge has appointed Qamar Riaz as guardian of Mst. Wazir Begum vide order dated 10.6.2000. The files were requisitioned and proceedings were commenced. It appears that the examination in chief of the witnesses, produced by the plaintiff, had been recorded and the case was being adjourned for recording cross-examination by the Respondent No. 1. On 23.11.2002, it was reported that the plaintiff has died. The case was adjourned for filing of death certificate and the list of LRs. On 25.4.2003, a copy of death certificate was produced and thereafter the case was adjourned for filing of list of LRs. On 6.3.2004, it was noticed that the list of LRs has been filed. A direction was issued for filing of amended plaint. The case was so being adjourned. On 23.6.2005, learned Presiding Officer was absent and the case was adjourned by his office to 28.6.2005. On 28.6.2005, the following order was recorded by the learned trial Court :--
"28.6.2005 Present: Counsel for the defendants.
Neither the plaintiff is present nor she has filed amended plaint. As the filing of amended plaint is necessary for further progress of the suit. Repeated opportunities were granted to the plaintiff for filing of amended plaint but she has failed to do so. Therefore, the suit is hereby dismissed under Order 17 Rule 3 CPC. No order as to costs. File be consigned to the record room after its completion.
Announced 28.6.2005."
Against the said order and the decree of dismissal, first appeal was filed by the petitioner who is plaintiff's son's daughter. This appeal was filed on 18.10.2005. The appeal was accompanied by an application under Section 5 of Limitation Act for condonation of delay. The appeal and the application were contested by Respondent No. 1. Learned ADJ., Lahore, dismissed the appeal as barred by time on 09.01.2007.
Learned counsel for the petitioner contends that the order passed by the learned trial Court dismissing the suit under Order 17 Rule 3 CPC is wholly without jurisdiction. According to him, the plaintiff was admittedly dead and the learned Civil Judge punished a dead lady and that too for no fault. Learned counsel for the Respondent No. 1 has vehemently opposed the said contentions. According to him, notwithstanding the fact that in the first instance the plaintiff-lady had been rendered lunatic and then she died, the LRs including the petitioner were aware of the pendency of the suit and as such learned Civil Judge in fact had punished the said LR for not filing amended plaint and this was legal and permissible. Similarly, he argues that the proceedings and the said order of me learned trial Court being within the knowledge of said LRs, delay in filing of appeal could not be condoned.
I have gone through the copies of the records appended with this C.R. as also those filed by the learned counsel for the respondent. I have stated the details of the proceedings above after examining the same. I may state in the very beginning that although learned District Judge had declared the plaintiff to be a lunatic and had appointed a guardian who had applied for revival of the suit yet I do not find any amended plaint on record describing the said status of the plaintiff-lady and it is evident from the contents of the decree sheet where it has not been mentioned that Mst. Wazir Begum, plaintiff is suing through guardian appointed by learned District Judge. Be that as it may, coming to the impugned order, I have already reproduced above the said order which is rather brief. Learned Civil Judge has expressed that the plaintiff is not present nor she has filed an amended plaint. Reference Obviously is to the woman regarding whom it was reported as far back as on 23.11.2002 that she has died and whose death certificate was examined by the Court on 25.4.2003 and further whose list of LRs had been filed on 6.3.2004. Thereafter learned trial Court has observed that filing of amended plaint was necessary for further progress of the suit. Learned Civil Judge appears to be completely oblivious of the provisions of Order 22 Rule 3 CPC. Once list of LRs was on record, it was the duty of Court to have issued notice to the said LRs. Both the learned counsel state that no fresh power of attorney was filed on record by any Advocate after death of the plaintiff-lady. Even if it was not deemed proper by the Court to issue notice to the LRs, then the suit could have been proceeded with in terms of Order 22 Rule 3(2) CPC. Thereafter the learned trial Court has stated that the suit is dismissed under Order 17 Rule 3 CPC. There is no concept of dismissal or decretal of a suit under Order 17 Rule 3 CPC. Under the said provisions of Law, if conditions mentioned therein exist the Court has to proceed to decide the suit forthwith. Of-course, the suit has not at all been decided. Last but not the least, learned trial Court completely forgot that the case was adjourned to 28.6.2005 only for the reasons that he was absent on the previous date and not at the request of any of the parties. Thus from what ever angle seen, the suit could not at all have been proceeded under Order 17 Rule 3 CPC. The said order and the decree of dismissal of suit is, therefore, wholly without lawful authority. Learned Court of appeal has stated in para-3 of the impugned judgment dated 9.1.2007 that it has perused the records. I find this statement to be incorrect. What to speak of records, learned ADJ does not appear to have even read the order that was impugned before him, otherwise, he would have never sustained it.
Upon a plain reading of the records, the plaintiff in the first intence was lunatic and in the second was dead and buried long before 28.6.2005. It was for the learned trial Court to bring on record the LRs when the list had been filed. This was not done. It is a further matter of record that on 23.6.2005, neither the parties nor the learned Civil Judge was present while on 28.6.2005 only learned counsel for the defendant was present. The plea taken by the petitioner that she was not aware of the passing of the said order by the learned Civil Judge and acquired knowledge at a later point of time, is absolutely plausible. Even otherwise, the manners in which the suit was dismissed by the learned trial Court itself constitutes a sufficient cause for condonation of delay.
Having thus examined the records, I do find that the impugned orders and decrees attract mischief of Section 115 CPC. C.R. accordingly is allowed. Both the impugned orders and decrees are set aside. Result would be that the suit shall be deemed to be pending before the learned Senior Civil Judge, Lahore, before whom the parties shall appear on 30.5.2007. On the same date, amended plaint shall be filed. If it is deemed necessary to summon the additional parties, the same shall be done. Learned Senior Civil Judge shall re-commence the proceedings at the stage where these were at the time when the death of the plaintiff was reported.
No orders as to costs.
A copy of this judgment to be remitted to the, learned trial Court immediately by the office.
(N.F.) Revision allowed.
PLJ 2007 Lahore 939
Present: Maulvi Anawr-ul-Haq, J.
GUL MUHAMMAD and another--Petitioners
versus
MUHAMMAD LATIF--Respondent
C.R. No. 304 of 2007, heard on 16.4.2007.
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 6--Suit for possession by pre-emption--Shafi Sharik, Khalit and Jaar--Performance of Talabs--Question of--Superior right of pre-emption--Adjacent with respondent's land--Both lands owned by respondent and the one sold lie adjacent to each other--Held: Respondent has superior right of pre-emption being Shafi Jaar"--Appeal dismissed. [P. 941] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 3--Interpretation--Question of--Talab--Knowledge--Six days after the attestation of mutation--Exact date of knowledge--Not mentioned--Petitioner admitted that he came to know about the sale six days after the attestation of mutation--It is not at all difficult to ascertain the exact date on which petitioner acquired knowledge, as stated in the plaint--Statement of respondent exact date of knowledge has come out in the statement of witnesses--Held: Respondent has duly pleaded date, time and place of making of first "Talab" and further he has stated the names of the informer as well as the witnesses in the plaint itself--No ground being made out for interference with impugned judgment--Appeal dismissed.
[Pp. 941 & 942] B, C & D
Mr. Faiz Muhammad Bilal, Advocate for Petitioners.
Malik Ejaz Hussain Gorcha, Advocate for Respondent.
Date of hearing: 16.4.2007.
Judgment
Vide Mutation No. 2220 attested on 20.4.2002, the petitioner purchased the suit land mentioned in the plaint for a consideration of Rs. 60,000/-. On 10.5.2002 the respondent filed a suit for possession of the suit land by pre-emption. According to him, the land had actually been sold for a sum of Rs. 20,000/-. He claimed to be "Shafi Sharik", "Khalit" and "Jaar". Performance of Talabs was pleaded in the plaint. The petitioners filed a written statement denying the said allegation and asserting that they have paid Rs. 60,000/- for the land. Issues were framed. Evidence of parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 3.5.2006. I may note here that it was found by the learned trial Court that neither the respondent has superior right of pre-emption nor he has performed "Talabs". First appeal filed by the respondent has been allowed by the learned District Judge, Bhakar on 6.12.2006, who has decreed the suit subject to deposit of Rs.60,000/-.
The learned counsel for petitioners contends that the respondent had failed to prove his superior right of pre-emption. Regarding "Talabs" his case is that the respondent did not state the exact date of knowledge in the course of his statement and has not otherwise proved the exact date of knowledge. As such first "Talab" could not be said to have been made properly. He has relied upon the case Atiq-ur-Rehman (through his father) and another Vs. Muhammad Amin (PLD 2006 SC 309).
The learned counsel for respondent, on the other hand, has supported the impugned judgment and decree of learned District Judge and relies on the case of Hayat Muhammad and others Vs. Mazhar Hussain (2006 S.C.M.R. 1410).
I have gone through the records with the assistance of learned counsel for parties. I have already referred to in some details the pleadings on record. So far as the matter of superior right of pre-emption is concerned. According to Ex.P. 9, which is copy of Register Haqdaran Zamin for the year 1998-99, the respondent namely Muhammad Latif is recorded to be a co-owner in Khasra No. 9/1. The suit land comprised of Khasra No. 1298/9/3. Ex.P. 10 is copy of Aks Shajra for the year 1998-99. I find that both the said lands owned by the respondent and the one sold lie adjacent to each other. The learned District Judge has, therefore, correctly held that the respondent has superior right of pre-emption being "Shafi Jaar".
Coming to the next question of "Talab" it was stated in para 4 of the plaint that the respondent came to know about the sale on 26.4.2002 at 4.00 p.m. through Noor Muhammad and upon being so informed he made first "Talab" in presence of said informer and Rana Moaj Din. Respondent appeared as PW. 2 on 25.9.2003 and stated that one year and five months ago he was sitting in his Bethak alongwith Rana Moaj Din when at 4.00 p.m., PW.3 came there and told him about the sale, whereupon, he made "Talab", The learned counsel states that apart from the fact that he had not told the exact date, if one calculates the date it come to 25.5.2002 and not 26.4.2002. I find that in response to a question in cross-examination the petitioner stated that he came to know about the sale six days after the attestation of mutation. To my mind upon a reading of entire statement it is not at all difficult to ascertain the exact date on which the petitioner acquired knowledge, which is 26.4.2002, as stated in the plaint. Apart from this through curtsey of cross-examiner it has come in the statement of Noor Muhammad, PW.3 and Rana Moaj Din, PW.4, that the knowledge was acquired and "Talab" was made on 26.4.2002. I have examined the said judgment in case of said Atteeq-ur-Rehman (through his real father) and another being relied upon by the learned counsel for petitioner. Their lordships referred to the evidence in the said case in some detail in paras 8 and 9 of the report at page 314 and 315. It appears that exact date was neither stated by the pre-emptor in the said case nor by the witnesses (Abdul Aziz, PW2 and Sittar, PW.3) referred to in para 9 of the said judgment. It was, thus, observed that the exact date of knowledge had not been proved. In the present case apart from the statement of respondent exact date of knowledge 26.4.2002 has come out in the statements of said PW.3 and PW.4 already referred to by me above.
Needless to state that it is apparent from the contents of the plaint stated above that in the present case the respondent has duly pleaded date, time and place of making of first "Talab" and further he has stated the names of the informer as well as the witnesses in the plaint itself. Having, thus, examined the records I find no ground being made out for interference with the impugned judgment and decree passed by the learned District Judge. The CR is, accordingly dismissed with no order as to costs. The records of learned Courts below be returned back immediately.
(N.F.) Revision dismised.
PLJ 2007 Lahore 942
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
SHAKIL AHMAD--Appellant
versus
MUHAMMAD HANIF and another--Respondents
FAO No. 199 of 2005, heard on 22.5.2007.
Cantonments Rent Restriction Act, 1963 (XI of 1963)--
----S. 17(4)(b)--Ejectment from lease agreement--Challenge to--Gifted by their father--Permission of Central Government or Cantonment Board is not necessary--Transfer of old grant--Required for their personal use--Bona fide--Required by two respondents whereas requirement of son is relatable to a point of time after the institution of the ejectment petition--The tenor of statement is in perfect accord with such provisions being relied upon by counsel--Held: Landlord is not supposed to remain on the streets till such time that his ejectment petition is finally adjudicated upon--Even if land lord leave the country for doing some job in such interregnum, it does not derogate from his bona fide personal requirement if otherwise proved--Respondents have any other shop in any other urban area--There is no evidence on record that respondents are doing any business or some other job--FAO was accordingly dismissed.
[P. 944] A & B
Sardar Muhammad Ghazi, Advocate for Appellant.
Mr. Munir Ahmad Malik, Advocate for Respondents.
Date of hearing: 22.5.2007.
Judgment
On 29.9.1999 the respondents filed an application for ejectment of the appellant from a shop located in Rawalpindi Cantonment. According to the said application, the shop was owned by the father of the respondents who let out the same to the appellant under a written lease agreement dated 20.12.1969 subject to payment of Rs.600/- per month as rent. It was gifted to the respondents by their father by means of a registered document. The ejectment was sought primarily on the ground of bona fide requirement for personal use and occupation. The appellant proceeded to deny the relationship of landlord and tenant between the parties. The ejectment petition was stated to be mala fide. Initially, a preliminary issue as to existence of relationship of landlord and tenant was framed. The issue was answered in favour of the respondents on 7.5.2002 and an ejectment order was passed. FAO No. 103/02 filed in this Court was allowed and the case was remanded back vide judgment dated 23.1.2004 directing the Rent Controller to frame the issues on merits and to decide the ejectment petition accordingly. Consequently, following issues were framed:--
Whether the petitioners required the suit property for their personal bonafide need? O.P.P.
Whether the respondents have materially damaged the value and utility of the suit property? O.P.P.
Relief.
Evidence of the parties was recorded. Both the issues were found in favour of the respondents and an ejectment order was passed on 27.10.2005.
Learned counsel for the appellant contends that since the gift was made without the prior approval of the Central Government and the approval was granted at a point of time after the institution of the ejectment petition, the ejectment petition as filed was not competent. Further contention is that in terms of Section 17(4)(b) of the Cantonment Rent Restriction Act, 1963, the shop could be got vacated only for the bona fide personal requirement of the landlords whereas one of the respondents had stated in the witness box that he requires it for his son. Learned counsel for the respondents, on the other hand, contends that the prior approval of Central Government was not necessary and, admittedly, it was granted later on. Further contention is that main requirement was of the two landlords as pleaded and proved on record.
I have gone through the records of the case, with the assistance of the learned counsel for the parties. I have already reproduced above the respective pleadings of the parties. So far as the said first contention of the learned counsel is concerned, the same does not hold any water. It is by now well settled that permission of Central Government or Cantonment Board is not necessary before transfer of old grant. Reference may be made to the case of Mst. Bhaghan and 2 others v. Sh. Muhammad Latif and 2 others (PLD 1981 Lahore 146). Admittedly, the post facto approval was granted by the Central Government to the said gift made in favour of the respondents by their father.
So far as the said second contention is concerned, as noted by me above, it has been pleaded in the application that the shop is required by the respondents for their personal use as they do not own any other shop and they intend to do business therein. The examination-in-chief of Muhammad Hanif respondent (PW-1) is in the form of an affidavit which is Ex. P. 1/1. It has been stated that the respondents are jobless and do not have any property in Rawalpindi Cantonment and they need the shop in good faith for doing their own business. In his cross-examination, he stated that he is jobless ever since the filing of the ejectment petition and he requires the shop bona fide for personal use and occupation. In response to a question, he stated that a major son is also jobless. After a few questions, it was suggested to him and he admitted that he requires the shop for his son Shahzad Hanif who is aged 26 years and is jobless after doing his F.A. He stated that is his son did his F.A. four years ago. He made the statement on 16.12.2004 and the said point of time is after the institution of the ejectment petition. He denied a suggestion that he and his son are doing some job and that he does not require it for his need. However, through the courtesy of cross-examiner, he was made to state thereafter that the shop is required by the witness and his brother. Thus, upon an over all reading of the said statement, it turns out that the shop is, in fact, required by the two respondents whereas requirement of the son is relatable, to a point of time after the institution of the ejectment petition. The tenor of the statement is in perfect accord with the said provisions being relied upon by the learned counsel. At this stage, the learned counsel for the appellant contended with reference to the same statement that the other respondent has left the country. I find that it has come in the cross-examination that after the institution of the ejectment petitioner and two years thereafter, Rafiq the other respondent left for Canada and came after 6/7 months and thereafter he has left two months ago.
Nothing turns on the said circumstance as the Superior Judiciary of the country has consistently laid down that a landlord is not supposed to remain on the streets till such time that his ejectment petition is finally adjudicated upon. Even if he leaves the country for doing some job in the said interregnum, the same does not derogate from his bona fide personal requirement if otherwise proved. There is not even an allegation that the respondents have any other shop in Rawalpindi Cantonment or for that matter in any other urban area. The shop was gifted to them in the year 1998 and the ejectment matter is pending since the year 1999. There is no evidence on record that the respondents are doing any business or some other job.
Having, thus, examined the records, I do not find any case being made out for interfering with the impugned orders. The FAO is accordingly dismissed but without any orders as to costs.
The records of the learned Rent Controller be remitted back immediately.
(N.F.) FAO dismissed.
PLJ 2007 Lahore 945 (DB)
Present: Maulvi Anwar ul Haq and Syed Asghar Haider, JJ.
ABID AZIZ KHAN and 2 others--Appellants
versus
BANK OF PUNJAB through its BRANCH MANAGER--Respondent
F.A.O. No. 363 of 2006, heard on on 17.4.2007.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 10--Civil Procedure Code, (V of 1908), S. 151 & O.XLI, R.33 & O. IX, R. 13--Application of leave to defend--Question for adjudication--Determination--Question of law and fact--Fulfill the requirements--Duty of Banking Court, to consider the plaint--Grant leave conditional or unconditional or reject the application--Banking Court, therefore, was required to consider and decide the application on merits--Dismissal for non-prosecution of appellants PLA, was without jurisdiction and patently illegal--Appeal was allowed.
[Pp. 948 & 949] A & B
Civil Procedure Code, 1908 (V of 1908)--
----S. 151 & O.XLI, R. 33--Ample powers--Dismissal for non-prosecution was completely without jurisdiction--Validity--Order for dismissal of PLA for non-prosecution was completely without jurisdiction, therefore, the entire structure built upon it is bound to fall, even High Court has ample powers to pass appropriate orders--Appeal was allowed. [P. 949] C
Mr. Shahid Ikram Siddiqui, Advocate for Appellant.
Mr. Ghulam Haider Al Ghazali, Advocate for Respondent.
Date of hearing: 17.4.2007.
Judgment
Syed Asghar Haider, J.--The respondent bank filed a suit for recovery of Rs. 59,04,819/- against the appellants, summons were issued, in response thereto the appellants appeared and filed PLA. The respondent bank filed replication. Thereafter the respondent bank filed two misc. applications and the proceedings were adjourned. On 6.12.2004, these applications were withdrawn by the counsel for the respondent bank and on the same date the appellants' PLA was dismissed for non-prosecution and the suit decreed. Aggrieved thereof the appellants filed an application, seeking the setting aside of the ex-parte judgment and decree. The respondent bank filed reply. The appellants later made an application under Order VI Rule 17 C.P.C. praying for amendment in the stated application, the prayer was granted, an amended application under Order IX Rule 13 read with Section 151 C.P.C. was filed. The respondent bank filed reply, the application was dismissed on 4.10.2006. Aggrieved thereof the present appeal.
(i) Muneer Floor Mills (Private) Limited and 4 others Versus National Bank of Pakistan through Chief Manager and 2 others (2005 C.L.D. 1019), (ii) Kamran Co. and others Versus Messrs Modern Motors and another (P.L.D. 1990 S.C. 713)
(iii) Nowsheri Khan Versus Said Ahmad Shah (1983 S.C.M.R. 1092).
(iv) Delta Weavers (Pvt.) Limited through Director and 3 others Versus Allied Bank of Pakistan Limited (2003 C.L.D. 1751), (v) Hajj Khudai Nazar and another Versus Haji Abdul Bari (1997 S.C.M.R. 1986)
(vi) Messrs Baghpotee Services (Private) Ltd. and others Versus Messrs Allied Bank of Pakistan Ltd. (2001 C.L.C. 1363), (vii) Messrs Rose Incorporate, Bajwa Manzil and 4 others Versus Messrs Bolan Bank Limited (2002 C.L.D. 598), (viii) Shafis Pak Associates (Pvt.) Limited through Chief Executive and another Versus Habib Bank Limited and 3 others (2002 C.L.D. 379) and
(ix) Muhammad Iftikhar through Special Attorney Versus Zarai Taraqiati Bank Limited through Chairman and another (2005 C.L.D. 1454).
(i) 2004 C.L.D. 854
(ii) National Development Finance Corporation Versus Sheikhoo Cooking Oil Mills Limited and 7 others (2002 C.L.D. 341).
(iii) United Bank Ltd. Versus Messrs Zafar Textile Mills Ltd. (2000 C.L.C. 1330).
We have heard the learned counsel for the parties and perused the impugned order, as well as the judgment and decree dated 6.12.2004. The pivotal question for adjudication is as to whether the Banking Court is bestowed with powers to dismiss PLA for non-prosecution or not.
Section 10(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 reads:--
"10. Leave to defend.--(1) In any case in which the summons has been served on the defendant as provided for in sub-section (5) of Section 9, the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court as hereinafter provided to defend the same; and in default of his doing so the allegation of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Banking Court may require in the interest of justice."
Therefore, it is clear and un-ambiguous that the defendant has no right in law to defend the suit unless he obtains leave from the Court. Section 10(2) states that the leave application has to be filed within 30 days of service by any mode, it reads:--
"10(2) The defendant shall file the application for leave to defend within thirty days of the date of first service by any one of the modes laid down in sub-section (5) of Section 9:
Provided that where service has been validly effected only through publication in the newspapers, the Banking Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof."
Section 10(3) and (5) deal with format of leave application, and documents to be filed with it. Section 10(6) requires compliance of these requirements and power to reject the application in case of non-compliance after providing an opportunity to defendant to show good cause for non-compliance. Therefore a duty has been cast upon the Banking Court to examine the PLA and ensure that it fulfills the requirements of law, and only thereafter allow it to be placed on record.
(8) "Subject to Section 11, the Banking Court shall grant the defendant leave to defend the suit if on consideration of the contents of the plaint, the application for leave to defend and the reply thereto, it is of the view that substantial questions of law or fact have been raised in respect of which evidence needs to be recorded".
The Banking Court is, therefore, required to read the contents of the plaint, the application for leave to defend, the replication, and determine whether any questions of law and fact have been raised, which need recording of evidence.
Thereafter Section 10(9) bestows upon the Banking Court powers to grant conditional or unconditional leave. Section 10(11) bestows upon the Banking Court powers to reject the PLA if it does not fulfill the conditions for the grant of leave and thereafter decree the suit forthwith.
The position, therefore, which emerges from reading Section 10(ibid) is clear and unambiguous, the defendant is required to file PLA in accordance with the conditions enumerated in Section 10 of the Ordinance, the Banking Court is required to examine it and if it fulfills the requirements set there to place it on record. But once PLA is part of record, it is the cardinal duty of the Banking Court, to consider the plaint, the PLA and the replication filed, and thereafter proceed to grant leave conditional or unconditional or reject the application under Section 10(11) of the Ordinance. The Banking Court, therefore, is required to consider and decide the application on merits, it has been left with no other choice in this context. The Act does not visualize the dismissal of application for non-prosecution no such powers have been conferred upon the Banking Court, proceeding otherwise, amounts to defeating the legislative intent, thus, the dismissal for non-prosecution of the appellants PLA, was without jurisdiction and patently illegal.
Learned counsel for the respondent bank contended lastly that the appellants have not filed appeal against the judgment and decree dated 6.12.2004 and have only assailed the order dated 4.10.2006. The impugned order dated 4.10.2006, is based upon the dismissal of an application seeking setting aside of the ex-parte proceedings, wherein not only the appellants PLA was dismissed for non-prosecution but suit decreed as well. As the order for dismissal of PLA for non-prosecution was completely without jurisdiction, therefore, the entire structure built upon it is bound to fall, even otherwise this Court has ample powers under Order XLI, Rule 33 CPC to pass appropriate orders if the matter so requires. Therefore, we allow this appeal set aside the impugned order dated 4.10.2006 and the judgment and decree dated 6.12.2004 passed by the Banking Court No. IV, Lahore. The appellants PLA shall be deemed to be pending with the Banking Court, which shall proceed to decide it on merits in accordance with law. No order as to costs.
(N.F.) Appeal allowed.
PLJ 2007 Cr.C. (Lahore) 949 (DB)
Present: Kh. Muhammad Sharif and Asif Saeed Khan Khosa, JJ.
IMRAN and 5 others--Appellants
versus
STATE--Respondent
Crl. A. Nos. 1037, 1161 of 2002 and Crl. Rev. No. 670 of 2002, heard on 24.1.2007.
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code, (V of 1898), Ss. 382-B & 410--Conviction and sentence awarded to accused, assailed--Benefit of doubt--Compensation was reduced--Unexplained delay of 24 hours in lodging the FIR--Possibility of due deliberation and consultation could not be ruled out--No denying the fact that injuries on the persons from accused side--Right of self defence--Question of--Held: Conviction & sentence of main accused was maintained--Sentence given by trial Court would run concurrently with benefit of 382-B Cr.P.C. instead of consecutively with modification in sentence--Conviction & sentence recorded by trial Court for causing injuries on the persons of injured PWs maintained in toto--Sentences would however run concurrently with benefit of S. 382-B Cr.P.C.--Order accordingly. [Pp. 953 & 954] A & B
Syed Zahid Hussain Bokhari, Advocate for Appellants.
Ch. M. Abdus Saleem, Advocate for Complainant.
Sh. Khalid Habib, Advocate for State.
Date of hearing: 24.1.2007.
Judgment
Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No. 1037 of 2002 filed by Imran, Lal, Riaz, Nadir, Bahadur Azam, appellants who were convicted and sentenced by the learned Additional Sessions Judge Jhang vide judgment dated 23.5.2002 as under:--
Imran, Riaz and Lal
Imprisonment for life and to pay a fine of Rs. 25,000/-, in default SI for one year under Section 302(b) PPC. The compensation of Rs. 1,00,000/- was also ordered to be paid to legal heirs of the deceased, in default one year SI. Benefit of Section 382-B, Cr.P.C.
was extended in favour of the appellants, Two years
RI each on four counts under Section 337-A(I) PPC.
Daman was also directed to be paid, five years RI each on two counts for causing injuries to Rajab Ali u/S. 337-A (ii) PPC and. to pay Arsh to Rajab Ali injured PW, one year RI each u/S. 337-F
(I) PPC for causing injuries to Liaqat Ali and to pay
Daman', three years RI each u/S. 337-F (iii) PPC for causing injuries to Liaqat Ali and Rajab Ali and alsoDaman' on two counts, two years RI each on two counts u/S. 337-L (ii) PPC for causing injuries to Noor Akbar and Liaqat Ali.
Bahadur and Azam.
Two years RI each u/S. 337-A (ii) PPC for causing injuries to Noor Akbar, Muhammad
Jinah, Liaqat Ali and Rajab
Ali injured PWs on four counts and Daman', five years RI each u/S. 337-A (ii) PPC for causing injuries to Rajab Ali and to payArsh', one year RI each u/S. 337-F (I) PPC for causing injuries to Noor Akbar and Liaqat Ali and Daman' on two counts each, three years RI each u/S. 337-F (ii) PPC for causing injuries to Liaqat
Ali and Rajab Ali injured PWs andDaman' on two counts, two years RI on two counts u/S. 337-L (ii) PPC. The various terms of imprisonment awarded to the accused was ordered to run concurrently.
Nadir
Two years RI with Daman' u/S. 337-A (I) PPC and ten years RI and to payArsh' u/S. 337-A (iii) PPC. Both the sentences were ordered to run consecutively.
Criminal Appeal No.1161-2002 filed by Noor Akbar against Bahadar etc. and Criminal Revision No.670-2002 filed by Noor Akbar against Imran etc. shall also be disposed of through this single judgment.
Brief facts of the case are that at 5/6 p.m. on 7.6.2000 Noor Akbar complainant alongwith his brother Bashir Ahmad were working in their fields when Lal, armed with Lathi, Riaz armed with Lathi, Imran armed with Lathi, Nadir armed with hatchet, Bahadur armed with Lathi and Azam armed with Lathi came there by raising `Lalkara' to teach a lesson to Noor Akbar and Bashir for obtaining stay order and simultaneously accused Lal, Riaz and Imran gave Lathi blows on the head, mouth and various parts of body of Bashir and he fell down. To save Bashir, Noor Akbar stepped forward but Bahadur and Azam gave him Lathi blows. On hue and cry, Muhammad Jinah, Rajab Ali and Liaqat Ali, who were grazing the cattle nearby attracted but they too were given hatchet and Lathi blows by Nadir, Lal and Imran. According to complainant, Riaz accused gave Lathi blow to Rajab Ali. All the injured were removed to hospital.
The motive alleged was that the complainant and accused had a dispute over land, which was in possession of the complainant party and they had got the stay order, so the accused had a grudge of all this and in furtherance of their common intention the accused attacked upon the complainant party.
Investigation of the case was taken over by Abdul Majeed SI PW-15; he after registration of the formal FIR went to the place of occurrence, took into possession blood-stained earth vide memo Ex.PO, Bashir Ahmad expired in the hospital, his injury statement is Ex.PE, inquest report is Ex.PF, on 15.6.2000 the investigator arrested. Lal, Nadir and Azam accused, Bahaudar accused was arrested on 20. 6.2000, Lal accused on 25.6.2000 got recovered Lathi P.3, which was taken into possession, on the same day. Nadir got recovered hatchet P. 4, secured vide memo Ex. PR, similarly, on the same day Bahaudar and Azam led to the recovery of Lathis, which were taken into possession vide memo Ex.PS and EX.PT respectively and it was on 26.6.2000 that Riaz accused was arrested, the said accused while in custody got recovered Lathi P.7, which was secured vide memo Ex.PU, thereafter, the investigation of the case was taken over by Talat Mehmood SI/SHO PW-16, who on 19.8.2000 arrested Allah Ditta and Mst. Sakina both accused of abetment, submitted in complete challan and then on 9.9.2000 Imran was arrested and he got recovered Sota P. 8, which was taken into possession vide memo Ex.PV. After carrying out all the formal investigations eight accused were sent to face the trial.
At the trial, prosecution in order to prove its case produced 16 witnesses in all, thereafter, the learned D.D.A tendered in evidence reports of the Chemical Examiner Ex.PBB, EX..PBB/1, Ex.PCC and Ex.PDD, report of the Serologist Ex.PCC/1 and closed the case of prosecution, then, the statements of the accused were recorded u/S. 342 Cr.P.C in which they pleaded false implication. After conclusion of the trial, Allah Ditta and Mst. Sakina were acquitted while the remaining six accused were convicted and sentence as stated above.
Syed Zahid Hussain Bukhari, Advocate learned counsel for the appellants submits that prosecution has miserably failed to prove its legal possession over the land, which was the cause of annoyance rather during cross-examination, according to learned counsel, it is established that the appellants are the legal owner of the said land as the land was "Dakheel Kari". Further submits that the prosecution produced no documentary evidence in the shape of stay order.
Adds that there is an unexplained inordinate delay in lodging the FIR, that injuries on the persons of three appellants were suppressed by the prosecution and according to learned counsel in fact it is a case of two versions and if both the versions are put in juxtaposition, the version introduced by the defence seems to be more plausible and convincing one. It is submitted that it is a case of right of self-defence and the appellants did not exceed that right rather three persons from the side of the appellants were also injured. Concluding his submissions, learned counsel submits that if submissions made by him do not find favour with the Court then in the alternate it is submitted that it was a case of free fight and every accused has to be convicted and sentenced according to the role played by him.
Learned counsel for the complainant submits that both the parties are closely related to each other in as much as wife of the complainant is real sister of Allah Ditta acquitted accused; stay was in favour of the complainant, on the statement of the appellant the suit was withdrawn by the complainant from the Civil Court, all the accused had gathered to take forcible possession, the complainant was empty handed at the time of occurrence, the appellants were aggressors, the ocular account is fully corroborated by medical evidence and the number of injuries on the persons from the side the complainant suggest that all the accused participated in the occurrence and shared common intention.
Learned counsel for the State adopts the arguments advanced by learned counsel for the complainant.
We have heard learned counsel for the parties at a great length and have also gone through the record with the able assistance. Occurrence in this case had taken place at 5/6 p.m. on 7.6.2000 within the revenue estate of Chak No.215, which is at a distance of four miles from Police Station Mochiwala District Jhang while the matter was reported to the police by Noor Akbar complainant through written complaint Ex.PN at Mochiwala hospital at 9.50 p.m. the same night and the formal FIR Ex.PN/1 was recorded by Nafees Ahmad SI.
In all, eight accused were tried, Allah Ditta and Mst. Sakina accused of abetment were acquitted by the trial Court, appeal against their acquittal though was filed but no notice was issued to them, notice was issued only to Bahaudar, Nadir and Azam respondents. Imran, Lal and Riaz were sentenced to imprisonment for life, they were also sentenced under other Penal Sections of the PPC, their sentences were ordered to run consecutively, the deceased is Bashir Ahmad, injured are Noor Akbar PW-7 Muhammad Jinah PW-8, Liaqat PW-9 while Rajab Ali PW did not appear.
From the side of the appellants. Nadir Khan, Imran and Lal Khan were injured and the prosecution suppressed their injuries not only before the police but also before the trial Court. We may mention here that Imran, Lal, Riaz, Bahadar and Nadir appellants are real brothers inter-se while Azam is their maternal nephew. Only one young chap aged 12/13 years was left in the family of appellants. The father and mother of five accused were also roped in as being abettors.
The appellants have not denied the motive. There is however unexplained delay of 24 hours in lodging the FIR so the possibility of due deliberation and consultation cannot be ruled out. There is no denying the fact that there are Injuries on the persons from the accused side. Nadir Khan accused received four injuries including three on head. Imran and Lal had also one injury but the fact remains that there were 45 injuries on the persons from the complainant party in as much as Bashir Ahmad deceased according to post-mortem examination had 11 injuries on his person while Jinah PW. 8 received eight injuries, except Injury No. 2, rest were with blunt weapon. Rajab Ali, PW (not produced) received eight injuries with blunt weapon. Similarly, Liaqat Ali PW-9 received 11 injuries, two amongst them were with sharp edged weapon while remaining were with blunt weapon.
The above illustration with regard to number of injuries on the persons from the side of the complainant tends to show that it was not a case of right of self-defence, so we are of the view that it were Imran, Lal and Riaz who committed the murder of Bashir deceased as also caused injuries on the persons of Muhammad Jinah, Liaqat Ali, Noor Akbar PWs and Rajab Ali PW but not produced, hence the conviction and. sentence recorded against them by the learned trial Court vide the impugned judgment is maintained. However, since the injuries on three persons from the side of the accused party were suppressed, we direct that the conviction and sentence recorded against them by the trial Court under different penal Sections of the PPC shall run concurrently with the benefit of Section 382-B, Cr.P.C. instead of consecutively as ordered by the trial Court. The sentence of fine of Rs. 25,000/- is also set aside. The sentence in default of payment of compensation is reduced from one year to six months SI.
With this modification in the sentence, Criminal Appeal No. 1037 of 2002 is disposed of.
Nadir, Bahadur and Azam appellants did not touch the deceased, so the notices issued to them in Criminal Appeal No. 1161 of 2002 filed by the complainant against their acquittal from the charges under Section 302(b) read with Sections 148 and 149 PPC are withdrawn. The conviction and sentence recorded against them by the trial Court vide impugned judgment for causing injuries on the persons of the injured PWs is thus maintained in toto. The sentences shall however run concurrently with the benefit of Section 382-B, Cr.P.C. This disposes of Criminal Appeal No. 1161 of 2002.
For what has been stated above, Criminal Revision No. 670 of 2002 filed by the complainant is dismissed.
Order accordingly.
PLJ 2007 Lahore 953
Present: Sayed Zahid Hussain, J.
NADEEM ASGHAR KAIRA--Petitioner
versus
GOVT. OF PUNJAB through the Secretary Local Government and Community Development Department--Respondent
W.P. No. 4709 of 2007, heard on 8.6.2007.
Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 112(7)--Constitution of Pakistan, 1973, Art. 199--Question of--Statutory duty within specified time--Principles of policy--Court could not issue a direction of absolute and a particular nature (grant of registration of drugs) set a direction could be issued to the authorities concerned, to act in accordance with law and perform the statutory duty within specified time--Held: An appropriate case for a direction to respondent to perform its legal duty and obligations, to prepare, approve and authenticate the budget and also to approve such developmental schemes as may be accordance with law and rules--Petition accepted. [P. 958] B & D
Constitution of Pakistan, 1973--
----Art. 32--Principles of policy--State would encourage Local Government Institutions composed of elected representatives of the area concerned. [P. 958] C
Jurisdiction--
----It clearly confers jurisdiction upon High Court to make an order directing a person to do something he is required by law to do.
[P. 957] A
Mr. Ghazanfar Ali Gul, Advocate for Petitioner.
Mr. Aamir Rehman, Additional Advocate General Punjab for Respondent.
Date of hearing: 8.6.2007.
Judgment
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, filed by the Tehsil Nazim Kharian District Gujrat, it has been prayed that:--
"1. The orders of the Secretary, Local Government to stop the execution of the ADP Schemes vide Letter No.SO-D-I(LG)8-32 (Kharian) 02 dated 20.04.2007 may be declared illegal, mala fide and without lawful authority.
The execution of the ADP duly approved by the Tehsil Council in its special meeting on 11.01. 2007 be allowed to proceed unhindered.
The Local Government may be directed not to interfere in the execution of the Development Schemes and affairs within the competency of the Tehsil Council under the law".
The relevant part of the order impugned dated 20.4.2007 reads as under:--
"2. Tehsil Municipal Administration, Kharian Cannot execute development programme without getting it approved by the competent, forum.
You are, therefore, requested to stop execution of any development work without approval of the budget by the Government as required under Section 112(7) of Punjab Local Government Ordinance, 2001 "
Report and parawise comments called from the respondent has been received. The learned counsel for the petitioner and the learned Law Officer has been heard.
The undisputed position is that the Budget of the Council for the year 2006-2007 could not be approved as contemplated by law. In such a situation, the provisions of Section 112 of the Punjab Local Government Ordinance, 2001, come into play, which are as follows:-
"112. Approval of budget.--(1) Following the presentation of the provincial budget, but before the commencement of the next financial year, each Nazim shall, present the budget for approval by the respective Council before the beginning of such financial year:
Provided that the charged expenditure may be discussed but shall not be voted upon by the Council.
(2) When a Local Government assumes office for the first time, it may within ten weeks, present to the respective Council, a budget for the remaining part of the financial year for approval.
(3) The budget of a Local Government shall be approved by simple majority of the total membership of the respective Council.
Provided that the Government may review approved budget of a local Government and if found contrary to the budget rules, may require the concerned local Government to rectify it. "
(4) A budget shall not be approved if--
(a) the sums required to meet estimated expenditures exceed the estimated receipts; and
(b) the constraints specified in Section 119 have not been complied with.
(c) (5) No other business shall be taken up by a Council during the budget session.
(6) In case a budget is not approved by a Council before the commencement of the financial year to which it relates, the concerned Local Government shall spend money under various heads in accordance with the budgetary provisions of the preceding financial year for a period not exceeding thirty days on pro-rata basis:
Provided that a Local Government shall not spend funds or make commitments for any expenditure, under any demand for grant or appropriation, in excess of eight percent of the amount budgeted in the preceding year within thirty days.
(7) In case the budget is not passed within the extended period as specified in sub-section (6), the budget shall be prepared, approved and authenticated by the Government for the full year.
(8) After approval by the Council, the respective Nazim shall authenticate by his signature a Schedule specifying the--
(a) grants made or deemed to have been made by the District Council, Tehsil Council, Town Council or Union Council; and
(b the several sums required to meet the expenditure charged upon the District Fund, Tehsil Fund, Town Fund or Union Local Fund.
(9) The Schedule so authenticated shall be laid before the Council, but shall not be open to discussion or vote thereon.
(10) The Schedule so authenticated shall be communicated to the respective Accounts Officials as specified in Section 114 of this Ordinance.
(11) At any time before the expiry of the financial year to which a budget relates, a revised budget for the year shall be prepared by a Local Government and approved by its Council"
It may be mentioned that initially the Council and then the Government failed to prepare, approve and authenticate the Budget as envisaged by the abovementioned statutory provisions. The Council has indeed remained dormant due to such failure, resulting in deprivation of the local population of the developmental activities and programmes. The financial year is about to be over but the Budget has not yet been prepared or approved upon which the whole developmental work was dependent. If the Council had failed in preparation and approval of the Budget the respondent Government was obliged to act under sub-section (7) of S. 112 of the Punjab Local Government Ordinance, 2001, who also failed to perform its legal obligation and duty.
The contention of the learned Law Officer that there was alternate remedy for the petitioner to approach the Provincial Local Government Commission, appointed by the Government, pursuant to the provisions of Ss. 131 and 132 of the Punjab Local Government Ordinance, 2001, cannot be countenanced, particularly when only few days are left in the expiry of financial year. Such a remedy even if regarded as alternative cannot be considered as efficacious or speedy in the peculiar circumstances of this case.
The perusal of provisions of S. 112, particularly of sub-section. (7) thereof, of the Punjab Local Government Ordinance, 2001 makes it absolutely clear that on failure of the Council to approve the Budget, it had become the duty of the Government to prepare, approve and authenticate the Budget, which statutory duty it has failed to perform throughout the current financial year, which is now likely to be over. It is thus that petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed seeking a direction in terms of Article 199 (1) (a) (i), which is to the effect:--
"199. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or."
It clearly confers jurisdiction upon the High Court to make an order directing a person to do something he is required by law to do; this is comparable to the English writ or order of mandamus. It is so paraphrased by Justice (R) Fazal Karim in "Judicial Review of Public Actions, Volume 2, at Page 1071." At page-1083 and 1084 of the same Volume, the learned Author has dealt with this subject as follows:--
Page-1083:--"Where a person or authority is required by the Constitution or law to do a thing within a stated period but the thing is not done within the period, or where no time limit is prescribed but the thing is not done within a reasonable time, the failure will render the proceedings nugatory, and a direction under the second part of sub-clause (a)(i) of clause (1) may issue. Sharaf Afridi case referred to above is the example where a time limit was fixed for the performance of a constitutional duty but the duty was not performed within the period and a direction to perform it was issued. In Asghar Hussain v. Election Commission the Election Commission was moved to disqualify the respondent from being elected as a Member of the Provincial Assembly on 08.03.1965 but as no action was taken till 06.05.1965, a petition seeking a direction to the Election Commissioner to take action was moved in High Court. The Supreme Court held that such a petition was competent." As to the approach of the executive reference may be made to page 1084 "Sometimes it so happens that the executive does not perform its duty to enforce the legislation by fixing a date of commencement e.g. it does not suit the executive to do so, with the result that the legislation is rendered ineffective and the legislative will is frustrated. This obviously cannot be allowed to happen, particularly when the conditions for the bringing the law into force are present but the executive have its own considerations for not enforcing it. "
These instances do appropriately assume relevance to the case in hand.
Being conscious of the scope and limitations about exercise of writ jurisdiction in particular mandamus, reference is made to Shifa Laboratories, Lahore v. Government of Pakistan through Secretary, Health, Ministry of Health and Population, Planning and Health Division, Islamabad and another (PLD 1978 Lahore 1040) wherein with reference to standard text books the view expressed by A.S. Salam J. (as His Lordship then was) that though ordinarily the Court could not issue a direction of absolute and a particular nature (grant of registration of drugs) yet a direction could be issued to the authorities concerned, to act in accordance with law and perform the statutory duty within specified time. Even this Court had recently in Makhdoom Muhammad Mukhtar, Member Provincial Assembly, Punjab v. Province of Punjab through Principal Secretary to Chief Minister, Punjab, Lahore and 2 others (PLD 2007 Lahore 61), issued a direction for the implementation of an approved developmental scheme.
It needs no emphasis that one of the Principles of Policy contained in the Constitution i.e. Article 32 is that the "State shall encourage local Government Institutions composed of elected representatives of the area concerned...." Thus it is the responsibility of the State itself to observe and implement such Principles of Policy as are laid down by the Constitution.
I, therefore, consider this an appropriate case for a direction to the respondent to perform its legal duty and obligations as envisaged by the Punjab Local Government Ordinance, 2001, to prepare, approve and authenticate the Budget and also to approve such developmental schemes as may be in accordance with law and the rules. This may be done with a fortnight.
In view of the above the petition is accepted to the extent mentioned above. No order as to costs.
(N.F.) Petition accepted.
PLJ 2007 Lahore 958
Present: Iqbal Hameed-ur-Rehman, J.
MUHAMMAD MOSA RAZA--Petitioner
versus
STATE--Respondent
W.P. No. 828 of 2007, heard on 20.3.2007.
Constitution of Pakistan 1973--
----Art. 199--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, S. 11--Mohammadan Law, S. 251--Quashment of FIR--Marriage with her free will and consent--Sui juris--Held: According to Muhammadan Law, S. 251, every Muhammadan of sound mind, who has attained puberty may enter into a valid contract of marriage--Law does not permit a stranger to challenge the validity of a nikahnama when its contents are admitted by the husband and wife--Nikah of an adult girl is not invalid for want of permission of wali and further marriage is not invalid on account of the alleged absence of the consent of wali--FIR was quashed. [Pp. 961 & 962] A, B & C
PLD 2005 Lah. 316; 2005 P.Cr.L.J. 1638; PLD 1981 FSC 308 &
PLD 2004 SC 219, rel.
Syed Shahbaz Ali Rizvi, Advocate for Petitioner.
M/s. Tahir Mehmood and Rana Muhammad Nazir Saeed, Advocates for Complainant.
Mr. Muhammad Iqbal, Inspector/SHO and Mr. Wali Muhammad Sial, ASI in person.
Mst. Farhana Azam, Along with Kausar Parveen No. 375/C.
Date of hearing: 20.3.2007.
Judgment
The petitioner Muhammad Musa through this Constitutional petition, seeks quashment of FIR No. 285 dated 14.10.2006 registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at P.S. Choti D.G. Khan.
Briefly stated the prosecution case as contained in the FIR is that Mst. Farhana Azam, daughter of the complainant, namely, Muhammad Azam, aged about 13/14 years, is a student of 10th class, Muhammad Musa Raza (petitioner) was engaged as her tutor who had been giving tution for five/six years. The complainant had family terms with the petitioner. In the absence of the complainant and his family, the petitioner Muhammad Musa had developed illicit relations with daughter of the complainant, namely, Mst. Farhana Azam. On 14.10.2006 at 10.30 a.m., Mst. Kalsoom daughter of Ghulam Haider, Kubra Mia wife of Riaz Husain, Fida Husain, uncle of the petitioner Muhammad Musa Raza, and the petitioner Muhammad Musa Raza came at the house of the complainant in a white car. At that time, Muhammad Idrees and Muhammad Aziz were present in the house alongwith family. The petitioner Muhammad Musa Raza and others told that they have to go to Chah Mazarwala to see Ghulam Mustafa, son in law of the complainant and let Mst. Farhana Azam accompany them. They left after taking Mst. Farhana Azam. The complainant and his family waited for them a lot but they did not return. The complainant alongwith the witnesses went to Ghulam Mustafa, his son in law, who told that they had not come to his house. When the complainant and the witnesses were coming back, Javed and Mumtaz met them in the way and told that Fida Hussain, Muhammad Musa Raza (petitioner) alongwith Mst. Kalsoom, Kubra Mai and Mst. Farhana Azam were going on Mamuri Road by car. The said persons told that they were going to Dera Ghazi Khan. The complainant and the witnesses went to the house of Muhammad Musa Raza petitioner but they were not there. The petitioner Muhammad Musa Raza alongwith others had abducted the unmarried daughter of the complainant, namely, Mst. Farhana Azam, for the commission of Zina.
It is contended on behalf of the petitioner that the petitioner got married to Mst. Farhana Azam, daughter of Respondent No. 3, with her free-will and consent according to Sharia and nikah was duly registered; that parents and other relatives of Mst. Farhana Azam, wife of the petitioner, became annoyed with the said marriage and therefore, Respondent No. 3, father of Mst. Farhana Azam has got registered this false case against the petitioner; that the petitioner while contracting marriage with Mst. Farhana Azam has not committed any offence; that Mst. Farhana Azam had also got recorded her statement under Section 164 Cr.P.C. before the Magistrate at Islamabad, wherein she had stated that she is the legally wedded wife of the petitioner and requested that she be lodged in Dar-ul-Aman as her parents and relatives are extending threats of her murder, therefore, she was lodged in Dar-ul-Aman Rawalpindi by the order of the Magistrate; that on the filing of the instant petition, Mst. Farhana Azam was summoned and brought before this Court from Dar-ul-Aman Rawalpindi and she appeared and has in categorical terms stated that no one had abducted her, she of her own free-will and consent and being sui juris has contracted marriage with the petitioner Muhammad Musa Raza and according to the Injunctions of Islam, and her nikah was duly registered on 18.2.2004, Respondent No. 3, who is her father, being annoyed by her marriage with the petitioner has got registered a completely false and fabricated case against the petitioner. Learned counsel for the petitioner further contends that Mst. Farhana Azam had attained puberty, therefore, she was adult at the time of marriage and under Section 2-A of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, marriage by a woman on attaining puberty is valid and in this behalf reliance is placed upon Mst. Hajra Khatoon and another vs. Station House Officer, Police Station Fateh Jang, District Attock and 2 others (PLD 2005 Lahore 316); that consent of Wali is not required and a sui juris Muslim female can enter into valid nikah/marriage of her own free-will and the marriage is not invalid on account of the absence of consent of Wali and in this respect reliance is placed upon Hafiz Abdul Waheed vs. Mrs. Asma Jehangir and another (PLD 2004 SC 219); that even under Section 251 of Muhammadan Law, every Muhammadan of sound mind, who has attained puberty, may enter into a contract of marriage. That the witnesses of the Nikah had been later on won over by the complainant and, therefore, the affidavits denying the factum of Nikah it has no legal value as it has been held in Mirza Allah Ditta alias Mirza Javed Akhtar vs. Mst. Amna Bibi and another (2004 YLR 239) that where both man and woman admit factum of Nikah and solemnizing marriage with each other, then requirement of producing two witnesses under the law is not mandatory and the presumption of truth would be attached to the Nikah which is acknowledged by both the spouses.
On other hand, it has been argued on behalf of the complainant that Mst. Farhana Azam is a minor girl and she is of the age of 13/14 years and her nikah had been illegal got registered by declaring her to be of 16 years; that the witnesses of the Nikah have sworn affidavits that they have no knowledge about the nikah; that according to the school leaving certificate issued by Govt. Middle School Thatha Gabulan Tehsil & District D.G. Khan, Mst. Farhana Azam was born on 10.10.1992 and, therefore, she had not attained puberty at the time of marriage, as has been held in Mushtaq Ahmad vs. Mirza Muhammad Amin and another (PLD 1962 (W.P.) Karachi 442) that according to Muslim Law the minority of a male or female terminates when he or she attains puberty and puberty is presumed on the completion of the 15th years according to the law by which the parties are governed. In this respect reliance is also placed upon Abdul Razak vs. Muhammad Muller (PLD 1956 Karachi 454); that the marriage of Mst. Farhana Azam with the petitioner without the Wali is invalid and that in these circumstances no question for quashing of the FIR arises.
I have heard learned counsel for the parties and have gone through the record.
The star prosecution witness in the case is Mst. Farhana Azam. She was summoned from Dar-ul-Aman Rawalpindi by this Court. She appeared in Court. By her appearance, she seems to have attained puberty and is full grown up lady. She in categorical terms stated before this Court that she is a sui juris and major and of her own free-will and consent, she has contracted marriage with the petitioner and nikah has been solemnized according to Sharia and also got registered. No offence has been committed by the petitioner. The case against the petitioner is concocted and fabricated which was registered by father of Mst. Farhana Azam/Respondent No. 3 being annoyed due to the marriage.
The age of Mst. Farhana Azam as stated in the FIR is 13/14 years but her physical appearance belies the same. She is a full grown up lady and has certainly attained puberty and according to Muhammadan Law Section 251, every Muhammadan of sound min, who has attained puberty may enter into a valid contract of marriage. Reliance is placed upon Mst. Hajra Khatoon and another vs. Station House Officer, Police Station Fateh Jhang, District Attock and 2 others (PLD 2005 Lahore 316).
The contents of the Nikahnama have been admitted by the petitioner as well as Mst. Farhana Azam. Statement of the wife of the petitioner/accused, namely, Mst. Farhana Azam, and the Nikahanama belies the prosecution story as narrated in the FIR which could not be believed. The petitioner/accused has proved to have lawfully married to Mst. Farhana Azam, daughter of the complainant. The law does not permit a stranger to challenge the validity of a Nikahnama when its contents are admitted by the husband and his wife. In this respect, reliance is placed upon Dr. Ghulam Mustafa Solangi and 5 others vs. The State (2005 P.Cr.L.J. 1638). Moreover, the nikah of an adult girl is not invalid for want of permission of Wali and further marriage is not invalid on account of the alleged absence of the consent of Wali. Reliance in this behalf is placed upon Muhammad Imtiaz and another vs. The State (PLD 1981 FSC 308) and Hafiz Abdul Waheed vs. Mrs. Asma Jahangir and another (PLD 2004 SC 219).
In view of the above circumstances, this writ petition is accepted and FIR No. 285 dated 14.10.2006 registered under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at P.S. Choti D.G. Khan is quashed.
Before parting with the judgment, Mst. Farhana Azam, wife of the petitioner, has repeatedly requested that she be sent back to Dar-ul-Aman Rawalpindi, where she has been inducted under the orders of the Ist Class Magistrate Rawalpindi on her application. Therefore, request of Mst. Farhana Azam being genuine is acceded to and Muhammad Iqbal Inspector/SHO, Wali Muhammad Sial ASI and Kausar Parveen No. 375/C who have brought Mst. Farhana Azam from Dar-ul-Aman, Multan, are directed to safely conduct Mst. Farhana Azam and lodge her at Dar-ul-Aman Rawalpindi.
(M.S.A.) F.I.R. quashed.
PLJ 2007 Cr.C. (Lahore) 962
Present: Ijaz Ahmad Chaudhry, J.
SHAHBAZ MASIH alias KAKA--Appellant
versus
STATE--Respondent
Crl. A. No. 1599 of 2004, heard on 19.1.2007.
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 295-A & 295-B--Criminal Procedure Code, (V of 1898) S. 410--Conviction and sentence awarded to accused, assailed--Defiles, damages or desecrates a copy of the Holy Qur'an--Appreciation of evidence--Accused were seen while over running under his feet the pages of Holy Quran--No enmity or malafide of prosecution for the false implication of accused--Apprehension of accused at the spot was not denied--Suggestion of an insane and mentally retarted person and a run-away patient for psychiatric disease at the time of occurrence--Proved of--Prosecution had failed to produce any evidence on record to rebut the version of appellant supported by the evidence that he was not in a state of insanity at the time of occurrence--Accused cannot be held guilty for the offence u/S. 295-B PPC--Appeal allowed. [Pp. 966 & 967] A & B
Sardar Khalil Tahir Sandhu, Advocate for Appellant.
Mr. Maqbool Ahmad Qureshi, Advocate for State.
Date of hearing: 19.1.2007.
Judgment
Through this Criminal Appeal No.1599 of 2004, Shahbaz Masih (appellant) has challenged the judgment dated 25.9.2004 passed by the learned Sessions Judge, Faisalabad whereby he had convicted the appellant under Section 295-B PPC and sentenced him to imprisonment for life.
The occurrence in the present case had allegedly taken place on 4-06-2001 at 9-00 a.m. within the territorial jurisdiction of Police Station Sargodha Road, Faisalabad and the matter was reported by Qari Muhammad Rafique, Khateeb, Jamia Masjid Baikhi Chestia Darbar, Islamia Park, Faisalabad, complainant (PW-2) at 10-45 a.m. through application (Ex.PA) on the basis of which formal F.I.R. No.315-2001 (Ex.PA/1) was drafted by Manzoor Hussain, ASI, (PW-1) on the same day at the police station.
The brief facts as narrated by Qari Muhammad Rafique complainant (PW-2) in the F.I.R. (Ex.PA/1) are that he was Khateeb in Jamia Masjid Baikhi Chestia Darbar, Islamia Park, Faisalabad, and on 11.9.2001 at about 9.00 a.m. was giving Dars-e-Quran to the children when he heard a noise in the Darbar opposite to the Mosque. Thereupon the complainant rushed towards Darbar and saw that Shahbaz alias Kaka the appellant was tearing and over running the pages of the Holy Quran under his feet, which was also witnessed by Jameel Sabir (PW-3) and Qamar Ali PW not produced. The appellant was apprehended by the people and handed over to the police alongwith "Shaheed (torn) pages of the Holy Quran.
On 04-06-2001, Sajjad Hussain SI/I.O. (PW-4) after receiving an information, reached at Din Muhammad Chesti Darbar, situated at Street No.8, Islamia Park, Faisalabad alongwith police officials, where Qari Muhammad Rafique, complainant (PW-2) handed over him application (Ex. PA), which was sent to the police station through Shahid Ali Constable No. 4992 and then he went to get the permission from the Higher Officers and opinion regarding the said occurrence through application Ex.PC for the registration of FIR. After getting the opinion, formal FIR (Ex.PA/1) was recorded. There-after, he prepared the site-plan Ex. PE. Muhammad Rafique, complainant produced before I.O. rages of sacred leaves of Holy Quran, which were taken into possession vide recovery Memo Ex.PB and got the same attested by the PWs. He also recorded the statements of PWs under Section 161 Cr.P.C. in this regard. On 05-06-2001, he arrested Shahbaz alias Kaka (appellant) and got him the medically examined by the Doctor through an application Ex.PF and sent the appellant to Judicial lock-up on 05-05-2001 while declaring him guilty.
After completion of the investigation, report under Section 173 Cr.P.C. was submitted in the Court. Then copies of the documents required under Section 265-C Cr.P.C. were supplied to the appellant, the charge was framed which was denied by him and he claimed to be tried.
The prosecution in order to prove its case produced as many as 4 witnesses. The ocular account was furnished by Qari Muhammad Rafique, complainant (PW-2) and Jameel Sabir (PW-3), while the investigation was conducted by Sajjad Hussain, SI/I.O. (PW.4). Manzoor Hussain, ASI, who drafted the FIR appeared before the trial Court as PW-1.
After the close of the prosecution evidence, the appellant was examined under Section 342 Cr.P.C. who denied the allegation and professed his innocence. However, to a question that "why this case against you and why the PWs deposed against you?" Shahbaz alias Kaka (appellant) made the following reply:--
"The accused was a psycho patient and had been got admitted by his guardian in the psychiatric Hospital in Lahore, where he remained for quite some time, thereafter, he ran away from the Hospital and started wandering different places. On 04-06-2001 the accused was an idiot and unable to apprehend reason had been wandering near the tomb while he was wearing a cross. He was intercepted by the people of the area and handed over to the present PW, who interrogated him and found him a Christian and thus took it a desecrating act and thus out of their religious Zeal and activism connived with the I.O. of this case, who developed the proposed and booked the case u/S. 295-A & B by manipulating the facts to attract the said offence. The mental incapacity of the accused was though revealed upon the I.O. yet he manoeuvred the facts and evidence out of his religious Zeal and planted the sacred leaves by collecting the same from some Mosque or Tomb. It may be pertinent to add here that rages sacred leaves of the Holy Book can be found in almost every Mosque and Tomb for their onward burial and are kept in basket to avoid the desecration."
The appellant did not opt to make the statement under Section 340(2) Cr.P.C, but produced in his defence Dr. Pervez Ahmad Consultant, Psychiatrist Punjab Institute Mental Health Lahore as DW-1.
The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant. Hence, the instant appeal before this Court against the conviction of Shahbaz Masih (appellant).
The learned counsel for the appellant has contended that according to Section 84 of PPC, any offence committed by a insane person is not an offence; that insanity of the appellant had been proved by Dr. Pervez Ahmad, Consultant Psychiatrist Punjab Institute Mental Health Lahore (DW-1), who specifically stated from the record that the appellant remained admitted in the Mental hospital from 23-08-2000 to 04-09-2000, but thereafter he absconded from the ward of the said Hospital and on the other hand, except for the statements of witnesses, there is no evidence that the appellant was not insane and a sick person, who was not aware of the act committed by him; that the impugned judgment had been passed by the learned trial Court without considering the medical report and the provisions of Section 84 PPC, which is liable to be set-aside and the appellant may be acquitted.
The learned State counsel has opposed this appeal vehemently.
I have heard the arguments of learned counsel for the parties and gone through the impugned judgment and entire evidence with the assistance of learned counsel for the parties with due care and caution.
As per prosecution version, Qari Muhammad Rafique complainant (PW-2) and Jamil Sabir (PW-3) had seen the appellant in the Darbar while over running under his feet the pages of Holy Quran after tearing the same and also throwing the same on the graves inside the bazaar, who was caught red handed by the said alongwith others at the spot and then handed over to the police alongwith the torn pages of the Holy Quran. Admittedly the appellant was resident of Lahore whereas the occurrence had taken place at Faisalabad. Both PWs 2 and 3 were cross-examined at length, but the defence failed to allege any enmity or mala fide on their part for the false implication of the appellant in the present case. Even the apprehension of the appellant at the spot was not denied. However, they were only suggested that the appellant was an insane and mentally retarted person and a run-away patient of Government Hospital for Psychiatric Diseases, Lahore at the time of the occurrence to which they denied knowledge. To prove this fact the defence produced Dr. Pervaiz Ahmad, Consultant, Psychiatrist, Punjab Institute of Mental Health, Lahore as DW-1, who brought the record from said Hospital regarding the appellant and stated that the appellant was admitted in the said hospital on 23.8.2000 and remained under their treatment till 4.9.2000, but then he absconded from the ward of the said hospital. He further stated that the most probable diagnosis at that time was bipolar effective disorder currently manic episode. He also produced certificate of admission and discharge of the appellant (Ex:D-A) issued on 15.8.2000 by the Medical Superintendent, Government Hospital for Psychiatric Diseases, Lahore.
What offence has been committed by the appellant, I would like to reproduce the provisions of Section 295-B, PPC, here:--
"295-B Defiling, etc. of copy of Holy Qur'an. Whoever wilfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purposes shall be punishable with imprisonment for life."
According to the afore-quoted provisions, whether any person is guilty of the said offence, first of all his intention has to be accounted for.
On the other hand the defence has sufficiently proved on the record that at the time of the occurrence the appellant was an insane person and did not know the nature of the act done by him. As such provisions of Section 84 PPC will definitely attract in the present case, which lays down that nothing is an offence done by a person, who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The occurrence in the present case had taken place on 4.6.2001. The prosecution has failed to produce any evidence on the record to rebut the version of the appellant supported by the evidence of DW-1 that he was not in the state of insanity at the time of the occurrence. In the absence of such evidence that the appellant was capable of knowing the nature of the act or that he was doing what was either wrong or contrary to law at the time of the occurrence cannot be held guilty for the offence under Section 295-B PPC.
For the foregoing reasons, the conviction and sentence of the appellant, recorded by the learned trial Court under Section 295-B PPC is not sustainable in the eyes of law, which is set aside while allowing this Crl. Appeal and Shehbaz Masih appellant is acquitted of the charge while invoking the provisions of Section 84 PPC. He shall be released from the jail forthwith, if not required in any other criminal case. However, as it has been proved on the record that the appellant was an insane and mentally retarted person and a run-away patient of Government Hospital for Psychiatric Diseases, Lahore at the time of the occurrence, the Superintendent Jail while releasing the appellant shall make arrangements for his admission in the aforesaid Hospital for his treatment where he shall be kept as per Rules and Regulations of the said Hospital.
(R.A.) Appeal allowed.
PLJ 2007 Lahore 962
Present: Syed Hamid Ali Shah, J.
AHMED KHAN (deceased) through his Legal Heirs
and 2 others--Petitioners
versus
GHULAM HUSSAIN and 3 others--Respondents
W.P. No. 8240 of 2005, decided on 26.2.2007.
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 45--Civil Procedure Code, (V of 1908), S. 48--Mutation on the basis of decree--Can be attested or sanctioned--Where the execution of such decree is not sought within the period of limitation--Revenue authorities cannot refuse to sanction of mutation on the ground of failure of the decree-holder to file execution application of the decree--Decree in favour of the decree-holder creates title--No application for execution has been filed--Section 48 bars execution after specified time but the rights of decree-holder in other respect are not effect--Petition was dismissed. [P. 964] A, B & C
1972 SCMR 322 and PLD 1998 Lah. 548, ref.
Mr. Zafar Iqbal Chauhan, Advocate for Petitioners.
Mr. Zahid Iqbal Malik, Advocate for Respondent No. 1.
Date of hearing: 5.12.2006.
Order
The petitioners through filing an appeal before Collector, Bhakkar challenged the sanction of Mutation No. 410 attested on 29.12.1994. The petitioners attacked the sanction of mutation, on the ground that mutation was attested on the basis of decree dated 21.5.1977 in suit for possession. The decree is not capable of implementation unless executed through the Court; that the execution application was twice dismissed firstly through order dated 10.5.1984 and secondly on 6.10.1985 by the Court and that no valid cause now exists in favour of the respondents.
The petitioners herein assailed the mutation and it's sanction in appeal before the Collector/AC. The Collector/AC while accepting the appeal through order dated 9.7.1996, cancelled the mutation. The appellate order was assailed by the respondents, in revision before Addl. Commissioner, who through order dated 26.2.1997, accepted the revision and set aside the order of the Collector. The petitioners then assailed order dated 26.2.1997 in the second revision before Member Judicial-lI Board of Revenue. Learned Member Judicial-ll, Board of Revenue, through detailed order, upheld the decision of Addl. Commissioner passed in the revision. Order dated 11.12.2004 of Member BOR, has now been assailed through the instant petition.
It is contended by learned counsel that mutation dated 29.12.1994 was attested behind the back of the petitioners and the petitioners came to know about the impugned mutation on 6.6.1995 when Respondent No.1 recorded his statement to this effect, in a suit for possession, before the Civil Court. Learned counsel has submitted that the impugned orders, are based on misconception inasmuch as that the official in the revenue hierarchy, have failed to distinguish between a declaratory decree and decree for possession. Learned counsel has submitted that right of the respondents has arisen consequent upon the decree in their favour, which stood extinguished when execution proceedings were not initiated within the period of limitation. The rights so extinguished were laid to rest on dismissal of execution applications. Mutation cannot be based on in executable decree. Dismissal of second suit of the respondents sets the case of the petitioners at naught. While referring to Section 45 of the West Pakistan Land Revenue Act, 1967, it was contended that the impugned mutation has no legal sanctity as it is neither based on agreement/concurrence of the parties nor on the basis of valid decree.
I have heard the learned counsel for the parties and perused the material available on the record.
The question for determination before the Courts below, was that mutation on the basis of decree can be attested or sanctioned, even in a case where the execution of such decree is not sought within the period of limitation. Learned appellate Court while relying upon the dictum laid down by Hon'ble Supreme Court in the case of "Ali Ahmad and another Vs. Muhammad Fazal and another" (1972 SCMR 322), has drawn conclusion that Revenue Authorities cannot refuse sanction of mutation on the ground of failure of the decree-holder to file execution application of the decree. The conclusion drawn by the Courts concurrently is not open to exception for various reasons, firstly, the decree in favour of Respondent No.1 creates title, regardless of the fact that no application for execution has been filed by Respondent No.1. Section 48 bars execution after specified time but the rights of decree-holder in other respect are not effected. It has been held in the case of "Mst. Hussain Bibi Vs. Siraj Din" (PLD 1998 Lahore 548) that Limitation Act merely bars the remedy or assistance of Court for execution of the decree but does not extinguish the right or title based on the decree. The conclusion drawn by learned Courts below are not open to any exception in the revisional jurisdiction, moreso, when the learned Court while passing the impugned judgment and decree has followed the dictum of law laid down by the Apex Court in the case of "Ali Ahmad and another Vs. Muhammad Fazal and Another" (1972 SCMR 322) where Hon'ble Court has observed as under:--
"He was entitled to get the mutation effected on the basis of the decree. Simply because it has barred by time, it has not lost its utility. In our opinion, the view of the High Court is correct that the Revenue authorities were under obligation to sanction mutation on the basis of the decree."
(M.S.A.) Petition dismissed.
PLJ 2007 Lahore 968
Present: Maulvi Anwar-ul-Haq, J.
BATA PAKISTAN LIMITED through its Company Secretary &
General Attorney--Appellant
versus
MUHAMMAD ANWAR and another--Respondents
SAO No. 88 of 2002, heard on 7.5.2007.
Punjab Tenancy Act, 1887 (XVI of 1887)--
----S. 39--Ejectment petition--Respondents/landlords were the co-owners of building--Respondent had let out the building to appellant--Appellant/tenant was a co-sharer in possession of a portion of the building subject to payment as a rent--Ejectment had been sought on the ground of default in payment of rent--Validity--One of the co-landlords or one of co-owners can seek ejectment on ground of his personal requirement--Held: Ejectment can be sought for the bonafide personal use of respondents, particularly when respondents who had, admittedly delivered possession to the appellant/tenant had no objection to the same and was fully supporting the said co-sharer--S.A.O. was accordingly dismissed. [Pp. 972 & 973] A, B & C
Mr. Faisal Zaman Khan, Advocate for Appellant.
Mr. Muhammad Asghar Khan, Advocate for Respondents.
Date of hearing: 7.5.2007.
Judgment
On 21.12.1983 the respondents filed an application for ejectment of the appellant while another respondent was Pakistan General Insurance Company Limited. I am told by both the learned counsel that so far as the said other respondent is concerned, at some point of time during the course of this litigation, its matter was finalized and the said respondent was ejected. According to the application, the respondents are the owners of the building comprising 9 rooms and described in para-2 of the ejectment petition. According to the ejectment petition, the Respondent No. l owns 5/16 share while the Respondent No. 2 owns 4/16 whereas a decree for specific performance of agreement to sell qua the remaining 7/16 share has also been passed by a learned ADJ, Gujranwala, on 15.5.1981. The appellant is in possession of a portion of the said building as described in para-4 of the ejectment petition subject to payment of Rs. 550/- per month as a rent. The portion was depicted in a plan annexed with the application. The ejectment has been sought on the ground of default in payment of rent since January, 1981. The bona fide requirement for personal use and occupation by the Respondent
No. 1 was also pressed. It was stated that he intends to run a Restaurant in the said premises. The appellant in its written reply took the plea that the building was let out to the appellant only by the Respondent No. 2 by means of a written document dated 11.2.1969. On 29.6.1972 they received a notice from the LRs of one Muhammad Hussain through his Advocate claiming that they are owners of 1/2 share in the building and suits are pending in the Civil Court at Lahore and according to the order of District Judge, Lahore, dated 3.10.1974 the appellant started depositing rent to the extent of share of Muhammad Hussain in the treasury. Ultimately, a sum of Rs.309.38 was to be paid to Shaukat Ali respondent and Rs.240.62 to the LRs of the said Muhammad Hussain and the appellant had been paying rent accordingly and up-to date rent stands Paid. The other allegations were denied. Following issues were framed by the learned Rent Controller:--
Whether the relationship of landlords and tenant exists between the Petitioner No. 1 and Respondents No. 1 and 2.
Whether the respondents have committed default in the payment of rent of Petitioner No. 2 Shaukat Ali? OPR
Whether the application is bad for non-joinder of necessary parties?
Whether the Petitioner No. 2 Shaukat Ali cannot file an ejectment petition against the respondents on the ground of personal use of petitioner?
If Issue No. 4 is not proved in affirmative whether Petitioner No. 1 requires the property in dispute in good faith for his personal use and occupation? OPP
Relief.
Evidence of the parties was recorded. The learned rent Controller passed an order of ejectment on 8.11.1987. I may note here that the issue of default was not pressed and the ejectment was ordered on the ground of personal requirement as pleaded. A first appeal filed by the appellant was dismissed on 15.5.1990. Against this judgment. two SAOs were filed. SAO No. 6/90 was filed by the appellant while SAO No. 7/90 was filed by Akhtar Hassan, etc. I may note here that these are the said LRs referred to in the reply of the appellant. Both the SAOs were allowed by this Court on 12.1.1993 it was directed that the first appeal filed by the appellant be decided afresh and the application filed by the said Akhtar Hassan, etc. be also disposed of. After the remand, the learned ADJ took all steps to issue notice to the said Akhtar Hussain etc and ultimately a proclamation was made but they did not turn up. Consequently, the application was dismissed for non-prosecution. The first appeal was dismissed on 18.5.2002.
Learned counsel for the appellant contends that since the building was let out to his client by Shaukat Ali respondent and thereafter the said LRs of Muhammad Hussain intervened and the rent being paid in accordance with the order of the learned District Judge to Shaukat Ali and the said LRs while Respondent No. 2 is also a co-owner of a portion of the said property, the ejectment of the appellant could not have been ordered on the ground of bone fide personal requirement of the Respondent No. 1 on the principle that one of the co-owner can seek ejectment of a tenant. According to the learned counsel, this principle would be attracted only where the ejectment is being sought on the ground of default in payment of rent. He relies on the case of Abdul Ghani v. Abrar Hussain (1999 SCMR 348). Learned counsel for the respondents, on the other hand, contends that the facts of the case being relied upon by the learned counsel for the appellant are distinguishable. He relies on the case of Anwar Khan v. Abdul Manaf (2004 SCMR 126) to support the impugned orders.
I have gone through the records of this case, with the assistance of the learned counsel for the parties. There is no dispute at the moment that Respondent No. 1 is a co-owner of the said premises. It is also an admitted position on record that Respondent No. 2 had let out the building to the appellant and it was he who had put the appellant in possession. It is also a matter of record that a direction was issued by the learned District Judge, Lahore, that the share of rent be paid to the LRs of Muhammad Hussain.
The application which was ordered to be decided by this Court while allowing SAOs No. 6 and 7 of 1990 was filed by the said LRs in Court of learned District Judge, Gujranwala, on 13.6.1988. It is a brief application and I deem it appropriate to reproduce the same hereunder paras-2 and 3 of the said application;-
The respondents replied that a decree for specific performance of an agreement to sell has already been passed against all the LRs of Muhammad Hussain and they have also deposited the balance amount of consideration. I may note here that the copy of the said judgment and decree, dated 15.5.1981 is present on record as Ex.A. 1. Be that as it may, notwithstanding the fact that all the parties were required by this Court to appear before the learned District Judge, Gujranwala, who was directed to decide the matter within two months. The said applicants never turned up after the decision of SAOs and ultimately the application was dismissed in default.
"The question which requires consideration is, as to whether the above principle of law can be invoked in aid in the case in hand. Admitted position as repeatedly observed, is that the property in question is a big mansion which comprises plot of land measuring 11401 sq. yds., several buildings thereon consisting of about 285 small apartments and some other constructions. The above property was transferred to 59 persons who had contributed different amounts towards the price of the above property through the compensation books. It is also evident that three of the above original transferees, or their legal heirs, have entered into agreements of sale with the respondents agreeing to transfer their interest. They have opposed the appellants' rent cases on the above two grounds. The appellants, as pointed out hereinabove, are the sons of one of the above 59 transferees. Their father contributed Rs. 9,900/-/- towards the above price of Rs. 5,71,000/-. As the property has remained unpartitioned, the appellants cannot claim that they owned particular portion of the big mansion in question. In our view, since some of the original transferees, or their legal heirs, are opposing the appellants in the above rent cases, they cannot apply for ejectment on the ground of personal requirement, till that time the property is partitioned and they get particular portion of the property as their share. If we accede to the appellant contention, it would lead to an illogical/unreasonable situation, namely, a joint transferee having one paisa share out of rupee will get the possession of the entire property for his personal requirement in spite of opposition of some of the other co-owners."
In the present case, it is the stated case of the appellant itself that the building was let out and the appellant was put in possession by the Respondent No. 2. This means that he was a co-sharer in possession. Even if the said judgment and decree regarding the remaining portion of the building is ignored, admittedly, the Respondent No. 1 is also a co-sharer. It is not the case of the appellant that any of the co-sharers of the building have transferred or agreed to transfer their shares to the appellant. I have already reproduced the application filed by the said LRs of Muhammad Hussain, which was never pursued after the decision of this Court. It has simply been stated that since they are also co-sharers, they be impleaded as a party. I, therefore, do agree with the learned counsel for the respondents that the facts of this case are absolutely different from the facts of the aid case of Abdul Ghani and under the general principle approved and laid down by their lordships in the said very judgment and re-affirmed in the said case of Anwar Khan being relied upon by the learned counsel for the respondents, ejectment can be sought for the bona fide personal use of the Respondent No. 1 particularly when Respondent No. 2 who had, admittedly delivered possession to the appellant had no objection to the same and is fully supporting the said co-sharer. The SAO is accordingly dismissed. However, the appellant is directed to deliver vacant possession of the building to the respondents on or before 7.7.2007. No orders as to costs.
The records of the learned Courts below be remitted back immediately
PLJ 2007 Lahore 973
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD USMAN--Appellant
versus
MUHAMMAD SHAHBAZ and 7 others--Respondents
FAO No. 364 of 2006, heard on 6.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXII, R. 10--A person has to be adjudged as a person of unsound mind before further proceedings are to be taken in a suit filed on his behalf through a next friend. [P. 976] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XL, R. 1, Appointment of a receiver--Essentials--Provision--Court is not to appoint a receiver except upon "proof" by plaintiff that he has a prima facie chance of success in the suit--Plaintiff himself show a case of adverse and conflicting claims to the property--Plaintiff himself show some emergency or damages or loss demanding immediate action--Review shall not be appointed where it has the effect of depriving a defendant of a de facto possession as it will definitely cause irreparable loss--Conduct of the applicant is very much relevant--FAO allowed. [P. 977] B
Mr. Masood A. Malik, Advocate for Appellant.
Mr. Tariq Pervaiz Malik, Advocate for Respondents No. 1 and 2.
Mr. Aftab Rahim, Advocate for Respondents No. 3 and 4.
Ch. Muhammad Amin, Advocate for Respondents No. 6 and 7.
Date of hearing: 6.3.2007.
Judgment
On 24.1.1996 a suit was filed. According to the plaint, it was filed by Muhammad Yousaf son of Muhammad Siddique through his son and next friend Muhammad Shahbaz (Respondent No. 1 herein). It was tiled against the appellant and Respondents No. 5 to 8. In the plaint, it was stated that Muhammad Yousaf is an insane person and the suit is being filed through his son as a next friend. Muhammad Yousaf had two wives. Mst. Anwar Begum bore him two sons, namely, Muhammad Shahbaz and Muhammad Ijaz Respondents No. 1 and 2 while Mst. Sarwar Begum bore him a son, namely, Muhammad Usman appellant and two daughters, namely, Misbah and Uzma Yousaf. The said Mst. Sarwar Begum is dead while the remaining family is alive. Muhammad Yousaf had divorced Mst. Anwar Begum and her two sons were brought up by her. It was then stated that the said Muhammad Yousaf is in the custody of the appellant who started administering some drugs causing injury to the brain of Muhammad Yousaf who was running a business in the suit shop in New Anarkali Lahore and an amount of Rs. two million stood invested and the daily income of the said business is from Rs. 8,000/- to Rs. 10,000/- Then, there is a reference to a Suzuki FX Car and the amount of the Committee of Rs. 4,80,000/-. Gold and household furniture valued at Rs. 2,00,000/- is also in the custody of the appellant. The appellant in connivance with Respondents No. 5 to 8 forged a sale-deed dated 29.6.1995 by playing fraud as Muhammad Yousaf was insane. The sale-deed was got registered. The appellant filed a suit for declaration against Muhammad Yousaf and obtained judgment and decree on 19.10.1995 with consent. An application under Section 12(2) CPC is pending. A declaration was accordingly sought that the registered sale-deed dated 29.6.1995 is forged and fraudulent and the said plaintiff is the owner as also a decree for possession and restoration of business was sought. This suit was entrusted to a learned Civil Judge, Lahore. On 24.1.1996 he issued notices to the defendants in the case for 14.2.1996 and directed them to maintain status quo. On this date, it was noted that ' Defendants No. 1, 3, 4 and 8 were present and they filed their written statements and written reply. Notices were issued to Defendant No. 2 in the case. On 12.3.1996 it was noted that an application has been filed by Muhammad Yousaf plaintiff under Order VII Rule 11 CPC. A copy was delivered and the case was adjourned to 1.4.1996. Two more adjournments were given for reply and on 15.5.1996 it was noted that the reply has been filed. Thereafter, the case was continuously adjourned for arguments on the said application till 25.6.1999 when it was reported that the said Muhammad Yousaf has died and an application was filed for bringing on record his LRs. Later, an amended plaint was filed wherein Muhammad Shahbaz and Muhammad Ijaz Respondents No. 1 and 2 were entered as plaintiffs while Muhammad Usman appellant, Misbah Yousaf and Uzma Yousaf son and daughters of Muhammad Yousaf were entered as defendants alongwith other defendants i.e. Respondents No. 5 to 8 already on record. On 8.4.2006 an application was filed by the Respondents No. 1 and 2 for appointment of a Receiver. The application was contested by the appellant by filing a written reply on 22.5.2006. Vide order dated 31.7.2006 this application was allowed and a Receiver was appointed.
Learned-counsel for the appellant contends that the impugned order has been illegally passed without adverting to the settled principles as to appointment of a Receiver. According to him, there was no prima facie evidence that the deceased was an insane person at the relevant time. Learned counsel for the Respondents No. 1 and 2, on the other hand, supports the impugned order. Learned counsel for the appellant re-joins to press C.M.No. 1-C/06 filed for condonation of delay in filing of the FAO. The other represented respondents also support the appellant while Respondents No. 7 and 8 have been proceeded against ex-parte vide order dated 20.12.2006.
I will be attending to the matter of limitation first. The impugned order was passed by the learned trial Court on 31.7.2006. The copy was applied on 1.8.2006. It was prepared and delivered on 2.8.2006. The first appeal was presented in the Court of learned District Judge, Lahore, on 21.8.2006. It was entrusted to a learned ADJ who took up it on the same day after the office report. The appeal was registered and after noting the contentions of the learned counsel it was admitted to regular hearing and notice was issued for 4.9.2006. The said order was suspended. The record was received and the Respondents No. 1 and 2 put in appearance on 25.9.2006 when the case was adjourned to 11.10.2006. On this date, the note is that the learned Presiding Officer has been transferred. The case was ultimately taken up on 23.11.2006 when the records were examined and it was found that the value of the suit is Rs. 11 million and the appeal was accordingly returned. It was presented in this Court on 24.11.2006. It is but obvious that the office of the learned ADJ as also the learned ADJ himself failed to take note of the said fact while the defect was also not pointed out by the contesting respondents after putting in appearance. It was noted by the learned ADJ himself on 23.11.2006 that appeal has been wrongly filed. To my mind, the case is fully covered by Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584). The delay is accordingly condoned.
I have gone through the trial Court records, with the assistance of the learned counsel for the parties. I have already narrated above some details of the proceedings that took place before the learned trial Court. It is indeed shocking that the learned trial Court proceeded in the first instance to issue notice to the respondents without examining the plaint which was filed on behalf of a person through a next friend stating that he is insane. Needless to state that in terms of Order XXXII, Rule 10 CPC a person has to be adjudged as a person of unsound mind before further proceedings are to be taken in a suit filed on his behalf through a next friend. Not only this, the learned trial Court failed to perform the duties enjoined upon it by law even upon presentation of an application by the said Muhammad Yousaf deceased in person on 12.3.1996 stating that he is alright and the suit has been un-authorizedly filed. As noted by me above, the record gives the impression that this application filed on 12.3.1996 remained un-attended till such time that Muhammad Yousaf died on 4.4.1999 i.e. after more than three years of the filing of the said application.
In the said background, I have examined the impugned order dated 31.7.2006 passed by the learned trial Court. The only reason stated is that a Magistrate conducted an inquiry under the orders of the District Judge, Lahore and reported that Muhammad Yousaf is a completely disabled person suffering from Paralysis and unable to listen anybody even to move. According to the learned trial Court in view of the said report, the execution of the document challenged in the suit becomes doubtful. Then there is a reference to a report of Forensic Expert that the signatures are not similar to the admitted signatures, registration of a criminal case and an offer made by the appellant to pay a sum of Rs. One million to the Respondent No. 1. After recording these reasons, he has proceeded to appoint a Receiver directing him to take over the affairs of the suit property and to start collecting rent and to deposit in Court to even the scale of justice.
A bare perusal of the impugned order would show that the learned trial Court was not even aware of the primary conditions for appointment of a Receiver in a civil suit in terms of Order XL, Rule 1 CPC. These conditions have been settled over a period of time consistency in judgments delivered by the Superior Courts of the Subcontinent and of Pakistan. It has been consistently held that the remedy provided in terms of Order XL, Rule 1 CPC by its very nature is the harshest provided in CPC. The Superior Courts have always advised that the powers under the said provision of law are to be exercised sparingly and with utmost caution. The conditions referred to by me above are:--
(i) A Court is not to appoint a receiver except upon "proof" by the plaintiff that he has a prima facie chance of success in the suit;
(ii) the plaintiff himself show a case of adverse and conflicting claims to the property;
(iii) the plaintiff himself show some emergency or danger or loss demanding immediate action;
(iv) a receiver shall not be appointed where it has the effect of depriving a defendant of a de facto possession as it will definitely cause irreparable loss; and
(v) the conduct of the applicant is very much relevant. It has to be free from blame.
The learned trial Court has not at all adverted to any of the said conditions. This is a case where Muhammad Yousaf remained alive for about four years after institution of the suit on 23.1.2006. It was on 12.3.2006 that he filed an application making hue and cry that nothing is wrong with him and he is doing his business and has not authorized anyone to file the suit. This application either was not attended to or the Court was not allowed to attend to the same for more than three years when ultimately Muhammad Yousaf died. I have already noted above that it was the duty of the Court to examine the plaint and to conduct proceedings to adjudge Muhammad Yousaf to be a person of unsound mind as claimed by his son Respondent No. 1 who, in fact, had filed the suit himself claiming to be his next friend. No such proceedings were taken. The Court failed to do anything even when Yousaf filed an application that he has not authorized anyone to file the suit and he is not of unsound mind.
It is a matter of record as stated in the said application dated 8.4.2006 by the Respondents No. 1 and 2 themselves that earlier also they had filed an application on 13.5.2000. This application, in fact, was filed on 12.7.2000 and is available at page 261 of the trial Court file. Following are its contents:--
This application itself reflects on the conduct of the Respondent No. 1 and apart from the fact that it does not disclose any ground whatsoever for appointment of the Receiver.
Rs. 50,000/- per month. The prayer made was as follows:--
To my mind, this application also does not disclose any grounds recognized by law for appointment of a Receiver. There is no allegation of waste. The learned trial Court also lost sight of the fact that it has proceeded to appoint a Receiver of a property which is not the subject-matter of the suit before him. An examination of the record reveals that the said sale-deed challenged in the suit pertains to half share of the said shop. The remaining half share was stated to be transferred in favour of the appellant by his father through a Court decree which is stated to have been challenged separately under Section 12(2) CPC. The learned trial Court, however, appears to be oblivious of the said fact apparent on the face of record.
I have also examined the amended plaint filed after the death of said Muhammad Yousaf wherein Respondent Nos. 1 and 2 are plaintiffs and the remaining children of the said Yousaf are defendants. However, the same prayer has been repeated that was made in the original plaint particularly qua the possession. Even if the plaintiffs succeed in the suit ultimately, the validity of the very institution whereof is prima facie doubtful, the property would be treated to be that of Muhammad Yousaf who has died and the possession of the appellant will be that of a co-owner. Needless to state that a co-owner in possession cannot be dispossessed otherwise than by filing a suit for partition. The impugned order of the learned trial Court, therefore, is not only illegal but without lawful authority. The FAO accordingly is allowed and the impugned order dated 31.7.2006 passed by the learned trial Court is set aside. However, the appellant shall furnish a security in the sum of Rs. two million to the satisfaction of the learned trial Court to secure the share of the plaintiffs in the case in the income/profits accruing from the suit property, if so, directed by the Court in appropriately constituted proceedings. This will be done within a period of 45 days from today. No orders as to costs.
The trial Court shall also take all steps to decide the suit within one year from the date of receipt of this order to be remitted to the learned trial Court alongwith the records.
(M.S.A.) FAO allowed.
PLJ 2007 Lahore 979
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD HUSSAIN and another--Appellants
versus
SOHRAB KHAN & others--Respondents
RSA No. 46 of 1999, heard on 14.11.2006.
Specific Relief Act, 1877 (I of 1877)--
----S. 27(b)--West Pakistan Border Area Regulations, 1959--(Punjab (Amendment) Ordinance (III of 1981)--S. 11(iii)(b)--Suit for specific performance of an agreement to sell land--Decreed to--Appeal was dismissed--Assailed--Execution of agreement--Payment of amount had duly been proved--Respondent stated without any demur that agreement was entered into and paid amount--Question of--S. 11(iii)(b) of West Pakistan Border Area Regulations 1959 (Punjab Amendment Ordinance, (III of 1981), Condition No. 11 was added in Schedule III to West Pakistan Border Area Regulations 1959--Allottee has sold away land to appellants & respondent and it has been sold with permission of GHQ--Specific performance can be enforced against a person claiming under a party to an agreement of a title arising subsequently to contract--Pleadings as well as evidence on record, findings recorded by Courts below that appellants were aware of agreement are not liable to interference by High Court in second appeal--RSA dismissed. [Pp. 981, 982 & 983] A, B, C, D & E
2003 SCMR 74 & PLD 1972 SC 25, rel.
Mr. Jehangir A. Jhoja, Advocate for Appellants.
Rana Muzaffar Hussain, Advocate for Respondent No. 1.
Nemo for others Respondents.
Date of hearing: 14.11.2006.
Judgment
On 4.3.1989 the Respondent No. 1 filed a suit against the appellants and the remaining respondents. In the plaint, it was stated that Respondent No. 3 was the owner of 203 kanals of land, described in Para-1 of the plaint. He agreed to sell the said land to the Respondent No. l and Respondent No. 4 for a consideration of Rs. 1,00,000/-. He received Rs. 45,000/- as earnest. Thereafter, he appointed Respondent No. 2 as his general attorney by means of a registered document on 6.4.1984. Respondent No. 2 received another sum of Rs. 30,000/- in presence of the Sub-Registrar on 11.3.1986 and got the agreement registered. The balance amount of Rs. 25,000/- was to be paid after permission to be obtained from Deputy Commissioner and GHQ. The date of performance was fixed at 1.6.1986. According to the terms of the said agreement, the share of Respondent No. 4 was 12/203 or 12 kanals while the share of the Respondent No. 1 was 191/203 or 191 kanals. The Respondent No. l had been requesting Respondents No. 2 and 3 to complete the sale but they had been dallying on the pretext that the NOC has not been obtained so far. Thereafter, they proceeded to transfer the land to the Respondent No. 4 and the appellants for a sum of Rs.1,00,000/- vide registered sale-deed dated 20.10.1987. Out of this land, according to the terms of the said agreement, 12 kanals were sold to Respondent No. 4 while the share of the Respondent No. 1 i.e. 191 kanals was sold to the appellants. This sale-deed was stated to be void to the extent of 191 kanals which the Respondent No. 3 was bound to transfer to the Respondent No. 1. It was also stated that the appellants were fully aware of the said agreement as apart from the fact that Respondent No. 4 was a party therein, he was a real brother of Respondent No. 2 the attorney who executed the said sale-deed. With these averments, he sought specific performance of the said agreement. The Respondents No. 2 and 3 in their written statement alleged that it was the Respondent No. 1 who was guilty of breach of the terms of the said agreement and did not arrange the balance amount despite the fact that he was approached on several occasions and ultimately the Respondent No. 4 was asked to join anyone else alongwith him and upon his asking, the land was sold to Respondent No. 4 and the appellants. The appellants in their written statement claimed to be bona fide purchasers for value and without notice. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 23.10.1995. A first appeal filed by the appellants was dismissed by a learned ADJ, Kasur, on 8.5.1999.
Mr. Jehangir A. Jhoja, Advocate/learned counsel for the appellants contends that the agreement sought to be performed was wholly void in the absence of permission to be granted by GHQ in terms of Para-11 of the West Pakistan Border Area Regulations, 1959. Further contends that the respondent did not even assent in the witness box that his clients were aware of the agreement and as such the specific performance could not be ordered against his clients in terms of Section 27(b) of the Specific Relief Act, 1877. He has also tried to argue that the agreement had not been proved and the suit was collusive between the Respondent No. 1 on the one hand and the remaining respondents on the other. Rana Muzaffar Hussain, Advocate/learned counsel for the contesting Respondent No. 1 contends that the absence of the said permission would not affect the validity of the agreement as the agreement itself does not contain any such condition. Further contends that, in any event, the land had, in fact, been sold to the appellants and the said bar would not be applicable as the specific performance has been ordered against the appellants who are the subsequent purchasers and whose case it is that they have purchased the land with the permission of the GHQ from the original allottee. According to him, notwithstanding the absence of assertion as to knowledge in the witness box, the circumstances apparent on the face of the record do go to support the findings recorded by the learned Courts below in the matter of bona fide purchase.
I have gone through the trial Court records, with the assistance of the learned counsel for the parties. I have already reproduced above the relevant contents of the pleadings of the parties. A specific denial of the agreement is not spelt out from the written statements filed by the two sets of defendants. Be that as it may, I find that the learned trial Court framed Issues No. 1 and 2 calling upon the Respondent No. 1 to prove the execution of the said agreement. The said agreement was produced as Ex.P. 1. Muhammad Anwar Joya is the scribe who has stated that he has written Ex.p.1 under instructions of Muhammad Yousaf, the general attorney of the vendor. He was not even cross-examined by any of the appellants. PW-2 is Zahoor Khan, a marginal witness, of the agreement while PW-4 is Sohrab Khan Respondent No. 1. Having gone through the said evidence, I am satisfied that execution of the agreement and payment of amount there-under had duly been proved by the Respondent No. 1. I may further note here that the said Muhammad Yousaf, Respondent No. 2, appeared as DW-1 to state without any demur that agreement was entered into. He, however, stated that only Rs.45,000/- were paid and Rs.30,000/- were not paid. He was confronted by the learned counsel for the Respondent No. 1 with Ex.p.1 and he admitted its execution. He further admitted that Rs.45,000/- were received by the vendor while Rs. 30,000/- were paid to him and only Rs. 25,000/- was the balance. Now he was also cross-examined by the learned counsel for the appellants. Not a single question was put to challenge that no agreement was entered into or that the amount was not received.
Now coming to the said contention of the learned counsel for the appellants, he has placed reliance on a judgment dated 23.1.1993 of the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 804/90 titled "Muhammad Sharif v. Zafar Khan and other." I have gone through the said judgment, A suit brought for specific performance of an agreement to sell the land located in the Border Area was dismissed by the learned trial Court who instead ordered return of the amount paid under the agreement. A learned ADJ dismissed the first appeal on 28.10.1987 while this Court dismissed RSA No. 55/88. I may reproduce para-9 of the said judgment hereunder:--
"9. In our view, since the sale agreement itself provided for the requisite permission, the suit could not have been decreed without proving that the permission was required. We are, therefore, not inclined to interfere with the judgments of the Courts below. However, we may observe that in case the appellant succeeds in obtaining permission of the general headquarters now in terms of above Clause (11) of the Third Schedule to M.L.R. 9, he will have fresh cause of action to seek the enforcement of the sale agreement."
Now it has already noted by me above that there is no such term in the agreement Ex.P.1. However, the parties in the course of evidence appeared to be ad idem that such a permission was required and the performance was postponed because the said permission had not been obtained.
Now vide Section 11(iii)(b) of the West Pakistan Border Area Regulations, 1959 (Punjab Amendment) Ordinance, 1981 (III of 1981), the following Condition No. 11 was added in Schedule-III to the West Pakistan Border Area Regulations, 1959:
"11. The allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without the permission of the general Headquarters."
Now upon a plain reading of the said penal condition, the same would be applicable in the matter of the alienation by an allottee. In the present case, admittedly, the said allottee i.e. Respondent No. 3 has sold away the land to the appellants and Respondent No. 4 and it is everybody's case that it has been sold with the permission of GHQ. In terms of Section 27(b) of the Specific Relief Act, 1877. specific performance can be enforced against a person claiming under a party to an agreement of a title arising subsequently to the contract. To my mind, the said condition would not be applicable at all. Apart from this, a bare reading of the said agreement EX.P. 1 in juxta position to the registered sale-deed in favour of the appellants and Respondent No. 4 (Ex.P.2) would show that the permission was obtained by the said vendor to sell the property in the manner stated in the agreement. It is the case of the vendor that Respondent No. 4 was called upon to substitute the Respondent No. 1 by anyone else he wants and accordingly the sale-deed was executed in favour of the said Respondent No. 4 and the appellants. To my mind, the said permission would fully cover the alienation in favour of the Respondent No. 1 as well in case of enforcement of the said agreement against the appellants.
7 Now coming to the question of bona fide purchase, whereas in the plaint it was stated by the Respondent No. 1 that the appellants were fully aware of the agreement, in his statement as PW-4, he proceeded to state as follows;--
Now Muhammad Hussain appellant appeared as DW-4 and did state in his examination-in-chief that he was not aware of the agreement in favour of Sohrab Khan Respondent No. 1 when he purchased the land.
Now normally in view of the above statements made by the appellants, on the one hand and Respondent No. 1 on the other, the burden imposed by Section 27(b) of the Specific Relief Act, 1877, stands discharged as held in the cases of Abdul Haque and others v. Shaukat Ali and 2 others (2003 SCMR 74) and Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25). However, in the circumstances reflected in the pleadings as well as evidence on record, the findings recorded by the learned Courts below that the appellants were aware of the agreement are not liable to interference by this Court in this second appeal.
Now as noted by me above, admittedly, Respondent No. 4 was a party to the agreement. He is the real brother of Muhammad Yousaf Respondent No. 2 who was the general attorney of Muhammad Ramzan Respondent No. 3 who executed the agreement Ex.p.1 in favour of his said brother and Respondent No. 1 and also sale-deed Ex.P.2 in favour of the said Respondent No. 4 and the appellants. Now it is in his pleadings that the Respondent No. 4 was called upon to procure the vendees to substitute Respondent No. 1 in the said agreement and accordingly the sale-deed was executed and got registered in favour of the appellants and Respondent No. 4. I have already noted above that the terms recorded in the said agreement Ex.p.1 and the said Ex.P.2 are verbatim copies of each other. Now in the course of his cross-examination, on behalf of the appellants, it was suggested to him and he admitted that the contents of the written statement filed by him are correct. Now no explanation is coming forward on the record as to why Respondent No. 4 was joined in the matter of said sale (Ex.P.2) and more particularly as to what was the basis of the sharing of the land sold to the said vendees. It happens to be in exact accord with the contents of the said agreement Ex.p.1. In the said circumstances, it cannot be said that the learned Courts below have committed any error of law while disbelieving the said plea of the appellants. No other point has been urged. The RSA is dismissed but without any orders as to costs.
The records of the learned trial Court be remitted back immediately.
(S.A.Sh.) RSA dismissed.
PLJ 2007 Lahore 984
Present: Muhammad Muzammal Khan, J.
Dr. ALTAF AHMED--Petitioner
versus
Mst. NEELOFAR NAZNEEN and another--Respondents
W.P. No. 228 of 2006, decided on 14.2.2007.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage on the basis of Khula--Ex-parte decree--Provisions of--Assailed--Constitutional petition--Held: Family Court after pronouncing divorce, noted that reconciliation proceedings have failed through presence of respondent was not marked in this order yet after granting her the prayed decree, there was no occasion to hold the reconciliation proceedings and that too, in her absence--Ex-parte decision is unlawful being opposed to the provisions of S. 10(4) of the Family Court Act, 1964--Suit would be deemed to be pending and would be decided by undertaking fresh pre-trial reconciliation proceedings between the spouses in the real spirit of law applicable--Petition accepted. [Pp. 986 & 987] A, B & C
Mr. Abdul Ghafar Khan, Advocate for Petitioner.
Respondent No. 1 already exparte.
Date of hearing: 14.2.2007.
Order
Instant Constitutional petition assailed the judgment/order dated 28.9.2005 passed by the learned Judge Family Court (Respondent No. 2) to be declared illegal, void and of no legal consequence, whereby Respondent No. 1 was granted decree for dissolution of her marriage on the basis of "khula" and the rest of her claim regarding dower amount, the issues were framed.
Rs. 25,000/- which is said to have been fixed at the time of Nikah. Petitioner did not appear before the learned Judge Family Court, cognizant of the suit whereupon he was proceeded against ex-parte and was recalled on application in this behalf on 28.9.2005. The same day Respondent No. 1 was granted decree for dissolution of her marriage on the basis of "khula" by invoking the provisions of Section 10(4) of the Muslim Family Courts Act, 1964 and after framing of issues, the case was fixed for evidence of the Respondent No. 1 regarding his entitlement to the decree for dower amount. Petitioner being aggrieved of the decree for dissolution of marriage dated 28.9.2005 filed instant Constitutional petition with the relief noted above. Respondent No. 1 inspite of her service through publication in daily newspaper "Dawn" dated 28.2.2006 opted not to appear/contest this petition and was consequently ordered to be proceeded against ex-parte.
"Order
The plaintiff has filed a suit for dissolution of marriage on the grounds of cruelty, hatred and on the basis of Khula. So, the suit of the plaintiff is decreed to the extent of dissolution of marriage.
Reconciliation proceedings have been failed. From the divergent pleadings of the parties, following issues are hereby framed:--
Whether the plaintiff is entitled to get a decree for recovery of dower amount? OPP
Whether the suit has been filed with mala fide intention? OPD.
Whether the plaintiff has got no cause of action against the defendant? OPD
Relief.
Now to come up for evidence of the plaintiff on 5.10.2005.
Announced 28.9.2005.
Judge
Family Court, Lahore."
The above-reproduced order revealed that the learned Judge Family Court (Respondent No. 2) after decreeing the suit of Respondent No. 1, in Para 1 of the order, after pronouncing divorce, noted that reconciliation proceedings have failed. Though presence of Respondent No. 1 was not marked in this order yet after granting her the prayed decree, there was no occasion to hold the reconciliation proceedings and that too, in her absence. On the day of order under attack, trial Court passed two orders, one in "Urdu" and the other in "English". Order in "Urdu" related to recall of ex-parte proceedings against the petitioner subject to payment of costs of Rs. 200/-, adjourning the case for reconciliation proceedings, as written statement had been filed. In this order as well, presence of learned counsel for Respondent No. 1 was marked but her own presence was not noted.
Parties were married on 22.9.1983 and they have four grown up children one of them is a student of graduation whereas the other is Medical Student. In these family circumstances of the petitioner, decision of the case in absence of Respondent No. 1 is not only unlawful being opposed to the provisions of Section 10 of the Family Courts Act, 1964 but is also highly deprecatable Scan of record and impugned judgment revealed that controversy between the parties was correctly decided in accordance with the law and the impugned order dated 28.9.2005 cannot be allowed to hold the field.
For the reasons noted above, instant petition is bound to succeed and is accordingly accepted. Judgment/order/decree dated 28.9.2005 passed by the learned Judge Family Court Lahore (Respondent No. 2) is declared to be void and non-existent in the eye of law, with the result that suit by Respondent No. 1 shall be deemed to be pending and shall be decided by undertaking fresh pretrial reconciliation proceedings between the spouses in the real spirit of the law applicable. Order of even date in Urdu, passed by the same Court, recalling the ex-parte proceeding against the petitioner will continue. There will be no order as to costs.
(M.S.A.) Petition accepted.
PLJ 2007 Lahore 987
Present: Fazal-e-Miran Chauhan, J.
Mst. PARVEEN BIBI--Petitioner
versus
SHAHAN MASIH and 2 others--Respondents
W.P. No. 902 of 2006, decided on 6.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 27--Constitution of Pakistan, 1997, Art. 199--Ejectment petition was dismissed by Rent Controller--During pendency of appeal application u/O. XLI, R. 27 CPC for permission to produce the certified copies of survey of property was accepted--Assailed--Held: Main stress of respondent was on survey form, alleged to have been signed by the petitioner but he failed to produce the record of Excise & Taxation Department to prove the document and Rent Controller rightly held that respondent failed to prove his case--Held: Any entry made in Excise & Taxation record do not prove ownership of rented premises or relationship of land-lord and tenant between the parties--Petition was allowed. [Pp. 989 & 990] A
NLR 1990 AC 352.
Pir S.A. Rashid, Advocate for Petitioner.
Mr. Muhammad Younas Chaudhary, Advocate for Respondent No. 1.
Respondents No. 2 and 3 are proforma Respondents.
Date of hearing: 6.2.2007.
Order
Brief facts of the case are that; Respondent No. 1 Shahan Masih, filed an ejectment petition against the petitioner regarding Property No. 428-K, Q-Block Sarai Dhobian Model Town Extension Scheme, Lahore, in which, the petitioner filed her written-statement denying the relationship of landlord and tenant. Issues were framed. Respondent
No. 1 produced three witnesses in his support, whereas, the petitioner also produced three witnesses. The learned Rent Controller dismissed the ejectment petition vide order dated 11.6.2004. Feeling aggrieved, Respondent No. 1 filed an appeal before the learned Additional District Judge. During pendency of appeal, an application under Order 41, Rule 27 C.P.C. for permission to produce the certified copies of survey of property was filed, which was accepted vide order dated 16.1.2006, and is being impugned through this writ petition.
(i) Gul Dad Khan vs. Rahim Shah (PLD 1978 Karachi 19).
(ii) Phool Muhammad vs. S. Hassan Arif Fatmi and 4 others (1981 CLC 1719).
(iii) Abdur Rehman and others vs. Abdul Qadir and others (1998 CLC 401).
(iv) Karachi Transport Corporation through Secretary and others vs. Mukhtar Begum and others (1998 SCMR 809)
(v) Muhammad Lehrasab Khan vs. Mst. Aqeela-un-Nisa and 5 others (2001 S.C.M.R. 338)
(vi) Mst. Nek Bibi and 8 others vs. Mst. Maryum Begum and 5 others (2003 MLD 702).
Conversely, learned counsel for Respondent No. 1 argues that; the admitted facts of the case are that Respondent No. 1 is owner of the property. The petitioner was put in possession by Respondent No. 1. The alleged agreement to sell dated 5.1.2000 was denied by Respondent No. 1, whereas, the survey was conducted by the Property Tax Department on 2.8.2000. The statement of the petitioner, being possession of the property was recorded by the Survey Team, wherein she stated that she is in possession as a tenant under Respondent No. 1, whereas, Respondent No. 1 by producing the certified copy of the survey report, discharged its burden and the onus shifted on the petitioner to prove otherwise. Further states that; evidence of Respondent No. 1 as AW-1, it was specifically stated that the petitioner had not paid the rent since January, 2000 and by producing survey form as additional evidence, produced on record, the petitioner is tenant of Respondent No. 1. Since, the petitioner failed to prove or discharged the burden in rebuttal was rightly ordered to vacate the premises by the learned lower Appellate Court.
I have heard learned counsel for the parties, perused the impugned judgment and the evidence on record. AW. 1 admitted that the rent was not paid in his presence. His main stress was on the survey from, alleged to have been filed by the petitioner. AW-2-Saddique Masih is a relation of Respondent No. 1, who stated that whereas, in the affidavit of it was written as under:--
Respondent No. 1 himself appeared as AW.3.
On the other hand, RW. 1 and RW. 2 supported the version of the petitioner/tenant-RW.3. She denied that she was put in possession as tenant or she had paid the rent to Respondent No. 1. She claimed the possession on the basis of agreement to sell. She denied her signatures on the form submitted to the Survey Team. The learned Rent Controller proceeded to hold that Respondent No. 1 failed to prove the relationship of landlord and tenant and dismissed ejectment petition. The main stress of Respondent No. 1 was on survey form, alleged to have been signed by the petitioner but he failed to produce the record of Excise & Taxation Department to prove the document and the learned Rent Controller rightly held that Respondent No. 1 failed to prove his case. It is settled law that any entry made in Excise & Taxation record do not prove ownership of rented premises or relationship of landlord and tenant between the parties. Reliance is placed on Mst. Jehan Ara, etc. vs. Dad Muhammad, etc. (NLR 1990 AC 352).
(M.S.A.) Petition dismissed.
PLJ 2007 Lahore 990
Present: Syed Asghar Haider, J.
SANAULLAH--Petitioner
versus
Mst. INAYAT BIBI--Respondent
C.R. No. 52 of 2007, heard on 30.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for damages in a criminal case--Proved innocent--Suit was dismissed--Appeal also dismissed--Assailed--Revisional jurisdiction--Held: Petitioner suffered right to unrestricted movement and liberty is the most precious right on individual has, the petitioner was incarcerated and kept in confinement for no fault of his, such alone entitles him to compensation. [P. 991] A
(ii) `Malice'--
----Meaning--Words and Phrases--Accordingly to stroud's judicial Dictionary, Malice, in common, means ill-will against a person but in its legal sense, it means wrongful act done intentionally without just cause or excuse webster terms it as the state of mind manifested by an intent to commit an unlawful act, a deliberate intention to commit the act--Petition allowed. [P. 992] B
Sardar Muhammad Ramzan, Advocate for Petitioner.
Mr. Ijaz Ahmed Khan, Advocate for Respondent.
Date of hearing: 30.3.2007.
Judgment
The petitioner filed a suit for damages against the respondent stating that the respondent lodged F.I.R. No. 333/03, under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Saddar Okara, he was arrested and later granted post arrest bail, he remained in confinement, after investigation the case was found false and cancelled. The petitioner's liberty was illegally interfered into with, he suffered mental torture, agony and irreparable loss to his reputation and honour for vindication he claimed damages in the sum of
Rs. 25,000/-. The respondent contested the suit by filing written statement, of the divergent pleadings of the parties issues were framed, the parties were put to trial and thereafter the suit dismissed. Aggrieved thereof the plaintiff petitioner filed appeal, which too was dismissed. Hence the present petition.
Learned counsel for the respondent vigorously defended the impugned judgment and submitted that there was no malice on the part of the respondent, the FIR was lodged in accordance with law and concurrent findings of fact cannot be interfered with, in the present jurisdiction.
Rs. 25,000/-, the F.I.R. was found false and therefore, he is entitled to recovery damages. He adverted to monetary losses in the sum of
Rs. 1,75,000/-, but was not put to cross-examination qua his assertion, thus the assertion stands proved. It stands admitted on record, that F.I.R. was lodged, the petitioner was arrested, he remained confined, the F.I.R. was found false and he was exonerated. The lower appellate Court adverted to these points but dismissed the appeal holding that there was no malice on part of the respondent/defendant. "According to Stroud's Judicial Dictionary, Malice, in common, means ill-will against a person, but in its legal sense, it mean wrongful act done intentionally without just cause or excuse. Webster terms it as the state of mind manifested by an intent to commit an unlawful act" a deliberate intention to commit the act. The F.I.R. was lodged out of venom and vengeance to avenge from the petitioner, the fall out of choice marriage of respondent Inayat Bibi's daughter with Muhammad Rafique, who purportedly was a relative of the petitioner. The respondent while appearing as D.W. 1 affirmed the marriage of her daughter with Muhammad Rafique and also averred a specific role to the petitioner which later was found false and he was exonerated, therefore, malice is evident from the contents of the F.I.R. This has been further affirmed by the petitioner while appearing as P.W.1. All this vital, significant and precious evidence was concurrently not considered by the Courts below. Further they also failed to note the effect of agony and trauma the petitioner suffered, right to unrestricted movement and liberty is the most precious right an individual has, the petitioner was incarcerated and kept in confinement for no fault of his, this alone entitles him to compensation. Both Courts below ignored all material evidence in this context thus there is misreading of evidence and thereby both the Courts failed to exercise jurisdiction vested in them. Resultantly, this petition is allowed, judgment and decree of the trial Court dated 2.2.2006 and the judgment and decree of the lower appellate Court dated 22.5.2006 are set aside and the suit decreed as prayed for, the parties to bear their own costs.
(M.S.A.) Petition allowed.
PLJ 2007 Lahore 992
Present: Syed Asghar Haider, J.
SADIQ ALI and 13 others--Petitioners
versus
Mst. NAHEED KAUSAR and 3 others--Respondents
W.P. No. 19427 of 2001, heard on 30.3.2007.
Constitution of Pakistan, 1973--
----Art. 199--Limitation--Petitioners review application was dismissed by respondent on the ground of limitation holding that application was barred by 2 years 6 months and 24 days--Assailed--Held: Question of limitation is a mixed question of law and facts and therefore entails inquiry and evidence for which adequate opportunity should have been granted to the parties, this was not done. In case of fraud, suspicious and collusive transactions, remedial measure for correction should be readily invoked, as fraud and misrepresentation vitiate the most solemn of transactions--No amount of lapse of time can sanctify such a transaction, in fact, on first availability opportunity such transaction should be set aside and any illegal gains reversed--Petition allowed. [Pp. 993 & 994] A & B
PLD 1970 Lah. 614 ref.
Mr. Shamim Hussain Bokhari, Advocate for Petitioners.
Ch. Anees-ur-Rehman, Advocate for Respondents.
Date of hearing: 30.3.2007.
Judgment
The dispute pertains to agricultural land measuring 136 kanals 3 marlas, situated in Mauza Kala Bali, Tehsil and District Jhang. It was owned by Salehoon, he transferred this land to his son Akhtar Abbas (Respondent No. 2) vide gift Mutation No. 419 dated 20.3.1980. Thereafter Akhtar Abbas, sold this property to different persons including the petitioners. Later Naheed Kausar and Kaneez Fatima, sisters of Akhtar Abbas, filed a Review Application, challenging Mutation No. 419 dated 20.3.1980. The Deputy Commissioner/Collector, Jhang, dismissed the same on 17.1.1993. Aggrieved thereof, they filed appeal before the Commissioner, Faisalabad Division, which was also dismissed on 2.4.1995. Thereafter they filed Revision Petition No. R.O.R. No. 1548/1995 before the Respondent No. 4 wherein, Akhtar Abbas, made a conceding statement, accepting the claim of his sister, hence, the revision petition was allowed and the stated mutation set-aside. The present petitioners gained knowledge in this respect on 17.7.2000, they applied for copy, it was provided to them on 27.7.2000. Thereafter, they filed Review Application No. 140/2000, before the Respondent No. 4, it was dismissed, on the ground of limitation, holding that review application was barred by 2 years 6 months and 24 days. The petitioners are aggrieved of this Order and hence the present petition.
The learned counsel for the petitioners contended that the petitioners, were bona fide purchasers with consideration and the disputed land was sold to them by a registered sale-deed on 26.5.1981, therefore, the conceding statement of Akhtar Abbas, for annulment of Mutation No. 419, is of no consequence, as he was not owner of the disputed property at the time, when he granted concession, the consent is mala fide and amounts to fraud and misrepresentation, the order was obtained collusively to deprive the petitioners of valuable property. Even otherwise, the petitioners were proper and necessary party to the proceedings therefore, no order to their detriment could be passed without hearing them, the mutation was challenged after 16/17 years of sanction, therefore, it could not be reviewed, being barred by influx of time.
The learned counsel for the respondents vigorously supported the impugned order and raised issue qua, the maintainability of petition, he emphatically stated the remedy if any is before the Courts of plannery jurisdiction and findings of fact cannot be interfered into with, in the constitutional jurisdiction. To fortify his contention, he relied on (1968 SCMR 842) "Lal and others versus Mian Dad and another"
I have heard the learned counsel for the parties and perused the impugned order.
It is clear from record that Akhtar Abbas became owner of the disputed property vide Mutation No. 419 dated 20.3.1980, he thereafter sold the disputed land to different persons including the petitioners on 26.5.1981. Therefore, he was not owner of the disputed land after this date, the petitioners had acquired valuable rights in this property and stepped into his shoes, thus his consent qua annulment of mutation is of no consequence. Further no action, to petitioners determent, could be taken without hearing them, this was not done, thus they have been condemned un-heard. This is violative of rules of natural justice and therefore, cannot sustain. The Respondent No. 1 clearly concealed material and relevant facts by not disclosing that he was not owner of the property in dispute, and had transferred it to the petitioners. Further Akhtar Abbas had succeeded before the D.C. and the Commissioner in defending Mutation No. 419 dated 20.3.1980, therefore, it remains a mystery as why he conceded to the claim of his sisters, after gaining this momentous advantage, this itself casts serious doubts qua his concession, in fact it gives credence to the petitioners assertion that annulment of Mutation No. 419, was collusive and fraudulent.
The petitioners had stated in un-ambiguous and clear terms, that they gained knowledge of the purported transaction, on 17.7.2000, made application to obtain copy, which was delivered to them on 27.7.2000, they filed Review Application No. 140/2000 on 31.7.2000. therefore, prima facie they challenged the transaction immediately upon gaining knowledge, well within the period of limitation. There is absolutely no material on record to controvert these assertions, the question of limitation is a mixed question of law and fact and therefore entails inquiry and evidence for which adequate opportunity should have been granted to the parties, this was not done. In cases of fraud, suspicious and collusive transactions, remedial measures for correction should be readily invoked, as fraud and misrepresentation vitiate the most solemn of transactions, no amount of lapse of time, can sanctify such a transaction, in fact, on first availability opportunity such transaction should be set-aside and any illegal gains reversed. The Respondent No. 4 was adequately equipped and armed in this regard. (PLD 1970 Lahore 614)" Muhammad Iqbal versus S.A.M. Khan, Member, Board of Revenue West Pakistan Lahore and 3 others". The impugned Order therefore, is not in consonance with law and the principles of natural justice, thus, cannot sustain. The argument of the learned counsel for the respondent that the matter be referred to the Courts of plannery jurisdiction for adjudication is devoid of rationale as the lapse was committed by Respondent No. 4, therefore, he is bound to rectify and correct it, if proved. The precedent referred to is in-applicable to the present facts and is therefore distinguishable.
(M.S.A.) Petition allowed
PLJ 2007 Lahore 995
Present: Muhammad Sayeed Akhtar, J.
MUHAMMAD IJLAL KHAN--Petitioner
versus
DIRECTOR (PROGRAMME) CIVIL SERVICES ACADEMY, WALTON, LAHORE and 6 others--Respondents
W.P. No. 18092 of 2005, heard on 25.5.2007.
Constitution of Pakistan, 1973--
----Art. 199--Service matter--CSS Examination--Requirements of Public Service Commission--To appear before Central Medical Board for medical examination--Declared over weight--Petitioner failed to appear again before Medical Board--Memorandum order--Declared unfit due to over-weight and severe obesity--Appeal was forwarded to ministry of health by Medical Board--Medical Board was constituted--Medical report was assailed--Validity--Over-weight--Physical defect--Whether or not it is likely to interfere with efficient performance of duties--Held: Opinions of two Boards do not reveal anything to such effect nor there is any finding that condition is remediable or not--High Court is not pursuaded to take a different view--Petition was allowed. [P. 998] A
Sh. Shahid Waheed, Advocate for Petitioner.
Mr. Asad Munir, DAG with Asim Akram, Advocate for Respondent No. 4.
Date of hearing: 25.5.2007.
Judgment
The petitioner appeared in the CSS Examination, 2004 under Roll No. 3767 and qualified the same. The Public Service Commission required him to appear before the Central Medical Board for medical examination at Medical Centre for Federal Government Servants, Lahore. He appeared before the Central Medical Board on 26.5.2005 alongwith his medical reports. On appearance, the Federal Public Service Commission communicated the report of the Medical Board to him on 13.6.2005, declaring him over weight by 25 Kgs. He was further advised as follows:
"In case of over weight/under weight he is advised to reduce/gain his weight as the case may be. He will be required to appear before the Central Medical Board alongwith expert's opinion report on the date intimated to him later on."
The Federal Public Service Commission announced the result of the Competitive Examination 2004 on 1.7.2005 and placed him at S. No. 92 of the Merit List. The petitioner was again asked to appear before the Central Medical Board Karachi, which he did on 20.8.2005. The Federal Public Service Commission vide Memorandum dated 20th August, 2005, communicated to the petitioner that "he has been declared unfit due to gaining weight instead of reducing and severe obesity". The petitioner preferred appeal before the Appellate Medical Board. His appeal was forwarded by the Public Service Commission to the Ministry of Health for constitution of Appellate Medical Board. The petitioner was directed to join civil service Academic by the Director, Programme, Civil Service Academy Walton Lahore on 10.10.2005. He was examined by the Appellate Medical Board on 4.10.2005, the report reads as under:
"The candidate was examined by the Appellate Medical Board. His height is five feet eight inches and his weight is 122 Kg. without clothes was just one underwear. His waist circumference is 132 c.m. and he has not shown any tendency of reducing weight. His BMI is 64.2 Kg/m. He is suffering from Malignant Obesity. He is at risk of developing all complications attributable to obesity. He is declared "UNFIT".
The medical reports have been assailed in this petition. Petitioner was asked to join the civil Service Academy on 10.10.2005 for training. He attended the 33rd Common Training Programme successfully.
Learned counsel for the petitioner contends that according to Rule 9 of the competitive Examination Rules, a candidate must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties. It was urged that the report of the Medical Board or that of the Appellate Medical Board does not reveal that the petitioner has a physical defect likely to interfere with the discharge of his duties. Mere over weight is not a defect which is likely to interfere in the efficient performance of his duties. He urges that even otherwise the obesity and over weight are curable/reversible. It was maintained that at any rate vide Notification dated 12th April, 2007, the petitioner's probationary period has been terminated with effect from the said date and he has been confirmed. He cannot be sent home at this stage. The respondents are estopped from challenging the fitness of the petitioner. Reliance was placed on 2003 PLC (CS) 1161.
Conversely learned Deputy Attorney General and counsel for the Central Board of Revenue submit that the petitioner has been declared unfit by the two medical Boards, their opinion cannot be substituted by this Court. The conduct of the petitioner is contumacious and that of definance. He instead of reducing the weight added 5 Kgs. to it. Further submitted that it is the discretion of the Federal Government to reject any unfit candidate who is declared so by the Medical Board. It is also maintained that no ulterior motive has been alleged against either of the Medical Board.
I have perused the record and considered the arguments of the learned counsel for the parties. Para-9 of the Rules regulating the conduct of the Competitive Examination, 2004 reads as under:
"A candidate must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his/her duties. A candidate who (after such medical examination as Government or the appointing authority, as the case may be, may prescribe) is found not to satisfy these requirements, will not be appointed.
Para 24 of the same rules is also reproduced:
"When any defect is found it must be noted in the certificate and the medical examiner should state his opinion whether or not it is likely to interfere with the efficient performance of the duties which will be required of the candidate if the condition is remediable by operation it should be so stated."
The afore-referred Rule came up for consideration in a similar case Farrukh Bashir vs Federal Public Service Commission, Islamabad through Secretary and 2 others (Supra) in which may learned brother Syed Jamshed Ali, J., (as he then was) observed as under:
"To my mind to be medically fit or unfit is one thing and to be unfit for efficient discharge of duties is quite another. A common feature of the cases of Dr. Kashif Bashir and Farrukh Bashir is that the Central Medical Board or the Appellate Board did not record their opinion that the defects noted by them were likely to interfere in efficient discharge of duties as required by Regulation No. 24. The aforesaid regulation, on a bare reading shows that it is mandatory. There is an apparent wisdom in it. A candidate who has successfully competed for the CSS Examination should not be eliminated unless the defect is of such a nature which is likely to interfere with the efficient performance of the duties by an officer."
It was further observed that:
"The question was whether excess weight alone could be a disqualifying factor. According to the opinion of Civil Surgeon expressed before this Court weight alone did not stand in the way of efficient performance of the duties. It may also be noted that the regulations only provide for the minimum weight as 43.5 kg and not the maximum weight which was otherwise capable of reduction. However, for the order proposed to be made, I am not expressing any final opinion on this question."
In para 17 of the said judgment, it was stated as under:
"Therefore, while declaring the three petitioner as unfit, the Central Medical Board did not comply with Regulation No. 24 which, as observed above, is mandatory and could not be left to the guess work as suggested by the learned Deputy Attorney General so as to deprive a successful competitioner of an opportunity of advancement in life. Noncompliance of the aforesaid regulation at least creates a doubt whether the Central Medical Board or the Appellate Board were only recording their opinion as to medical fitness or it necessarily included fitness for service in the Federal Government and benefit of doubt has to go to the candidates rather than to the Central Medical Board or the Appellate Board."
The question raised by the learned counsel for the respondents stands already answered before the said Bench. Nothing has been brought on the record to show that the over weight is a "physical defect likely to interfere with the discharge of his/her duties or "whether or not it is likely to interfere with the efficient performance of the duties". The opinions of the two Boards also do not reveal anything to this effect nor there is any finding that the condition is remediable or not. I am not pursuaded to take a different view. This petition, therefore, is allowed. The petitioner shall appear before the Appellate Medical Board to be constituted by the Federal Ministry of Health after three months of the passing of this order, the date for appearance before the Appellate Medical Board shall be duly intimated to him. The Board shall record his opinion in terms of para 24 of the Regulation.
(R.A.) Petition allowed.
PLJ 2007 Lahore 999
Present: Muhammad Muzammal Khan, J.
MUHAMMAD ASHRAF etc.--Petitioners
versus
METROPOLITAN CORPORATION, LAHORE through its
Lord Mayor, Lahore--Respondent
C.R. No. 1065/D of 1992, heard on 12.7.2007.
Municipal Administration Ordinance, 1960--
----S. 3(38)--Punjab Urban Rent Restriction Ordinance, S. 2(f)--"Rent" and "Rented land" defined in both the statutes--Teh Bazari Fee--Definition of the "rent" and "rented land" clearly depicts that rent is an amount lawfully payable in money or kind by a tenant or lessee for any land let separately for business/trade--Amount deposited would have been lawfully payable only when there had been creation of tenancy between the parties, which was never created--Such amounts cannot be termed as "rent" paid and the petitioner cannot be declared to be tenants of L.M.C.--Petitioners occupied the land under some lawful authority/permission of the respondents--Had the petitioners deposited the amount in-question towards "Teh Bazari" they might have been considered as licensee, but deposit by them is not towards "Teh Bazari Fee" and is in form of "fine"--Decree could not have been issued--Same involved declaration of the petitioner being in possession as "tenants"--No case for interference in revisional Constitutional jurisdiction made out--Revision dismissed. [P. 1002] A
Mian Hamid-ud-Din Kasuri and Mr. M. Iqbal Cheema, Advocates for Petitioners.
Khawaja Muhammad Afzal and Mr. Muhammad Usman Arif, Advocates for Respondent.
Date of hearing: 12.2.2007.
Judgment
This judgment proposes to decide instant Civil Revision as well as Writ Petition No. 4750 of 1998, as both of those involve similar questions of law/facts; require alike determination and are directed against the same set of respondents. Civil Revision challenged the judgments/decrees dated 9.5.1991 and 20.6.1992 passed by the learned Civil Judge, and the learned Additional District Judge, Lahore, whereby petitioners' suit was decreed but on appeal the same was dismissed, respectively. The writ petitioners claimed themselves to be tenants under the respondents and prayed issuance of writ, declaring the act of demolishing petitioner's Khokhas/Cabins, as illegal and violative of the law.
Succinctly, relevant facts are that both the revision petitioners and the writ petitioners are doing their respective business in temporary Cabins in form of "Khokhas" placed on Municipal Land adjoining the old University Compound Wall, outside Anarkali Bazar, Lahore, for the last 24 years purportedly as tenants under the then Lahore Municipal Corporation (LMC). The exact place of Cabins/Khokhas of the petitioners is over a Drain/Nala flowing in between the footpath and the wall of the University and LMC treated the petitioners occupants in illegal possession thereof and threatened to remove the unauthorized constructions which led to filing of a civil suit for permanent injunction by the revision petitioners, wherein they pleaded that they were tenants of the respondents and had been paying rent for the user of LMC's land and their this status was being recognized since their occupation alongwith the other persons doing business in the same capacity in the adjoining parts. Revision petitioners consequently prayed for issuance of a decree for permanent injunction against the respondents restraining them from interfering in their possession/business or from resorting to their dispossession from the Khokhas/Cabins, without due process of law. Alike claim was put forth by the writ petitioners.
Respondents being defendants in the suit filed by the revision petitioners, contested the same by filing their written statement and graded the petitioners as unauthorized occupants/encroachers over the Municipal Land. Respondents averred that the petitioners were liable to be removed under the law applicable. Controversial pleading of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, seized of the suit, out of his appraisal of evidence, concluded that petitioners were doing their business over the land of respondents as their licencees who can charge fee from them and can only eject after notice/hearing of the petitioners, under the Municipal Laws, vide judgment/decree-dated 9.5.1991.
Though respondents did not appeal against the judgment/decree of the trial Court yet the petitioners making grievance that they should have been declared as tenants of LMC, filed an appeal before the learned Additional District Judge, which was dismissed and the petitioners were held to be unauthorized occupants of Municipal Land and LMC was permitted to remove them forcibly vide appellate judgment/decree dated 20.6.1992. Revision petitioners then filed titled revision petition assailing both the judgments of the two Courts below, pending which, writ petitioners also invoked constitutional jurisdiction of this Court with the relief noted above. These petitions were admitted to regular hearing and after completion of record, have now been placed for final determination.
Learned counsel for the revision petitioners submitted that in absence of any appeal or cross objections by the respondents, against the decree dated 9.5.1991 passed by the trial Court, findings therein on Issue No. 5 grading the petitioners as licensees could not have been reversed on appeal of the petitioners. It was further submitted that petitioners were proved to be tenants of LMC but both the Courts below ignoring documentary proof in support of it, erroneously held otherwise. It was further emphasized that status of the petitioners over the land in question could not be determined, as no issue on this point had been framed. Two receipts issued by LMC, showing receipt of rent from the petitioners, were heavily relied in support of the stance that they should have been declared tenants and consequently they prayed that their suit should have been decreed, as filed. Learned counsel for the writ petitioners adopted the arguments of the learned counsel for the revision petitioners and insisted that writ may be issued, as the writ petitioners are also doing their business at the same place in the same capacity, for the last more than a period of 2 decades.
Learned counsel for the respondents refuted the arguments of the petitioners and supporting the impugned appellate judgment, urged that petitioners did not produce any evidence about creation of tenancy/issuance of license by the respondents, thus their suit was rightly dismissed by the Court of appeal. According to him, petitioners were illegal occupants of Municipal Land and they deserved to be evicted/removed as they have also occupied the footpath in front of their Khokhas/Cabins, which is also creating hindrance in smooth running of the traffic/parking of the vehicles. It was further contended that manoeuvred irregular receipts relied by the petitioners were of no value because those have no backing of any proof of tenancy thus those were rightly ignored by the appellate Court.
I have heard the learned counsel for the parties and have examined the record. Undisputedly, there is no proof of letting out the Municipal Drain to any of the revision petitioners or the writ petitioners, so as to cover the same and place their khokhas/cabins. Petitioners did not produce any rent deed; order of any competent authority/officer creating tenancy inter parties or receipts of regular deposit of rent by them. They have simply relied on 2 deposit vouchers Ex.P. 14 &
Ex. P.15, one of those relates to the year 1972 and the other is about the year 1973 and in Column of particulars of payment of those voucher, some Ministerial Staff entered/graded the amount of Rs. 22.50 as rent. All the other receipts produced by the petitioners i.e. Ex. P. 12, Ex. P.13 and Ex. P. 16 to Ex. P. 18 defined the deposit as "Fine". The deposits relied on the first hand are not regular and on the other hand bulk of those are towards "Fine" which denote that petitioners being in illegal occupation, were being imposed fine by the LMC. Reverting to their status of tenants on the basis of Ex. P.14 and Ex. P.15, on the basis of entry therein regarding the amount deposited as "Rent" they cannot be termed as tenants unless this entry had some backing of rent note or some order by the concerned official of the LMC. The then Municipalities were being governed by the Municipal Administration Ordinance, 1960 which through its Section 3(38) defined rent as below:--
(38) "rent" means whatever is lawfully payable in money or kind by a tenant or lessee on account of the occupation of any building or land".
Besides this definition of "Rent" the "rented land" has been defined in Section 2(f) of the Punjab Urban Rent Restriction Ordinance, 1959, as :--
"rented land" means any land left separately for the purpose of being used principally for business or trade".
The above reproduced definitions of the "rent" and "rented land" clearly depict that rent is an amount lawfully payable in money or kind by a tenant or lessee for any land let separately for business/trade. The amount deposited through Ex. P.14 and Ex. P.15 would have been lawfully payable only when there had been creation of tenancy between the parties, which was never created hence, these amounts cannot be termed as "rent" paid and the petitioners cannot be declared to be tenants of LMC. Similarly, file is absolutely thirsty of the proof that the petitioners occupied the land under some lawful authority/permission of the respondents. Had the petitioners deposited the amount in question towards "Teh Bazari Fee", they might have been considered as licensees but deposit by them is not towards "Teh Bazari Fee", and is in form of "Fine". In this state of evidence on the file, decree for permanent injunction could not have been issued, as the same involved implied declaration of the petitioners being in possession as tenants.
Reliance of the petitioners on the noting by the Administrator LMC dated 27.1.1975, to evolve some policy instead of ejecting the petitioner straightway is of no avail because it was his personal view and did not bind the respondents who had neither created any tenancy nor had granted any license to occupy its Drain/Nala. It goes without remarking that permitting the petitioners to continue with their illegal possession would amount to authorize every citizen to encroach upon public properties and to maintain suit like the one under discussion but law does not favour this course. As regards decision about status of petitioners over the land in their occupations or regarding nature of their possession, without framing of any specific issue to this effect, the controversy was covered by Issue No. 5 already framed. Law with respect to framing of issues is firmly settled by the judgment of the Apex Court in the case of Fazal Muhammad Bhatti and another Versus Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) that where parties enter the trial of the case with all awareness of dispute amongst them and consciously lead their respective evidence, framing and non framing of issues and placing of onus of proof of those, looses importance. Petitioners in this case never raised any such objection before the Courts below thus it cannot be entertained at revisional stage. Scan of impugned appellate judgment revealed that controversy was correctly put to rest on the basis of evidence on the file, without committing any error of law/facts.
As regards objection of the petitioners that appellate Court could not have set aside the judgment passed by the trial Court on their appeal, in absence of any appeal or cross objections by the respondents, reference can be made to the provisions of Order XLI Rule-33 CPC which equipped the appellate Court to pass any decree or order which ought to have been passed or made by the Court of first instance, even where the appeal is as to part only of the decree impugned. I was not also persuaded to accept the contention of the petitioners, by relying on the "illustration" given beneath the above referred provision of law, as minute analysis of it, shows that the same is not exhaustive and goes against the case put forth by them. Since respondents were party before the Court of first appeal, it could decide the entitlement of the petitioners to decree for permanent injunction being licensees of LMC. The Court of first appeal is not only the Court of facts but enjoys the same jurisdiction as vested in the Court of first instance, by virtue of provisions of Order XLI Rule 33 CPC. Reliance by the learned counsel for the petitioners on the judgments by the Apex Court in CPs No. 887, 897, 888 & 895-L of 1999 dated 29.7.1999 and in the case of Soofi Muhammad Ishaque versus The Metropolitan Corporation, Lahore through Mayor (PLD 1996 Supreme Court 737) is of no help to the case of the petitioners because in both these precedent cases status of the petitioners therein, as tenants/licensees was admitted. In the judgment dated 29.7.1998 Metropolitan Corporation had leased out its part of land in favour of predecessor M/s. Kashif Zaheer and Parvaiz but in violation of lease agreement, their possession was disturbed on which their suit for damages to the tune of Rs. 2,00,000/- was decreed. In the other case of Soofi Muhammad Ishaque had occupied the site on the basis of "Teh Bazari Fee" till 4.12.1988 and thereafter on his application, tenancy rights were granted to him by the respondents, subsequently those were regularized on 15.7.1990 on payment of rent at the rate of Rs. 200/- per month. In this case, shop of the tenant Soofi Muhammad Ishaque was demolished leading to decree for an amount of Rs. 2,91,600/- in his suit for damages but petitioners were not equipped with any such regularized/granted status of tenant.
For the reasons noted above, no case for interference in revisional/constitutional jurisdictions of this Court was made out and consequently both the titled petitions are dismissed. Since the learned Additional District Judge, had granted the petitioner's time of 15 days to safely remove their structures, they are permitted one month time to under-take this exercise, meaning thereby that respondents will not take any action against the petitioners till the expiration of one month from the date this judgment is conveyed to them. There will be no order as to costs.
(M.S.A.) Petitions dismissed.
PLJ 2007 Lahore 1004 (DB)
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rahman and Mian Hamid Farooq, JJ.
MUHAMMAD ASHRAF SHAH and another--Appellants
versus
MULTAN DEVELOPMENT AUTHORITY through its DIRECTOR GENERAL, MDA, MULTAN and 2 others--Respondents
ICA No. 93 of 2006 in W.P. No. 1622 of 2001, heard on 17.1.2007.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Question of--Increasement in pension--Benefit was withdrawn by Authority--Principle of estopple--Maintainability--Appeal dismissed--Civil servants were granted increase in their pension by authority--Benefit was withdrawn by the authority--Withdrawal in the increase of pension was for a short span of time as the Authority again decided to adopt such notification for allowing 15% increase and such increase is also applicable to the appellants--Civil servants have admittedly started receiving the pension in accordance with 15% increase in pursuance of Authority--Civil servants have been receiving the increased pension without any objection and are continuing to receive it--Applicable--Held: Civil servants cannot agitate the matter any further--Court has examined the impugned order and held that the same does not suffer from any legal error thus--Appeal was dismissed. [P. 1006] A
Mr. Athar Rehman Khan, Advocate for Appellants.
Mr. Muhammad Amin Malik, Advocate for Respondents.
Date of hearing: 17.1.2007.
Judgment
Iqbal Hameed-ur-Rehman, J.--Through this Intra Court Appeal, under Section 3 of the Law Reforms Ordinance, 1972, the appellants have challenged the order dated 5.6.2006, whereby the learned Single Judge dismissed their Constitutional petition (W.P. No. 1622/01).
Brief facts giving rise to this appeal are that Appellant No. 1 Muhammad Ashraf Shah is a retired MDA employee, whereas Appellant No. 2 Mst. Shamim Akhtar is the widow of Ch. Abdul Khaliq Ex-MDA employee. They are receiving pension regularly on monthly basis from the office of the respondent MDA. The Government of Punjab through Finance Department's Notification No. FD. SR. III. 4. 72/00 dated 27.7.1999 granted increase in pension to the civil pensioners of Punjab Government w.e.f. 1.7.1999. The Authority/MDA Governing Body in its 35th meeting, held on 21.2.2000, adopted the said notification and the appellants were granted increase in their pension w.e.f. 1.7.1999. Subsequently, the Authority/MDA Governing Body in its 38th meeting, held on 6.8.2001, had withdrawn the benefit of increase in the pension payable to the appellants w.e.f. 1.10.2000. Against the said action of the respondent MDA Governing Body, the appellants filed W.P. No. 1622/01, which was dismissed by the learned Single Judge in Chamber, vide his order dated 5.6.2006. Hence this ICA.
It is contended by learned counsel for the appellants that the benefit of increase in the pension payable to the appellants after having become effective could not have been withdrawn. In this respect reliance is placed upon Director-General, Ordinance Service, General Head-quarters, Rawalpindi vs. Muhammad Abdul Latif (2003 SCMR 410). On the other hand, learned counsel for the respondent has contended that although the respondent MDA through its 23th meeting, held on 21.2.2000, had agreed to adopt the decision of the Government of the Punjab in terms of Punjab Government Notification dated 27.7.1999 w.e.f. 1.7.1999, but later on it transpired that the said decision of the Government of the Punjab had no binding effect on the respondent department being statutory body and it was for the respondent department to decide whether to increase the pension of its employees or not, keeping in view its financial resources independent of the said notification of the Government of the Punjab and since the financial position of the department was in crisis at the relevant time, therefore, increase in the pension was withheld through its subsequent meeting. The learned counsel further submits that however, despite withholding the increase in pension the amount already paid to the appellants was never withdrawn and that such withholding was for a short span of time as through its 42nd meeting, held on 9.8.2003, the respondent Authority had again decided to adopt the increase in pension w.e.f. 1.7.2003 and since the appellants are getting 15% increased pension.
We have heard learned counsel for the parties and perused the impugned order.
Admittedly, the appellants were granted increase in their pension w.e.f. 1.7.1999 by the Authority/MDA Governing Body/Respondent No. 1 in its 35th meeting, held on 21.2.2000, but the said benefit was withdrawn by the Authority/MDA Governing Body/Respondent No. 1 in its 38th meeting held on 6.8.2001. Withdrawal in the increase of the pension was for a short span of time as the Authority MDA Governing Body/Respondent No. 1 again decided to adopt the said notification of the Government of the Punjab for allowing 15% increase w.e.f. 1.7.2003 and the said increase is also applicable to the appellants. The appellants have admittedly again started receiving the pension in accordance with 15% increase in pursuance of 42nd meeting of the Authority. The appellants have been receiving the increased pension w.e.f. 1.7.2003 without any objection and are continuing to receive the same. The appellants by accepting the same have in fact acquiescent to the acts of the respondents and the principle of estopple would be applicable. The appellants in the circumstances, cannot agitate the matter any further.
We have examined the impugned order and find that the same does not suffer from any legal error thus we are inclined to maintain it.
In view of the above circumstances, the appeal is devoid of merits. Resultantly, this appeal is dismissed with no order as to costs.
(N.F.) Appeal dismissed.
PLJ 2007 Lahore 1006 (DB)
Present: Muhammad Muzammal Khan & Syed Hamid Ali Shah, JJ.
MUBASHIR KHAN--Appellant
versus
JAVAID KAMRAN alias JAVED IQBAL and 3 others--Respondents
RFA. No. 629 of 2001, heard on 7.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Evidence was closed and the suit for recovery was dismissed--Assailed--Respondents/defendants did not object to the adjournment pray--Law regarding adjournments without objection by opposing parties is firmly settled to the effect that in such cases, those should be adjourned under Rule 1 instead taking cognizance of such under Rule 3 of Order XVII CPC--Presumption of regularity/ correctness is attached to judicial proceedings which cannot be adjudged on mere affidavits--Only one opportunity of producing entire evidence granted subject to payment of costs--Appeal allowed.
[Pp. 1008 & 1009] A & B
1985 SCMR 585; 2004 SCMR 699 and 2004 SCMR 964, rel.
Mr. Abdul Majid Khan, Advocate for Appellant.
Ch. Muhammad Iqbal Javed Dhillon, Advocate for Respondents No. 1 to 4.
Date of hearing: 7.2.2007.
Judgment
Muhammad Muzammal Khan, J.--Instant first appeal is directed against the judgment/decree dated 25.6.2001 passed by the learned Civil Judge Gujranwala whereby evidence of the appellant was closed under Order XVII, Rule 3 CPC and his suit for recovery of
Rs. 37,00,000/- was dismissed.
Succinctly, relevant facts are that appellant filed a suit for recovery of Rs. 37,00,000/- against the respondents on 23.7.1995, which was contested by the respondents and out of controversial pleadings of the parties, issues were framed on 3.4.1996. Pending suit, Respondents No. 5 to 9 were impleaded as defendants to the suit vide order dated 9.2.1998 passed by the learned Senior Civil Judge. Suit, on administrative side was transferred to the Court of another learned Civil Judge who framed fresh issue on account of amendment in the pleadings, vide order dated 26.3.1998 and then on 1.4.1999 some additional issues were also framed. Case was being fixed for evidence of the appellant who had summoned through process of the Court, the Manager of the concerned Bank in order to prove the Cheque issued by Respondent No. 1, on the basis of which the appellant had filed his suit. Suit was once again transferred from the Court cognizant of the suit on administrative side on 4.5.2001. Parties appeared before the Transferee Court on 21.6.2001 where the case was taken up for recording of evidence, ignoring that some application for consideration/transfer of case had been moved before the learned District Judge, Gujranwala. Appellant's right to lead evidence was ultimately closed on 25.6.2001, as he failed to produce his evidence and thus punitive provisions of Order XVII, Rule 3 CPC were invoked and his suit was dismissed on account of lack of proof through judgment/decree of even date, impugned in this appeal. The appeal was admitted to regular hearing and after completion of record, the same has now been fixed for final hearing. Respondents in response to notice by this Court have appeared and were represented through their counsel.
We have heard the learned counsel for the parties and have examined the record. Appellant's suit had been adjourned from 21.6.2001 to the date on which his right to lead evidence in support of his case put forth in the plaint, was struck. Order dated 21.6.2001 is the most pivotal/crucial to determine/decide the legality or otherwise of invocation of provisions of Order XVII, Rule 3 CPC and this order reads as under:--
"21.6.2001 present parties counsel.
Plaintiff witnesses not in attendance. Request for adjournment made by the plaintiff counsel is acceded subject to payment of Rs. 500/- The case to come up on 25.6.2001 for recording the evidence of the plaintiff. This is last and final opportunity. No further time shall be extended."
The above reproduced interim order by the trial Court clearly depicts that learned counsel representing the respondents/defendants did not object to the adjournment prayed, probability for the reason that the case had been received by the Court, on transfer on the preceding date i.e. on 14.5.2001 and adjournment like one granted by the trial Court on 21.6.2001 would be deemed to be a routine adjournment and would not call invocation of provisions of Order XVII Rule 3 CPC inspite of the fact that the same had been granted subject to payment of costs. Law regarding adjournments without objection by the opposing parties is firmly settled to the effect that in such cases, those should be adjourned under Rule-1 instead taking cognizance of those under Rule-3 of Order XVII CPC. Reliance in this behalf can conveniently be made to the judgment of the Apex Court in the case of Syed Tasleem Ahmad Shah Versus Sajawal Khan etc. (1985 SCMR 585) wherein it was held that in absence of any objection by the plaintiff, it would not amount to grant time to the defendants at his request in terms of the provisions under discussion and the Court was not justified to invoke those, for closing evidence of the defendant. In this erstwhile judgment by the Honourable Supreme Court, earlier judgments in the cases of Moulvi Abdul Aziz Khan versus Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434) and Executive Engineer Peshawar versus Messrs Tour Mehmood & sons and 4 others (1983 SCMR 619) were graciously distinguished.
The trial Court had itself noted in the impugned judgment dated 25.6.2001 that appellant/plaintiff was not present in the Court which depicts that he was not called upon or afforded an opportunity of appearing in the witness box, as his own witness. It is also evident from the record that appellant's counsel was present in Court at the time of passing of impugned judgment but he was not required to produce whatever evidence oral/documentary available with him. The trial Court simply noticed the date of institution of the suit as 23.7.1995 and ignoring stages at which it was transferred on different occasions on administrative side and issues originally framed were re-cast and thereafter certain additional issues were framed, as noted in factual part of this judgment. The trial Court did not attend to the fact that Respondents No. 1 to 4 had also filed a separate suit for cancellation of documents relied in the plaint by the appellant and an application for its consolidation/transfer was sub judice before the learned District Judge where it was fixed for 29.6.2001 and pending this application, punitive action against the appellant was taken, in form of dismissal of his suit.
Learned counsel for the appellant though had attacked the impugned judgment/decree with the claim that his suit on 21.6.2001 was adjourned to 25.7.2001 and instead the same was taken up on 25.6.2001 and in support of this assertion he relied on affidavit but we are not ready to accept this submission as presumption of regularity/correctness is attached to judicial proceedings which cannot be adjudged on mere affidavits. Reliance in this behalf can be made by the Apex Court in the case of Muhammad Murad Abro versus The State through A.G. (2004 SCMR 699) Fayyaz Hussain versus Akbar Hussain and others and Fayyas Hussain versus Akbar Hussain and others (2004 SCMR 964). Likewise, his arguments of adjourning the case for evidence only for 4 days i.e. from 21.6.2001 to 25.6.2001 being improbable, has no subsistence in it, in view of clear proviso to Rule 1 of Order XVII CPC where under suit on reaching the stage of evidence was to proceed on day to day basis. Stance of the learned counsel for the appellant that since Manager of the Bank concerned had been summoned through Court and the appellant had already deposited the diet money/process fee of the summoned witnesses, the trial Court should have procured attendance of the witnesses under its own powers instead of unnecessarily penalizing the appellant, has legal worth in it, but there is proof before us to accept this assertion, especially when there is enough material on the file to negate the action taken by the trial Court. Scan of record and the impugned order/judgment revealed that inapplicable provisions of Order-VII Rule 3 CPC were incorrectly brought to non suit the appellant, thus the impugned judgment/decree is not sustainable, being opposed to law and we are inclined to grant the appellant, at least one opportunity for adducing his entire evidence subject to payment of costs to the respondents who have unnecessarily suffered for an act of the Court or that of the appellant.
For the reasons noted above, instant appeal is bound to succeed and is accordingly accepted. The impugned judgment/decree/ order dated 25.6.2001 are set aside, with the result that suit filed by the
PLJ 2007 Lahore 1010
Present: Syed Hamid Ali Shah, J.
TOWN COMMITTEE, KHARIAN--Appellant
versus
YOUNIS MASIH, etc.--Respondents
L.A. No. 311 of 2005, decided 6.10.2006.
Payment of Wages Act, 1936 (IV of 1936)--
----S. 17--Factories Act, (XXV of 1934), S. 2(i)--Industrial Relation Ordinance, 1969, S. 38(3-a)--Sanitory workers--Employed of Town Committee--Claim of extra wages--Double over time--Working on gazetted holidays--Maintainability--Barred by limitation--Claim was accepted--Assailed--Labour Court rejected the appeal--Revision petition--Payment of Wages Act, does not apply to Municipal Committee--Question of--Held: Municipal Committee or Municipal Administration does not fall within the definition of a factory and no manufacturing process is undertaken--Determination--Municipal Committee/Administration is not a factory, within the meaning of Factories Act, 1934--Workers entitled to over time payment--Extra payment made to the employees at once time or at time is taken benefit of and is alleged as an estoppel against the Committee but it carries no weight because such payment was made as bonus in order to compensate the employees--Bonus to employees for extra work cannot be claimed as of right--Impugned decision of Labour Court and authority being without jurisdiction is not legally sustainable and set aside--Petition was allowed. [Pp. 1011 & 1012] A, B, C & D
Dr. Ehsan-ul-Haq Khan, Advocate for Appellant.
Nemo for Respondents.
Date of hearing: 6.10.2006.
Order
42 sanitory workers, employed in Town Committee, Kharian, tiled a joint petition before the authority established under the Payment of Wages Act, claiming extra wages/double over time for working on gazetted holidays from 21.5.1995 to 31.12.1995. The petitioner contested the claim on various grounds; including the ground of maintainability of claim and that claim is barred by limitation. The authority accepted the claim at rate of Rs. 18,340.90 per worker and directed the appellant to deposit Rs.789003/-, within one month. The petitioner assailed the said order in appeal under Section 17 of the Payment of Wages Act, 1936. Learned Labour Court rejected the appeal through older dated 9.9.1998. The Order of the Labour Court is assailed through instant revision petition under Section 38 (3-a) of I.R.O. 1969. The revision on abolution of Labour Appellate Tribunal has now been transferred to this Court under the provisions of I.R.O. 2002.
Various opportunities were given to the respondents for their representation but they remained unrepresented. The petitioner's learned counsel was directed to effect service upon the respondents and in response thereto Younis Masih and Mushtaq Masih entered appearance. They were granted time to engage a counsel but have not turned up today. This is an old matter and cannot be kept pending for unstipulated period, the respondents are thus proceeded against ex-parte.
Learned counsel for the petitioner has contended that claim of the respondents is false and fictitious, barred by limitation and not maintainable before the authority under the Payment of Wages Act, 1936. Learned counsel in support of his claim, has referred to the case of "T.M.A. Faisalabad vs. Muhammad Saleem and others" (2006 T.D. (Labour) 147).
Admittedly, the respondents are employees of Tehsil Municipal Administration Kharian. The Act IV of 1936 applies to the persons employed in factory as defined in Section 2(1) of the Factories Act, 1934. Payment of Wages Act, does not apply to Municipal Committee or Municipal Administration. Hon'ble Supreme Court of Pakistan in the case of T.M.A. Faisalabad (supra) has held that:--
"The aforesaid definitions of factory' and manufacturing process', if minutely kept in view, would indicate that a
Municipal Committee or a Municipal Administration does not at all fall within the definition of afactory' and no manufacturing process' is undertaken therein or thereby. We would avoid rendering any further reasons or ground because the same are elaborately discussed in our judgment of Town
Committee Gakhar Mandi, supra. Once, it is determined that the Municipal
Committee/Administration is not afactory' within the meanings of Factories
Act, 1934, the employees thereof cannot by any stretch of reasoning, be held as workers specifically entitled to over time payment. Though some extra payment made to the employees at once time or at time is taken benefit of and is alleged as an estoppel against the Committee but it carries no weight because such payment was made as bonus in order to compensate the employees. The
Committee may, of its own accord pay as much bonus to the employees for any extra work but the same cannot be claimed as of right by the employees as is done by the workers working in a `Factory' defined by Factories Act, 1934."
(R.A.) Petition allowed.
PLJ 2007 Lahore 1012
Present: Syed Sakhi Hussain Bukhari, J.
Rana ZULIFQAR--Petitioner
versus
MARIYAM RAFIQUE--Respondent
W.P. No. 9751 of 2005, heard on 7.2.2007.
(i) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 7--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Talaq was pronounced--Revoked divorce--Notice of Talaq--Expiration of 90 days--Effective--Validity--According to S. 7 of Muslim Family Laws Ordinance, any man who wishes to divorce his wife shall as soon as may be after the pronouncement of talaq in any form give the Chairman notice in writing of his having done so--Held: Talaq unless revoked shall not be effective untill expiration of 90 days from the day on which notice is delivered to Chairman.
[P. 1014] A
(ii) Talaq--
----Expiry of 90 days--Validity--Petitioner could revoke Talaq before expiry of 90 days from the date on which he delivered notice to Chairman. [P. 1014] B
(iii) Talaq--
----Withdrawn Talaq--Legality--Chairman declared Talaq effective despite fact that according to his own order, husband had withdrawn/revoked notice Talaq--As such impugned order was illegal and liable to be set aside. [P. 1015] C
Mr. Abdul Salam Awan, Advocate for Petitioner.
Mr. Majid Hussain, Advocate for Respondent.
Date of hearing: 7.2.2007.
Judgment
In this Constitutional petition, the petitioner has prayed for setting aside order dated 25.5.2005 passed by Respondent No. 2 (Syed Moeen Arif Chairman, Arbitration Council, U/C No. 108 Gulshan-e-Iqbal, Allama Iqbal Town, Lahore).
Relevant facts for the disposal of this writ petition are that petitioner was married to Mst.
Marriam Rafiq (Respondent No. 1). He pronounced Talaq' and intimation was given to Respondent No. 2. However later on petitioner had withdrawn/revoked divorce (Talaq) and accordingly made statement before Respondent No. 2 on 13.12.2005.
The matter was resolved and parties started living in cordial manner. The parents of plaintiff were not happy over the reunion of the parties and they pressurized Respondent No. 2 to issue certificate regarding the effectiveness of notice ofTalaq'. Respondent No. 2 vide order dated 25.5.2005 declared that
`Talaq' has become effective. Hence this writ petition.
I have heard the arguments and perused the record.
As mentioned above petitioner was married to Mst. Marriam Rafiq (Respondent No. 1) and on 25.11.2003 he divorced her. He also sent notice of Talaq' to Respondent No. 2
(Chairman, Arbitration Council, U/C No. 108 Gulshan-e-Iqbal, Allama Iqbal Town
Lahore), who declared noticeTalaq' effective vide order dated 25.5.2005. The case of petitioner is that he had withdrawn/revoked notice of Talaq' on 13.12.2003, therefore, according to Section 7 of Muslim Family Laws Ordinance, 1961 Respondent No. 2 could not declare the same effective, hence impugned order is illegal, void and liable to be set aside. The impugned order shows that Respondent No. 2 received noticeTalaq' on 25.11.2003 and parties were summoned. The said order also shows that parties were summoned for 18.12.2003 but on 13.12.2003 petitioner submitted application before him (Respondent No.
2) that he had issued notice Talaq' due to misunderstanding and withdrew the same. However despite said application, Respondent No. 2 declared that divorce has become effective. According to Section 7 of Muslim Family Laws Ordinance, 1961 any man who wishes to divorce his wife shall, as soon as may be after the pronouncement ofTalaq' in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply copy thereof to the wife. A
`Talaq' unless revoked earlier shall not be effective until the expiration of 90 days from the day on which notice is delivered to the Chairman. Section 7 reads as under:--
"1. Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.
Save as provided in sub-section (5), a Talaq unless revoked earlier expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and Arbitration Council shall take all steps necessary to bring about such reconciliation.
If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.
Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."
So it is clear that petitioner could revoke `Talaq' before expiry of 90 days from the date on which he delivered notice to the Chairman. In order dated 25.5.2005 Respondent No. 2 observed that:--
However as mentioned earlier, the Chairman declared the
Talaq' effective despite the fact that according to his own order, petitioner had withdrawn/revoked noticeTalaq' on 13.12.2003. As such impugned order is illegal and liable to be set aside.
(R.A.) Petition accepted.
PLJ 2007 Lahore 1015
Present: Muhammad Sayeed Akhtar, J.
AHMED BAKHSH--Petitioner
versus
GHULAM HUSSAIN etc.--Respondents
W.P. No. 1563 of 1988, decided on 29.11.2006
Limitation Act, 1908 (IX of 1908)--
----Ss. 13 & 19--Period of limitation--Original mortgage--Entry in revenue record constituted valid acknowledgment--Fresh period of limitation--Period of 60 years had not elapsed even if such period is counted from the date of original mortgage. [P. 1020] C
Limitation Act, 1908 (IX of 1908)--
----S. 13--Period of limitation--Application for redemption of mortgage was well within time--Time during which the defendant had been absent from Pakistan and from the territories beyond Pakistan under the administrative control of the Federal Government shall be excluded. [P. 1020] D
Redemption of Mortgage--
----Mortgage was ordered to be redeemed on payment--Land was reviewed--Power of review--There was an acknowledgment in the mutation but the same can be effective when the acknowledgment is in writing and signed by the party against whom the right was claimed--Power of review emanates from a statute--It is a substantive right and not a matter of procedure. [Pp. 1018 & 1019] A & B
Jurisdiction--
----Collector had no jurisdiction to review his own order--Land in question was not an evacuee property as such not available for allotment to the claimants in lieu of their verified claims--Petition allowed. [P. 1021] E
Mr. Abdul Rashid Sheikh, Advocate for Petitioner.
Mirza Manzoor Ahmed, Advocate for Respondents No. 1 to 4.
Syed Mohtasham-ul-Haq, Advocate for Respondent No. 5.
Date of hearing: 29.11.2006.
Judgment
The land measuring 38 Kanals 16 Marlas (reduced to 36 Kanals 13 Marlas during the consolidation proceedings) in Khewat No. 100/91-min, Khatauni No. 220/- 216/217 situate in Mouza Jonjhanwali Tehsil Kot Adu District Muzaffargarh was mortgaged with Naba Ram on 22.11.1895 vide Mutation No. 210 Ahmed Bakhsh, the petitioner moved an application on 30.1.1960, before the Revenue Assistant/Assistant Rehabilitation Commissioner, with powers of Collector, stating that his grandfather Chandan had mortgaged the above said land with Naba Ram and that an order for redemption of the same on payment of mortgage money be passed. The said application was allowed vide order dated 29.5.1963, by Revenue Assistant/Assistant Rehabilitation Commissioner/Collector. It was observed that the land in question was mortgaged on 22.11.1895 vide Mutation No. 210, vide another mutation 372 attested on 20.12.1935, mortgage agreement was renewed. The petitioner was directed to pay five times of the original "Lagan" which came to rupees four and ten annas. Another order was passed by the Revenue Assistant/ARC on 7.8.1963 stating that the mortgage money had been deposited and the case be consigned to record. The petitioner moved another application before the same officer on 12.2.1964, that he had deposited the mortgage money on 7.8.1963 but the redemption mutation could not be sanctioned nor the warrants of possessions were issued, he prayed for the same. Thereafter, the learned Revenue Assistant/ARC with powers of Collector, Muzaffargarh reviewed his order dated 29.5.1963 on the ground that the said order was passed on the basis of acknowledgment in the jamabandi which, in his opinion, was sufficient acknowledgement, however, subsequently, it transpired to him that the fresh period of limitation begins to run only if the acknowledgement is in writing and signed by the party against whom it is claimed. He came to the conclusion that the period of sixty years had already expired and as such no redemption order could be passed. He, therefore, recalled his order dated 29.5.1963 vide order dated 28.7.1964 and rejected the petition for redemption of the mortgage being time barred. Thereafter the land in question was allotted as evacuee land to Ghulam Muhammad and Ghulam Masood, Respondents 4 & 5 on RL-II in lieu of their claims for land left behind in India. They subsequently sold the same to Ghulam Hussain and Ghulam Abbas, Respondents 1 & 2 vide Mutation No. 1288 dated 12.2.1968. Ghulam Hussain, Respondent No. 1 further transferred his share of land to Respondent No. 3, his son, on 23.6.1972 vide Mutation No. 1479. The petitioner remained ignorant of the allotment in favour of respondents.
The petitioner filed a suit for declaration against respondents challenging the order of allotment in favour of Respondents 4 and 5 as well as further alienation in favour of other respondents. However, the same was withdrawn with permission to refile. The second suit to the same effect was filed on 25.10.1984, but that too was withdrawn on the basis that the Civil Court had no jurisdiction. Thereafter the petitioner filed an appeal against the Additional Commissioner on 31.7.1988 against the order dated 28.7.1964 of the Revenue Assistant/ARC with powers of Collector reviewing his earlier order dated 29.5.1963. The same was dismissed on 28.8.1988 as being barred by time.
Learned counsel for the petitioner contends that on payment of the mortgage money i.e. Rs. 4.10, the land stood redeemed. The learned Revenue Assistant/ARC had rightly passed the order dated 29.5.1963 for redemption of the land. He urged that there was no power of review available to the Revenue Assistant/ARC, as such his order dated 28.7.1964 was without jurisdiction and nullity in the eye of law, the same was to be ignored. The learned Additional Commissioner proceeded on erroneous premises that the appeal was barred by time. It was maintained that the land in question was not evacuee property and was not available for allotment to the respondents. It was argued that according to the order of the learned Revenue Assistant/Collector dated 29.5.1963, there was an acknowledgement in the jamabandi for the year 1955-1956 about the mortgage and that the fresh period of sixty years is available to the petitioner. The learned Collector had rightly passed the order of redemption. Reliance was placed on Samar Gul vs. Central Government and others (PLD 1986 SC 35), Ghulam Muhammad and 3 others vs. Member Board of Revenue Punjab, Lahore and 16 others (PLD 2005 Lahore 119) and Allah Ditta and others vs. Sardar Khan and others (PLD 1997 Lahore 716).
Conversely, learned counsel for the respondents submitted that the appeal of the petitioner before the learned Additional Commissioner was clearly barred by time. It was submitted that even a void order created results, an aggrieved person was required to initiate proceedings for setting aside the void order within reasonable time. Reliance was placed on Sarfraz vs. Muhammad Aslam Khan and another (PLJ 2001 SC 1134), Karim Bakhsh and 4 others vs. Riaz Hussain and another (1993 SCMR 1667) and Fecto Belarus Teractor Ltd. vs. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 SC 605). It was further submitted that the petitioner had to exhaust his remedy before the Member Board of Revenue and without availing the same the instant petition was not maintainable. Reliance was placed on Qurban Ali and another vs. Commissioner and another (2006 SCMR 1073). It was argued that the question of redemption could not be decided in the constitutional petition. He placed reliance on Muhammad Zaman and 8 others vs. Abdul Malik Khan and 7 others (PLD 1991 SC 524), Muhammad Hanif through Legal Heirs and 2 others vs. Zulfiqar Ali and 56 others (1996 SCMR 1869) and Mir Zaman vs. Mst. Sheda and 58 others (2000 SCMR 1699). Lastly it was maintained that the application of the petitioner for redemption of the mortgage was barred by time.
None has entered appearance on behalf of the Respondents 4 and 6 to 8 despite appearance of the names of their learned counsel in the cause list. They are proceeded ex-parte.
I have perused the record, gone through the relevant law and considered the arguments of the learned counsel for the parties. The land in question was ordered to be redeemed by the Revenue Assistant/Assistant Rehabilitation Commissioner with powers of Collector vide order dated 29.5.1963. It is stated therein that the land in question was mortgaged on 22.11.1895 through Mutation No. 210. The said mortgage was renewed on 20.12.1935 vide Mutation No. 372. The mortgage was ordered to be redeemed on payment of Rupees 4 and 10 Annas (five times of the original `lagan'). The order dated 29.5.1963 redeeming the land was reviewed by the same officer on 28.7.1964 on the ground that though there was an acknowledgement in the mutation but the same can be effective when the acknowledgment is in writing and signed by the party against whom the right was claimed. He, therefore, recalled the order dated 29.5.1963 and dismissed the application for redemption/restitution of the mortgage. A question arises whether the A.R.C./Collector had the jurisdiction to review his own order dated 29.5.1963. The Redemption And Restitution Of Mortgaged Lands Act, 1964 came into force on 31.7.1964, whereas, the review order had been passed on 28.7.1964 there was no provision for review in the said Act much less power to review the orders passed before the enforcement of Act of 1964. The Redemption of Mortgages (Punjab) Act, 1913 and Punjab Restitution of Mortgaged Lands Act, 1938 were repealed on 31.7.1964 by the Redemption and Restitution of Mortgaged Lands Act, 1964. There was no provision of law in the repealed Redemption of Mortgages (Punjab) Act, 1913 and Punjab Restitution of Mortgaged Lands Act, 1938 enabling the officer to review his earlier order. It is well settled that power of review emanates from a statute. It is a substantive right and not a matter of procedure. It is not available unless it has been conferred by law. If any authority is needed see Hussain Bakhsh vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), Muzaffar Ali vs. Muhammad Shafi (PLD 1981 SC 94) and Riaz Hussain and others vs. Board of Revenue and others (1991 SCMR 2307). Since the power of review was not available to the A.R.C./Collector/ Respondent No. 6 his order dated 28.7.1964 is void and nullity in the eye of law. The bar of limitation is liable to be ignored. Constraints of limitation would not apply against a void order. See Syed Muhammad Alam vs. Syed Mehdi Hussain and 2 others (PLD 1970 Lahore 6), Muhammad Shafi vs. Mushtaque Ahmed through Legal Heirs and others (1996 SCMR 856), Muhammad Raz Khan vs. Government of N.W.F.P. and another (PLD 1997 SC 397), Malik Khawaja Muhammad and 24 others vs. Marduman Babar Kahol and 29 others (1987 SCMR 1543), Fazal Elahi Siddiqi vs. Pakistan through Secretary, Establishment Division and 2 others (PLD 1990 SC 692) and Gatron (Industries) Limited vs. Government of Pakistan and others (1999 SCMR 1072). The learned Additional Commissioner erred in law in coming to the conclusion that the appeal was barred by time. No limitation runs against a void order. No useful purpose will be served in remanding the case to the learned Commissioner after 45 years as the order of the A.R.C./Collector dated 28.7.1964 is void and in any case is to be set aside/ignored. See Mr. Muhammad Jamil Asghar vs. The Improvement Trust, Rawalpindi (PLD 1965 SC 698) and Muhammad Shafi vs. Mushtaque through Legal Heirs and others (1996 SCMR 856). The contention of the learned counsel that the petitioner should have approached the Additional Commissioner within reasonable time is devoid of any force. The learned A.R.C./Collector had no power of review. His arrogation of jurisdiction cannot be legalized by efflux of time; therefore, his order dated 28.7.1964 is set aside.
The facts are admitted, therefore, the question whether the order dated 29.5.1963 passed by the A.R.C./Collector ordering the redemption of the land was legal and within period of limitation can be decided in this constitutional petition. The order dated 29.5.1963 reveals that the land in dispute was mortgaged on 22.11.1895 through Mutation No. 210 and the said mortgage agreement was renewed through another oral Mutation No. 372 attested on 20.12.1935. In my view the period of limitation would start running afresh from 20.12.1935. The petitioner moved the application for redemption of the mortgage on 30.11.960; therefore, it was well within time. A.R.C./Collector misdirected himself as to the application of the law. The same order dated 29.5.1963 displays that the entry in the Jamabandi for the year 1955/56 shows the petitioner as mortgagor and the Central Government as mortgagee. The period of 60 years had not elapsed even if this period is counted from the date of original mortgage i.e. 22.11.1895. The entry in revenue record constituted valid acknowledgment in writing under Section 19 of the Limitation Act, 1908 with the result that fresh period of limitation accrued in favour of the petitioner. See Samar Gul vs. Central Government and others (PLD 1986 SC 35). The application of the petitioner for redemption was well within time on this score as well.
There is another aspect of the case that under Section 13 of the Limitation Act, 1908 in computing the period of limitation the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the administrative control of the Federal Government, shall be excluded. It was held in Muhammad Shafi vs. Ghulam Qadir etc. (PLD 1978 Lahore 71) as under:--
"It cannot be said that the period of limitation, although has stopped running against the evacuees, will continue to run in favour of the Custodian, he having stepped into their shoes. By operation of law, evacuee properties, have become vested in him, yet he is not successor-in-interest of the evacuees so as to claim benefit under the law of limitation. Articles 148 and 120 of the First Schedule, moreover, apply to suits and not to applications before the Custodian, under the provisions of the Pakistan (Administration Evacuee) Property Act XII of 1957."
This view was affirmed in Muhammad Hussain and 2 others vs. Custodian, Evacuee Property (J&K) and 13 others (1980 CLC 593), Allah Ditta and others vs. Sardar Khan and others (supra) and Ghulam Muhammad and 3 others vs. Member, Board of Revenue Punjab, Lahore and 16 others (supra). It is pertinent to mention here that the learned counsel for the respondent was a counsel in the case Member, Board of Revenue Punjab, Lahore and 16 others (supra) and had argued for the mortgagor. It was further observed in Allah Ditta and others vs. Sardar Khan and others (supra) as under:--
"There can be no doubt that in the instant case, it is only the equity of redemption which duly vested in the Custodian. The mortgage money due to the mortgagee, as laid down under Section 14(a) of Displaced Persons (Land Settlement) Act, became a charge on such land. The interest of the evacuee in the land in dispute vested in the Custodian only to the extent of the mortgage money and the land could not have been as such treated to be evacuee property, available for allotment to the predecessor-in-interest of the petitioners."
In the instant case the disputed land was not evacuee property and could not be allotted to the Respondents 4 and 5, at the maximum equity of redemption vested in the Custodian.
The situation can be looked at from another angle that the Chief Settlement and Rehabilitation Commissioner West Pakistan in its Office Memorandum No. 1393-59/4144-R(P) dated 5th November, 1958 directed the Local Rehabilitation Authorities directed to issue notice to the local mortgagors to redeem their land within one month. Vide press note dated 8th December, 1959 the mortgagors who wanted to get their properties redeemed were advised to contact the Local Rehabilitation Authorities. The period of one month was extended through various Memoranda and press notes. The last press note No. 5494-66/5802 was issued on 31st March, 1967. The application of the petitioner for redemption of the land was well within time.
The upshot of the above discussion is that A.R.C./Collector had no jurisdiction to review his own order dated 29.5.1963. The land in question was not an evacuee property as such not available for allotment to the Claimants/Respondents 4 and 5 in lieu of their verified claims. The authorities relied upon by the learned counsel for the respondent are not helpful to him in the particular facts of the instant case and do not advance his case.
In view of the above this petition is allowed and the impugned orders dated 28.8.1988 passed by Additional Commissioner and that of the Revenue Assistant/A.R.C./Collector dated 28.7.1964 are declared to be without lawful authority and of no legal effect. The order passed by A.R.C/Collector dated 29.5.1963 is upheld. The allotment of the land in question in favour of Respondents 4 and 5 and further alienation by them to Respondents 1 to 3 are also declared to be without lawful authority and of no legal effect.
(F.F.) Petition allowed.
PLJ 2007 Cr.C. (Lahore) 1021
[Rawalpindi Bench Rawalpindi]
Present: Syed Sajjad Hussain Shah, J.
Syed MAQSOOM HUSSAIN SHAH--Petitioner
versus
STATE--Respondent
Crl. Misc. No. 920-B of 2006, decided on 27.9.2006.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468, 471 & 34--Bail after arrest, dismissed--Prayer for--Accused committed fraud with complainant in a deal of plot and deprived him from specified amount--Held: Although, the offences for which the petitioner is being charge do not fall under the prohibitory clause but as the petitioner has deprived an innocent person from his life long earning, therefore, he does not deserve for any discretionary relief--Bail was dismissed. [P. 1022] A
Mr. Basharatullah Khan, Advocate for Petitioner.
Sardar Farhad Abbas, Advocate for Complainant.
Qazi Habib-ur-Rehman, Advocate for State.
Date of hearing: 27.9.2006.
Order
Petitioner Syed Maqsoom Hussain Shah through the instant petition has sought post-arrest bail in a case FIR No. 171 dated 29.5.2004 under Sections 420/468/471/34 PPC registered with Police Station Shahzad Town, Islamabad.
The prosecution case as narrated by the complainant Abdul Wahid is that the petitioner alongwith his co-accused committed fraud with him in a deal of plot and deprived him of Rs. 6,00,000/- by preparing forged documents. He shown a plot and the deal was done for Rs. 6,00,000/-. The petitioner mentioned the location of the plot in Tarlai Khurd and when they collected building material, for the purpose of construction, it transpired that this plot stands in the name of another person.
It is contended by the Learned counsel for the petitioner that the petitioner is innocent and has been falsely implicated in this case on the ground that he is close relative to his co-accused; there is no mentioning of time and date of occurrence in the FIR; the petitioner neither sold said plot nor received any amount; he is only signatury of the agreement to sell; no offence is made out from the contents of the FIR; it is a case of further inquiry, he is behind the bars and no more required for further investigation.
Conversely, the Learned counsel for the State opposed the instant petition.
Arguments heard. Record perused.
The petitioner alongwith his co-accused Fayyaz Hussain Shah (close relative of the petitioner) deprived the complainant from
Rs. 6,00,000/- by showing him a plot which was not owned and possessed by his co-accused and committed fraud with the complainant. Although, the offences for which the petitioner is being charged do not fall under the prohibitory clause but as the petitioner has deprived an innocent person from his life long earning, therefore, he does not deserve for any discretionary relief.
(M.S.A.) Bail dismissed.
PLJ 2007 Lahore 1024
Present: Fazal-e-Miran Chauhan, J.
Mst. SABAHAT IDREES and another--Appellants
versus
Mst. CLARE BENEDICTA CONVILLE and 4 others--Respondents
R.S.A. No. 62 of 2005, decided on 29.6.2007.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 2(9), 100 & O.XX, Rr. 4 & 5--O. XLI, R. 31--Second appeal--Judgment--Reproduction of written arguments--Verbatim wording--Evaluation of evidence--Without giving its own independent observation, discussion and comparison of arguments of parties by trial Court--Concurrent findings--Case was remanded--Re-writing of judgments--Practice of adoption of judgment of trial Court--Depreciated by Superior Courts--Validity--Judgments and orders of Courts below are nothing but recapitulation of the written arguments of respondents--Court is required to give its own reasons by discussing the facts and evidence on record for pronouncing a judgment and if the Court fails to give its own reasons, it would be deemed that the Court had acted with material irregularity and illegality and in that eventuality the decision or judgment given by the Court would not be sustained in the eyes of law--Held: Case is remanded to First Appellate Court with direction that he may entrust it to Senior Civil Judge who is directed to re-write the judgment on evidence. [Pp. 1036, 1037 & 1039] A, C & G
Civil Procedure Code, 1908 (V of 1908)--
----S. 2(9)--Interpretation of Judgment--Judicial decision--Judgment means the judicial decision of a Court or Judge, its need not necessary deal with all the matters in a suit but, may determine only those issues, which will have the effect either adjudicating all the matters in controversy or will result in a final disposal of the suit.
[P. 1037] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 2(9) & O.XX, R. 4(2)--Judgment of other Courts--Determination of points--Judgment shall contain the issues statement of the case, points for determination, reasons and such decision. [P. 1038] E
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Appellate Judgment--Pronouncement of judgment--Purpose of--Points arising--Determination--Appellate Court is required to give its decision with regard to each point, which should be self explanatory, illuminative and in nature of order. [P. 1039] F
Judgment in Personam--
----Such judgment being judgment in personam should fully determine their rights and judge is required to have used all his skills in highlighting each and every point under controversy and his own reasons for agreeing with either of parties on such points. [P. 1038] D
Mr. M. Maqbul Sadiq & Mrs. Rabia Farooq, Advocates for Appellants.
Ch. Imdad Ali Khan, Advocate for Respondents.
Date of hearing: 30.5.2007.
Judgment
This regular second appeal has arisen from concurrent findings of the two Courts below. Suit for declaration filed by the appellants-plaintiffs was dismissed by the Civil Judge, Sahiwal vide judgment and decree dated 04.04,1996 and the appeal preferred against the judgment and decree was also dismissed by the learned Additional District Judge, Sahiwal vide its judgment and decree dated 21.5.2005.
Brief facts of the case are that the suit, filed by the appellants, for declaration with perpetual injunction and for specific performance to the effect that, Colonel LHG, Conville was owner of agricultural land measuring 120 squares in Chak No. 89/9-L, Tehsil & District, Sahiwal in the year 1959; 43-squares of land owned by Colonel L.H.G. Conville came under land reforms and he was deprived of the same. In order to avoid any further land reforms, said Colonel L.H.G, Conville in the year 1966, sold 23 squares of land to the plaintiffs and 14 squares of land to Ch. Shah Muhammad (deceased) grand father of Plaintiffs No. 1 to 3 and 9 squares of land to some other persons. He also gifted his remaining land to his son, grand son and daughters measuring 65 acres and 8-marlas in Squares No.3, 4 and in Chak No.88/9-L and 20 acres 2-marlas in Square No. 18 in Chak No.87/9-L, to Defendant No. 1 his grand daughter but he remained the actual owner and being-actual owner Colonel L.H.G, Conville entered into an agreement to sell with the plaintiffs with regard to the above mentioned land and other land and received Rs. 25,00,000/- against receipt as sale consideration and possession of the land was delivered under the agreement to sell to the plaintiffs, which was made with the consent of Defendants No. 1 to 3. After the death of Colonel L.H.G. Conville, the legal heirs on instigation of one Barkat Ali made illegal demands. Plaintiff No. 4, father of Plaintiffs No. 1 to 3 in order to end this dispute, obtained the peaceful incorporation of alienation in the revenue record and to avoid litigations, again paid a sum of Rs. 25,00,000/- as over all settlements to the descendants of Colonel L.H.G. Conville and Respondents No.2 and 3 about the suit land and other land. The matter was compromised and the total amount was paid. A sum of Rs.4,25,000/- was deposited in the accounts of Defendant No.2, David Henery Conville father of Defendant No. 1 maintained in the Muslim Commercial Bank, Limited High Street Sahiwal. Accordingly, an entry in the revenue record about the land possessed and owned by appellants-Plaintiffs No. 1 to 3 was made vide Mutation No. 47 attested on 25.03.1982 for land measuring 65 acres, 8-marlas in Squares No. 3, 4 and 9 situated in the area of Chak No. 88/9-L and a Mutation No. 163 about the land measuring 20-acres, 2-canals situated in the area of Chak No.87/9-L was attested on 25.03.1982 in favour of sister of Plaintiffs No. 1 to 3, Defendants No. 1 to 3 on the instigation of Barkat Ali tried to back out from the agreement to sell executed in favour of Muhammad Idrees, father of appellants No. 1 to 3. During this period, Defendant No. 1 also executed a general attorney in favour of Barkat Ali, which is void illegal, without lawful authority.
Defendant No. 1 challenged Mutations No. 47 and 43 in. appeal before Commissioner, Multan Division, Multan, who vide order dated 10.06.1984 set aside the mutations. This order of Commissioner was challenged before M.B.R, Punjab (Revenue) by appellants No. 1 to 3. This revision was dismissed and order of Commissioner dated 10.06.1984 was confirmed by M.B.R vide its order dated 09.07.1984. Both these orders were challenged through the suit. During pendency of the suit, said Barkat Ali further gifted the land to one Dr. Abdul Haq Chaudhary Respondent No, 5.
The appellants-plaintiffs seek declaration that at first instance to declare the order of Commissioner Multan Division, Multan and M.B.R to be void, illegal ineffective qua the rights of the appellants plaintiffs and also gift deed executed by Barkat Ali in favour of Dr. Abdul Haq Chaudhary Respondent No. 5 to be illegal, without lawful authority and also declaring the same to be ineffective against the rights of the appellants-plaintiffs and the defendants be permanently restrained from interfering in the possession of the appellants-plaintiffs. The respondents-defendants be also restrained from further alienating the property, in dispute, in any manner. And in the alternative prayed for a decree for specific performance of agreement to sell dated 11.11.1976.
The second suit titled "Sabahat Idrees vs. Claire Benedicta etc." relates to the same facts Only difference in the case is that land was transferred in the name of plaintiff by Mutation No. 47, Chak No.88/9-L and land measuring 65-acres etc. and Mutation No. 163 Chak No. 87/9-L measuring 20-acres.
The Defendant No. 1 to 5 contested both suits by filing written-statement through their general attorney Barkat Ali, controverted the facts of the plaint and also raised as many as fifteen legal objections. Defendant No. 1 asserted that facts mentioned in Paras No. 1 to 4 of the plaint are mere allegations and are not backed by any documentary evidence or revenue record. No transaction of sale took place between the plaintiffs and Colonel L.H.G. Conville; letter dated 11.11.1976 is forged document and the plea of payment of Rs. 25,00,000/- is totally false, as there is no proof of payment by the appellants; Mutation No. 47 of Chak No.88/9-L and 163 of Chak No. 87/9-L are illegal and were got entered in collusion with the revenue staff, no power of sale was given to the alleged general attorney; Muhammad Idrees by the Col. L.H.G, Conville hence he was not authorized to alienate the land. The alleged mutations were entered when the power-of-attorney was revoked and he was not authorized to act on behalf of Colonel. L.H.G. Conville; thus mutations were rightly set aside by the Commissioner, Multan Division, Multan and the order was rightly upheld by the M.B.R on 09.07.1984; the gift registered on 17.5.1987 made in favour of Defendant No. 5 is lawful, legal and effective, Finally prays for dismissal of suit.
Both the suits were consolidated and almost 47 consolidated issues were framed from the pleadings of the-parties.
In order to prove the case, the appellants-plaintiffs produced as many as 17 witnesses:--
Syed Ghulam Ghaus Sherazi PW.1
Manager, United Bank Ltd.
Muhammad Naeem, Manager, PW.2
M.C.B., High Street, Sahiwal.
Raza Akbar, Manager Foreign PW.3
Exchange Dept. Allied Bank, Sahiwal
Mazhar Akbar Sofi PW.3/A
Muhammad Asif, Assistant PW.4
Board of Revenue, Lahore.
Muhammad Sarwar, Assistant PW.5
District Nazar, Sahiwal.
Muhammad Siddique, Naib Aslah PW.6
Clerk, D.C.Office, Sahiwal
Liaqat Ali Sheikh, Officer Allied PW.7
Bank of Pakistan, Lahore, Muhammad Siddique Khan PW.8
Manager, HBL, Sadar Bazar, Sahiwal
Syed Muhammad Ahmed PW.9
Gillani, Officer UBL, Main Bazar
Branch, Sahiwal.
Muhammad Nasim Officer, twice MCB. High Street, Sahiwal examined
Khadim Hussain, Patwari PW. 10
Halqa, 90/9-L
Muhammad Idrees, one of the PW. 11
plaintiffs.
Zahoor Ahmad, Halqa PW.12
Patwari, Chak No.90/9-L
Khadim Hussain, Halqa PW.13
Patwari, Chak No.55/G.D.
Sarfraz Ali Shah, Office Qanugo PW.14
Tehsil Sahiwal.
Shafique Hasan, Ahlmad, HVC PW. 15
Branch, D.C.Office, Sahiwal.
Muhammad Yousaf s/o Nawab Din. PW.16
Asghar Ali s/o Niaz Ahmad, PW.17.
Ex. P-1/A is Jamanbandi of Mouza 87/9-L for the year 1983-84, Ex.P-1 and P-2 are Account opening form about current Account No, 1988, Ex.P-2/A is jamanbandi of Mouza 88/9-L,Ex.,P-2 is Specimen signatures of Conville, Ex.P-3 is Register Dakhil Kharij Mahal No.88/9-L, Ex.P-3/A is Cheque of Rs. 100000 (ABL), Ex. P-3A is savings account MCB No. 255071, Ex.P-3/1 is Draft Purchase Rs. 250000, Ex. P-3/B is cross cheque issued by M. Idrees of David Henry, Ex.P-3 is letter to HBL Ex, P-4 is register Hakhil kharij Mahal No. 87/9-L, Ex.P-4 is savings account MCB, Ex. P-4/B is credit voucher to Ex.P-5 is order of Collector Sahiwala, Ex.P-5 is receipt by LHG Conville for consideration Land Rs. 2500000/-, Ex. P-6 is letter by O. G. Foster to Governor of Punjab, Ex. P-6 is order of AC/Collector, Ex. P-7 is application to review of Mutation No. 47, Ex. P-7/11 is summary of Governor and orders on it, Ex, P8 is observation of Governor and order of DC, Sahiwal and application to review of Mutation No. 163, Ex.P-9 is report by MBR and order of Commissioner Multan Ex. P-10 is information report of DC and order of Member BOR, Ex. P-11 is Order of Chief Land Commissioner Ex. P-12 is Memorandum from DC Sahiwal, Ex.P-13 is Demand Draft, Ex. P-14 is statement of account, Ex.P-15 and Ex-P-16, 17 are Card S.F and account, Ex.P-18 is roznamcha waqiati, Ex.P-19 is sale-deed, Ex-P-20 is letter in handwriting of DW.1, Ex.P-21 and 22 are letter in handwriting of DW.1, Ex.P-23 is Rapat No. 228, Ex.P-24, 25, 26 and 27 are Register Haqdaran Khata No. 3, 1, 2, Ex. P-28 is order by DLC, Ex. P-29 to P-42 are Mutations No. 19 to 31, Ex.P-43 is Order of Member FLC, Ex.P-44, 45, 46, 47, 48 are order of DLC, Ex. P-49 and 50 are Mutations No. 47 and 163, Ex. P-51 is Dhal Bash for the years 1982-1989, Ex.P-52 is order of Additional District Judge, Ex.P-53 is amended written statement, Ex. P-54 is order of Civil Judge, Ex.P-55 is petition under Order 6 Rule 17 C.P.C., Ex.P-56 is amended written statement, Ex. P-57 is order of Civil Judge, Ex. P-58 is petition under Order 6 Rule 17 C.P.C, Ex.P-59 is amended written statement, Ex. P-60 is order of civil Judge, Ex.P-61 is Application under Order 6 Rule 17 C.P.C, Ex.P-62 is amended written statement Ex.P-63 is order of Civil Judge, Ex-P-64 is application under Order 6 Rule 17 CPCmEx.P-65 and 66 are General power of attorney by Covelli and Mark A, B, C, D are General power of attorney.
Ex.D-1 is copy of specimen signature of D.H. Conville, Ex. D-1/A is Mutation No. 62, Ex. D-2/A is Mutation No. 199, Ex.D-2 is copy of application for opening account, Ex-D-3 is letter to Manager MCB, Ex.D-3AB, 5A, 6A, 7A, 8A, 9A, 10A, 11A, 12, 13, 14, 15, 16 17, 18, 19, 20 are different plaints, amended written statements, orders and khasra gardawari Kharif, Exp-21 and 22 are mutations, Ex. P-23 is appeal, Ex-P-24 is order in appeal Ex.P-25 and 26 are judgments of Additional District Judge, Ex, P-27 and 28 are order in revision, Ex. P-29 and 30 are applications, Ex.P-31, 32, 33 are copy of Roznamcha Waqiati, Ex.D-34 is Mutation No.29, Ex.p-35 is sale-deed, Ex.D-36 is Mutation No.32, Ex.D-37 is sale-deed, Ex.D-38 is Mutation No. 40, Ex.D-39 16 sale-deed, Ex.D-40 is Mutation No. 41, Ex.D-42 is Mutation No.42 Ex-D-43 is sale-deed; Ex.D-44 is Mutation No. 131, Ex. D-45 is sale-deed, Ex. D-46 and 47 are mutations, Ex. D-48 is sale-deed, Ex.D-49 and 50 are mutations, Ex. D-51 is sale-deed, Ex.D52 is Mutation No. 146, Ex,D-53 is sale-deed, Ex,D 54 is Mutation No. 147, Ex.D-55 is sale-deed, Ex. D-56 and 57 are mutations, Ex-D-59 is copy of suit, certificate issued by Peter Henry Notary Public, and Power of Attorney, Ex, D-60 is Power of Attorney Ex, D-61 is suit for D & PI, Ex-D-62 is Power of Attorney, Ex. D-63 is certificate, Ex-D-64 is Power of Attorney, Ex.D-65 is suit for D & PI, Ex.D-66, 67, 68 are mutations, Ex. D-69, 70 and 71 are Tamleek Nama, Ex.D-72 to Ex.D-75 are Power of Attorney. Ex, D-76 is Gift deed, Ex.D-77 is order of Civil Judge, Ex. D-78 is decree sheet, Ex.D-79 is judgment, Ex.D-80 is decree sheet, Ex.D-81 is deed of settlement, Ex.D-82 is order sheet, Ex.D-83 is C.C. order sheet, Ex.D-84 is deed of settlement, Ex. D-85 and 86 are C.C. Order sheets, Ex. D-7 is deed of settlement and Ex.D-88 to 95 are C.C. Order sheets and Deed of settlement.
The learned Civil Judge vide judgment and decree dated 04.04.1996 dismissed the suit with costs; appeal filed by the appellants-plaintiffs was also dismissed by the learned Additional District Judge, vide judgment and decree dated 21.05.2005, confirming the judgment and decree of the trial Court.
Learned counsel for the appellants submits that; the judgment delivered by the Courts below is not a judgment as defined in Clause 9 of Section 2 and Rule 4 and 5 of Order 20 C.P.C. The learned trial Court instead of recording its own judgment on the issue has reproduced the verbatim wording of the written arguments, submitted by learned counsel for the respondents in the trial Court, which is also made part the record of the trial Court. The judgment and decree is against the provisions of Section 44-A of General Clauses Act, which requires the learned Judge to give findings and apply his judicious mind, while recording any findings on the facts as well as on the law of the case. Further submits that; since the judgment of the trial Court is only an outcome of reproduction of written arguments, submitted by learned counsel for the respondents/defendants. The appellate Court under the law was required to remand the case to the trial Court with the direction to record its own findings on all issues, after discussing the fact and evidence led by the parties. The learned lower Appellate Court failed to apply the correct law by not remanding the case and also erred at law, while dismissing the appeal by not recording its own findings as required by Rule 31 Order 41. C.P.C. The learned Additional District Judge dismissed the appeal by simply reproducing the findings of the trial Court and also some portions of the written arguments of counsel for the respondents without giving its findings on the issues by upholding the decision of the trial Court on all the issues. The practice of adoption of judgment of trial Court and written arguments is not approved, but is rather depreciated by the Superior Courts and such judgment of both the Courts below are liable to be set-aside on this ground only and case be remanded to the trial Court to rewrite the judgment by recording its own decision by examining the evidence of parties on the record. Reference in this respect is made to Ghulam Mohi-ud-Din vs. Chief Settlement Commissioner(Pakistan), Lahore and others (PLD 1964 S.C 829), Balwant Singh vs. Baldev Singh and others (AIR 1921 Lahore 119), (Mennem) Venkayya and others vs. Emperor (AIR 1928 Madras 1130) and Muhammad Nawaz Shah vs. Imam Bukhsh and four others (2000 YLR 1456 (Lahore). Also submits that; the findings on Issues No. 23 to 25 are perverse, passed in violation of principle laid down by the Superior Courts and result of mis-appreciation of fact on the record and miscarriage of justice took place. As per law laid down by the Superior Court, the First Appellate Court is required to apply its own independent mind to the facts and law of the case and should not countersign the findings of the trial Court. Reference is made to Lahore Development Authority Lahore and others vs. Saima Riaz and another (2003 YLR 1579). Further submits that; the judgment pronounced by the trial Court as well as the learned lower Appellate Court is not in accordance with law, as it does not contain statement of grounds for decision. Both the Courts below had failed to discuss the facts, evidence, given their expression of conclusion arrived at after due consideration of evidence and the arguments submitted by the counsel. The judgment of the learned lower Appellate Court, under appeal, is noting but reproduction of judgment of the trial Court, which is not proper and in accordance with law. Reliance has been placed on Muhammad Akhtar vs. The State (PLD 1957 SC 297). On merits, it is submitted that oral gift made by Colonel Conville to his grand daughter on two pieces of land in March, 1969, evidenced by Ex. P. 40 and Ex. P. 42 was violative of provisions of Section 123 of the Contract Act. Both the Courts below erred in law and did not take note of the facts and circumstances of the case and in a slipshod manner decided the matter; further submits that the judgment and decree of the learned trial Court is against the provisions of Section 24-A of General Clauses Act and the learned Judge did not apply his judicious mind; Submits that the learned Addl: District Judge did not take note of the illegalities and irregularities submitted by the learned trial Court; the judgment of the trial Court was a nullity in the eye of law. In this respect reliance is placed upon the judgment reported PLD 1964 S.C. 829, AIR 1921 Lahore 119 and AIR 1928 Mad 1130 (supra). Further submits that the findings on Issues No, 32-35 are perverse having been passed in violative of the principles and law and are result of misappreciation of the facts on record; further submits that if the appellate Court's judgment forming reproduction of trial Court's judgment without considering material facts; it had been held by the superior Courts that the same were treated to be improper and of doubtful validity. Reliance is placed upon the reported judgment PLD 1957 SC 297 (supra). Further submits that the oral gift of land by Colonel Conville to his grand daughter of the two pieces of land in March 1969 evidence by Exh.P/40 and P/42 was violative of provisions of Section 123 of the Contract Act which compulsorily required it to be through a registered deed. Although the provisions of the said section were not then extended to Punjab in the year 1969, yet the case law consistently held that despite its non-application, the principles contained therein would still apply. Further submits that the gift favouring grand daughter of Colonel Conville had to be regularized by the Land Reform. Authorities in view of the provision of the Land Reform Enactments. The mutations were declared to be void by the Land Commissioner, Chief Land Commission and the Federal Land Commissioner vide Exh: P/11-A P/53 and P/59 respectively which attained finality; further submits that admittedly PW-11 was the General Attorney of Col. H.G. Conville by deed of Attorney dated 21.10.1974 and having paid the full consideration for total ownership to the principal(proved through Ex.P/5 and P/19 dated 11.11.1976) and his authority as attorney had become irrevocable in accordance with the provisions of Section 202 of the Contract Act and resultantly the deed of attorney survived even after the death of the principal. Further submits that all these factual things were brought to the notice of the learned lower Appellate Court who did not appreciate the things and even did not frame any issue and misread the entire things without applying proper principle of law. Further submits that the General Power of Attorney to PW-11 by Clair Benedicta, Respondent No. 1 through guardian on 17.12.1976 i.e. just after the date of sale by Col. Conville was also an irrevocable attorney as the consideration had already been received by the original owner further submits that even the provisions contained in Section 202 of the Contract Act the Benami's power of attorney favouring PW-11 even through her guardian survived despite attainment of majority by her majority; hence the findings on issues 32-35 can not be allowed to remain on case file for lack of application of conscious mind; as the same has been deprecated by the superior Courts; further submits that proper issues were not framed and there was an element of. repetition while framing issues out of 47 issues approximately 10 issues were the exercise of repetition and just nothing. Further submits that the learned appellate Court without applying its mind and jurisdiction did not take heed of the final decisions of the Land Reforms Authorities on the question of the validity of the said gift and erroneously substituted the said final decisions with its findings which is not permissible under the law; hence the findings require to be set aside being perverse and ultra vires of law. Further submits that the Courts below had committed a grave error of law while coming to conclusion that the Appellant/plaintiffs could not prove the documents in accordance with the manner as laid down in Qanoon-e-Shahadat Order 1984, whereas the reasons for such an ambiguous view are not well settled and are against the record and contrary to law, further submits that the title of defendant/Respondent No. 1 to the suit property having been declared void by the competent Land Reforms Authorities who never remained owner in possession of the disputed land and was not competent to alienate the suit land to any one; further submits that the subsequent alienation in favour of defendant/Respondent No. 5 by Respondent No. 1 also could not be held to be immune from challenge by the appellants who derived their title to the suit land from the original owner; hence the impugned judgments and decrees passed by the Courts below may very kindly be set aside and the instant appeals may be allowed to meet the ends of justice.
Conversely, learned counsel for the respondents submits that the judgments and decree passed by the Courts below are in accordance with law and the Courts below rightly dismissed the plaint as well as appeal of the appellants; further submits that according to the Banker's Books Evidence Act, 1891 S.2 (3)-(8) that in all the cases it is only a certified copies from a Banker's Book which is relevant; hence the documents produced by the plaintiffs in this case were not from any book of the bank neither is certified in the manner as prescribed by law by the bank officers. Further submits the power of attorney does not contain any clause that the same was executed for consideration; hence the contention put forth by the learned counsel for the appellants had no force keeping in view Section 202 of Contract Act 1872; further submits that where a talukdar makes a deed of gift in favour of his minor son of the whole of his estate reciting in it that the estate is heavily indebted and that he desires to put it under the superintendence of the Court of Wards to liquidate those debts, such recital is not considered to be inconsistent with the genuineness of the gift and can not make the deed of gift a fictitious one; further submits that when statement of a witness which was material to the controversy of the case particularly stating his case when not challenged in cross examination then such unchallenged statement would be given full credit and usually accepted as true, unless and until displaced by reliable, sound and cogent evidence. In this respect reliance is placed upon the reported judgment Ram Bharose and others vs. Diwan. Rameshwar Prasad Singh (AIR 1938 Oudh 26); further submits that the plaintiffs have to prove that Col. L.H.G Conville in order to protect his land from land reforms purported to make a gift of same agricultural land in favour of his sons and grand children but inspite of this he actually remained in possession and continued to mange it; further submits that there is nothing in Section 122 of Transfer of Property Act to limit acceptance of a gift to an express acceptance. The acceptance of gift may be express or implied. In this respect reliance is placed upon judgment reported titled Mt. Anandi Devi vs. Mohan Lal and others (AIR 1932 All 444); further submits that in Muhammadan Gift the objection as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in case where the donor is himself supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both donor and the donee. In this respect reliance is placed upon the reported judgment titled Fazal Ahmad vs. Mst. Rakhi (PLD 1958 (W.P) Lahore 218); further submits that where execution of document had been denied by its alleged by its executant by disowning his/her signature/thumb impressions, it would become duty of beneficiary under the document to at once apply to the Court for getting thumb impressions compared from Handwriting Expert. In this respect reliance is based on the reported judgment titled Khushi Muhammad and others vs. Noor Bibi and others (2005 YLR 2645); further submits that material produced by plaintiffs did not indicate that execution of Tamleeknama (alleged Sale P5 + P19 of this case) was effected during lifetime of alleged donor; it is settled law that any person acquiring by gift, inheritance, purchase or otherwise any right in any estate as a land owner, would within three months from date of such acquisition, report his acquisition of right to Patwari of estate who would record such report in his daily diary and furnish copy of such report to person making the report. Reliance is placed upon the judgment reported titled Wali Muhammad and others vs. Mst. Zainab Bibi and others (1996 MLD 869). Further submits that it is wrong to assume that every general power of attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. In this regard reference is made to reported judgment titled Fida Muhammad vs. Pir Muhammad Khan and others (PLD 1985 S.C 341). Further submits that General Attorney must take special permission from principal while transferring his principal's property in his own name or in the name of his close fiduciary relations. Reference is made to reported judgment titled Jamil Akhtar and others vs. Las Baba and others (PLD 2003 SC 494); further submits that under Section 52 of the Transfer of Property Act, a transfer of immovable property in suit to which any right is directly or specifically claimed is not completely prohibited. Reliance is placed upon the reported judgment titled Mst. Surraya Begum and others vs. Mst. Suban Begum and others (1992 SCMR 652); further submits that according to Limitation Act Article 113 suit for specific performance of contract, limitation for filing suit for specific performance of contract being three years from date fixed in agreement or where no such date was fixed from the time of refusal of promissory to perform his part; hence suit filed after about six years from alleged refusal of promisor to perform his part of agreement held was barred by time. Reliance is placed upon reported judgment titled Hassan Muhammad vs. Muhammad Sharif (1989 MLD 1410). Further submits that according to International Law the principle of interpretation is that where application of any statute involved consideration of any International law, attempt should be made to interpret the statute in consonance with International Law, where, however, language of statute is unambiguous and does not permit such interpretation, the statute shall prevail. Reliance is placed upon reported judgment titled Marine Engineers Association of Pakistan vs. Shipping Master, Govt. of Shipping Office, Govt. of Pakistan, Karachi (1989 CLC 588). Further submits that according to Order II Rule 2 and Section 11 C.P.C suit for declaration relating to mutation, dismissal of suit and appeal, whether subsequent suit brought by the plaintiffs was barred by Order II, Rule 2 C.P.C; hence claim which was omitted and relinquished, by them in their previous suit was not only barred by Order II, Rule 2 C.P.C but was also hit by the principles of constructive res judicata under Explanation IV of Section 11 C.P.C. Reliance is placed upon reported judgment titled Safdar Ali and others vs. Muhammad Nawaz and others (2006 YLR 1133). Further submits that it is settled law that Second Appellate Court could not interfere with concurrent findings of fact recorded by Courts below simply on the ground that on reappraisal another view of evidence was possible; hence concurrent finding of fact recorded by Courts below could be interfered with by Second Appellate Court only on the ground of misreading of evidence, non-consideration of any material piece of evidence or perverse appreciation of evidence on record. Reliance is placed upon reported judgment titled Muhammad Amir vs. Khan Bahadur and another (PLD 1996 SC 267). Further submits that the trial Court as well as learned lower appellate Court rightly applied their judicious minds and dismissed the suit as well as plaint of the appellants. Further submits that there is no element of misreading or non-reading of the material available before the two Courts below; hence the instants appeals are liable to be dismissed with costs.
I have heard learned counsel for the appellants as well as learned counsel for the respondents and have perused the record with their able assistance.
The learned trial Court while recording its findings on Issues No. 32 to 35 in Para No. 75 from Line No. 8 to page 84 of the judgment up to Line No. 11 starting from the word:
"that the gifts made by ------------------ A third party like the plaintiffs has no such rights".
had reproduced the written arguments, submitted by counsel for the respondents. In this regard reference can be made to Page No. 12 of the written arguments attached with the record of the trial Court which reiterate the arguments. That findings are based upon the reproduction of the written arguments of learned counsel for the respondents. Thereafter, the learned trial Court without giving its own independent observation, discussion and comparison of the arguments of both the parties, proceeded to decide the issues against the appellants-plaintiffs. Similarly, Issues No. 36 to 39 starting from page No. 85, the word:
"All these issues are interconnected uptill page No. 105 line No. 8 i.e. Registration Act, 1908."
Herein again, without discussing the evidence, the learned trial Court decided the issues against the appellants-plaintiffs. Again findings on Issue No. 40 starting from Page No. 105 to Page No. 108. Likewise, Para No. 88 from Line No. 5 to page 111 of the judgment upto Line No. 18 starting from the word:
"they produced the account -------------------- and not the alleged Rs. 4,25,000.00".
is reproduction of the written arguments, submitted by counsel for the respondents. Findings on Issues No. 42 to 43 starting from Page No. 113 starting from Line No.4:
"if is proved from the contents uptill Page No. 115"
is also the reproduction of written arguments, submitted by learned counsel for the respondents. Issue No. 44 starting from Page No. 116 Line No. 9 i.e.
"this issue pertains to the objection --------------- to Page No. 119 Line No. 13. Similarly, Issue No.45, at Page No. 120 of the Judgment Line No. 3 starting from the word"
"in view of the discussion -------------- admittedly with the Defendant No. 5 since 1990".
Issue No. 46 at Page No. 120 of the judgment is also the reproduction of the written arguments, submitted by counsel for the respondents.
From the comparison made above it is evident that judgments and orders of both Courts below are nothing but a recapitulation of the written arguments of counsel for the respondents/defendants. The evaluation of evidence led by both the parties and his conscious efforts to reach at conclusion is missing. The learned trial Court by simply writing down that learned counsel for the plaintiffs fails to rebut the arguments, proceeded to decide the issues against the appellants-plaintiffs, is not a conscious effort on the part of learned trial Court, as he is required under the law.
A judgment as defined in sub-clause 9 of Section 2 C.P.C. means:
"statement given by the Judge of the grounds of a decree or other".
Mst. Nasim Bashir vs. Abdul Jabbar (2004 MLD 510) Abdul Zahir vs. Haji Gulab (2002 CLC 4) and Pakistan Tobacco Company Ltd. vs. Pakistan Chest Foundation (PLD 1998 Lahore 100).
It is a settled principle of law that a Court is required to give its own reasons by discussing the facts and the evidence on record for pronouncing a judgment and if the Court fails to give its own reasons, it would be deemed, that the Court had acted with material irregularity and illegality and in that eventuality, the decision or the judgment given by the Court would not be sustained in the eye of law. Reference can be placed on Ali Muhammad vs. Mohammad Hayat and others 1982 P.S.C (cases) 804, (PLD 1998 Lahore 100 (supra) and Anjum Tajran Outside Delhi Gate Lahore and 15 others vs. Chief Administration of Auqaf Punjab Awan-e-Auqaf and another (2001 CLC 136).
Perusal of the judgment of the trial Court as well as that of learned lower Appellate Court clearly reveals that the learned trial Court while deciding the most material issues starting from Issues No. 31, to 46 only recorded and recapitalized the arguments of learned counsel for the respondent-defendants and thereafter without discussing the same; decided the issues simply saying that the counsel for the appellants-plaintiffs fails to rebut the said arguments, whereas, the Court was required to give its own finding. Since the judgments of both the Courts below before me is nothing but to recapitualize of the arguments of counsel for the respondents without any indication, discussion or opinion of the Court with regard to the said arguments or the evidence on the record.
As discussed above, the term "judgment and order" in its wider term, may be said to include the decision given by a Court on question or questions on issue between the parties to a proceedings before the Court. A final judgment it determines the principal matter in question conclusively so that if it is given for the plaintiff it is conclusive against the defendant and if it is given for the defendant, it is conclusive against the plaintiff. Such judgment being judgment in personam should fully determine their rights and a Judge is required to have used all his skills in highlighting each and every point under controversy and his own reasons for agreeing with either of the parties on those points.
Sub-rule (2) of Rule 4 of Order 20 C.P.C describes that the judgment shall contain the issues statement of the case, points for determination, reasons thereon and the reasons and such decision. Since, the Court has failed to give its own decision and the reasons for decision on the issue. Judgment, so pronounced, cannot be termed to be judgment as defined in sub-clause (9) of Section 2 and sub-rule (2) of Rule 4 of Order 20 C.P.C., as held in Ghee Corporation of Pakistan Ltd. and 2 others vs. Habib Bank Ltd and 2 others (PLD 1984 Lahore 421). A judgment passed on non-speaking order is liable to be set-aside and if a judgment is not in accordance with law, the same is liable to be set-aside and required a fresh decision from the Court after re-writing the judgment on the same evidence.
Similarly, Order 41 C.P.C relates to appeal from the original decree.
Rule 31 of Order 41 C. P.C reads as under:--
"31. Contents, date and signature of judgment:--The judgment of the Appellate Court shall be in writing and shall state,--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is revered or varied, the relief to which the appellant is entitled"
According to this rule, the appellate judgment should state points arising for determination, its decision thereon, and the reason for its decision, it must apply its own independent mind on the controversy and itself reviewed the record for the purpose of pronouncement its judgment. The appellate Court is required to give its decision with regard to each point, which should be self-explanatory, illuminative and in the nature of such order, it must states its reasons in the decision.
"some members of the judiciary show reluctance in following the prescribed procedures and come out with their own procedure for the sake of convenience, in deciding the fate of cases involving valuable property rights of the litigants. Forgetting that they were not wiser than the law-makers who drafted the Civil Procedure Code, which has stood the test of time for over a century."
The Civil Court are, therefore, to strictly follow the provisions of the Civil Procedure Code both in letter and in spirit arid save wastage of time, which take place on account of their aberrations.
(R.A.) Case remanded.
PLJ 2007 Lahore 1040
Present: Syed Hamid Ali Shah, J.
Mirza ILYAS BAIG and another--Petitioners
versus
DISTT. & SESSIONS JUDGE, TOBA TEK SINGH/ELECTION TRIBUNAL, FAISALABAD and 2 others--Respondents
W.P. No. 1714 of 2006, decided on 18.1.2007.
(i) Punjab Local Government Election Rules, 2005--
----Rr. 67(3) & 72--Civil Procedure Code, (V of 1908)--O. VI, R. 15 & O. VII, R. 11--Constitution of Pakistan 1973--Art. 199--Election Petition--Verification of pleadings--Provisions--Petitioners were returned candidates for seat of Nazim and Naib Nazim--Respondent filed election petition--Application for rejection of election petitions was filed on the ground of mandatory provision--Application was dismissed--Assailed--Petitioner sworn in an affidavit which was duly attested by Oath Commissioner wherein the assertions made in election petition were verified--Held: Petitioners have filed application for rejection of election petition to take refuge in technical knock out--Filing of application under Order VII, Rule 11 was mala fide while order impugned was devoid of any illegality or legal infirmity--Petition dismissed. [Pp. 1042 & 1043] A & C
(ii) Words and Phrases--
----"Schedule" or "annexure"--Documents submitted with election petition do not fall within meanings of "schedule" or annexure".
[P. 1042] B
PLD 1967 SC 486; 2004 CLC 914 and 2004 MLD 244, ref.
Mr. Muhammad Khalid Sajjad Khan, Advocate for Petitioners.
Ch. Abdul Salam, Advocate for Respondents No. 2 and 3.
Date of hearing: 2.11.2006.
Order
Petitioners are returned candidates for the seat of Nazim and Naib Nazim of Union Council No. 176 Faisalabad. Respondents No.2 and 3 filed an election petition before Election Tribunal/Respondent No. 1. Petitioners have contested election petition through filing of written reply. During the course of proceedings petitioners moved application for rejection of election petition on the ground that mandatory provisions of Rule 67(3) of Punjab Local Government Election Rules 2005 have not been complied with. Non-compliance entails penal consequences as envisaged in Rule 72 ibid. Respondent No. 1 after calling the reply from respondents and hearing the parties, dismissed the application through impugned order dated 11.03.2006, hence this petition.
Learned counsel for the petitioners has contended that Rule 67(3) of Rules 2005, provides for signing and verification of election petition, every schedule and annexure. Verification is to be made in a manner as provided in CPC for verification of pleadings. Rule 72 provides for penal consequences of dismissal of the petition for non-compliance of the provisions of Rule 67(3). It was added that election petition and documents annexed with the petition are not verified within the contemplation of Order VI, Rule 15 CPC. Learned counsel has submitted that non-verification of election petition renders it non-maintainable and in this respect referred to the cases of "Sundarzada Zafar Abbas and others versus Syed Hassan Murtaza and others (PLD 2005 SC 600), "Iqbal Zafar Jhara versus Khalil ur Rehman and others" (2000 SCMR 250) and "Abdul Nasir and another versus Election Tribunal Toba Tek Singh (2004 SCMR 602).
Learned counsel for the respondents, on the other hand, has contended that election petition has been filed after due verification, on oath, according to provisions of C.P.C., besides the election petition is supported by an affidavit. Learned counsel added that the annexures are attested and signed. Learned counsel went on to argue that the word used in Rule 72 is "may" which leaves it to the discretion of the Tribunal to dismiss the election petition for non-verification. Without prejudice to the above submission learned counsel referred to the cases of "Mst. Shehnaz Begum and 4 others versus Ashiq Hussain Bhatti" (1995 CLC 327) to contend that procedure are meant for advancement of cause of justice and not for purpose of entrapping litigant. While referring to the case of "Engineer Jamil Ahmad Malik versus Ghulam Sarwar Khan and 6 others" (2004 CLC 914) it was contended that documents submitted in support of an election petition do not come within the expression of schedule or annexures. Learned counsel referred to the case of "S.M. Ayub versus Syed Yusaf Shah and others" (PLD 1967 SC 486) to argue that mere defect regarding verification of election petition would not render the same unmaintainable. Learned counsel then contended that the documents annexed with the petition are certified copies duly authenticated by the authorities concerned and have been filed to use the same as pieces of evidence in support of the contentions taken in the election petition, therefore, these documents do not fall within the definition of annexures or schedule and do not require the signature or verification by the petitioner and in view of the of official authentication of such documents as certified copies of public record, any further verification and signing by the petitioner of all these documents would be a superfluous act, not required by law. Learned counsel in these submissions found support from the case of "Hafiz Abdur Rauf Jan versus Bashir Bilour and 6 others" (2004 MLD 244). Learned counsel has submitted that it stands proved through the evidence of PW-1 (Superintendent Certificate Record Branch of BISE Lahore) that matriculation certificate of Petitioner No. 1 is bogus. It was lastly submitted that petitioners are raising technical objections to circumvent the process of law.
Heard learned counsel for the parties and record perused.
Learned tribunal while passing the impugned order, examined record and found that election petition is verified on oath by the petitioner (i.e. Respondent No.2.) Besides the verification, the petitioner has sworn in an affidavit, which is duly attested by the Oath Commissioner, wherein the assertions made in the election petition were verified. The penal provisions as contained in Rule 72 of Election Rules 2005 are not attracted to the instant case. Learned Election Tribunal has rightly held so.
Petitioners (Respondents No.2 and 3 herein) have filed the certified copies of Annexures A, B and C. Petitioners have attested and signed Annexure E. Learned election tribunal has rightly observed that election petition cannot be dismissed, on this score. Respondents (herein) have filed written reply and appended all the relevant documents including the election petition. Perusal whereof reveals that annexures A, B and C are certified copies issued by competent authority. The documents submitted with the election petition to support the assertions made in it do not come within the expression "schedule" or "annexure". While interpreting sub-section (3) of Section 25 read with Section 63 of Act LXXXV of 1976 it has been observed by the apex Court that true import and meaning of words "schedule" or "annexure" is additional allegations of substantive character against other party or better particulars of the allegations made in petition, so as to give them status of substantial grounds of the petition itself. The documents submitted with election petition do not fall within the meanings of "schedule" or "annexure". The interpretation that supporting documents do not fall within the connotation of schedule or annexure which stands settled in the cases of "S.M. Ayub versus Syed Yousaf" (PLD 1967 SC 486), "Jamil Ahmad Malik versus Ghulam Sarwar Khan" (2004 CLC 914) and "Abdur Rauf Khan versus Bashir Bilour" (2004 MLD 244).
It is reflected from the statement of Imtiaz Ahmad, Superintendent Board of Intermediate and Secondary Education Lahore that Ex.P.C is a bogus certificate and candidate who appeared under Roll No. 10753 in Secondary School Certificate Examination (Spring) 1975 is Muhammad Ilyas Bhati son of Mehr Din and not Muhammad Ilyas Baig. Petitioners have filed application for rejection of election petition to lake refuge, in technical knock out. Filing of application under Order VII Rule 11 CPC is mala fide while order impugned is devoid of any illegality or legal infirmity.
For the foregoing petition in hand is without any merit and is dismissed as such, with no orders as to costs.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 1043
Present: Syed Hamid Ali Shah, J.
MUHAMMAD ANWAR--Petitioner
versus
BASHIR AHMED etc.--Respondents
C.R. No. 482 of 2004 decided on 27.12.2005.
(i) Punjab Pre-emption Act 1991 (IX of 1991)--
----S. 13(3) Right of pre-emption--Demand of pre-emption--Failure to comply with demands--Effects--Right of pre-emption of a person extinguishes if demand of Pre-emption under the provisions of Punjab Pre-emption , Act 1991 is not made. [P. 1046] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Performances of Talbs--Talb-Ishhad--Attestation of notice---Limitation--Procedures--Talb-i-Ishhad as provided in S. 13(3) is required to be made by a Pre-emption who has made talb-i-muwathibat and soon thereafter but not later than two weeks from the date of knowledge--Attested notice by two witnesses under registered cover, acknowledgment due to the vendee affirming his intention to. exercise the right of pre-emption. [P. 1046] B
(iii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S 13(3)--Requirement--Format to issue notice-Nature-No format has been prescribed to issue the notice as per requirement of S. 13(3) of Pre-emption Act. [P. 1046] C
Mr. Ijaz Ahmed Chadhar, Advocate for Petitioner.
Ch. Hassan Ali Khan, Advocate for Respondent No. 1.
Mr. Ghulam Siddique Awan, Advocate for Respondent No. 2.
Date of hearing: 13.10.2005.
Order
Brief facts Respondent No. 2 was owner of agricultural land measuring 20K 5M in Chak No. 26 EB, Tehsil Arifwala, which he alienated to Respondent No. 1 through Mutation No. 1019 dated 25.5.1996 Petitioner filed a suit for pre-emption against respondents alleging therein that the land has been transferred through exchange, which is a fake transaction and the real transaction inter se the parties was a sale. Petitioner being Shafi Shareek, Shafi Khaleet and Shafi Jan has the superior right and to defeat the same, the transaction was concluded secretly. Respondents contested the suit, filed written statement, controverted the assertions made in the plaint and raised various preliminary objections. Learned trial Court out of the divergent pleadings of the parties framed nine issues and after recording the evidence decreed the suit in favour of the petitioner vide judgment and decree dated 20.4.1999. Respondent No. 1 assailed the decree dated 20.4.1999 in appeal and the appellate Court while holding that the petitioner has failed to prove Talab-e-ishhad in accordance with the provisions contained in Section 13 of the Punjab Pre-emption Act, 1991, has extinguished his right of pre emption. The appeal was accepted, the judgment and decree passed by the learned trial Court was set aside and the suit was dismissed vide judgment and decree dated 15.1.2002.
Learned counsel for the petitioner has submitted that the appellate Court has non-suited the petitioner, on the ground that no express reference to Talab-e-Muwathibat at the time of Talab-e-Ishhad was made. If was held by the learned appellate Court that mere assertion in the pleadings is not enough and as the witnesses of the petitioner have not deposed about Talab-e-Muwathibat while making Talab-e-Ishhad, no Talab-e-Ishhad has been performed in accordance with law. It was added by the learned counsel that the impugned finding of the learned appellate Court, is not legally sustainable as Talab-e-Ishhad stands proved through Exh.P-1, the notice which the petitioner served upon the respondents. The notice itself stipulates that Talab-e-Muawathibat was performed. The petitioner has produced the receipt of the notice Exh.P-2 and registered A.D. as Exh.P-3. The contents of the notice have not been denied and the performance of Talab-e-Ishhad on the basis of these documents stands sufficiently proved. Learned counsel has submitted that learned Court has relied on the case of Haji Qadir Gul versus Moembar Khan and others (PLJ 1999 SC 79) which is on different premises. The facts of that case no not qualify to the instant proceedings as in that case no notice was given to the minor. Learned counsel while referring to the case of "Muhammad Gul versus Muhammad Afzal" (PLJ 1999 SC 2361) has contended that statement of the plaintiff on oath coupled with written notice sent to the defendant within 10-days of Talab-e-Muwathibat meet the legal requirement of Section 13(3) of the Punjab Pre-emption Act, 1991. It was then contended by the learned counsel that the appellate Court has upheld the impugned decision of the learned trial Court with regard to the other issues and no cross objections have been filed to challenge the concurrent findings of the learned Courts below on Issues No. 1 and 2 wherein it has been held that the transaction was not exchange but was a sale for consideration of Rs.60,000/- (rupees sixty thousand only) per acre. The respondents' failure to file cross objections is fatal and the respondents cannot defend the decree of the learned appellate Court. Learned counsel in support of this contention has referred to the case of "Abdul Haq and others versus Shaukat All and 2 others" (2003 SCMR 74).
Learned counsel for the respondents on the other hand, has fully supported the finding of the learned appellate Court that Talab-e-Ishhad has not been performed according to law. It was contended that no notice was received by the respondents and DW-1 has specifically denied this fact. Learned counsel while referring to the cases of "Muhammad Ramzan versus Lal Khan" (1995 SCMR 1510), "Muhammad Hassan and 2 others versus Shafi-ud-Din and 2 others" (PLD 1995 Quetta 29) and "Anwar Ali versus Shahnawaz and others" (PLD 1989 Karachi 246) has contended that while making second Talab i.e. Talab-e-Ishhad, the reference to the first demand/Talab-e-Muwathibat is essential requirement and non-fulfillment of this requirement, would not entitle the plaintiff to decree of pre-emption and the right of pre-emption stands extinguished. Learned counsel has lastly contended that the scope of the revision is limited and the finding of fact reached in first appeal on the basis of evidence on record is not open to be reversed, even if contrary view was possible on the same evidence. The case of "Muhammad Nasir Mehmood and others versus Rashida Bibi" (2000 SCMR 1013) was referred in support of this contention.
Heard learned counsel for the parties and perused the record.
Perusal of the record reveals that the petitioner in para. 5 of the plaint has asserted that he came to know about the sale on 31.5.1996 at 7 0 Clock in the morning when the petitioner visited Rashid Ahmad Qamar at his Balthak in Chak No.26/EB, where Lal Khan and Gulzar Hussain were present. Petitioner immediately announced his intention of exercising right of preemption on having the knowledge. It was further asserted in para 7 of the plaint that notice in presence of the witnesses was sent and receipt thereof was taken. It reflects from notice Exh.P-1 that the petitioner has specifically mentioned in detail about the factum of Talab-e-Muwathibat. Relevant part is reproduced as under:--
Petitioner while appearing as PW-1 has, in due corroboration with the averments of the plaint and the notice, stated that he immediately on knowing about the sale announced his intention of pre-emption and two days later he obtained relevant copies and issued notice through Rana Sahib, which contains his thumb mark Exh.P-1/1.
The right of pre-emption of a person extinguishes if demand of pre-emption under the provisions of Punjab Pre-emption Act, 1991 is not made. Talab-e-Ishhad as provided in 13(3) is required to be made by a pre-emptor who has made Talab-e-Muwathibat and soon thereafter but not later than two weeks from the date of knowledge, by sending a notice in writing, attested by two witnesses under registered cover, acknowledgment due to the vendee affirming his intention to exercise the right of pre-emption. The petitioner has made Talab-e-Muwathibat, issued notice (Exh.P-1) through registered A.D. (Exh.P-3) and postal receipt in this receipt has been produced as Exh.P-2. The notice has been signed by two witnesses Lal Khan son of Sikandar and Gulzar Hussain son of Abdul Aziz (Exh.P-1/2). This is sufficient requirement of Section 13 of Punjab Pre-Emption Act (IX of 1991). No format has been prescribed to issue the notice as per requirement of Section 13(3) of the Act. It was argued by petitioner in the case of "Dr Muhammad Ayub Khan versus Haji Noor Muhammad" (2002 SCMR 219) has dispelled the arguments that the notice of Talab-e-Ishhad where the performance of Talab-e-Muwathibat has not been mentioned, is improper Talab-e-Ishhad and suit on the basis of such Talab-e-Ishhad liable to be dismissed in view of the judgments reported as 1995 SCMR 1510, 1998 SCMR 2227 and 1999 SCMR 2167. The apex Court dispelled the arguments and held that tendering of notice by the pre-emptor is sufficient compliance of Section 13(3) of the Act. It has been held in the case of "Muhammad Gul versus Muhammad Afzal" (supra) that statement of plaintiff on oath coupled with written notice within 10-days of Talab-e-Muwathibat is substantial compliance of legal-requirement of Section 13(3) of the Act.
The learned appellate Court has non-suited the petitioner only on the ground of non-mention of Talab-e-Muwathibat while performing Talab-e-Ishhad. The finding of the appellate Court is erroneous both on law and facts. Petitioner has proved the performance of Talab-e-Ishhad and mention therein of Talab-e-Muwathibat and the notice of Talab-e-Ishhad by all means meets the requirement of provisions of Section 13(3) of the Act.
For the foregoing, the instant revision petition is allowed, the judgment and decree dated 15.1.2002 passed by the learned appellate Court to the extent of its finding on the question of performance of Talab-e-Ishhad is set aside and decree of the learned trial Court is upheld. No order as to the costs.
(R.A.) Petition allowed.
PLJ 2007 Lahore 1047
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
MUHAMMAD AFZAL--Petitioner
versus
TEHSIL MUNICIPAL ADMINISTRATION HASILPUR DISTRICT BAHAWALPUR through its NAZIM and others--Respondents
W.P. No. 1319-S of 2006/BWP, decided on 23.01.2007
Constitution of Pakistan, 1973--
----Art. 199--Promotion on the recommendation of departmental promotion committee--Cancellation--Condemned unheard--Validity--Natural justice--Principle--Petitioner had commenced his work as promoted appointee, right had accrued to the petitioner that before passing a adverse order. [P. 1049] A
Natural Justice--
----Opportunity being heard--Before passing an adverse order, the effectee must be granted an opportunity of being heard. [P. 1049] B
Mr. M. Shamshir Iqbal Chughtai, Advocate for Petitioner.
Mr. Shahzad Hussain Sheikh, Advocate for Respondents
Date of hearing: 23.1.2007.
Order
I intend to dispose of the instant writ petition as well as the W.P. No. 28-S-2007 BWP (Muhammad Afzal versus Tehsil Municipal Administration etc.) as both these writ petitions have arisen from one and the same cause of action and common facts and law are involved therein.
2 Through the instant writ petition, writ petitioner has sought a direction to be issued to respondents to deliver the salary of petitioner in BS-5 w.e.f. July 2005 up till now and onward.
The facts in brief as narrated are that petitioner was appointed by Municipal Committee, Hasilpur on 27.1.1993 as Oilman water works in BPS-1. On 4.7.2005 upon the recommendation of Departmental Promotion Committee, he was promoted from BS-1 to BS-5 as Junior Clerk/Store Keeper. According to the learned counsel, the petitioner has been performing that duty since then as a Clerk and was, therefore, entitled for the pay of BS-5.
On the other hand, learned counsel for respondents submits that the order dated 4.7.2005, was withdrawn through order dated 28.6.2006, as the promotion of petitioner was wrongly made. There was only one vacant seat for appointment of Junior Clerk and that was filled in by the appointment of Junior Clerk and that was filled in by the appointment of Muhammad Anwar, who was senior to the writ petitioner. The other vacant post was filled in by the appointment of Sohail Ahmad, who was a son of an employee of the Municipal Committee, Hasilpur and was entitled as a matter of right to be appointed on the basis of that right. Learned counsel also submits that after the objection was riased by Audit Department, the order of appointment as Junior Clerk was withdrawn on 28.6.2006. Therefore the petitioner cannot claim pay from 4.7.2005, as he was illegally appointed on that post. He further submits that promotion cannot be claimed as a matter of right and the petitioner has got another alternate remedy of appeal/revision before the competent authority, therefore, the writ petition is not competent. As the promotion order dated 4.7.2005 was illegal, therefore, the successor of Municipal Committee, Hasilpur, namely the Tehsil Municipal Administration had got the power to review the earlier order passed on 4.7.2005, as the aforementioned order was passed illegally.
Writ Petition No. 28-S-2007/BWP (Muhammad Afzal versus Tehsil Municipal Administration etc.) has been filed by Muhammad Afzal against the order dated 28.6.2006 by which his promotion as Junior Clerk/Store Keepter was withdrawn illegal and without jurisdiction. He has also prayed in the writ petition that payment of salary in BS-5 w.e.f., July, 2005 till today be directed to be paid.
Learned counsel for Muhammad Afzal, petitioner also submits that the appointment of the petitioner as Junior Clerk/Store Keeper was approved by Resident Auditor, as in his service book the Resident Auditor had signed as verifying this fact of promotion of the petitioner to be correct and had not objected to it. He has also referred to the signature of Tehsil Officer (Finance), Hasilpur and Tehsil Municipal Officer, Hasilpur, which were put on the service book of the petitioner with regard to his promotion.
After hearing both the learned counsels and from the perusal of record, it has transpired that the promotion of Muhammad Afzal, writ petition on 4.7.2005 on the basis of recommendation of the Departmental Promotion Committee is an admitted fact. As to whether the petitioner was illegally or legally promoted that fact was to be resolved after the notice was issued to the writ petitioner. I have not found any notice having been issued to the writ petitioner before passing the impugned order dated 28.6.2006 by which his promotion was withdrawn/cancelled. After the promotion had been allowed and the petitioner had commenced his work as promoted appointee, a right had accrued to the writ petitioner that before passing an adverse order, he must have been granted an opportunity of hearing. After hearing petitioner, then an order could be passed in accordance with the law, keeping all the facts before deciding the fate of promotion of petitioner. In both these writ petitions, respondents have failed to append any notice, which was if issued to the writ petitioner before passing the impugned order dated 28.6.2006. Therefore, this order dated 28.6.2006 cannot be considered to have been passed in accordance with law. It is a cardinal principal of law of natural justice that before passing an adverse order, the effectee must be granted an opportunity of being heard. Therefore, the order dated 28.6.2006 withdrawing/canceling the promotion cannot be upheld and is declared as illegal and unlawful. Consequently, the respondents are directed to deliver the pay of writ petitioner from 4.7.2005 when the petitioner was admittedly promoted, up till this day and till decision afresh. However, the respondents shall be at liberty to proceed afresh in accordance with law. With this direction/observation, the writ petitions are accepted.
(R.A.) Petitions accepted.
PLJ 2007 Lahore 1050
Present: Jawwad S. Khawaja, J.
SALAMAT ALI etc.--Petitioners
versus
KHAIR-UD-DIN etc.--Respondents
C.R. No. 2531 of 2006, heard on 20.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Suit for declaration--Question of--Mutation of inheritance--Time barred--Fully awareness of inheritance--Entitlement to relief--Discretion of Court--Respondents were not only fully aware of the inheritance mutation but had also challenged it before the revenue forums--Provisions of Limitation Act--Respondents cannot be allowed to impugn the title which has been enjoyed by petitioners for a continuous period of more than 31 years--Held: Respondents are not entitled to relief by way of declaration and permanent injunction because such reliefs are in the discretion of Court and can rightly be denied in appropriate cases--Petition allowed. [Pp. 1051 & 1052] A, B & C
Mr. M.A. Ghaffar-ul-Haq, Advocate for Petitioners.
Mian Javed Iqbal, Advocate for Respondents.
Date of hearing: 20.2.2007.
Judgment
Respondents Nos. 1 to 10 filed a suit against the petitioners and against Respondents Nos. 11 to 15 to challenge mutation of Inheritance No. 439 dated 31.3.1973 whereby the agricultural land belonging to Abdul Ghafoor was mutated in the name of his widow, namely, Mst. Bashir Begum. The Respondents-plaintiffs claim to be the collaterals of Abdul Ghafoor deceased. Their declaratory suit was filed on 15.5.2004 i.e. more than 31 years after the date of the aforesaid mutation.
Subsequent to Mutation No. 439 Mst. Bashir Begum sold the suit land to Muhammad Zaman (Respondent No. 11) vide Mutation No. 466 sanctioned on 29.9.1974. Through a registered sale-deed dated 10.2.1976 the predecessor-in-interest of the petitioners purchased the property from Muhammad Zaman through registered sale-deed dated 10.2.1976. This purchase was subsequently reflected in the revenue record through Mutation No. 489 sanctioned on 3.10.1983.
The petitioners filed their written statement before the learned trial Court and also filed an application under Order 7 Rule 11 CPC praying for the rejection of the plaint on the ground that the suit was time barred. With their application the petitioners appended an order dated 7.5.1974 passed by the Additional Commissioner (Revenue) and an order dated 8.10.1977 passed by the Board of Revenue in revision. These orders show that the respondents-plaintiffs were fully aware of the inheritance Mutation No. 439 and had challenged the same before the revenue forums through appeal and revision. Their appeal and revision had been dismissed respectively by the aforesaid orders dated 7.5.1974 and 8.10.1977. The respondents-plaintiffs concealed these orders from the Court.
The learned trial Court came to the conclusion that in view of the aforesaid documents the suit was patently time barred. As a result, the plaint was rejected vide order dated 26.5.2006. The respondents-plaintiffs preferred an appeal against the rejection of their plaint which appeal has been allowed by the learned Additional District Judge vide order dated 4.11.2006. The petitioners impugned this order.
The reasons, which prevailed with the learned appellate Court for dismissing the application under Order 7 Rule 11 CPC and for remanding the case for trial, was that the law of limitation is not attracted in the case of mutation of inheritance. Presumably the learned appellate Court proceeded on the basis of the case titled Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Learned counsel for the petitioners states, however, that in the present case where the respondents-plaintiffs were not only fully aware of the inheritance mutation but had also challenged the same before the revenue forums, the provisions of the Limitation Act were squarely attracted. This submission has merit and could not be controverted on behalf of the respondents-plaintiffs. The precedent case above is, therefore, clearly distinguishable.
Learned counsel appearing for the respondents-plaintiffs then submitted that while rejecting a plaint under Order 7 Rule 11 CPC, only the contents of the plaint have to be seen. This submission can be accepted as a general statement of the law. However, it is not to be applied mechanically and particularly where resort to the rule would be inequitable and would work injustice on a party such as the present petitioners.
Learned counsel for the petitioners drew the attention of the Court to the objectionable conduct of the respondents-plaintiffs. He firstly referred to paragraph-9 of the plaint filed by the respondents wherein they stated that they came to know of the fraud in respect of the inheritance of Abdul Ghafoor only a short while before filing of the plaint. The suit of the respondents, it may be noted, was filed on 15.5.2004. The averment in paragraph-9 of the plaint is obviously false even to the knowledge of the plaintiffs, because learned counsel for the respondents was not in a position to deny that they had challenged the mutation in favour of Mst. Bashir Begum before the revenue forums as far back as 1974 but without success. A plaintiff, who is not truthful in material particulars, cannot be given any concession particularly in matters where he is seeking discretionary relief. On the other hand defendants such as the petitioners are entitled to protection from protracted civil suits which are, in the end, bound to fail.
Learned counsel for the respondents-plaintiffs next argued that the mutation in favour of Mst. Bashir Begum carried a pedigree table which showed the interest of the respondents-plaintiffs in the suit property. On this basis it was contended that Muhammad Zaman Respondent No. 11 could not claim to be a bona fide purchaser of the suit property from Mst. Bashir Begum. This contention in the context of the present case is wholly misconceived. Even if it is, for a moment, accepted that Muhammad Zaman was not a bona fide purchaser from Mst. Bashir Begum, this has no hearing on the title of the petitioners. As noted above, the predecessor-in-interest of the petitioners had purchased the property from Muhammad Zaman who clearly was the owner of record and was also in possession of the suit property. It is also relevant that the petitioners and before them their predecessor-in-interest are in possession of the suit property since 1976. Before that Muhammad Zaman was in possession since 1974. The respondents-plaintiffs did not challenge the sales made in favour of Muhammad Zaman and the predecessor-in-interest of the petitioners. They, through their own acts and omissions enabled Mst. Bashir Begum and Muhammad Zaman to deal with the suit property as ostensible owners. The respondents, therefore, cannot be allowed to impugn the title which has been enjoyed by the petitioners for a continuous period of more than 31 years.
The above circumstances are sufficient to justify rejection of the plaint under Order 7 Rule 11 CPC. If any authority for this legal proposition is required, reference can be made to S.M. Shafi Ahmad Zaidi vs. Malik Hassan Ali Khan (Moin) (2002 SCMR 338). Additionally, as noted above, it is apparent that the respondents are not entitled to relief by way of declaration and permanent injunction because these reliefs are in the discretion of the Court and can rightly be denied in appropriate cases such as the present one.
In view of the foregoing discussion, this petition is allowed. The order dated 4.11.2006 passed by the learned appellate Court is set aside. As a result the rejection of the plaint by the learned trial Court vide order dated 26.5.2006 is affirmed.
The petitioners shall also be entitled to their costs throughout.
(N.F.) Petition allowed
PLJ 2007 Lahore 1053
Present: Muhammad Akhtar Shabbir, J.
SYED MUSHTAQ HUSSAIN SHAH--Petitioner
versus
JEWAN--Respondent
W.P. No. 9311 of 2005, decided on 21.2.2007.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Constitution of Pakistan, 1973, Art. 199--Zar-e-Soim--Depositing of Zar-e-Soim sale price within thirty days--Suit was dismissed for non-depositing--Application for recalling of order was accepted--Revision petition was dismissed--Assailed--Determination of--Provision of law--Court would require the plaintiff to deposit of zar-e-soim in cash within such period as Court may fix--Provision upon the Court and that is why such period would not be extended beyond 30 days of the filing of the suit--Question required for adjudication by High Court is whether deposited of amount by petitioner was within time or beyond 30 days--Legal aspect has not been adverted to by Courts below and passed impugned orders in violation of statutory provisions of law--Petition accepted.
[Pp. 1055 & 1056] A & D
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Depositing of Zar-e-Soim--Determination of period--Time for depositing of Zar-e-Soim amount of sale price would not extend beyond 30 days and time would be reckoned from the date of filing of suit--Held: Days of filing of suit would calculated. [P. 1055] B
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Zar-e-Soim--Depositing of 1/3rd sale price within 30 days of filing of suit and not from date of passing of order--Pre-emptor is duty bond--Bars discretion of Court to extend the time beyond 30 days--Entitlement of benefit--Pre-emptor is duty bond to deposit the 1/3rd sale price within 30 days of filing of the suit and not from the date of passing of the order--Power of Court is restricted and the Court is not empowered to extend time beyond 30 days of the filing of the suit--Petition accepted. [P. 1055] C
Syed Sajid Ali Bukari, Advocate for Petitioner.
Mr. Muhammad Anees Khatana, Advocate for Respondents.
Date of hearing: 21.2.2007.
Order
Facts giving rise to the present writ petition are to the effect that the plaintiff Jewan and two others Respondents No. 1 to 3 had instituted a suit for pre-emption on a sale of land measuring 77 Kanals situated in Mauza Jangal Katora, Tehsil & District Jhang transferred through mutation of Sale No. 444 dated 4.11.2003 in favour of Mushtaq Hussain defendant/petitioner on 4.3.2004. The Court directed the plaintiffs/ respondents to deposit 1/3rd (Zar-e-Soim) sale price of the land within thirty days and the hearing was adjourned to 3.4.2004. The plaintiff did not deposit the "Zar-e-Soim" within 30 days. Resultantly, the suit was dismissed for non-deposit of "Zar-e-Soim" on 3.4.2004. On the same day, the plaintiff filed an application for re-call of the above-said order and the learned trial Court vide his order dated 30.9.2004 accepted the application and restored the suit. Feeling aggrieved, the present petitioner preferred a revision petition, which came up for hearing before the learned Addl. District Judge, Jhang who vide his judgment dated 28.4.2005 dismissed the revision petition.
I have heard the arguments of the learned counsel for the parties and perused the record.
The question that boils down for determination in this case is that whether the "Zar-e-Soim" 1/3rd sale price of the suit has been deposited within 30 days as directed by the Court. It is an admitted position that the Court had adjourned the case to 3.4.2004 vide its order dated 4.3.2004 with the direction to deposit "Zar-e-Soim" within 30 days. "Zar-e-Soim" was not deposited before 3.4.2004 and that is whey the suit was dismissed on the said date. After dismissal of the suit, the plaintiff deposited the amount of "Zar-e-Soim" amounting to Rs. 4,12,667/- and filed an application for re-call of the order of dismissed and restoration of the suit.
Section 24 of the Punjab Pre-emption Act, 1991 contemplates as under:--
"Section 24 plaintiff to deposit sale price of the property.
(1) In every suit for pre-emption, the Court require the plaintiff to deposit in such Court one-third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix:
Provided that such period shall not extend beyond thirty days of the filing of the suit:
Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property, and a bank guarantee for the remaining two-third of such probable value:
(2) Where the plaintiff fails to deposit one-third of the sale-price or the probable value of the property and the required bank guarantee under sub-section (1) within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under sub-section (1), his suit shall be dismissed.
(4) Every sum deposited under sub-section (1) shall be available for the discharge of costs.
(5) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emption."
4.3.2004 to 31.3.2004 28 days to 30 days
1.4.2004 to 2.4.2004. 2 days
Total 30 days calculating the days of month of March and April would be ending on 2.4.2004.
The pre-emption is duty bond to deposit the 1/3rd sale price within 30 days of the filing of the suit and not from the date of passing of the order. Had the order not been passed by the Court even then the plaintiff was duty bond to deposit the amount within 30 days of filing of the suit. The power of Court is restricted and the Court is not empowered to extend the time beyond 30 days of the filing of the suit. The first proviso of Section 24 bars the discretion of the Court to extend the time beyond 30 days. Therefore, if the period expires on one days earlier, then the deposit made by the plaintiff/respondents cannot be extended and no benefit can be given to the plaintiffs/respondents. In this context reliance can be made to the cases of Awal Noor vs. District Judge, Karak and 8 others (1992 SCMR 746), Ijaz Ahmad Khan vs. Muhammad Asif (2000 CLC 808), Jamshed Ali and 2 others vs. Ghulam Hassan (1995 CLC 957) and Muhammad Jehangir vs. Muhammad Abbas and two others (2004 CLC 538).
This legal aspect of the case has not been adverted to by both the Courts below and passed the impugned orders/judgments in violation of the statutory provisions of law and the principles laid own by the Superior Courts.
For the foregoing reasons, this writ petition is accepted and the impugned orders/judgments passed by both the Courts below are declared to have been passed illegally, without lawful authority and of no legal effect. Resultantly, the order dated 3.4.2004 passed by learned trial Court dismissing the suit is restored.
(N.F.) Petition accepted
PLJ 2007 Lahore 1056
Present: Ch. Ijaz Ahmad, J.
ASHIQ ALI, ASSISTNAT, SERVICES HOSPITAL, LAHORE--Petitioner
versus
GOVT. OF THE PUNJAB through Additional Chief Secretary, S&GAD, Lahore and 5 others--Respondent
W.P. No. 12936 of 2004, decided on 30.7.2004.
(i) Constitution of Pakistan, 1973--
----Arts. 4, 199 & 212--Service Tribunal Act (LXX of 1973), S. 4--General Clauses Act (X of 1897), S. 24-A--Duty and obligation of public functionaries--Jurisdiction of High Court has ample jurisdiction to give direction to public functionaries to act strictly in accordance with law in view of Arts. 4 & 199 of the Constitution. [P. 1057 A
(ii) General Clauses Act, 1897 (X of 1897)--
----S. 24-A--Constitution of Pakistan, 1973--Art. 4-Public functionaries--Duty of--It is the duty and obligation of public functionaries to decide the representation of their subordinates without fear, favour, nepotism, with reasons and within reasonable time as is envisaged by Art. 4 of Constitution read with S. 24-A of General Clauses Act.
[P. 1057] B
Ch. Muhammad Arshad Bajwa, Advocate for Petitioner.
Mr. Muhammad Hanif Khatana, Addl. A.G. assisted by Mr. Muntazir Mehdi, Advocate on Court call for Respondents.
Date of hearing: 30.7.2004.
Order
The sole grievance of the petitioner is that the petitioner filed representation before Respondent No. 2 who has not decided the same till date. The petitioner being aggrieved filed this writ petition.
The learned counsel of the petitioner submits that it is the duty and obligation of public functionaries to decide the applications/representations of their subordinates without fear, favour, nepotism, with reasons and within reasonable time as is envisaged by Article 4 of the Constitution read with Section 24-A of the General Clauses Act.
Mr. M. Hanif Khattana, Addl. A.G. entered appearance on Court call. He submits that Constitutional petition is not maintainable in view of bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act.
I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.
In spite of the bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act, this Court has ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law in view of Article 4 of the Constitution, while exercising powers under Article 199 of the Constitution, as per principle laid down by the Honourable Supreme Court in "H. M. Rizvi and 5 others vs. Maqsood Ahmad and 6 others" (PLD 1981 SC 612) and "Province of Sindh through Chief Secretary Sindh, Karachi and 4 others vs. Gul Muhammad Hajano" (2003 SCMR 325). It is settled principle of law that it is the duty and obligation of public functionaries to decide the representations of their subordinates without fear, favour, nepotism, with reasons and within reasonable time as is envisaged by Article 4 of the Constitution read with Section 24-A of the General Clauses Act, as per principle laid down by the Honourable Supreme Court in "M/s. Airport Support Service's case" (1998 SCMR 2268). It is also settled principle of law that no body should be penalized by inaction of the public functionaries, as per principle laid down by this Court in "Ahmad Latif Qureshi vs. Controller of Examination, Board of Intermediate, Lahore" (PLD 1994 Lahore 3).
In this view of the matter, let a copy of writ petition be sent to Respondent No. 2, who is directed to decide the representation of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and any other person, who would be aggrieved by his order, preferably within two months after receiving the order of this Court, after verifying the record of the respondents, in case the petitioner had already filed representation before him and he has not passed any order on the same till date and the petitioner has also not availed any other alternative remedy till date. The petitioner is directed to appear before Respondent No. 2 in his office at 11-00 a.m. on 9.8.2004, who is directed to decide the represention of the petitioner strictly in accordance with law within two months till 9.10.2004 either himself or send the same to competent authority for its decision, who is also directed to decide the same in terms of the aforesaid direction of this Court within two months till 9.10.2004. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.
The learned counsel of the petitioner is directed to hand over copy of writ petition alongwith all the annexures to Mr. Muhammad Hanif Khatana, Addl. Advocate General, who is directed to send the same to Respondent No. 2 for necessary action and compliance. Office is also directed to provide one copy of this order to the aforesaid learned Addl. Advocate General for onward transmission to Respondent No. 2 for necessary action and compliance.
With these observations, the writ petition is disposed of. Copy Dasti on payment of usual charges.
(R.A.) Petition disposed of.
PLJ 2007 Lahore 1058
Present: Fazal-e-Miran Chauhan, J.
MUHAMMAD TAHIR ABBAS--Petitioner
versus
DISTRICT POLICE OFFICER, DISTRICT GUJRAT and 3 others--Respondents
W.P. No. 4577 of 2005, heard on 21.12.2006.
Service Matter--
----Constitution of Pakistan, 1973--Art. 199--Constitutional petitioner--Discharged from service with grant of pensionary benefits--Issuing of discharge certificate--Question of--Petitioner was directed to approach office of Soldier Board--Requirements of recruitment--Deterrence in way of smooth selection who has been deprived of Constitutional petition--Civil servant joined Pakistan Army and promoted to post of Lance Naik--After serving for specified period the petitioner was elected to retire from Army and transferred to pension establishment and was discharged from service with grant of pensionary benefits--Application for recruitment as constable was not considered by respondents on the ground that he was not retired Ex-Army Officer, rather he had discharged from the services on the request and was kept on reserved list--Respondents were directed to entertain the application of the civil servant considered and passed an appropriate order as law and rules. [Pp. 1061 & 1062] A, B & G
Words and Phrases--
----Retire--The word "Retire" as defined in Law Lexicon, the Encyclopedia Law Dictionary, "The one who has retired from his office". [P. 1061] C
Words & Phrases--
----Retirement--The word "Retirement" as per Black Law Dictionary, 6th Edition, means "Termination of employment services or occupation on reaching retirement age, or earlier at election of employee.
[P. 1061] D
Words & Phrases--
----Election--The word "Election" as defined in Black Law Dictionary 6th Edition means the choice of an alternative. [P. 1061] E
Words & Phrases--
----"Election" Black's Law Dictionary as above "Election" of an individual to retire before reaching his retirement age amount to retirement.
[P. 1062] F
Ch. Muhammad Rafiq Warraich, Advocate for Petitioner.
Mr. Faisal Ali Qazi, Assistant Advocate-General with Muhammad Ashgar, S.I., Police Station, Civil Lines, Gujrat for Respondents.
Date of hearing: 21.12.2006.
Judgment
Briefly the facts of the case as gleaned from the petition are that; the petitioner joined Pakistan Army as Sepoy on 25.2.1994 and on the basis of good performance in his duties, he was elevated to the post of Lance Naik allotting No. 3341278 of 18th Battalion Frontier Force Regiment. In the year, 2004, according to the policy of Pakistan Army, the petitioner was transferred to pension establishment w.e.f. 5.8.2004 and was discharged from service with grant of pensionary benefits, which fact stands established from the perusal of Provincial Discharge Certificate as well as Discharge Certificate issued by the F.F. Center (RW) Abbottabad; the petitioner was directed to approach the office of Soldier Boards, Gujrat to obtain his said certificate, thereafter, certificate of service/pension book was also issued in his favour.
According to the schedule for recruitment of Constables, last date for submission of applications was fixed as 6.2.2006, whereas, the dates scrutinizing the documents were fixed w.e.f. 7.2.2006 to 10.2.2006 and the date for measurement of height and the chest etc., was scheduled on 16.2.2006 and 17.2.2006 and thereafter taking interview on 18.2.2006 and 19.2.2006, final list was to be notified on the notice board for 20.2.2006.
It came to the knowledge of the petitioner that; neither his application was accepted for the post of Constable nor the same was rejected, whereas, Respondents No. 3 and 4, subordinate officials of Respondent No. 1, on the fake plea that the certificate of service of the petitioner was not genuine but assured the petitioner to produce him before Respondents No. 1 and 2; the petitioner appears before the District Police Officer and made a request that this certificate of service may be got verified from the Soldier Board, Gujrat as well as from the Regiment from where he was granted pension in reserve police of Pakistan Army. Upon this, Respondent No. 1 assured the petitioner that the said schedule of recruitment of Constables was going to be cancelled and fresh schedule would be got published in which the application of the petitioner would be entertained. But surprisingly said list of recruitment of Constables was got published on 25.4.2006 and the petitioner approached Respondent No. 1, but of no vail.
It may be mentioned here that the petitioner fulfilled all requirements of recruitment as Constables but the subordinate officials of Respondent No. 1 caused deterrence in the way of smooth selection of the petitioner who has been deprived of his constitutional right.
Conversely, learned Assistant Advocate-General argues that; application of the petitioner was considered and rejected in the light of the terms and conditions laid down in circular letter No. SE-III-846-90/II, dated 20.1.2006, issued by the Inspector General of Police Punjab. The operative part of the terms given in the report and parawise comments is as under:--
(i) The age of Ex-Army personnel shall not be more than 25 years after deducting the total period of Service rendered in the armed forces.
(ii) However, they should have not retired from Armed Forces for a period more than two years from the last date of receipt of application.
(iii) The present age of Ex-Service employee should not be more than 40 years in all.
Further argues that the petitioner is not a regular retired Army Personnel. He was discharged from the Pakistan Army on his personal request and was kept on reserved list. Thus, his application was rightly not considered by he respondents.
I have heard learned counsel for the parties and perused the record. The petitioner joined the Pakistan Army on 25.2.1994 and promoted to the post of Lance Naik. His rank number was 3341278-LNK. After serving for ten years and five months, the petitioner elected to retire from Pakistan Army and transferred to Pension establishment w.e.f. 5.8.2004 and was discharged from service with grant of Pensionary benefits. Attested discharge certificate is attached as Annexure-D, page No. 15 of the writ petition. He was enrolled as Reservist and certificate was issued on 12.7.2005.
As per Para No. 13 of the certificate of service, he was declared to be fit for civil employment. His application for recruitment as Constable was not considered by the respondents simply on the ground that he is not a retired Ex-Army Officer, rather he was discharged from the services on his request and was kept on reserved list. The question, which requires due consideration and determination by the Court as to whether any Army Personnel, who elected to get discharged from services before his retirement would be considered to be a retired person for the purpose of getting re-employment in Civil Services.
The word "Retire" as defined in Law Lexicon, the Encyclopedia Law Dictionary, "The one who has retired from his office".
The word "Retirement" as per Black's Law Dictionary, 6th Edition, means "Termination of employment, services or occupation on reaching retirement age, or earlier at election of employee.
The word "Election" as defined in Black's Law Dictionary 6th Edition means "the choice of an alternative".
Application of the petitioner was not considered by the respondents, simply on the ground that he was not a "retired" Army Officer, a pre-requisite as per the advertisement.
Keeping in view the meaning given by the Black's Law Dictionary, as above "election" of an individual to retire before reaching his retirement age amounts to retirement. Thus, it is held that the petitioner would be deemed to be retired as Army Personnel, eligible to apply for the post of Constable as advertised by the respondents.
In this view of the matter, writ petition is accepted and the respondents are directed to entertain the application of the petitioner, consider the same and pass an appropriate order as per law and rules.
(R.A.) Petition accepted
PLJ 2007 Lahore 1062 (DB)
[Multan Bench Multan]
Present: Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ.
NATIONAL BANK OF PAKISTAN through its Manager--Appellant
versus
M/s. MUJAHID NAWAZ, COTTON GENNERS through its Partners and 6 others--Respondents
RFA No. 128 of 2004, heard on 30.11.2006.
(i) Banker's Books Evidence Act, 1891--
----S. 2(8)--Certified copy--Suit for recovery--Executed documents and availed facility--Failed to liquidate outstanding liability--No serious and bona fide dispute--Leave application was dismissed--Assailed--Mortgage failed to pay any premium of insurance--Bank has debited the salary of staff, inspection charges and other miscellaneous expenses in respondent's account--Statement of accounts was not certified copy--Act of manipulations and cutting--Date of expiry was fixed, but it was struck down by stroke of pen--Court had also inspected finance agreement which shows the fixed date--Court find some manipulations and cutting in finance agreement to make the date of expiry--On the basis of such type of finance agreement which bears cutting, overwriting, manipulations and interpolation, it can neither be urged nor held that the date of expiry was changed--Appeal dismissed. [P. 1065] C
(ii) Banker's Books Evidence Act, 1891--
----Ss. 2(8) & 4--Certified copy without evidence of matters--Certified copy was not in accordance with provision of law so cannot be received as prima facie evidence of existence of such entry and cannot be admitted as evidence of the matters, transaction and accounts as required under the Banker's Books Evidence Act, 1891--Appeal dismissed. [P. 1065] A & B
Sardar Riaz Kareem, Advocate for Appellant.
Mr. Abdul Majeed Malik, Advocate for Respondents.
Date of hearing: 30.11.2006.
Judgment
Mian Hamid Farooq, J.--National Bank of Pakistan, the appellant/plaintiff, through the present appeal, has called in question judgment and decree dated 12.5.2004, whereby the learned Judge Banking Court, Multan, passed a decree, to the tune of Rs. 87,387/- alongwith costs of funds and costs of suit, favouring the appellant bank.
Precisely stated facts of the case are that the appellant bank/plaintiff filed the suit for recovery of Rs. 10,96,199/-, against the respondents/defendants, before the learned Judge Banking Court, inter alia, pleading that the respondents were granted a cash financial facility of Rs. 5 Million, against securities of pledged stocks and mortgage of property, belonging to Defendants No. 3, 4 and 7 and the defendants executed certain documents and availed the facility, however, when they failed to liquidate the outstanding liability, the appellant bank was constrained to file the suit for recovery. The respondents, except Respondent No. 3, filed the application for leave to defend the suit, which was resisted by the appellant bank and ultimately the learned Judge banking Court, after finding that no serious and bona fide dispute exists between the parties, dismissed the said leave application and consequently, after examining the statement of accounts partially decreed appellant's suit for the sum of Rs. 87,387/-, together with costs of funds and costs of suit, vide composite judgment and decree dated 12.5.2004, hence the present appeal.
Learned counsel for the appellant has submitted that an amount of Rs. 2,78,757/-, charged by the appellant bank, as insurance charges, and salary of staff etc. in the statement of accounts, has illegally been deducted, while the appellant Bank is entitled to recover that amount as per clause (4) of the mortgage deed dated 16.10.1997, thus, the impugned decree needs modification to that extent. He has further submitted that the date of the expiry of finance facility was 30.6.1999, while it was erroneously held that it was 30.4.1999. The learned counsel for the respondent has submitted that the Bank failed to place on record any documents showing the alleged payment made to the insurance company.
We have heard the learned counsel and examined the summoned record. Clause (4) of the said mortgage deed clearly states that in case mortgagor failed to pay any such premium of the insurance, the bank may pay the same on behalf of the mortgagor and recover the same from him. The respondents have not denied the execution of the said mortgage deed. Thus on the strength of the said clause, the appellant Bank could recover the insurance charges from the respondents. An amount of Rs. 1,67,459/- has been charged as insurance charges, as held by the learned Court. The appellant bank has also debited the salary of the staff, inspection charges and other miscellaneous expenses in the account of Respondent No. 1, thus, the total amount, as calculated by the appellant, charged as insurance charges, salary of staff and inspection charges etc. comes to Rs. 2,78,575/-. We have examined the summoned record and find that although the said amount was debited in the account of the respondents, yet the appellant bank did not file any supporting documents in order to show that such and such amount was paid by the Bank, to the insurance company as premium, on behalf of the respondents/mortgagors and that such and such amount was paid as salary. We are unable to find any document on record even to prima facie show that the said amount was, in fact, paid to the insurance company/concerned persons. The appellant bank should have filed the vouchers, receipts or some other documents manifesting that the said amount was, in fact, paid to the insurance company. In the absence of any supporting documents, the Bank is not entitled to recover the said amount merely on the ground that the same finds mention in the statement of accounts, which is not authenticated by documents/receipts. Thus the learned Judge Banking Court has rightly declined to allow the said amount of Rs. 2,78,757/- to the Bank.
We have minutely examined the statement of accounts and find that the same has not been certified as required under the law. The certificate given at the bottom of the statement of accounts is reproduced below:--
"Certified on oath that all the entries are correct as per ledger which is still in our custody."
"Certified copy" has been defined under Section 2(8) of Banker's Books Evidence Act, 1891, which reads as follows:
"Certified copy" means a copy of any entry in the books of a bank together with a certificate written at the foot of such copy that it is true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, such certificate being dated and subscribed by the principal accountant or manager of the Bank with his name and official title."
It flows from the bare perusal of the said provision of law that a certificate, which is to be given at the foot of copy of statement of account, so as to make it certified copy of the statement of Accounts, must state the following facts:--
(i) It is true copy of the such entry;
(ii) such entry is contained in one of the ordinary's books of bank;
(iii) it was made in the usual and ordinary course of business;
(iv) such book is still in the custody of the bank;
(v) it must be dated; and
(vi) subscribed by the principal accountant or manager of the bank with his name and official title.
Placing the definition of "certified copy", as reproduced above, in juxta position with the certificate given by the bank on the copy of the statement of accounts, one leads to the irresistible conclusion that the certificate is not in accordance with the aforesaid provision of law. Thus the statement of accounts is not "certified copy" as contemplated under Section 2(8), ibid. Consequently, the said copy cannot be received as prima facie evidence of the existence of such entry and cannot be admitted as evidence of the matters, transaction and accounts as requited under Section 4 of the Banker's Books Evidence Act, 1891. On the basis of this statement of accounts, which is not the certified copy the respondents cannot be held liable to pay the amounts claimed by the appellant.
As regards next contention of the learned counsel. We find from sanction letter dated 1.7.1998 that the date of expiry was fixed as 30.4.99, but it was struck down by stroke of pen. We have also inspected finance agreement dated 22.10.98 which shows the date of expiry as 30.6.99, however, the same appears to be the result of overwriting. We find some manipulations and cuttings in clauses 1 and 3 of the finance agreement, so as to make the date of expiry as 30.6.99. On the basis of such type of finance agreement which bears cuttings, overwriting, manipulations and interpolation, it can neither be urged nor held that the date of expiry is 30.6.99. We feel that the date of expiry has rightly been held as 30.4.99. Contention of the learned counsel has no substance. Learned counsel for the appellant has admitted that the respondents have paid the amount of Rs. 51,34,370/- after 30.4.99.
In the above perspective, we have examined the impugned judgment and decree and find that the same do not suffer from any legal infirmity, those were passed not only in accordance with the record of the case but also in consonance with the law on the subject. We are not perused to modify the decree, as prayed by the appellant.
In view whereof, the present appeal is devoid of merits, hence stands dismissed with no order as to costs.
(N.F.) Appeal dismissed.
PLJ 2007 Lahore 1066
Present: Maulvi Anwar-ul-Haq, J.
ABDUL KHALIQ--Petitioner
versus
BASHIR AHMAD and 5 others--Resondents
W.P. No. 6130 of 1998, heard on 9.5.2007.
Power of Attorney--
----Power of attorney does not at all spell out any authority to refer the matter to arbitration or to appoint an arbitrator. [P. 1070] A
Limitation Act, 1908 (IX of 1908)--
----Ss. 5 & 14--Question of limitation--An independent application under Section 14 of Limitation Act has not been filed and as such the application filed under Section 5 of Limitation Act could not be considered. [P. 1071] C
Civil Procedure of Code, 1908 (V of 1908)--
----Ss. 12(2) & 100--Arbitration Act, (X of 1940), S. 14--Suit for declaration--Arbitration agreements award, decree and such proceeding are void as he had never authorized his wife to enter into an arbitration agreement--Plaint rejected--Second application--Property exclusively belonged to late father of petitioner having been inherited--No any dispute existed regarding such land between the parties--Held: Entire proceedings are without lawful authority--There is no arbitrary agreement and as such there was no question of arbitration proceedings, award or the decree pursuant thereof--Petition allowed.
[P. 1071] B
Mr. S.M. Tayyab, Advocate for Petitioner.
Mr. Baleegh-uz-Zaman, Advocate for Respondent No. 1.
Remaining respondents proceeded exparte vide order dated 15.12.2003.
Date of hearing: 9.5.2007.
Judgment
On 30.3.1983 one Mian Imam Din son of Ahmad Din filed an application under Section 14 of the Arbitration Act, 1940. It was stated therein that Bashir Ahmad son, Mst. Begum Bibi, daughter, of Allah Ditta and Abdul Khaliq son of Nazir Ahmad, (present petitioner) through his wife Mst. Pukhraj Janjua as general attorney, appointed him as arbitrator vide arbitration agreement dated 7.2.1983 and 11.3.1983, to decide their dispute regarding the property mentioned in para 1 of the application; that acting as arbitrator he made and published his award dated 27.3.1983. He accordingly made a prayer that the award be filed in Court. He appended the arbitration agreement as well as award with the said application. Notices were issued in this application for 27.4.1983. An application was filed by the said Imam Din, arbitrator, on 14.4.1983 through Muhammad Sadiq, Advocate, Kharian stating that the parties have entered into compromise and a decree be passed accordingly. The file was requisitioned by the learned Trial Court. A written reply purporting to be on behalf of the said Bashir Ahmad, Mst. Begum Bibi and Abdul Khaliq through his general attorney Mst. Pukhraj was filed stating that there is no objection if a decree is passed after making the award rule of Court. The statement of said counsel and Bashir Ahmad, Respondent No. 1 was recorded. On 16.4.1983 the award was made rule of Court and decree sheet was prepared.
On 25.8.1983 the petitioner, Abdul Khaliq, filed a suit seeking declaration that the arbitration agreement, award, decree and the said proceedings are void as he had never authorized his wife to enter into an arbitration agreement. This suit was contested. The plaint was rejected on 2.2.1987 on the ground that the suit is not maintainable and an application under Section 12(2) CPC was to be filed. A first appeal filed against the said order was dismissed by the learned ADJ, Gujrat on 22.4.1987.
On 17.5.1987 the petitioner filed an application under Section 12(2) CPC for the same relief. According to the contents of this application Nazir Ahmad, late father of the petitioner, purchased 179 kanals agricultural land in village Chahkori Slier Ghazi, Tehsil Kharian District Gujrat through various sales. He also constructed a bungalow B.II.299. These were exclusive properties of his father and when he died on 16.9.1982 he inherited the same. Another parcel of land measuring 13 kanals in the same revenue estate was inherited by the said Nazir Ahmad brother of Bashir Ahmad, Respondent No. 1 and sister Mst. Begum Bibi from their late father Allah Ditta. In 1982 he was working for gain in Baghdad and was to leave the country when Bashir Ahmad, Respondent No. 1 compelled him to get the said ancestral property partitioned. Respondent No. 1 himself got drafted arbitration agreement dated 6.11.1982 but later on he himself rescinded it and the petitioner left for Baghdad. When the petitioner was out of country Respondent No. 1 prepared an arbitration agreement dated .11.3.1983 and obtained signature of Mst. Pukhraj, his wife, through mis-representation. In collusion with Imam Din, who was named as arbitrator an award was got published on 27.3.1983. The arbitrator himself filed award in the Court and the same was made rule of the Court. He then referred to the civil suit filed by him. The primary grounds were that the attorney was not authorized to enter into any arbitration agreement, the arbitrator misconducted the proceedings and did not even issued a notice to his wife. The application was resisted by Respondent No. 1. I find that the detail of the properties and manner of its acquisition was not at all questioned in this written reply. However, according to him Imam Din was duly appointed as an arbitrator by wife of the petitioner and he gave a valid award. An application was also filed for condonation of delay. The application was dismissed as being barred by time by the learned trial Court on 4.1.1988. A revision filed by the petitioner was allowed by the learned ADJ, Gujrat on 25.4.1989, who remanded the case with a direction to the learned trial Court to frame all the issues and then decide the same after recording evidence. After remand, the learned trial Court framed the following issues:--
Whether the respondent Abdul Khaliq son of Karam Ali has violated any order of this Court: if so with what effect? OPA
Whether the judgment and decree dated 16.4.1983 are liable to be set aside u/S. 12(2) on the grounds as alleged in this application? OPA
Whether the Respondent No. 5 is not a necessary party? If so its effect? OPR
Whether the respondents are entitled to special costs? If so to what extent? OPR
Whether the application is time barred? OPR
Whether this application is not duly verified? If so its effect? OPR
Whether the applicant is estopped by his own conduct and words to file this application? OPR
Whether this application is liable to be rejected u/S. 11 of CPC? OPR
Whether this application is not maintainable in its present form? OPR
Whether this application does not disclose any cause of action? OPR
Relief.
The evidence of parties was recorded. Issues No. 2, 3, 5 and 7 were answered against the petitioner and the application was dismissed by the learned trial Court on 23.9.1997. A revision filed by the petitioner had been dismissed by the learned ADJ, Kharian on 2.2.1998.
The learned counsel for petitioner contends that the power of attorney executed by the petitioner in favour of his wife Mst. Pukhraj did not at all authorize her to appoint an arbitrator or to refer the matter to the arbitrator, she, therefore, had no lawful authority to appoint Imam Din as an arbitrator. The learned counsel further contends that it is an admitted position on record that the properties exclusively owned by the petitioner were made subject-matter of the said agreement and subsequent award and decree based thereon and there is no dispute whatsoever that the agricultural land and the house built thereon were exclusively owned by the petitioner having inherited it from his father Nazir Ahmad. Regarding limitation he contends that the suit was filed on 25.8.1983 notwithstanding the plea that the suit be treated as an application under Section 12(2) CPC, the plaint was rejected and so was the case with the first appeal. Thereafter, without loosing any time he filed an application under Section 12(2) CPC and in the circumstances of case sufficient cause stood made out for condonation of delay. The learned counsel has relied upon the cases of Noorul Amin and another Vs. Muhammad Hashim and 27 others (1992 S.C.M.R. 1744) and Muhammad Yasin v. Sh. Hanif Ahmad and 4 others (1993 S.C.M.R. 437).
The learned counsel for respondents, on the other hand, supports the impugned orders with reference to agreement (Annexure-A to this writ petition). It is dated 6.11.1982 and is entered directly between Bashir Ahmad, respondent and Abdul Khalid petitioner. He relies on the observation of this Court made in order dated 12.1.1987 passed in CR. No. 1836 of 1986 (Ex.R.3) while dealing with the revision, arising out of matter of temporary injunction in the said civil suit initially filed by the petitioner. He further contends that the award was acted upon as the petitioner sold some of the properties allocated to him in the said award. The learned counsel has referred to the case of Ch. Muhammad Saleem Vs. Muhammad Akram and others (PLD 1971 SC 516).
I have gone through the copies of records with the assistance of learned counsel for parties. I have already narrated above the material contents of the said application and its reply. As noted by me above there was no denial of the details of properties and manner of acquisition particularly purchase of the suit land by the late father of the petitioner and his inheriting the same. The power of attorney executed by the petitioner in favour of his wife Mst. Pukhraj is Ex.A.10. I have examined the said document. It narrates that Abdul Khaliq, petitioner, is exclusive owner of the properties mentioned therein including the agricultural land in the said revenue estate having inherited from his late father Nazir Ahmad Janjua. Since he was working abroad for gain, therefore, it was not possible for him to deal with the properties moveable or immoveable and also the bank accounts, therefore, he appointed Mst. Pukhraj as attorney to manage and control the said properties, to alienate the same, to rent it out, receive rent, execute sale-deed, to receive consideration, mortgage, receive mortgage money, to act and appear on his behalf in connection with the suits brought in Court. The power of attorney does not at all spell out any authority to refer the matter to arbitration or to appoint an arbitrator. Arbitration agreement dated 11.3.1983 is Ex.A.8. Parties thereto are Bashir Ahmad, Respondent No. 1, his sister Mst. Begum Bibi and Abdul Khaliq petitioner through his wife as general attorney. Award dated 27.3.1983 given by Imam Din, arbitrator is Ex.A.9. This document clearly indicates that the award is being given pursuant to arbitration agreement dated 11.3.1983. Petitioner appeared as AW.2 and categorically narrated that neither the aforesaid Imam Din was appointed as an arbitrator nor his wife was authorised to do so. He was cross-examined at length. It was not at all suggested to him that actually the arbitration agreement was executed by him on 6.11.1982 and that Imam Din proceeded on the basis of said agreement. Bashir Ahmad, himself, appeared as RW. 1 and when confronted opined that the arbitrator proceeded on the basis of agreement that was executed by Mst. Pukhraj and this agreement was executed on 11.3.1983. He also admitted in the very first line of cross examination that Nazir Ahmad had purchased 200 kanals of land and there was no ancestral land whatsoever. He also admitted that after purchase of the land Nazir Ahmad obtained possession. He built a bungalow, servant quarters and also installed tubewell. He also explained that two kanals plot in Lalamoosa G.T. Road is their ancestral property, he and his brother have 16 marlas each and their sister has 8 marlas. 8 marlas out of that plot was gifted to petitioner by his sister. It will, thus, be seen that it stands admitted on record that the agricultural land, half of which was given to Respondent No. 1 by the said arbitrator exclusively belonged to Nazir Ahmad, late father of the petitioner having been inherited by the latter. Power of attorney also narrates that the land is exclusively owned by him. There is nothing on record that any dispute existed regarding the said land between the parties. I, therefore, do find-that the entire proceedings are without lawful authority. There is no arbitration agreement and as such there was no question of arbitration proceeding, award or the decree pursuant thereof.
The said observation of this Court being relied by the learned counsel with reference to the judgment Ex.R-3 would be of no consequence as the finding have been expressed on prima facie basis while dealing with the matter of temporary injunction. It need not to be said that the said observations are never to be considered while deciding the lis after recording evidence. Even otherwise, it is respondents own case that the arbitration proceeding commenced and the arbitrator acted on the basis of agreement Ex.A.8 for which Mst. Pukhraj had no authority. The learned Courts below have acted on conjecture and surmises by holding that it would be assumed that Mst. Pukhraj had been given authority to enter into the arbitration agreement and to refer the matter to the arbitrator and that too when there was no dispute regarding the property exclusively owned by the petitioner with reference to which power of attorney was given.
Now coming to the question of limitation. The learned ADJ has observed that an independent application under Section 14 of the Limitation Act has not been filed and as such the application filed under Section 5 of the said Act of 1908 could not be considered. To my mind the learned ADJ has acted without jurisdiction while making the said observation. As noted by me above the suit was filed on 25.8.1983, plaint of which was rejected on 2.2.1987 (Ex.PA.13). The appeal was dismissed by the learned ADJ Gujrat on 22.4.1987 (Ex.A.10). An examination of this judgment would show that it was prayed on behalf of the petitioner that the suit be treated, as an application under Section 12(2) CPC, but the prayer was not allowed. Almost immediately after the said decision the application was filed. All these facts, were to be considered by the learned ADJ while deciding the matter of condonation of delay, but it was not done. The said prayer which was made at the earliest is fully supported by the said judgment in case of Noorul Amin and another Vs. Muhammad Hashim and 27 others (1992 SCMR 1744). Facts of the case of Muhammad Yasin and Sh. Hanif Ahmad and 4 others (1993 SCMR 437) are also identical to the present case. The writ petition is accordingly allowed. Both the impugned orders are declared without lawful authority and are set aside. Result would be that the application filed by the petitioner under Section 12(2) CPC shall stand accepted with no orders as to costs.
(N.F.) Petition allowed.
PLJ 2007 Lahore 1072
Present: Sayed Zahid Hussain, J.
M/s. ALSTOM POWER GENERATION--Petitioner
versus
PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY, through its Chairman WAPDA House, Lahore and another--Respondents
W.P. No. 1115 of 2007, heard on 11.6.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 89-A & O. X, R. 1-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Matter for amicable settlement--Alternate Dispute Resolution--Procedure--Advance public policy embodied in law and to fulfill obligation stipulated--Courts are also expected to encourage the parties to adopt such modes--It is now a universally accepted method being followed as a less expensive, less time consuming, less cumbersome and ultimately on fruitful and beneficial mode, commonly known as ADR alternative dispute resolution--Petition disposed of. [P. 1073] A
Mr. Muhammad Akram Sheikh, Advocate assisted by M/s Sharjeel Adnan Sheikh, Khawaja Mohsin Abbas and Ahsan Farooqi, Advocates for Petitioner.
Mian Ashiq Hussain, Advocate for Respondents.
Date of hearing: 11.6.2007.
Judgment
The petitioner is a contractor for the project known as Ghazi Brotha Hydro Power Project, who was awarded contract for the supply eand commissioning of Control, Instrumentation SCADA and Telecommunications. Some disputes appear to have cropped up between the parties which eventually gave rise to the present petition with the prayer that "the respondents may graciously be directed to act justly, fairly, reasonably and in a manner that advances public policy embodied in law and to fulfill their obligations stipulated in clause 50.3 of the contract and enter into good faith negotiations with the petitioner for amicable settlement of disputes between them through ADR."
It is evident from the various interim orders passed that the matter was elaborately dealt with by my learned brother Umar Ata Bandial, J. It has now come before me due to the non-availability of the learned Bench.
At the outset, today the learned counsel for the respondents has urged that though there are serious objections to the competency and maintainability of the petition, yet he has instructions to state that the respondent-WAPDA has no objection "to enter into good faith negotiations for mutual amicable settlement of dispute out of Court". He has indeed produced a copy of the letter No. GM&PD/GBHP/CONT/ 63W/2102 dated 25.5.2007 addressed to him by WAPDA which is to the effect that "It is to inform you that WAPDA is ready to resolve the matter amicably".
The learned counsel for the petitioner has welcomed such a move and has, with the able assistance of his associate, cited precedents that such an approach to the matter for amicable settlement, as visualized by clause 50.3 of the contract, is the best suited mode of dispute resolution. In support of his contention, reference has been made by him to Cable & Wireless PLC ("C&W") (Claimant) and IBM United Kingdom Ltd. ("IBM") (Defendant) [2002] EWHC 2059 (Comm Ct), Channel Tunnel Group Ltd. and another vs. Balfour Beatty Construction Ltd. and others [1993] 1 All ER, Waqqas Limited vs. Province of Punjab (1988 CLC 1865), Board of Intermediate and Secondary Education, Multan through its Secretary vs. Fine Star & Company, Engineers and Contractors (1993 SCMR 530) and an interim order of this Court dated 26.7.2006 in W.P. No.7791/2006. It is suggested by the learned counsel that keeping in view the subject matter of dispute, the Chairman, WAPDA may himself oversee the proceedings and keep vigil. The crux of the precedents is the preference of the parties to resort to amicable means for dispute resolution in such like matters. Such clauses as to negations etc for amicable resolutions of disputes are finding place in almost all commercial contracts. The Courts are also expected to encourage the parties to adopt such modes in view of provisions of S. 89-A and Order 10. R. 1-A of the Code of Civil Procedure, 1908. It is now a universally accepted method being followed as a less expensive, less time consuming, less cumbersome and ultimately a fruitful and beneficial mode, commonly known as ADR (Alternative Dispute Resolution).
Since the essence of the prayer in the petition has been acceded to, the same has borne fruit and is disposed of accordingly.
(N.F.) Petition disposed of
PLJ 2007 Cr.C. (Lahore) 1074
Present: Kh. Muhammad Sharif, J.
STATE--Petitioner
versus
MUHAMMAD AZAM alias TAJJI--Respondent
Crl. Misc. No. 3535/CB of 2007, decided on 29.5.2007.
Proclaimed Offender--
----Dacoity--Suo moto action--Bail was recalled--Respondent/accused was declared offender--Arrested 10 months after occurrence--Offences are at peak--Bail was granted--Suo moto action was taken--Such persons cannot be let loose in society to repeat offence.
[P. 1075] B
Cancellation of bail--
----Respondent was arrested after 10 months--Proclaimed offender--Bail was granted--Submission of challan--Suo moto action--Mere submission of challan is no ground for grant of bail in case punishable with death, life imprisonment of ten years--Held: Bail granted by Magistrate was withdrawn. [P. 1075] C
Suo Moto--
----Fugitive from law--Declared proclaimed offender--Accused was arrested after 10 months of the occurrence--Recommendation for withdrawal criminal power--Bail granted by Magistrate was recalled--Co-accused applied his bail, before the High Court--Fact was concealed--Suo moto action against respondent--Bail granted order by Magistrate was withdrawn--Held: Magistrate had granted bail to respondent on flimsy grounds, which were not available on record--Order would be kept on dassier--High Court recommended to Honorable Chief Justice that his powers for hearing criminal cases might be withdrawn. [Pp. 1075 & 1076] A & D
Mr. Naseer-ud-Din Khan Nayyar, APG alongwith Atta Muhammad, Inspector for Petitioner.
Ch. Shabbir Ahmad Khan, Advocate for Respondent.
Date of hearing: 29.5.2007.
Order
Facts of the case are that complainant lives in Haveli Rustam Wali while his brother. Master Muhammad Arshad was going to Master Shahab Din resident of Kalu Khara to know about his duty. His brother was going on bicycle to Kalu Khara when two young boys met him in the way, his brother asked them about the way leading to Kalu Khara. When his brother was returning back at about 12/1.00 noon, same two boys were sitting under a kikar tree, both were having pistols. They both stopped Master Muhammad Arshad. He was having RS. 50/60.00. The accused asked him to leave his bicycle but he resisted, upon this one of them fired a shot which hit on his left thigh who became injured. Description of both the accused was given in the FIR. Injured Master Muhammad Arshad made a statement on 4.9.2005 attributing the fire shot to the present respondent.
Respondent became fugitive from law, he was declared proclaimed offender and ultimately he was arrested on 27.6.2006 that's 10 months after the occurrence. He applied for bail after arrest before Mahmood Hayat Civil Judge with power of Section 30 Kasur who granted bail to the respondent on 15.12.2006. His co-accused Muhammad Tariq filed Crl. Misc. No. 2589-B-2007 before this Court which was not only dismissed be me but it also came to my notice that in fact it was the second bail petition of Muhammad Tariq co-accused. Earlier Crl. Misc. No. 4746-B-2006 was dismissed by passing a detailed order on 26.6.2006 but his counsel Ch. Jahangir Hussain did not mention this fact. I was going to issue a notice to him but treating a young lawyer I did not think it proper to issue a notice. It also came to my notice that respondent has been allowed bail by Mahmood Hayat Magistrate Section 30 Kasur, bail granting order was placed on record. I am sorry to note that while passing a routine order learned Magistrate had granted bail to the respondent. He has mentioned in his order that no recovery was effected from the respondent, which is totally wrong. Pistol was recovered from the respondent at the time of his arrest on 27.6.2006. The injured PW Master Muhammad Arshad star witness in his statement under Section 161 Cr.P.C has fully implicated the respondent. Learned Magistrate did not bother to go through the record to mention this fact. It is most important aspect of the case that he even did not bother to see that, when respondent was arrested and whether any proceeding under Section 87/88 Cr.P.C were initiated against the respondent. Respondent was also declared proclaimed offender. He was arrested 10 months after the occurrence. Such like offences are at peak in the country. These type persons cannot be let loose in the society to repeat the offences. I have procured his presence after lot of efforts. Learned counsel for the respondent submits that respondent was allowed bail after arrest, challan has been submitted in the Court and no recovery has been effected from him. I may state here that mere submission of challan is no ground for grant of bail in a case punishable with death, life imprisonment or ten years. So bail-granting order passed by learned Magistrate Section 30 Kasur is withdrawn. He is already in custody. He shall be sent to judicial lock up. Learned trial Court is directed to proceed further with the case and complete the trial as early as possible.
I would not restrain to comment upon the working of learned Magistrate who did not bother to go through the record at the time of granting bail to the respondent. He had granted bail to the respondent on flimsy grounds, which were not available on the record. This order shall be kept on his dossier. I also recommend to the Honourable Chief Justice that his powers for hearing criminal cases may be withdrawn. A copy of this order be sent to learned Sessions Judge, Kasur.
(A.S.) Order accordingly.
PLJ 2007 Lahore 1077
Present: Muhammad Muzammal Khan, J.
MUHAMMAD ZAHID NASEEM ADIL--Petitioner
versus
MUHAMMAD SHAFI and 5 others--Respondents
C.R. No. 1745 of 2005, decided on 2.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XXXIX, R. 2(b)--Application for grant of injunction--Violation of restraint order--Mutations--Date of order seized to exist--Amendment--Notification--Revision dismissed--Period of six months under Rule (2) was substituted with words "one year"--Mutations were attested in violation of prohibitory order, had not impressed to upset the well reasoned judgments/orders, for the simple reason that though procedural law could be applied retrospectively but it could not inject the life to the order which already stood vacated--Petitioner's stay order seized to exist before amendment and in these circumstances, amendment was of no help to the petitioner's case--Revision dismissed. [Pp. 1078 & 1079] B
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, R. 2(3)--Injunctive order--Order was not extended--Validity--Restraint order was not extended by trial Court and stood automatically vacated by operation of law. [P. 1078] A
Rana Rashid Akram Khan, Advocate for Petitioner.
Date of hearing: 2.2.2007
Order
Instant civil revision assailed the judgments orders/dated 31.3.2004 and 3.11.2004 passed by the learned Civil Judge and the learned Additional District Judge, Toba Take Singh, to be declared illegal, void and of no legal consequence, whereby application under Order XXXIX Rules 2 (3) CPC filed by the petitioner and his appeal were dismissed respectively.
Factual background of the case is that petitioner filed a suit for specific performance of an agreement to sell against the respondents wherein he also moved an application for grant of temporary injunction restraining the respondents from alienating the property in question, pending suit. The learned Civil Judge, seized of the matter, after hearing the parties, confirmed already granted ad-interim injunction vide his order dated 22.1.2000.
Petitioner moved another application under Order XXXIX Rule 2 (3) CPC complaining violation of restraint order dated 22.1.2000 and reported that respondents got sanctioned 3 sale Mutation Nos. 713 dated 23.8.2000, 715 on 26.9.2000 and 735 dated 26.4.2001, transferring the suit land in favour of third party. This application was opposed by the respondents and was dismissed by the learned Civil Judge vide his order dated 31.3.2004.
Petitioner being aggrieved of the dismissal of his application, filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was also dismissed on 4.11.2004. He has now filed instant petitioner for ad-judgment of concurrent judgments/orders of the 2 Courts below.
I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Besides the lawful reasons, which concurrently weighed with the two Courts below while returning the impugned judgments/orders, injunctive order dated 22.1.2000 was to remain operative for a period of 6 months unless the same was extended by the Court through an order passed after hearing of the parties and conscious application of judicial mind, as per previsions of Rule 2-B of Order XXXIX CPC. In this case restraint order was not extended by the trial Court after 22.7.2000 and stood automatically vacated thereafter, by operation of law. All the 3 mutations were sanctioned much later than the date on which the said order seized to exist consequently petitioner's application under Order XXXIX Rule 2(3) CPC was correctly dismissed by the Courts below.
Stance of the Learned Counsel for the petitioner that period of 6 months mentioned in Rule 2-B of Order XXXIX CPC was substituted with the words "one year" through Gazette Notification No. 338/Rules-II, hence the mutations in question were attested in violation of the prohibitory order, has not impressed him to upset the well reasoned judgments/orders, for the simple reason that though procedural law could be applied retrospectively but it could not inject life to the order which already stood vacated. Petitioner's stay order seized to exist on 22.7.2000 whereas the amendment relied was made on 20.10.2001 and in these circumstances, the same was of no help to the case of the petitioner. Reliance in this behalf can conveniently be made to the cases of Samir OOSMAN & 2 others versus Rex Talkies (Pvt.) Ltd. & another (PLJ 1997 Karachi 1061) and Syed Muhammad Shah Jahan Shah versus Fazal ur Rehman (1996 CLC 1572).
For the reasons noted above, no case for interference in revisional jurisdiction of this Court was made out and consequently instant petition being devoid of any merit, is dismissed in limine.
(N.F.) Petition dismissed.
PLJ 2007 Lahore 1079
Present: Kh. Muhammad Sharif, J.
Professor (Rtd.) Mian KHALID IKRAM MEHMOOD and another--Petitioners
versus
CCPO, LAHORE and 7 others--Respondents
W.P. No. 4005 of 2007, decided on 15.5.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Duty bound to register case--Land was distributed--Dispute arose between the parties--False will was prepared--Respondent forcibly turned out the petitioners from their residences--Possession was restored--Respondent filed civil suit for declaration--Status qua was passed--False will was prepared by respondents regarding the whole land in-question--Possession was disturbed again--F.I.R. was lodged--Possession was handed over back--Another attempt was made--Civil suits were filed--Status-quo--Assailed--Validity of document--Writ petition is discretionary relief--Technicalities of law--Police is duty bound to protect their possession life and liberty even after handing over the possession to petitioner--If the petitioner moves an application for registration of the case, police is duty bound to register the case against respondent--Investigating officer is directed to get admitted signatures of the deceased and compare with signature on decree. [P. 1085] A
Mr. Aftab Ahmad Bajwa, Advocate for Petitioner.
Ch. Muhammad Hanif Khatana, Addl. Advocate General alongwith Imran Ahmad SP, Ateeq Sindhu DSP, Umar Rashid Butt, Inspector, Sana Ullah Inspector Legal and Naeem Ahmad S.I.
Mr. M. S. Shad, Advocate for Respondents No. 6 and 7.
Ch. Imtiaz Elahi, Advocate for Respondent No. 5.
Date of hearing: 15.5.2007.
Judgment
Learned counsel for the petitioners submits that late Justice (R) Mian Qurban Sadiq Ikram was owner of three kanals of land situated at 119 Model Town Lahore; that on 31.5.1992 he distributed the said land by giving one kanal to Dr. Ayaz Mahmood and Babar Khalid, who are sons of petitioners while Petitioner No. 1 is real brother of late Justice (R) Mian Qurban Sadiq Ikram; that two kanals of land was given to Majid Ikram and Amjad Ikram respondents; that on 12.6.1995 late Justice (R) Mian Qurban Sadiq Ikram filed a petition under Section 12(2) CPC alongwith Dr. Ayaz Mahmood Babar Khalid against Majid Ikram etc. in which compromise was effected between the parties on 27.6.1995; that according to said compromise deed, which has been produced alongwith site-plan, was signed by late Justice (R) Mian Qurban Sadiq Ikram; that on 27.1.2007 respondents Majid Ikram etc. forcibly turned out the petitioners from their house; that on hue and cry "Mohalladars" and police came there and the possession of said house, which was constructed by the petitioners, was handed over back to them; that a day prior to the above stated occurrence i.e on 26.1.2007 Majid Ikram respondent filed a civil suit for declaration with permanent injunction against Ayaz Mahmood etc. sons of the petitioners in which status-quo order was passed by learned Civil Judge; that thereafter on 24.3.2006 a false will was allegedly made by the respondents to the effect that whole three kanals of land was given to the respondents Majid Ikram etc; that Majid Ikram etc. respondents in this regard also made acknowledgement deed, which is dated 28.4.2006; that a forged will was created by Majid Ikram etc. in order to grab the property belonging to the present petitioners which was given to them by late Justice (R) Qurban Sadiq Ikram; that if the said will was genuine one then late Justice (R) Qurban Sadiq Ikram must had made an application to the Model Town Society in this regard which was not done; that civil suit filed by the respondents was fixed for 8.2.2007 when Majid Ikram etc. again attempted to take over the possession of said house on 10.2.2007; that upon this emergency police was called upon and Majid Ikram etc. respondents were taken into custody and a case FIR No. 46 of 2007 under Section 448, 511 PPC was registered against them and possession was handed over back to the present petitioners; that again on 12.2.2007 another attempt was made by the respondents Majid Ikram etc, matter was reported to the police and a case FIR No. 48 of 2007 under Sections 506/B, 148, 149 PPC was registered against them and they were arrested by the police; that Majid Ikram one of the respondent is son in law of Ehsan Ullah Waqas MPA of the area belonging to Jamat Islami called the petitioners and Majid Ikram etc. respondents for compromise but with bad intention and ultimately the petitioners were thrown out from their house on 14.2.2007; that thereafter they started living with Professor Saif ul Haq and still they are living there; that a complaint was filed by respondents against said Professor and the petitioners; that civil suit was filed by the respondents on 26.1.2007 in which status-quo was ordered by learned Civil Judge and according to him it is still in existence and on that day possession was with the present petitioners so the possession may be handed over to the petitioners.
On the other hand learned counsel for the respondents submits instant writ petition is not maintainable; that before approaching this Court, petitioners did not avail remedy before the proper forum as required under Section 22-A and 22-B Cr.P.C. He has relied upon Khyzer Kayat etc. vs. I.G Punjab etc. (PLJ 2005 Lah. 1571). Learned counsel has referred the application submitted by the petitioners under Section 22-A and 22-B Cr.P.C on 17.3.2007, alongwith that two applications were also filed by the respondents and all applications were disposed of by learned Addl: Sessions Judge on 13.4.2007 while making direction to SP Operation Model Town Lahore to look into the matter at his own level and if substance in the allegation of any of the party is established he will ensure registration of case in accordance with law. Learned counsel has referred the application addressed to C.C.P.O Lahore, which is at page 30 of the petition and Diary No. 6832 dated 15.2.2007 has been mentioned and also referred the application addressed to C.C.P.O Lahore which is at page 31 of the petition, and Diary No. 226 dated 16.2.2007 has been mentioned and submits that Diary No. 6832 dated 15.2.2007 on the earlier application is bogus one and this application was never moved to the C.C.P.O. Lahore. Further submits that if Diary No. 226 on the application dated 16.2.2007 submitted by the petitioners is genuine one then how Diary No. 6832 dated 15.2.2007 on the application of petitioners can be made that in application dated 15.2.2007 there is no mention of any occurrence having taken place on 14/15.2.2007; that all these documents have been fabricated by the petitioners; that the decree, which has been produced today before this Court alongwith site-plan allegedly signed by late Justice (R) Qurban Sadiq Ikram is forged one; that the petitioner had applied for membership in Model Town Society alongwith documents, decree and site-plan is forged one; that on the application submitted to the Society it was replied by the society that there is no jurisdiction to cancel the membership of the petitioners and the respondents if so advised may move to the Registrar Co-Operative Societies; that on 19.4.2007 respondents moved an application to Registrar Co-Operative Societies and restraining order was passed by the Registrar which is at page 105 of reply of respondents in which a direction was given to all the parties and respondent Model Town Society was restrained from alienation/disposing of the property till further order; that four suits are pending between the parties and in all suits there is a restraining order, that petitioners have a right to file a complaint so the instant writ petition is not maintainable as remedy is available to the petitioners; that order of learned Justice of Peace dated 19.4.2007 is still in existence and the police has not complied with the same. Adds that order dated 29.4.2007 passed by Justice of Peace is in accordance with law; that parties are interlocked in civil and criminal litigation and that can be decided after recording the evidence; that this Court has no jurisdiction to entertain this writ petition which is not maintainable in accordance with law.
Learned Addl: A.G submits that following prayer has been made in this writ petition:--
"It is respectfully prayed that direction be issued to Respondents No. 1 to 4 to immediately hand over possession of House No. 119-F-III Model Town, Lahore to the petitioners and also for registration of criminal case against Respondents No. 6 and 7 and others.
It is further prayed that direction be issued to Respondents No. 1 to 4 to provide security guards for protection of life of the petitioners from the hands of Respondents No. 6 and 7.
Learned Addl. A.G further submits that according to order passed by learned Addl: Sessions Judge in writ petition police has not performed his duty as required under the law; that decree of civil Court dated 27.6.1995 is still in force and has not been challenged so far, and until same was challenged that remained in field; that according to said decree 2 kanals of land is with the respondents and one kanal of land is with the sons of petitioners; that a dispute arose on 27.1.2007 when present petitioners were dispossessed by the respondents and the status-quo was obtained by respondents on 26.1.2007; that second occurrence took place about the possession of the property on 10-2-2007 and a case FIR No. 46 of 2007 under Sections 448, 511 PPC was got registered on the same day against the respondents by Petitioner No. 1; that offence under Section 448 PPC is a house trespass while Section 511 PPC is an attempt to commit an offence; that after investigation facts of the case were found to be correct and Majid Ikram respondent was challaned; that finding of the police has not been challenged before higher police officer; that, another case FIR No. 48 of 2007 was got registered against the respondents on 12.2.2007 on the statement of Petitioner No. 1 and in that case respondents have been challaned; that finding of the police shows that petitioners were in possession of said house and the status-quo was obtained by the respondents; that status-quo means to protect the possession of petitioner; that it was the duty of police to protect the possession of petitioners; that police should also protect life and property of the petitioners as required under the law; that Investigating Officer or the Court in which four civil suits are pending are required to get the admitted signature of the deceased Justice (R) Qurban Sadiq Ikram compare with the signature on decree and the site-plan attached with the said decree and also the alleged signature on the will which has been allegedly made by him in favour of respondents; Lastly submits that prayer of petitioners is regarding possession of the property and life may be protected and an order may be passed in this regard. Learned Addl: A.G submitted certified copies of reports under Section 173 Cr.P.C regarding above said two FIRs lodged by Khalid Ikram Petitioner No. 1, certificate issued by Model Town Society on the application of Naeem Ahmad S.I of Police Station Model Town.
I have heard lengthy arguments from both sides. Nutshell of above discussion is that Late Justice (R) Qurban Sadiq Ikram had three kanals of land. Petitioner No. 1 is his real brother while Respondents No. 6 and 7 are his real nephews and sons of Abid Ikram. Through a decree dated 27.6.1995 one kanal land was given in his life time by him to the sons of Petitioner No. 1 namely Dr. Ayaz Mahmood and Babar Khalid presently they are residing in foreign country while two kanals of land was given by him to his real nephews who are Respondents No. 6 and 7. The decree and site-plan have been produced before this Court as has been mentioned above and the same has not been challenged so far. Now the contention of learned counsel for the Respondents No. 6 and 7 is that on 26.1.2007 respondents had filed civil suit for declaration with permanent injunction in which status-quo order was passed by learned Civil Judge. It is interesting to note that on the night of 26/27.1.2007 respondents alongwith others tried to allegedly take over forcible possession of the said house of one kanal being possessed by the petitioners and on hue and cry Mohaladars and neighbourers came there and rescued the petitioners and got restored the possession of petitioners. On 10.2.2007 respondents again made an attempt to dispossess the petitioners while Petitioner No. 1 called emergency police and a case under Sections 448, 511 PPC on the same day was got registered by the Petitioner No. 1 against the respondents and that case during the investigation found to be true and challaned Majid Ikram respondent. Certified copy of report under Section 173 Cr.P.C has been placed on record. Then on 12.2.2007 another case under Sections 506, 148, 149 was got registered by Petitioner No. 1 against Majid Ikram respondent with the same police station, certified copy of report under Section 173 Cr.P.C has been placed on record. It is well known technique that in order to take forcible possession of some property after having legal advice such like persons file a suit for declaration and permanent injunction and after getting the status-quo, they forcibly take over the possession. In both the cases got registered by Khalid Ikram as submitted by learned Addl. A.G they were found guilty and other papers which have been submitted by learned Addl: A.G. I have gone through the certificate issued by Model Town Society on the application submitted by Naeem Ahmad S.I on 8.3.2007, according to which Superintendent Record (P) Cooperative Model Town Society (1962) has mentioned as under:--
At S. No. 3 one kanal of land is in possession of Dr. Ayaz Mahmood son of petitioner and he is member of Model Town Society which shows that the petitioners sons namely Dr. Ayaz Mahmood and Babar Khalid are in possession of one kanal of land and Dr. Ayaz Mahmood is member of Model Town Society.
While arguing the case learned counsel for the respondents was of the view that this writ petition is not maintainable because the petitioners had not approached the Justice of Peace under Section 22-A. and 22-B Cr.P.C. In my view it is incorrect because Petitioner No. 1 had moved an application to Justice of Peace, two were moved to CCPO, Lahore and one to ASP Police Station Model Town, Lahore and an order was passed by learned Addl; Sessions Judge while disposing of three applications including two applications moved by Respondents No. 6 and 7, it was directed that S.P (Operation) Model Town Lahore should inquire into the matter personally.
Petitioners who are retired Professors being an old man and woman having about 80 years of age have been made rolling stone and are running from pillar to post to get the justice. They are seeking justice from the Court and police and till today they have failed to get the justice. Writ petition is discretionary relief. Court should not fall into technicalities of law and if Court comes to conclusion that justice has not been done then Court should do justice. In view of facts and circumstances of the case I am of the considered opinion that the petitioners have been dispossessed from their house. Three attempts have been made by the respondents to dispossess the petitioners from their house. Respondents had got status-quo. Status-quo means that on 26.1.2007 petitioners were in possession of the house and status-quo was in their favour.
After having heard learned counsel for the parties and going through the documents produced before this Court, this writ petition is accepted and DSP present in Court is directed to get the possession of the house in dispute today at 5.00 p.m. and hand over the same to the petitioners. Police is also duty bound to protect their possession, life and liberty even after handing over the possession to the petitioners. He shall submit his report before this Court through Deputy Registrar (J) of this Court. Moreover if the petitioner moves an application for registration of the case, police is duty bound to register the case against the respondents. Investigating Officer is directed to get the admitted signatures of the deceased Justice (R) Qurban Sadiq Ikram and compare with the signatures on decree, site-plan attached with the said decree, compromise deed and also on the will from Director FIA, Islamabad.
(N.F.) Petition accepted.
PLJ 2007 Lahore 1085
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Mst. SAKEENA MAI--Petitioner
versus
GOVERNMENT OF PUNJAB through Secretary to Government of Punjah Home Department, Lahore and 5 others--Respondent
W.P. No. 399 of 2007, decided on 9.2.2007.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 11-EEE--Constitution of Pakistan, 1973 Arts. 9, 10 & 14--Constitutional petition--Question of release--No fresh case--Arrest and detention--Liberty of citizen--Violation of Constitution--List of criminal cases--Detenue was acquitted--Question of--Determination--Duty of High Court--Detenue had already furnished bond and again there was no material available on record that either the detenue committed violation of the bond or that any fresh case was registered against him after submission of bond--Home Secretary has passed detention order in sweeping manner and blindly rely upon the report of D.P.O. as well as list of criminal cases registered against detenue in past and after acquittal in all cases--Held: Strong note of warning is issued to Home Secretary that in future any detention order passed which amounts to depriving citizen of his right of liberty and protected by Art. 10 of Constitution--It is duty of High Court to interfere in such like cases and stop the hands of concerned authorities from usurping the fundamental right of citizens provided and guaranteed by the Constitution--Detenue is directed to be released--Petition allowed. [Pp. 1088, 1089 & 1090] A, B, C & E
Constitution of Pakistan, 1973--
----Art. 199(1)(b)(i)--Anti-Terrorism Act, 1997, S. 11-EEE--Constitutional petition--Detention order--Attached a list of criminal cases--Acquitted--Required to ensure public functionary as per law--Validity--High Court being Constitutional Court is always required to ensure that every public functionary is to act in accordance with law and Constitution and no person should act in its violation. [P. 1090] D
Mr. M. A. Hayat Haraj, Advocate for Petitioner.
Mr. Mubashir Latif Gill, Assistant Advocate General with Navid Rouf, Deputy Secretary, Home Department, Lahore and Shehzad Akhtar, D.S.P. (Legal), Khanewal.
Date of hearing: 9.2.2007.
Order
The writ petition in hand was allowed through the following short order dated 09.02.2007:--
"For the reasons to be recorded lateron, this writ petition is allowed, the impugned order of the Home Secretary dated 10.01.2007 is set-aside being without lawful authority and without jurisdiction and Ghulam Shabir alias Fauji is directed to be released forthwith if not required in any other case.
This judgment shall form part/reasons of the above short order.
The petitioner through this constitutional petition has challenged the order dated 10.01.2007 issued by Secretary to Government of Punjab, Home Department, Lahore-Respondent No. 1, in exercise of the powers conferred on him under Section 11-EEE of the Anti-Terrorism Act, 1997 directing arrest and detention of Ghulam Shabir alias Fauji husband of the petitioner.
On 25.01.2007 copy of this petition was handed over to the learned Law Officer for obtaining report and parawise comments from Respondent No. 1. The respondent was also directed to append the material before him which led him to pass the impugned order. The report and parawise comments have been received but no material whatsoever except some report of the D.P.O, Khanewal and list of cases in which the detenue had been involved, has been appended with this report.
When questioned the learned Law Officer replied that the impugned order was passed on the basis of secret reports of the agencies which could not be produced in Court being privilege documents and if time is granted the same would be shown to the Court in chamber.
It has been argued by learned counsel for the petitioner that impugned order has been passed without conscious application of mind and with regard to the list of cases attached with the report it is argued by learned counsel for the petitioner that none of the said case is from the recent past but were registered against Ghulam Shabir between 1992 to 1997 and in all these cases the detenue was acquitted and thus mere registration of those cases could not be made basis for passing the impugned. Further that as detenue has already submitted a bond in terms of Section 11-EEE of the Anti-Terrorism Act, 1997 and in case the detenue has acted in violation of such bond he could be prosecuted in terms of Sub-section (4) of the same but no step has been taken to prosecute the detenue in terms thereof. It is next contended that even the report of the D.P.O dated 6.1.2007 shows that on 26.8.2006 the detenue was released from Anti-Terrorism Court in case FIR No. 32 dated 20.2.1997 but very order of acquittal has been made ground by the D.P.O in his report to support the impugned of detention and even otherwise, the report of the D.P.O is also not supported by any material and is nothing but the wish of the D.P.O for passing the order of detention, whereas, no detention order could be passed on the basis of such report.
On the other hand, learned Law Officer appearing on behalf of respondents has fully supported the impugned order by arguing that as name of the detenu is very much available in 4th Schedule of the Act and further that the detenu despite submission of bound is still indulged in anti social activities, therefore, the impugned order was validly and correctly passed against him.
I have considered the arguments of learned counsel for the parties and have also gone through the entire material available before me.
The question as to whether certain documents are privilege one, can only be determined by the Court and not by the authority relying upon those documents while passing the impugned order. Reliance is placed on "Brig (Retd) Imtiaz Ahmad v. Government Of Pakistan through Secretary, Interior Division, Islamabad and 2 others" (1994 S.C.M.R. 2142) and "Government of Punjab through Secretary Services & General Administration Department, Government of Punjab Lahore v. Ch Muhammad Mahmood, Advocate and 22 others" (P.L.D. 1988 S.C. 376). Since despite direction by the Court the respondent failed to produce any material justifying the order of detention, and has only opted to place on record some report of the District Police Officer, Khanewal and also list of some case in which the detenue had been involved in past and was also acquitted, therefore, it can be safely presumed that there was no sufficient material available before the detaining authority at the time of passing of the impugned order except the report of the D.P.O and the list of cases in which the detenue had been involved in past but was acquitted in all the cases. In the report it has been submitted that:
"Ghulam Shabir alias Shabbira Fauji is a sectarian activist of category-A. He is activist of defunct organization "Sipah Sahaba Pakistan Lashker-e-Jhangvi" and is involved in numerous sectarian cases. He has links with sectarian terrorist who are visiting him frequently. He is instigating the sectarian activist to commit violence. He is in the habit of disappearing from the home without informing the Police. He is planning to disturb the peace and tranquility of the area. He is secretly continuing his activities to reorganize the workers the workers of "Sipah Sahaba Pakistan/Lashkr-e-Jhangavi and his activities are likely to disturb Law & Order situation at any time".
But as pointed out above, no material showing detenue's involvement in any of the said activities, has been produced. The only material produced by respondent in support of the impugned order is one sided report submitted by Shahid Hanif, P.S.P/D.P.O, Khanewal and list of criminal cases registered against the detenu from the year 1992 to 1997. Admittedly the detenue has already furnished bond in terms Section 11-EEE of the Anti-Terrorism Act, 1997 and again there is no material available on record that either the detenu committed violation of the said bond or that any fresh case was registered against him after submission of the bond. There is also no evidence on record to show that detenu was convicted even in any of the said criminal cases. Further the report of D.P.O. Khanewal is based on mere apprehensions and do not disclose even a single event of physical involvement or participation of the detenue in any anti social activities in order to attract the provisions of Section 11-EEE of the Ordinance. This Court in the case "Abu Bakar Muhammad Reza versus Secretary to Government of Punjab, Home Department and 3 others" (PLD 2005 Lahore 370) has held that liberty of a citizen could not be curtailed merely on apprehensions and that mere registration of FIR would not be sufficient to curtail liberty of a citizen merely by alleging that he was a terrorist, especially when according to learned counsel for the petitioner, the detenu was acquitted in all the criminal cases mentioned in the attached list. In "Abdul Rauf versus Chief Commissioner Islamabad and 5 others" (PLD 2006 Lahore 111) this Court did not accept the contention of the detaining authority that mere registration of criminal case would justify to curtail the liberty of a citizen. In the said case it was also held by this Court that satisfaction of the detaining authority be always objective in nature and not subjective in nature so as to allow the authorities to act on whims and caprices without there being any material before them in support of grounds of detention. In the absence of any material in support of the detention order, in the light of law declared by Hon'ble Supreme Court of Pakistan in the case "Mir Abdul Baqi Baluch verses The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others" (PLD 1968 Hon'ble Supreme Court of Pakistan 323), and also by this Court in the case "Mulazim Hussain Shah versus Province of Punjab through Secretary, Home Department, Government of Punjab, Lahore and 2 others" (PLD 2006 Lahore 108), this Court has no option except to strike down the impugned order by declaring the same as without lawful authority.
Before parting with this judgment, I would like to point out that earlier this Court in similar circumstances (W.P. No. 5933/2006 Amir Khanum v. Government of Punjab" set-aside the detention order passed by the Home Secretary, Government of Punjab against one Tanvir Khan, holding that unless the detention order is supported by some material the same could neither be based nor could subsist in the eyes of law. In the present case also the same Home Secretary (Khasroo Pervaiz Khan) has passed the detention order in a sweeping manner and blindly relying upon the report of the D.P.O as well as list of criminal cases registered against the detenne in past and after his acquittal in all those cases. Therefore, a strong note of warning is issued to Respondent No. 1 that in case in future any detention order passed in such like manner, which otherwise, amounts to depriving a citizen of his right of liberty and protected by Article 10 of the Constitution of Islamic Republic of Pakistan, 1973, this Court while setting aside the said order would not be slow in imposing heavy penalty/costs and also burdening him with heavy compensation for acting against the Constitution as well as law, because it is fundamental duty of this Court to interfere in such like cases and stop the hands of the concerned authorities from usurping the fundamental rights of the citizens provided and guaranteed by the Constitution; and in case if such like acts are allowed to remain unchecked this Court would be failing in its duty conferred on it under Article 199(1)(b)(i) of the Constitution, as obedience to the Constitution and law is the fundamental duty and every body is bound to obey the command of the Constitution. In this respect this Court being Constitutional Court is always required to ensure that every public functionary is to act in accordance with law and the Constitution and no person should act in its violation? The case "Ch. Manzoor Elahi v. Federation of Pakistan, etc." (P.L.D. 1975 S.C. 66) is an authority on the subject.
The net result of above discussion is that this Writ Petition is allowed, the impugned order of detention is declared as without lawful authority, hence, Ghulam Shabir alias Shabbira Fauji detenue is directed to be released forthwith if not required to be detained in any other matter. Copy of this order be sent to Respondent No. 1 for his perusal and strict compliance in future.
(N.F.) Petition allowed.
PLJ 2007 Lahore 1090
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD ZAHID--Petitioner
versus
BOARD OF INTERMEDIATE & SECONDARY EDUCATION MULTAN through its Chairman and 6 others--Respondents
W.P. No. 3517 of 2006, heard on 10.10.2006.
Board for Secondary School Certificate Part-wise System Examination Rules, 2003--
----R. 20--Chapter of Board's Calendar--O. VI, R. 5(ii)--Constitution of Pakistan, 1973--Art. 199--Educational institution--Constitutional petition--Punishment for using of unfair means in examination of 10th class--Disqualification for two examinations--Violation of principle of natural justice--Validity--Petitioner was declared successful in 9th class examination--Unfair means case was registered against him in 10th class examination and disqualified for two examinations by Board--Petitioner approached authorities who refused to declare his result--Assailed--Petitioner was ever notified by Board to show-cause against cancellation of his 9th class examination nor original decision of disciplinary committee cancelling ressult has been placed on record--Decision was only taken by Board against the petitioner was disqualifying from two examinations--Board could not withhold result of the petitioner on the ground that as result of 9th class examination stood cancelled in terms of Rule 20--Charge sheet was given to petitioner or was ever given any show-cause notice before cancelling 9th class result in terms of Rule 20--Held: Action of Board being violative of principles of natural justice cannot be approved in light of law--Petition was allowed and result of 9th class examination was declared as an act without lawful authority.
[Pp. 1095 & 1096] A, B, C, D & E
Ch. Muhammad Afzal Jatti, Advocate for Petitioner.
Haji Muhammad Aslam Malik, Advocate for Respondent.
Mr. Muhammad Ameer Bhatti, Advocate/amicus curaie.
Date of hearing: 10.10.2006.
Judgment
This Constitutional petition seeks quashment of the proceedings taken by Board of Intermediate & Secondary Education, Multan whereby the petitioner was directed to appear in 9th and 10th class examination afresh in terms of Rule (20) of the Secondary School Certificate. Part-wise System Examination Rules, 2003.
The facts in brief are that petitioner appeared in 9th class examination, 2003 under Roll No. 128799 and was declared successful having secured 231 marks. He then appeared in 10th Class examination but as he was found in possession of some illegal material, therefore, an Unfair Means Case was registered against him and resultantly he was disqualified for two examinations i.e. Annual 2004 and Supplementary 2004 vide decision taken by the Board on 13.5.2004. After the expiry of said period the petitioner submitted his Form for appearing in Annual-2005 examination for 10th class only and Roll No. 3696 was allotted to him. The petitioner thereafter, physically appeared in the said examination but his result was not declared, whereupon, the petitioner approached the respondent Authorities and through Letter No. ACE (M) 36916 dated 28.9.2005 was directed to submit one attested photo and his Urdu as well as English signatures, which needful was also done by the petitioner but the Board refused to declare his result and consequently informed him on 22.5.2006 that in view of Rule 20 framed by the Board for Secondary School Certificate Part-wise System Rules, as he was found using unfair means in 10th examination, therefore, his result of 9th Class which he had already passed has been scratched and petitioner could not appear in 10th Class only, rather he had to appear as a fresh candidate for 9th and 10th Class examination, therefore, his result could not be declared in view of the decision taken by the Unfair Means Committee. This was conveyed to the petitioner through Letter No. 94 ACE (Secondary), dated 22.5.2006. The petitioner through this Constitutional petition has challenged the said order.
Report and parawise comments were called for from respondent Board which were submitted, wherein, by placing reliance, on the above mentioned Rules, the same plea was taken. However, keeping in view the respective contentions of the parties, this writ petition as admitted to regular hearing with the following note:--
The question as to whether Rule 20 of the Part wise System Rules, 2003 framed by the Board of Intermediate & Secondary Education, Multan empowering the Board to scratch the examination of 9th class of the petitioner though he has passed the same and is involved in the unfair means case in 10th class examination and is disqualified, is a statutory rule or the rule made by the Board of Intermediate and Secondary Education, Multan in exercise of its rule making power and that the said rule is not a fresh one, requires consideration."
As Mr. Muhammad Amir Bhatti, Advocate had been appearing in this Court in such like matter relating to Bahau-din-Zakariya University, Multan, therefore, he was requested to appear and assist this Court as amicus curiae.
Learned counsel for the petitioner has argued that firstly the petitioner was never conveyed the decision about scratching of his result of passed 9th class examination when he was disqualified for two examinations through letter dated 13.5.2004 and secondly the Charge Sheet received by him on 28.2.2004 did not contain any reference, either to the said Rule or the penalty provided under the Rules, rather the same only referred to unfair means case as an offence under Rule (5)(ii) from Chapter 6 of the Board's Calendar relating to punishment, for use of unfair means in the examination of the Board and according to the above rule the only penalty was disqualification from passing a particular examination and from appearing in the immediately following examination (annual or supplementary), if the offence is intentional, and the decision taken by the Board and conveyed to the petitioner on 13.5.2006 did contain the said penalty and petitioner after the expiry of said period was allowed by the Board to appear in 10th class examination only for which he was issued Roll No. 36916. The learned counsel further contended that after imposing the penalty of disqualification from appearing in two examinations through the decision taken on 13.4.2004, the Board had got no jurisdiction to impose the second penalty by way of scratching his result of 9th class which amounts to double punishment. It is next contended that Rule 20, ibid referred to above is not only harsh but also against the principles of natural justice inasmuch as, on the basis of the said Rule the annual examination already passed by the petitioner without any allegation of unfair means case is being scratched for no fault, whereas for the fault of alleged commission of unfair means in 10th class examination, he was already imposed penalty of disqualification from appearing in two examinations. Lastly, it is argued that the petitioner has been proceeded against without any show-cause or affording opportunity of hearing before taking the decision of scratching his result of 9th class in exercise of the powers used by the Board under the said Rules.
On the other hand, learned counsel for the respondent Board has supported the stand taken by the Board, by arguing that as Board of Intermediate & Secondary Education, Multan has got the power to scratch the result of the petitioner of 9th class in terms of Rule-20, therefore, the said decision has been correctly taken by the Board which cannot be challenged before this Court in Constitutional jurisdiction, on the ground of same being harsh.
However, Mr. Muhammad Amir Bhatti, Advocate learned amicus curiae has argued and rightly so that after disqualifying the petitioner from two examinations vide letter dated 13.5.2004 in the light of the Charge Sheet issued on 8.4.2004 making no reference either to Rule 20 mentioned above or initiating any proceedings to this effect by Unfair Means Committee, the action of the Board cannot sustain in law.
I have considered the abovementioned arguments of learned counsel for the parties and have also gone through the record as well as Rule 20 which is reproduced below:--
Almost similar question came up for consideration before this Court in "Hafiz Ahmad Sufyan Arshad versus Board of Intermediate & Secondary Education, Faisalabad" (2006 C.L.J. 856). Paragraphs 3 and 4 of the abovementioned judgment are reproduced for ready reference:--
"3. In its reply/comments, the respondent Board claims that impugned action is valid and has been taken under para No. 38 of Notification No. 1 dated 4.2.1998 which has overriding effect. Para 38 reads:--
It will be seen that at no stage the Board notified the petitioner that he should show-cause against the cancellation of Part-I
Examination nor in fact the Disciplinary Committee cancelled the result, of the examination in which the petitioner appeared under Roll No. 30792 in Annual 1998. Petitioner appeared in Part-II Examination in Annual 1999 under Roll No. 4598.
Learned counsel for the petitioner is right in emphasizing upon the use of word
particular' in Rule 5(ii). The wordParticular' would confine again to the examination in which the candidate was found in possession of illegitimate material or using other unfair means."
The learned Judge, after discussing both the above mentioned provisions, came to the following conclusions:--
(i) At no stage the Board notified the petitioner (in that case) that he should show-cause against cancelling the Part-I examination;
(ii) As the result of F.Sc Part-I (in that case) was not in dispute, therefore, same had become a past and closed transaction and there did not seem to be any logic or reason that for a particular paper, the result of an undisputed examination be also annulled;
(iii) The charge sheet did not refer to the para authorizing the Board to scratch the result of Part-I and therefore, the Board had no Jurisdiction to rely upon the said para for scratching the result; and
(iv) After accepting the admission form for taking part in second examination as well as issuance of Roll Number and allowing the petitioner to appear in the examination, it was not open to the functionaries of the Board preparing and announcing the result of part second examination to hold that the result of Part-I examination stood annulled, and even if they could so declare but a prior notice to that effect had to be given to the petitioner.
Similarly, nothing has been produced by the Board to satisfy this Court that petitioner was ever notified by the Board to show-cause against the cancellation of his 9th class examination nor the original decision of the Disciplinary Committee cancelling the result of 9th class examination has been placed on record, therefore, in the absence of any material to this effect, I have no hesitation to hold that the only decision taken by the Board against the petitioner was one dated 13.5.2004 disqualifying him from two examinations; and further after the expiry of period of disqualification referred to above, not only the Examination Form of the petitioner way accepted by she Board but he was also issued roll number and was also allowed to appear in the examination and at no stage the petitioner was apprised of the cancellation of his result of 9th class examination, which he had already passed. Therefore, the Board subsequently could not withhold the result of the petitioner on the ground that as a result of his 9th class examination stood cancelled in terms of Rule 20, ibid, therefore, without appearing in the said 9th class examination he could not sit in 10th class examination.
Finally, the learned counsel appearing on behalf of the Board frankly conceded that except Charge Sheet dated 28.5.2004 which, only refers to Rule 5(ii) no Charge Sheet was given to the petitioner or was ever given any show-cause notice before cancelling his 9th class result in terms of Rule 20. Therefore, the action of the Board being violative of principles of natural justice cannot be approved in the light of the law laid down in the case "Haq Nawaz versus The Province of Punjab Through Secretary, Home Department, Lahore and 3 others" (P.L.D. 1976 Lahore 1013) and "Board of Intermediate and Secondary Education, Lahore versus Ala-ud-Din and another" (1972 SCMR 13).
The net result of above discussion is that this petition is allowed and the result of 9th class examination of the petitioner is declared as intact and its cancellation by the Board through order dated 22.5.2006 is declared as an act without lawful authority. The respondent Board is directed to issue result card to the petitioner within fifteen days from the date of announcement of this judgment.
Before parting with this judgment I would like to acknowledge the valuable assistance rendered by the learned amicus curiae.
(R.A.) Petition allowed.
PLJ 2007 Lahore 1096
Present: Tariq Shamim, J.
MUHAMMAD ASLAM--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION FACTORY AREA, TEHSIL & DISTRICT SARGODHA and 2 others--Respondents
W.P. No. 8552 of 2006, heard on 1.11.2006.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 550--Possession of vehicle--Superdari of vehicle in-question was still pending adjudication before the Court--Determination--Final order could be brought under challenge in the Constitutional jurisdiction of High Court--Controversy essentially pertained to disputed questions of fact which could not be resolved in Constitutional jurisdiction of High Court--Appeal dismissed.
[P. 1099] A & B
Ch. Naseer Ahmed Bhutta, Advocate for Petitioner.
Mr. Akhtar Masood Khan Awais, Advocate for Respondent No. 3.
Mr. Muhammad Arif Bhinder, Addl. A.G.
Date of hearing: 1.11.2006.
Judgment
Through this petition, the petitioner has challenged the orders dated 26.07.2006 and 28.07.2006 passed by the learned Additional Sessions Judge, Sargodha, on the ground that the same are arbitrary, fanciful and passed on extraneous consideration, hence liable to be set side.
The facts of the case are that Respondent No. 3 lodged F.I.R. No 7 on 9.01.2006 at Police Station Factory Area, Sargodha, regarding theft of Vehicle No. MNQ-437. The police pursuant to the F.I.R. took the said vehicle in possession under Section 550 Cr.P.C. The petitioner as well as one Malik Akbar Hayat filed applications for obtaining the said vehicle on Superdari with the learned Magistrate 1st Class, Sargodha, who accepted the application of the petitioner on the premise that the petitioner was in possession of the original Registration Book. Respondent No. 3 who claims to have purchased the vehicle in question from Malik Akbar Hayat assailed the orders of the learned Magistrate before the learned Additional Sessions Judge, Sargodha. On 22.7.2006, the learned Judge admitted the revision petition for regular hearing and vide order dated 28.7.2006 while observing that the vehicle in question was case property of case F.I.R. No. 7 of 2006 directed the police to take possession of the vehicle. The case was adjourned to 24.8.2006 which is still pending decision with the learned Additional Sessions Judge.
Learned counsel for the petitioner has challenged the aforesaid orders of the learned Revisional Court inter alia on the grounds that the petitioner was bona fide purchaser of the vehicle in question which fact was borne out from continual possession of the petitioner and was affirmed by Respondent No. 3 in his statement before the learned Civil Court at Sargodha on 04.2,2006; that taking over of the possession of the vehicle by the police under Section 550 Cr.P.C was totally illegal unwarranted, unjustified and without lawful authority; that the earlier owner of the vehicle Malik Akbar Hayat s/o Muhammad Hayat had nothing to do with the vehicle in question since he had sold it three years earlier, whereafter the petitioner had become the owner in possession of the vehicle and that by virtue of the order of the Superdari dated 25.7.2006, the petitioner had earned lawful right in his favour which could not be undone by the learned Revisional Court.
Learned counsel representing Respondent No. 3 contended that the writ petition was not maintainable against interlocutory orders passed by the learned Additional Sessions Judge, Sargodha dated 26.7.2006 and 28.7.2006; that the controversy involves disputed questions of fact which could not be gone into by this Court in writ jurisdiction; that the petitioner was neither the owner of the car nor did he have any documentary evidence in his possession to establish his title in respect of the said vehicle; that the car as well as the Registration Book was not recovered from the petitioner, that the car in question being case property of F.I.R. No. 7 of 2006 had been taken into possession by the police from the nominated accused of the F.I.R.; that the Registration Book reveals that the vehicle stands registered in the name of Malik Akbar Hayat, who had sold and handed over possession of the vehicle to Respondent No. 3 on 10.8.2006; that Malik Akbar Hayat had executed an open authority letter in favour of Respondent No. 3 and further by virtue of agreements dated 07.01.2006 and 24.7.2006, he had acknowledged the sale of the said car to the respondent; that the said Malik Akbar Hayat had also appeared before the Court of the learned Magistrate as well as the learned Additional Sessions Judge, Sargodha and had deposed regarding sale of the car in question to Respondent
No. 3.
I have heard the learned counsel for the petitioner as well as learned counsel representing Respondent No. 3.
It is an admitted fact that the vehicle in question stands registered in the name of Malik Akbar Hayat who had appeared before the learned lower Court and produced documents, i.e. open letter of transfer and two agreements executed by him in favour of Respondent No. 3 to establish the sale of the vehicle in question to the said respondent on 10.08.2004. Thus, for all intents and purposes the actual owner of the vehicle is Respondent No. 3. It is also not denied by the parties that case F.I.R. No. 7 of 2006 dated 09.01.2006 regarding theft of the said vehicle stands registered at the instance of the said respondent pursuant to which the vehicle was taken into custody by the police under Section 550 Cr.P.C. from one Muhammad Pervaiz, a nominated accused of the F.I.R. The learned Magistrate while passing the order in favour of the petitioner lost sight of the fact that the petitioner was neither the registered owner of the vehicle in question nor was the same taken into custody by the police from his possession. Thus, the argument of the learned counsel for the petitioner that the petitioner was a bona fide purchaser of the vehicle in question is devoid of any force. The other argument advanced by the learned counsel for the petitioner that Respondent No. 3 in his statement before the learned Civil Court at Sargodha in a suit filed by the petitioner for permanent injunction had conceded the claim of the petitioner with respect to the title of the car in question is not sustainable from the record as the statement made by Respondent No. 3 before the learned Civil Court on 4.02.2006 reveals that the said Respondent No. 3 had stated on oath that he would not take possession of the vehicle in dispute from the petitioner illegally and forcibly. The statement further shows that the said respondent reserved his right to have recourse to legal means in the said respect and had referred to F.I.R lodged by him regarding the theft of the said vehicle. Thus, Respondent No. 3 had already set the law in motion for the recovery of his stolen vehicle before making the said statement.
From the above, it is clear that the learned Additional Sessions Judge while passing the orders impugned in this petition did not act contrary to the law and was fully justified in holding that the vehicle was case property of F.I.R. No. 7 of 2006 and had rightly directed the police to take the same into possession pending disposal of the main petition.
The impugned orders are interlocutory in nature as the main controversy regarding the Superdari of the vehicle in question is still pending adjudication before the learned lower Court. Only a final order can be brought under challenge in the Constitutional jurisdiction of this Court. Reliance is placed on the case of Ghulam Hussain and another v. Malik Shahbaz Khan (1985 SCMR 1925) and also reference is made to the case of Abdul Majeed v. Noor Muhammad and two others (P.L.D 2006 Lah. 649).
It is also evident that the controversy essentially pertains to disputed questions of fact which cannot be resolved in the Constitutional Jurisdiction of this Court. Reliance is placed on the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276). Further, the learned counsel for the petitioner has not been able to point out any illegality, infirmity or jurisdictional error in the impugned orders warranting interference by this Court.
For what has been discussed above, this petition has no force which is accordingly dismissed. The learned revisional Court is directed to decide the case on merits without being influenced by any observations made in this order. There shall be no order as to costs.
(F.F.) Petition dismissed.
PLJ 2007 Lahore 1099
Present: Iftikhar Hussain Chaudhry, C.J.
Mst. FIRDAUS BIBI HASHMI--Applicant
versus
SAJJAD HUSSAIN and 4 others--Respondents
Transfer Appl. No. 289-C of 2006, decided on 9.1.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 24--Transfer of suit--Respondents filed suits in various Civil Courts--Application allowed--Nature of controversy in all the matters was common and it would be beneficial for both parties if all the suits were heard by one Court--Prayers for cancellation of mutations were made and collector was a relevant party so that all the suits were transfered to Court of Distt. Headquarter. [P. 1101] A
Ch. Javed Rasool, Advocate for Applicant.
Malik Aftab Aslam, Advocate for Respondent Nos. 1 to 4.
Mr. Nadeem Shahid, Advocate for Respondent No. 5.
Date of hearing: 9.1.2007.
Order
Application has been submitted for transfer of suit titled "Sajjad Hassan and another vs. Khalil Ahmad and another" (suit for declaration) from the Court of Sayyed Akhtar Ali Shah, Civil Judge, Kehror Pacca, District Lodhran to the Court of Civil Judge, Kamalia District Toba Tek Singh where six other suits against the petitioner are subjudice.
Notice of the application was issued to the respondents. Learned counsel for the parties, have been heard today.
Learned counsel for the petitioner submitted that petitioner was a female and it was not possible for her to travel to Kehror Pacca, District Lodhran to pursue two suits filed by respondents in a Civil Court at Kehror Pacca, District Lodhran. It was submitted that Mst. Sajida Bano and others had filed six different suits for declaration against the petitioner at Kamalia District Toba Tek Singh and nature of the suits filed at Kehror Pacca District Lodhran was same as relief claimed in all the suits related to declaration with regard to making of oral gifts and all the suits should be heard by one Court and this exercise was beneficial for both the parties. Learned counsel for the respondents opposed the prayer made by the petitioner and submitted that properties were situated in Kamalia District Toba Tek Singh as well as in Lodhran District. Since suits filed in a Civil Court at Kehror Pacca District lodhran related to property situated in that Tehsil, those suits could not be transferred to Kamalia District Toba Tek Singh. According to learned counsel witnesses of the respondents belonged to District Lodhran and it will be difficult for them to travel to Kamalia District Toba Tek Singh to depose in favour of the respondents.
Respondents have already filed six suits at Kamalia District Toba Tek Singh. They filed two suits titled "Sajjad Hussain and others Vs. Mst. Firdaus Bibi and others" in a Civil Court at Kehror Pacca District Lodhran. All the suits seek issuance of declaration that gift of property made in favour of present petitioner was unlawful and was liable to be cancelled. The nature of controversy agitated in all the matters is common and it would be beneficial for both the parties if the suits are heard by one Court. In all the suits prayer has been made for cancellation of mutations sanctioned in favour of present petitioner, the Collector is a relevant party, therefore, all the suits should be heard at District Headquarter. Accordingly the application is allowed. Two suits titled "Sajjad Hassan and others Vs. Khalil Ahmad and others" (suit for declaration) withdrawn from the Court of Sayyed Akhtar Ali Shah, Civil Judge, Kehror Pacca District Lodhran and are transferred to the Court of Senior Civil Judge, Toba Tek Singh likewise other suits titled "Mst. Sajida Bano and others Vs. Mst. Firdaus and others" (suits for declaration) are withdrawn from the Court of Mr. M. Iqbal, Civil Judge, Kamalia District Toba Tek Singh and are transferred to the Court of Senior Civil Judge, Toba Tek Singh so that all the eight suits between the parties are heard by one Court on one date of hearing.
(J.R.) Petition accepted.
PLJ 2007 Lahore 1101
Present: Muhammad Akhtar Shabbir, J.
MUHAMMAD RASHID and 10 others--Petitioners
versus
REHMAT ALI and another--Repsondents
W.P. No. 18910 of 2005, decided on 16.10.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--O. IX, R. 13--Application for restoration of previous application filed for setting aside exparte order--Framing of issues by trial Court--Order set aside by revisional Court--Challenge to--Maintainability--Held: Court framed issues only to decide the application and had not adjudicated upon the matter nor had applied its judicial mind as yet--Case was not covered within the socpe of `case decided'--Order of revisional Court was illegal.
[Pp. 1104 & 1105] B, C & D
Words and Phrases--
-----"Case decided"--Connotation of--The words `case decided' is to be understood in the broadest and most ordinary sense so as to include a part of case or an issue or an interlocutory order which will ultimately affect the rights of the parties. [P. 1104] A
PLD 1973 SC 507; 1992 SCMR 718; 1985 CLC 1605 & PLD 1993 SC 109.
Ms. Aaliya Neelum, Advocate for Petitioner.
Ch. Nasrullah Nasir Bhangoo, Advocate for Respondent No. 1.
Date of hearing: 16.10.2006.
Order
Facts giving rise to the instant writ petition are to the effect that Ghulam Muhammad, the predecessor-in-interest of the present petitioners had been allotted land in Chak No. 14 EB Arifwala, Pakpattan measuring 12-Acres, 3-Kanals and 15-Marlas vide allotment order dated 20.03.1964 under the Islamabad Oustees' Scheme and he gave this land to Respondent No. 1 to cultivate the same as tenant-at-will. The petitioners predecessor died on 07.03.1977 and after his death Respondent No. 1 Rehmat Ali had filed a suit for specific performance of contract on 21.06.1989 against the present petitioners in the Court of learned Senior Civil Judge, Sahiwal, which was entrusted to different Civil Courts and lastly it was under the trial in the Court of Mr. Naseer Ahmad Awan, Civil Judge, Sahiwal. The case was fixed for evidence when Civil Judge was appointed at Arifwala and the civil cases including the case of the petitioners was transferred to the Civil Judge, Arifwala. The transferee Court did not issue notice to the petitioner when the Civil Court had taken the cognizance of the matter. The petitioner was not served by the trial Court and resultantly the ex-parte decree was passed on 14.9.1991.
The petitioner moved an application under Order 9 Rule 13 C.P.C. for setting aside ex-parte order and decree dated 14.09.1991 in the suit titled as Rehmat Ali Vs. Muhammad Rashid, Muhammad Fazil etc. on 19.04.1992. During the proceedings the counsel of the petitioners had expired. On the other hand, Respondent No. 1 had prepared a forged Special Attorney and as a special attorney made a statement before the Court on 22.11.1992 that their counsel had expired and subsequently one Sarfraz Ahmad Advocate filed power of attorney on behalf of the petitioners. The Special Attorney and power of attorney in favour of Sarfraz Ahmed Advocate were forged and fabricated documents. After filing the power of attorney the learned trial Court framed the issues and on 06.04.1993 recorded the statement of A.W.1 Muhammad Afzal who too died on 10.10.1992. After recording the oral evidence the case was fixed for production of documentary evidence on 04.05.1993, Petitioner No. 1 the General Attorney of Petitioners No. 2 to 11 met with serious accident and his back bone was fractured and due to mental disorder he went under medical treatment whose memory was badly effected. After some recovery, Petitioner No. 1 moved an application for setting aside ex-parte order and decree dated 14.09.1991 on 23.04.1992, which was contested by Respondent No. 1. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the various issues on 30.01.1993 and the petitioners were directed to produce their evidence on 14.03.1993. Evidence of A.W.1 was recorded and the case was adjourned for documentary evidence, which application was then dismissed for non-prosecution on the said date. Thereafter the petitioners filed another application for restoration of the application dismissed for non-prosecution and setting aside ex-parte order and decree dated 14.09.1991. The learned trial Court on 02.06.2005 framed the issues and the parties were directed to file list of witnesses and documents within seven days and adjourned the case for petitioners' evidence. The said order has been assailed by Respondent No. 1 before the revisional Court which came up for hearing before the learned Addl. District Judge, Arifwala, who vide impugned judgment and decree dated 13.10.2005 accepted the revision petition of Respondent No. 1. The impugned order has been assailed through the instant Constitutional petition.
The learned counsel for the petitioner contended that there are substantial questions involving with regard to the merits of the application and that is why the trial Court has framed the issued and proceeded to record the evidence to reach to the correct conclusion of the case. Framing of issues on the application of the petitioners by the trial Court is not a final order prejudicing the rights of any of the parties so it was not a "case decided" and the revision petition was not competent under Section 115 C.P.C. Learned counsel for the petitioners placed reliance on S. Zafar Ahmad Vs. Abdul Khaliq (PLD 1964 (W.P) Karachi 149). Further contended that the revisional Court has exercised jurisdiction illegally and with material irregularity. While on the other hand, learned counsel for Respondent No. 1 vehemently opposed the arguments of the learned counsel for the petitioners contending that the application filed by the petitioners was awfully time barred; it was liable to be dismissed there and then. The framing of issues was not the requirement. The application of the petitioners could be dismissed on the sole ground of limitation. He vehemently supported the order of the revisional Court.
I have heard the learned counsel for the parties and perused the record.
Section 115 C.P.C, contemplates that:--
"The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, The words "case decided" is to be understood in the broadest and most ordinary sense so as to include a part of a case or an issue or an interlocutory order when judicially considered by the trial Court which will ultimately affect the rights of the parties, even though the order may be passed in the course of the trial of the suit, and include a step in aid of the determination of the controversy and an interlocutory order which deals with a substantial question in controversy between the parties, and affects the rights of the parties will be a "case decided". Reference in this context can be made to the cases of Bashir Ahmad Khan vs. Qaiser Ali Khan and 2 others (PLD 1973 S.C. 507) Messrs National Security Insurance Company Limited and others Vs. Messrs Hoechst Pakistan Limited and others (1992 SCMR 718), Hassan Ali and others Vs. Ch. Bashir Ahmad and others (1985 CLC 605) and Pakistan Fisheries Ltd, Karachi and others Vs. United Bank Ltd. (PLD 1993 S.C. 109). In the instant case the application filed by the petitioners for restoration of the application and for setting aside, ex-parte order and decree dated 14.09.1991 dismissed for non-prosecution has not been decided by the trial Court, the impugned order of the trial Court has not affected the rights of any party. The rights of the parties shall be prejudiced' if the application either accepted or rejected by the Court finally. The Court has not adjudicated upon the matter and has not applied its judicial mind as yet. The Court framed issues only to decide the application. The issue of time barred is an issue of fact, which required the recording of evidence. The case is not covered within the purview of "case decided". This legal aspect of the case has not been adverted to by the learned revisional Court and it has set aside the order of framing the issues on the application of the petitioners on the sole ground that the application filed by the petitioners was hopelessly time barred. It would not be out of place to mention here that the trial Court has framed two issues which are as under:--
(1) Whether there are sufficient reasons to accept this application?
(2) Whether the petition is badly time barred?
The issue of time barred pertains to the question of facts, which required examination of record and recording of evidence and it is a vested right of the petitioners/applicants to establish their case for condonation of delay showing "sufficient"/good cause. The learned revisional Court has also not taken into consideration legal questions and accepted the revision and dismissed the application of the petitioners without providing the opportunity to the petitioners of establishing their case through sufficient and convincing evidence. There are chances that the petitioners could produce evidence to satisfy the Court by sufficient reasons to condone the limitation for filing the application. The learned revisional Court has passed the order on mere presumptions. It is the learned trial Court, who was competent to give its verdict with regard to the question of limitation and that jurisdiction/right of the trial Court has been interfered with by the revisional Court illegally. The revisional Court has exercised its jurisdiction so vested in it illegally and with material irregularities.
In view of the above discussion and taking into consideration the dictum laid down by the Honourable Supreme Court in the above referred cases, this writ petition is accepted and the impugned order passed by the learned revisional Court dated 13.10.2005 is declared to have been passed illegally and without lawful authority and hence quashed. The application of the petitioners for restoration of their earlier application dismissed for non-prosecution setting aside ex-parte order and decree dated 14.09.1991 of the trial Court shall be deemed to be pending adjudication before the trial Court which will decide the same after recording the evidence of the parties.
(J.R.) Petition accepted.
PLJ 2007 Lahore 1105
Present: Sh. Azmat Saeed, J.
MUHAMMAD AKRAM MATILA--Petitioner
versus
ELECTION TRIBUNAL and others--Respondents
W.P. No. 10507 of 2006, decided on 31.1.2007.
Punjab Local Government Election Rules, 2005--
----R. 75--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction--Local bodies election--Election was hampered on account of violence--Inferior tribunal or authority, where such decision involves adjudication upon questions not decided by such tribunal or authority or require investigation or recording of fresh evidence--High Court is vested with jurisdiction to ensure that justice is done in accordance with law and the litigation concluded rather than remanding the case by way of a formality and thereby condemning the parties to a further round of litigation--Order of the election tribunal modified to extent that the entire election of Nazim and Naib Nazim declared to be null and void. [P. 1109] A
1985 MLD 374 and NLR 1985 Civil 811 ref. PLD 1964 SC 260, rel.
Chaudhry Riasat Ali, Advocate for Petitioner.
Ch. Muhammad Anwar Bhinder, Advocate for Respondents No. 2 and 2-A.
Date of hearing: 31.1.2007.
Order
This Constitutional petition is directed against the order of the Election Tribunal dated 27.9.2006 whereby an election petition filed, inter alia, against the present petitioner was accepted and fresh poll was directed to be held at Polling Station No. 295.
Brief facts leading to the filing of this Constitutional petition are that the petitioner alongwith Respondent No. 4 contested the Local Bodies Election for the posts of Nazim and Naib Nazim of Union Council No. 82, Bogrey, District Sialkot. Respondents No. 2 and 2-A as well as Respondents No. 3 and 3-A also contested the said election. Process of election was hampered on account of violence. However, the petitioner and Respondent No. 4 were declared elected. Respondents No. 2 and 2-A filed an election petition before the Respondent No. 1 Election Tribunal. The said petition was resisted by the present petitioner. From the pleadings of the parties issues were framed and evidence was lead. Whereafter the learned Tribunal vide the impugned order held the election of the petitioner and Respondent No. 4 to be void in respect of Polling Station No. 295 and directed repolling at the said Polling Station. It appears that there was an incident at the said Polling Station in which one Muhammad Afzal lost his life and injuries were caused to others. An F.I.R in this behalf was also registered. It is in the aforesaid perspective that the impugned order has been passed.
The matter came up for hearing before this Court on 10.10.2006. During the course of the proceedings the then learned Counsel for the petitioner after arguing the case at some length stated that the only grievance was that the Election Tribunal could not direct holding of repolling in one Polling Station and under Rule 75 of the Punjab Local Government Elections Rules, 2005 the election as a whole could be declared as a null and void and a fresh election directed in respect of the entire constituency. In support of his contentions the learned Counsel had placed reliance on the judgments reported as Muhammad Hanif Shah v. Election Tribunal & others (1985 MLD 374) and Muhammad Hanif Shah v. The Election Tribunal, etc. (NLR 1985 Civil 811).
The learned Counsel for Respondent No. 2 resisted the said petition and supported the order of repolling in one Polling Station. However, his contentions were overruled and this Court vide its order dated 10.10.2006 accepted the contentions of the Counsel for the petitioner and held that entire election of the Union Council concerned was null and void and "a run of election" be held. Aggrieved the present petitioner filed an Intra Court Appeal challenging the said order dated 10.10.2006 i.e I.C.A. No. 302/06 which was disposed of vide order dated 29.11.2006 and the matter remitted back to this Court on the sole ground that there is no provision of "a run of election" of Nazim and Naib Nazim. The findings of this Court otherwise were not interfered with.
The learned Counsels for the parties have been heard and the record perused.
At the very outset the learned Counsel appearing on behalf of the petitioner frankly conceded that the Election Tribunal seized of the matter was not vested with the jurisdiction to order a repoll in one Polling Station and a fresh election in the entire constituency could have been ordered. The learned Counsel for the respondent has no objection for holding of a fresh election in the entire constituency. The only contention raised at the bar by the learned Counsel for the petitioner is that this Court while exercising his Constitutional jurisdiction should not substitute its findings that of the Tribunal vested with the jurisdiction in this behalf and prays that the matter be remanded back to the Election Tribunal for passing of an appropriate order in the circumstances. In support of his contentions the learned Counsel has relied upon the judgments reported as Sardar Hussain & others v. Mst. Parveen Umer & others (PLD 2004 S.C. 357) and Syed Azmat Ali v. (1) The Chief Settlement and Rehabilitation Commissioner, Lahore, (2) Abdur Rehman and (3) Mst. Aimna Bibi (PLD 1964 S.C. 260).
The learned Counsel for the contesting respondents has vehemently opposed the contentions raised on behalf of the petitioner and contends that the petitioner after subverting the will of the people and defiling the electoral process through violence wants to hang on to his ill-gotten gain a little longer. Adds that the remand of the case would be an exercise in futility and would only delay the expression of will of the people.
The contentions raised on behalf of the learned Counsel for the petitioner are misconceived. Reliance has been placed on the observations of the honourable Supreme Court in Syed Azmat Ali's case (supra), which are being read out of context. The relevant portion of the judgment is reproduced hereunder:--
"Having decided, however, to set aside the order of Malik Fateh Khan the question is as to what should the High Court have done? Should it have remanded the case for a proper decision in accordance with law. In the present case, the question whether Aimna Bibi had, in fact, filed a CH form or not was a question which clearly required investigation. Malik Fateh Khan merely said that there was no evidence on the record to prove that she had filed such a CH form. He did not come to any clear finding that no CH form was in fact filed. Aimna Bibi produced a receipt which showed that a CH form was submitted to the office but after notified date. The question, therefore, arose as to whether the delay in the filing of the CH form had been condoned and the same admitted. A further question that arose for consideration was as to whether Khan Farzand Ali Khan himself had acted in the proper exercise of his jurisdiction in dealing with the revision on merits without considering as to whether the order dismissing the appeal on the ground that it was barred by limitation was proper or not. There was nothing in the order of Khan Farzand Ali Khan to show that he was even conscious that any question of limitation arose. In the circumstances, we are unable to appreciate how the High Court thought it fit to restore the order of the Settlement Commissioner which itself was liable to be quashed in the writ jurisdiction.
In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi-judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal. Where it is felt that questions have been left undecided by such Tribunal or authority or a question has to be decided after the taking of fresh evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against."
In the facts and circumstances of this case the petitioner himself took a specific plea during the course of arguments that the impugned order of the Election Tribunal is illegal only to the extent that repolling has been directed in one Polling Station rather than the entire constituency. It has also been conceded at the bar that the Tribunal is only vested with the jurisdiction to declare the election as null and void and thereby direct a fresh election. It is no longer a disputed issue that will of the people had been subverted through violence. No further inquiry into the facts is required to be conducted and no other issue has been left undecided by the Tribunal necessitating further adjudication by it. The finding and decision of the Tribunal that the election process was flawed and subverted is no longer an issue before this Court nor such finding sought to be substituted by either party. In the circumstances there is no occasion necessitating the remand of the case and only a jurisdictional error in the judgment is required to be corrected so as to bring the ultimate relief granted in consonance with the law as expounded by both the learned Counsels. The fact in the instant case are totally different from the facts of the case relief upon by the learned Counsel for the petitioner where further inquiry into facts was required to be effected and undecided questions still remained to be adjudicated upon. The contentions of the petitioner appear to be a futile attempt at delaying the inevitable so as to hold on to an ill-begotton status in defiance to the will of the electorate.
In Sardar Hussain's case (supra) the honourable Supreme Court incidentally did not set aside the order of this Court passed in its Constitutional jurisdiction on account of the contention identical to contention raised before this Court seeking remand of the case, hence, the same is of no assistance for the petitioner.
The upshot of the above discussion is that ordinarily this Court while exercising of its Constitutional jurisdiction does not substitute its own decision with that of an inferior Tribunal or Authority, where such decision involves adjudication upon questions not decided by such Tribunal or Authority or require investigation or recording of fresh evidence. This Court is vested with the jurisdiction to ensure that justice is done in accordance with law and the litigation concluded rather than remanding the case by way of a formality and thereby condemning the parties to a further round of litigation. In the instant case there is no occasion to remand the case.
In view of the above, this petition is accepted. The order of the Election Tribunal is modified to the extent that the entire election of Nazim and Naib Nazim of Union Council No. 82, Bogrey, District Sialkot is declared to be null and void. Consent whereupon a fresh election of the post of Nazim and Naib Nazim would be required to be conducted in the entire constituency. Copy of this petition be sent to the offices of the Chief Election Commissioner as well as the Provincial Election Commissioner.
(M.S.A.) Petition accepted.
PLJ 2007 Lahore 1109
Present: Sayed Zahid Hussain, J.
MUNIR AHMAD and 7 others--Appellants
versus
BASHIR AHMAD ANJUM and 2 others--Respondents
R.S.A. No. 112 of 1999, heard on 5.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Specific Relief Act, (I of 1877), S. 12--Second appeal--Suit for specific performance--Sale during pendency of suit--Entitlement to decree of specific relief--Suit decreed by trial Court but dismissed by appellate Court--Validity--Notice--Assailed--Appellant was called upon to make payment of balance amount for completion of sale deed--Nothing has come on record to his readiness except the oral assertions and depositions of the witnesses produced by him--Appellant failed to perform his part despite the termination of litigation qua the suit property, respondents were absolutely justified to deal with the property after having no response from the appellant--Trial Court are consistent with the evidence on the record which call for no interference by High Court in second appeal--Appeal dismissed. [Pp. 1113, 1114 & 1115] A, B, C, D & G
1984 CLC 3462; 1990 CLC 366; 1991 CLC 1457; 2002 SCMR 1447; 2003 MLD 67; AIR (35) 1948 Calcutta 147 and AIR 1993 SC 1742.
Registration Act, 1908 (XVI of 1908)--
----S. 47--Registration of a document--Date of execution--Held: Date of execution of document will be the one on which it was signed by the parties. [P. 114] E
1984 SCMR 746.
Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Specific Relief Act, (I of 1877), S. 12--Second appeal--Specific performance of agreement to sell--Time may not be ordinarily of essence--Non-performance of agreement by appellant--Time may not be ordinarily of essence of agreement--Owner cannot be expected to hold the property and await for the execution of sale-deed in favour of the prospective vendee indefinitely--There is continuous trend of appreciation in the value of immovables properties--Held: It was the appellant himself who had failed to perform his part of the agreement and was not entitled to grant of decree for specific performance.
[P. 114] F
Ch. Muhammad Amin Javed, Advocate for Appellants.
Mr. S.M. Masood, Advocate for Respondents Nos. 1 & 2.
Mr. Zeshan Ashraf Mir, Advocate for Respondent No. 3.
Dates of hearing: 24.4.2006 and 5.5.2006.
Judgment
A suit for specific performance was filed by the appellant on the basis of three successive agreements final being of 11.4.1987, which was decreed by the trial Court on 4.4.1995 whereagainst the appeal preferred by the respondents was accepted by the First Appellate Court on 3.12.1999. This is second appeal by the plaintiff.
ISSUES:
Whether plaintiff is estopped to file this suit ?OPD
Whether the suit is not maintainable in its resent form? OPD
Whether the Defendant No. 3 is bona fide purchaser? OPD
Whether the defendants are entitled to special costs u/S. 35-A of CPC? OPD
Whether the plaintiff is entitled to a decree for specific performance of the contract as prayed for ?OPP
If the above issue is proved whether the registered sale-deed No. 615 dated 21.7.89 as well as Mutation No. 6287 dated 26.7.89 are illegal, void and against facts? OPP
Relief.
The parties led evidence in support of their respective pleas. The two Courts below had variant approach to the same set of evidence. The learned trial Court decreed the suit on 4.4.1995 with the direction to the appellant to make payment of the balance consideration of Rs. 29,000/- within one month. On appeal however the judgment was reversed by the First Appellate Court by accepting the appeal on 3.12.1999 granting decree for refund of Rs. 75,000/- paid as earnest money by the appellant.
The learned counsel for the parties have been heard. The record of the trial Court which is available before me has been perused.
The execution of agreements mentioned above in favour of the appellant by Respondents No. 1 and 2 and his physical possession is not in dispute. The controversy however centered around as to whether the appellant was entitled to the decree of specific relief and legality of subsequent sale in favour of Respondent No. 3. It has been found by the appellate Court that though the time was not of essence of the contract yet appellant/plaintiff failed to perform the agreement despite notices and demands by Respondents No. 1 and 2 and that Respondent No. 3 in purchasing the suit property acted in good faith without notice of prior agreement in favour of the appellant/plaintiff. The learned counsel for the appellant while assailing the findings recorded by the appellate Court contends that since the suit property was subject matter of litigation (pre-emption suit) no time was fixed for performance of the agreement and it was left open till the conclusion of the said litigation. It is contended that the appellant/ plaintiff was always ready and willing to perform his part of the agreement and it has illegally been held by the appellate Court that he failed to perform his part. According to him the notices sent by Respondents No. 1 and 2 since had not been exhibited as evidence could not be made basis for any such finding. It is contended that Respondent No. 3 had since failed to discharge onus that he was bona fide purchaser of the property without notice of prior agreement, the findings recorded by the appellate Court are incorrect, based on no evidence and are contrary to law. He has made reference to Fit. Lt. (Retd.) Mumtaz Khan v. Mst. Amtul Batool (1984 CLC 3462), Iqbal Sultan v. Miss Chand Sultan and 2 others (1990 CLC 366), Muhammad Yasin v. Allah Din (1991 CLC 1457), Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652), Sher Muhammad v. Qutabu and others (2002 SCMR 1447) and Province of Punjab through Collector, Faisalabad and another v. Rana Hakim Ali and another (2003 MLD 67). The learned counsel for Respondents No. 1 and 2 has on the other hand contended that since the appellant was not willing to pay the balance consideration despite repeated demands and notices issued to him and even published in the newspaper he has rightly been found by the appellate Court not entitled to the grant of decree for specific performance which is always in the discretion of the Court. He has particularly emphasized on the averments of paragraph-4 of the written statement. He has placed reliance upon Sm. Parul Bala Ghosh v. Saroj Kumar Goswami and others (AIR (35) 1948 Calcutta 147) and Smt. Chand Rani (dead) by L.Rs. v. Smt. Kamal Rani (dead) by L.Ls. (AIR 1993 S.C. 1742). The learned counsel for Respondent No. 3 has drawn my attention to the sale-deed Ex.P-9 in favour of his client, which though was registered on 2.7.1989 yet had been executed between the parties on 18.6.1989. According to him the execution thereof had taken place prior to the institution of the suit. It is contended that since Respondent No. 3 had categorically denied the knowledge of any prior agreement in favour of the appellant the onus shifted upon the appellant to prove that he had notice of prior agreement. Reference has been made to Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652), Muhammad Ashraf v. Ali Zaman and others (1992 SCMR 1442), Messrs Pak United Housing enterprise v. Ramzan and 7 others (1992 CLC 1678) and Qazi Muhammad Bukhsh and 20 others v. Ghulam Sarwar and 13 others (2001 CLC 1526). It is contended that in second appeal the scope of interference is very limited and since the findings recorded by the First Appellate Court are based on appreciation and due appraisal of the evidence the appeal is liable to be dismissed. For this purpose he has made reference to Nadir Shah v. Lal Shah and another (PLD 1954 Lahore 447), Pathana v. Mst. Wasat and another (PLD 1965 S.C. 134), Muhammad Amin and 5 others v. Muhammad Latif (1987 CLC 2358) and Atta Rasool v. Fateh Khan and others (1995 CLC 1321).
The suit for specific performance was instituted by the appellant on 26.6.1989 with the prayer that decree for specific performance be granted and in the alternative decree for refund of Rs.75000/- may be passed. The averments made in paragraph-4 of the plaint were that due to the pendency of pre-emption suits qua the suit property the right to pass title in favour of the appellant had remained inchoate and suspended. The refusal to execute the sale-deed ten days prior to the institution of the suit was made basis for cause of action for the said suit. The contents of the corresponding paragraph of the written statement i.e. paragraph-4 laid a comprehensive basis for the plea of Respondents No. 1 and 2 wherein the issuance of notices, the dismissal of pre-emption suits on 17.10.1988, publication of notice in daily Imroz' of 23.4.1989 were all mentioned and that only when the appellant/plaintiff did not respond sale in favour of Respondent No. 3 was made through sale-deed dated 18.6.1989. These averments made in the written statement and pleaded with particularity find support from the evidence, led by respondents and are of great relevance and significance. It is correct that the suit property had remained in litigation due to the pendency of pre-emption suits which litigation terminated with the dismissal of those suits on 17.10.1988. This was duly conveyed to the appellant by Respondents No. 1 and 2 through notice dated 4.1.1989, which makes mention of an earlier notice dated 21.12.1988. Through these notices the appellant was called upon to make payment of balance amount of Rs.29,000/- for completion of sale-deed. This is besides the other notices issued to him including the publication of notice in dailyImroz' of 23.4.1989 (Mark-A). What else should have been done by Respondents No. 1 and 2 to show their inclination and readiness for completion of sale in favour of the appellant. On receipt of information about the termination of litigation qua the property in dispute, the appellant himself should have taken prompt steps for the performance of the agreement by making balance payment. Nothing has however come on record to show his readiness except the oral assertions and depositions of the witnesses produced by him. It was not his case that he remained unaware of the dismissal of the pre-emption suits. Keeping all this in view, the contentions of the learned counsel for the appellant loose its significance. Since the appellant failed to perform his part despite the termination of litigation qua the suit property, Respondents No. 1 and 2 were absolutely justified to deal with the property after having no response from the appellant.
Insofar as the sale in favour of Respondent No. 3 by Respondents No. 1 and 2 is concerned it may be observed that he i.e. Respondent No. 3 appeared as a witness and produced Riaz ul Haq DW-2, Faiz Rasool DW-3 and Muhammad Rafi DW-4 to show that he made necessary inquiries and even visited the site of suit property before the purchase of the same. He had even made clarification about the price mentioned in the sale-deed and paid actually to Respondents No. 1 and 2. It is established on the record that the sale-deed through which the sale took place in his favour, (Ex.P-9) was executed on 18.6.1989 though it was registered on 2.7.1989. By virtue of Section 47 of Registration Act, 1908 the date of execution of such a document will be the one on which it was signed by the parties i.e. 18.6.1989. Reference in this context may be made to The Lahore Development Authority v. The Commissioner, Lahore Division and others (1984 SCMR 746). Before entering into the transaction of sale with Respondent No. 3, Respondents No. 1 and 2 had called upon the appellant through notices mentioned above for payment of the balance price and execution of the deed but the appellant failed to respond. It may be observed that though time may not be ordinarily of essence of agreement as is laid down in various precedents, yet the owner cannot be expected to hold the property and await for the execution of sale-deed in favour of the prospective vendee indefinitely. He may be in genuine need of money and each day may have great value for him. This is apart from the fact that there is continuous trend of appreciation in the value of immovable properties. I find substance in the contention of the learned counsel for the respondents that it was the appellant himself who had failed to perform his part of the agreement and was not entitled to the grant of decree for specific performance. Such a conclusion has been arrived at by me on perusal of the pleadings of the parties, material/evidence brought on record, despite the constraints and scope in second appeal. It may also be noticed that though the onus of proof of Issued No. 3 was on the defendants as held in Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652) and Muhammad Ashraf v. Ali Zaman and others (1992 SCMR 1442), yet the same was sufficiently discharged by producing ample evidence by the respondents. Nothing in rebuttal was brought on record. The case of Sher Muhammad v. Outabu and others (2002 SCMR 1447) also indeed support the plea of the respondents in the present appeal as it has been proved that Respondent No. 3 acted in good faith in purchasing the property. On consideration of the matter from various angles the conclusion is unescapable that the findings recorded by the appellate Court as compared to that of the trial Court are consistent with the evidence on the record which call for no interference by this Court in second appeal, result whereof is that the appeal is without merit, which is dismissed accordingly. No order as to costs.
(R.A.) Appeal dismissed.
PLJ 2007 Lahore 1115
Present: Sh. Azmat Saeed, J.
NASEER AHMAD SUMMA & another--Petitioners
versus
TOWN NAZIM, GULBERG, GULBERG TOWN, LAHORE and 2 others--Respondents
W.P. No. 5580 of 2006, decided on 9.4.2007.
Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 54-A & Schedule 6th--Constitution of Pakistan, 1973, Art. 199--Provisions--Market in question is situated with in the territorial jurisdiction of town municipal administration--Functions and powers of T.M.A. to control over land use, land development by public and private sectors for any purpose including markets--No exception has been created between the public and private sectors nor has a market committee been excluded from the operations of the provisions of law. [P. 1117] A & B
Constitution of Pakistan, 1973--
----Art. 99--Punjab Local Government Ordinance, (XIII of 2001), S. 54-A--Questioon of--Whether the proposed construction of new shops and mini shops would cause a nuisance to the inhabitants is a matter which cannot be adjudicated upon by High Court as not only disputed question of fact are involved but also such inhabitants would have alternative remedy both under Civil law as well as Criminal Procedure Code--Petition dismissed. [P. 1118] C
Mr. Sajid Mahmood, Advocate for Petitioners.
Malik Zafar Iqbal Awan, Additional Advocate-General Punjab.
M/s Hassan Makhdoom and Shahid Azeem, Advocates for Respondents.
Malik Muhammad Jamil Awan, Advocate for Applicants in C.M. No. 1471/06.
Date of hearing: 9.4.2007.
Order
The instant Constitutional petition has been filed by the Administrator and Secretary of the Market Committee, Singhpura, Lahore wherein it has been contended that a Market Committee was established in terms of Sections 7 and 8 of the Punjab Agricultural Produce Markets Ordinance, 1978. The said Fruit and Vegetable Market was established over a piece of land measuring 40-Kanals, 2-Marlas and 57 sq. ft. owned by the Pakistan Railways, the possession whereof had been delivered to the said Committee. Subsequently, the petitioners wished to erect 12 mini shops in front of the Cycle Stand and 28 shops on the back of the Fruit and Vegetable Market facing the back road, for which requisite permission had been obtained from the Director of Agriculture (E&M), Lahore.
The grievance raised is that the respondents, who are Town Nazim of the area, T.M.A and T.O (Regulations) of the area are interfering in the said project more particularly with reference to the erection of 28 new shops facing the road on the back side of the Market. In the above perspective relief is sought from this Court.
The respondents have entered appearance and filed their report and parawise comments contesting the Constitutional Petition primarily on the ground that no building can be erected or re-erected without the permission of the Town Municipal Administration. The residents of the locality have also joined the fray by filing an application for being impleaded as a party i.e C.M. No. 1471/2006. The said applicants have also sought dismissal of the Constitutional Petition.
Learned Counsels for the parties as well as the learned Additional Advocate-General Punjab have been heard and the record appended with this petition perused.
In pith and substance it is the case of the petitioner that the Market Committee in question has admittedly duly been established in terms of Sections 7 and 8 of the Punjab Agricultural Produce Markets Ordinance, 1978 and the exclusive authority to erect and construct further shops within the precincts of the Market Committee vests in the said Committee subject only to the approval of the Government of the Punjab and the respondents have no jurisdiction to demand or insist that any permission or sanction be obtained therefrom. In support of his contention the learned Counsel for the petitioner has relied upon the judgment of the honourable Supreme Court of Pakistan passed in Civil Appeals No. 388/1986, 732, 733 and 619 of 1988.
The learned Counsel appearing on behalf of the respondents has contended that in view of Section 54-A of the Punjab Local Government Ordinance, 2001 no building can be erected or re-erected without the permission of the Town Municipal Administration and in the instant case no such permission has been obtained. It is further contended that by way of the proposed construction the road and sewerage lines are being encroached upon and the erection of the new shops would cause grave inconvenience to the inhabitants of the locality situated behind the said Fruit and Vegetable Market.
The learned Counsel for the applicants (in C.M. No. 1471/06) has echoed the contentions raised on behalf of the respondents and has further contended that the Market with its 28 shops opening on the back street would cause great nuisance to the inhabitants.
The Punjab Local Government Ordinance, 2001 applies to the whole of the Punjab except, for areas notified as Cantonments under the Cantonments Act, 1924. It is not the case of either of the parties that the Market in question is situated in any Cantonment. In fact it is an admitted fact between the parties that the Market in question is situated within the territorial jurisdiction of the respondent Town Municipal Administration. Section 54-A of the Punjab Local Government Ordinance, 2001 in unequivocal terms sets out the functions and powers of the T.M.A to include control over land use land development by public and private sectors for any purpose including Markets. The 6th Schedule of the Punjab Local Government Ordinance, 2001 read with Section 195 thereof enumerates the general powers of the respondent T.M.A and para 24 thereof clearly states that no person shall erect or re-erect a building except with the previous sanction of the Local Government. Thus, it is clear and obvious that as a general rule no building can be erected or re-erected without the previous sanction of the Town Municipal Administration within the area of its jurisdiction. No exception has been created between the public and private sectors nor has a Market Committee been excluded from the operations of the aforementioned provisions of law.
The reference of the learned Counsel to the judgment of the honourable Supreme Court in Civil Appeals No. 388/1986, 732, 733 and 619 of 1988 is clearly misconceived. In the said case there was obvious conflict between Section 4(3) of the Punjab Agricultural Produce Markets Ordinance, 1978 and the Punjab Local Government Ordinance, 1979 and it was the said conflict which was resolved. In the lis at hand no such conflict exists between the provisions of the Punjab Agricultural Produce Markets Ordinance, 1978 and Section 54-A read with Section 195 and 6th Schedule of the Punjab Local Government Ordinance, 2001. With the help of the learned Counsels the provisions of Sections 3, 7 and 9 of the Punjab Agricultural Produce Markets Ordinance, 1978 have been examined. No specific powers in parameteria of Section 54-A of the Punjab Local Government Ordinance, 2001 have been conferred upon the Market Committee or any other Authority. The learned Counsel for the petitioners has failed to point out any provision of the Punjab Agricultural Produce Markets Ordinance, 1978 which confers any authority upon the Market Committee to sanction the erection or re-erection of the building. Similarly, the learned Counsel have been totally unable to point out any provision in either of the two laws i.e the Punjab Agricultural Produce Markets Ordinance, 1978 and Punjab Local Government Ordinance, 2001 to show that Section 54-A of the Punjab Local Government Ordinance, 2001 and the 6th Schedule thereof does not apply to an area where a Market has been established in terms of the Punjab Agricultural Produce Markets Ordinance, 1978.
In this view of the matter, this Court has no hesitation in holding that before any shops can be erected or re-erected by the Market Committee requisite sanction, consents and permissions must be obtained in terms of Section 54-A and the 6th Schedule of the Punjab Local Government Ordinance, 2001.
Furthermore, whether the proposed construction of 28 new shops and 12 mini shops would cause a nuisance to the inhabitants is a matter which cannot be adjudicated upon by this Court as not only disputed questions of fact are involved but also such inhabitants would have alternative remedy both under civil law as well as the Criminal Procedure Code.
The upshot of the above discussion is that this Constitutional Petition is without any merit and is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2007 Lahore 1118
Present: Fazal-e-Miran Chauhan, J.
MUHAMMAD RAFIQUE--Petitioner
versus
STATION HOUSE OFFICER, SADDAR POLICE STATION PAKPATTAN SHARIF and another--Respondents
W.P. No. 2784 of 2007, decided on 4.4.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 550--Constitution of Pakistan, 1973, Art. 199--Quashing of FIR--Mala fide intention--Despite production of documents--Superdari of the car was allowed but police department refused to release the vehicle--Validity--Entitlment--Neither the vehicle in-question was a stolen car nor it was snatched by the petitioner--No document was forged nor was produced to cheat the police--No fraud or forgery was committed by the petitioner--Police does not have free hands to play havoc with the rights, life, liberty and honour of the citizen and to use it as a liver to commit atrocities on innocent citizen under the garb of investigation--FIR was quashed. [P. 1120] A & B
Muhammad Hussain Chotia, Advocate for Petitioner.
Mrs. Farzana Khan, Assistant Prosecutrix General with Tahir Wahid SHO and Khalid Mahmood S.I.
Date of hearing: 4.4.2007.
Order
Through this writ petition the petitioner has prayed for quashment of case FIR No 125 dated 27.2.2007 registered under Sections 420, 468, 471 PPC at Police Station Saddar Pakpattan Sharif.
Learned counsel for the petitioner contends that the case has been registered with mala fide intention of the police; that the petitioner purchased the vehicle after getting loan facility from Meezan Bank, Faisalabad and letter dated 31.1.2007 was duly issued for use of said vehicle in favour of petitioner; that an amount of Rs. 21755/- was paid for its registration to the Motor Registration Authority, Faisalabad and Registration No. FDA-07-1706 was issued vide Challan No. 5452 dated 15.2.2007. Further adds that on 22.2.2007 petitioner was going to the said vehicle when respondents despite examining the titled documents with mala fide intention took into possession the vehicle and detained the petitioner. On 27.2.2007 respondents with mala fide intention registered the above criminal case. Neither the vehicle in question is a stolen car nor it was snatched.
Learned Assistant Prosecutrix General has controverted the arguments of the learned counsel for the petitioner.
I have heard the learned counsel for the parties and examined the record.
Admittedly, the petitioner purchased the said vehicle while getting the facility from Meezan Bank, Faisalabad and letter dated 31.1.2007 was duly issued for use of said vehicle in favour of petitioner; that an amount of Rs. 21755/- was paid for its registration to the Motor Registration Authority, Faisalabad and Registration No. FDA-07-1706 was issued vide Challan No. 5452 dated 15.2.2007. On 22.2.2007 the respondents took into possession the said vehicle under Section 550 Cr.P.C despite production of the titled documents and detained the petitioner. Superdari of the car was allowed vide order dated 6.3.2007 by the Magistrate but the respondents refused to release the vehicle. On 27.2.2007 respondents with mala fide intention registered the above criminal case. Neither the vehicle in question was a stolen car nor it was snatched by the petitioner. No document was forged nor was produced to cheat the police. No fraud or forgery was committed by the petitioner. It was a duly registered vehicle. The registration of case was sheer mala fide on the part of the police, which amounts to the abuse of process of law, as the petitioner cannot be condemned unheard.
Heard. Record perused. The S.H.O, in attendance, admits that the vehicle, in question, was taken in possession under Section 550 Cr.P.C. It was carrying a number plate usually used, when the owner had applied for registration, but the said applied for plate was not in use of any car dealer and was being used to defraud the official and public-at-large.
Maintainability of petition is to be seen in the facts and conduct of the police. The police does not have free hand to play havoc with the rights, life, liberty and honour of the citizen and to use it as a liver to commit atrocities on innocent citizen under the garb of investigation. A.S.I/Incharge of investigation has not taken single step to progress the investigation pending with him. His attitude towards investigation appears to be very casual, FIR was lodged on 27.02.2007 and no steps were taken to complete the same but appear that he was vexing with the same to give torture to the accused, which is evidence from the lack of interest in concluding and completing the investigation within the time specified. This reflects on the mala fide of police and strengthened the allegation that he is being dragged in the case was being humiliated on the instigation of police employees.
For what has been discussed above, it appears that the vehicle, in question, was taken into possession by the police under Section 550 Cr.P.C suspecting that the same was either stolen or was used in the commission of offence. Later on, no such fact was disclosed and from the record; it appears, that the vehicle was taken into possession simply for the reason that the same was carrying a number plate, which is usually used for the interregnum period from the date of purchase till the registration of the same, the period provided for the registration under the law. This act of taking the car into possession under Section 550 Cr.P.C. shows the atrocity of the police. Again when the vehicle was directed to be released on Superdari, the same was released on one pretext or the other, which seems to defy the order passed by a competent Court. From the record, it is evident that the vehicle was purchased and owned by the petitioner and was duly registered as FDA-07-1706 and a letter to this effect was issued by the Motor Registration Authority, Excise and Taxation Department, Faisalabad on 15.2.2007. On refusal of Superdari, the petitioner was constrained to file contempt petition against Tahir Waheed Butt S.H.O and Muhammad Asghar S.I. The car was given on Superdari on 26.03.2007, the S.H.O in the report and parawise comments, introduced a new case that one Muhammad Ashraf was also arrested on the same day, while he was sitting in the said car, who was carrying .222 unlicenced rifle and a case was registered against him. All this appears to have been concocted by the police and to justify their illegal acts, which leads to the conclusion that altogether false and fabricated case was registered against the petitioner with mala fide intention on the behest of employee of police force.
Resultantly, this petition is allowed and FIR No. 125 dated 27.2.2007 registered at Police Station Saddar Pakpattan is quashed. The District Police Officer, Pakpattan is directed to look into the matter and take stern action against the delinquent police officials and submit report to the Deputy Registrar (Judicial) of this Court within a fortnight from the date of receipt of this order.
(F.F.) FIR quashed.
PLJ 2007 Lahore 1121
[Rawalpindi Bench Rawalpindi]
Present: Muhammad Akhtar Shabbir, J.
NISAR AHMAD SIDDIQUI--Petitioner
versus
MUHAMMAD ASHRAF ABBASI and 4 others--Respondents
W.P. No. 574 of 2005, decided on 31.1.2007.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 145--Question of possession--Compromise--Proceedings u/S. 145 Cr.P.C. cannot be compromised nor can they be submitted to arbitration--Question of possession can be settled by the compromise but the question of title cannot be settled in proceedings u/S. 145 Cr.P.C.--Order accordingly.
[P. 1124] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 145(6)--Competent to discharge the proceeding--Magistrate--Scope of--Party in possession to retain possession until legally evicted--Delivery of possession--Magistrate is only competent to discharge proceeding but he cannot pass an order with regard to delivery of possession under S. 145(6) Cr.P.C. [P. 1124] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 145(5)--Scope of--Competency to proceed--Possession--Validity--Magistrate is not competent to proceed further in the matter handing over the possession of the property in dispute beyond scope of S. 145(5), Cr.P.C. and Addl. Sessions Judge was also not competent to remand the case--Held: Magistrate shall be deemed to have been passed u/S. 145(5) Cr.P.C. and proceedings before him shall be deemed to have been ended. [P. 1125] D & E
AIR 1929 Nagpur 285 & AIR 1923 Allahabad 77, ref.
Dr. Babar Awan, Advocate for Petitioner.
Malik Waheed Anjum, Advocate for Respondents.
Date of hearing: 31.1.2007.
Order
This writ petition has been filed to call in-question the order dated 10.02.2005 passed by the learned Addl. Sessions Judge, Rawalpindi in its revisional jurisdiction.
Facts giving rise to the present writ petition are to the effect that the proceedings under Section 145 Cr.P.C. had been pending before the Illaqa Magistrate of Police Station Cantt. Rawalpindi, with respect to the dispute over the possession of the `Petrol Pump' named as Chawala Petrol Pump and Super Service Station, 13/A the Mall, Rawalpindi alongwith Bungalow No. 268/B, the Mall, Rawalpindi. These proceedings were initiated on the receipt of the report, sent by the police along with Qalandara under Section 145 Cr.P.C. on the written application of Nisar Ahmed Siddiqui the present petitioner. After receipt of the police report the parties were summoned and after hearing both the parties and having apprehending law and order situation the property in dispute had been sealed, the parties were directed by the Magistrate to produce their evidence. On 13.09.2003 both the parties appeared in person and got recorded their statements having effected a compromise between them whereupon, the learned Magistrate vide order dated 13.09.2003 disposed of the proceedings and it was further directed as per terms of compromise, possession of Chawala Petrol Pump, the Mall, be handed over to the present petitioner Nisar Ahmed Siddiqui. Being aggrieved the Respondents No. 1 & 2 filed a revision petition before the learned Addl. Sessions Judge, Rawalpindi, who vide judgment dated 10.02.2005 accepted the revision petition and set aside the order passed by the Magistrate dated 13.09.2003 with the direction to the Magistrate to proceed in accordance with the provisions contained in Section 145 Cr.P.C.
Learned counsel for the petitioner contended that before the learned Magistrate the petitioner and the respondents made their statement with regard to the compromise effected between them and the respondent Mohammad Ashraf Abbasi made a statement for de-seal of the Petrol Pump and handing over the possession of the Petrol Pump to the petitioner. He further contended that the compromise in criminal cases once effected is effected for all and the party could not resile from the same. While on the other hand, learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the petitioner contending that the proceedings under Section 145 Cr.P.C. cannot be compromised nor these can be referred to the arbitration. He further contended that the Magistrate was under legal obligation to determine the fact and actual possession of the parties two months earlier and the question of title cannot be taken into consideration nor the order could be passed with regard to the future possession. He placed his reliance on the case of Gangadhar Vs. Balkrishna and others (A.I.R. 1929 Nagpur 285).
I have heard the arguments of the learned counsel for the parties and perused the record.
The police submitted a Qalandara under Section 145 Cr.P.C. to the concerned Illaqa Magistrate for proceeding for determining the possession of the parties two months before the date when the dispute likely to cause the breach of peace existed between the parties. Admittedly during the proceedings a compromise between the parties has been effected and the statements of the parties Nisar Ahmad Siddiqui present petitioner, Muhammad Ashraf Abbasi and Mushtaq Ahmad Siddiqui were recorded and on the basis of the statements of the parties, learned Illaqa Magistrate, vide order dated 13.09.2003 ordered for de-seal of the Petrol Pump and directed handing over the possession of the Petrol Pump to Nisar Ahmad Siddiqui present petitioner. The said order was challenged by Muhammad Ashraf Abbasi etc the respondents through a revision petition, which came up for hearing before Mr. Abdul Rehman Khan, learned Addl. Sessions Judge, Rawalpindi, who on 10.02.2005 accepted the revision petition, setting aside the order of the Illaqa Magistrate remanding the case to the Illaqa Magistrate with the direction to proceed further in accordance with the provisions contained in Section 145 Cr.P.C. Learned counsel for the writ petitioner has forcefully contended that the respondents had made the statements before the Magistrate with their own free consent and the respondents could not wriggle out of the same.
The proceedings under Section 145 Cr.P.C. have been initiated on the application of Nisar Ahmad Siddiqui etc the present petitioner and he himself made his statement to the effect that he does not want to continue the proceedings under Section 145 Cr.P.C. and requested for de-sealment of the Petrol Pump and Muhammad Ashraf Abbasi respondent has also accepted/admitted the statement of Nisar Ahmad Siddiqui etc and he also offered the Magistrate to de-seal the Petrol Pump and handed over the possession of the same to Nisar Ahmad Siddiqui and Mushtaq Ahmad Siddiqui. It is settled proposition of law that the proceedings under Section 145 Cr.P.C. cannot be compromised nor can they be submitted to arbitration. All that can be done that there can be an agreement as to the mode of taking evidence as regards to the actual possession on the date of the preliminary order either by a commission or by arbitration. The question as to who is in actual possession would not be delegated even by consent of the parties. In this context reference can be made to the case of Gangadhar Vs. Balkrishna and others (A.I.R. 1929 Nagpur 285). In another case of (AIR 1923 Allahabad 77) it has been laid down that the question of possession can be settled by the compromise but the question of title cannot be settled in proceedings under Section 145 Cr.P.C.
Section 145 (5) Cr.P.C. provided that nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed: and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. In the case in hand, the Magistrate has directed the delivery of possession in favour of one party the petitioner which is in violation of Clause (5) of Section 145 Cr.P.C. In case of Sadhu Biswas and another Vs. Muhammad Ali Biswas (9 Indian Cases 167) the parties to a proceeding under Section 145 of the Criminal Procedure Code compromised and filed a petition of compromise, and according to its terms the Magistrate ordered that the land would be in the possession of both sides as stated in the petition. It was held that the order fell under Clause 5 of Section 145 and not one under Clause 6. If the Magistrate decides that one of the parties was in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. In the case in hand the parties made statements before the Court and assured that no such dispute is in existence as they had compromised. In such circumstances the Magistrate is only competent to discharge the proceeding but he can not pass any order with regard to the delivery of the possession under sub-clause (6) of Section 145 Cr.P.C. and he was not competent to proceed beyond the scope of sub-clause (5) of Section 145 Cr.P.C. as the Magistrate has not recorded any evidence with regard to the possession of the parties and on mere statements of the contestants passed the order dated 13.09.2003. From perusal of the record, it reveals that the dispute with regard to the breach of peace at the said petrol pump ceased
to exist, therefore, the Magistrate should have stayed the proceeding any further. As stated earlier the proceeding under Section 145 Cr.P.C. have been initiated on the application of the present petitioner Nisar Ahmad Siddiqui and he made the statement that the matter has been resolved, therefore, the position will be the same as was on the date of filing of the application. This aspect of the case has not been adverted to by the Magistrate as well as by the learned Addl. Sessions Judge, Rawalpindi, who while accepting the revision petition, setting aside the order of the Magistrate and declared that the proceedings under Section 145 Cr.P.C., would be deemed to be pending before the learned Magistrate.
(M.S.A.) Order accordingly.
PLJ 2007 Lahore 1125
Present: Syed Shabbar Raza Rizvi, J.
MUHAMMAD ASLAM--Petitioner
versus
DISTRICT RETURNING OFFICER, SHEIKHUPURA and 6 others--Respondents
W.P. No. 11927 of 2006, decided on 10.11.2006.
Constitution of Pakistan, 1973--
----Art. 199--Allegation of malign judiciary--Innocent person--Disregarding--It has become fasion to levels false and wild allegation against person disregarding their status and position, which is not only illegal, it is also a sin, in accordance with our religion under the Constitution of Pakistan, to malign judiciary, is a serious offence--Request of petitioner cannot be granted. [P. 1126] A
Ch. Binyameen Khalil, Advocate with Petitioner.
Respondent No. 2 in person.
Date of hearing: 10.11.2006.
Order
A serious allegation was leveled against the learned Returning Officer/Mr. Tariq Khursheed Khawaja, Civil Judge, Ist Class mentioned as Respondent No. 2 in this writ petition.
"That the petitioner being the contesting interested candidate approached the office of Respondent No. 2/Returning Officer and after having the nomination papers the petitioner submitted his nomination papers duly supported by the covering candidate as well as the nominee but the learned Returning Officer did not consider the nomination papers of the petitioner under the influence of sitting Nazim and Naib Nazim."
The learned counsel for the petitioner was cautioned on the last date of hearing that he was casting a serious aspersion against judicial officer but he was firm in support of allegation mentioned above. Since it is a fundamental right of a qualified citizen to contest election and according to allegation the petitioner was deprived of that, by the learned Returning Officer/Civil Judge, this Court had to call Respondent No. 2, with great reluctance, in the interest of justice.
Today the learned Returning Officer/Civil Judge has appeared and rebuffed the allegation. The learned counsel for the petitioner submitted peevishly that he wanted to withdraw this writ petition.
It is very unfortunate that it has become fashion to level false and wild allegations against the innocent persons disregarding their status and position, which is not only illegal, it is also a sin, in accordance with our religion. Under the Constitution of Pakistan, to malign judiciary, is a serious offence, therefore, the request of the learned counsel for the petitioner cannot be granted.
This writ petition is dismissed with Rs. 50,000/ as cost, to be paid by the petitioner. The office is directed to make arrangement for the recovery of the same in accordance with law and rules. The petitioner is also declared disqualified to contest the election in view of above false allegation against a member of the judiciary which he has miserably failed to prove or substantiate.
(M.S.A.) Petition dismised.
PLJ 2007 Lahore 1127 (FB)
Present: Muhammad Muzammal Khan, Mian Hamid Farooq & Syed Shabbar Raza Rizvi, JJ.
MUHAMMAD AKRAM KHAN and another--Petitioners
versus
CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD
and 4 others--Respondents
W.P. No. 15034 of 2005, heard on 13.10.2006.
Adminsitration of Justice--
----Turn up of votes--Law applicable has not prescribed any average of turn up of votes, re-poll on such basis cannot be justified on basis of any canon known for administration of justice. [P. 1130] B
Punjab Local Government Election Rules 2005--
----R. 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Local bodies elections--Re-poll of polling stations--Stopping of poll--Assailed--Poll had been interrupted/obstructed for the reasons beyond his control and the same could not be resumed during the polling hours already fixed or any ballot box unlawfully removed or accidently/intentionally destroyed, lost damaged or tampered to such extent that result of poll could not be ascertained--No such report was remitted to or received by Returning Officer/District returning officer--Held: No other provision in the Punjab Local Government Election Rules, 2005 equipping the Chief Election Commission, District Returning Officer to direct re-poll on all or any of the polling stations in the given circumstances none of the prerequisite of Rule 25 occasioned for an order of re-poll.
[Pp. 1129 & 1130] A
Punjab Local Government Election Rules, 2005--
----R. 25--Matter of re-poll--Validity--Matter of re-poll of union council was not covered by Rule 25 of Punjab Local Government Election Rules, 2005 and could not have been ordered especially after the order of Returning Officer--Petition accepted. [Pp. 1130 & 1131] C
Mr. S.M. Masud, Advocate for Petitioners.
Ch. Muhammad Sadiq, Addl. Advocate General for Respondents No. 1 to 3.
Mr. Maqbool Elahi Malik, Advocate for Respondents No. 4 & 5.
Date of hearing: 13.10.2006.
Judgment
Muhammad Muzammal Khan, J.--Instant constitutional petition prayed order dated 31.8.2005 passed by the Chief Election Commissioner (Respondent No. 1) to be declared illegal, void and of no legal consequence, whereby re-poll of Polling Stations No. 1 and 11 of Union Council-56, district Sheikhupura, was directed.
Petitioners contested the local bodies elections held on 25.8.2005 for the offices of Nazim/Naib Nazim of Union Council-56 Bahuman, district Sheikhupura. Constituency of Union Council-56 Bahuman was allocated 11 polling stations. On the election day voting was reportedly interrupted at Polling Stations No. 6, 7 and 9 and the Returning Officer on 25.8.2005 ordered re-poll of these three polling stations. Respondents No. 4 and 5 who were opposing candidates of the petitioners having secured comparatively less votes on Polling Stations No. 1 and 11, as, petitioners belong to these areas, moved an application on 30.8.2005 before the Chief Election Commissioner praying re-poll on these polling stations, on the ground that general percentage of votes had been very high on these polling stations of the constituency as against others. The Chief Election Commissioner requisitioned a report from the District Returning Officer, who on his turn supported the stance of Respondents No. 4 and 5 and consequently re-poll on these two polling stations was also ordered on 31.8.2005. Petitioners being aggrieved of the order of re-poll by the Chief Election Commissioner, filed instant constitutional petition. Respondents in response to notice by this Court, have appeared and vehemently opposed the petition and refuted the arguments of the learned counsel for the writ petitioners, as re-poll on Polling Stations No. 1 and 11 was suspended through interim order dated 7.9.2005.
We have heard the learned counsel for the parties and have examined the record. Undisputedly, District Returning Officer through his general Order No. 1566/E-6 dated 26.8.2005 had directed re-poll in all categories of seats at different polling stations in different constituencies including Union Council-56 Bahuman, requiring re-poll at Polling Stations No. 6, 7 and 9 only. It is also not disputed by the respondents during the hearing of this petition that there had been no complaint of rigging the election, interruption obstruction of voting or any kind of mismanagement at the Polling Stations No. 1 and 11. The District Returning Officer in his report/parawise comments furnished to the Chief Election Commissioner vide Letter No. 267/D dated 3.8.2005 had specifically mentioned that Presiding Officers or Returning Officer had not reported any incident of firing, kidnapping or use of bogus ballot papers etc. at the Polling Station No. 1 or 11 of the constituency in question. He simply recommended re-poll on these polling stations on the ground that turn up of the votes being 70/80% was abnormal. In the above narrated factual backdrop, we will have to look into relevant provisions of Punjab Local Government Elections Rules, 2005, where-under re-poll could have been ordered and that being Rule 25 is reproduced for ready reference/convenience, as under:--
"25. Stopping of poll.--(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if--
(i) the poll at the polling station is, at any time, so interrupted or obstructed for reasons beyond the control of the Presiding Officer such that it cannot be resumed during the polling hours fixed under Rule 24; or
(ii) any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the results of the poll at the polling station cannot be ascertained.
(2) Where a poll has been stopped under sub-rule (1), the Returning Officer shall immediately report the circumstances to the District Returning Officer, who shall direct a fresh poll at that polling station and fix a date for such poll, unless he is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station taking into account the results of the polling at other polling stations in the same union.
(3) Where an order under sub-rule (2) has been made, the Returning Officer, shall notify the day for a fresh poll and fix the place at which and the hours during which such fresh poll shall be held.
(4) Where a fresh poll is held under sub-rule (3) at a polling station, all voters entitled to cast their vote shall be allowed to vote but the votes cast earlier at the poll so stopped under sub-rule (1) shall not be counted; and the provisions of the Ordinance and these rules shall apply to such fresh poll."
A bare study of above reproduced Rule revealed that Presiding Officer was to stop the poll and was to inform the Returning Officer of his having done so, in case the poll at his polling station had been interrupted/obstructed for the reasons beyond his control and the same could not be resumed during the polling hours already fixed OR any ballot box used at the polling station is unlawfully removed or is accidentally/intentionally destroyed, lost, damaged or tampered to such extent that result of the poll could not be ascertained. None of these incidents took place on any of the Polling Stations No. 1 and 11 and at the same time, no such report was remitted to or received by the Returning Officer/District Returning Officer. Under sub Rule (2) of Rule 25 (ibid) the Returning Officer was to immediately report to the District Returning Officer, had any such incident taken place, who then was to direct fresh poll, by evaluating the matter within the parameters fixed there-under. There was no other provision in the Punjab Local Government Elections Rules, 2005 equipping the Chief Election Commissioner or the District Returning Officer to direct re-poll on all or any of the polling stations, but in the given circumstances none of the prerequisites of Rule 25 occasioned for an order of re-poll.
In absence of any interruption/obstruction in the poll or removal/damage of ballot boxes, re-poll could not have been ordered merely on the ground that vote turn up, at these police stations has been abnormal. Since the law applicable has not prescribed any average of turn up of votes, re-poll on this basis cannot be justified on the basis of any canon known for administration of justice, especially when the same is not covered by the only applicable provision i.e. Rule 25 of the Punjab Local Government Elections Rules. 2005. It is amazing that District Returning. Officer in his report dated 30.8.2005 reported to the Chief Election Commissioner that turn up of votes on these polling stations had been more than 70/80% which shows that he was not aware of exact difference of cast of votes at different polling stations. We have examined with great interest, average of cast of votes at different polling stations and noted that it was slightly on higher side on both these polling stations but it could be for many other reasons, including the one urged by the petitioners that they hail from these areas and their following was much more than the Respondents No. 4 and 5. First order of re-poll by the District Returning Officer dated 26.8.2005 cannot also be lost sight of, as he did not order re-poll on Polling Stations No. 1 and 11, at that time.
For the reasons noted above, we are of the considered view that matter of re-poll at Polling Stations No. 1 and 11 of Union Council-56 Bahuman, district Sheikhupura, was not covered by Rule 25 of the Punjab Local Government Elections Rules, 2005 and the same could not have been ordered especially after the order of District Returning Officer dated 26.8.2005, thus this petition is bound to succeed and the same is accordingly accepted with the result that the order of re-poll dated 31.8.2005 passed by the Chief Election Commissioner of Pakistan is declared to be void and writ as prayed is issued, with no order as to costs.
(M.S.A.) Petition accepted.
PLJ 2007 Lahore 1131
Present: Muhammad Muzammal Khan, J.
DEFENCE HOUSING AUTHORITY (DHA), LAHORE--Petitioner
versus
Lt. Col. (R) MUHAMMAD ASLAM--Respondent
C.R. No. 1743 of 2005, decided on 31.10.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act, (IX of 1908), S. 5--Lack of jurisdiction--Civil revision before Secretary Cooperative, dismissed--Jurisdiction would adjudicate--Validity--Council undertook the entire responsibility of filing appeals with delay of one day and reason assigned by him was not only unintentional but was beyond his control--Held: Discretion vested in a Court exercised within the parameters fixed by law cannot be interfered in the instant case--Discretion has not only been exercised arbitrarily but the same on the face of it was utilized fancifully--An order passed by overlooking documents on the file and contrary to facts apparent on the face of record cannot be termed as lawful exercise of vested jurisdiction--Revision allowed. [P. 1133] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act, (IX of 1908), S. 5--Revisional jurisdiction--Condonation of delay--Discretion vested in Appellate Court in condoning the delay cannot be interfered in revisional jurisdiction of High Court. [P. 1133] A
2000 SCMR 1013, ref.
Mr. Faisal Hanif, Advocate for Petitioner.
Mr. Iqbal Mahmood Awan, Advocate for Respondent.
Date of hearing: 31.10.2006.
Order
This judgment proposes to decide three revision petitions, one in hand and C.R. Nos. 520 and 521 of 2006, as all these petitions involve similar questions of law/facts and arise in alike circumstances.
Succinctly, relevant facts are that pending three appeals of the petitioner against each of the respondents in above referred civil revisions, before the Secretary Cooperative, petitioner was promulgated to be an Authority through an Ordinance of 1999 by the Governor of the Punjab vide notification dated 29.9.2003. The Lahore Cantonment. Cooperative Housing Society registered under the Cooperative Societies Act, 1925 and all bodies constituted, there-under, were dissolved by the said Ordinance, in result of which litigation pending before the Secretary Cooperative, was dismissed on account of lack of Jurisdiction. Petitioner approached the Civil Court by filing three distinct suits with the claim that this forum being the Court of ultimate jurisdiction, would adjudicate upon the matters, which were previously placed before the Secretary Cooperative.
Respondents being defendants in the suits, filed their respective applications under Order VII Rule 11 CPC, which were ultimately accepted by the learned Civil Judge, seized of the suits and all the three plaints of the petitioner were rejected on 15.11.2003.
Petitioner being aggrieved of rejection of plaints, filed three appeals before the learned Additional District Judge but each of those, having been filed after a delay of one day, was barred by limitation. Petitioner had also moved 3 applications under Section 5 of the Limitation Act, 1908 praying condonation of delay, on the ground that Clerk of the counsel for the petitioner namely, Muhammad Yasin son of Allah Rakha, misplaced bundle of the files of the cases on 20.12.2003 which could be traced on 23.12.2003 resulting in unintentional delay of one day in filing the appeal. This application was supported by two affidavits, one by Muhammad Yasin Clerk of the counsel and the other Mr. Faisal Hanif, Advocate. Appeals filed by the petitioner were admitted to regular hearing but were ultimately dismissed on 24.9.2004, being barred by limitation by declining the prayer for condonation of delay. Petitioner thereafter, filed above noted three revision petitions and the respondents in all the three revision petitions appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record. Appellate Court while declining to condone the delay in filing the appeals, remarked that files were allegedly lost/misplaced by the Clerk of the counsel but his affidavit was said to have not been produced and instead affidavit of Mr. Faisal Hanif, Advocate, was relied which was not relevant as the files were misplaced by the Clerk. Scan of record revealed that application under Section 5 of the Limitation Act, 1908 was supported by an affidavit of Muhammad Yasin son of Allah Rakha, whose address was mentioned as 20/21 Sadiq Plaza, The Mall, Lahore, which is the place of office of learned counsel for the petitioner besides an independent affidavit of Mr. Faisal Hanif, Advocate, in support of averments in the accompanying application but this affidavit was overlooked by the learned Additional District Judge while passing the impugned order. Besides it, petitioner's appeals had been admitted to regular hearing and respondents had appeared to contest those but they did not opt to file any reply to the application under Section 5 of the Act (ibid) and at the same time, none of them filed any counter affidavit to dispel the impact of two affidavits one by the counsel himself and the other by his clerk. In the given circumstances of this case, affidavit of the counsel himself which remained un-rebutted by reply/counter affidavit was enough to resolve the factual controversy of misplacement of files resulting into delay in filing the appeals. Mr. Faisal Hanif, Advocate undertook the entire responsibility of filing appeals with a delay of one day and the reason assigned by him was not only unintentional but was also beyond his control. Learned counsel had no personal interest in lis thus his affidavit should have been believed which had been sworn even at the cost of exposing himself to penal consequences. Above all, reasons assigned by the learned Additional District Judge in support of the impugned order were illogical and could not be supported by the learned counsel appearing on behalf of the respondents.
Learned counsel appearing on behalf of the respondents attempted to have the civil revisions thrown out. of Court by asserting that discretion vested in appellate Court in condoning the delay cannot be interfered in revisional jurisdiction of this Court and in this behalf placed reliance on the case of Muhammad Nasir Mehmud and others vs. Mst. Rashidan Bibi (2000 SCMR 1013). Ratio of the erstwhile judgment of the Hon'ble Supreme Court is that where discretion vested in a Court, has been exercised within the parameters fixed by law the same cannot be interfered but in the instant case, the discretion has not only been exercised arbitrarily but the same on the face of it was utilized fancifully. An order passed by overlooking documents on the file and contrary to facts apparent on the face of record, cannot be termed as a lawful exercise of vested discretion. I accordingly hold that the judgments relied by the learned counsel for the respondents proceeded on altogether different facts/circumstances and were of no help to the proposition propounded in this case.
For the reasons noted above, impugned judgments/orders dated 24.9.2004 being patently tainted with material irregularity/ illegalities, are not sustainable at law and thus deserve to be reversed. All the three revision petitions are accordingly allowed, the impugned judgments/orders dated 24.9.2004 are set aside and petitioner's applications under Section 5 of the Limitation Act, 1908 are accepted by condoning the delay of one day in filing the appeals subject to payment of costs of Rs. 5000/- in each case, with the result that all the three appeals by the petitioner shall be deemed to be pending before the learned Additional District Judge, Lahore for decision on merits, in accordance with law. Parties are directed to appear before the appellate Court on 29.11.2006.
(M.S.A.) Petitions allowed.
PLJ 2007 Lahore 1134
Present: Sayed Zahid Hussain, J.
MUHAMMAD GULZAR AHMAD, ASSOCIATE PROFESSOR (STATISTICS), GOVERNMENT M.A.O. COLLEGE, LAHORE and another--Petitioners
Versus
CHIEF SECRETARY GOVERNMENT OF PUNJAB, LAHORE and 4 others--Respondents
W.P. No. 13415 of 2006, decided on 20.3.2007.
Constitution of Pakistan, 1973--
----Arts. 199 & 212--Service matter--Contractual appointment--On attaining the age of superannuation--Retired--Re-employed--Contract basis--Extended by notification--Assailed--Constitutional jurisdiction--Validity--Extended term of respondent is likely to expire merely after a period of 10 days--Court is not inclined to interfere with the exercise of discretion and jurisdiction by the Governor of the Province who extended the period of contractual appointment. [Pp. 1136 & 1137] A
2006 PSC 1794, PLD 1958 (W.P.) Lahore 185 (ref.)
Mr. Nazir Ahmad Javed, Advocate for Petitioners.
Mr. Aamir Rehman, Additional Advocate General Punjab for Respondents No. 1 to 4.
Mr. Masood A. Malik, Advocate for Respondent No. 5.
Date of hearing: 20.3.2007.
Order
Professor Maksud-ul-Hassan Bokhari, Respondent No. 5, is the Principal, Government M.A.O., College, Lahore who on attaining the age of superannuation had retired on 31.3.2004 but was re-employed on contract basis for a period of two years by order of the Governor of the Punjab vide notification dated 13.5.2004. His tenure was further extended by means of notification dated 8.5.2006 and the extended term is to expire on 30.3.2007. This petition has been filed by the petitioners who are Associate Professors in the same College assailing the extended period of his re-employment as per the notification dated 8.5.2006 and further seek a restraint order that he should not be given further extension.
Report and parawise comments have been filed by the official respondents (Respondents No. 1 to 4) whereby a justification is sought to be made for his re-employment which according to the respondents was "keeping in view his contribution towards uplift and improvement of Government M.A.O. College, Lahore." The locus standi of the petitioners in maintaining the petition has also been assailed, the bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is also being invoked. In the reply filed by Respondent No. 5 he also highlights his achievements and contribution in the field of education including that he had been conferred ( ) by the President of the Islamic Republic of Pakistan and the award of Best Principal Award' was bestowed upon him by the City District Government, Lahore.
The learned counsel for the petitioners contends that re-employment of Respondent No. 5 was violative of the re-employment policy. Reference in this context has been made to the policy guidelines about re-employment of retired government servants as circulated through SOR. 1-10-1/2003 dated 16.6.2003. He relies upon Pakistan Tobacco Board and another v. Tahir Raza and others (2006 PSC 1794) to contend that such an appointment should be declared as without lawful authority. It is further contended by him that there is a move for further extension of his contract/re-employment. The learned Additional Advocate General Punjab as also the learned counsel for Respondent No. 5 take exception to the stance of the petitioners, their locus standi and contend that the Government had in its lawful exercise of power re-employed Respondent No. 5 for his services and contribution in the uplifting of the Institution. It is stated by the learned Law Officer that the competent authority in the matter has yet to take a decision as to further re-employment of Respondent No. 5 for which no grievance can be entertained at this stage.
Since the first reemployment notification dated 13.5.2004 has lived its life and is not even in question, nothing need to be dilated upon about the same. So far as notification dated 8.5.2006 is concerned, the same reads as under:--
"In continuation of this Department's notification of even number dated 13.5.2004, the period of contractual appointment of MR. MAQSOOD-UL-HASSAN BUKHARI (BS-20/ Education Department), as Principal, Government MAO College, Lahore, is hereby extended w.e.f 13.5.2006 to 30.3.2007, on existing terms and conditions, in relaxation of the provisions of Re-employment Policy of the government of the Punjab".
It is apparent from the perusal of this notification that the period of contractual appointment was extended up to 30.3.2007 "in relaxation of Re-employment Policy of the Government of the Punjab". Such an authority and power of the Government to relax the provisions of Re-employment Policy has not been questioned rather paragraph-9 of the petition concedes the position that the competent authority had got the power to relax the policy/rules. The stance of the Government and justification for its order of extension is the contribution of Respondent No. 5 to the Institution who undeniably was conferred ( )
in the field of education by the President of the Islamic Republic of Pakistan and a certificate-of distinction for outstanding performance was awarded to him by the City District Government, Lahore. There prima facie appear a justification for availing the services of Respondent No. 5 in the said Institution.
The facts and circumstances of the reported precedent i.e. (Pakistan Tobacco Board and another v. Tahir Raza and others) (2006 PSC 1794) were peculiar inasmuch as re-employment of Khan Faraz, Secretary, Pakistan Tobacco Board had been assailed on the ground that "under the relevant rules the authority competent for re-employment of Petitioner No. 2 (Khan Faraz) was the President of Pakistan and that the recommendation of the Chairman of the Board for re-employment of Petitioner No. 2". was illegal. The petition assailing his re-employment was allowed by the High Court in that context and petition for leave was declined by the Hon'ble Supreme Court of Pakistan. In the said case the tenure of Khan Faraz was likely to expire on 8.10.2006 and it was urged that he may be allowed to complete the same. Such a request was not allowed observing that "Such a course was adopted by the learned Lahore High Court in the case A.R. Azar Supra (PLD 1958 (W.P) Lahore 185). In the said case, while the writ petition was decided on 22.11.1956 the extended tenure of the officer was to expire on 30.11.1956 (i.e. after 8 days). However, in this case, a period of four months is still there for completion of the extended tenure of the Petitioner No. 2. Further, the writ petition was filed by Mushtaq Ahmad and Tahir Raza but before this Court only Tahir Raza, has been impleaded. Moreover, even Tahir Raza, is not before this Court at this stage. Keeping in view the aforesaid circumstances, we are not inclined to allow the request made." Incidentally in this case the extended term of Respondent No. 5 is likely to expire on 30.3.2007 whereas today is 20.3.2007 i.e. a period of almost 10 days. In such circumstances, I am not inclined to interfere with the exercise of discretion and jurisdiction by the Governor of the Province who extended the period of contractual appointment of Respondent No. 5 till 30.3.2007.
For the reasons mentioned above, the petition fails which is dismissed accordingly.
(R.F.K.) Petition dismissed.
PLJ 2007 Lahore 1137
Present: Muhammad Akhtar Shabbir, J.
MUHAMMAD YOUSAF--Petitioner
versus
LAL DIN and 2 other--Respondents
W.P. No. 18773 of 2005, decided on 21.12.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O. XXIII, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for specific performance, decreed--Compromise statements--Assuming its duty--Application u/S. 12(2) CPC--Fraud and misrepresentation--Maintainability--Concurrent findings--Validity--Held: Determination of allegations of fraud and misrepresentation ordinarily involve--Investigation into a question of fact in such case an inquiry is ordinarily to be held to decide the matter, but the Court is not under obligation to frame issue and record evidence and follow the procedure prescribed the decision of suit--Petitioner miserably failed to point out any illegality or jurisdictional error in it or that same was perverse coram non judice and without lawful authority. [P. 1140] A & B
2001 SCMR 46 & 2003 SCMR 1050 Ref.
Sardar Abdul Majeed Dogar, Advocate for Petitioner.
Date of hearing: 21.12.2005.
Order
Briefly stated, the facts of the case are that one Lal Din Plaintiff-Respondent No. 1 (herein) had filed a suit for Specific Performance of the agreement to sell dated 18-12-2005 for a consideration of an amount of Rs. 3,00,000/-, in the Court of learned Civil Judge Pasrure, against Muhammad Yusuf defendant-petitioner (herein). It was asserted in the plaint that in compliance with the agreement to sell, an amount of Rs. 60,000/- was paid as earnest money and the remaining amount was to be paid at the time of registration of sale-deed. On 21.2.2004, an application was filed before the Duty Civil Judge who summoned the file of the case where the plaintiff and his counsel made a statement and handed over a cheque valuing Rs. 2,40,000/- in the name of defendant to be encashed in National Bank of Pakistan Main Branch Pasrure. The statements of the parties and their counsels were recorded and as a sequal thereof, the trial Court on assuming its duty vide judgment and decree dated 27.4.2004, decreed the suit. On 17.6.2004 an application under Section 12(2) GPO had been filed by the defendant through his son Tahir Hussain for setting aside the ex parte decree, asserting therein that the defendant being an infirm and rustic person aged about 75 years is unable to pursue the case and the application, therefore, the said application filed through his son. It is further alleged in the application that plaintiff/respondent being a cleaver person has availed the benefit of infirmity of defendant-applicant and on 29.1.04 convinced the applicant-defendant to make a statement and thumb mark the same. He denied the making of statement before the Court and prayed for setting aside the judgment and decree on the basis of fraud and misrepresentation.
The said application was contested by the other side and the trial Court through order dated 5.1.2005 dismissed the same. Thereafter, on 8.2.2005 another application had been filed by the defendant-petitioner, taking a different stand to the effect that plaintiff-respondent had induced him to go for performance of Umra and if did not opt to go now then his children would not allow him to go and he manoeuvred a forged agreement to sell, showing payment of Rs. 60,000/- to him. He denied the execution of agreement to sell. This application had also been contested by the opponent and the trial Court vide order dated 2.6.2005 also dismissed the same observing that it is a frivolous and baseless application and not maintainable.
Feeling aggrieved, the present petitioner preferred a revision petition which came up for hearing before the learned Addl. District Judge Pasrure, who vide impugned judgment dated 28.10.2005 dismissed the same, affirming the findings of the trial Court.
Learned counsel for the petitioner contended that the trial Court had dismissed the application under Section 12(2) CPC filed by the petitioner without framing of issues and recording of evidence and the petitioner had been deprived of his right establishing his case. He further argued that the trial Court while passing the judgment and decree had not complied with the provision of Order 23 Rule 3 CPC and the parties were not directed to adduce into writing the compromise, effected between them. He relied on cases of Pirzada Mumtazuddin vs. Farukh Sultana (PLD 1960 (WP) Karachi 409), Gurpreet Singh vs. Ghautur Bhuj Goel (AIR 1988 SC 400), and Andleeb Sahir Butt vs. Raja Naveed Hussain (2000 YLR 2831).
I have heard the learned counsel for the petitioner and perused the record.
It is admitted position that two applications under Section 12(2) CPC had been filed one after the other. First application had been filed by the petitioner through his son, where he had categorically asserted that his father being infirm and illiterate person, aged about 75 years, was not in a position to pursue the case so the application is being filed through him and the Plaintiff-Respondent No. 1 has taken the benefit of the infirmity of his father in obtaining the decree on the basis of statements/compromise while second application had been filed by the defendant-petitioner himself wherein he had taken a different and contradictory stand.
From perusal of these applications there is no denial to the fact that the petitioner had admitted his statement and thumb mark before the Court. Statements of parties and their counsels have been recorded by the Duty Civil Judge, when the application by the parties had been filed before him for recording the said statements but the final order of decreeing the suit had been passed by the trial Judge himself. The stress of arguments of learned counsel for the petitioner was that the compromise had not been effected in true perspective of the provisions of Order 23 Rule 3 CPC but this decree had not been challenged on this ground before next appellate/revisional Court.
The petitioner has opted to avail of alternate remedy of filing an application under Section 12 (2) CPC and if for the sake of arguments it is accepted that the statement of the petitioner was manoeuvred or he was induced due to one reason or the other by the Plaintiff-Respondent No. 1, his counsel was present in the Court in whose presence the statement was got recorded and the petitioner had thumb marked the same. Further, the petitioner had admitted in his subsequent application that cheque valuing Rs. 2,40,000/- had been deposited in his account, the question is that who has opened the account of the petitioner in the Bank.
From the contents of both applications, the case of fraud and mis-representation has not been established by the petitioner.
The determination of such allegations ordinarily involve investigation into a question of fact and in such cases an inquiry is ordinarily to be held to decide the matter but the Court is not under obligation in every case frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit and the matter is left to the satisfaction of the Court which has to regulate its proceedings and the Court may in its discretion adopt any mode for its disposal as laid down in case of Nazir Ahmad vs. Muhammad Sharif (2001 SCMR 46).
In case of Mst. Nasira Khatoon vs. Mst. Aysha Bai (2003 SCMR 1050) the Hon'ble Judges of the Apex Court have held that the Court may dispose of an application under Section 12(2) CPC without framing issues, recording evidence of the parties and following the procedure for trial of the suit.
The another aspect of the case is that the petitioner has challenged the concurrent findings of the Courts below as well as revisional order of lower Court but the learned counsel for the petitioner miserably failed to point out any illegality or jurisdictional error in it or that the same was perverse, coram non-judice and without lawful authority.
Resultantly, this writ petition having no force is dismissed in limine.
(W.I.) Petition dismissed.
PLJ 2007 Lahore 1140
Present: Muhammad Akhtar Shabbir, J.
Dr. AHMED ALI JAFRI--Petitioner
versus
Mst. ABIDA QAISER and 5 others--Respondents
W.P. No. 10972 of 2006, decided on 22.2.2007.
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Land Revenue Act, 1912, Ss. 6, 7 & 175--Constitutional petition--Prevention of encroachment upon common land--Revenue department issuance of warrant of possession of property--Assailed--Action of revenue department of issuing warrant of possession of the property in dispute against petitioner is declared illegal, without lawful authority, without jurisdiction and quashed--Petition accepted. [P. 1143] D
West Pakistan Land Revenue Act, 1912--
----Ss. 7 & 175--Constitution of Pakistan, 1973, Art. 199--Prevention of encroachment upon common lands--Suit for specific performance--Application for temporary injunction was dismissed--Respondent approached revenue officer for issuance of warrant of possession of the property--Tehsildar after receipt of report from revenue patwari and issued warrant of possession--Exercise of jurisdiction by Tehsildar assailed through Constitutional petition--Validity--Held: Tehsildar is the chief officer entrusted with the local revenue administration of a tehsil called as Tehsildar, who shall exercise such powers and discharge such duties of an assistant collector as may be expressly conferred and imposed on him under West Pakistan Land Revenue Act--Section 175 of the West Pakistan Land Revenue Act has empowered the revenue officer to remove the encrocher--Property/land owned by respondent occupied by the petitioner was not a land reserved for common purposes--Ejectment order by respondent against the petitioner is not covered under the said provisions--Exercise of power by the revenue officer issuing warrant of possession against the petitioner to evict him from the land in-question is illegal and the illegal act of a public functionary cannot be protected by the Courts--Petition allowed.
[Pp. 1141, 1142 & 1143] A, B & C
Mr. Khizer Abbas Khan, Advocate for Petitioner.
Syed Mukhtar Abbas, Advocate for Respondents.
Respondent No. 6 in person.
Date of hearing: 22.2.2007.
Order
Facts giving rise to the present writ petition are to the effect that the plaintiff/petitioner herein Dr. Ahmad Ali Jafri had filed a suit for specific performance of contract with regard to the property measuring 1-Kanal situated in Khata Nos. 324, 323 of Mauza Ahmadpur Sial, Tehsil Ahmadpur Sial, District Jhang against Defendant/Respondent No. 1 herein on the basis of agreement to sell dated 22.08.1997. The suit was contested by Defendant/Respondent No. 1, who filed her written statement. Alongwith the suit the plaintiff/petitioner filed an application for temporary injunction, which was dismissed by the trial Court. The appeal filed by the petitioner also met the same fate.
After declining the temporary injunction in favour of the petitioner, Respondent No. 1 approached the Tehsildar/revenue officer Respondent No. 6 for issuance of warrant of possession of the property in dispute on the ground that the petitioner has illegally occupied the same while she has not delivered the possession to him. On receipt of the application the Tehsildar called for the report from the revenue Patwari and issued warrant of possession of the property measuring 1-Kanal against the petitioner on 08.09.2006 and under his direction the revenue officer handed over the possession to Respondent No. 1. This exercise of jurisdiction by Respondent No. 6 has been assailed by the writ petition through the instant writ petition.
Learned counsel for the petitioner contends that Respondent No. 6 had no authority/power for issuance of warrant of possession with regard to the property owned by a private party. Further contended that the petitioner was not encroacher upon the state land. The petitioner has occupied the land under the agreement to sell executed between him and Respondent No. 1.
I have heard the learned counsel for the parties and perused the record.
In response to the notice, Respondent No. 6 appeared in person and when asked by this Court to refer any law under which he exercised the jurisdiction of issuance of warrant of possession, could not respond. Learned counsel for Respondent No. 1 was also unable to support the act of Respondent No. 6 by any provision of law.
The Tehsildar is a revenue officer appointed by the Government under Section 6 of the West Pakistan Land Revenue Act for purpose of land revenue administration. Section 7 of the said Act has provided the classes of revenue officer, which are as follows:--
(i) Board of Revenue, (ii) Executive District Officer (Revenue), (iii) District Officer Revenue, (iv) Assistant Collector of the first grade, (v) Assistant Collector of the second grade.
The Tehsildar is the chief officer entrusted with the local revenue administration of a Tehsil called as the Tehsildar, who shall exercise such powers and discharge such duties of an Assistant Collector 1st Grade as may be expressly conferred and imposed on him under this Act. Except the powers conferred on a revenue officer under the Land Revenue Act, the Board of Revenue, Punjab, may by Notification, determine the functions to be performed by a revenue officer by any class of revenue officer.
Section 175 of the West Pakistan Land Revenue Act has empowered the revenue officer to remove the encroacher. For ready reference the provisions of this Section are reproduced as under:--
Section 175. Prevention of encroachment upon common lands.--(1) Where land which has been reserved for the common purposes of the persons residing in the estate in which such land I situated has been encroached upon by any person, and the land has been shown in the last three periodical records made before such encroachment as so reserved, a Revenue Officer may, on the application of a land owner in the estate, and after giving an opportunity to the person alleged to have encroached upon it to appear before him and show-cause against the proposed action."
(a) eject from the land the person who has encroached thereupon;
(b) by order proclaimed in the manner provided in Section 26, forbid repetition of the encroachment.
The property/land owned by Respondent No. 1 occupied by the petitioner was not a land reserved for the common purposes, therefore, the ejectment order by Respondent No. 6 against the petitioner is not covered under the said provisions. The exercise of power by the revenue officer/Respondent No. 6 issuing warrant of possession against the petitioner to evict him from the said land is illegal and the illegal act of a public functionary cannot be protected by the Courts.
In view of the above discussion, this writ petition is accepted and the action of Respondent No. 6 Tehsildar of issuing warrant of possession of the property in dispute against the petitioner is declared illegal, without lawful authority, without jurisdiction and quashed.
While implementing the warrant of possession by the revenue staff the petitioner was joined in the proceedings. From the perusal of the record it reveals that the petitioner accepted the proceedings and handed over the possession to Respondent No. 1 and in the presence of the revenue staff as well as the witnesses the petitioner signed the same. Signatures of the petitioner are very much reflected on the record. It means that the petitioner expressly and impliedly consented to the delivery of possession of the property in dispute to Respondent No. 1, therefore, the relief of restoration of possession of the said property to the petitioner is declined. He has filed a suit for specific performance of contract and if he succeeds in getting the decree, his grievance will be redressed in due process of law.
(M.S.A.) Petition allowed.
PLJ 2007 Lahore 1144
Present: Fazal-e-Miran Chauhan, J.
MUHAMMAD WAKIL KHAN--Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, LAHORE
and 3 others--Respondents
W.P. No. 18765 of 2005, heard on 16.3.2007.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Denial of relationship of landlord and tenant--Bar on the jurisdiction of Rent Controller--Validity--If relationship of landlord and tenant is denied by the tenant, no order of deposit of rent can be passed by Rent Controller till such time, the question of relationship is decided by him. [P. 1146] A
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----Ss. 13(6) & 15(5)--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Deposit of rent--Power of the appellate authority--Appellate authority can direct the tenant to deposit rent--Validity--Held: Thus, unless and until, the appellate Court comes to conclusion that appellate before it is a tenant, no order for deposit of rent can be passed by relying upon the findings of the Rent Controller, which is under appeal before the appellate authority. [P. 1146] B
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6) & 15(5)--Ejectment petition--Denial of relationship of landlord and tenant--Order for depositing of rent or arrears--Determination--Power of appellate authority co-existent with the Rent Controller--If relationship of landlord and tenant is denied, the Rent Controller cannot pass an order for deposit of rent without first determining existence of that relationship between the parties--Appellate Court acts under Section 13(6) of the Ordinance, it must necessarily be subject to the same restrictions as are placed on the Rent Controller and Appellate Court cannot claim greater power than the same vesting in Controller. [P. 1147] C
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 15(5)--Constitution of Pakistan, 1973, Art. 199--Relationship of landlord and tenant--Denial of--Order of deposit of rent by the appellate authority--Scope--First Appellate Court at preliminary hearing of appeal, directed the petitioner/appellant to submit receipts regarding deposit of rent and also deposit the arrears of rent--Validity--Order directing the petitioner/appellant to deposit the arrears of rent without giving any finding regarding relationship of landlord and tenant by First Appellate Court is without lawful authority and against the spirit of S. 15(5) of the Urban Rent Restriction Ordinance, 1959. [P. 1147] D
PLD 1996 Lahore 252, PLD 1969 SC 520, PLD 1991 SC 317, 2001 CLR 104 (ref.)
Mr. Qamar Riaz Hussain Basra, Advocate for Petitioner.
M/s. Ahmad Awais Khurram and Sardar Nazir Ahmad, Advocates for Respondent Nos. 3 & 4.
Respondent Nos. 1 & 2 are Performa Respondents.
Date of hearing: 16.3.2007.
Judgment
Brief facts of the case are that; Respondent No. 3 filed an ejectment petition against the petitioner and later on Respondent No. 4 was impleaded as a party before the learned Rent Controller, Lahore. The petitioner filed written statement and denied relationship of landlord and tenant between the parties. Out of divergent pleadings of the parties, following issues were framed:--
Whether relationship of landlord and tenant exists between the parties? OPA.
Relief.
The learned Rent Controller, Lahore vide judgment and decree dated 21.7.2005, by holding that relationship of landlord and tenant exists between the parties, allowed the ejectment petition directing the petitioner to make payment of the arrears of rent amounting to Rs. 1,37,800/- and Rs. 2600/- per month as monthly rent. The petitioner filed an appeal before the learned Additional District Judge, Lahore, who vide impugned order dated 22.11.2005 directed the petitioner to deposit the arrears of rent from March 2001 up to date and further to make the regular payment of current rent and also to produce receipts after the adjustment of security of Rs. 10,000/- hence, this writ petition.
Learned counsel for the petitioner states that; relationship of landlord and tenant was denied by the petitioner in the written reply, filed to the ejectment petition, therefore, under Section 15(5) of the Urban Rent Restriction Ordinance, 1959, an order can only be passed in cases where relationship of landlord and tenant is admitted and not when the dispute in the appeal is by itself as to whether any tenancy exists between the parties. Further states that; Section 15(5) ibid by reference makes Section 13(6) of the Ordinance, applicable to appeals, which has been interpreted in various cases in which it was held that an order of deposit of rent cannot be passed where relationship of landlord and tenant is denied. Reliance is placed on Muhammad Siddique vs. Fazal Hussain Qureshi and 2 others (PLD 1996 Lahore 252).
Conversely, learned counsel for the respondents argues that once Rent Controller had found the petitioner to be a tenant, the power under Section 15(6) to pass order of deposit of rent under Section 15(5) of the Ordinance was available to the learned Additional District Judge.
I have heard learned counsel for the parties and perused the record. There is no cavil with the proposition that if relationship of landlord and tenant is denied by the tenant, no order of deposit can be passed by the Rent Controller till such time the question of relationship is decided by him. The argument that once Rent Controller held a person to be a tenant, the appellate Court can pass an order of deposit of rent due during the pendency of appeal. In order to appreciate this contention, it is necessary to refer to Section 15(5) of the Ordinance, which reads as under:
"S. 15(5)--The appellate authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and, if the tenant makes default in compliance with such an order, then, if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his defence shall be struck off."
From bare reading and analysis of the above-mentioned section, it is evident that Appellate Authority can only direct the tenant to deposit rent. The word "tenant" used in Section 15(5) instead of "appellant" is not without significance. If the intention, as argued, was that an order of deposit of rent can be passed, there was nothing to prevent the Legislature from conveying their intention by using the word "appellant" and not "tenant". Thus, unless and until, the appellate Court comes to this conclusion that the appellate before it is a tenant, no order for deposit of rent can be passed by relying upon the findings of the Rent Controller, which is under appeal before the Appellate Authority.
The argument that once a person has been found to be a tenant by the Rent Controller, can be directed to deposit the rent, has no force, though seems to be attractive. It is settled principle that appeal is continuation of original cause and once appeal is filed, the entire matter stands reopened and finality of the impugned order disappears. In this respect, reliance is placed on F.A. Khan vs. The Government of Pakistan (PLD 1969 SC 520), wherein B.Z. Kaikaus, J. observed that it would be thus anomalous to hold though the question as to whether or not a person is a tenant remains to be decided by the Appellate Court, the appellant for the purposes of Section 15(5) should be considered to be a tenant in view of the findings of the Rent Controller and be directed to deposit the rent, the question of tenancy was yet opened before the Appellate Court and that the hearing of appeal, if the Appellate Court itself comes to the conclusion that the order for deposit of rent under Section 15(5) of the Ordinance, 1959 has not been complied with.
Question was raised in PLD 1996 Lahore 252 (supra) and it was observed by the learned Judge while accepting the writ petition that the power of Appellate Authority to deposit the rent is co-existent with the Rent Controller.
The matter can also be examined from another angle Section 15(5) of the Ordinance brings in by reference Section 13(6) of the Ordinance. While interpreting Section 15(5), the Supreme Court in M. Imamuddin vs. Mst. Surriya Khanum through Legal Heirs (PLD 1991 SC 317) has been pleased to hold that the power of Appellate Authority to order the deposit of rent is co-existence with the Rent Controller. Consequently, if in a case, where the relationship of landlord and tenant is denied, the Rent Controller cannot pass an order for deposit of rent without first determining existence of that relationship between the parties, the same position should hold good as regards the power of the Appellate Court. As while directing the deposit of rent, the Appellate Court acts under Section 13(6) of the Ordinance, it must necessarily be subject to the same restrictions as are placed on the Rent Controller and the Appellate Court cannot claim greater power than the same vesting in the Controller.
This view is again fortified by Muhammad Qayyum Qureshi vs. Sheikh Iftikhar Ahmed and others (2001 C.L.R. 104 Lahore), wherein it was observed that payment of arrears under Section 15(5) is always followed determination of relationship. If the finding of fact had been given by the learned Rent Controller holding that the petitioner is tenant under the respondent, thus, after determination of this issue in favour of the respondent/landlord, the Appellate Court could validly direct the petitioner to make the deposit of arrears of rent in terms of Section 15(5) of the Ordinance. In the instant case, the learned Additional District Judge, at the preliminary hearing of appeal, directed the petitioner/appellant to submit receipts regarding deposit of rent and also deposit the arrears of rent from March 2001 up to date or produce receipt thereof, subject to adjustment of security of Rs. 10,000/-. This order directing the petitioner/appellant to deposit the arrears of rent without giving any finding regarding relationship of landlord and tenant by the learned Additional District Judge, is without lawful authority and against the spirit of Section 15(5) of the Urban Rent Restriction Ordinance, 1959.
In view of what has been stated above, this writ petition is allowed and the impugned order dated 22.11.2005, passed by the learned Additional District Judge, Lahore is declared to be without lawful authority and of no legal effect. However, the Appellate Court is directed to hear and decide the appeal of the petitioner within one month of the receipt of this order, under intimation to the Deputy Registrar (Judl.) of this Court. Writ Petition accepted.
(R.F.K.) Petition allowed.
PLJ 2007 Lahore 1148 (DB)
Present: Mian Saqib Nisar and Fazal-e-Miran Chauhan, JJ.
MODERN KNITTING & WOOLEN SPINNERS (PVT.) LTD., LAHORE and another--Appellants
versus
MANZUR AHMED SHEIKH and 3 others--Respondents
EFA No. 125 of 2007, decided on 17.4.2007.
Financial Institutions (Recovery of Finances) Ordinance, 2001--
----S. 19--Civil Procedure Code (V of 1908), O.XXXVII, Rr. 2 & 3--Suit for recovery--Leave to appear and defend was dismissed--Jurisdiction--Executing Court--Objects--Pledge of goods--Question of--Whether goods were pledged by appellants with bank or not--Determination--Firstly, where all the points of controversy, may be legal or factual, inter se the parties passes through the process and phase of judicial determination--Secondly, the execution of the decree, which means, the enforcement of the decree by the process of the Court, so as to enable the decree-holder or the judgment-creditor to recover the fruits of the judgment--Powers of executing Court were subservient to the judgment of the Court--Dispute between the parties and pronounced its verdict--Held: Plea of pledge of goods was not raised in the leave application which was the fundamental lapse and default on part of the appellants, but when set out in the appeal, such plea was rejected through the judgment--Executing Court was left with no power at all to enter into the area, whether the goods were pledged or not--Further held: No dispute between the parties about the factum of the pledge of goods and it was only with regard to the misappropriation--Appeal dismissed. [Pp. 1152 & 1153] A, B, D & E
Interpretation of law--
----Principle--Executing Court cannot go behind the decree. [P. 1153] C
2004 CLD 1289; 2002 CLD 868; 2004 CLD 1637.
Kh. Saeed-uz-Zafar, Advocate for Appellants.
Mr. Faisal Zaman Khan, Advocate for Respondent No. 4.
Date of hearing: 17.4.2007.
Order
The respondent-Bank brought a suit for the recovery of an amount of Rs. 1,85,08,481.04/- against the appellants, who moved an application for the grant of leave to appear and defend, which was dismissed by the learned Banking Court and the suit was decreed in favour of the Bank on 03.05.1999.
"Learned counsel for the appellant has not denied that the loan facilities were availed of by the defendants/appellants. He has, however, pressed into service the principle that where some goods have been pledged to secure the repayment of loan unless the pledgee account for the same, no amount can be recovered from it. In this respect reliance has been placed by the learned counsel on the judgment reported as A.M. Burq & another vs. Central Exchange Bank Ltd. & others (PLD 1966 (W.P) Lahore 1)".
Upon the above, in Paragraph No. 3 of the judgment, this Court held:
"On the other hand, what appears to have happened is that the goods after arrival in Pakistan were placed in the Customs Bonded Warehouse, from where the goods were stolen. These goods never came into possession of the respondent-bank and, as such, the question of pledge having been created does not arise."
Therefore, the plea of the appellants about the pledge of goods was rejected.
The appellants challenged the said judgment before the Honourable Supreme Court through a Civil Petition, which was simply withdrawn on 09.06.2001, they also filed review petition (C.M. No. 55-C/2001) before this Court, seeking recall of the judgment in RFA No. 282/1999 on the ground that the view taken by this Court about the pledged goods is unfounded and is not based upon any material available on record, but again the review application was unconditionally withdrawn by the appellants, as is envisaged by the order, dated 29.8.2006. Thereafter, the appellants filed objections in the execution process, initiated by the respondent-Bank for the recovery of the decretal amount, in which they took up the same plea and demanded that until and unless the pledged goods are accounted for etc, the decree cannot be executed. These objections have been dismissed by the Executing Court, vide order dated 13.02.2007, hence this appeal.
Learned counsel for the appellants contends that the questions, whether the goods were pledged or not; and the Bank should account for their misappropriation, can only be determined in the process of execution by the Executing Court; he in this behalf, has placed reliance on the judgments reported as Habib Bank Limited vs. Orient Rice Mills Ltd. and others (2004 CLD 1289), Messrs Crystal Enterprises and 6 others vs. Platinum Commercial Bank Ltd. and 2 others through General Attorney (2002 CLD 868) and Messrs Polymer International through Sole Proprietor and another vs. Messrs Bolan Bank Ltd. through General Manager (2004 CLD 1637); he further by relying upon Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, has argued that at the time of seeking the execution of the decree in which the goods are pledged, it is mandatory for the decree-holder to account for those. It is also submitted that the application for leave to appear and defend the suit having been dismissed and the suit decreed without giving the appellants/defendants a chance to defend, would not be akin to a contested decree, therefore, in appeal arising from such decree, the decision given by this Court about the non-pledged of the goods shall not be a bar in the appellants' way to seek the determination and accounting for pledge in the execution process; further that as on account of the refusal of the Banking Court to grant the leave etc, the appellants would be deemed as having not been able to defend the matter, therefore, the decision of this Court against that decree shall be considered as the dismissal of appeal "in limine" and it shall not operate as res judicata against them. However when confronted if the plea about the pledge of goods was taken by the appellants in their leave application, Kh. Saeed-uz-Zafar, learned counsel for the appellants has very candidly conceded that it was not so raised and for the first time was propounded in the aforementioned RFA. But his argument is that even if the plea was not taken in the leave application, it could validly be set out in the execution process and decided accordingly, as it, according to him, is a question arising between the parties relating to the satisfaction, execution and discharge of the decree.
We have heard the learned counsel for the parties and find no merits in the submissions of the learned counsel for the appellants. The procedure for the adjudication of the cases pertaining to the "finances" between the Banking Company and the customer before the Banking Court is of a special and specific nature, which is quite akin to the summary procedure provided for the adjudication of the suits filed under Order 37 CPC. The object of summary procedure of both the laws is to provide efficacious remedy to the plaintiff and avoid prolongation of commercial litigation. In such cases, the defendant is not as a matter of right entitled to appear and defend the cause against him, but if he desires to be heard, he must apply to the Court for the permission to appear and defend. In his leave application, the defendant must disclose all the grounds, which entitles him for such leave specially in the cases pertaining to the recovery under the Banking Companies (Recovery of Loans/Advances, Credits and Finances) Act (XV of 1997), the law applicable at the relevant time, the leave could only be granted to the defendant if "a serious and bona fide dispute" was raised, which should essentially be spelt out from the specific and clear pleas/grounds taken in the leave application. If any plea was not raised or raised but rejected, it would be impermissible for the Banking Court to grant the leave. As has been conceded by Kh. Saeed-uz-Zafar, learned counsel for the appellants, the plea about the pledge of goods by the appellants with the respondent-Bank and the misappropriation of such goods by the Bank has not been raised at all. Obviously, such plea which had to be founded on the factual premise at the first stage, could not be allowed to have been raised in appeal, yet when this plea for the first time was taken before this Court, this Court while taking a liberal view in the matter, considered the above and in unambiguous, unequivocal and categorical terms, rejected the plea.
It may be pertinent to mention that in their grounds of appeal, it is not even the case of the appellants that the goods imported with the finance in issue were put in possession of the respondent-Bank so as to create a pledge of such goods in terms of law. The averments of appeal are conspicuously ambiguous and vain in this regard. Be that as it may, the above judgment and decree as mentioned earlier was challenged before the Honourable Supreme Court, but the cause was withdrawn; an application for the review of the said judgment was also unconditionally withdrawn with the legal consequences that the judgment dated 13.09.2000 passed by this Court in RFA. No. 282/1999 attained the finality. We are not much impressed with the ingenuous argument of Kh. Saeed-uz-Zafar, learned counsel for the appellants, that the judgment in the noted RFA is in the nature of the dismissal of appeal in limine and therefore, it shall not operate as res judicata. Rather in our view, when a leave application is refused on the pleas raised therein, for all intents and purposes, such pleas are the issues directly and substantially in issue in the suit which when rejected are the one heard and finally decided by the Court within the meaning of Section 11 of the CPC, so as to attract res judicata in the subsequent suit. This shall also be true for the pleas which might and ought to have been made grounds of defence or attack in the leave application, but were not so made, shall be deemed to have been a matter directly and substantially in issue, for attracting the rule of constructive "res judicata". Therefore, the decrees passed in the suits of the nature mentioned above, for all intents and purposes, shall operate as res judicata in the suits to follow. Besides, it is not well conceived to argue that the dismissal of RFA was in limine, rather from the record of that case it transpires that the parties were heard and the appeal was dismissed as a notice case. Be that as it may, we are of the view that the rule of res judicata is not involved in the present case, rather the question is about the jurisdiction of the Executing Court.
In pursuance of answering the above question, it may be held that the proposition of the pledge or otherwise of the goods was a disputed question of fact between the parties, having legal consequences, which should have been raised by the appellants in the leave application, but it was not done; however, when it was propounded for the first time in appeal, which is a continuation of the suit, this plea was rejected on the factual premises and the legal proposition which the appellants raised on the basis of the judgment reported as A.M. Burq and another vs. Central Exchange Bank Ltd. and others (PLD 1966 (W.P) Lahore 1), was not accepted, therefore, this question stood conclusively determined by the Court and it was not within the jurisdiction and the competence of the Executing Court to re-adjudicate, whether the goods were pledged by the appellants with the respondent-Bank or not and about their misappropriation. At this juncture, we feel expedient to dilate and explain that there are two stages in a litigation. The first, where all the points of controversy, may be legal or factual, inter se the parties passes through the process and phase of judicial determination. It is this stage where the plaintiff of the case mandatorily has to raise all the necessary pleas in order to succeed in the matter. And the defendant is obliged to do the same in defence for defeating the cause of the plaintiff. In the cases pertaining to Order 37 CPC and those under the Special Banking Laws, this stage includes the adjudication of the pleas raised in the leave application of the defence. This can be defined as the "determination stage for resolving the dispute between the parties" which goes up to the forum of appeal etc. Therefore if the requisite pleas are not raised here, the stage for the determination of the controversy between the parties is passed. The second stage is confined only to the execution of the decree, which means the enforcement of the decree by the process of the Court, so as to enable the decree-holder or the judgment-creditor to recover the fruits of the judgments. At this stage, not only the powers of the Executing Court are subservient to the judgment of the Court, which has determined the dispute between the parties and pronounced its verdict, but the parties are also precluded to raise any controversy, which they failed to propound at the determination stage or if raised has failed to succeed in this behalf. Besides, it is settled law that the Executing Court cannot go behind the decree; and undoubtedly, it cannot question the legality or the correctness of the decree; grant the relief to a party, which is not granted in the judgment and decree and above all to adjudicate upon a controversy, which has already been settled by the Court at the determination stage or in the hierarchy thereto. As has been noted above, despite the fact that the plea of pledge of goods was not raised in the leave application, which is the fundamental lapse and default on part of the appellants, but when set out in the appeal, such plea was rejected through the judgment dated 13.09.2000, which has attained finality and thereafter, the Executing Court was left with no power at all to enter into the area, whether the goods were pledged or not etc. We are not convinced if the case of the appellants falls within the purview of any of the judgments cited by the learned counsel and mentioned in the preceding Paragraph No. 4, especially Messrs Crystal Enterprises and 6 others vs. Platinum Commercial Bank Ltd. and 2 others through General Attorney (2002 CLC 868), because from the fact of that case, it is clear that there was no dispute between the parties about the factum of the pledge of goods, and it was only with regard to the misappropriation thereof and thus, the Court held:
"Such matter could only arise in the execution proceedings, when the collateral security was realized in such proceedings through the sale of the same."
Before parting, it may be observed that we do not find ourselves in agreement with the learned counsel for the appellants that under the provisions of Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the aforementioned question can be dealt with and adjudicated by the Executing Court.
In the light of above, we do not find any merit in this appeal, which is hereby dismissed.
(A.S.) Appeal dismissed
PLJ 2007 Lahore 1154 (DB)
Present: Maulvi Anwar-ul-Haq and Syed Asghar Haider, JJ.
M/s. ALI ABBAS (PVT.) LTD., KASUR and 2 others--Appellants
versus
INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and 2 others--Respondents
EFA No. 53 of 2006, heard on 6.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XXI, Rr. 85, 85, 89, 90, 91 & 92--Execution of mortgaged property--Application for confirmation of sale and delivery of possession--Dismissed for non-prosecution--Second appeal also dismissed to be time barred--Civil revision--Once a sale has ben completed then unless and until it is set-aside the executing Court is bound to pass an order for confirmation of sale, whereupon it is to become absolute--Second, execution application could be entertained, logical conclusion was that it was in continuation of first application.
[Pp. 1156 & 1157] A & B
Mr. Shazib Masud, Advocate for Appellants.
Mr. Shoaib Zafar, Advocate for Respondent No. 1.
Kh. Saeed-uz-Zafar, Advocate for Respondent No. 2.
Date of hearing: 6.3.2007.
Judgment
Maulvi Anwar-ul-Haq, J.--A money decree passed in favour of the Respondent No. 1-Bank and against the appellants on 12.5.2000 was put into execution vide application dated 28.9.2001. Inter alias, the decree was sought to be executed by the sale of mortgaged property. The mortgaged property was ordered to be sold. As per report filed by the Court Auctioneer, the sale was conducted on 6.3.2004, It was knocked down to Respondent No. 2 for Rs. 6,26,000/-. The report was filed in Court on 9.3.2004 and there is a note by the reader of the Court that the Presiding Officer had been transferred. He adjourned the case to 10.4.2004. On this date, the auction purchaser filed an application for confirmation of the sale and delivery of possession. Notices were issued to the decree holder and its counsel for 20.4.2004. On this date the case was adjourned for reply and arguments on the said application for 6.5.2004. On this date, it was noted that no one is present despite repeated calls. The execution application as well as the application filed by the judgment-debtors and the one filed by the auction purchaser were dismissed in default. This was done by learned Judge, Banking Court-IV, Lahore.
On 30.7.2004 a fresh execution application (No. 67/F/2004) was filed by the Respondent No. 1-Bank for execution of the same decree. In this application, the factum of filing of the earlier execution application, the sale, the filing of objection petition by the judgment-debtors and dismissal of all the said applications for non-prosecution was mentioned. It was further noted that instead of getting the first application restored, the second application is being filed and it be treated as an integral part of the earlier execution application. The property had already been sold and it be confirmed. Prayer for further execution was also made.
The learned Presiding Officer was not present on the said date and he took up the case on 23.8.2004. On this date, the learned counsel for the decree holder was present. The execution application was registered. Learned counsel for the appellants also put in appearance and moved an application for restoration of the objections which stood dismissed for non-prosecution. This application was replied and resisted. The matter was taken up on 25.11.2004. On this date, the counsel for the appellants made a statement before the Executing Court that since the objections as well as the execution petition were dismissed in default on 6.5.2004 and since the decree holder has filed a fresh execution petition therefore, he will also file a fresh objection petition and the application for restoration of objections was not pressed. The application was disposed of accordingly. Thereafter, an objection petition was filed. It was resisted by the decree holder as well as the auction purchaser. On 4.2.2005, we find that the case was adjourned for arguments to 23.2.2005 subject to costs of Rs. 1,000/- to be paid by the appellants. On 23.2.2005 the case was adjourned again with a costs of Rs. 1,000/- to 25.3.2005 for production of some receipts in accordance with an order of the Hon'ble Supreme Court of Pakistan referred to therein. On 15.3.2005 there was an office note that a sum of Rs. 62,600/- has been deposited in the Court. The case was adjourned to 23.2.2005 for arguments as well as for some further payment. On 16.3.2005 it was observed that the appellants had deposited 10% of the sale price and the should deposit remaining 10% on 22.4.2005. There is an office note that the said amount has been deposited. This fact was also noted in the order dated 12.5.2005. On 20.10.2005 it was stated on behalf of the appellants while filing an application in terms of Rule 89 of Order XXI CPC that they have already deposited 20% and that they are prepared to pay the remaining decretal, amount and also 5% compensation to the auction purchaser. This application was replied on 20.12.2005. It was withdrawn on 23.1.2006 with the assurance that they are ready to pay 5% compensation to the auction purchaser. Vide order dated 25.1.2006 the objections were dismissed.
Learned counsel for the appellants contends that since execution petition itself was dismissed for non-prosecution the proceedings taken therein including the process of sale terminated and the learned Executing Court had no jurisdiction to confirm the sale in the second application. He also questions the validity of the reasoning of the learned Executing Court while dismissing the objections, Learned counsel for the decree holder-Bank as also for the auction purchaser contend that the process of execution having been competently commenced, it will continue till such time that the decree is fully satisfied. The precise contention is that the second application was not to be treated as a fresh application but as a continuation of the process already started.
We have gone through the records of the learned Banking Court, with the assistance of the learned counsel for the parties. We have already noted above the details of the proceedings that took place in the first application and then in the second application. The sale was conducted in execution of the decree with the intervention of the Banking Court and it is but apparent that the learned Banking Court opted to follow the procedure laid down in CPC for the said purposes and preliminary process was followed and consequently the sale was conducted on 6.3.2004. The objections were filed well in time on 20.3.2004. The auction purchaser also filed an application on 8.4.2004 for confirmation of sale and delivery of possession. The sale having been completed, subject to the deposits to be made in terms of Rules 84 and 85 of Order XXI CPC. Rule 92 of the said Order XXI CPC will come into play. It lays down that where no application is made under Rule 89, Rule 90 or Rule 91 (Order XXI CPC) or where such application is made and dis-allowed the Court shall make an order confirming the sale and thereupon the sale become absolute. To our mind once a sale has been completed then unless and until it is set aside in terms of Rule 89, Rule 90 or Rule 91 read with Rule 92(2) of Order XXI CPC the Executing Court is bound to pass an order for confirmation of the sale whereupon it is to become absolute. It is but obvious that the learned Executing Court while should dismissing the execution application and other application for non-prosecution was oblivious of the said mandatory provision of law and instead of passing proper orders under Order XXI, Rule 92 CPC, proceeded to dismiss all the applications for non-prosecution. Apart from this glaring illegality, we find that on 12.4.2004 the auction purchaser filed an application for confirmation of sale and delivery of possession. This was adjourned to 20.4.2004. On this date, it was this application which was ordered to be listed on 6.5.2004 for reply and arguments. However, the learned Banking Court proceeded to dismiss the execution application as well as the objections for non-prosecution. Thus, from whatever angle seen the said order dated 6.5.2004 is wholly without jurisdiction. We are also in agreement with Kh. Saeed-uz-Zafar, Advocate/learned counsel for the auction purchaser that the second application was to be treated to be in continuation of the process already commenced in the matter of execution of the decree passed in favour of the decree holder-Bank.
Coming to the impugned order, the learned Executing Court proceeded, in the first instance, to hold the objection petition to be time barred with reference to sale that took place on 6.3.2004 and thereafter in somewhat mechanical manner proceeded to dispose of the other objections. A plain reading of the order gives the impression that the learned Executing Court having already held the objections to be barred by time proceeded with the same mind set while rejecting the other objections. After correctly holding that the second execution application could be entertained, the logical conclusion was that it was in continuation of the first application. The objections had been filed in time. The manner in which these were withdrawn has already been noted by us above. The learned counsel had expressed that since a fresh execution application has been filed, he will file objection petition. It is but apparent that the learned counsel was under the impression that a fresh process for execution in the matter of the said property will be started and he will file objections accordingly. However, this was not to be so. Notwithstanding the fact that the application for restoration was withdrawn, we have already found above that the order dismissing the execution application as also the objections for non-prosecution was without lawful authority. It will, thus, be deemed that the objections filed on 20.3.2004 are pending. The replies have already been filed. These objections need to be decided afresh in view of the observations made above.
The EFA is accordingly allowed. The impugned order dated 25.1.2006 passed by learned Judge, Banking Court-IV, Lahore, is set aside. The result would be that the execution petition already filed by the decree holder-Bank as also the objections filed by the appellants shall be deemed to be pending. The learned Executing Court shall take up the said objections and decided the same after hearing all concerned. For this purpose the parties shall appear before the learned Judge, Banking Court-IV, Lahore, on 10.4.2007. The records and a copy of this judgment be immediately remitted to the said learned Judge. No orders as to costs.
(N.F.) EFA allowed.
PLJ 2007 Lahore 1158
Present: Mian Saqib Nisar, J.
Haji KHUDA BUKHSH PRESIDENT OF PUBLIC HEALTH ENGINEERING DEPARTMENT EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., LAHROE and 9 others--Petitioners
versus
DEPUTY REGISTRAR CO-OPERATIVE SOCIETIES, PUNJAB, LAHORE and 2 others--Respondents
W.P. No. 1229 of 2006, heard on 20.12.2006.
Administration of Justice--
----No administrative authority of the state has the power to pass an order effecting the rights of the citizens in an arbitrary whimsical, fanciful and subjective manner. [P. 1161] C
Cooperative Societies Rule, 1927--
----Rr. 43, 45-A & 48(3)--Cooperative Societies Act, (VII of 1925), Ss. 22, 43 & 50--Constitution of Pakistan 1973 Art. 199--Allegations of mal-practices and corruption--Powers of registrar--Principle of natural justice--Registrar has the power on his own motion to conduct an inquiry into the working and financial condition of the society--Registrar may supercede the committee or the society but he has to give the reasons in the order, which should be published in the official gazette. Before making an order the Registrar shall give an opportunity to the society as to why the action should be taken--Such opportunity must be purposeful and must satisfy the criteria on touchstone of the principle of natural justice. [Pp. 1160 & 1161] A & B
Cooperative Societies Rules, 1927--
----R. 48--Administrative authority of state--Right to be office bearers of society--Deprive from lawful right--Validity--Petitioners on account of their election had the right to be office bearers of the society for the term they had been elected, therefore, in order to deprive the petitioners from such lawful right Deputy Registrar in the garb of the powers could not assume certain allegations leveled against the petitioners to be true, and without giving reasons as to why the explanation of the petitioners was not accepted, take a penal action against them. [P. 1161] D
Interpretation of Rule--
----Validity of order--Reasons must be given, but the impugned order is conspicuously lacking in this behalf, therefore, it is liable to struck down on such ground alone--Held: It has not been published in the "Official Gazette"--Where the law requires an act to be done in a particular manner, it has to be performed in such manner alone and not otherwise and any deviation shall render the action as illegal and unlawful. [P. 1162] E
Mr. A.K. Dogar, Advocate for Petitioners.
Mr. Muhammad Ilyas Khan, Advocate alongwith Muhammad Hussain Rana, Assistant Registrar, Cooperative Societies, Punjab, Lahore for Respondents.
Date of hearing: 20.12.2006.
Judgment
The petitioners are the Office Bearers of the Public Health Engineering Department Employees Cooperative Housing Society (hereinafter called the Society) and were elected to their respective offices in the election of the Society held in December 2004. Soon after their assumption to the offices, a complaint was filed by one Muhammad Mubeen son of Abdul Waheed resident of Hameed Park, Raiwind, Lahore on 27.05.2005, before the Registrar, Cooperative Societies, Punjab Lahore leveling the allegations of mal-practices and corruption in the conduct of the affairs of the society. It is the case of the petitioners that such application is fictitious and no person by the name exists. Another application was filed by Muhammad Mubeen on 22.08.2005 followed by a complaint of one Muhammad Azam; these are also imputed by the petitioners to be bogus. However, without probing about the genuineness and veracity of the allegations leveled in these complaints, the accounts of the Society were frozen by Respondent No. 1 on 20.09.2005, but later on those were de-frozen on 17.11.2005. The inquiry under Section 43 of the Cooperative Societies Act, 1925 against the management was initiated, but under the order dated 17.12.2005 of the Secretary Cooperatives, it is pending adjudication. Besides the above, a notice under Rule 45-A of the Cooperative Societies Rules, 1927, according to the stance of the respondents, because of the impugned action has abandoned.
In the aforementioned backdrop, Respondent No. 1 vide impugned order dated 31.01.2006, passed under Rule 48(3) of the Cooperative Societies Rules, 1927, has superceded the managing committee of the Society and has appointed the Assistant Registrar (Housing-II) Cooperative Societies, Lahore as the Administrator. It may be pertinent to mention here that in the impugned order, it is clearly and unequivocally mentioned "A detailed order will follow separately." Aggrieved of the above, the petitioners have filed the present writ petition.
Pursuant to the order of this Court, the respondents have filed the parawise comments in which, it has been admitted that the inquiry under Section 43 of the Cooperative Societies Act, 1925 is still pending. It is further stated in reply to Ground No. 4 of the petition that a show-cause notice was issued to the petitioners before taking the impugned action and they have filed a reply, thus their plea of being condemned unheard has been refuted. The respondents have propounded that as the Managing Committee of the Society is guilty of the mal-administration, therefore, the action against the petitioners has been legally and appropriately taken. In this behalf, a reference is also made to some investigation being conducted by the NAB into the affairs of the Society and also an audit report in which, the vices of corruption and misappropriation have been highlighted.
It has been argued by Mr. Muhammad Ilyas Khan, learned counsel for the respondents that the Administrator has fixed 25.12.2006 as the date for the fresh elections and, therefore, as the process to elect the new office bearers has commenced, resultantly, the petition should be dismissed on this score alone.
I have heard the learned counsel for the parties. Under Rule 48(1) of the Cooperative Societies Rules, 1927 (the rules), the Registrar has the power on his own motion; and as contemplated by sub-rule (2), to conduct an inquiry into the working and financial condition of the society. Admittedly such an inquiry as contemplated by the above rule has not been conducted in this case; the inquiry initiated under Section 43 is yet pending, whereas upon the notice under Section 45-A, it has been abandoned. In this behalf, it is stated in the parawise comments, "The inquiry u/S. 45-A was abandoned due to the action to have been taken under Rule 48 of the Cooperative Societies Rules 1927." It is further state "if is significant that exercise under Rule 48 is independent from the inquiry initiated u/S. 43 of the Cooperative Societies Act, 1925."
One of the key questions thus, to be examined in this case is if in view of the above situation, a harsh and penal action such as the supersession of the elected body of the Society was warranted under the law. Mr. Ilyas Khan, Advocate has relied upon some investigation being carried on by the NAB and also the audit report in which a recommendation has been made to take action against the management under Sections 22-A and 50 of the Act, 1925.
I am afraid that neither on account of any investigation being conducted by the NAB, the management of the Society could be suspended or superceded under Rule 48 nor on the recommendation of the auditor, any action straightaway could be taken without confronting the petitioners with such report and giving them an opportunity of meeting the objection raised therein. Even otherwise, such report of the auditor was not available with the Deputy Registrar/Respondent No. 1 at the time of passing of the impugned order, which is dated 31.01.2006, whereas the report was made on 31.08.2006. This audit report as mentioned earlier has not even been confronted to the petitioners and I fail to understand as to how the material, which was not available with Respondent No. 1, but has been procured subsequently, can be made the basis of the impugned order.
As it has been conceded by the respondents that the inquiry under Section 43 is still pending and that, under Rule 45-A, has been abandoned; however, the argument that the power under Rule 48, which can be independently exercised, requires the scope of the rule and the manner of the exercise of power within the parameters thereof. According to Rule 48(1) of the Cooperative Societies Rules 1927, the Registrar may supercede the committee or the society but he has to give the reasons in the order, which should be published in the official gazette. Undoubtedly, under sub-rule (6), before making an order under sub-rule (1), the Registrar shall give an opportunity to the society as to why the action should be taken. This opportunity should not be illusionary or an eyewash or to just fulfill the requirement of law, rather the opportunity must be purposeful and must satisfy the criteria on touchstone of the principle of natural justice. It is the case of the respondents that reply was filed by the management of the Society. But it is not their case that the allegations of the show-cause notice were accepted, rather according to the order, the reply was "unsatisfactory". This is the most convenient way to elude the explanations given in the reply. And it is to cater for such a situation that the law requires, that the order under Rule 48 should specify the "Reasons". Obviously, the duty to give reasons is not purposeless, but is meant to circumvent the arbitrariness of the authority in taking such a drastic action under Rule 48.
According to the settled law, no Administrative Authority of the State has the power to pass an order effecting the rights of the citizens in an arbitrary, whimsical, fanciful and subjective manner. The petitioners on account of their elections have the right to be the office bearers of the Society for the term they have been elected, which admittedly has not expired so far. Therefore, in order to deprive the petitioners from such lawful right, the Deputy Registrar/Respondent No. 1, in the garb of the powers available to him under Rule 48, could not assume certain allegations leveled against the petitioners to be true; and without giving reasons as to why the explanation of the petitioners is not accepted, take a penal action against them. Furthermore, the impugned order does not reflect as to what material and data was available with the Deputy Registrar to hold in the impugned order "After perusing the record and hearing the Managing Committee, I conclude that there is corroborative and substantial evidence available in support of show-cause notice. The Managing Committee miserably failed to run the affairs of the society which provides sufficient grounds to proceed against them, on the basis of allegations stated in both the show-cause notices and mala fide conduct for personal gain in the working of the society." The corroborative and substantial evidence, which according to the Deputy Registrar is available in support of the show-cause notice, has neither been referred to in the impugned order nor discussed therein and above all, it has not even been placed before this Court enabling it to examine if such evidence was relevant and sufficient to prove the allegations against the petitioners for the initiation of the action.
In my view, for the validity of an order passed under Rule 48, it is sine qua non that the "reasons" must be given, but the impugned order is conspicuously lacking in this behalf, therefore, it is liable to be struck down on this ground alone, coupled with the fact that it has not been published in the "official gazette" as required by the Rule; Mr. Muhammad Ilyas Khan, learned counsel for the respondents, has not been able to establish such a publication. It is settled, that where the law requires an act to be done in a particular manner, it has to be performed in such manner alone and not otherwise and any deviation shall render the action as illegal and unlawful. This principle is squarely applicable to this case for the lack of publication of the order in the "official gazette".
Mr. Muhammad Ilyas Khan, Advocate has laid much emphasis on the point that the matter is being investigated by the NAB, suffice it to say that such plea is altogether extraneous to the action contemplated under Rule 48. Likewise, the audit report, to which reference has been made to justify the order, was not available at the time of passing of the impugned order and resultantly, cannot be made the basis of supersession, especially when the petitioners have not been given an opportunity to meet the same; therefore, no reliance can be placed by this Court.
The other submission of Mr. Muhammad Ilyas Khan, that as the date for the election has been announced, resultantly, the writ should not be issued; the plea does not sound to the reason; firstly, because if the foundation of an action is void, the superstructure built thereupon has to fall; secondly, through an illegal order, the management of the society has been superceded and on that basis, the election had been called, therefore, if this petition is dismissed only for the reasons of the fresh election, it will amount to endorse the order which otherwise is illegal and cannot sustain; besides, the petitioners have quite a lot of time as their term and their tenure to hold the affairs of the Society shall be unlawfully curtailed.
Another very important reason as to why the impugned order should not be sustained is, that being conscious of the legal position that the order does not fulfill the requirements of Rule 48, as it lacks to provide the reasons, it was mentioned that "A detailed order will follow separately". The representative of the respondent-department, present in the Court and Mr. Muhammad Ilyas Khan, Advocate, when questioned, have conceded that the detailed order has not been passed till date.
In the light of above, this petition is allowed and the impugned order dated 31.01.2006 passed by the Deputy Registrar/Respondent No. 1 is hereby set aside.
(F.F.) Petition allowed.
PLJ 2007 Lahore 1163
Present: , J.
M/s. AKBAR BROTHERS through its Managing Partner--Appellant
versus
M. KHALIL DAR through his L.Rs.--Respondents
SAO No. 139 of 2003, decided on 14.12.2006.
Punjab Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 2(d)--Ejectment petition--Non-residential building--Proof of documentary evidence to establish the tenancy--Appellant was put in physical possession of the property and the rent was being paid--Appellant was tenant, despite availing opportunities their statements, have not been crossed--Held: Any deposition made in the examination-in-chief, if not subjected to cross-examination, shall be deemed to have been admitted. [P. 1167] A & B
Evidence--
----Nature of evidence--Stereotype--Affidavits seem to have been prepared and contain language--Scope of pleadings set out in written reply. [P. 1167] C
Rent--
----Entitlement to receive rent--Physically rented out--The person should also be owner time being--Property was physically rented out to appellant and it is he in whose name rent was paid by appellant and thus was entitled to receive the rent. [P. 1167] D
Words & Phrases--
----Word "landlord"--Word "landlord" is not limited to the true owner but includes an agent, trustee, guardian, receiver executor and administrator receiving the rent on behalf of the owner. [P. 1168] E
Principle of Forfeiture--
----Existence of tenancy--Entitlement to receive rent--Denial of the appellant was contumacious and thus, on the proof of the existence of tenancy by the respondents by applying the principle of forfeiture--Appellant was liable to be evicted straightaway, and this had been rightly done by Rent Controller. [P.1168] F
Legal Representatives--
----Power of attorney--Whether the power of attorney given to him had lost its efficacy or stood annulled on account of the death of the principal, he continued to be the landlord of the property and his legal representatives would be legally entitled to substitute after his death--Appeal dismissed. [P. 1169] G
Kh. Saeed-uz-Zafar, Advocate for Appellant.
Dr. A. Basit, Advocate for Respondents.
Date of hearing: 14.12.2006.
Judgment
The ejectment application brought by Muhammad Khalil Dar, the predecessor-in-interest of the respondents, against the appellant on the ground of default in the payment of rent was allowed by the learned Rent Controller vide order dated 23.01.2002. The appeal of the appellant has failed on 14.10.2003. Hence this second appeal.
At the very outset. Dr. A. Basit, learned counsel for the respondents, has raised a preliminary objection that the present appeal is incompetent, because the property in question is a residential bungalow and the second appeal under the law has only been provided for the non-residential property. The objection has no force and is hereby repelled because in the present case, even according to the averments of the ejectment application, the property was rented out to the appellant for the commercial purpose, therefore, in terms of Section 2(d) of the Punjab Rent Restriction Ordinance, 1959, it is non-residential building regarding which, the second appeal can be competently filed.
Now coming to the merits of the case, the brief facts are:--
That the demised property known as 20-Masson Road. Lahore measuring 7 Kanals was owned by Begum Akbar Jahan alias Mir Jan Begum wife of Sheikh Muhammad Abdullah (Ex-Chief Minister of Occupied Jammu & Kashmir); the property was rented out to the appellant by Muhammad Khalil Dar, her attorney in the year 1983. On 30.03.1998, Mr. Dar brought the present ejectment petition stating that the appellant, on account of the amendment in the Rent Laws, was bound to increase the rent to the extent of 25% after every three years, but he has failed and thus, defaulted in the payment of rent due. The appellant denied the relationship of tenancy and stated that the property in question is owned by Mir Jan Begum and not the respondent/ejectment petitioner, who has only rented out the property to the appellant as an agent for the lady. Resultantly, the learned Rent Controller framed the issue about the existence of the tenancy and the parties were put to trial.
The respondents examined Muhammad Iqbal Dar (attorney of Muhammad Khalil Dar) as AW-1, Muhammad Shakil Zubair as AW-2 and Falak Sher as AW-3. Besides, the Cheque issued by the appellant in the name of Muhammad Iqbal Dar for the payment of the rent was brought on the record as Ex. A.3; the bank slip about the dishonour of the above Cheque as Ex.A. 2 and the letter written by Akbar Brothers/appellant dated 05.01.1997 as Ex. A. 4. It may be pertinent to mention here that despite availing the opportunities, the statements of the AWs were not subjected to cross-examination and ultimately, the appellant's right in this regard was closed by the learned Rent Controller vide order dated 08.03.2000 and this order has not even been challenged by the appellant in appeal. Therefore, the testimonies of all the AWs have gone unrebutted. Conversely, the appellant examined Safdar Hussain as RW-1, who has deposed that the property in question was owned by Mir Jan Begum widow of Sh. Muhammad Abdullah and that Muhammad Khalil Dar was not the owner of the property. He also stated that some power of attorney in favour of Muhammad Farooq Abdullah, her son, by the lady and also the power of attorney in favour of Muhammad Khalil Dar by Muhammad Farooq Abdullah, are forged and fabricated. However, in the cross-examination, RW-1 has admitted that the appellant had been making the payment of rent to Muhammad Khalil Dar and for the last 4/5 years, it is being deposited in the Court, but in the name of Mir Jan Begum. Shahid Hamid/RW-2 has also deposed to the same effect. AW-3 Akbar Ali Bhatti, has appeared for the appellant and deposed in corroboration of the contents of the written reply to the ejectment application, but in the cross-examination, in a very categorical terms he has accepted that he has been making the payment of rent to Muhammad Khalil Dar and his son till 1996-97 and from 1997 has been depositing the rent in the Court in the name of Mir Jan Begum. Upon the conclusion of the trial, the learned Rent Controller accepted the ejectment application and the appeal of the appellant has failed.
Learned counsel for the appellant, contends that the property in question is owned by Mir Jan Begum and Muhammad Khalil Dar was only acting as her attorney; the property was rented by the attorney for and on behalf of the lady and the relationship of landlord and tenant only exists between the appellant and Mir Jan Begum and not with the respondent/ejectment petitioner. It is further stated that the documents, even now placed on the record by Dr. A. Basit, learned counsel for the respondents, alongwith the application (C.M. No. 1410-C/2006) envisages that the owner/landlady Mir Jan Begum in fact gave the general power of attorney in favour of her son Muhammad Farooq Abdullah with the power to rent out the property and the said general attorney gave the special power of attorney to Muhammad Khalil Dar and it is on the basis of this special power of attorney that the property was rented out to the appellant, therefore, for all intents and purposes, factual or legal, it is Mir Jan Begum, who was the landlady and not the respondent/ejectment petitioner. It is also stated that after the demise of Muhammad Khalil Dar, his legal heirs/representatives moved an application to be impleaded as party, which was objected to by the appellant that they are not the legal representatives, because the property was owned by Mir Jan Begum and she was the landlady and the legal heirs of the attorney cannot be so arrayed. This objection has been left open and should be decided alongwith this appeal.
I have heard the learned counsel for the parties. The evidence of the respondents is very clear that the property in question was rented out by Muhammad Khalil Dar to the present appellant; the physical possession was handed over to the appellant by Mr. Dar and till 1997 it is Mr. Dar to whom, the rent was being paid by the appellant. No document has been produced by the appellant to show that the tenancy was in the name of Mir Jan Begum and it was she who was entitled to receive the rent from the appellant. The appellant throughout had been making the payment of rent to Muhammad Khalil Dar in his own name; even the Cheque (Ex. A. 3) was issued in the name of his son towards the said rent, which was dishonoured through Ex. A. 3. Above all, in the letter dated 05.01.1997 (Ex. A. 4), addressed by the appellant to Muhammad Iqbal Dar, it is clearly mentioned that:--
"We may inform you that the cheque for the advance rent from January, 1997 to December, 1997 for your premises known as 20-Massan Road, Lahore @ Rs. 15,000.00 P.M totaling
Rs. 1,80,000.00 was got prepared by the Organization but you did not turn up to collect the same. However, we have sent you the said amount through Money Orders No. 4683-4700 Dated 05.01.1997."
The above documentary evidence is sufficient to establish that the tenancy was created by Mr. Muhammad Khalil Dar; the appellant was put in physical possession of the property by Mr. Dar and the rent was being paid to and in the name of Mr. Dar. Besides, AW-1 and AW-3, who in clear terms have stated that the appellant was the tenant under Mr. Muhammad Khalil Dar; despite availing the opportunities their statements have not been crossed. Likewise, AW-2, who is the Ahlmad of the Court of a Civil Judge at Lahore has deposed that the appellant had moved an application against Muhammad Khalil Dar for seeking permission to deposit the rent in the Court in the name of Mr. Dar, but this application was dismissed on 31.05.1997 for the non-deposit of the process fee. This statement too has not been subjected to cross-examination. It is settled law that any deposition made in the examination-in-chief, if not subjected to cross-examination, shall be deemed to have been admitted. Obviously, such statements once admitted by the appellant, no stance could be maintained by the appellant about the lack of tenancy with Mr. Dar. As far as the evidence of the appellant is concerned, it is all stereotype in nature. The affidavits seem to have been prepared by someone else and contain the same language; these are also even beyond the scope of the pleadings set out in the written reply. The only emphasis in the affidavits is that the property is owned by Mir Jan Begum, but when these statements are read in conjunction with the cross-examinations, the plea of the appellant stands defeated, because in the cross-examinations it is admitted by the appellant himself and his witnesses that the property was procured on rent from Muhammad Khalil Dar and that the rent was being paid to him. The appellant has never brought on record, as mentioned earlier, any document to show that Muhammad Khalil Dar was not the agent for the lady at the time the premises was put under tenancy to the appellant. These facts, when taken in totality, are quite adequate to establish the tenancy and on the face of it, the denial seems to be contumacious and was propounded to take the advantage of the absence of the actual owner of the property from Pakistan.
"---S. 2--Landlord--Definition of--Held: Definition of landlord being very wide, person, even if not owner of property, to be deemed to be landlord in various capacities. "
Moreover it has been held in Nasim Khalid vs. Ibrahim (NLR 1984 AC 318), as follows:--
"Ss. 2(c), 13, 15--Attorney of landlady receiving rent from tenants who treating him as person to whom they were liable to pay rent--Falls within definition of "landlord"--Non-proof of power of attorney would in such a case be of no consequence--Second appeal against eviction order passed on ground of default in payment of rent dismissed and eviction order upheld. "
Thus, from the above, it is clear that even if Mr. Dar was not the owner of the property yet being entitled to receive the rent from the appellant, he was the landlord and could competently file the ejectment application against the appellant. The denial of the appellant, as stated above, was contumacious and thus, on the proof of the existence of tenancy by the respondents, by applying the principle of forfeiture, the appellant is liable to be evicted straightaway, and this has been rightly done by the learned Rent Controller and also upheld in appeal.
There was another application, which was moved by the appellant before the learned Rent Controller for producing the additional evidence, but it was dismissed vide order dated 24.01.2001 and this order has not been challenged in appeal. However, the appellant moved an application for the additional evidence before the Court of first appeal, which was dismissed alongwith the appeal vide impugned judgment dated 14.10.2003. However, an independent application (C.M. No. 1-C/2005) has been moved in this appeal through which, the appellant wants to bring on record the power of attorney in favour of Muhammad Khalil Dar by Muhammad Farooq Abdullah, But nothing hinges upon this power of attorney. As regards the other document, which is a photocopy of the rent note dated 04.12.1983, suffice it to say that there had been no attempt on behalf of the appellant to produce this document at any stage of the proceedings and on the face of it, the document seems to be in genuine and fraudulent, because had it been with the appellant, they would have straightaway filed the same alongwith their reply to the ejectment application.
As regards the question that on account of the death of Mir Jan Begum, the general power of attorney in favour of her son Farooq Abdullah and the special power of attorney in favour of Mr. Dar by Farooq Abdullah stand revoked and therefore, Mr. Bar ceases to be the agent of the owner, thus, he could not sustain and pursue the ejectment application; the plea, in the facts and circumstances of the case, has no relevance, because I have already held, that it is Muhammad Khalil Dar who was the landlord of the property and, therefore, irrespective whether the power of attorney given to him had lost its efficacy or stood annulled on account of the death of the Principal, he continues to be the landlord of the property as far as the present tenancy was concerned.
For the other question, whether the legal representatives of Muhammad Khalil Dar can be brought on the record in his place, suffice it to say that when Mr. Dar has been held to be the landlord of the appellant, obviously, his legal representatives would be legally entitled to substitute after his death. In the light of above, I do not find any merit in this appeal, which is hereby dismissed with costs throughout.
(F.F.) Appeal dismissed.
PLJ 2007 Lahore 1169
Present: Muhammad Muzammal Khan, J.
A.S NADEEM ADVERTISERS and another--Petitioners
versus
PUNJAB ROAD TRANSPORT CORPORATION through
its M.D--Respondent
C.R. No. 1766 of 2006, decided on 27.10.2006.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & 141, O.XIV, R. 5(i)--Miscellaneous proceedings--Controversial pleadings--Jurisdiction to frame, amend or frame additional issues--Trial Court and parties to the lis could only point out error--Dismissal of petitioner's first application for correction of issues should not/could not be treated as bar to invocation of jurisdiction by trial Court and consequently their application was incorrectly declined--Revision accepted. [P. 1171] A
Mr. Muhammad Rashid Ahmad, Advocate for Petitioners.
Mr. Tariq Latif, Advocate for Counsel for Respondent.
Date of hearing: 27.10.2006.
Order
Instant civil revision assailed the order dated 8.7.2006 passed by the learned Civil Judge, Lahore, whereby application filed by the petitioners/defendants under Order XIV, Rule 5 CPC was dismissed.
Succinctly, relevant facts are that respondent/plaintiff filed a suit for recovery of Rs. 92,84,415/- against the petitioners/defendants who contested the same by filing their written statement. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence and the learned Civil Judge cognizant of the suit on 8.12.1996 framed eleven issues. Petitioners were not satisfied with the framing of issues, especially with the form of Issue No. 6 and consequently, they filed an application for re-costing/re-framing of issues which on account of opposition of the respondent, remained pending for a considerable long time, approximately nine and a half years and was ultimately withdrawn. Petitioners then filed their second application with the alike prayer, which was declined through the impugned order dated 8.7.2006. Petitioners being aggrieved of dismissal of their application, filed instant revision petition and respondent in response to notice by this Court, has appeared and was represented through its counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners' defense in their written statement, inter-alia, was that claim of the respondent about recovery of suit amount was not only illegal but the penalty clause in the agreement between the parties was also void. Petitioners had specifically pleaded their case to this effect in Paragraphs No. 5 and 9 of the written statement but Issue No. 6 as it was framed by the trial Court, reads as under:--
"Whether the claim of the plaintiff is illegal, as there is no penalty clause in the agreement? OPD"
"5. Power to amend, and strike out, issue--(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendment or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed''.
Above reproduced provision of law clearly depicts that jurisdiction to frame, amend or frame additional issues, is exclusively that of the trial Court and parties to the lis could only point out error, if any, therein. In these circumstances, dismissal of petitioner's first application for correction of issues should not/could not be treated as bar to invocation of jurisdiction by the trial Court and consequently their application was incorrectly declined.
From the above resume, since Issue No. 6 was not correctly framed as the same did not correctly reflect stance of the parties, the impugned order dated 8.7.2006 being tainted with material irregularities/illegalities, cannot be allowed to be sustained.
For the reasons noted above, instant revision petition is accepted and impugned order dated 8,7.2006 passed by the learned Civil Judge Lahore is set-aside, with the result that petitioners' application for re-casting of Issues No. 6 shall be deemed to be pending and shall be disposed of by reframing/recasting of Issue No. 6. There will be no order as to costs.
(M.S.A.) Revision accepted.
PLJ 2007 Lahore 1172
Present: Syed Asghar Haider, J.
ABDUL JABBAR--Petitioner
versus
KALSOOM BIBI & another--Respondents
W.P. No. 2838 of 2007, decided on 29.3.2007.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Petitioner's suit for restitution of conjugal rights and respondents suit for dissolution of marriage were tried by separate Courts--Both were decreed--Husband filed writ petition against the judgment and decree for dissolution of marriage--Effect--Held: No decision or judgment of any Court or tribunal, shall be an impediment, in this context, therefore, the right granted for dissolution is absolute and contingent only, upon restoration of Haq Mehr to the husband and nothing else--In view of dissolution of marriage by the Family Court, the decree of restitution of conjugal rights is in-effective. [P. 1173] A & B
Mr. Q.M. Saleem, Advocate for Petitioner.
Date of hearing: 29.3.2007.
Order
The petitioner was married Respondent No. 1 about 13 years ago, of the wed-lock, three sons and a daughter were born. The spouses lived happily for a short while, thereafter the petitioner started suspecting the character of the Respondent No. 1, and thus harmony vanished. The Respondent No. 1 filed suit for Dissolution of Marriage. The petitioner made efforts to revive the union and filed a suit for Restitution of Conjugal Rights. Unfortunately, both suits were tried by separate Courts and were never consolidated. The Family Court trying the suit for Dissolution of Marriage, made efforts for reconciliation but upon failure, exercising powers under proviso to Sec. 10 (4) of the Family Courts Act, 1964, dissolved the marriage. Hence the present petition by the petitioner.
The learned counsel for the petitioner contended that the suit for Dissolution of Marriage was decreed on 20.01.2007. But the other Family Court also decreed the suit for Restitution of Conjugal Rights, thus there is conflict of judgments, in this scenario, the Family Court was obliged to frame issues, according to the pleadings of the parties and determine effect of subsequent decree. He relied on (N.L.R. 1981 UC 451) "Anwari Begum Alias Khalida Anwar versus Additional District Judge, Lyallpur, etc."
I have heard the learned counsel for the petitioner and perused the impugned judgment.
The impugned judgment reflects that the defendant/petitioner was summoned in the Court, he duly appeared, filed written statement, whereafter the proceeding were fixed for pre-trial reconciliation. Upon failure, the suit was decreed, in view of proviso to Sec. 10 (4) of the Family Courts Act, 1964. The proviso to Sec. 10 (4) ibid is unambiguous and clear, it has an over-riding effect and states that no decision or judgment of any Court or Tribunal, shall be an impediment, in this context, therefore, the right granted for Dissolution of Marriage is absolute and contingent only, upon, restoration of Haq Mehr, to the husband and nothing else. Therefore, the Family Court rightly dissolved the marriage, after restoring Haq Mehr to husband. The decree for Dissolution of Marriage is earlier in time (20.01.2007), therefore, the petitioner was bound to disclose this to the Family Court, trying the suit for Restitution of Conjugal Rights, this was not done, the lapse resulted into passing of decree in the suit for Restitution of Conjugal Rights (31.1.2007), he therefore, cannot reap benefit of his own fault. Even otherwise, in view of Dissolution of Marriage, by the Family Court, the decree of Restitution of Conjugal Rights is legally in-effective. The precedent referred to, is in-applicable to the present facts, as the enactment amending proviso to Sec. 10 of the Family Courts Act, was incorporated on 1.10.2002, while the precedent referred to relates to 1981, (when enactment was not in field). Therefore, this petition has no merits and is dismissal in-limine.
(M.S.A.) Petition dismissed.
PLJ 2007 Lahore 1173
Present: Tariq Shamim, J.
SULEMAN and 4 others--Petitioners
versus
ADDITIONAL SESSIONS JUDGE NANKANA SAHIB
and 3 others--Respondents
W.P. No. 11549 of 2006, heard on 22.3.2007.
Illegal Dispossession Act, 2005--
----Ss. 3, 4, 5(1) & 7(1)--During pendency of complaint--Ordered to hand over the possession of the disputed property--Assailed--Held: Ahata in-question is a part of Abadi Deh which was neither sold through a registered sale-deed nor the possession thereof was delivered through any legal document--Where the claim of a party is not supported by any documentary evidence--Trial Court stead of conducting a further probe into the matter by framing the charge and directing the parties to produce evidence in support of thier respective claims--Petitioner was directed to hand over possession of the property to respondent--An order under Section 7(1) of the Act is discretionary with the Court, if it had not been so, there was no reason for the legislature to have incorporated a provision for putting the petitioners in possession u/S. 8 of Illegal Dispossession Act--On receipt of a complaint the Court may direct the officer-in-charge of a police station to investigate and forward the result of investigation to the Court within fifteen days and cognizance is to be taken by the Court on receipt thereof--Although the opinion of police is not binding on the Court--However, it is the function of the police to collect evidence and to place it before the Court. [P. 1176] A
Constitution of Pakistan, 1973--
----Art. 199--Impugned order is interim in nature but being void ab initio can be validly challenged before High Court through a Constitutional petition. [Pp. 1176 & 1177] B, C & D
2000 SCMR 785 & PLD 1996 SC 632, rel.
Mr. Abdul Qadoos Rawal, Advocate for Petitioner.
M/s Rai Muhammad Tufail Khan Kharal and Rana Habib-ur-Rehman, Advocates for Respondent.
Date of hearing: 22.3.2007.
Judgment
Through this single judgment I propose to dispose of Writ Petition No. 11549 of 2006 and connected Writ Petition No. 12329 of 2006 filed by the petitioners challenging the orders of the learned Addl. Sessions Judge, Nankana Sahib dated 28.10.2006 and 31.10.2006.
The brief facts of the case are that Respondent No. 3 filed a complaint under Sections 3 and 4 of the Illegal Dispossession Act of 2005 against the petitioners for allegedly dispossessing him from Ahata measuring 9 Marlas situated in village Khapparke Tehsil and District Nankana Sahib on 4.6.2006. On receipt of complaint the learned Addl. Sessions Judge, referred the matter to the SHO concerned who submitted parawise comments on 5.9.2006 and on the basis of the averments made in the complaint and the comments submitted by the SHO, the learned trial Court summoned the petitioners for 6.10.2006. On the said date all the petitioners (respondents in the complaint) appeared before the learned Court which adjourned the case to 13.10.2006 for framing of the charge. In the meanwhile an application was submitted by the accused/respondents under Section 265-K Cr.P.C. which was fixed for arguments for 17.10.2006. However, without deciding the application, the learned Court directed the petitioners to handover the possession of the disputed property to the complainant/Respondent No. 2 vide the impugned order dated 28.10.2006. The petitioners challenged the order through Writ Petition No. 11549 of 2006 which was fixed before this Court on 31.10.2006 and after hearing the petitioners the operation of the impugned order was suspended. While the said writ petition was pending, the learned trial Court on a statement made by the complainant-Respondent No. 2 dismissed the complaint as having been withdrawn on 31.10.2006. The orders have been assailed by the petitioners through instant writ petitions.
The learned counsel for the petitioners contended that in so far as the order dated 28.10.2006 was concerned the same was bad in law inasmuch as the learned trial Court passed the order before the commencement of trial which was evident from the fact that at the time of passing the order, charge had not been framed and that provisions of Section 7 of the Illegal Dispossession Act 2005 under which the impugned order had been passed come into play only after the trial has commenced. He further contended that the learned trial Court passed the impugned order while relying on the parawise comments submitted by the predecessor of the SHO concerned without ordering a proper investigation into the matter.
The learned counsel further contended that the order dated 31.10.2006 was passed in a haste by the learned trial Court inasmuch as the learned Court did not even consider that this Court in the order dated 31.10.2006 had suspended the operation of the order dated 28.10.2006; that the proceedings dated 31.10.2006 were an abuse of process of law inasmuch as the learned Judge obtained the thumb impressions of the petitioners on a blank paper and thereafter misused his position and recorded their statements to the effect that the possession of the property had been handed over to Respondent No. 2 and that the petitioners would seek restoration of possession through legal means. According to the learned counsel, after the order passed by the learned trial Court had been suspended by this Court, there was no reason for the petitioners to have made the said statement. Further stated that a perusal of the statement made by the petitioners does not furnish any valid ground to order withdrawal of the complaint as in that way interim relief had been wrongly legalized. Further maintained that the impugned order was against the spirit of law and beyond the jurisdiction conferred on the learned trial Court under the Illegal Dispossession Act of 2005. Lastly stated that in case the learned Court had agreed to accept the prayer for withdrawal of the complaint, it should have ordered return of the possession of land handed over to Respondent No. 2 in compliance with the orders of the Court dated 28.10.2006.
The learned counsel appearing on behalf of Respondent No. 2 contended that the course adopted by the learned trial Court was legal and that there was no illegality or infirmity in the impugned orders calling for interference by this Court.
I have heard the learned counsel and perused the record.
In the private complaint Respondent No. 2 had levelled specific allegation of being illegally dispossessed by the petitioners from his property. It would not be out of place to mention here that the Ahata in question is part of Abadi Deh which was neither sold through a registered sale-deed nor the possession thereof was delivered to Respondent No. 2 through any legal document. In such a situation where the claim of a party is not supported by any documentary evidence, the learned trial Court instead of conducting a further probe into the matter by framing the charge and directing the parties to produce evidence in support of their respective claims, while solely relying on the parawise comments furnished by the predecessor of the SHO directed the petitioners to hand over possession of the property to Respondent No. 2 in terms of sub-section (1) of Section 7 of the Illegal Dispossession Act of 2005. For easy reference Section 7(1) is reproduced hereunder:--
"Sec. 7 Eviction and mode of recovery as an interim relief.--(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession."
It is manifestly clear from the above that interim relief in terms of sub-section (1) of Section 7 of the Act can be extended only if during the trial the Court is satisfied that prima facie the respondent-accused is not in lawful a criminal case commences on framing of the charge. Admittedly, in the instant case, charge had not been framed by the learned trial Court. Even otherwise a reading of Sections 7(I) and 8 of the Illegal Dispossession Act reveal that an order under Section 7(I) of the Act is discretionary with the Court. If it had not been so, there was no reason for the legislature to have incorporated a provision for putting the petitioners in possession under Section 8 of the said Act on conclusion of the trial.
Further, sub-section (1) of Section 5 of the Act provides that on receipt of a complaint the Court may direct the officer incharge of a police station to investigate and forward the result of investigation to the Court within fifteen days and cognizance is to be taken by the Court on receipt thereof. Although the opinion of the police is not binding on the Court, however, it is the function of the police to collect evidence and to place it before the Court. Although the matter had been referred to the SHO by the learned Judge, but the SHO only submitted parawise comments to the private complaint without conducting investigation as required under the law. Even otherwise, the parawise comments, a copy of which is available on file appear to be sketchy and vague. In such a situation, in my view, the learned trial Court should have made an effort to ascertain the credibility of the claim made by the complainant before proceeding to pass an order in terms of Section 7(I) ibid.
In view of what has been discussed above, I have no hesitation in holding that the impugned order has been passed in violation of the statutory provision of Section 7 of the Illegal Dispossession Act and even though the same is interim in nature, the order being void ab initio can be validly challenged before this Court through a constitutional petition. Reliance is placed on the cases of Haq Nawaz and others vs. The State (2000 SCMR 785) and Mrs. Shahida Zahir Abbasi and 4 others vs. President of Pakistan and others (PLD 1996 S.C. 632).
Coming to the issue raised in Writ Petition No. 12329 of 2006 it has been noticed that the learned trial Court after having passed an order under Section 7(I) of the Illegal Dispossession Act and delivery of possession of the property through police to Respondent No. 2 complainant, proceeded to allow withdrawal of the complaint. After having passed the order dated 28.10.2006, the learned Court by virtue of the subsequent order has attempted to give it a cover of legality. Once the Court had formed an opinion that prima facie case of illegal dispossession had been made out, it should have proceeded with the trial of the case in order to take it to its logical conclusion. The learned Judge after the earlier order had been implemented should have refrained from disposing of the case which amounts to short circuiting the normal procedure provided under the Illegal Dispossession Act. The order has not only prejudiced the case of the petitioners but is tantamount penalizing the petitioners who cannot be made to suffer for an act of the Court. Needless to say that the course adopted by the learned trial Court is neither in consonance with law nor in accordance with the scheme of things provided under the Illegal Dispossession Act of 2005. Even the consent of parties cannot confer jurisdiction on a Court which it otherwise does not possess under the law.
From the foregoing it is manifestly clear that the impugned orders dated 28.10.2006 and 31.10.2006 are illegal, unlawful and in violation of the mandatory provisions of law. Needless to say that the orders are arbitrary, fanciful and suffer from jurisdictional error. Resultantly, the writ petitions are allowed and the impugned orders are set-aside. The complaint filed by Respondent No. 2 shall be deemed to be pending before the learned Court, which shall be decided afresh in accordance with law. There shall be no order as to costs.
(M.S.A.) Petition allowed.
PLJ 2007 Lahore 1178
Present: Syed Hamid Ali Shah, J.
ZAHEER AHMAD--Petitioner
versus
Mst. NASIMAN BIBI alias NASIM BIBI and 3 others--Respondents
W.P. No. 5219 of 2006, decided on 9.1.2007.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 7--Muslim Family Laws Ordinance, (VIII of 1961), Ss. 8 & 9--Majmooa-e-Qawaneen-e-Islam, Ss. 146 & 149--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Dissolution of marriage on the basis of Khula--Legitmacy of a child born after 11 months and 5 days of desertion--Denying of maintenance to such child--Appreciation of evidence--Held: Allegation of husband of disowning the child born out of the wedlock, should not be given weight, without the strict proof in such regard to the contrary--Paternity of a child born out of the lawful wedlock has a presumption of truth in its favour; simple denial could not take away the status of legitimacy--Such child is presumed to be an issue of his parents without any acknowledgement or affirmation of the parentage on the part of father--Further held: Evidence of the mother and the child was sufficient to prove the legitimacy of a child, in the absence of any cogent evidence to the contrary--Mother of the minor had been living in adultery--Child had been disowned in the proceedings against the petitioner for recovery of maintenance to the minor--Relationship had been denied to escape the liability to maintain the child--Husband had not approached the Court of competent jurisdiction for "Liyan"--Thus, the minor born out of the wedlock was a legitimate child and as such was entitled to be maintained by the petitioner.
[Pp. 1181, 1182 & 1185] A, B & K
PLD 1975 SC 624; PLD 1988 SC 8; PLD 1991 SC 275; PLD 1993 Lah. 575; 1987 CLC 2073; 1992 CLC 1180 & 2000 CLC 1605, ref.
(ii) Islamic Law--
----Principles of Fiqh--According to Sunni School of thought, a child born after 6 months of marriage or within 2 years of dissolution of marriage would be presumed to be a legitimate son of his father--According to Hanfi School of thought a child born in wedlock is of his parents, even if the husband had no access to the wife.
[Pp. 1182 & 1183] C & D
PLD 1975 SC 624; 1987 MLD 172 & PLD 1995 Pesh. 124, ref.
(iii) Islamic Law--
----Procedure of Lian--Repudiation of child, procedure--Husband has to swear before Qazi that child is illegitimate and fruit of adultery, in that event the Court will pass a decree whereby not only the marriage will be dissolved but also the child will be declared illegitimate, such husband has to disown the child immediately on his birth or on having the knowledge of such birth--Strong and un-impeachable evidence is required to prove illegitimacy. [P. 1183] E
Islamic Law--
----"ILLA" ( )--Manner of desertion--Procedure--Husband has to swear, he will stay abstained from his wife, in such event, the husband can desert his wife for a period of four months only--Desertion by the petitioner over a period of four months contravenes the injunctions of Islam. [P. 1184] F & G
Verse No. 226 of Sura Al-BAQRA ref.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 7--Recovery of dowery articles, decree--Concurrent findings--Appreciation of evidence--Effect of admission--Contention--Dowry articles in view of non mention of detail in the list and price thereof, cannot be granted, was repelled--Admittedly the dowery articles were lying in the house of the petitioner; therefore no interference is justified. [P. 1184] H
Constitution of Pakistan, 1973--
----Art. 199--Muslim Family Laws Ordinance, (VIII of 1961), S. 8--Dissolution of marriage by way of Khula--Dowery articles formed part of consideration for khula was could not be considered at that stage--Petitioner was required to raise all points of law and fact in the written statement--Plea not raised before Courts below could not be considered for the first time in writ petition--Petition was dismissed.
[Pp. 1184 & 1185] I & J
1996 SCMR 1170 and 1998 SCMR 593, ref.
Rai Muhammad Tufail Khan Kharal, Advocate for Petitioner.
Ch. Khalid Farooq Akbar, Advocate for Respondents.
Date of hearing: 9.1.2007.
Order
Respondent No. 1 approached the Family Court, through institution of suit for dissolution of marriage, recovery of dowry articles and for award of maintenance to Respondent No. 1 and the minor son. The petitioner resisted the suit through filing the written statement, wherein averments of the plaint were controverted and various preliminary objections were raised. Learned trial Court framed issues, recorded the evidence of the parties and on conclusion of the trial passed the decree. Resultantly, the marriage was dissolved, dowry articles were granted excluding the golden ornaments (weighing 15 tolas) and the maintenance to Respondent No. 1 was allowed at a rate of Rs. 1,000/- (rupees one thousand only) for the period of Iddat only while the maintenance of Respondent No. 2 at a rate of Rs. 800/- (rupees eight hundred) per month was granted vide judgment and decree dated 22.3.2005. The decree was assailed in appeal by the petitioner. Learned appellate Court vide judgment and decree dated 6.6.2005, upheld the decision of the trial Court to the extent of maintenance granted to Respondents No. 1 & 2 and the decree of trial Court qua the dowry articles, was modified. Learned Court viewing the evidence of the parties directed the petitioner to deliver the articles of dowry, lying in the room under lock and key, in the house of the petitioner. The petitioner has now assailed the decrees/judgments of the two Courts below, in this petition.
It is contended by the petitioner that the dowry articles in view of non-mention of detail, in the list and price thereof, cannot be granted. Learned counsel has further submitted that the marriage has since been dissolved on the basis of Khula, thus the respondent is not entitled to dowry articles, which are considerations of Khula. The petitioner has emphasized that it is established from record that Respondent No. 1, had left the house of the petitioner on 2.12.2003 and Respondent No. 2 was born on 7.11.2004. Spouse remained aloof from each other. A child born after 11 months and 5 days of desertion, is not legitimate. Learned Courts have decided the question of legitimacy without framing a specific issue to that effect. Learned counsel for the Respondents No. 1 & 2, on the other hand, stood behind the impugned decrees. He went on to argue that the impugned judgments have been passed, after proper appraisal of the evidence on the record. He lastly contended that the petition is barred by laches and merits dismissal on that score.
I have heard the learned counsel for the parties and perused the material available on the record.
Respondent No. 2 was born on 7.11.2004, at a point of time, when the spouse were living in desertion, since 2.12.2003. The child was born after 11 months and 5 days of desertion. The petitioner is denying the maintenance to the child, disowning him as his issue and accused Respondent No. 1, of having given birth to illegitimate child. Can such child be deprived of his right of being maintained? The question of legitimacy of child has a far reaching impact, therefore, determination of such question should not be taken lightly. The allegation by husband or his act of disowning the child born out of the wedlock, should not be given weight, without a strict proof in this regard to the contrary. The paternity of a child born, out of the lawful wedlock, has a presumption of truth in it's favour. Simple denial, would not take away the status of legitimacy; for according to Mohammadan Law "child follows the bed". Every presumption is made in favour of legitimacy of the child. Such child is presumed to be an issue of his parents without any acknowledgement or affirmation of the parentage on the part of father, the child follows bed (Firash). According to Sections 146 and 149 of Majmooa-e-Qawaneen-a-Islam edited by Dr. Tanzeel-ur-Rehman, the evidence of woman would be sufficient to prove parentage of a child. In the case of "Mst. Hamida Begum Vs. Mst. Murad Begum and others" (PLD 1975 S.C. 624), it has been held that to prove the legitimacy of the child, evidence of mother and of the child is sufficient. Further discussion in this respect is not useful, as the superior Courts have constantly leaned in favour of legitimacy of a child, in the absence of any cogent evidence to the contrary. Reference in this respect can be made to the cases of "Nazir Fatima Vs. Ghulam Fatima and others" (1987 CLC 2073), "Bashir and others Vs. Ilam Din and others" (PLD 1988 S.C. 8), "Rehmat Khan and 3 others Vs. Rehmat Khan and another" (PLD 1991 S.C. 275), "Muhammad Tallat Vs. Mst. Yasmin Zohra and another" (1992 CLC 1180), "Manzoor ul Haq and 3 others vs. Mst. Kanzeez Begum" (1993 CLC 109), "Muhammad Hussain alias Muhammad Yar Vs. Sardar Khan and 11 others" (PLD 1993 Lahore 575) and "Muhammad Pervez Vs. Additional District Judge and others" (2000 CLC 1605).
There is nothing on the record to establish that Muhammad Ramzan (minor son) was born after the divorce. Nor any evidence exists to the effect that Respondent No. 1/Mst. Nasreen Bibi, had been living in adultery. The child had been disowned, in the proceedings against the petitioner, for the recovery of maintenance to the minor. There cannot be any other view, except that the relationship has been denied by the petitioner to escape the liability to maintain the child.
The petitioner has denied his relationship with Muhammad Ramzan, on the ground that he was born 11 months and 5 days after the desertion. This logic put forth by the petitioner is of no help to him, being contrary to principles of Fiqa ( ). According to Sunni School of Thought, a child born after six months of marriage or within two years of dissolution of marriage would be presumed to be a legitimate son of his father. To dislodge such presumption one has to prove that the child was born within six months of marriage or more than two years after the divorce. As authority for this proposition, I may mention, the cases of "Mst. Hamida Begum vs. Mst. Murad Begum and others" (PLD 1975 SC 624), "Mst. Ghulam Fatima vs. Mst. Inayat Bibi and 4 others" (1987 MLD 172), "Maqbool Hussain vs. Abdur Rehman and others" (PLD 1995 Peshawar 124).
Further as per Verse No. 15, Surrah-AHQAF (Part XXVI) period for carrying child and his weaning is 30 months. The verse is quoted as under:--
A reference from Majmoo-e-Qwanen-e-Islam edited by Dr. Tanzeel-ur-Rehman needs mention, where the following Hadith is narrated at page 870:--
The Apex Court in the case of "Mst. Hamida Begum, (supra) has observed that according to Hanfi School of Thought a child born in wedlock is of his parents, even if the husband had no access to the wife.
The husband who wishes to repudiate the child, so born, can only do so, by procedure of Liyan ( ) that is to say, he swears before Qazi that child is illegitimate and fruit of adultery, in which case the Court will pass a decree, not only of dissolving the marriage but also declaring the child illegitimate. Such husband has to disown the child immediately on the birth of child or on having the knowledge of such birth. A strong and unimpeachable evidence is required to prove illegitimacy and one has to prove that child was born after the lapse of three consecutive periods of "Tohar" subsequent to death or divorce by husband. As "Iddat" comprises of three periods of "Tohar": --
Adverting to issue of discretion, it was a tribal custom among Arabs during pre-Islamic era to keep a wife in agony, her husband (in certain cases) used to prolong divorce. The husband used to pronounce divorce and before the lapse of period of Iddat, he used to repudiate the same by recourse to the wife. Prolonging divorce by recourse to wife, shortly before lapse of period of Iddat was disliked by Holy Prophet (PBUH). Hazrat Moosa Al Ashaari when approached Holy Prophet (PBUH) and asked about the prevailing custom in Ashaary tribe, he was told that Islam does not permit or recognize such divorce. Verse No. 231 of Sura AL BAQRA (Part-II) was revealed in this background. Islam enjoins that husband has to live with his wife in a decent manner and has to divorce her in a fair manner.
According to "Illa" ( ) manner of desertion is prescribed, whereby a husband swears that he will stay abstained from his wife, in such event, the husband can desert his wife for a period of four months only. Reference in this respect, is made to Verse No. 226 of Sura Al-BAQRA (Part-2):--
Restraining women in order to tease them or enhance their agony is strictly prohibited in Islam. Relevant part of Verse No. 231, Sura Al-BAQRA Part-2 is quoted below:--
Applying these principles to the case in hand, desertion by the petitioner over a period of four (4) months, contravenes the Injunctions of Islam, needs no consideration.
So far as the question of recovery of dowry articles is concerned, the lower appellate Court has granted the respondent, those articles which were admittedly lying in the house of the petitioner, under lock and key. No interference in the appellate judgment is justified, as admittedly, these articles are lying with the petitioner and belong to Respondent No. 1. Additionally the question that these articles form part
of consideration for Khula was not raised before the Courts below, cannot be considered at this stage. Hon'ble Supreme Court of Pakistan has declared in the cases of "Amir Shah Vs. Ziarat Gul" (1998 SCMR 593) and "Anwar Ali and others Vs. Manzoor Hussain and another" (1996 SCMR 1770) that the defendant is required to raise all points of law and fact in the written statement. The grounds/pleas not raised before the Courts below cannot be considered for the first time in this petition.
(M.A.) Petition dismissed
PLJ 2007 Lahore 1185 (DB)
Present: Fazal-e-Miran Chauhan and Mian Saqib Nisar, JJ.
MAHBOOB ALAM and 2 others--Appellants
versus
PROVINCE OF THE PUNJAB, through Secretary Education, Civil Secretariat, Lahore--Respondent
R.F.A. No. 601 of 2000, heard on 11.4.2007.
Burden of Proof--
----Principle--A mutation is not a document of title and by itself, it does not confer any title, right or interest and burden of proof lies on the party, who seeks to establish the genuineness of the transfer in its favour--On the other hand, record of rights though not instrument of title, but unless rebutted, presumption of truth is attached to them.
[P. 1191] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129--West Pakistan Land Revenue Act, 1967, S. 42--Order on mutation showed that the mutation was recorded on the basis of letter which had been issued by A.D.C. but the letter did not produce in evidence--Validity--Question of--Best evidence on what basis the land was transferred--Held: If the best evidence is withheld, thus it would be presumed that the same would have been read against the party. [P. 1191] B
2001 SCMR 338 & 1999 MLD 1386 (Lah.) ref.
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Suit for declaration--Mutation of inheritance--Ancestral property of appellants--Land of appellants was adjacent to School--Owner of the school encroached upon the land--Suit for declaration along with permanent injunction was filed by appellants/ex-owner of the school be restrained from raising any construction over the land--During pendency of civil suit, the school in-question was taken over by Government of the Punjab by MLR--Suit was decreed ex-parte--Executing Court refused to execute the decree against Government of Punjab--Mutation was recorded behind the back of the appellants and the basis for change of ownership from the name of appellants to the Government of Punjab was not on record--Land was owned by a Hindu owner--Evacuee land was transferred in the name of Provincial Government after repeal of Settlement laws in 1975--No evidence on record that appellants were summoned by the Revenue Authorities at the time of attestation of mutation nor were put to notice that the land was cancelled from their names--Entry of mutation was recorded without notice--Only document was a letter of A.D.C. (G), but the same had not been produced by respondent, thus any mutation entered without complying with the mandatory requirements of S. 42 of the Land Revenue Act, would be deemed to be invalid--No evidence had been produced by respondent to show that at the time of taking over of the Schools under MLR, the land in dispute was owned by School--Land, actual owned by father of the appellants and on his death, same was transferred by mutation of inheritance--Land was wrongly mutated in the name of Government of Punjab, presuming the same to be the property of School or Property of Provincial Government in the absence of any solid proof--Appeal accepted. [Pp. 1192 & 1193] C, D, E, G & H
Martial Law Regulation No. 118--
----Para 5--Privately managed schools, alongwith assets were to vest in Government--Relation to--Intention of--Government had become owner in relation to the buildings wherein schools or colleges were being run--Intention of M.L.R. No. 118 manifestly was to take over the management of institutions and not to confiscate the property in which privately managed school was being run. [P. 1193] F
Sahibzada Anwar Hameed, Advocate for Appellants.
Ms. Seema Munawar, A.A.G. for Respondent.
Date of hearing: 11.4.2007.
Judgment
Fazal-e-Miran Chauhan, J.--On 04.09.1995, suit for declaration was filed by the appellants/plaintiffs against the respondent seeking declaration that the land, measuring 1-Kanal 14 Marlas, 168 square feet min. Khasra No. 2800 (Amarti), situated in Mian Mir Sahib, Lahore, in favour of the respondent on the basis of a letter, alleged to have been issued by A.D.C. (G), Lahore is illegal, void, based on mala fide intention and is ineffective qua the rights of the appellants. As a consequential relief, also claimed the possession of the land after demolition of the superstructure raised thereupon.
2-Kanals, 10-Marlas, 23 Square feet bearing Khasra No. 2800, owned and possessed by the appellants. Having come to known about the same, the appellants got their land demarcated and it was found that the suit land Bearing Khasra No. 2800/2 min, is in the illegal occupation of the said owner of school. On 09.10.1972, the appellants filed a suit restraining the owner from raising construction on the suit land, which was decreed ex-parte on 22.04.1974. Execution filed was dismissed, as by that time the said school was nationalized through MLR No. 118. It was further alleged that, during the whole litigation between the parties, Provincial Government-respondent never disclosed that Mutation No. 771 was got sanctioned in its favour on 10.09.1986 on the basis of letter dated 15.05.1985 of A.D.C. (G), Lahore and the land, in dispute, was transferred from the name of the appellants/plaintiffs in the name of the respondent. It was further alleged that, as per MLR No. 118, only schools were nationalized and not the land and building owner by other private persons. The suit land was not the property of Sardar Girls High School, thus, the same does not vest with the school and in the Provincial Government by virtue of MLR No. 118. The subsequent sanction of mutation on the basis of letter dated 15.05.1985, alleged to have been issued by the A.D.C.(G), Lahore was illegal, void ab-initio and ineffective qua the rights of the appellants and the same was liable to be set aside.
The suit was vigorously contested by the respondents; various legal objections were raised, likewise, that the suit is barred by time; bearing no maintainable, barred by res-judicata and barred by want of cause of action; the appellants had not come to the Court with clean hands and ownership of the appellants was also denied. On merits, it was claimed that the land, in dispute, is owned and possessed by the respondents, being integral part of the school property was taken over by the respondent and now vest with the respondent.
Following issues were framed by the trial Court.
ISSUES:
Whether the suit is not maintainable under the Land Revenue Act? OPD.
Whether the suit is barred by principle of res-judicata? OPD.
Whether the suit is false, frivolous and baseless? If so, whether the same is liable to be dismissed? OPD.
Whether the plaintiff has not come to this Court with clean hands? OPD.
Whether the plaintiff has not cause of action against the defendant? OPD.
Whether the Mutation No. 771, dated 10.09.1986 was attested in favour of the defendant is unlawful? If so, what is the effect of attestation of Mutation? If so, its effect? OPD.
Whether the suit is barred due to non-joinder of the necessary parties? OPD.
Whether the suit is within time? OPP.
Whether the plaintiffs are entitled to the possession of the land in dispute instead of the compensation? OPP.
Relief.
After framing the formal issues, the parties were directed to produce their evidence in support of their respective claims.
Appellant No. 1-Mahboob Alam appeared as PW.1 and examined Muhammad Iqbal as PW. 2 and Muhammad Rafique as PW.3. The plaintiffs/appellants also produced Ex. P. 1 Khasra Amarti 1961-62, showing that Mutation of Inheritance No. 329 was recorded in favour of Mahboob Alam etc. Ex. P.2-copy of Register Haqdaran-e-Zaman for the year 1969-70, Ex. P.3-copy of Mutation No. 771 dated 10.09.1986 recorded in favour of Provincial Government.
As against, Muhammad Abdullah appeared as PW. 1 and examined Muhammad Ishaque as PW. 2.
After recording evidence and hearing the arguments of both the parties, the learned trial Court dismissed suit of the appellants vide impugned judgment and decree dated 26.10.2000, hence, this appeal.
Learned counsel for the appellants states that, the land in dispute was illegally taken over by the respondents and Mutation No. 771 (Ex. P. 3) was recorded on 10.09.1986, behind the back of the appellants, who never called upon or served by the revenue authorities. The letter/notification dated 15.05.1986, alleged to have been issued by A.D.C.(G), Lahore, has not been produced in the evidence nor the same is available with the revenue authorities, whereas, as per law, the same was liable to be annexed or placed with Mutation No. 771. Further states that, by MLR 118/2, only schools were taken over and as prescribed in the said MLR, the schools vest with the Provincial Government and not the land and building, as held in 1987 S.C.M.R. 1187. If at all, the land and building was owned by Sardar Girls High School, then it vested with the respondents only to the extent of land, owned by Sardar Girls High School. The land, in question, was mutated in the name of the appellants by Mutation of Inheritance No. 329, 28.11.1962, and the same is mentioned in Ex. P. 1; Rooznamcha Khasra Amarti showing the same to be the property, being ancestral property of their father Ghulam Hussain. The respondent has failed to prove his title on the basis of which Mutation No. 771 was wrongly attested.
Conversely, learned Assistant Advocate-General appearing on behalf of the respondent states that, the land, in question, being evacuee property was transferred in the name of the Provincial Government, hence, the same belongs to the Government and was rightly sanctioned in favour of the Provincial Government, Mutation No. 771 regarding the suit premises was sanctioned in favour of the Provincial Government and any right accrued and the plaintiffs/appellants, if had any right, had lost the same after sanctioning of the mutation. Since, very mutation is under challenge in the suit, which was decided by the revenue authorities under the relevant rules. Thus, the same cannot be declared to unlawful by the Civil Court, as it was the exclusive jurisdiction of the revenue authorities to decide the same and Issue No. 6 was rightly decided against the appellants. Further states that, while deciding Issue No. 8, it was rightly observed by the learned trial Court that mutation was attested in the year 1986 and the same is being a public document which always operates as a notice to the general public and it was rightly observed by the Civil Judge that the plaintiffs/appellants cannot take the peal that they remained ignorant about the sanctioning of the mutation. It was their duty to inquire from the revenue authorities and the suit was rightly declared barred by time. Also states that, the suit property is in possession of the school since 1950 and was an evacuee property. Since, the property has been taken over with the school and the same belongs to the Provincial Government. The nature of the suit seeking declaration is not maintainable and at the most, the appellants can ask for compensation for their land, hence, the suit was rightly dismissed by the learned trial Court and there is no merit in this appeal and the same may also be dismissed.
We have heard learned counsel for the parties and perused the record. Admittedly, Khasra No. 2800, measuring 2-Kanal, 10 Marlas, 23-square feet being ancestral property of the appellants and mutation of inheritance Bearing No. 329 was mutated in their names. Ex. P. 1. Khasra Amarti for the year 1961-62, Mauza Mian Sahib Lahore Cantt. find mentioned the fact that Mutation No. 329 was recorded in the name of Rehmat Ali, Mehboob Alam 4/5 shares and Mst. Mumtaz Begum 1/5 share since the death of Ghulam Hussain. Document Ex.P. 2, copy of Register Hadqdaran for the year 1969-70 also find mentioned and shows that the appellants as owner in possession of land measuring 2-Kanals, 10-Marlas, 23-Square feet Bearing Khasra No. 2800. The land of the appellants was adjacent to Sardar Girls High School and the management/owner of the above said school encroached upon the land, in dispute, measuring 1-Kanal, 14-Marlas, 168-Square feet min. Khasra No. 2800, against whom, a suit for declaration alongwith permanent injunction was filed by the appellants seeking injunction that the respondent/ex-owner of the school be restrained from raising any construction over the land. During pendency of the civil suit, the school in question was taken over by the Government of the Punjab by MLR No. 118, dated 01.04.1972. The management of the school was taken over by the Government of the Punjab, resulting the land, building of the school was also taken over, which also includes the land in dispute on 14.01.1968, considering the same to be property of the school. The suit filed on 09.01.1972 against the respondent restraining not to raise construction upon the land, in dispute. As no body appeared on behalf of the respondent and the suit was decreed ex-parte on 22.04.1974. The executing Court refused to execute the decree against Government of the Punjab/Education Department vide order dated 6.1.1993. Appeal was also dismissed on 28.7.1996. Para No. 7 of the plaint is not specifically denied by the respondent. Thus, the evasive denial supported the contention that fact of recording of mutation on 10.9.1986 without notice to the appellants was not disclosed during the earlier civil litigation. The fact that the appellants come to know on February, 1994 about the mutation is also not specifically denied. Thus, filing of the suit from the date of knowledge is always presumed to be in time unless otherwise proved. The finding of the learned trial Court that the very attestation of mutation, being a public notice would prove as notice to all concerned, is not correct view. The limitation to challenge the mutation without notice to the appellants would run from the date of knowledge. There is no evidence to rebut the contention that the appellants acquired the knowledge in February, 1994. Mehboob Alam, one of the appellants, appeared as PW. 1 supported version of plaint. The appellants had proved on record that Khasra No. 2800 bearing 2-Kanals, 10-Marlas, 23-Square feet was owned by their father namely Ghulam Hussain and on his death, Mutation of Inheritance No. 329 was recorded in their name on 28.11.1962. Since, ex-management/owners of Sardar Girls High School encroached upon the land measuring 1-Kanal, 14-Marals, 168-Square feet illegally and the revenue authorities on the basis of letter dated 15.5.1985 which has not been produced in evidence, transferred the land by way of Mutation No. 771, recorded on 10.9.1986 in favour of the Government of the Punjab. Thus, finding on Issue No. 8 are set-aside and it is held that the suit was filed within time from the date of knowledge i.e. February, 1994.
So far as the title of the appellants viz-a-viz. Khasra No. 2800 is concerned, there is sufficient evidence on the record to show that the said Khasra measuring 2-Kanals, 10-Marlas, 23-Square feet was owned by their father and on his death, Mutation of Inheritance No. 329 was recorded in their name. Ex. P. 2, copy of Register Haqdaran, to which presumption of truth is attached, shows the appellants in possession as owner of the said Khasra. On the other hand, the respondent had not produced iota of evidence in rebuttal. Ex. P. 3, Mutation No. 771 dated 10.9.1986 was produced by the appellants to show that the said mutation was attested in their absence. They were not called upon by the revenue department, while attesting the mutation. No notice was ever issued in their name by the revenue authorities before recording the mutation of exchange, in dispute.
It is settled principle of law that a mutation is not a document of title and by itself, if does not confer any title, right or interest and burden of proof lies on the party, who seeks to establish the genuineness of the transfer in its favour. On the other hand, record of right though not instrument of title, but unless rebutted, presumption of truth is attached to them.
In the present case, the respondent has filed to prove on what basis the land measuring 1-Kanal, 14-Marlas, 168-Square feet was mutated in the name of the Government of the Punjab vide impugned mutation. The order on mutation recorded on Ex. P. 3, shows that the said mutation was recorded on the basis of letter dated 15.5.1986, said to have been issued by the A.D.C.(G), Lahore, but the said letter has not been produced in evidence. In the absence of the said letter, which is the best evidence to show on what basis the land was transferred, has been purposely withheld. As per Article 129 of the Qanun-e-Shahadat Order, 1984, if the best evidence is withheld, thus it would be presumed that the same would have been read against the party, if produced. Reference in this respect can be placed on Muhammad Lehrasab Khan vs. Mst. Aqeel-un-Nisa and 5 others (2001 S.C.M.R. 338] and Fiaz Hussain and 7 others vs. Muhammad Din through Legal Heirs (1999 M.L.D. 1336 Lahore]. Mutation itself is not a part of record of rights, if there is any presumption of truth attached to the facts recorded in the mutation the same are rebuttable. The appellants have proved on the record that a mutation of inheritance was recorded in their name on 28.11.1962 and since then their name is mentioned in the record of rights as owners in possession of the land, in dispute. It is also established on the record that, Mutation No. 771 dated 9.10.1986 was recorded behind the back of the appellants and the basis for the change of ownership from the name of the appellants to the Government of the Punjab slicing 1-Kanal, 14-Marlas, 168-Square feet being Khasra No. 2800 measuring 2-Kanals, 10-Marlas, 23-Square feet is not on the record. There is no evidence on what basis, the said mutation was recorded in the name of the Government of the Punjab.
Learned Assistant Advocate General tried to argue that the land, being an evacuee property, was transferred in the name of the Government of the Punjab. We are afraid that she cannot be allowed to argue the case against the pleadings. A question of fact not pleaded/mentioned in the written-statement unless amended with permission, cannot be allowed to argue the case on those facts. No document showing that the land was owned by a Hindu owner has been placed on the record. The evacuee land was transferred in the name of Provincial Government after repeal of Settlement Laws in 1975. Thus, the entries recorded in the mutation without any support, does not carry any weight as against the documents placed by the appellants.
There is no evidence on the record that the appellants were summoned by the revenue authorities at the time of attestation of Mutation No. 771 nor were put to notice that the land measuring
1-Kanal, 14-Marlas, 168-Square feet is being cancelled from their name. The entry of mutation was recorded without notice. The only document is a letter of A.D.C.(G), Lahore dated 15.5.1986, but the same has not been produced by the respondent, thus, any mutation entered without complying with the mandatory requirements of Section 42 of the Land Revenue Act, would be deemed to be invalid. Reference in this regard can be placed on [N.L.R. 1999 (Revenue) Abbottabad 51].
The word "vest" has been defined by the Honourable Supreme Court in 1987 S.C.M.R. 1197 (supra) that "merely because the privately managed schools, alongwith their assets were to vest in the Government, under the terms of Para 5 of Martial Law Regulation No. 118, it did not imply that Government had become owner in relation to the buildings wherein schools or colleges were being run". The intention of M.L.R. 118 manifestly was only to take over the management of the institutions and not to confiscate the property in which the privately managed school was being run.
In the instant case, no evidence has been produced by the respondent to show that at the time of taking over of the schools under M.L.R. No. 118, the land in dispute was owned by Sardar Girls High School, whereas, on the other hand, it is established on the record, that the land measuring 2-Kanals, 10-Marlas, 23-Square feet Bearing Khasra No. 2800 owned by father of the appellants and on his death, same was transferred by mutation of Inheritance No. 329 dated 28.11.1962, the same fact is mentioned in Ex. P. 1, copy of Roznamcha Waqiati.
In the light of above discussion, we are of the view that the land measuring 1-Kanal, 14-Marlas, 168-Square feet was wrongly mutated in the name of the Government of the Punjab, presuming the same to be the property of Sardar Girls High School or property of Provincial Government in the absence of any solid proof, the mutation so recorded was not recorded in accordance with law, as required under Section 42 of the Land Revenue Act.
For the facts discussed above, we are of the view that, Mutation No. 771 (Ex. P. 3) recorded on 10.9.1986 was not recorded in accordance with law. In view of the above, we accept this appeal; set aside the impugned judgment & decree of the trial Court and decree the suit of the appellants as prayer for. No order as to costs.
(A.S.) Appeal accepted.
PLJ 2007 Lahore 1193
Present: Mian Saqib Nisar, J.
ANOOSHA SHAIGAN--Petitioner
versus
THE LAHORE UNIVERSITY OF MANAGEMENT SCIENCES, LAHORE through its Chancellor, and 2 others--Respondents
W.P. No. 9071 of 2006, decided on 13.12.2006.
Constitution of Pakistan, 1973--
----Art. 199(a)(i)--Writ of mandamus--Educational institution--Question of--Maintainability--Nature of President orders--Administrative and financial control--LUMS is an institution, not a `person'--According to the Presidential Order, 1985, though the president is the Chancellor of the LUMS but he does not have the administrative or policy making Control--Validity--A writ of mandamus can be issued to a person performing functions in connection with the affairs of the Federation, a Province or Local Authority. [P. 1197] A
Constitution of Pakistan, 1973--
----Art. 199(a)(i)--Educational institution--Writ of mandamus--Question of--Maintainability--Management body--Absolute control over the management of a body/an organization by the Federation is a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the Federation--Federation should have a complete domination to do and undo whatever it decides in running the affairs of such body and should have the exclusive, complete and final authority to take the vital policy decisions--Such control must be absolute, unfettered, unbridled and exclusive, besides the state must also have the financial control of the organization, the power of hiring and firing the employees, there of appointing and removing the management body, meant for running the routine affairs of the organization--Adminsitrative and policy making control is the authority of the Board of Trustees and the Council of lums, which manages its affairs--Funds to LUMS are not being provided by the Government on regular basis, those are generated by the LUMS itself either from the fees or the donations and may be occasionally in the nature of donation, the Government also contributes, but such contribution cannot be held to be within the concept of "Financial Control" of the organization when both the administrative" and the "Financial Control" of the Federation over respondent is lacking--LUMS is not a "person" within the meaning of Art. 199 of the Constitution which could be held to be performing its duties in connection with the affairs of the Federation or the province--Petition was dismissed.
[P. 1199] B & C
Mr. Ahmad Rauf, Advocate for Petitioner.
Mr. Jawad Hassan, Advocate for Respondents.
Date of hearing: 13.12.2006.
Order
The petitioner after having passed her O Level's exam, appeared in A Level's exam, but awaiting the result, she applied for admission with the Lahore University of Management Sciences (the LUMS) for BSc. (Honours)/BA-LLB Programme, which has been declined to her with the advice that she must improve her A Level's result, whereas according to the petitioner at that time, A Level's result was not yet announced, which was subsequently declared and the petitioner had obtained 3 A's therein. It is this refusal which has been challenged by the petitioner through the present writ petition on the ground of being illegal, arbitrary, whimsical, unlawful, unreasonable etc, and violative to the provisions of Articles 8, 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
The LUMS/Respondent No. 1 and two of its other officials who are Respondents No. 2 and 3, have contested the petition and at the very outset have raised the objection about its maintainability therefore, I deem it proper to first settle the objection about the competence of the petition.
The precise objection of the respondents in this behalf is that LUMS is not a "person" within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, performing functions in connection with the affairs of the Federation, Province or the Local Authority, therefore, the writ in the nature of mandamus as has been prayed for by the petitioner in this case, cannot be allowed. To meet the above objection, Mr. Ahmad Rauf, learned counsel for the petitioner has argued that LUMS is an institution which has been created by the Presidential Order 25 of 1985 which was validated by 8th amendment under Article 270-A of the Constitution, furthermore, establishment of the institution has been given protection by amending 7th schedule to the Constitution by way of Item No. 8. It is further submitted that the education is within the domain of, and it is the function of the Government to make laws regarding the education, therefore LUMS having come into being as a consequence of the above, falls within the meaning of "person". It is also submitted that according to the charter of LUMS, it is under the control of the President just like the Aitchison College Lahore, which is under the control of the Governor; the President of Pakistan is the Chancellor, who appoints the Pro-Chancellor, the Rector, his decision in certain matters is final; the Board of Trustees of LUMS comprises of 15 members including a representative of the University Grants Commission (now the Higher Education Commission), which is the statutory body, the Principal Pakistan Administrative Staff College and three other members nominated by the Board and approved by the President. Mr. Ahmad Rauf, Advocate argued that the Council of the LUMS comprises of the representative of the University Grants Commission, the representative of the Ministry of Education, the Principal of Administrative Staff College, the Director Institution of Business Administration Karachi, the Head of the business or a public administration department of a University; all the above are the official Institutions and Organizations, run and controlled by the Government of Pakistan.
About the control of the Chancellor i.e. President of Pakistan over the affairs of LUMS, it is submitted that he can terminate the membership of any nominated member under Article 9 sub-article (i) of the Presidential Order; the Chancellor may cause and direct any inspection or inquiry in respect of the matters connected with the affairs of LUMS; according to Article 9 sub-article (4), the Chancellor may issue direction and the Board is bound to comply with those. It is also submitted that as per Articles 10 and 11 sub-article (1) of the Order, the Directors shall be appointed by the Chancellor on such terms and to perform such duties as may be directed; Article 20(1) envisages that if any question arises about the interpretation of the Order 25 or if any difficultly is to be removed, it is the Chancellor who shall interpret and may make an order to remove the difficulty; under Article 20(3), all the academic programmes are subject to the approval of the Grants Commission. Thus, on the basis of the all what has been submitted above, the learned counsel states that Respondent No. 1 is a "person" performing its duty in connection with the affairs of the Federation. In support of his contentions, he has relied upon. Arif Majeed Malik and others vs. Board of Governors Karachi, Grammar School (2004 CLC 1029), Salahuddin and 2 others vs. Frontier Sugar Mills & Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244), Judicial Review of Public Actions by Mr. Justice (R) Fazal Karim Vol. II Page 1036, Mst. Asma Nadeem vs. International Islamic University and other (2002 MLD 290) and Messrs Huffaz Seamless Pipe Industries Ltd. vs. Sui Northern Gas Pipelines Ltd. and others (1998 CLC 1890).
Replying to the above, Mr. Jawad Hassan, learned counsel for the respondents has argued that according to Article 13 of the Order, 1985, it is the Board of Trustees which has the control over the affairs of LUMS; such Board comprises of 15 persons out of which 12 are private people and only three are the Government officials; under Article 17, LUMS has its own funds and is not being run by any finances provided by the Government, which according to him is the key factor to determine, whether an educational institution is the extended arm of the Government or otherwise. He also argued that as per Article 13(1) (d) of the order, four persons are from the National Management Foundation (NMF), which is registered as a society and is the governing body administering the affairs of LUMS; the management of NMF is entrusted to a Board of Governors, which compromise of private individuals and neither has any official representation nor is under the control of the Provincial or Federal Government; although LUMS has the President of Pakistan as its Chancellor but he is not on the Board; LUMS is enjoying its financial autonomy since 1985 and has been raising its own funds through the fees paid by the students or the funds received from the donors; it is not getting any financial assistance from the Government on annual basis, hence it makes its own budget raises its own funds as an autonomous body without any interference of the Government; in this behalf, reference has been made to Article 17 of the Order.
I have heard the learned counsel for the parties. Under Article 199(a)(i) of the Constitution of Islamic Republic of Pakistan, 1973, a writ of mandamus can be issued to a person performing functions in connection with the affairs of the Federation, a Province or local authority. Thus, it cannot obviously be issued to some, who does not fall within the purview of the "person" defined in the article to mean:
"(5) "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court, or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan."
The word "control" appearing in the aforementioned definition is also quite significant and it is not restricted to the financial control of the Government over a body, but the executive control as well; it does not necessarily mean the financial control over the bodies that are under the dominative control of the Federal or Provincial Government, which are amenable to the jurisdiction under Article 199 of the Constitution. Thus, the judgment of the Honourable Supreme Court reported as Aitchison College, Lahore through Principal vs. Muhammad Zubair and another (PLD 2002 SC 326), cited by the learned counsel for the petitioner, is distinguishable from the captioned case, as the dominating control in Aitchison College is (1) taken over under MLO (2) Governor of the Punjab is the President of the Board (3) there are Provincial Secretaries on the Board of Corp. Commanders (4) it is the Special Institution under the Provincial Rules of Business and (5) on account of the above, it is permissible to transfer the Government servants to the Aitchison College.
In Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others (2000 SCMR 928) at page 933, the primary test, which was held must be applied to ascertain the above issue is, whether the functions entrusted to the Organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government and the bulk of the funds is provided by the State.
In Tanvir Iqbal Siddiqi vs. The Principal, Overseas Pakistanies' Foundation (OPF), Girls College, Islamabad (1994 SCMR 958) at page 959, it has been held that OPF is not a department of the Federal Government; it is not shown that the OPF performs the functions in connection with the affairs of the Federation within the meaning of Article 199.
In Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. Tokhat Bhai and 10 others (PLD 1975 SC 244) at page 257, it has been held that the private organizations or persons, as distinguished from Government or semi-Government agencies and functionaries, cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State.
In Muhammad Sharif vs. The Secretary to the Government of the Punjab, Basic Democracies Social Welfare and Local Government Department Lahore and 3 others (PLD 1973 SC 497) at page 506, it has been held that the College Governing Council for any sub-committee constituted by it could only make regulation for the internal management of the college, and such regulation could not acquire the status of statutory rules, so as to be enforced by the High Court in the exercise of its writ jurisdiction.
In Zainul Abidin vs. Multan Central Co-operative Bank Limited, Multan (PLD 1966 SC 445), it is ordained that in the absence of proof that any statutory duty was involved or that any legal right was being claimed a mandamus could not be issued.
In Noor Jehan Shah vs. Pakistan Defence Officers Housing Authority through its Administrator (1997 MLD 2261), the test applied for determining the above status is the same, which was mentioned in 2000 SCMR 928.
In Qama-ul-Islam vs. The Institute of Chartered Accountants of Pakistan (1993 MLD 1362) at page 1365, it was held that ICAP was constituted under the Ordinance X of 1961 as a body corporate and under Section 9, the control and management does not vest with the Government but same vests in the council constituted under the Ordinance and the funds are received under Section 17 of the Ordinance. Therefore, ICAP is not a person performing functions in connection with the affairs of the State and as such the writ petition was held to be incompetent.
Therefore, when both the "administrative" and the "financial" control of the Federation over Respondent No. 1 is lacking, I am constrained to hold that LUMS is not a "person" within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which could be held to be performing its duties in connection with the affairs of the Federation or the Province. Resultantly, this writ petition against the respondents is incompetent, which is hereby dismissed.
C
(A.S.) Petition dismissed.
PLJ 2007 Lahore 1200 (DB)
Present: Sh. Azmat Saeed and Umar Ata Bandial, JJ.
M/s. GOLDEN FALCON TRAVEL SERVICES (PVT) LTD. through its Director, Lahore--Petitioner
versus
MINISTRY OF RELIGIOUS AFFAIRS, HAJJ, ZAKAT, USHER, GOVERNMENT OF PAKISTAN through its Secretary, Islamabad and 2 others--Respondents
I.C.A. No. 357 of 2006 in W.P. No. 11035 of 2006, decided on 15.5.2007.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Intra Court Appeal--Criteria of HGOs for Hajj--Lax conditions of eligibility--Challenge to--Duty and liability of Ministry of Religious Affairs, Zakat & Ushr--Record of respondents showed unsatisfactory insofar as selection of HGOs for Hajj was primarily subjective test is the lack of complaints received from past Users/Hajjis--Selection process and efficiency in its outcome, transparency and competition are its essential attributes as mandated by settled legal rules--Selection of HGOs for Hajj suffer from non-transparency, non-competition and illegality--Such selection was declared to be void and of no legal effect for the purposes of allocating to parties new rights and liability that are extraneous to the appointments for and obligations rendered at Hajj December, 2006--Held: HGOs through a process that is fair, transparent, based on free and open competition for appointment strictly on merit--As the authorizations given by the respondent for Hajj 2007 are provisional therefore nov vested right of nominees can arise with respect thereto, in any event such provisional nominees can conveniently complete in a selection process of HGOs for Hajj, 2007 that is fraud by respondents strictly in accordance with law--Appeal partly allowed. [P. 1208] A
Malik Abdul Majeed Khan, Advocate, Mr. Asad Munir, DAG and Mr. Danishwar Mates, DAG for Appellant.
M/s. Talib H. Rizvi and Mr. Afzal H. Rizvi, Ch. Muhammad Saleem and Muzafar Hussain Mian, Advocates for Respondents.
Dates of hearing: 9 and 10.5.2007.
Judgment
Umar Ata Bandial, J.--This Intra Court Appeal challenges the order dated 28.11.2006 passed by the learned single Judge in a number of connected with petitions filed by companies whose applications to become Hajj Group Organizers ("HGOs") has been turned down by the Respondent No. 1. Ministry of Religious Affairs, Zakat & Usher ("Ministry"). In some petitions, a common order dated 28.9.2006 passed by the Secretary of the Ministry on grievances of those petitioners has been challenged whilst in other petitions a prayer has been made for directions to the Ministry to register and authorize the petitioners therein as HGOs for Hajj December 2006 (1427 A.H). The consolidated order by the learned Single Judge has disposed of the petitions after scrutinizing the terms of the order by the Secretary which gives the main reason for rejecting applications by the petitioners to be appointed as HGOs.
Serious allegations of discrimination, patronage and partiality are made by the petitioners against the selection process for HGOs adopted by the respondents for Hajj December 2006. However, being un-supported by specific material and being of entirely a factual nature the learned single Judge rightly declined adjudication of these allegations for involving a factual inquiry. The second point about the allocation to the petitioners of an additional quota available with the respondents was rejected by the learned Single Judge also for requiring a factual inquiry. The third point considered and commented forcefully by the learned Single Judge is the failure of the respondents to show any published policy for registration and authorization of private HGOs. He notes that the allocation of rights to private HGOs is left to the "discretion of individuals and vague instructions issued by the Respondent No. 1". He has also observed that the respondents failed to show any legal instrument or executive decision that authorizes the terms of even the public notice inviting applications for HGOs. A direction is consequently given to the respondents to frame a clear, unambiguous and transparent policy for engagement of private HGOs before the next Hajj so that their selections is based on defined criteria establishing merit.
The appellants have assailed the aforesaid order by the learned Single Judge for tits failure to award practical relief to them. That grievance, however, could not be given any indulgence by us also as interference with the impugned selection of HGOs in mid-December would have caused severe hardship to Hajjis booked with such HGOs, many of whom were by them already travelling to the Holy Land. Thus no interim relief for Hajj December 2006 was granted to the appellants but the respondents were, nevertheless, asked to demonstrate that their impugned selection of HGOs was made on the basis of legally valid criteria. On 18.1.2007 the Respondent No. 2 Secretary of the Ministry, entered appearance and verbally explained the mechanics and considerations applied in the selection of HGOs for Hajj December 2006. The gist of his account is that due to paucity of time the primary criterion of selection of HGOs applied by the respondents is the previous Hajj service experience of candidates and the absence of complaints, received about their performance. On this score all 322 HGOs of Hajj January 2006 were retained for the next Hajj. The same criteria was also applied to the 1928 new applicants out of which 226 were appointed as new HGOs for Hajj December 2006. He was candid to state that the said 1928 applications for HGOs were considered but not opined upon individually. As Hajj December 2006 selections were prima facie made summarily on the basis of past satisfactory performance of the applicants as HGOs, therefore, the grievance of the appellants who were never given a chance to perform, appears to carry some weight. In the foregoing background the Court asked the Secretary whether compliance with the direction of the learned Single Judge for framing objective policy criteria for selecting HGOs has been rendered. He sought time until end March 2007 to formulate the relevant objective criteria that represent the Government's policy to select HGOs.
On 2.4.2007 further time was sought by the respondents to provide the criteria; for which an adjournment was granted until 26.4.2007. However, it transpired a few days later that by latter dated 6.4.2007 the Ministry authorized HGOs for Hajj December, 2006 to commence bookings with parties for Hajj 2007. This authorization letter was brought to the notice of the Court by the appellants who assailed it for obliging again, without fixing the policy criteria of election of HGOs, the very persons whose appointment was challenged in the writ petitions before the learned Single Judge. It is contended before the Court that the choice of HGOs appointed for Hajj December, 2006 that is challenged as opaque, partial and discriminatory in the writ petitions stands sanctified and renewed for Hajj 2007 solely because these persons possess the objected status of previous HGO which was conferred on them without competition on merit. The fresh authorization for Hajj 2007 is condemned as an act of personal largesse and patronage because admittedly on 6.4.2007 the respondents had not finalized the objective policy criteria for making such selection.
The sole basis of fresh authorizations given by the respondents for Hajj 2007 is the previous appointment of the nominees as HGOs for Hajj December 2006. As such the provisional selection of HGOs for Hajj 2007 is merely superstructural upon their impugned appointment as HGOs for Hajj December 2006. Consequently the fresh authorizations are merely a continuation of the disputes subject matter of writ petitions before the learned Single Judge and therefore also of the appeals before us.
The Ministry did not file pleadings before the learned Single Judge. However, before us its Secretary has in chronologically order filed a report, a statement of facts contained both in a reply to C.M. and in written arguments and a signed statement about the Ministry's future action for Hajj 2007. These documents purport to answer the allegations made by the appellants about the opacity of the selection process of HGOs and consequently distribution of that office as largesse without application of reasonable criteria. The facts as narrated in the written arguments are that the respondents inducted private HGOs for the first time for Hajj 2005 to serve 50,000 Hajjis. A committee comprising the senior most officers of the Ministry, including the Minister of Religious Affairs selected 251 person as HGOs that year. After Hajj the performance of these HGOs was reviewed, 19 were black listed on account of complaints made and the remaining 232 were renewed as HGOs for Hajj January 2006. All these 232 entities performed satisfactorily and were retained for Hajj December 2006. However, applications for fresh appointments were also invited in June 2006. Out of 1928 applicants, 219 new entrants and 7 from amongst past performers were selected as new HGOs.
Thus a total of 544 HGOs conducted some 75,000 Hajjis through Hajj December 2006. It is further reported that under its aforesaid authorization letter dated 6.4.2007, the Ministry has permitted 320 of the previous 544 HGOs to proceed with the bookings for 50,000 Hajjis for Hajj December 2007. The remaining 224 previous HGOs are also being scrutinized for the likely allocation of 20,000 Hajji seats to them. In the expectation that the Saudi Government would give an additional allocation of 5,000 seats for Hajjis, there is possibility of 10,000 seats becoming available for which 100 new HGOs may be appointed prorate on regional basis through regional balloting. In other words the respondents have as their policy gesture offered the regional quota out of an anticipated but not yet certain number of 10,000 Hajji seats for competitive selection. The vast majority of HGOs appointments for Hajj 2007 are therefore being made from the retained HGOs from 2006.
The above division is made plausible by the Ministry's report filed on 26.4.2007 containing the following policy conditions of eligibility for appointment of an HGO:
An applicant must be a registered private limited company with minimum paid up capital of Rs. 3.00 million; (ii) having three years experience in the field of Hajj and Umrah and allied business; (iii) with an exclusive office having computer internet and telecom facilities; (iv) bearing financial stability evidenced by audited accounts.
There is also provision in the aforesaid policy criteria that regional priorities shall be observed in allotment of quota for different areas of the country and if the number of applicants satisfying the foregoing criteria exceeds the available seats, their selection shall be made publicly by computer ballot.
It may be pointed out that all the appellants claim that they fulfill the aforesaid rudimentary and soft criteria; these conditions strengthen the subjective element of the selection process which revolves around that past performance of pre-selected persons. Such adherence to a singular factor is attacked by the appellants for being entirely preferential, in particular because no standard of performance is prescribed to assess previous accomplishment. It is also urged that awaiting written complaints is a primitive method for post facto assessment of performance of HGO's services because of its inadequacy to obtain feedback from all dissatisfied Hajjis, including those who may be over tolerant, illiterate or simply too weak and aged to agitate. Moreover, it is objected that this approach suffers from the defect of excluding competition that could improve the quality of service provided by HGOs apart from lowering its cost to the Hajjis. Finally, this system is challenged for rewarding persons previously selected as HGOs without reference to objective criteria by exercise of public authority on personal considerations to confer favour and patronage.
The report and other statements filed by the respondents and their advertisement inviting applications for HGOs show the qualifying criteria for HGOs to be simple, lax and facile leaving much in the selection process to subjective discretion. It is common ground that 75,000 Hajjis were sent through private HGOs during Hajj December 2006 and that the most basic HGO package offered had a minimum price tag of Rs. 1,30,000/- per Haji. Assuming this to be the price paid by all Hajjis, the Hajj pilgrimage extending from 15 to 41 days stay in Saudi Arabia involves the placement of public funds of Rs. 10 billion or so in the hands of private HGOs. To say that the control and use to such a huge amount of public funds is entrusted in the hands of persons selected without competition acknowledges a state of facts conductive to the misuse of subjective discretion. It is not surprising that in these circumstances allegations of all shades have been made by the petitioners about the HGOs selected for Hajj December, 2006 and presently for Hajj 2007.
It is not for this Court to assess the stringency or scope of the criteria of selection of HGOs that is established by the respondents. However, it does remain a fundamental concern of the law that executive discretion in the hands of public authorities is duly structured on the basis of lawful criteria having nexus with the object of the applicable law or policy; and that Government agency and license are warded on the basis of such criteria through a transparent process. To appreciate both the impact of land compliance with this principle, the Court can consider the nature, purpose and relevance of the criteria of selection adopted by a public authority. Reference may be made to Government of N.W.F.P. through Secretary and 3 others vs. Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others (1997 SCMR 1804).
"In this Treatise Discretionary Powers' which is
Legal Study of Official Discretion D.J. Galligan has acknowledged that
"the general principles that discretionary decisions should be made according to rational reasons means: (a) that there be findings to primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner". According to the celebrated author, the actions which do not meet these threshold requirements are arbitrary and may be considered a misuse of powers. In Amanullah Khan and others v. The Federal Government of
Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990
SC 1092) Shafiur Rahman, J. who was sitting in the Full Bench has very ably propounded by now well-known doctrine ofStructuring the discretion' in the following paragraph of the report at page 1147.
`Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."
"18. Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:
Provided that nothing in this Article shall prevent:--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
"Argument of learned counsel for respondents is that competent authority can regulate any trade or profession by a licencing system. There may be no cavil but this clause has to be read conjunctively with provision (b) of Article 18 of the Constitution, according to which an element of free competition to regulate a trade, commerce or industry has been introduced because if competition in the trade is discouraged, it would negate the provisions of Article 3 of the Constitution, which deals with the elimination of all forms of exploitation and if due to non-completion, franchise is granted on specified routes, it would tantamount to monopolize the trade/business of transport."
"Definition of "franchise" from the American Jurisprudence and Black's Law Dictionary has already been noted herein above, crux of which is that a special privilege granted to a particular person/party to do a specific business to the exclusion of all other person, dealing in the same business would not be reasonable. A perusal of proviso (b) of Article 18 of the Constitution indicates that regulation of the trade, commerce or industry is permissible in the interest of free competition therein. Meaning thereby that without free competition amongst traders, no trade commerce or industry can be regulated. To understand the concept of free competition, this clause may be read, keeping in view proviso (c) of Article 18 of the Constitution, according to which only Federal Government or Provincial Government or a Corporation controlled by such Government can carry on any trade, business, industry or service to the exclusion, complete or partial, of such other person, which would mean that under clause (c), a right has been given only to the Government to create monopoly and confer right of franchise to any of the functionaries mentioned therein for the purpose of carrying on a business. As far as private persons are concerned, they cannot be excluded from carrying on trade for the purpose of creating monopoly and granting franchise of a particular trade."
It is patent from the respondent's action that simplistic considerations were applied to renew existing HGOs and likewise to induct new HGOs for Hajj December 2006 without open competition. Thereafter these HGOs were granted an automatic renewal for Hajj 2007 which tantamounts to a Government policy that confers exclusive rights akin to monopolies upon such HGOs which runs foul of the constitutional principle noted above and otherwise lacks transparency and fairness that is derived from inter alia objective criteria specified to structure and regulate discretion.
In this regard the learned counsel for the respondents acknowledges that the over-riding priority of the Federal Government in the selection of HGOs can be and is the promotion of public interest. Quite simply this means the provision of quality service to the Hajjis at a competitive and fair price. Indeed the past performance of a private HGO applicant at Hajj is a valid criterion but it cannot be made the sole or ruling factor. There is nothing in the criteria allegedly applied by the respondents that may have nexus with the qualitative aspect of the service to be provided by private HGOs. No minimum standards of facilities or services to be provided by HGOs are prescribed by the respondents to safeguard the interest of the ordinary, illiterate and often elderly Hajjis. Correspondingly, there is no disclosure requirement in the criteria as to the price of the package offered by an HGO. Such disclosure would valuate the scope and quality of services to be provided by an HGO and would promote its accountability. Reliance on written complaints made by Hajjis in response to the public advertisement in the newspaper may be a tedious means of obtaining comment from returning Hajjis. There can certainly be other and possibly better means available to obtain the opinion of every Haji about his treatment by his private HGO. All these priorities would find satisfactory answers if the selection of HGOs is opened to competition. The applicants themselves shall design and offer packages that answer the priorities for safeguarding public interest that is surely the predominant concern of the respondents. Most likely, competition would drive down the price that the public has to pay for a standard package having specifications that may be prescribed by the respondents. Transparency and competition shall bring not only fairness but also efficiency to the private HGO system run by the respondents.
By the foregoing discussion, the present state of the record of the respondents seems unsatisfactory insofar as selection of HGOs for Hajj December 2006 was primarily subjective due to lax conditions of eligibility. Effectively the only objective test is the lack of complaints received from past users/Hajjis. Thus criterion favours past HGOs and circumstances new applicants for failing to test the capacity and capability of all applicants objectively. In order to bring fairness into the selection process and efficiency in its outcome, transparency and competition are its essential attributes as mandated by settled legal rules. It is, therefore, declared that insofar as superstructural rights are concerned, the selection of HGOs for Hajj December 2006 suffers from non-transparency, non-competition and therefore, illegality. Such selection is, accordingly, declared to be void and of no legal effect for the purposes of allocating to parties new rights and liabilities that are extraneous to the appointments for and obligations rendered at Hajj December 2006. It is further declared that the respondents are under a duty to select their HGOs through a process that is fair, transparent, based on free and open competition for appointment strictly on merit. As the authorizations given by the respondents for Hajj 2007 are provisional therefore no vested right of nominees can arise with respect thereto; in any event such provisional nominees can conveniently compete in a selection process of HGOs for Hajj 2007 that is framed by the respondents strictly in accordance with law. Appeal partly allowed.
(A.S.) Appeal allowed.
PLJ 2007 Lahore 1209
Present: Sh. Azmat Saeed, J.
FAYSAL BANK LIMITED--Plaintiff
versus
M/s. ZAMINDAR RICE MILLS and 21 others--Defendants
C.O.S. No. 29 of 2006, decided on 25.4.2007.
Contract Act, 1872 (IX of 1872)--
----S. 172--Pledge--Meanings--Bailment of goods as security for payment of debt or the performance of a promise. [P. 1214] A
Contract Act, 1872 (IX of 1872)--
----S. 148--Delivery of goods--Bailment--Definition--Bailment as the delivery of goods by one person to another for some purpose upon the contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. [P. 1214] B
Contract Act, 1872 (IX of 1872)--
----S. 160--Return of goods--Duty of pledgor--Duty for the return of the goods to the pledgor when the purpose for which the goods were delivered is accomplished (in case of pledge, repayment of debt).
[P. 1215] C
Contract Act, 1872 (IX of 1872)--
----S. 176--Right of pledgee--In case of default by pledgor in making payment of the debit secured by pledge, rights of pledge are enumerated in S. 176 of Contract Act, which include the right to sue for recovery of the debt due retaining the pledge goods as collateral security or he may sell the goods pledged after giving pledgor reasonable notice of such sale. [P. 1215] D
Contract Act, 1872 (IX of 1872)--
----Ss. 151 & 152--Liability of pledgee--Requirement--Duty of pledgee to take care of the goods pledged as a man of ordinary prudence would under similar circumstances take care of his own goods of the same bulk, quality and value as the goods pledged--No other duty in this behalf is cast upon the pledgee except as may be agreed upon between the parties by such contract. [P. 1218] E
Contract Act, 1872 (IX of 1872)--
----Ss. 151 & 152--Leave to defend--Suit for recovery--Financial institution--Partnership deed--Liability of pledgee--Obligations--Statutory and contractual--Financial facilities were secured by pledged goods of--Question of mortgage--Financial facilities were granted and availed of by the defendants--Said facilities were to be secured by mortgage of the said properties--Original title deeds of the said properties were admittedly with the plaintiff bank--Factum of mortgage was duly borne out from the revenue record--Court had no hesitation in holding that properties in dispute had been duly mortgaged with the plaintiff bank--Held: No defence had been set up with respect to the amount for which the plaintiff was entitled to an immediate interim decree--With reference to the equitable set off the pledged goods, the claim of the defendants did not appear to be well founded in fact, in law or in equity and the defence taken was at best illusionary--Consequently--It would be appropriate for the defendants to furnish the bank guarantee for the amount claimed as set off, if they seek leave to defend the suit--Interim decree was passed in favour of the plaintiff bank and against the defendants jointly and severally--Leave to defend was granted with reference to the balance amount of the claim subject to defendant is furnishing the bank guarantee within 30 days from the order. [P. 1220] H & I
Pledge--
----Loss of or damage to pledged goods--It has fulfilled his obligations both statutory and contractual which is an onerous burden and may require the recording of evidence. [P. 1241] F
Bank officials--
----Possibility of connivance or incompetence of bank officials employed by Rice Mills and National Bank cannot be ruled out. [P. 1220] G
Kh. Aamir Farooq, Advocate for Plaintiff.
Mr. Mushtaq Akhtar Mehdi, Advocate for Defendants.
Mian Qamar-uz-Zaman, Advocate for Applicant in C.M. 920-B of 2007.
Date of hearing: 2.4.2007.
Order
The plaintiff which is the banking company instituted a suit for recovery of Rs. 54,908228.97 alongwith cost of funds and cost of suit alleging in the plaint that plaintiff is a financial institution while Defendant No. 1 is a partnership concern constituted through partnership deed dated 2.4.2003 with Defendants 2 to 7 as its partners. It is the case of the plaintiff that in the year 2003 Defendant No. 1 through its partners applied for, was granted and availed of four separate finance facilities which were renewed subsequently in 2004. Details of facilities allegedly granted by plaintiff and availed of by Defendant No. 1 partnership through its partners viz. Defendants 2 to 7 are as follows:
A. Morabah pledge of Rs. 45 million.
B. Export Refinance II of Rs. 7.5 million.
C. Export Refinance I of Rs. 75 million.
D. Export Refinance (Post) Rs. 15 million
It is contended that said facilities were secured by pledge of basmati rice, hypothecation of stock of paddy, lien on export bills and personal guarantees of Defendants 2 to 7 and mortgage of property of Defendants 2 to 22. It is contended on behalf of plaintiff that Defendant No. 1 purportedly pledged 22040 bags of basmati rice weighing 100 Kg. each, 600 bags of paddy super purportedly containing 65 Kg. each and 900 bags of basmati rice, 386 purportedly weighing 100 Kg. each as was evidenced by letter of pledge executed by defendants in favour of plaintiff bank. Details of 16 separate properties allegedly mortgaged in favour of plaintiff bank by Defendants 2 to 22 are set out in para 4 of the plaint.
It is further alleged in the plaint that a part of pledged stock was stolen by Defendant No. 1 through its partners and an F.I.R. in this behalf has been got registered with the local police station. It was also the case of the plaintiff that on failure of the defendants to fulfill their obligation and repay the loan, the plaintiff bank sold 10507 bags out of the pledged stock of rice for an amount of Rs. 24,714,125/ and further also realized a sum of Rs. 4,62,5458/- through the sale of Naku and in this behalf a total sum of Rs. 25,176983/- was received and adjusted against the liability of the defendants. It is also the case of the plaintiff that at the time of the aforesaid sale, it was discovered that each of the bags contained 35% less rice, and also was not of the quality as vouched for by the defendants. Thus in this context, the plaintiff has raised a claim of Rs. 54,908228.97, break up whereof has been set out in para 5 of the plaint. Alongwith the plaint, statements of account as well as finance agreements, promissory notes, letters of pledge, guarantees, copies of the title deeds of the properties allegedly mortgaged in favour of the plaintiff bank and the copies of the revenue record evidencing such mortgage have been appended.
Pursuant to notice issued by this Court, the defendants entered appearance and filed application for leave to defend the suit, i.e. PLA 62-B of 2006. In the PLA defendants have admitted the grant of facilities as alleged by the plaintiff in its suit. However, it was contended that Defendant No. 1 had first obtained finance facilities from the plaintiff bank with effect from 6.9.2000 which were renewed from time to time. However, it was alleged that said facilities were not renewed after 31.9.2004. It was also admitted that defendants could not pay its outstanding liability which as per the case of the defendants fell due on 31.9.2004. It was also admitted that the plaintiff bank had sold part of the pledged stock as alleged in the plaint and the amount as alleged by the plaintiff was received from such sale and stands adjusted against the liability as is clear from the statement of accounts.
Defendants took up the plea that after the aforesaid sale a balance of 10780 bags of basmati 386 each weighing 100 Kg. ought to be in the custody of plaintiff bank, but in fact, said pledged goods are not available, as they have been taken away by the officers of the National Bank of Pakistan and an F.I.R. in this behalf had been lodged by the Muqadam entrusted with the pledged stock by the plaintiff bank itself.
It is also contended that mortgaged documents on the basis whereof, the present suit has been filed are blank, therefore, ineffective in law. Furthermore, in view of the alleged disputed renewal vide the finance agreement dated 27.11.2004, guarantors and mortgagors stand discharged.
It is also the case of the defendants as disclosed in the PLA that in fact only amount of Rs. 43,447,583.89 is due from the defendants and the value of the pledged goods which the plaintiff bank held and lost is Rs. 3,10,49000/- which amount is liable to be adjusted from the claim and consequently a net outstanding admittedly due from the defendants to the plaintiff bank is Rs. 1.23,98,584/-.
In the above perspective, defendants seek leave to defend the suit with respect to the balance amount. Mr. Mushtaq Mehdi Akhtar Advocate in support of the contentions raised on behalf of defendants says that it is the plaintiff who is liable for the loss of the pledged goods and the value thereof must necessarily be adjusted against the claims as raised by plaintiff bank. In support of his contentions relies on 2003 CLD 94 Mst. Talat Nasreen vs. UBL and others.
In rebuttal learned counsel for the plaintiff bank has vehemently contended that the facilities in question were in fact renewed on 27.11.2004. He has seriously disputed the quality and quantity of the rice as pledged with the plaintiff bank by contending hat defendants in fact had deceived the plaintiff bank by pledging goods of poor quality and each individual bag and not contain the quantity as represented, which fact was established when part of the pledged goods was sold and the amount realized therefrom adjusted against the liability of the defendants.
Learned counsel further adds that even otherwise there are other claimants with regard to the pledged goods i.e., the National Bank of Pakistan which claims charge thereupon affected by a third party. In these circumstances it is contended that the matter of the pledged goods can best be decided by the executing Court and the plaintiff bank is entitled to an immediate decree for the amount claimed in the plaint.
It is further contended that the mortgage has been legally effected in terms of Section 58(f) of the Transfer of Property Act, and no exception can be taken thereto, especially, as entries in this behalf have been duly recorded in the revenue record. Learned counsel adds that the execution of the documents is not disputed or denied by defendants nor any specific entry in the statement of accounts appended with the plaint has been questioned. To substantiate his contentions, learned counsel for the plaintiff relies on PLD 2001 Lahore 224 Habib Bank Ltd. vs. Kashif Steel Industry and others, 2002 CLD 868 Messrs Crystal Enterprises and 6 others vs. Platinum Commercial Bank Ltd. and 2 others, 2003 CLD 94 Mst. Talat Nasreen vs. United Bank Ltd. and others, 2003 CLD 702 Mian Aftab A. Sheikh and 2 others vs. Messrs Trust Leasing Corporation Ltd. and another, 2005 CLD 1689 Bashir Ahmed Mughal vs. S.M.E. Bank Ltd. through General Manager and 2 others, 2006 CLD 127 (Lahore) Messers Fybron Pvt. Ltd. through Managing Director and others v. National Bank of Pakistan through Zonal Chief, PLD 1996 (WP) Lahore 1 A.M. Burq and another vs. Central Exchange Bank Ltd. and others, PLD 1996 SC 684 Messrs Muhammad Siddique Muhammad Umar and another vs. The Australasia Bank Ltd. and 1999 CLC 671 (Lahore) Central Bank of India vs. Syed Muhammad Abdul Jalil Shah and others.
During the course of the proceedings of the suit, in order to explore the possibility of the sale of the allegedly pledged goods, with the consent of the parties, a local commission was appointed to make an inventory of the pledged goods and to make available samples thereof to the prospective bidders. In pursuance of this Court's order, the local commission visited the mill of Defendant No. 1 on 15.2.2007 and was informed by Defendants 6 to 13 that the pledged goods were in fact stored at the godown of Messers Faysal Rice Mills. Local Commission as is mentioned in his report went to Fysal Rice Mills, however, was not permitted to make inventory of the rice allegedly stored thereat by the representatives of Fysal Rice Mills as allegedly the keys of the godown were with the National Bank of Pakistan.
In the meanwhile, National Bank of Pakistan also joined the fray by filing an objection petition to the proposed sale of alleged pledged goods, and in this behalf C.M. No. 920-B-2007 was filed alleging therein that Messrs Asjad Traders had obtained a facility from the National Bank of Pakistan and secured the same through the (sic) and stored in the godown of Zimindar Rice Mills Defendant No. 1. And in this behalf letter of disclaimer was allegedly issued by Messrs Zimindar Rice Mills i.e. Defendant No. 1 in favour of the National Bank of Pakistan. Upon failure of Messrs Asjad Traders, the National Bank of Pakistan filed a suit for recovery before the Banking Court No. 2 at Gujranwala which was decreed, in which, the said pledged goods allegedly belonging to Messers Asjad Traders and stored at the premises of Zimindar Rice Mills Defendant No. 1 were attached. Subsequently, the Court auctioneers were also appointed. Plaintiff filed an objection petition on 24.10.2005 before the Banking Court No. 2, Gujranwala, claiming that the rice in question belonged to Zimindar Rice Mills and had been pledged in favour of plaintiff bank. The Banking Court No. 2 Gujranwala seized of the matter appointed a local commission for determination of the controversy regarding title of the goods in question. Said local commission submitted its report allegedly to the effect that the godown in which rice was stored at Zimindar Rice Mills had a separate lock and key which was in the possession of Messrs Asjad Traders and not Messrs Zimindar Rice Mills or the plaintiff bank.
It was contended by the National Bank of Pakistan that plaintiff bank had failed to disclose the aforesaid facts, that the rice allegedly pledged by Respondent No. 1 in favour of plaintiff bank was in fact the property of Messrs Asjad Traders and was under lien with the National Bank of Pakistan.
Counsels for the parties have been heard and the record appended perused. With reference to the defence to be offered by principal debtor (s) it has been noticed that grant and availing of the facilities in question has not been disputed. There is also no dispute inter se the plaintiff and defendants with regard to payments made by said defendants nor is it alleged that such payments are not reflected in the statements of accounts. In fact, for all intents and purposes, liability to the extent of Rs. 43,447,583.89 has been admitted in the PLA, and it has merely been claimed that value of the allegedly pledged goods be adjusted therefrom.
In terms of Section 172 of the Contract Act, a pledge is defined as the bailment of goods as security for payment of debt or the performance of a promise.
Section 148 of the Contract Act defines bailment as the delivery of goods by one person to another for some purpose upon the contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them.
From the perusal of the aforesaid two statutory provisions it is clear that pledge is a sub-specie of bailment and the purposes for the delivery of goods by way of bailment as envisaged by Section 148 of the Contract Act is the security for payment as has been mentioned in Section 172 of the Contract Act. Thus, the rights inter se the parties are primarily governed by Chapter 9 of the Contract Act. i.e., from Sections 148 to 181 thereof.
Section 60 of the Contract Act cast as duty for the return of the goods to the pledgor when the purpose for which the goods were delivered is accomplished (in case of pledge, repayment of the debt).
In case of default by pledgor in making payment of the debit secured by pledge, rights of the pledgee are enumerated in Section 176 of the Contract Act, which include the right to sue for recovery of the debt due retaining the pledged goods as collateral security or he may sell the goods pledged after giving pledgor reasonable notice of such sale.
In pith and substance, the case of the defendants is that the value of the rice i.e. the pledged goods in the facts and circumstances of the case are liable to be adjusted against the claim of the plaintiff bank, as allegedly the pledged goods are no longer available. While it is the case of the plaintiff that it is entitled to recover its debt in its entirely. Similar issue came up for consideration before a Full Bench of this Court which by means of its celebrated judgment reported as PLD 1996 (WP) Lahore 1, supra, observed as under:
"It is, therefore, clear that the right to proceed against the property is not merely accessory to the right to proceed against the debtor personally. Thus, a pledger cannot compel the pledgee to exercise the (sic) of discharging or satisfying the amount due to him. The pledger therefore is 1 competent in law to sue for his debt without selling the pledged property and adjusting its price towards the payment of the debt. He has, however, to keep the property pledged in tact so that he may be able to hand over the security to the pledge on payment of the debt by him."..... The principle in equity is that the creditor is not entitled to recover the amount of his secured debt when he cannot return the security. In Ellis E & Company's Trustees vs. Dixon Johnson (1925) AC 489 p. 49).
"Lord Cave had observed" I have always understood the rule in equity to be that if a creditor holding security sues for his debt, he is under an obligation on payment of the debt to hand over the security; and if having improperly made away with the security, he is unable to return it to his debtor, he cannot have judgment for the debt. If that rule had been strictly applied on the hearing of the action".
In the above context, the value of the pledged goods admittedly lost were adjusted against the claim of the plaintiff the said case.
In the case reported as PLD 1996 SC 684 Messers Muhammad Siddique Muhammad Umar and another vs. The Australasia Bank Ltd., it was observed as under:
"Even assuming that some goods were pledged with the bank as security for the advance, this does not, in our opinion, absolve the defendant from his liability to clear his dues. The Banker only acquires a lien over such pledged goods for the recovery of his dues and has a right after notice to the debtor to sell those goods to reimburse himself. But it is only where such a sale is actually held that the debtor can claim an adjustment of the sale proceeds of the goods against the amount claimed by the bank. There is no evidence in the present case that any goods were in fact sold by the bank or that the bank still retains any goods as such security."
"21. From the foregoing it is quite clear that the findings of the learned First Court on this point cannot be sustained. We are therefore of considered opinion that the appellant was competent to institute the suit without returning/rendering the amount of pledged goods to Respondent No. 1. However, Respondent No. 1 was entitled to claim set off with regard to his pledged stock with the bank."
"Where the pledged goods are wrongfully sold the pledger remedy is to sue pledgee for having converted pledged goods for his own use and claim recovery of its realizable value".
In the above case, value of the pledged goods (DSCs) wrongfully encashed were set off against claim of the plaintiff bank.
In the case reported as 1980 CLC 1170 National Bank of Pakistan vs. Messrs Bright Leather Works and 3 others, the value of the lost pledged goods were also adjusted against the claim of the plaintiff bank.
In the case reported as PLD 1982 Karachi 902 Messrs Taj Sea Food Industries and 2 others vs. Messers United Bank Ltd. and 2 others it was held as under:
"We are therefore of the view that the recourse to Section 176 could not be had by the respondent bank which had defaulted in the first instance and which was itself responsible for the distribution of the pledged goods."
"4. Learned counsel for the appellant next argued that the respondent-bank is under law required to account for the imported goods in its custody. This may be so. However, this is a matter, which can only arise in the execution proceedings, when the collateral security is realized in such proceedings thorough the same."
"7... As such, if there is any shortfall at the time of realization of such security, the defendant-company would be entitled to make a claim against the plaintiff-Bank subject to law and any defenses which might be available to the plaintiff-Bank against any such action. However, for the time being, the question does not arise."
In the case reported as 2006 CLD 127 (Lahore) Messrs Fybron Pvt. Ltd. through MD and 2 others vs. National Bank of Pakistan through Zonal Chief set aside the judgment and decree and remanded the case to the Banking Court with direction to immediately sell the pledged goods.
An examination of the statutory provision applicable and the judgment referred to hereinabove reveals that in case the pledgee sues for recovery of the original debt, he is required to keep the pledged goods in tact to be returned to be pledgor, who always his right to redeem the same. In the eventuality of sale after reasonable notice, the amount realized therefrom is to be adjusted against the debt date. The question of such adjustment only arises when and if the goods are actually sold.
However, where the pledged goods are lost, damaged or otherwise not available for delivery to the pledgor, in equity, the pledgee cannot seek recovery of the debt secured thereby and pledgor is entitled to an equitable set off by way of adjustment of the value of the lost pledged goods and can always sue the pledgee for damages for the loss suffered on account of the damaged of lost pledged goods.
To deprive the pledgor of such right of equitable set off and adjustment can result in grave hardship and inequity as the pledgee may obtain a decree for the debt due for an amount which may be equal to or less than the value of the goods pledged and in execution seek recovery thereof against the person and other properties of the pledger leaving him to seek his remedy at a later date. Thus, inequity is more likely in suits instituted under the (Recovery of Finances Ordinance 2001) where the pledgee financial institution may obtain a decree for recovery through dismissal of a leave application filed by the pledgor customer who is then left to seek his remedy through a long cause sue in the same Court as he would be required to prove his claim through evidence. Thus, ordinary where the pledged goods are lost or damaged, the value thereof must be set off and adjusted against the claim of the plaintiff financial institution.
However, merely because the pledged goods are lost or the pledgee is unable to return the same does not in every eventuality confer upon the pledger a right to an equitable set off nor is always a complete defence to a suit for recovery of the debt secured by said pledge.
Liability of the pledgee in such eventuality is circumscribed by Sections 151 and 152 of the Contract Act which reads as under:--
"Care to be taken by bailee. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances take of his own goods of the same bulk, quantity and value as the goods bailed.
Bailee when not liable for loss etc. of thing bailed. The bailee, in the absence of any special contract is not responsible for the loss, destruction or deterioration of the thing bailed if he has taken the amount of care of its described in Section 151."
Section 152 of the Contract Act requires the pledgee to take care of the good pledged as a man of ordinary prudence would under similar circumstances take care of his own goos of the same bulk, quality and value as the goods pledged. No other duty in this behalf is cast upon the pledgee except as may be agreed upon between the parties by such contract.
In the eventuality that a loss has been occasioned to the goods and the pledgee has taken care of the same as a man of ordinary prudence would look after his own property and no obligation under a contact if any has been violated, then perhaps the liability for such loss may not visit the pledgee nor would the pledger be entitled to any claim of set off against recovery of the debt secured. In short there must be dereliction of duty either statutory or contractual by the pledgee before he could be held liable under the law. In this behalf reference may be made to the following judgments. The Sindh High Court in the case reported as 1999 MLD 1694 Prudential Commercial Bank Ltd. vs. Hydari Ghee Industries Ltd. and 9 others held as follows:
"The seal put by the Customs Authorities, likewise, can always be removed upon payment of the customs dues. The underlying fact however remains that the pledged goods are available and can be returned unless proved otherwise. I must record here that except for oral assertion, nothing is shown to presume pilferage of loss of the subject palm oil. Thing brings me to the issue if the plaintiff is to be called upon in the circumstances of the case to prove that it had acted diligently and had taken as much care of the goods entrusted to it as a man of ordinary prudence would take of his own goods of similar quality and value. The law regulating the subject is contained in Sections 151 and 152 of the Contract Act which are as follows:-
151.......
152.......
The above referred provisions require the bailee to show that reasonable care was taken by it in the handling the goods".
"....the stocks were damaged but the damage was on account of the self heating and there was no responsibility of the plaintiff bank in respect of such loss".
However, in case of loss of or damage to the pledged goods, it is always for the pledgee to show that it has fulfilled his obligations both statutory and contractual which is an onerous burden and may require the recording of evidence.
Learned counsel for the defendants has attempted to set up the defence that the admitted liability be set off against the balance pledged goods which may not be available. Unfortunately, the facts of this case which are self evident on record, do not support the premises on the basis whereof, the learned counsel attempted to build his case. It is self evident from the record that there is a serious dispute as to whether the pledged goods were the property of Defendant No. 1 i.e. Zimindar Rice Mills or the property of Messrs Asjad Traders. There is an equally serious dispute as to whether the rice in question was in fact pledged with the plaintiff bank or is under lien with the National Bank of Pakistan. However, the title of the same rice is claimed by two separate entitles i.e., Defendant No. 1 and Messrs Asjad Traders. It is also equally evident that same rice is under charge of two separate banks i.e., the plaintiff bank and the National Bank of Pakistan. The possibility that deception bordering on fraud may have been exercised in this case is not remote. The possibility of connivance or incompetence of bank officials (employed by Defendant No. 1 and the National Bank of Pakistan) cannot be ruled out. Similarly, the quantity and quality of rice already pledged is also subject to serious doubt. A part of the pledged rice had admittedly been sold by the plaintiff bank was found to be short in weight by 35%. This fact has been clearly averred in the plaint (Para-5) and not specifically denied by the defendants in the corresponding paragraph of the PLA. Thus, as to what quantity of rice was in fact and in law pledged with the bank will require determination, through detailed evidence and only thereafter the said rice may or may not be available for sale to adjust the liability of the defendants. The equities of the case do not appear to be in favour of the defendants who are therefore disentitled from seeking the relief of equitable set off, particularly, in view of their own acts and omissions.
Adverting now to the question of mortgage suffice it to say that admittedly the financial facilities were granted and availed of by the defendants. It is evident from the record that said facilities were to be secured by mortgage of the said properties. Original title deeds of the said properties are admittedly with the plaintiff bank. The factum of the mortgage is duly borne out from the revenue record. In this view of the matters, this Court has no hesitation in holding that properties in dispute have been duly mortgaged with the plaintiff bank.
The upshot of the above discussion is that no defence whatsoever has been set up with respect to the amount of
Rs. 1,23,98,584/- for which the plaintiff is entitled to an immediate interim decree. With reference to the equitable set off the pledged goods, the claim in this behalf of the defendants does not appear to be well founded in fact, in law or in equity and the defence taken is at best illusionary. Consequently, it would be appropriate for the defendants to furnish the bank guarantee for the amount claimed as set off if they seek leave to defend the suit.
To come up for further proceedings on 25th of May, 2007.
(A.S.)
PLJ 2007 Peshawar 1
[Abbottabad Bench Abbottabad]
Present: Hamid Farooq Durrani, J.
MUZAFFAR KHAN and 5 others--Petitioners
versus
S. ABDUL KHALIQ and others--Respondents
C.R. No. 192 of 2004, decided on 30.10.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revision--Condonation of delay--Limitation--It was the date of judgment and decree of the Appellate Court which operates as a starter for period of limitation for filing of revision petition before High Court--Dates of application, preparation and issuance of the certified copies by the Appellate Court--Held: If the time was calculated from the date of obtaining copies of trial Court record, the revision petition in hand becomes barred by 11 days--Condonation of delay, as provided in law of limitation, would not attract in that matter--Revision dismissed.
[Pp. 2 & 3] A
Mr. M. Sultan Khan Jadoom, Advocate for Petitioners.
Mr. Masud-ur-Rehman Awan, Advocate for Respondents.
Date of hearing: 30.10.2006.
Judgment
The revision petition in hand was filed questioning the judgments and decrees passed by learned Civil Judge-IV Abbottabad on 14.10.2000 and Additional District Judge, Abbottabad on 22.7.2003, respectively. The learned trial Court partially decreed the suit of the plaintiffs/respondents for declaration of ownership and permanent injunction regarding the property mentioned in the heading of the plaint. While deciding two appeals arising out of the said judgment and decree, as filed by both the parties, the learned appellate Court also dismissed the appeal of petitioners through a single judgment.
In the revision petition in hand pre-admission notice was ordered to be given to the respondents on 14.2.2005. Learned counsel appearing for respondents on 15.5.2006 raised a preliminary objection regarding the petition in hand being barred by time. On the said date the learned counsel for the petitioners requested for time to prepare the brief in order to counter the said preliminary objection. Similarly, request for time was made at further two occasions. The matter was finally argued today, on behalf of both the parties, in respect of the preliminary objection.
The perusal of record reveals that the impugned judgment by the learned appellate Court was passed on 22.7.2003. The certified copies of the judgment and decree sheet, as attached with the petition, were applied for on 26.7.2003. The said copies were made available to the petitioners on 19.8.2003 whereas the petition in hand was filed on 3.1.2004. It could thus be seen that the petition was filed with an apparent delay of 45/46 days.
The learned counsel for the petitioners stated that the time consumed in obtaining the certified copies of the record pertaining to the file of learned trial Court may also be considered and the same shall be excluded while computing the period of limitation for filing the petition in hand. This submission of learned counsel would have no force as in the ordinary course the copies of the judgment and decree by the trial Court are obtained much before the decision of the appeal. Besides, in the circumstances of the case, it is the date of judgment and decree of the appellate Court which operates as a starter for period of limitation for filing of revision petition before this Court. The said period, therefore, is to be computed keeping in view the dates of application, preparation and issuance of the certified copies by the appellate Court. In the present case even if the time is calculated, as contended by the learned counsel for the petitioners, from the date of obtaining copies of trial Court record, the revision petition in hand becomes barred by 11 days.
The period of limitation has been provided in built by Section 115 CPC, therefore, the provisions regarding the condonation of delay, as provided in law of limitation, would not attract to the matter. Besides, the revision of concurrent findings recorded by two Courts also demands prompt action on the part of the party preferring the petition for the purpose. The petitioners, in the instant case, have manifestly remained indolent in approaching this Court in revisional jurisdiction.
The revision petition in hand, being barred by considerable time, is dismissed in limine.
(Fouzia Fazal) Petition dismissed
PLJ 2007 Peshawar 3
[Abbottabad Bench Abbottabad]
Present: Salim Khan, J.
GOVERNMENT OF N.W.F.P. and others--Appellants
versus
KHALID KHAN and others--Respondents
F.A.O. No. 6 of 2006, decided on 6.7.2006.
Arbitration Act, 1940 (X of 1940)--
----S. 34--Stay of suit on the basis of arbitration clause in the agreement--Defendants did not submit any application for stay of proceeding at the earliest inspite of the knowledge of suit rather they made requests for setting aside ex-parte order passed against them and then for adjournment to file their written statement--Order of trial Court refusing to stay proceedings, upheld--Appeal dismissed. [P. 6] A & B
PLD 1978 Q. 215; PLD 1981 SC 553; 1987 CLC 2205 & PLD 2006 SC 196, ref.
Mr. Q.A. Rasheed, DAG for Appellants.
Mr. M. Ayub Khan, Advocate for Respondents.
Date of hearing: 29.6.2006.
Judgment
This first appeal against Order No. 6 of 2006 has been filed by the Government of the N.W.F.P. and others against Khalid Khan and others. A suit was filed by Khalid Khan and six others against the Government of the N.W.F.P. the Conservator of Forest, Hazara Circle and three others for recovery of Rs. 11,39,250/- on the ground that the plaintiffs sustained losses due to non-sale of plants of the plaintiffs and misappropriation of the amount of the plaintiffs by the defendants. The defendants were served but they did not submit written statement, and after adjournments, filed petition for sending the matter to arbitrator in accordance with the agreement executed between the parties.
In fact the Defendants Nos. 4 and 5 were placed ex-parte on 23.10.2004, but an application for setting aside the ex-parte order was submitted by them on 22.11.2004. A reply to the same was submitted by the plaintiffs on 11.2.2005, but the ex-parte order was withdrawn on the said date. It was on 4.4.2005, the date of submission of written statement, that the defendants sought adjournment and further adjournment was requested for on 18.4.2005. Further adjournment was also granted to the defendants on 9.5.2005.
The main ground for dismissing the petition for sending the matter to the arbitrator was that the defendants had taken steps in proceedings and had not submitted application promptly. The adjournments requested for and granted to the defendants for submission of written statement were declared as steps taken by the defendants and it was held that the defendants had not taken up the issue of sending the matter to the arbitrator at the earliest and, hence, had relinquished/waived their rights for such request.
I heard the learned D.A.G. for appellant and the learned counsel for the respondents and perused the record. The learned D.A.G. contended that the Government had not wasted any time as preparations for submitting the point of view of the Government/defendants were being made and the written statement was not yet submitted when the defendants took up the issue of sending the matter to the Arbitrator in accordance with the terms of the agreement between the parties. The learned counsel for the respondents relied on PLD 1978 Quetta 215, PLD 1981 SC 553, 1987 CLC 205 and PLD 2006 SC 196 and contended that, in the light of the provisions of Section 34 of the Arbitration Act, 1940, the defendants had lost their right to make the request in question.
In the case mentioned in PLD 1978 Quetta 215, it was held that it was always a question of fact whether a particular act of the defendant amounted to a step in the proceedings and no hard and fast rule could be made in that behalf, but certain circumstances mentioned therein were relevant facts to determine the conduct of the defendant in that behalf. It was further held that the delay caused due to the lethargic attitude of the defendant or his negligence were some of the facts showing that the defendant did not want to get the aid of arbitration clause. It was also held that applications moved for adjournments or otherwise before submission of written statement were further steps in the proceedings.
In the case mentioned in PLD 1981 SC 553 it was held that the mere existence of a clause providing for arbitration did not stop a suit or other legal proceedings in Court. It only entitled a party to have the legal proceedings stayed. In order that the stay might be granted under the provisions of Section 34 of the Arbitration Act, 1940, certain conditions must be fulfilled and the party must take the objection and apply for stay of proceedings before taking any step, for example, the filing of written statement, that is, before he places his cards on the table. It was further held that the acts of the counsel for the appellant were not indicative of appellant's acquiescence to the method adopted by the respondent of having the dispute decided by the Court or that the appellant had displayed submission to the jurisdiction of the Court or had abdicated their claim to have the matter decided in the manner provided in the arbitration clause of the agreement. In that case, the application under Section 34 was granted. The proceedings in the suit were stayed with the direction that the dispute would be referred to arbitration in accordance with the arbitration agreement between the parties.
In case reported as 1987 CLC 2205, it was held that steps taken by applicant seeking stay of proceedings, clearly showing both acquiescence in jurisdiction of Court as well as participation in proceedings and promoting its progress, had disentitled applicant to seek stay of proceedings under Section 34. It was held that the expression "taking any other steps in the proceedings" was of general nature and had wide import. It would include in its meaning any action by the party which amounts to his participation in the proceedings or its further progress. It would also include any step by the party which would show that he has acquiesced in the jurisdiction of the Court.
The criteria mentioned in the judgment reported as PLD 2006 SC 196 clearly indicates that plea of referring matter to arbitrator should be raised promptly at the very first opportunity and delay on any pretext would estop party from seeking stay of proceedings in the suit, and frequent requests for adjournment for filing written statement would fall within the ambit of phrase "taking any other steps in the proceedings" us used in Section 34 of Arbitration Act, 1940. The application for stay of the proceedings was, therefore, dismissed.
In the instant case, after setting aside the ex-parte proceedings/order against the respondents, the respondents requested for adjournments for submission of written statement, which amounted to their submission to the jurisdiction of the Court and their acquiescence also. By making such requests for adjournment, the appellants (then defendants) gave the mind to the opposite party that they were ready to contest the suit before the learned trial Court and were preparing for submission of written statement. There was every opportunity for the defendants to submit application for stay of proceedings at the earliest before such requests and adjournments, as they had the knowledge of the suit and have been praying for setting aside the ex-parte order against them. The defendants could make up mind urgently and could submit an application under Section 34 of the Arbitration Act, 1940 at the earliest without requesting for adjournments for submission of written statement.
In these circumstances, I do not find any merit in the present appeal which is hereby dismissed, but the parties are left to bear their own costs.
(Javed Rasool) Appeal dismissed
PLJ 2007 Peshawar 6 (DB)
[Abbottabad Bench Abbottabad]
Present: Salim Khan and Hamid Farooq Durrani, JJ.
CHAN ZEB--Petitioner
versus
Mst. KHALIDA SHAHEEN and another--Respondents
W.P. No. 187 of 2006, decided on 23.6.2006.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 9 & 12-A--Constitution of Pakistan, 1973, Art. 199--Amended to effect--Maintainability--Suit for restitution of conjugal rights and vice versa--Facilitated the parties and get dispute decided at one and same forum--Plea of restitution of conjugal rights shall be made in suit for dissolution and marriage and plea of dissolution of marriage shall be brought forward against suit for restitution of conjugal right and separate suit shall not be filed--Validity--Law has never been intended to create hurdle, problems and difficulties for the spouses or for Courts dealing with their matter--Held: Only the cases of restitution of conjugal rights and dissolution of marriage were prescribed to be dealt with in same proceeding while the cases of dower, dowry maintenance, recovery of personal property of the wife and any other related matters covered by provisions of the West Pakistan Family Courts Act, may be dealt with independently--Petition was dismissed. [P. 7] A & B
Sardar Mumtaz Alam, Advocate for Petitioner.
Date of hearing: 23.6.2006.
Judgment
Salim Khan, J.--The grievance of the present petitioner is that a suit between the parties was conducted at Haripur and an ex-parte decree was passed in favour of the present petitioner for restitution of conjugal rights, but the respondent filed a Suit No. 73/F.C. for recovery of dower etc. on 28.1.2005, against the mandatory provisions of Section 9 read with Section 12-A of Family Court Act, 1964.
We heard the arguments of the learned counsel for the petitioner, who referred to the contents of Section 9 and contended that the plea of restitution of conjugal rights shall be made in a suit for dissolution of marriage, and the plea of dissolution of marriage shall be brought forward against the suit for restitution of conjugal rights, and separate suits shall not be filed in these circumstances. When confronted with the same contents of Section 9, the learned counsel for the petitioner was unable to show us anything in the said contents or in any other law to the effect that, even, suit for dower and maintenance allowance etc. could not be filed when a suit for restitution of conjugal rights had already been filed or decided.
In order to facilitate the parties and get their dispute decided at one and the same forum, without keeping the parties apart, or in different Courts, the law has been amended to the effect that let the plea for dissolution of marriage be decided alongwith the suit for restitution of conjugal rights and vice versa. The West Pakistan Family Courts Act, 1964, in its nature, specially with reference to its certain provisions, is a beneficial legislation, facilitating the parties to get justice as speedily as may be practicable. This law has never been intended to create hurdles, problems and difficulties for the spouses or for the Courts dealing with their matters. It was in this context that only the cases of restitution of conjugal rights and dissolution of marriage were prescribed to be dealt with in the same proceeding, while the cases of dower, dowry, maintenance, recovery of personal property of the wife and any other related matters covered by the provisions of the West Pakistan Family Courts Act, 1964 may be dealt with independently.
We do not find any merit in the present writ petition which is hereby dismissed in limine.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2007 Peshawar 7
[Abbottabad Bench Abbottabad]
Present: Hamid Farooq Durrani, J.
MASOOD ANWAR--Appellant
versus
SABIR KHAN--Respondent
RFA No. 140 of 2003 of 2000, decided on 27.6.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII--Negotiable Instruments Act (XXVI of 1881), S. 79--Suit for recovery--Appellant was entitled to a decree on the strength of promissory note, executed in his favour by the respondent--Plaintiff was also entitled to receive profit at the rate of 6% per annum on the amount mentioned in the promissory note from the date of the Note till actual realization of the same. [P. 12] C
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17 & 79--Competency of witnesses--Proof of execution of documents--Appellant was obliged to produce only two marginal witnesses to the deed which he had successfully done--Finding of trial Court to extent of disbelieving the witnesses on account of minor discrepancies and due to the relationship of witness with the appellant were not worthy of sustenance. [P. 11] A
(iii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 84--Comparison of signature--Trial Court had discretion to itself compare the signatures of respondent who had denied the execution of the Promissory Note--At least three such documents were available for comparison of the signatures of the respondent, which could have been resorted to by the Court--Those included disputed Promissory Note, a photo copy of national identity card of respondent and special power of attorney executed by the respondent in Dubai wherein the signatures were duly attested by official of Consulate General of Pakistan--Appeal accepted. [P. 11] B
Mr. Younis Khan Tanoli, Advocate for Appellant.
Malik Mehmood, Advocate for Respondent.
Date of hearing: 14.6.2006.
Judgment
The appeal in hand is filed against the judgment and decree by the learned District Judge, Abbottabad dated 4.9.2003 whereby the suit of plaintiff/appellant, filed under Order 37 of CPC involving recovery of
Rs. 45,00,000/- alongwith interest, was dismissed.
On denial of the respondent, the appellant was constrained to bring the forenoted suit which was filed on 31.7.2001. The respondent applied for leave to defend the suit on 26.10.2001. The requisite leave was allowed to the respondent on 27.2.2002 by the learned trial Court in pursuance whereof the respondent also filed written statement on the stated date. The following issues cropped up from the pleadings of the parties:--
Whether plaintiff has got a cause of action?
Whether plaintiff is estopped to sue?
Whether suit is not competent in its present form?
Whether plaint is liable to be rejected under Order VII, Rule 11 CPC?
Whether suit is bad for non-joinder and misjoinder of necessary parties?
Whether suit is within time?
Whether pronote is forged and not signed or executed by the defendant in favour of the plaintiff?
Whether Tanveer Ahmad son of Yunus Khan, attorney of the defendant has not been appointed in accordance with law, and he cannot defend the suit, if so, its effect?
Whether plaintiff is entitled to recover Rs. 45,00,000/- alongwith the interest from the defendant as prayed for?
Relief.
In support of his claim the appellant produced eight witnesses whereas the defendant relied on the evidence of two witnesses. After the close of evidence by both the parties the learned trial Court vide judgment dated 4.9.2003, dismissed the suit of the appellant, hence this appeal.
Arguments of learned counsel for the parties were heard and record of the case was gone through with their assistance.
While recording its findings the learned trial Court attended to Issues Nos. 1, 7 and 9 together. The learned Court held that it was the statement of DW-1 Nisar Khan, who stated that no cash amount was paid by the plaintiff to the defendant. The plaintiff had obtained his signatures on the disputed Promissory Note at the time when no other person was present. Similarly, in the opinion of the learned Court the plaintiff was not a truthful witness as regarding the factum of payment of income tax, there were contradictions between his statement and the statement of PW Malik Khurshid Anwar. It was also held that the disputed promissory note, being insufficiently stamped, was not admissible in evidence u/S. 5 of the Stamp Act. The learned Court concluded on the issues mentioned above that the plaintiff had no cause of action and he was, therefore, not entitled to the grant of decree for recovery of the suit amount. The learned trial Court also did not allow the request of the plaintiff for referring the signatures of respondent for comparison to an expert on the ground that as no payment of cash amount by appellant to respondent was proved, therefore, there was no need to have the signatures of respondent matched/verified by an expert. It is noted here that the appellant, through written application had requested the learned trial Court for summoning the respondent before the Court for the above noted purpose and while making such request the appellant also undertook to bear the cost of air fare for respondent from Dubai and back. It is also pertinent to note that the respondent did not appear before the learned trial Court personally but was defending his case through special attorney.
Adverting to the findings recorded by the learned trial Court in respect of statement of DW Nisar Khan and also the opinion of the learned Court to the effect that the said statement shattered the case of the plaintiff, we must look into the evidence produced by the plaintiff. The appellant produced Muhammad Riaz, Record Keeper of District Registration Office NADRA Abbottabad as PW-1 who produced the affidavit of respondent and exhibited photo-copy of the same. The said document bore the signatures of defendant besides that form `Alif' of defendant was also produced in Court, which also carried his signatures. This witness went un-cross-examined to the extent of signatures of respondent. Khalid Mahmood SI, PS Kohsar Islamabad was produced as PW-2 who exhibited a copy of FIR No. 117 dated 25.6.1998 registered against the respondent and others u/Ss. 420/468/471 PPC. Wasim Ahmed Khan Inspecting Officer State Bank of Pakistan, Islamabad appeared as PW-3, who produced the record pertaining to the account of appellant jointly held with Mst. Rahim Jan and inter-alia stated that an amount of Rs. 20,00,000/- was deposited therein on 21.03.1995. Besides the said two witnesses, Zia-ul-Anwar, Manager MCB was also brought before the Court as PW-4, who exhibited the record pertaining to the account in the name of the appellant. The witness also stated, inter-alia, that on 20.11.1995 an amount of Rs. 10,00,000/- was drawn by the respondent from the account of appellant through Cheque No. 04190365. The same was stated to have been issued by the appellant. The witness also produced the other record regarding the said account. The appellant recorded his statement as PW-5 wherein he stated the facts recorded in the plaint and also exhibited the promissory note in dispute as Ex. PW 5/1. The appellant, inter-alia, stated the fact that he had earlier advanced a sum of
Rs. 10,00,000/-, as loan, to the respondent which he duly returned. Due to the said transaction he developed more confidence in the respondent which resulted in the transaction in dispute. At the end, of his statement he prayed for a decree for recovery of the suit amount. In the cross-examination part the appellant clearly stated that before payment of Rs. 45,00,000/- to the respondent he arranged the amount from the market as he was an investor and was dealing in the property business at Islamabad. He also stated that an amount of Rs. 20,00,000/- was available with him, for lending to the respondent, which was in his possession on behalf of his mother. His mother was stated to have sold a plot in the year 1997 and the amount was received as a consideration for the said sale. The plaintiff/appellant stated that he had brought the cash amount of Rs. 45,00,000/- from Rawalpindi using his own car while he was accompanied by the witnesses namely Tanveer-ul-Haq and Khurshid. He further stated that after payment of the amount to the respondent he alongwith the witnesses and the respondent went to the Notary Public for the attestation and entry of the promissory note in dispute. Malik Muhammad Sarwar Advocate/Notary Public Abbottabad was produced as PW-8 who confirmed the attestation of the same and also admitted his signatures.
The marginal witnesses to the promissory note namely Malik Khurshid Anwar and Tanveer-ul-Haq were produced as PW-6 & PW-7 respectively, who were cross-examined on behalf of the respondent at length. The statements of the said two witnesses were almost similar which complemented the claim of the appellant. The witnesses were unanimous on the points of payment of an amount of Rs. 45,00,000/- by the appellant in favour of the respondent, the execution of promissory note, Ex. PW5/1, their signatures on the said instrument as marginal witnesses and also the attestation of the Promissory Note by the Notary Public. The exhaustive cross-examination on behalf of the respondent, to which the two witnesses were subjected, could not bring forth any material discrepancy or contradiction inter-se.
We, therefore, hold that the plaintiff/appellant was able to prove the execution of the promissory note in dispute and also the fact of money changing hands between the appellant and the respondent. Under Articles 17 & 79 of Qanun-e-Shahadat Order the plaintiff/appellant was obliged to produce only two marginal witnesses to the deed which he has successfully done. The findings of learned trial Court to the extent of disbelieving the witnesses on account of minor discrepancies and also due to the relationship of witness Malik Khurshid Anwar with the appellant, are not worthy of sustenance.
Under Article 84 of the Qanun-e-Shahadat Order the learned trial Court had the discretion to itself compare the signatures of respondent who had denied the execution of the Promissory Note. At least three such documents were available before the learned trial Court, for comparison of the signatures of the respondent, which could have been resorted to by the learned Court. Those included the disputed Promissory Note, a photo-copy of national identity card held by the respondent and the special power of attorney executed by the respondent in Dubai wherein the signatures of respondent were duly attested by the concerned official of Consulate General of Pakistan. The learned trial Court had, however, not attended to the request of the plaintiff/appellant for the requisite comparison or sending the signatures to the expert without assigning any reason for the same. Only a passing remark regarding non-payment of money by the appellant to the respondent has been made a reason for the said denial.
The learned trial Court has also declared the promissory note in dispute, as being inadmissible in evidence, on the ground that it was not sufficiently stamped. In this regard the learned Court observed that stamp of minimum amount of Rs. 50/- was required to be affixed on the promissory note, which was not done. Dealing with this aspect of the matter, we observe that the payment of stamp duty was not a question between the parties to the suit rather the same was in between the State/Government and the party who was to use deficiently stamp document. Reliance in this regard is placed on judgments reported as PLD 1978 SC 279 & PLD 2003 Lahore 173. The learned trial Court could have ordered the plaintiff/ appellant for making up the deficiency at any time. At this juncture we order the appellant to make up the deficiency, if any, in the stamp duty affixed on the D.P. Note within one month. The same, if not paid, shall be recoverable from the appellant as arrears of land revenue.
Issues Nos. 2, 5 and 6 were decided against the respondent. Being based on preliminary legal objections and properly attended by the trial Court, the findings on the said issues do not require interference by this Court. Similarly, the findings on Issues Nos. 3, 4 and 8 are also held to have been decided in accordance with law.
For what has been discussed above, we hold that the plaintiff/appellant was entitled to a decree for recovery of Rs. 45,00,000/, on the strength of promissory note dated 26.08.1998, executed in his favour by the respondent on the said date. Keeping in view the provisions of Section 79 of the Negotiable Instruments Act, 1881, we further hold that the appellant/plaintiff is also entitled to receive profit/interest @ 6 per centum per annum on the amount mentioned in the Promissory Note i.e.
Rs. 45,00,000/- from the date of the Note till actual realization of the same.
(Fouzia Fazal) Appeal accepted
PLJ 2007 Peshawar 13 (DB)
Present: Shah Jehan Khan & Ijaz-ul-Hassan, JJ.
M/s. GUL COOKING OIL AND VEGETABLE GHEE (PVT.) LTD. through its CHIEF EXECUTIVE--Petitioner
versus
PAKISTAN through CHAIRMAN REVENUE DIVISION CENTRAL BOARD OF REVENUE (CUSTOMS WING), ISLAMABAD and 6 others--Respondents
W.P. No. 841 of 2004, decided on 19.10.2006.
(i) Administration of Justice--
----A thing which cannot be done directly, cannot be allowed indirectly.
[P. 18] B
(ii) Constitution of Pakistan, 1973--
----Art. 247--Government of India Act, 1935, S. 311--Tribal areas--Held: Tribal Areas were simply those territories along borders of India which neither formed part of British Dominions or possession nor fell within the powers of any other State whether Foreign or Indian. [P. 19] C
(iii) Constitution of Pakistan, 1973--
----Art. 247--Government of India Act, 1935, S. 95-A--Application of Laws to Tribal Areas--Held: Before creation of Pakistan, the status of Tribal Areas were that of a foreign country within the meaning of FJA 1890--Since a fundamental change was brought in the status of Tribal Areas, by making it an integral part of Pakistan, specific provision had to be made with regard to its administration, the continuity of pre-partition laws and the continuity of Authority in these areas, a Constitutional arrangement was made to the effect that laws of Pakistan would not apply to the Tribal Areas unless specifically issued by the Governor General. [P. 24] D
(iv) Constitution of Pakistan, 1973--
----Arts. 247, 89 & 128--Government of India Act, 1935 Ss. 92 (i) & 95-A--Extension of laws--Power of President and Governor--Held: President or Governor had been empowered to make applicable to the law enacted by Parliament for the settled areas of the country and for extending an act of Parliament or Ordinance promulgated under Arts. 89 or 128 to the Tribal Areas--Further held: Such powers of President under Art. 247 were not to be exercised as a prerogative power if they were not supported by the Constitution. [P. 25] E & F
(v) Constitution of Pakistan 1973--
----Art. 247(3)--Application of Laws in Tribal Areas--Powers of President--Held: It is the President and not the Parliament to decide which Act is to be applied in the Tribal Areas and can also make modifications or exceptions in the Act of Parliament. [P. 26] H
(vi) Constitution of Pakistan, 1973--
----Art. 247(7)--Legislative powers of Parliament in Tribal Areas--Held: Parliament has limited power to legislate for the Tribal Areas in respect of jurisdiction of Supreme Court or High Court--Any Act of Parliament in this regard shall not require the scrutiny and approval of President for its application to the Tribal Areas. [P. 26] I
(vii) Constitution of Pakistan, 1973--
----Art. 247--Application of law to Tribal Areas--Held: If an Amending Act is mechanically applied to Tribal Areas on the strength of extension of the Principal Statute, it shall amount usurpation of Constitutional powers of the President. [P. 26] J
(viii) Constitution of Pakistan, 1973--
----Art. 247--Repeal of laws in Tribal Areas--Held: Once an Act of Parliament is extended to the Tribal Areas, it can only be repealed by extending the Repealing Act to the Tribal Areas only and in no other way. [P. 27] K
(ix) Constitution of Pakistan, 1973--
----Arts. 89, 246 & 247--Issuance of Ordinance in Tribal Areas--Held: Under Art. 89, President can pass an Ordinance which shall have the same force and effect as an Act of Parliament for a specified period when the Parliament is not in the session and circumstances so demand--He has also either to enforce the Act of Parliament wholly or partly with or without modifications or exceptions in the Tribal Areas--President can also make law in the shape of regulation for peace and good government in the Tribal Areas. [P. 28] L
(x) Constitution of Pakistan, 1973--
----Art. 247--Extension of law to Tribal Areas--Held: Once the President after applying his mind and keeping in view the best interest of people and the State decide to extend an Act of Parliament to the Tribal Areas, it cannot be withdrawn/repealed through a subsequent Act of Parliament named as Amendment in the Principal Statute already extended to Tribal Areas. [P. 28] M
(xi) Constitution of Pakistan, 1973--
----Art. 247--Extension of laws to Tribal Areas--Powers of President--Held--President has twofold powers regarding Tribal Areas i.e the power to apply Act of Parliament or an Ordinance and the power to make regulation for peace and good government of the Tribal Areas--These powers cannot be delegated to the parliament or provincial Assemblies.
[P. 29] N
(xii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Code of Criminal Procedure (Second Amendment) Ordinance (LXXI of 1979)--Constitution of Pakistan 1973, Art. 247--Applicability of amendment to PATA--Held: Since Ordinance LXXI of 1979, an Act of Parliament has not been applied by the Governor of NWFP to PATA with approval of the President, so the said affecting amendment in S. 497(1) shall not apply to the PATA of the Province and the unamended Code of Criminal Procedure still holds the field. [P. 35] O
(xiii) Customs Act, 1969 (IV of 1969)--
----S. 18(1)(2)--Constitution of Pakistan, 1973--Art. 247--Demand of customs and regulatory duty in Tribal Areas--Held: Respondents cannot demand the excessive customs or regulatory duty imposed through Amendment Acts which are not enforced in Tribal Areas--Such demands made by them were declared as unconstitutional. [P. 35] P
1995 SCMR 529; 1984 P.Cr.L.J. 411; PLD 1988 Pesh. 11 & PLD 1995 Pesh. 14, ref.
(xiv) Interpretation of Statutes--
----Court is empowered to look at the intent and purpose behind the legislative device. [P. 18] A
PLD 1975 SC 397, 433; 1993 SCMR 1905, 1923 rel.
(xv) Interpretation of Statutes--
----If Principal Act is amended by an Amending Act of the Parliament, it shall be presumed that the former changed/altered. [P. 26] G
Mr. M. Sardar Khan, Advocate for Petitioner.
Mr. Salah Uddin Khan, DAG, Abdul Latif Yousuf Zai, for the Respondents.
Date of hearing: 19.10.2006.
Judgment
Shah Jehan Khan, J.--Writ Petitions Nos. 841, 869,, 936, 1134, 1168, 1169, 1180, 1191, 1195, 1208, 1212, 1239, 1246, 1247, 1260, 1283 of 2004, 5, 6, 157, 158 of 2005, 222, 223, 50, 51, 844, 854, 1845 of 2006, the same question is involved, therefore, disposed of through this common judgment.
"A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable but in the sense that it is manifestly arbitrary".
"Whether the petitioners are legally required to pay custom duty and regulatory duty calculated on the basis of Amendment Acts of the Parliament in the Principal Statute i.e. Customs Act, 1969 despite the admitted fact that the Amendment Acts of the Parliament or Provincial Assembly were not extended to the Tribal Areas in terms of Article 247 (3) of the Constitution 1973?"
Since the attendance of senior counsel could not be procured despite numerous adjournments and despite Supreme Court of Pakistan direction through order dated 23.8.2004 to decide these cases within a month, parties were directed to produce written arguments for the disposal and these cases pending since 2004 and require early disposal. In compliance of Court direction, senior counsel for the petitioner Mr. Khalid Anwar, Mr. M. Sardar Khan and Mr. Isaac Ali Qazi, Advocates, submitted their written arguments, copies whereof were also delivered to DAG for onwards sending to learned Attorney General of Pakistan but written arguments were not filed by the respondents after lapse of more than two weeks (the time given as requested), although it was directed on the previous date that non-filing of written arguments shall case a presumption that there is nothing for the respondents to offer in rebuttal. In case circumstances, there is no other way but to dispose of those cases on the available record.
Mr. Khalid Anwar, Senior Advocate, Supreme Court of Pakistan states in his written arguments that the Government has made successive attempts to demand sales tax on the RBD Palm Oil etc. raw material for Banaspati ghee and oil imported at Sea Ports Karachi. The raw, material for consumption in Provincially Administered Tribal Areas and Federally Administered Tribal Areas were tried to be subjected to Sales Tax Act, 1990 and the units established in the said Tribal Areas (T.As) were forced to be registered under the said Act which action was questioned in W.P. No. 1180/2004 wherein it was held that the unit established in the tribal areas are not subjected to Sales Tax and their registration under the said Act is not required because the Sales Tax Act has not been applied to T.As in terms of Article 247. In order to achieve the aforesaid object, the Government malafidely suspended the bonded warehouse licences of those companies established in the T.As through order dated 13.4.2002 which action was again question in a contempt of Court proceedings, resulting in withdrawal of the suspension order but the same day another attempt was made and it was notified that bonded warehouses could only be established in areas where Customs Act, 1969, Central Excise Act and Sales Tax Act 1990 were all applicable and thus the warehouses established in the tribal areas were deleted from SRO 111/1983. This action was again challenged in this Court and vide judgment dated 25.2.2003, the action of withdrawing the warehouse facilities from the Tribal Area due to non-extension of Sales Tax Act was declared arbitrary, unjust and mala fide, thus strike it down and the SRO whereunder bonded warehouses were established in the limits of FATA and PATA was restored. There was another attempt through holding that in order to provide level playing filed, central excise duty would be recovered in Value Added Tax (VAT) Mode from FATA Ghee Units. This attempt was made through Finance Act 2004 whereunder SRO 503(I)/2004 dated 12.6.2004 and SRO 502(I)/2004 dated 12.6.2004 were issued through amendment in SRO 333(I)/2002 dated 15.6.2002 (whereunder there was general exemption of excise duty on the import except those specified in modification).
For the interpretation, it is well settled that the Court is empowered to look at the intent and purpose behind the legislative device (PLD 1975 SC 397-433), 1993 SCMR 1905-1923). The federation has attempted through SRO 503 and 502 of 2004 noted above, to levy for all intent and purposes, sales tax on units established in T.As although Sales Tax Act has no application in the T.As. A thing which cannot be done directly can't be allowed indirectly. Thus the aforesaid SROs are ultra vires and against the command and spirit of Article 247 of the Constitution.
It was held by august Supreme Court of Pakistan that the excise duty even if given a broad meaning no dot cover sales tax. Transmission of excise duty into sales tax is unwarranted under the law (1993 SCMR 1342-1346).
The learned counsel has dig out the historical background of Tribal Areas and Article 247 of the Constitution 1973. They have elaborately discussed the following :
Government of India Act 1935. (G.O.I.A)
India Independence Act, 1947 (I.I.A)
Central Excise Act/Central Excise & Salt Act 1944.
Notification No. 137-F dated 20.6.1945
Independence Day 15.8.1945.
There are two possibilities either amendment in the principal statute would become enforceable in the tribal area only if the amendment is also extended to the tribal areas to which the principal statute was already extended (the contention of petitioners). The other possibility would be that when the principal statute is extended to tribal area all subsequent amendments should automatically apply to the tribal area (the contention of respondents). In the second possibility either amendment would become applicable on its own force or it would become applicable only after notifying the same in terms of Article 247(3) of the Constitution. At the time of extension of the principal statute if also provide for future amendments would require consideration, as to whether such direction regarding future enactment in the shape of amendment in the Principal Statute is or is not permissible under Article 247?
For analysis of the status of Tribal Areas (T.As), the learned counsels have thrashed the history of T.As and submitted that under the Government of India Act (GOIA) 1935, Section 311 British India was defined as all territories for the time being comprised within what were then known as Governors' Provinces and the Chief Commissioners' Provinces. "India" was distinctly defined as British India together with the territories of Indian States and the T.As, thus the concept of both "British India" and "India" are quite different. T.As were not included in the "British India" and it was defined in GOIA as follows:--
"Tribal Area means the areas along the Frontier of India or in Balochistan which are not part of British India or of Burma or of any Indian State or of any Foreign States".
T.As areas were simply those territories along Borders of India which neither formed part of British Dominions or possession nor fell within the powers of any other State whether Foreign or Indian. Then the question arises that how the British Government came to exercise control and jurisdiction over the T.As? It seems that in the 19th Century. British Empire continued to grow certain areas and territories came within the control and jurisdiction of the British Empire. This Control was acquired through various means such as treaty, capitulation, grant, usage or sufferance etc.
The British Parliament had from time to time legislated upon matters relating to such territories and areas. In 1890 Foreign Jurisdiction Act (FJA) was enacted. In its preamble it was stated that the "British Sovereign" had by means of treaty, capitulation, grant, usage, sufferance and other similar means acquired jurisdiction within various foreign countries and it was expedient to consolidate the law in respect thereof relating to the exercise of jurisdiction by the "British Sovereign". The "Sovereign Country" as defined in Section 6 of the FJA is a Country or place out of her Majesty Dominions. Under Section 1 it was lawful for "Her Majesty the Queen" to hold exercise and enjoy any jurisdiction which Her Majesty have within a Foreign Country in the same manner as Her Majesty acquired that jurisdiction by the session or concur of a territory. Through FJA, the Crown by virtue of its prerogative had full powers to establish such executive, legislative and judicial arrangements as the Crown may deem fit and generally to act both executively and legislatively.
Pursuant to FJA, an Order in Council was made in 1902 respecting relevant Indian Territories known as Indian (Foreign Jurisdiction) Order-in-Council 1902. This order dealt with the manner in which the powers and jurisdiction of British Crown were to be exercised in the T.As.
With the enactment of GOIA 1935 an alteration was made regarding the manner and exercise of jurisdiction and power in the T.As. Section 313 (1) of GOIA 1935 provides that such executive authority as was mentioned in the said section to be exercised by the Governor General in Council on behalf of "British Crown". Sub-section 2(c) provide that the Executive Authority so conferred upon the Governor-General in Council shall include the exercise of such rights, authority and jurisdiction as exercisable by "His Majesty, the British Crown" through any Treaty, Grant, Usage, Sufferance, Capitulation or otherwise in relation to the T.As. Governor General Order-in Council 1902 was amended through Order of 1937 whereunder Paragraph 3 it was provided that the 1902 Order would cease to apply and have effect with respect to the Tribal Areas in India. A change was brought about through Section 313 of the GOIA in relation to the exercise of powers and jurisdiction in respect of Tribal Areas and now these powers were to be exercised by the Governor-General in Council.
The Governor-General in Council issued Notification No. 137-F dated 20.6.1945. Central Excise and Salt Act 1944 was made applicable to the T.As. Not because the said areas were part of British India but in exercise of the Crown powers relating to Tribal Areas. Thus it was expressly provided that all references to British India in the Act ibid were to be construed as Tribal Areas.
The powers of Governor General in Council under the GOIA namely Sections 91 and 92 of GOIA relates to Excluded Areas and Partially Excluded Areas (subsequently named as special areas, Tribal Areas and now FATA and PATA). The British Crown was made competent to pass an order in council declaring any part of the province to be Excluded or Partially Excluded Areas. Section 92 reads as under:--
"92(1) The Executive Authority of a Province extends to "Excluded" and "Partially Excluded" Areas therein, but notwithstanding anything in this Act, no Act, of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.
(2) The Governor may make regulations for the peace and good governance of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of Provincially Legislature, or any existing India law, which is for the time being applicable to the area in question.
Regulations made under this sub-section shall be submitted forthwith to the Governor General and until assented to by him in his discretion shall have no effect and the provisions of this part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor General as they apply in relation to Acts of a Provincial Legislature assented to by him.
(3) The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his functions in his discretion".
The "Excluded Areas" which were part of a Province of British India and all existing laws shall remain in force even after its notifying as Excluded Area but for the laws made in the future, the Governor of the Province was to extend the same under Section 92(1) to that Excluded Area and until such an order is issued the subsequent Acts would have no implementation in the Excluded Area. Under sub-section (2), Governor was made empowered to repeal or amend any law applicable in the Excluded Area either already extended being a part of the Province or extended to it by Governor General-in-Council after its declaration as Excluded Area.
Upper Tawanal in the Hazara District of the NWFP was declared Excluded Area by Order in Council 1936 dated 3.3.1936 under Section 91 of GOIA. On the date of declaration, all laws of the British India as in force in NWFP were applicable in the Upper Tanawal being part of the Province (not Excluded or Partially Excluded) but thereafter Section 92 took effect, no Act of Parliament or Provincial Assembly applied thereto unless the Governor of the Province extended the same through an Order in Council. A number of Acts including amendments acts were extended from time to time in terms of Section 92(1) of the GOIA. Through Notification dated 20.1.1941, Indian Finance Act 1940 and Currency Ordinance 1940 (both enacted and promulgated after 3.3.1936) were applied to Upper Tanawal. The subsequent three amendment Acts in the Indian Coinage Act 1906 and three Acts amending the Reserve Bank of India Act 1934 (all existing laws on 3.3.1936 and applied to Upper Tanawal before its declaration as Excluded Area) were made applicable to Upper Tanawal through Notification. Meaning thereby that amending acts were not regarded as automatically applicable to Upper Tanawal because the Principal Acts were already in force in that area being part of the Province and before its declaration as Excluded Area. The laws were extended with such amendment and modifications as applicable in British India. Penalties (Enhancement) Ordinance, 1942 promulgated on 2.1.1942 amended through Penalties (Enhancement) Amendment Ordinance 1942 promulgated on 29.1.1942 was extended to Upper Tanawal on 26.2.1942 and there was specifically mentioned above the Amending Ordinance. For the purpose of Section 92 mere reference to the principal law was not sufficient and the amendment made therein before its extension to Upper Tanawal was specifically mentioned. Thus it is clear that while extending a law, it was required to specifically refer to the amendments already made or at least some language to that effect was to be used.
On 15.8.1947 two independent dominions of Pakistan and India were set up through Indian Independent Act, 1947 (I.I.A) and the territories of British India were divided in the two dominions. The dominions of Pakistan comprised of five Provinces i.e. East Bengal, West Punjab, Sindh, Baluchistan and the NWFP but the Tribal Area being not a part of any of the Province was not included in the dominion of Pakistan. Under Section 7 of the I.I.A it was made clear that any Treaty or Agreement in force between the British Crown and any person having authority in the Tribal Areas and all obligations of the powers, rights, authority or jurisdiction of the British Crown in respect of Tribal Area by reason of any Treaty, Grant, Usage, Sufferance, Capitulation or otherwise lapsed completely with certain exceptions mentioned in the proviso to clause (c) of sub-section (1). The Crown prerogative in respect of the Tribal Areas under Section 313 (2) (c) of the GOIA and Section 8(1) (c) were omitted from GOIA through GGO 22 dated 14.8.1947. The said GGO also omitted Section 123 empowering the Governor General to direct Governor of any province to discharge any functions in relation to the Tribal Areas as specified by the Governor General as his agent. Creating the two Dominions, the British Empire who had de-facto administration, legislative and judicial powers was not going to transfer the same to the new dominions because the control in the T.As was not acquired through conquest or cessation but through treaty rights or capitulation or grant or usage or sufferance etc and it was left opened for the newly created dominions to enter into such arrangements with the Tribal Areas. Thus on 9.10.1950, the Government of India (Seventh Amendment) Act 1950 was enacted with retrospective effect from 15.8.47 whereby Section 123 of the GOIA whereunder the Governor General of Pakistan could direct the Governor of a Province to discharge as his agent functions in relation to the Tribal Areas as specified by the Governor General was restored on the statute book right from the independence day) keeping in view the retrospective effect of Amendment Act 1950) Government of India has de-facto position while the dejure position of the tribal area had been a foreign country within the meaning of FJA 1890 and since the British Crown was withdrawing from the said foreign country, all legal powers and jurisdiction vested in the British Crown were held to be ceased to exist and lapsed. Thereafter Government of Pakistan took a number of steps to regularize its dejure position in the tribal areas.
Under Section 9 of the I.I.A. Governor General was made empowered to make such provisions deemed necessary or expedient to give full effect to the partition of British India between the India and Pakistan. These powers were exercisable upto 31.3.1948 which was extended by one year in Pakistan and on the last date i.e. 31.3.1949 the Governor General issued GGO 5 and 6. Under Section 5 of the GOIA (adapted by Pakistan) its dominion was a Federation of five Provinces. Through GGO 6 of 1949 clause (bb) was added to Section 5 enabling Governor General to add any other area in the Federation and the Governor General issued notification on 27.6.1950 (gazetted on 6.7.1950) whereby the tribal areas were formally included in and as integral part of the dominion of Pakistan with retrospective effect from the independence day i.e. 15.8.1947 and in this way Government of Pakistan got dejure control over the tribal areas as integral part of Pakistan. Making the tribal area as integral part of the Pakistan, there arose three issues, 1. regarding administration of the tribal areas 2. applicability of laws of Pakistan in those areas and 3. continuity of authority. There was no provision in the GOIA with regard to the administration of tribal area so under GGO 5 titled as "Extra Provincial Jurisdiction Order 1949", the administration powers was extended to all territories of Pakistan which were not included in any province or the federal capital and a frame work was provided for its governing and administration notified through gazette on 6.7.1950. In this Administration powers were acquired in the T.As. So far as second issue is concerned, laws can be divided in two categories, 1. the existing law means all those laws which were in force in British India were made applicable to dominion of Pakistan. The second category is of those laws made by legislature after Independence Day. Both the categories applied to the whole of Pakistan without exception. The existing British India Laws were not applicable in the tribal area but applied through piecemeal by the Governor General in Council in exercise of Crown prerogative. Government of Pakistan considered it undesirable that the laws in force in Pakistan should generally become applicable to the tribal area and thus Section 95-A was inserted in the GOIA which reads as under:--
"95A. (1) The executive authority of the Federation extends to the areas included in the Federation under clause (bb) of Section 5, but notwithstanding anything in this Act, no existing law, no Act of the Federal Legislature and no notification, rule or other instrument whether made before or after the fifteenth day of August 1947 shall apply to any such area unless the Governor General by public notification so directs, and the Governor General in giving such a direction with respect to any such law, Act, notification, rule or other instrument my direct that the law, Act notification or other instrument shall in its application to that area or to any part thereof have effect subject to such exceptions or modifications as he think fit.
(2) Any direction given under this section may be given so as to be retrospective to any day not earlier than the fifteenth day of August 1947 and may continue in force on and after that day and subject as aforesaid any such law, notification, rule or other instrument in force immediately before that day".
The aforesaid provision is modeled on Section 92 of the GOIA reproduced earlier and the same was kept alive in the shape of clause 3 of Article 247 of the Constitution 1973. Regarding third issue, since after the withdrawal of British sovereignty of India, the Crown prerogative in respect of Tribal Area had lapsed and the measures taken by Governor General under Section 313 of the GOIA had ceased to exist, the Government of Pakistan to overcome the legal flaw regarding administration of tribal area, specific provision in terms of Section 95-A was inserted in GOIA whereunder sub-section (2) it was provided that any direction by the Governor General under sub-section (1) could be made retrospective from the independence day i.e. 15.8.1947 and shall continue in force. All laws, notifications, rules or other instruments already enforced in the T.As shall continue.
By means of retrospective legislation after independence, the Tribal Areas become integral part of the dominion of Pakistan w.e.f. 15.8.1947. Before the creation of Pakistan, technically speaking the status of T.As were that of a foreign country within the meaning of FJA 1890. Since a fundamental change was brought in the status of T.As by making it integral part of the Pakistan, specific provision had to be made with regard to its administration, the continuity of pre-paration laws and the continuity of Authority in the tribal areas, a constitutional arrangement was made to the effect that laws of Pakistan would not apply to the tribal areas unless specifically issued by the Governor General.
Through West Pakistan Act 1955, the four Provinces i.e. Punjab, Sindh, Baluchistan and NWFP were merged into newly created of West Pakistan and the tribal areas were also incorporated in it as special area. The position that applied to tribal areas under Section 95-A of the GOIA was specifically provided under the Act ibid, which provided that no Federal or Provincial Act would apply to special area unless a specific direction was made by the Government with the previous approval of the Governor General with certain exceptions or modifications deemed appropriate.
In the Constitution, 1956 through Article 104 it was again provided that no Federal or Provincial Act shall apply to any special law unless a specific direction to this effect is made by the competent authority. The same mechanism was kept alive in the 1962 Constitution under Article 223. Through West Pakistan Dissolution Order 1970, newly created Province of West Pakistan was dissolved and the tribal areas were divided into FATA and PATA and the mechanism for application of laws in both these areas were kept intact.
Under Article 1 of the Constitution 1973 defined the territories of Pakistan as four Provinces, the Federal Capital and FATA. Under clause-1 of Article 247, the Executive Authority of the Federation extends to FATA and the Executive Authority of the Province extends to the Tribal Areas situated therein. Under clause 2, the President may give direction to the Governor of a Province in respect of PATA as he deems fit and the Governor shall follow those directions. Under clause 4, the Governor with the approval of President makes regulations for the peace and good governance with respect to PATA. Under clause 5, the President is empowered to make regulations for peace and good government for FATA while under clause 6, the President has been empowered to order that the whole or any part of the Tribal Areas shall cease to be a Tribal Area.
Clause-3 of Article 247 is important for resolution of the question under consideration which reads as under:--
"No Act of Majlis-e-Shoora (Parliament) shall apply to any FATA or to any part thereof, unless the President so directs, and no Act of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall apply to PATA or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to the tribal area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction".
This Article is almost the same as envisaged in Section 95-A of the GOIA and Section 92(1) of GOIA (already quoted in preceding paras), Under this Article, the President or Governor of the Province has been empowered to make applicable to the law enacted by the Parliament for the settled areas of the country and for extending an act of the Parliament or Ordinance promulgated under Article 89 or 128 of the Constitution to the Tribal Areas. Constitution has imposed certain duties upon the President and Governor of the Province i.e. he shall satisfy himself about the interest of the people and necessity of the extension of the Act to the Tribal Areas and he shall also consider as to whether the Act of Parliament or Provincial Assembly or Ordinance as the case may be is to be extended to FATA or PATA be in the same form or with modifications therein or exceptions thereto. The powers of the President under Article 247 is not to be exercised as prerogative powers which is not supported by the Constitution. In case reported as 1995 SCMR 529 (Controller of Patents and Designs, Karachi vs. Muhammad Quadir Hussain) it was observed by the august Supreme Court of Pakistan that the Government of Pakistan or for that matter any office holder or any government functionary do not enjoy any conventional prerogative as it was available to the Crown in British India except those discretionary powers which are specifically conferred upon by the Constitution or under an Act of Parliament. The powers under Article 247 is co-relative duties and obligations conferred upon the President. Being special status of T.As., the Parliament or Provincial Assembly cannot directly legislate for the Tribal Areas and the legislation enacted by the Parliament or Provincial Assembly shall be extended to those areas after examining the same by the President or Governor of the Province and thus if an Act of Parliament or Provincial Assembly cannot legislate directly for the Tribal Areas then it cannot be done even indirectly.
It is an established principle of interpretation of statutes that when a law is amended it shall be presumed to be altered. If Principal Act is amended by an Amending Act of the Parliament, it shall be presumed that the former has changed/altered. In such circumstances, the amendment made by the Parliament or Provincial Assembly shall not apply to the Tribal Area automatically but with due process as envisaged in Article 247. By holding that Amendment Act of the Parliament shall automatically extend to the Tribal Area, if the Principal Act has already been extended, it shall negate the command of Article 247 as the Amending Act is nothing but an Act to alter the principal which was extended to Tribal Area after due consideration and it shall amount legislation for the Tribal Area by the Parliament which is not permitted by the Constitution. By extending the Principal Act to the Tribal Areas with modifications or exceptions and the Amending Act is held to be automatically extended it shall undo modifications or exceptions found essential by the President or the Governor while extending Principal Act to Tribal Area. Under clause 3 of the Article 247, it is the President and not the Parliament to decide which Act is to be applied in the Tribal Area and can also make modifications or exceptions in the Act of Parliament. Accepting automatic extension of the Amendment Acts would amount to empower the Parliament to legislate for the Tribal Areas which is not permissible under the Constitution.
Under Clause 7 of Article 247, the Parliament has been given a limited power to legislate for the Tribal Areas in respect of jurisdiction of the Supreme Court of Pakistan or High Court. Any Act of the Parliament in this regard shall not require the scrutiny and approval of President for its applications to the Tribal Areas. Under such powers which was also envisaged in Article 261(1) of the Interim Constitution 1972, the Supreme Court and High Court (Extension of Jurisdiction to certain Tribal Areas) Act, 1973 was enacted by the Parliament. Neither the President nor Parliament can empower the Parliament in future to legislate for the Tribal Areas. Thus the President while extending an Act of Parliament to the Tribal Areas in terms of Clause 3 of Article 247 cannot notify that the law which is going to be extended to the Tribal Areas shall also include the subsequent amendment made through Act of Parliament. The words "As amended from time to time" if mentioned in a Notification issued under Clause-3 of Article 247 regarding a Principal Statute will have no effecton the future amendments brought in the Principal Statue by the Act of Parliament and it shall include only the amendments made before the date of extension of Principal Statute. The President may in his wisdom and discretion apply the whole statute or its part to the Tribal Area. The Parliament may have imposed 15% duty on a commodity through an Act of Parliament but if its extension to the Tribal Area is found necessary by the President, he may extend it to the Tribal Area as it is or may reduce it to 10% or may increase it to 20%. By doing so the President shall consider the issue as it was considered by the Parliament for its application in the country (settled districts). Now if an Amending Act is mechanically applied to Tribal Areas on the strength of extension of the Principal Statute, it shall amount usurpation of constitutional powers of the President relating to Tribal Areas while under constitution it is the President who shall apply his mind, shall scrutinize, examine and consider the best interest of the people and the State in extending with or without modification of an Act of Parliament amending the Principal Statute and on acceptance of such mechanism the President would become just a spectator and would not be in a position to amend the same. Once an Act of Parliament is extended to the Tribal Areas, it can only be repealed by extending the Repealing Act to the T.As only and in no other way.
The Governor General (subsequently designated as President) decided in 1945 that the Principal Act of Central Excise and Salt Act 1944 (one of 1944) shall apply to the Tribal Areas. Subsequently, the Parliament in Pakistan amended the said Act which was a new legislation and required extension to PATA as only the Principal Act was enforced in that Area. When the Principal Act is applied to Tribal Area which is subsequently repealed by an Amending Act of the Parliament, it shall still remain in force in the Tribal Area unless the subsequent amendment act repealing the Principal Act is extended to PATA in terms of Clause-3 of Article 247. There are countless examples that without extension of amending or repealing laws, the Principal Statute already extended remain in force as such for want of extension of subsequent legislation in terms of Article 247 of the Constitution, C.P.C. was extended to PATA through Regulation-I of 1974 which was subsequently amended in 1976 and 1980 but for want of extension of Amending Act to PATA it remain in force in un-amended form till the extension of Amending Acts to PATA through Regulation-II of 1994 and Regulation-I of 1999 on 14.11.1994 and 16.1.1999 respectively. Likewise, the different Hudood Laws of 1979 were extended to FATA and PATA on 23.4.1979 and 31.5.1979 respectively. The amendments brought therein was not automatically extended by those were formally extended through Regulation-II of 1994 and Regulation-I of 1999. A list of Amending Laws extended to PATA shall be noted later in this judgment.
The contention that the Amending Act merged into Original or Principal Act and if the Principal Act is duly applied to Tribal Areas after the amendment, it shall in force in the amended form is not correct. Had it been so the two different amendments in the W.P. Motor Vehicle (Amendment) Ordinance (IX of 1970) and W.P. Amendment of the Amending Ordinance (XVI of 1970) should not have been extended through the same Notification distinctly to PATA dated 19.4.1976. Under the Constitution, the consent of the President is required for extension of an Actof the Parliament and the Amending Act passed by the Parliament. No distinction can be drawn between the Principal Statute and Amending Act so far application of Article 247(3) of the Constitution is concerned. The Act of Parliament amending or repealing the principal statute cannot be extended to Tribal Area without the approval of the President and in accordance with the prescribed procedure under clause-3 of Article 247.
It is always legislative powers of the State vests in the Parliament but keeping in view Article 89 of the Constitution and Article 246 read with 247, the Parliament is not exclusively empowered. Under Article 89, the President can pass an Ordinance which shall have the same force and effect as an Act of Parliament. The President also enjoys limited legislative powers to promulgate an Ordinance obviously for a specified period and when the Parliament is not in the session and circumstances so demand. The President has also got the powers either to enforce the Act passed by the Parliament wholly or partly with or without modifications or exceptions in the Tribal Areas. The President can also make law in the shape of regulation for peace and good government in the Tribal Areas. These provisions make the Parliament not exclusively empowered to legislate as these provisions of Constitution also empowered the President in certain circumstances and enforcement of the laws of the country to Tribal Areas. Since this is legislative powers of the President to extend an existing law in the Tribal Areas, there is co-relative constitutional duty of the President to apply his mind and then to decide the form and shape of legislation, either to extend an existing law as it is or without modifications or exceptions.
Once the President after applying his mind and keeping in view the best interest of the people and the State decides to extend an Act of Parliament to the Tribal Areas, it cannot be withdrawn/repealed through a subsequent Act of Parliament named as Amendment in the Principal Statute already extended to T.As.
Under GGO 20 of 1947, the laws of British India were adapted in Pakistan w.e.f. the Independence Day. Any Act, Ordinance, Regulation, Rule, Order or Bye-law which had the force of law immediately before the Independence Day in the whole or any part of the territories falling within the Dominion of Pakistan, but on the Independence Day, the Tribal Area was not a part of the Dominion of Pakistan thus the 1945 Notification regarding extension of Central Excise and Salt Duty Act 1944 to Tribal Areas, remain no more existing Pakistan Law despite the fact that 1945 Notification was kept alive but subject to the Constitution of Pakistan i.e. GOIA as amended from time to time.
The 1945 notification had to be construed and applied after the said Areas became part of the Dominion of Pakistan in the manner consistent with GOIA. In terms of Section 95-A (1) GOIA no direction could be issued by the Governor General in terms of which amendments made to a Principal Statute would apply automatically to the Tribal Areas.
The legislative powers of the President under Article 247 could not be delegated to the Parliament or Provincial Assembly. The President possessed two-fold powers in the Tribal Area i.e. the power to apply Act of the Parliament or an Ordinance and the power to make regulation for peace and good government of the Tribal Areas. The powers cannot be delegated to the Parliament or Provincial Assembly. The contention that the Amendment Act of the Parliament or Provincial Assembly stands automatically extended to the Tribal Areas, if the Principal Act had already applied to that area would amount to delegation of legislative powers of the President under Article 247 of the Constitution. Under the Statute, the powers to frame rule can be delegated but it shall not be derogatory of, or conflict with the Principal Statute and if rules are found violative of the any provision of the Statute is always struck down by the Courts under its Constitutional obligations. Holding automatic extension of the Amendment Acts of the Parliament to Tribal Areas is certainly in conflict with the basic statute which is extended to Tribal Areas. Under Article 247 this is a Constitutional duty cast on the President to determine whether the concerned Act of Parliament (whether original or amending) is to be applied as it is or with certain modifications and exceptions which he deemed appropriate thus the constitution itself deems Parliament inappropriate forum for determining what legislation is suited or non-suited for the Tribal Areas then how the President divest himself of his power and duty and delegate the same to the Parliament if the Amendment Acts are held to be applied to the Tribal Areas automatically.
The Customs Act 1969 was extended to PATA through Regulation-III of 1975 issued through Gazette of Pakistan Extraordinary Part-I dated 22.7.1975 without any specific reference to any subsequent Amending Acts of the Parliament. Section of the Regulation reads as follows:-
"Application of certain Laws to the Provincially Administered Tribal Areas of the North West Frontier Province:--The laws specified in the second column of the schedule as in force in the North West Frontier Province immediately before the commencement of this regulation and, so far as may be, all rules, notifications and orders made or issued thereunder, shall apply to such Provincially Administered Tribal Areas of the North West Frontier Province as are specified in the third column of the schedule".
At Serial No. 11 of the Schedule appended with Regulation-III of 1975, Customs Act 1969 was applied to the District of Chitral, Dir and Swat and Malakand protected area only (not to entire PATA) as mentioned in column three of the schedule.
The un-amended Customs Act extended to the 4 Districts of PATA, Section 18 of the Customs Act 1969 reads as follows:--
"18. Goods dutiable. Except as hereinafter provided, customs duties shall levied at such rates as may be prescribed under the Tariff Act 1934 (XXXII of 1934) or under any law for the time being in force on--
(a) goods imported into or exported from Pakistan;
(b) goods brought from any foreign country to any customs-station and without payment of duty, through shipment or transported for, or thence carried to, and imported at, any other customs-station; and
(c) goods brought in bond from one customs-station to another".
"S. 2(1) Duties specified in schedule to be levied. (2) (1) there shall be levied and collected in every port to which this Act applies, the duties specified in the first and second schedule.
(2) The Central Government may by notification in the official gazette fixed, for the purpose of levying the said duties, tariff values of any articles enumerated either specifically or under general headings, in the said schedule as chargeable with duty ad valorem and may alter any tariff values for the time being in force.
(3) Different tariff values may be fixed for different classes of descriptions of the same article.
(4) Nothing in this Act shall authorize the levy of customs duty on any articles carried from one customs port in Pakistan to another such port except salt, opium or spirit".
Duties on imports and exports by land. S. 5 Where a custom duty at any rate prescribed by or under this Act or any other law for the time being in force is leviable on any article when imported into or any article when exported from, a part in Pakistan, the central government may be notification in the official gazette direct that a duty of customs at the like rate shall be leviable on any such articles when imported or exported, as the case may be by land from or but any territory outside Pakistan which it may by a like notification declared to be foreign territory for the purpose of this section.
"In exercise of the powers conferred by sub-section (1) and (2) of the Section 313 of the Government of India Act, 1935 and all other powers enabling him in this behalf, the Governor General in Council is pleased to apply Section 5 of the Indian Tariff Act 1934 (XXXII of 1934) to the Khyber Agency".
Section 5 read with the aforesaid extension notification is evident to show that Khyber Agency (PATA) was treated as foreign territory which necessitated the issuance of aforesaid gazette notification.
Customs Act 1969 was extended to FATA through Regulation-I of 1984. Section 2 of the Regulation reads as follows:--
"2. Application of Customs Act 1969 (IV of 1969) to the Federally Administered Tribal Areas:--The Customs Act 1969 (IV of 1969) as in force in Pakistan immediately before the commencement of this regulation and all amendments which may be made therein after such commencement, and all rules, notifications and orders which may have been or may be made or issued thereunder, shall apply to the Federally Administered Tribal Area, subject to modification that Section 185 thereof shall have effect as if in sub-section (2) after the word "he" the words "is a Political Agent or" were inserted".
The aforesaid Section 2 in Regulation-III of 1975 and Regulation-I of 1984 are substantially different from one another. In Regulation-III of 1975 Customs Act on the date of issuance of the Regulation with all rules, notifications and orders made which already issued thereunder were applied to PATA district mentioned in column-3 of the schedule. While in Regulation-I of 1984 all amendments which may be made in the Customs Act after commencement of regulation and all rules, notifications and orders which may have been made or may be made or issued thereunder (in future) shall apply to FATA and Section 185 as it exists on the statute book was also extended with amendments wherefrom it can be said with certainty that at the time of extension of any existing law, the President/Governor could competently extend the law with modification.
Through NWFP Regulation-II of 1974 certain laws specified in column 2 of the schedule with the modifications and exceptions specified in column-3 were extended to PATA. At Serial No. 40 West Pakistan Finance Act, 1963 with exceptions of Sections 3 to 13 and 15, at Serial No. 41 West Pakistan Finance Act 1964 was extended except Sections 3 to 9. West Pakistan Finance Act 1965 was extended with exceptions of Sections 3 to 9. At Serial No. 43 West Pakistan Finance Act 1966 was extended with exceptions of Sections 3 to 8. At Serial No. 44 West Pakistan Finance Act 1967 was extended except Sections 3 to 6. At Serial No. 45 West Pakistan Finance Act, 1968 was extended except Section 2 to 5. At Serial No. 47 West Pakistan Finance Ordinance 1969 was extended with exception of Sections 2 to 5. At Serial No. 48 West Pakistan NWFP Finance Ordinance 1970 was extended with exception of Sections 2 to 5. At Serial No. 49 NWFP Finance Ordinance 1971 was extended with exception of Section 3 to 5. At Serial No. 50 NWFP Finance Act 1972 was extended with exception of Sections 34 to 6 and at Serial No. 52 NWFP Finance Act, 1973 was extended with exception of Section 3. If the contention of respondent is accepted then there was no need of extending the said Finance Acts whereby the laws already extended to T.As were unnecessarily extended.
The Central Excise and Salt Act 1944 (one of 1944) was extended to the Tribal Areas beyond the boundaries of NWFP through Gazette of India dated 23.6.1945 which reads as follows:--
"Notification No. 137-F dated 20.6.1945. In exercise of the powers conferred by sub-sections (1) and (2) of Section 313 of the Government of India Act, 1935, and of other powers enabling him in that behalf, the Governor General-in-Council is pleased to direct that the Central Excise and Salt Act 1944 (one 1944) shall apply to the Tribal Areas beyond the western and northern boundaries of the NWFP, in so far as the same may be applicable and subject to any amendments to which it is for the time being subject in British India.
Provided that all references in the said Act to British India shall, unless there is something repugnant or contrary to context be construed as reference to the said Tribal Areas.
Provided further that any Court or authority may construe the provision of the said Act with certain modifications not affecting the substance as may be necessary or proper to adopt them to the matter before the Court or Authority."
NWFP Finance Act 1995 and Amending Customs Act 1969 were extended to PATA with exceptions of Sections 3, 4, 5, 6, 8, 9, 10, 11, 12 through Extraordinary Gazette Notification dated 12.1.2001. NWFP Finance Ordinance 1983 was also extended but with exception of Sections 4, 5, 6 and 8 and NWFP Finance Act 1998 was extended to PATA but with exception of Sections 1,2, 3 (c) 10, 11 and 12 through the same notification.
Finance Act 1986 to the extent of Section 4, 9 and 11 and Finance Act 1987 to the extent of Sections 2 and 9 were extended to PATA through Extraordinary Gazette Notification dated 7.9.1997.
The Finance Acts 1989, 1992, 1994 and Customs (Amendment) Act 1999 were not applied either to PATA or FATA in terms of Article 247(3) of the Constitution 1973.
There are numerous examples of extension of Amending Laws to T.As while Principle Statute was already extended. Some of them are noted below:--
W.P. General Clauses (Amendment) Act, 1957 through notification dated 8.9.1958 (The unamended W.P. General Clauses Act 1956 and W.P. General Clauses Act 1957 both were extended).
Presidential Election (Amendment) Ordinance 1964 extended to Tribal Areas through notification dated 30.11.1964.
West Pakistan Motor Vehicle (Amendment) Amending Ordinance 1979 (XVI of 1979) and West Pakistan Motor Vehicle (Amendment) Ordinance 1970 (IX of 1970) were extended to PATA through notification dated 19.4.1976.
Labour Laws (Amendment) Act 1972 (Act V of 1972) and Labour Laws (Amendment) Ordinance 1972 (IX of 1972) were extended to PATA through notification dated 31.12.1973.
Criminal Law (Amendment) Act 1973 was extended to PATA through notification dated 20.5.1974.
Land Reforms (Amendment) Act 1973 was extended to PATA through regulation dated 22.11.1978.
West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Act 1973 was extended to PATA through regulation dated 31.12.1973.
Industrial Relations (Amendment) Act, 1975, Labour Laws (Amendment) Act 1975, Labour Laws (Amendment) Act 1976, Labour Laws (Amendment) Act 1977, Road Transport Workers (Amendment) Act 1975, the Industrial Statistics (Amendment) Act 1980, the Industrial Relations (Amendment) Ordinance 1984, the Labour Laws (Amendment) Act 1985, the Labour Laws (Amendment) Act 1994 and the Employees Cost of Living (Relief) (Amendment) Act 1992 were extended to PATA through notification dated 31.7.1997.
Code of Criminal Procedure (Amendment) Act 1976 was extended to PATA through notification dated 6.7.1978.
Representation of the Peoples (Amendment) Act 1977, Representation of the People (Third Amendment) Act 1977 and Representation of the People (Fourth Amendment) Act, 1977 were extended to PATA through notification dated 14.8.1977.
Delimitation of Constituencies (Amendment) Ordinance 1978 were extended to PATA and FATA through separate notification dated 8.2.1979 and 6.11.1978 respectively.
Electoral Rolls (Amendment) Ordinance 1978 and Electoral Rolls (Second Amendment) Ordinance 1978 were extended to PATA through separate notification dated 8.2.1979.
Land Acquisition (NWFP Amendment) Ordinance 1978, the Employees Cost of Living (Relief) (Amendment) Ordinance, 1980 (XXXII of 1980), the Employees Cost of Living (Relief) (Amendment) Ordinance 1981 (XXV of 1981) and the Employees Cost of Living (Relief) (Amendment) Ordinance 1985 where extended to PATA through notification dated 16.3.1987.
Code of Criminal Procedure (Amendment) Ordinance 1979 was extended to FATA and PATA through separate notification dated 23.4.1979 and 31.5.1979.
Electricity (Amendment) Ordinance 1979 was extended to PATA through notification dated 23.10.1993.
Representation of the People (Amendment) Ordinance 1979 was extended to FATA through notification dated 6.12.1979.
Land Reforms (NWFP Amendment) Ordinance 1981 was extended to PATA through notification dated 11.8.1982.
Zakat and Ushr (Amendment) Ordinance 1980 was extended to PATA through notification dated 13.10.1980.
Criminal Law (Amendment) Act 1989 and 1991 were distinctly extended to FATA through notification dated 17.8.2001.
The question raised herein for determination were also examined in (1) Sharbat Khan and others vs. Haji Lal Gul and others (1984 PCr.LJ 411) (2) Hazrat Muhammad vs. The State (PLD 1988 Peshawar 11) and (3) Sadbar Khan vs. Amir Hussain and others (PLD 1995 Peshawar 14), the respective conclusion were drawn as under:--
"As Ordinance LXXI of 1979 by which the proviso has been added has not been extended to the Tribal Area, the petitioners cannot claim the benefit of the proviso for their release. The learned AAG has supported the contention of the learned counsel for the Respondent No. 1. We agree with the contention raised by the learned counsel for the Respondent No. 1 that the amendment in the Cr.P.C. in Section 497 has not been extended to the Tribal Area, therefore, the petitioner are not entitled to the benefit of this provision".
"As for act of a Parliament is concerned including the amending Act or Ordinance, the same shall be applied independently to PATA by the Governor of the Province in which the tribal area is situate with the approval of the President. Since the Code of Criminal Procedure (Second Amendment) Ordinance LXXI of 1979, an Act of the Parliament has not been applied by the Governor of NWFP to PATA with the approval of the President, as such, the said law effecting amendment in Section 497(1), Cr.P.C. shall not apply to the PATA of the Province and the unamended Code of Criminal Procedure still holds the field".
"A plain reading of the above Article has made it clear that any law or act of Parliament has to be extended to PATA by virtue of President's or Governor's order. Thus it has been established that without an independent Notification by the Governor for the application and extension of amendment made in the manner required by Article 247(3) of the Constitution, the jurisdiction of the District Court is still not restored, therefore, the objection of the learned counsel for the respondents being without any force must fail".
Concluding the above discussion, we while accepting the assertion of the petitioners and repelling the contention of Collector Customs, answered the formulated question as follows:--
"The respondents cannot demand the excessive customs duty under sub-section (1) and excessive regulatory duty under sub-section (2) of Section 18 of Customs Act 1969 imposed through Amendment Acts which are not enforced in Tribal Areas defined in Article 247 in contemplation of Article 247(3) of the Constitution 1973 and the demand of respondents for customs and regulatory duty specified through those un-extended Amendments Acts in the T.As is unconstitutional arbitrary, malafide and unjust. Thus they are directed to refrain from such illegal demand.
Post dated cheques or indemnity bonds if obtained from petitioners as consequence of interlocutory order shall stand discharged and be returned to the petitioners. However, the respondents would be competent to ask for assurance that the raw material shall be taken to T.As where their units are established and that the manufactured goods are sold in the T.As. No order as to costs".
(Javed Rasool) Writ Petition accepted.
PLJ 2007 Peshawar 36 (DB)
[Abbottabad Bench]
Present: Muhammad Raza Khan and Hamid Farooq Durrani, JJ.
GOVERNMENT OF NWFP through Secretary W&S Department NWFP, Peshawar and 2 others--Petitioners
versus
MUHAMMAD IQBAL KHAN and others--Respondents
C.R. Nos. 173 & 177 of 2003, decided on 28.2.2007.
Limitation Act, 1908 (IX of 1908)--
----Ss. 4, 9 to 18, 20 & 29--Civil Procedure Code (V of 1908), S. 115--Computation of the period for civil revision--First schedule of the Limitation Act, 1908 does not provide a period of limitation for filing a revision petition u/S. 115 CPC, therefore, by computing the period of 90 days as provided in S. 115 CPC for filing of revision petitions--Provisions contained in Ss. 4, 9 to 8 & 20 can be resorted to. [P. 39] A
Limitation Act, 1908 (IX of 1908)--
----S. 12(2)--Land Acquisition Act, (I of 1894), S. 18--Civil Procedure Code, (V of 1908), Ss. 12(2) & 115--Provisions of--Applicability to civil revision--Exclusion of time consumed in obtaining certified copies--Applications u/S. 12(2) CPC were dismissed--Assailed--Validity--Question of--Held: Provision of Ss. 12(2) & 29 of Limitation Act, 1908, had been made applicable for computing period of limitation provided in special or local statute, but for the purposes of the instant case, the former section would not be applicable because the scope of Section 12(2) limitation Act did not include an application for revision of the decree/order--Further held: Concession allowable u/S. 12(2) of the Limitation Act, 1908 would not be available to the petitioners, therefore, the period of limitation would have to be computed from the date of impugned judgment upto filing of revision petition without excluding the time consumed in obtaining the copies required for the purpose--Revision petitions were dismissed.
[P. 39] B & C
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code (V of 1908), S. 115--Extension of period on account of sufficient cause for not filing of revision within specified time--Held: Provisions of S. 5 of the Limitation Act, were not applicable to the proceedings, therefore the delay occurring in proceedings beyond the period of limitation could not be condoned--Further held: In the event of non supply of certified copies, a party desirous of having the impugned judgment to decree revised, could file a petition for the purpose of annexing the certified copies of the documents alongwith an affidavit to effect that the requisite documents, despite the best efforts were not made available in time--Philosophy of law and purpose of fixing the period of 90 days, elaborated. [P. 40] D
Administration of Justice--
----Supervisory jurisdiction--Revisional Court can take suo motu cognizance of a matter and for the exercise of its supervisory jurisdiction, period of 90 days would not operate as a bar because of a fact that the conditionality is attached only to the setting in motion the process of law by a person through a petition u/S. 115 CPC and not by the revisional Court. [P. 41] F
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Period of limitation for filing revision petition--Inordinate delay in bringing to an end--Period of three days was provided for the Courts on account of preparation and delivery of certified copies of judgment sought to be impugned. [P. 40] E
Khan Afzal Khan, Advocate for Petitioners.
M.A. Tahirkhali, Advocate for Respondents and D.A.G. for Official Respondent.
Date of hearing: 28.2.2007.
Judgment
Hamid Farooq Durrani, J.--This judgment shall also dispose of C.R. No. 177 of 2003, as common questions of law and facts are involved in both these cases.
Rs. 2,03,289/60 per kanal, was fixed while passing the impugned judgment and decree. It was prayed that the decree under application was liable for setting aside.
The respondents contested the application on both factual as well as legal counts and the learned Referee Court was pleased to dismiss the same on 06.02.2003. The revision petitions in hand were filed by the petitioners feeling aggrieved from the judgments of dismissal of their applications u/S. 12(2) CPC.
The learned counsel for the respondents, while relying on a judgment of this Court in the case of Abdul Waheed Khan reported as PLD 2006 Peshawar 156 raised a preliminary objection regarding the maintainability of the revision petitions in hand on the ground of the same being barred by time. It was stated that the impugned judgments were passed by the learned Referee Judge on 06.02.2003 while the petitioners applied for issuance of certified copy thereof on 08.02.2003. The requisite copies were provided to the petitioners on 18.05.2003 whereupon the revision petitions in hand were filed on 12.08.2003, beyond a period of 90 days from the date of announcement of impugned judgments, therefore, the same were to be out/rightly dismissed by invoking the provisions of Section 3 of the Limitation Act, 1908.
In response to the said preliminary objection the learned counsel for the petitioners contended that as the copies of the impugned judgments were made available to the petitioners consuming the time between 08.02.2003 and 18.05.2003, the said period was to be excluded. In doing so, the revision petitions in hand were to be considered as duly filed within the prescribed period of 90 days, the learned counsel maintained. In his view, the preliminary objection by the other side was frivolous and was required to be over ruled.
A perusal of Section 29 of the Act ibid would show that where any special or local law provided a period of limitation different from the period prescribed by the first schedule to the Limitation Act, 1908 for filing any suit, appeal or application, the provisions of Section 3 of the Act ibid were to apply. It is further seen that under clause (a) to sub-section (1) of the said section the provisions of Section 4, Sections 9 to 18 and Section 22 of the Act ibid have been made applicable to the period of limitation provided by special or local law, if not expressly excluded by such special or local law itself. It is further gatherable in clause (b) to sub-section (1) of Section 29 that the remaining provisions of the Limitation Act, 1908 shall not apply to the period of limitation provided by special or local law.
Undoubtedly, the first schedule to the Limitation Act, 1908 does not provide a period of limitation for filing a revision petition u/S. 115 CPC, therefore, it can be safely concluded that while computing the period of 90 days as provided in Section 115 CPC, for filing of revision petitions, the provisions contained in Section 4, Sections 9 to 18 and Section 20 of the Limitation Act, 1908 can be resorted to.
In the said context it would also be useful to resort to the provisions contained in Section 12 of the Act ibid. It is provided in sub-section (2) of the referred provisions that in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for review of judgment, the date on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. A minute scrutiny of the said provision of law would make it abundantly clear that though the provision of Section 12, by virtue of Section 29, have been made applicable for computing period of limitation provided in special or local statute but for the purposes of case in hand the former section would not be applicable because the scope of Section 12(2) Limitation Act, 1908 does not include an application for revision of a decree, order or sentence.
On the other hand the provisions of Section 3 of the Act ibid having been made applicable to the case under special or local statute, will have to be resorted to in case a civil revision is filed after the expiry of period of limitation prescribed therefor. It is further noticed that in the present cases the petition the petitioners having obtained certified copies of the requisite documents on 18.05.2003 abstained to file the revision petition upto 12.08.2003. A period of almost three months was consumed in addition to the period intervening 06.02.2003, the date of pronouncement of impugned judgment, and the issuance of certified copies of the documents.
The cases in hand, while examined in the light of the above, would clearly transpire that the revision petitions were filed beyond a period of 90 days as provided in Section 115 CPC from the date of judgments/decrees impugned therein. The operation of provisions of Section 3 of the Limitation Act, 1908 will leave this Court with no option but to dismiss the petitions in hand being barred by time. Needless to mention that the concession allowable u/S. 12(2) of the Limitation Act, 1908 would not be available to the petitioners, therefore, in their case the period of limitation shall have to be computed from the date of impugned judgment upto filing of revision petition before this Court without excluding the time consumed in obtaining the copies required for the purpose.
Before parting with the instant judgment we would like to observe that the question of application of provisions contained in Section 5 of the Limitation Act 1908, to the revision petitions filed u/S. 115 CPC, has lastly been set at naught by the Apex Court in the case of "City District Government vs. Muhammad Saeed Amin" (2006 SCMR 676). It was concluded that the said provisions of the Limitation Act were not applicable to the proceedings u/S. 115 CPC, therefore, the delay occurring in proceedings initiated beyond the period of limitation provided through the latter could not be condoned. We are also mindful of the fact that in certain cases, though very rarely, the requisite documents for filing of a revision petition u/S. 115 CPC, are not made available to a party within the period prescribed under the statute. In such an eventuality, a party desirous of having the impugned judgment / decree revised, can file a petition for the purpose by annexing uncertified copies of the documents required to be appended therewith and also provide an affidavit to the effect that the requisite documents, in spite of best efforts of the petitioner, were not made available in time which could facilitate the filing of the petition within the prescribed period.
There is yet another class of cases wherein, like the petitions in hand, in spite of receipt of requisite certified copies of the documents, the petitioners delay the filing of revision petitions for a considerable time which act apparently does not have any reason for the belated institution of the petition. The purpose behind the said class of petitions, most of the time, is to protract and prolong the litigation between the parties. The legislature, at the time of providing, period of limitation for filing revision petitions u/S. 115 CPC through an amendment brought about in the year 1992, was conscious of the above noted fact, therefore, the said period was stretched to 90 days which included the time consumed in obtaining the requisite copies. The purpose, undoubtedly, was to curb the inordinate delay in bringing to an end the litigation between the parties. It was for the said reason that a period of three days was provided for the Courts on account of preparation and delivery of certified copies of the judgment/decree sought to be impugned. The provision for the stated purpose, however, is directory in nature as the same does not provide consequences in case of its non-compliance. Reliance is placed on 2000 SCMR 1305. Be that as it may, in case of late delivery of requisite copies the concerned party can have resort to the exercise as mentioned in para 11 supra.
We would also like to note that the revisional jurisdiction, as bestowed upon the Courts through Section 115 CPC, cannot be invoked only through a petition by a person but also the revisional Court can take suo moto cognizance of a matter where it is apparent on the face of the record that through the impugned judgment/decree, the Court subordinate to the revisional Court, had exercised a jurisdiction not vested in it by law or had failed to exercise a jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity. For the exercise of said supervisory jurisdiction the limiting period of 90 days shall not operate as a bar because of the fact that the conditionality is attached only to the setting in motion, the process of law, by a person through a petition u/S. 115 CPC and not by the revisional Court itself.
As a sequel to the above, both the petitions being time barred are hereby dismissed with no order as to costs.
(M.A.) Petitions dismissed
PLJ 2007 Peshawar 41
[Abbottabad Bench]
Present: Muhammad Raza Khan, J.
DILBAD SHAH and 3 others--Petitioners
versus
SYED REHMAT SHAH and 5 others--Respondents
C.R. No. 452 of 2006, decided on 27.2.2007.
(i) Limitation Act, 1908 (IX of 1908)--
----Ss. 5 & 29(2)--Civil Procedure Code, (V of 1908), Ss. 12(2) & 115--Condonation of delay in filing civil revision--Limitation provided under local or special law--Held: Delay in filing the revision petition beyond the period of 90 days prescribed u/S. 115 CPC, cannot be condoned u/S. 5 of the limitation Act, is expressly excluded by S. 29(2) of the Limitation Act. [P. 46] A
2001 SCMR 286; 2004 SCMR 1630; 2006 SCMR 676 and
2004 CLC 1202 rel.
(ii) Limitation Act, 1908 (IX of 1908)--
----Ss. 12(2) & 29(2)--Civil Procedure Code, (V of 1908), Ss. 12(2) & 115--Exclusion of the period consumed for getting the certified copies and other documents would computing the period of 90 days--Held: Legislature, in its wisdom, did not intend to extend benefit of exclusion of the time required for getting the certified copies to the categories of revision petitions, hence, facility could not be extended to the civil revisions by implication the filing of revision petition within the original period of 90 days necessary. [Pp. 47 & 49] D & E
PLD 1960 K. 796; 2001 MLD 1546; 2004 MLD 1229 and
PLD 2006 Pesh. 156 ref.
(iii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Period of 90 day for filing revision petition--Provisional penal in nature--Period of 90 days is mandatory and not directory in nature. [P. 49] F
(iv) Equity--
----Nobody would be wiser than the law and the law givers. [P. 47] B
(v) Interpretation of Statute--
----If the legislature had excluded a particular proceeding from the operation of a particular provision, the same could not be read between the lines, because thereby the clear provisions of law would be violated. [P. 47] C
(vi) Administration of Justice--
----Procedure--Ensure compliance of law--Effectively exercise jurisdiction--Certified copies were not furnished within 90 days--Validity--High Court elaborated that the petitioner would file the revision petition within 90 days by annexing uncertified copies of the available documents and by furnishing affidavits regarding non-supply of certified copies and by annexing the receipt issued by the copying agency--Procedure would ensure the compliance of law regarding the period of 90 days, and the revisional Courts would exercise their supervisory jurisdiction to enquire into the causes of delay delivery of certified copies; and prevalent system of administration of justice would be rectified. [P. 50] G
2004 MLD 918, ref.
(vii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act, (IX of 1908), S. 5--Amendment in S. 115 CPC regarding fixation of 90 days time for filing revision petitions--Effect--Period of 90 days is not obligatory for filing revision petition, if there was sufficient cause for delay was repelled--Held: Precedents were not applicable to the cases in hand because after amendment of 1992 a period had already been prescribed. [P. 51] H
PLD 1964 SC 97; 1991 SCMR 496; 1992 CLC 1394 and
2004 MLD 918, ref.
(viii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suo moto jurisdiction of revisional Court--Supervisory jurisdiction--Miscarriage of justice--Restriction of period--Held: Even after amendment of 1992 and in the case of gross-miscarriage of justice the revisional Court can still exercise suo moto supervisory jurisdiction irrespective of time of 90 days--Further held: After the year 1992, the aggrieved party to limitation has a vested right to file revision with the restriction of period of 90 days. [Pp. 51 & 52] I
(ix) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Concurrent findings--Gross miscarriage of justice--Extra-ordinary delay of several months beyond in period of 90 days--Revision petitions were dismissed. [P. 52] J
Mr. Muhammad Wajid Khan, Advocate for Petitioners.
M/s Shujat Ali Khan, Abdul Latif Khan & Malik Manzoor Hussain, Advocates for Respondents.
Date of hearing: 6.2.2007.
Judgment
Through this judgment, I propose to decide the following connected civil revision petitions Nos:--
(1) C.R.No.452/2006 Dilbad Shah Vs Syed Rehmat Shah, (2) C.R.No.405/2006 Saibzada Ubaidur Rehman Vs Saibzada Mujeeb Awan, (3) C.R.No. 109/2006 Muhammad Maqsood Vs Munsif Khan, (4) C.R.No.55/2007 Government Vs Shah Haneef, (5) C.R.No.89/2004 Miss Afia Shehzad Vs M.Riaz Awan, (6) C.R.No.491/2006 Mst. Bibi Khatoon Vs Abdul Sattar, (7) C.R.No. 169/2006 Baghwaney Vs Gul Fareen, (8) C.R.No. 425/2006 Muhammad Riaz Versus Muhammad Ayub, (9) C.R.No. 96/2002 Government Vs Syed Mudassar Shah, (10) C.R.No. 39/2003 Muhammad Fareed Khan Vs Government, (11) C.R.No. 66/2007 Sher-ur-Rehman Vs Aslam, and, (12) C.R.No. 151/2003 Haji Shah Jehan Khan Vs Muhammad Imran.
(13) C.R.No. 152/2003 Haji Shah Jehan Khan Vs Mohammad Imran etc.
(a) Whether Section 5 of the Limitation Act is attracted to condone the delay in filing civil revision?
(b) Whether the period consumed for getting the certified copies of the impugned judgments, and other documents, can be excluded while computing the period of 90 days under Section 115 of CPC?
(c) What shall be the effect of the delayed delivery of the certified copies by the Court or the copying agency?
(d) What procedure has to be adopted in case of non-availability of certified copies?
(e) Whether the suo motu jurisdiction of the Court for Civil Revisions can be invoked after the expiry of the period of 90 days?
In all these civil revisions (and some others which have been excluded from operation of this judgment), the petitions were filed beyond the period of 90 days prescribed under Section 115 CPC. It was argued on behalf of the petitioners that the period was consumed in getting the certified copies of the impugned judgments, and other relevant documents required to be submitted along-with the revision petition in compliance with Section 115 CPC, therefore, (under the law and prevalent practice) such period should be excluded from computing the period of limitation. It was argued that, in any case, the petitioners should not be penalized for the delay or default by others because the Courts were required to have provided the certified copies within three days but in most of the cases there was delay in the delivery of files to the copying agency, due to the reason that the impugned order/judgment was not drafted/finalized. It was also added that the delays have been frequently condoned, if sufficient and reasonable cause justifying the delay is disclosed.
On behalf of the respondents it has been argued that the law has to be followed in letter and spirit and the period prescribed in terms of days should be considered to be obligatory and no concession could be granted by exceeding the limits settled by the statute, because thereby the right accrued to the other party shall be defeated.
In view of the far-reaching effects of the legal provisions involved in these revision petitions, the detailed arguments were heard and comprehensive list of precedents, for and against of the respective contentions, were considered in detail.
The condonation of delay can be allowed only by invoking powers under Section 5 of Limitation Act. In view of the availability of a clear provision of statute, the possibility of exercising the inherent powers of the Court is excluded. Section 29 of the Limitation Act provides that:
"29. (1).......................................................
(2) Where any special or local law prescribes for any suit, appeal or application the period of limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law--
(a) The provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as---
(b) The remaining provisions of the Act shall not apply".
The bare reading of the said section would indicate that since the period of limitation has been prescribed in Section 115 of CPC for filing of revision petition, therefore, being a special law the said sub-section (2) of the Section 29 of Limitation Act shall be applicable and for the determination of the period of limitation all the provisions (except Section 4, Sections 9 to 18 and Section 22) shall not apply. Section 5 of Limitation Act, therefore, does not apply to the civil revisions.
This clear provision of the law has been further elaborated and strengthened by the case law which is summarized in the following paragraphs.
(a) The principle was initially laid down in the case of "Allah Dino Vs Muhammad Shah" (2001 SCMR 286) by holding that:--
"There is no cavil with the argument that if the statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a whole. But where the law under which proceedings have been launched prescribes itself a period of limitation like under Section 115 C.P.C. then benefit of Section 5 of the Limitation Act cannot be availed unless it has been made applicable as per Section 29 (2) of the Limitation Act."
(b) It was followed subsequently in these words:--
"Respondent No. 1 did not move an application for condonation of delay which was, otherwise not permissible in view of judgment in the case of Allah Dino Vs Muhammad Shah (2001 SCMR 286). The Respondent No. 2 of his own on the basis of self styled imaginary calculations concluded that the revision petition is within time but in view of my above observations, these calculations are not only contrary to law, but also factually incorrect and on this basis the Respondent No. 2 could not entertain a time barred revision petition for making any interference in the order dated twenty first May, 2003 lawfully passed by the learned Judge. Rehana Kausar etc. Vs Faqir Muhammad (2004 CLC 1202)"
(c) "Intentional delay on the part of the petitioners in approaching the High Court for relief High Court after carefully examining and analyzing the record found the revision petition to be hopelessly time barred and on the point of limitation revision was dismissed. The judgment of the High Court entirely in consonance with law did not call for any interference by the Supreme Court. (2004 SCMR 1630 "Haji Ahmad Vs Noor Muhammad".
(d) In the latest judgment of the apex Court in the case of "City Distt: Govt; Vs M.Muhammad Saeed Amin" (2006 SCMR 676) it was conclusively held that:--
"Provisions of Section 5 of the Limitation Act were not applicable to proceedings under Section 115 C.P.C."
In view of the above precedents it can be safely and conclusively held that the delay in filing the revision petition, beyond the period of 90 days prescribed under Section 115 CPC, can not be condoned under Section 5 of the Limitation Act as the operation of the said section is expressly excluded by Section 29(2) of Limitation Act.
The exclusion of time consumed for getting the certified copies is regulated under Section 12(2) of the Limitation Act which lays down:--
"12. Exclusion of time in legal proceedings:
(1) ....................................................
(2) In computing the period of limitation prescribed for appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced and the time requisite for the obtaining a copy of the decree, or order appealed from, or sought to be reviewed, shall be excluded". (The underlining is added for the purpose of interpretation by me).
This is the only provision whereby period required for getting the copies of the impugned judgment etc., can be excluded from computing the period of limitation. The said sub-section is attracted only to three kinds of proceedings as underlined in the above extract. Firstly: the appeal, secondly; the application for leave to appeal and thirdly: the application for review of judgment. The application for revision is not included in any of the said categories and therefore, it can be concluded that the said provision can not be applied to revision petitions.
It has been argued that the scope of the said facility can be extended to the revision petitions as well, on the ground that when the law extends a benefit to a citizen for availing a remedy against a judgment it should not be restricted to certain categories but it should be extended generally to every type of remedial process. This argument is negated by the fact that nobody should be wiser than the law and the law givers. If the legislature had excluded a particular proceeding from the operation of a particular provision, the same could not be read between the lines because thereby the clear provisions of law shall be violated. The restriction of the facility contained in sub-section (2) of the Section 12 of the Limitation Act to three categories only is by design and not by default. Sub-section (1) of Section 12 of the Act mentions the categories of suits, appeals or applications. The term application, in general, includes every application including the revision petition. However the term an "application" in general has been excluded from the next sub-section, i.e, sub-section (2) and therefore, it was intentional and not an accidental omission. Moreover sub-section (3) extends the benefit to "appeal" or "review" against the decrees and the application or revision is also not mentioned there. Similarly in sub-section (4) the facility is extended to the "application against an award" but again the term revision is not stated there. Thus it will be clear from the said discussion that the legislature, in its wisdom, did not intend to extend benefit of exclusion of the time required for getting the certified copies to the categories of revision petitions hence, the said facility can not be extended to the Civil Revisions by implication.
In this regard some of the supporting precedents are:--
PLD 1960 (Karachi) 796 (Tahir Ali etc. Vs. Chief Judge Small Causes Courts etc.)
"Sub-section (2) of Section 12 of Limitation Act was not intended to apply to a revision petition. This sub-section is available only in cases where there is an appeal, an application for leave to "appeal or an application for the review of judgment. This sub-section nowhere mentions revision application. The expression appealed from or sought to be reviewed" further clarifies the point. The omission of revision application from the sub-section is not accidental. While sub-section (1) employs the word "application" without any qualification, sub-section (2) restricts it to merely two kinds of applications, namely an application for leave to appeal and application for a review of judgment. Extending the provision of Section 12(2) of Limitation Act to revision application will, therefore, amount to enlarging its scope for which there is no justification."
2001 MLD 1546 (Said Muhammad Vs Sher Muhammad).
"Sub-section (2) of Section 12 of Limitation Act has restricted its application to filing of appeal and two kinds of applications namely the application for leave to appeal and an application for review of judgment only. Benefit of Section 12(2) is not attracted to the revision applications as the section has nowhere mentioned revision applications. The time in case of filing a revision would start running from the date when the impugned judgment was passed."
2004 M.L.D. 1029 Peshawar (Muhammad Islam Vs Amir Sher Bahadur)
"Benefit of S. 12(2) of Limitation Act, 1908 was available only in cases where there was an appeal, an application for leave to appeal or an application for a review of judgment. Sub-section (2) of S. 12 of Limitation Act, 1908 had nowhere mentioned revision applications--Omissions of words `revision application' in said sub-section (2) of S.12 of Limitation Act, 1908 was not accidental, but said sub-section had restricted its application to merely two kinds of applications, namely; application for leave to appeal and application for review of judgment only--Benefit of sub-section (2) of S. 12 of Limitation Act, 1908 was not attached to revision application."
The justification for excluding the extension of the facility to the revision petition has been discussed by me in detail in the judgment "Abdul Waheed Khan and another vs Mst. Ruqia Bibi and 17 others" (PLD 2006 Peshawar 156). However for the purpose of recapitulation it may be stated that the time prescribed for appeal or revision is comparatively shorter than the period of 90 days prescribed for revision petitions. During the short span of 30 days, the availability of certified copies may not be ensured and that is why the legislature had permitted the exclusion of period required for such copies. Whereas during the period of 90 days, there are remote chances that the copies may not be available. Even if the certified copies are supplied after, say, two months of the judgment, still there shall be sufficient period of 30 days to file a revision petition. It appears that legislature was conscious of the fact that most of the revision petitions are moved for prolonging the litigation and therefore, certain checks and balances have been provided in the statute prescribing the maximum period for filing the revision petition and the minimum period for its disposal with further stipulation that the revision petition should be self-contained which may be decided without the requisitioning of the record. So if a person does not file a revision petition within 90 days of the impugned order it displays his attitude of indifference towards the lis and therefore, he cannot be extended extra ordinary concession beyond the scope of legislative provision.
In the revision petitions under discussion, there are several cases where the copies were available within a month, or so, but the petitioners did not take the trouble of getting the same to avail the remedy within time and the stamp on the certified copies shall display that the date of delivery is several months after the preparation of the copies. This intentional delay can not be ignored.
In some of the revision petitions the copies were delivered after the two months of the impugned order, or the date of submission of application for getting the certified copies, and still a further period of 90 days has been consumed merely on the presumption that time shall run only after the delivery of certified copies. This was a mis-conceived notion and no latitude can be extended to such misconceptions.
When the law prescribes a specific period of 90 days for an application for revision the time starts running from the impugned judgment or order. The aggrieved person may submit the application for certified copies but, on the delivery thereof, he should not wait for another period of 90 days but must file revision petition within the original period of 90 days from the impugned order/judgment.
There is a provision that Court shall supply the copy within a period of three days. This is a direction from the legislature to the Courts that in case an aggrieved person intends to file a revision petition, the delivery of certified copies should not be delayed. However, this provision does not vest the petitioner with an indefinite period to delay the submission of revision petition, if the copies are not furnished within the said period of three days. Since the consequential provision of failure to comply with the direction of three days is not stated in the statute therefore, the said phrase shall be treated as directory and not mandatory, whereas the failure to file the revision petition within prescribed period of 90 days attracts the dismissal thereof under Section 3 of the Limitation Act read with Section 29(2) thereof. The said provision is followed by consequence being penal in nature therefore the period of 90 days shall be mandatory and not directory in nature.
The question about the procedure to be followed by an aggrieved person, in case the copies are not furnished within prescribed period of 90 days, has been discussed in the judgment of "Abdul Waheed Khan and another Vs. Mst. Ruqia Bibi and 17 others" (PLD 2006 Peshawar 156). The gist of the impugned order is disclosed by its verbal announcement, or the short order, and therefore, if detailed judgment is not available or the certified copy of the judgment/order or any other document could not be furnished by the copying agency expeditiously, the petitioner should file the revision petition within the stated period of 90 days by annexing uncertified copies of the available documents and by furnishing affidavits regarding non-supply of certified copies by the copying agency/Court and by annexing the copy of receipts issued by the Copying Agency on the application for getting the certified copies of the documents. The office of the revisional Courts shall accept the revision petition without such certified copies and may direct the petitioner to furnish the copies as and when available. This procedure, on the one hand, shall ensure the compliance of law regarding the period of 90 days and, on the other hand, it shall help the revisional Courts to effectively exercise the supervisory jurisdiction over the Courts by inquiring into the causes of delayed delivery of certified copies. Thus not only the law should be followed in its letter and spirit but the system of administration of justice shall be gradually rectified.
Even otherwise the perusal of several files would show that after the filing of the revision petition the same is frequently returned for removal of objections and meeting the deficiencies. Such petitions are re-filed several times before their presentation to the Court for orders. If this procedure can be followed for other deficiencies, there is no reason why it should not be followed for filing the petition in time without the certified copies, if not available.
The matter has been further simplified in a judgment reported as 2004 MLD 918 (Lahore) wherein it was held that:
"Petitioner under S. 115 (1) C.P.C. was obliged to furnish copies of pleadings, documents and the orders of subordinate Court alongwith the revision petition--Word certified' is conspicuous by its absence in S. 115 (1) C.P.C.--Inference from omission of wordcertified' in the statute is clearly to absolve the revision petitioner from filing such copies of the judgment etc. alongwith the revision petition."
"It is a common ground that there is no limitation prescribed for filing of revision under C.P.C. though 90 days practice is observed as a rule in Courts and delay thereafter is required to be explained by the applicant. Limitation did not bar or affect exercise of inherent powers of the Court to make orders, which are necessary for the ends of justice or to prevent the abuse of the process of the Court. Having regard to the nature of the case it is a fit case for exercise of inherent powers by the Court to avoid miscarriage of justice which otherwise was inevitable to follow."
Similarly in 1991 SCMR 496 (Riasat Ali Vs Muhammad Jaffar Khan) it was observed:
"There is no period of limitation prescribed for presentation of revision petition in the Limitation Act. The Lahore High Court has, for many years adopted at thumb rule of 90 days within which revision petitions should be filed, failing which the discretion may not be exercised in the petitioners favour on ground of unreasonable delay. However, revision petitions, even though filed beyond the period of 90 days can be entertained if the Court is satisfied as to the reasons for the delay. It should not be forgotten that the scope of the revisional powers, though hedged by conditions, is nevertheless vast and corresponds to a remedy of certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also make such order in the case as it thinks fit."
These precedents are not applicable to the cases in hand because after amendment of 1992 a period has already been prescribed.
"Limitation Act provides no period of limitation for revision under Section 115 C.P.C., therefore, Article 181 of Limitation Act shall not be a bar to revision by High Court suo motu."
This dictum was followed in 2004 MLD 918 (Lahore) (Sultan Khan and 3 others Vs Sultan Khan) by holding that:--
"High Court under such jurisdiction can take suo motu notice of any illegality or material irregularity committed by the lower Court, despite the fact the revision is barred by time."
So it can be concluded that for the purpose of suo motu revisional powers there is no time restriction.
In the list of revision petitions, collectively heard alongwith petitions in hand there were some other revision petitions where, either the findings of the original and appellate Courts were at variance or the learned trial Court had not framed the issues and decided the matter or where the suit was decided by general discussion and not on specific discussion on each issue, or where the appellate Court had decided an appeal without hearing any of the parties etc. Such petitions have been separated from the list of petitions under discussion and have been entertained in the exercise of suo motu revisional jurisdiction despite the fact that the petitions were filed beyond the prescribed period of 90 days. However, in the cases in hand there were concurrent findings of both the Courts and there were no gross miscarriage of justice and in some of the petitions the extra ordinary delay of several months beyond the period of 90 days did not justify interference. So these petitions are being decided through this common judgment.
In view of the reasoning contained herein, these revision petitions are dismissed being barred by time. No order as to cost.
(M.A.) Petitions dismissed
PLJ 2007 Peshawar 53
Present: SalimKhan, J.
MIAN SAID USMAN--Petitioner
versus
TOTI MIAN, etc.--Respondents
C.R. No. 1347 of 2006, decided on 28.2.2007.
(i) Affidavit--
----Mere submission of an affidavit does not absolve an Advocate of his responsibility. [P. 54] A
(ii) NWFP Pre-emption Act, 1987--
----S. 24(1)(5)--Proviso--Probable value of property--Determination--Principle--Probable value of the property is to be fixed by the Court only when no sale price is mentioned in the sale deed or in the mutation. [P. 54] B
Mian Iqbal Hussain, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 28.2.2007.
Judgment
A suit was instituted by Mian Said Usman against Toti
Mian and Mian Muhammad for, possession of the property mentioned in detail in the plaint, through pre-emption. The suit was instituted on 30/5/2006 through counsel. It was processed on the same date and was put up for hearing before the Court on that date. The learned original Court recorded that counsel for the plaintiff was present who supported the plaint. It was ordered that the plaint be registered.
The learned original Court further directed that one third of Asal-Zar-e-Shufa' be deposited within thirty days. Those thirty days were to come to an end on 29/6/2006. The case was fixed for further hearing on 13/7/2006.
The Plaintiff and Defendant No. 1 were present on the said date and Defendant
No. 1 requested for adjournment for submitting written statement, while order for substituted service was issued against the Defendant No. 2. It was on 28/7/2006, the next date, that the suit of the plaintiff was dismissed on the ground that he had not deposited 1/3rd ofRaqam-Zar-e-Shufa'. That order was issued on the basis of application dated 17/7/2006 of
Defendant No. 1 with a request for dismissal of the suit on the basis of non-deposit of the pre-emption amount. Aggrieved by the said order, the petitioner went on appeal which was also dismissed on 12/8/2006. Hence this petition.
The learned counsel for the petitioner contended that the words `Asal-Zar-e-Shufa' were used in the original order which confused the plaintiff and the act of the Court shall not prejudice the parties. He referred to 1994 MLD 319, 1995 CLC and 2000 CLC 1815 in this respect. He further contended that it was mandatory for the Court to fix the probable value of the property as the amount mentioned in the sale-deed and in the plaint was different, and the order of dismissal of the suit without fixing the probable value was void abinitio.
It was the duty and responsibility of the learned counsel for the petitioner to have informed the petitioner about the order to deposit 1/3rd of the actual pre-emption amount. The counsel has been shown present at the time of admission of the suit. It was argued that the learned counsel has filed an affidavit to the effect that he was not present. Mere submission of an affidavit does not absolve an Advocate of his responsibility. The plaintiff by himself was also present on 13/7/2006. It was the responsibility of the plaintiff and his counsel to ascertain about the order of deposit of pre-emption amount on 30/5/2006 or any other subsequent date, which they failed to perform.
The learned counsel for the petitioner referred to the proviso to sub-section (1) and sub-section 5 of Section 24 of the NWFP, Pre-emption Act, 1987, and contended that it was the responsibility of the Court to fix the probable value of the property. The probable value of the property is to be fixed by the Court only when no sale price is mentioned in the sale-deed or in the mutation. In fact, there was a sale-deed mentioned by the plaintiff in his plaint and an amount of rupees, five lacs was entered in that deed. It is not the claim of the plaintiff, rather the entry in the sale-deed, which is the `Asal-Zar-e-Shufa' for the initial stages of proceedings in a pre-emption case.
There is nothing on record to show that the plaintiff or his counsel have ever requested the Court to clarify the order dated 30/5/2006, or to request to issue an independent clear order, if that order was not clear to the plaintiff.
Mere failure to deposit 1/3rd of the pre-emption amount and making excuses for the same are no good grounds.
I find no merit in the present civil revision petition which is hereby dismissed in limine.
(W.I.) Petition dismissed
PLJ 2007 Peshawar 55
Present: Muhammad Raza Khan, J.
RAJA MUHAMMAD RIAZ--Petitioner
versus
AKBAR--Respondent
C.R. No. 257 of 2005, decided on 20.2.2007.
(i) N.W.F.P. Pre-emption Act, 1987--
----S. 22--Improvement of status--Scope--Favourable time for improvement--Principle--After the institution of suit, the vendee would not be entitled to improve his status as against the pre-emptor except through inheritance--Vendee cannot improve his status after the sale but prior to the institution of suit of pre-emption against the sale--Facilty of improvement of status would not be available after the date of institution of suit against him, except through inheritance--There is logic behind such exception because the person from whom the vendee inherits, was already having equal status with the pre-emptor on date of sale, or at least on date of institution of suit. [Pp. 57 & 58] A & C
(ii) NWFP Pre-emption Act, 1987--
----S. 20--Vendee and pre-emptor possess equal status--Share property equally--Principle--If vendee and pre-emptor are placed on equal status by the vendee, they have to share the property equally.
[P. 58] B
(iii) NWFP Pre-emption Act, 1987--
----S. 20--Improvement of status of vendee--Effects--Pre-emptor claim on basis of Shafi Khalit defeated by vendee becoming Shafi Sharik--Pre-emptor claim on shafi jar defeated by vendee becoming a participator to rights attached to property--Held: Effect of improvement of status by the vendee would be that if the acquires equal status with that of pre-emptor, he shall be entitled to share the suit property but if he can acquires a status better than the pre-emptor the suit could be defeated--A pre-emptor claiming his right on the basis of "Shafi Khalit" would be defeated if the vendee becomes "Shafi Sharik" and if the pre-emptor claims to be "shafi jar" and the vendee through improvement of status prior to the institution of suit, or through inheritance after the institution of the suit, becoming a participator to rights attached to the immovable property or becomes co-owner in the corpus of undivided immovable property shall defeat pre-emptor claiming to be "shafi jar". [P. 58] D
Qazi Muhammad Ghazanfar, Advocate for Petitioner.
Malik Abdul Jalil, Advocate for Respondent.
Date of hearing: 20.2.2007.
Judgment
This revision is directed against the judgment and decree dated 6.5.05 of the learned Addl: District Judge, Haripur whereby he dismissed the appeal of the present petitioner against the judgment and decree of the learned Civil Judge Haripur dated 22.09.2004
A suit for pre-emption was instituted by Akbar (respondent) for enforcing his right of pre-emption in respect of the land, described in the head note of plaint which was sold through registered deed No.251 attested on 27.03.1994. The suit was contested and after recording evidence the learned C.J-V Haripur, vide judgment and decree dated 22.09.2004, granted a decree for possession through pre-emption in favour of the plaintiff in lieu of Rs.80,000/- being sale consideration of the suit land. This judgment was challenged in appeal but without success, hence this revision petition.
During hearing of this revision petition the learned counsel for the parties restricted their arguments with regard to issue of improvement in the status of vendee-defendant before the institution of the suit. Qazi Muhammad Ghazanfar Advocate for the petitioner (who was vendee-defendant in the suit for pre-emption and wrongly recorded as plaintiff in the heading of the revision petition) argued that the impugned sale took place on 27.03.1994 and the suit was instituted on 18.07.1994 where as in the interregnam the vendee had purchased more land measuring 03 kanals 03 marlas in the suit khasra number vide Mutation No. 952 attested on 20.04.1994, therefore, he had acquired equal rights of co-sharership with the plaintiff/pre-emptor, so the decree for the entire land in favour of the plaintiff was in violation of the Section 20 of the NWFP Pre-emption Act.
Malik Abdul Jalil Advocate representing the respondent/pre-emptor (who was originally the plaintiff in the suit and wrongly stated as defendant in the heading of the petition) argued that the vendee has to establish superior or equal rights of pre-emption at all the three stages i.e date of sale, date of institution of suit and date of decree. He pointed out that under the relevant law there is no scope of improvement in status except through inheritance as per Section 22 of the said Act. Thus he vehemently resisted the contention of the petitioner for retaining the title of half of the property on the said ground.
For the determination of this simple controversy it shall be expedient to have the provision of law reproduced for ready reference. Section 22 of the NWFP Pre-emption Act 1987 provides:
"Improvement made in the status of vendee-defendant after institution of the suit for pre-emption, otherwise than through inheritance, shall not affect the right of pre-emptor plaintiff.
The plain reading of Section 22 shows that the improvement in the status of vendee after the institution of the suit shall be of no benefit which impliedly means that prior to the institution of the suit he can improve his status. This section is identical to Section 21-A of the Punjab Pre-emption Act 1913 which provided: "any improvement, otherwise than through inheritance or succession, made in the status of vendee-defendant after the institution of suit for pre-emption shall not affect the right of the pre-emptor-plaintiff in such suit.
Section 17 of the NWFP Pre-emption Act, 1950 is also identical to Section 22 of the Punjab Pre-emption Act, 1913, referred to hereinabove.
This matter was settled in a judgment of this Court reported in PLD 1960 Peshawar-1, holding there-in that:--
"Originally there was no specific provision in Punjab Pre-emption Act on this subject to deal with the improvement in the status of vendee-defendant made after the institution of suit for pre-emption. As such there was difference of opinion as to whether a vendee can improve his position against the pre-emptor during the pendency of the suit. In 90 PR 1909 it was held that he could not do so but in the later ruling i.e ILR 1942 Lahore-155 it was held that he could. This dispute was set on rest by the amendment of the Act where-by Section 21-A was inserted."
Since the wording of Section 22 of Act of 1987 and Section 21-A of Punjab Pre-emption Act 1913 as well as Section 17-A of the NWFP Pre-emption Act 1950 are similar, therefore, the relevant law developed under the said provisions shall be applicable. The principle laid down in this regard is that after the institution of suit the vendee shall not be entitled to improve his status as against the pre-emptor except through inheritance. This, by implication, means that vendee defendant can improve his status after the sale but prior to the institution of suit of pre-emption against the sale.
The controversy has originated from the general concept that pre-emptor shall have to establish his superior right of pre-emption, as against vendee, at three stages i.e at the stage of sale, the institution of suit and date of decree. If the pre-emptor is not so vested with the superior right at all three stages, his suit for pre-emption is not maintainable. Conversely, it is argued that if the defendant was not having equal status at the impugned sale he can also be deemed to be ineligible to improve his status after the said sale.
In the earlier law of 1913 and 1950 the plaintiff/pre-emptor had to establish that he was having superior right as against vendee-defendant and the vendee having equal rights with the pre-emptor shall defeat the pre-emption suit. However, under the Act of 1987 the position is different. Now if the vendee and pre-emptor are placed on equal status they have to share the property equally under Section 20 of the Act. Thus the improvement of the status by the vendee, where-by he acquires equal status with the pre-emptor, shall entitle him to half of the property. However, this facility of improvement of status shall not be available after the date of institution of suit against him, except through inheritance. There is logic behind this exception because the person from whom the vendee inherits, was already having equal status with the pre-emptor on date of sale, or at least on date of institution of suit.
Under the repealed law since the pre-emptor had to establish his superior rights as against vendee, therefore, in PLD 1980 SC (AJK) 18 it was held that on the basis of the said provision a vendee equaling himself with the pre-emptor through inheritance during pendency of suit destroys his right". However, there is no doubt with regard to the fact that prior to the institution of suit the vendee can certainly improve his title whereby, under old law he could defeat the pre-emption suit and, under the present one he shall be entitled to share the property with the pre-emptor.
In the original Act of 1987 there was no possibility of improvement in the status of vendee after institution of suit even by inheritance but vide NWFP amendment Act 10 of 1992, the phrase "otherwise than through inheritance" was inserted and thereby the vendee defendant has become entitled to improve his status by any means prior to the institution of the suit. However after the institution of suit he can improve his status only through inheritance. The effect of improvement of status by the vendee shall be that if he acquires equal status with that of the pre-emptor he shall be entitled to share the suit property but if he can acquire a status better than pre-emptor the suit could be defeated. So a pre-emptor claiming his right on the basis of "Shafi Khalit" shall be defeated if the vendee becomes "Shafi Sharik" and similarly if the pre-emptor claims to be "Shafi Jar" and the vendee through improvement of status, prior to the institution of the suit or through inheritance after the institution of the suit, becoming a participator to rights attached to the immovable property or becomes
co-owner in the corpus of the undivided immovable property shall defeat the pre-emptor claiming to be "Shafi Jar".
In the present case since the plaintiff pre-emptor was admittedly co-owner in the corpus of joint property on the date of sale, the institution of suit and date of its decision whereas the vendee defendant (now petitioner) has become co-owner in the same property on 20.04.1994 i.e prior to the institution of suit and therefore, the rights of the parties are equal in status and they shall be entitled to equally share the property.
With regard to the market value there is no dispute and it is conceded that the amount stated in the registered deed being Rs. 80,000/- shall be true sale consideration of the suit property.
Thus the revision petition is partially allowed, the impugned judgment and decree is modified and the petitioner/vendee shall be entitled to retain half of the property and to this extent the decree is set aside whereas the decree to the extent of the remaining half in favour of the plaintiff/petitioner is maintained on payment of Rs. 40,000/- being the cost of the half of the suit property. If the plaintiff had deposited the sum of Rs. 80,000/- in compliance with the decree of learned trial Court he shall be entitled to get the refund of Rs.40,000/-. No order as to costs.
(W.I.) Petition partially allowed
PLJ 2007 Peshawar 59
Present: Talaat Qayyum Qureshi, J.
FAZL-E-AMEEN--Petitioner
versus
MANZOOR AHMAD and others--Respondents
C.R. No. 1514 of 2006 with C.M. No. 1505 of 2006, decided 16.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. V, R. 20(2) (amended) & S. 115--Suit of recovery--An ex-parte decree--Concurrent findings--Appeal was also dismissed--Assailed--Barred by time--Petitioner filed an application for setting aside the decree after one year--Courts below dismissed that petitioner's application was barred by time--If Court had in its wisdom directed for the service of defendants through registered Ads cover, it could do so under the provision of law--Judgments produced by the petitioner's are not applicable to such case, because both judgments were pronounced much before the amendment--After such amendment, it was not obligatory upon either the Court or the publisher of newspaper of the notice to send copy of proclamation/advertisement to defendants--Held: Courts below have dealt with the matter and Courts have not been able to find out any illegality or material irregularity or any jurisdiction error or defect warranting interference in the concurrent findings of Courts of competent jurisdiction. [Pp. 61 & 62] A, C & D
(ii) Interpretation of law--
----Under the provision of law the Court could use all or any of the manners and modes prescribed for service simultaneously. [P. 62] B
Mr. Javed Ali, Advocate for Petitioner.
Date of hearing: 16.2.2007
Order
The predecessor of respondents, namely, Tilla Muhammad filed a suit against petitioner and three others for recovery of Rs.2,90,000/- with profit. The petitioner was proceeded against ex-parte vide order dated 18.1.2001, whereafter evidence was recorded and an ex-parte decree was passed on 24.5.2004.
The petitioner filed an application for setting aside ex-parte decree on 26.5.2005. The same was dismissed vide order dated 6.1.2006. Appeal there against was also dismissed vide judgment and decree dated 18.10.2006. Being not contented with the judgment and decrees of the Courts below the petitioner has filed revision petition in hand.
Mr. Javed Ali, Advocate, learned counsel representing the petitioner argued that summons were not issued by the learned Court below in accordance with provisions of Order 5 CPC and directly the learned Trial Court directed that the defendants of the suit be served through registered AD. But they could not be served through the said mode, hence the predecessor of respondents/plaintiffs filed an application for service of the petitioner and his co-defendant through publication in the newspaper. Ultimately after the publication, an ex-parte decree, as mentioned above was made. He relied upon 1985 SCMR 1228 and 1989 CLC 2183.
It was also argued that no evidence was recorded on the application for setting aside ex-parte decree and the petitioner was unheard.
It was also argued that no copy of the newspaper containing the publication of the notice was sent to the defendant, hence illegality was committed by the Courts below.
I have heard the learned counsel for the petitioner at length and perused the available record.
The suit in this case was filed by the predecessor of respondents, namely, Tilla Muhammad on 28.6.2000. The learned Trial Court on receipt of the suit directed that the defendants of the suit be served through registered AD covers but the said defendants could not be served through the said mode, therefore, the plaintiff of the suit filed an application that the defendants were avoiding service, therefore, they be served through publication in the newspaper. The Courts below directed for publication in daily "Aaj" and after receipt of the said proclamation passed ex-parte decree against the petitioner and his co-defendants on 24.5.2004.
The petitioner filed an application for setting aside the said decree after one year and 2 days on 26.5.2005 stating therein that he gained the knowledge of the decree on 20.5.2005 when he came back from Karachi but no source of his knowledge was mentioned therein. The said application was also not supported by any application for condonation of delay. The learned Trial Court, after hearing the learned counsel for the parties dismissed the said application being barred by time. The learned appellate Court also dismissed the appeal on the ground that the application filed by the petitioner was hopelessly barred by time.
The learned Trial Court while resorting to service through registered AD directly had committed no illegality because according to the amendment brought in sub-rule (2) of Rule 20, Order 5 CPC vide Ordinance XXXIII of 1993 the Court on its satisfaction that the reasons to believe that the defendant was keeping out of the way for the purpose of avoiding service or that for any of the reason the summons cannot be served in the ordinary way, the Court shall order that the service of summons by--
(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or
(b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television' or
(c) urgent mail service or public courier services' or
(d) beat of drum in the locality where the defendant reside: or
(e) publication in press; or
(f) any other manner or mode as it may think fit:
Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously."
Under this provision of law the Court could use all or any of the manners and modes prescribed for service simultaneously. If the Court had in its wisdom directed for the service of the defendants through registered Ads cover, it could do so under the above mentioned provision of law. The judgments produced by the learned, counsel for the petitioner are not applicable to the case in hand because both judgments were pronounced much before the amendment in sub-rule (2) of Rule 20, Order 5 CPC was brought in 1993. After the said amendment, it was not obligatory upon either the Court or the publisher of newspaper of the notice to send copy of the proclamation/advertisement to the defendants.
In a very recent judgment of august Supreme Court of Pakistan in Honda Atlas Cars (Pakistan) Ltd. Vs. Honda Sarhad (Pvt.) Ltd. and others (2005 SCMR 609) it was held:--
"In view of above discussion, we are inclined to hold that as in the instant case, the respondents were duly served, they had fully knowledge about hearing of the case in view of the legal provision noted hereinabove, as such for setting aside the order, dated 13th March, 2000, whereby their suit was dismissed in default as well as for setting aside ex parte decree dated 20th June, 2000, they ought to have approached the Court within 30 days in view of the provisions of Articles 163 and 164 of the Limitation Act and if there was delay in filing applications, they should have invoked the provisions of Section 5 of the Limitation Act. Because, respondents had not approached to the Court for setting aside orders adversely operating against them, within 30 days, nor there was any request for condonation of delay in filing of applications, therefore, learned Trial Court, vide orders dated 17th September, 2001, had rightly declined to restore the suit and to set aside ex parte decree. Thus, the orders being proper and legal were not revisable by the learned High Court in its appellate jurisdiction."
The Courts below have properly dealt with the matter and I have not been able to find out any illegality or material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Courts of competent jurisdiction. Resultantly the revision petition in hand is dismissed in limine alongwith the C.M.
(N.F.) Petition dismissed
PLJ 2007 Peshawar 63
Present: Salim Khan, J.
SHAFAQAT-UR-REHMAN--Appellant
versus
DAUD-UR-REHMAN and 11 others--Respondents
R.F.A. No. 45 of 2006, decided on 29.6.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 10--Defamation Ordinance, 2002, S. 8--Suit for damages--Maintainability--Appellant filed suit for recovery against respondent which was returned to present before proper forum--Civil revision was also dismissed--Thereafter the appellant filed another suit for recovery on account of defamation and mental torture against 12 persons and the suit was dismissed on the ground that the notice given to the respondents was time barred--Assailed--Plea of the appellant that first suit was instituted on 31.7.2004 but it was returned on 7.1.2005 in order to file it in the proper forum in the light of the provisions of the Defamation Ordinance, 2002; the order in revision was passed on 2.6.2005 while the notice was given on 30.6.2005 which was well within time, could not be accepted by High Court while observing that Defamation Ordinance, 2002 was promulgated on 1.10.2002 and that the first suit was filed on 31.7.2004--Held: Person cannot claim the condonation of the period if he did not use the mind properly and did not initiate proceedings at the proper forum with due diligence--Further held: It could not be said that the appellant went to the Court of civil judge in good faith or that he has used due diligence to ascertain the exact Law--Law is to take its own turn and is to be applied strictly for the ends of justice.
[P. 64] A
Sardar Tahir Hussain, Advocate for Appellant.
Date of hearing: 29.6.2006.
Judgment
Detailed arguments of the learned counsel for the appellant were heard and record was perused by me. A suit for Rs.24500/- as damages, defamation and mental torture was filed by Shafqatur Rehman against Daud-ur-Rehman vide Suit No. 106/1 instituted on 31.7.2004. Vide order dated 7.1.2005, the learned Civil Judge, Ghazi District Haripur returned the plaint under Order VII Rule 10 C.P.C. to the plaintiff with direction to submit the same before the proper forum as the Civil Court had no jurisdiction to entertain the matter in the light of the provisions of the Defamation Ordinance, 2002. The appellant filed Civil Revision No. 18 on 2.4.2005 in the Court of Addl: District Judge, Ghazi who decided that no illegality or irregularity was pointed out in the impugned order of the learned Civil Judge, Ghazi, and he dismissed the revision petition. The appellant then sent notice to the respondent and filed Suit No. 8/1 on 25.8.2005 in the Court of A.D.J. Ghazi against Daud-ur-Rehman and other 11 persons for an amount of Rs. 54000/- as financial damages at the rate of Rs. 4500/- per person, and also for Rs. 1,20,000/-, at the rate of Rs. 10,000/- per person. It is worth mentioning at this stage that the original suit was only against Daud-ur-Rehman and that was for Rs.24500/- as damages, defamation and mental torture, while the second mentioned suit was against 12 persons at the rate of Rs.10000/- per person for defamation, at the rate of Rs.4500/- per person for financial damages, for Rs.12000/-, as medical expenses at the rate of Rs.1000/- per person, and for Rs.1,86,000/- for defamation and mental torture. In fact the amount of Rs.1,86,000/- was the total of Rs. 54000/- plus Rs. 1,20,000/- and Rs.12000/-. The suit of the plaintiff was, however, dismissed on the application of the defendants filed under Order VII Rule 11 C.P.C., vide order dated 4.1.2006, on the ground that the notice given to the respondents was time barred.
The learned counsel for the appellant submitted that the time spent by the appellant in the wrong forum was condonable as it was not the fault of the appellant and the Courts directed him to go to the other forum. He also submitted that an application was submitted by Respondent No. 1 against the appellant on 3.5.2000 and the report dated 9.5.2000 regarding the same was in favour of the appellant. He further submitted that the second application was submitted on 2.12.2002 while the third application was submitted on 21.4.2004, and the suit was instituted on 31.7.2004, but it was returned on 7.1.2005, in order to file it in the proper forum in the light of the provisions of the Defamation Act, 2002. He contended that the order in revision of the learned Addl: District Judge was dated 2.6.2005 while the notice was given by the appellant on 30.6.2005 which was well within time.
The perusal of the above record clearly shows that the Defamation Act, 2002 was promulgated on 1.10.2002 while the first suit was filed on 31.7.2004. It is well known maxim by now that ignorance of law is no excuse. A person cannot claim condonation of the period if he does not use the mind properly and does not initiate proceedings at the proper forum with due diligence. It cannot be said that the appellant went to the Court of Civil Judge in good faith or that he had used due diligence to ascertain the exact law. The law is to take its own turn and is to be applied strictly for the ends of justice.
The two suits of the appellant clearly show that he threw the net more wide, though with less amount for each person at the second phase of the litigation, although he had filed suit against Respondent No. 1 for an amount of Rs. 24500/- probably to save himself from the payment of Court fee. The appellant, by his conduct, has shown that he is trying to engage the respondents in litigation due to his annoyance with them.
I do not find any good ground for interference with the impugned order of the learned Addl: District Judge, Ghazi. Finding no merit in the present regular first appeal, after the detailed arguments of the learned counsel for the appellant, I dismiss the same in limine.
(N.J.) R.F.A. dismissed
PLJ 2007 Peshawar 65 (DB)
[Abbottabad Bench]
Present: Salim Khan & Hamid Farooq Durrani, JJ.
MIR AFZAL--Petitioner
versus
CIVIL JUDGE/FAMILY JUDGE GHAZI and 4 others--Respondents
W.P. No. 204 of 2005, heard on 10.5.2006.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Proceedings in family cases--Legality----Held: West Pakistan Family Courts Act, 1964 has prescribed only two stages for the proceedings in family cases i.e. in the original and the appellate Court--Appellate judgment & decree becomes final until some illegality or irregularity, misuse or non-use of the jurisdiction had been occasioned--Writ jurisdiction is a special right of an aggrieved person independent of the civil or criminal proceedings in a Court of law--Petition was not filed by the aggrieved party himself but was filed by his brother as attorney who had not been given the permission to file such petition--Petition dismissed.
[P. 67] A
Mr. Akhtar Nawaz Khan, Advocate for Petitioner.
Mr. Iqbal Ahsan Tahirkeli, Advocate for Respondents.
Date of hearing: 10.5.2006.
Judgment
Salim Khan, J.--Mir Afzal is shown to have brought the present Writ Petition No. 204/2005 whereby he challenged the judgment and decree dated 11.7.2005 passed by the learned Addl: District Judge, Haripur at Ghazi and requested for declaration that the findings of the learned Addl: District Judge, Haripur on Issues No. 6 and 8 are illegal and without lawful authority.
The facts leading to this case are that Mst. Ahmad Jan alias Ahman Jan wife of Mir Afzal Khan, Mst.Shamaila daughter and Saqib Khan and Gul Afzal sons of Mir Afzal brought a suit against Mir Afzal son of Zabita Khan for recovery of Rs. 50,000/- of Plaintiff No. 1, for recovery of maintenance allowance of Rs. 13,500/- from 7.1.2002 to 7.11.2002 (nine months) at the rate of Rs. 1500/- and at the rate of Rs. 2000/- per month for future, as well as for recovery of an amount of Rs. 40,500/- as the maintenance allowance of Plaintiffs No. 2, 3 and 4 from 7.1.2002 to 7.11.2002 (nine months) at the rate of Rs. 1500/- per person and also for future maintenance allowance at the Rate of Rs. 2000/-. The learned Judge Family Court, in Case No. 42/F.C. of 2002 instituted on 14.11.2002 and decided on 5.5.2004, declared Plaintiff No. 1 entitled to Rs. 62/- only as the dower amount, Rs. 3000/-at the rate of Rs. 1,000/- per month for three months period of Eddat as maintenance allowance and Plaintiffs No. 2, 3 and 4 were declared entitled to the maintenance allowance of Rs. 2100/- per month at the rate of Rs. 700/- per head. The past maintenance of the plaintiffs was adjusted as discussed in the body of the judgment. On appeal by Mst. Ahmad Jan alias Ahman Jan and others the learned District Judge, Haripur at Ghazi, after discussing the evidence, partially accepted the appeal and modified the judgment and decree of the learned Judge Family Court to the extent of Relief No. 2 and decreed in favour of Plaintiffs No. 2, 3 and 4. He declared the Plaintiffs No. 2, 3 and 4 entitled to the recovery of maintenance allowance at the rate of Rs. 1000/- per head per month as past maintenance allowance from 7.1.2002 till the decision of the suit and at the rate of Rs. 1500/- per head per month as future maintenance allowance till Plaintiffs No. 3 and 4 attained majority and Plaintiff No. 2 got married. It meant that the appeal of the Plaintiff No. 1 was otherwise dismissed. This resulted in the filing of the present writ petition.
The learned counsel for the respondents, at the very out set, objected to the filing of the present writ petition which has been filed through Akhtar Nawaz Khan Advocate and the affidavit has been given by Moazzam Khan son of Zabita Khan special attorney. He contended that the special power of attorney attested by the vice counsel on 8.3.2003 was not in respect of the present writ petition but was only for the purposes of the suit regarding dower and maintenance allowance pending in the Court of Civil Judge Ghazi and its pursuit and supervision was required by Mir Afzal Khan for which he appointed his brother Moazaam Khan as his attorney. The learned counsel for the petitioner referred to the contents of the said special power of attorney and contended that the attorney was authorized to represent Mir Afzal Khan in the revenue Courts, Criminal Courts, Civil Courts, up to the Supreme Court of Pakistan for the purposes of the said suit, and the present writ petition was also a continuation of the said proceedings. The learned counsel for the respondents contended that the said special power of attorney was not for the purposes of this writ petition and this writ petition was not the continuation of the proceedings of the mentioned suit. He relied on PLD 2001, Lahore 495 in this respect.
We heard the arguments of the learned counsel for the parties and perused the record.
The West Pakistan Family Courts Act, 1964, has prescribed only two stages for the proceedings regarding cases of family nature. Such a case can be dealt with in the learned original Court and only an appeal is allowed regarding the same, and the judgment and decree in appeal becomes final, unless and until some illegality or irregularity in it or misuse or nonuse of jurisdiction by the learned appellate Court in granting the judgment and decree have occasioned. The writ petition is a special right of an aggrieved person, independent of the civil or criminal proceedings in a Court of law. This being a constitutional jurisdiction, has to be exercised with due care. The petitioner (Moazzam Khan) is not the aggrieved person and he has not been specially authorized for the purposes of this writ petition by his brother, namely, Mir Afzal Khan, who was party to his family case by his wife and children. We, therefore, hold that the power of attorney in question is not a permission to Moazzam Khan on behalf of his brother. In the light of the above legal position, we are not inclined to exercise our extra ordinary constitutional jurisdiction in favour of the present petitioner. The learned appellate Court has rightly exercised jurisdiction by increasing the maintenance allowance of the Plaintiffs No. 2 to 4 as per his impugned judgment and decree in the light of the fact that Mir Afzal Khan has been serving outside the country and had the financial position to send amounts for the plaintiffs previously. There is nothing on record to show that Mir Afzal Khan did not have sufficient means to meet the requirements of the decree passed by the learned appellate Court.
We do not find any merit in the present writ petition which is hereby dismissed.
(J.R.) Petition dismissed
PLJ 2007 Peshawar 68 (DB)
Present: Ejaz Afzal Khan and Raj Muhammad Khan, JJ.
BURHAN-UD-DIN, EXTRA ASST. DIRECTOR, M.C.O. ZARAI TARAQIATI BANK LTD., NOWSHERA--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Finance Division, Islamabad and 4 others--Respondents
Writ Petition No. 340 of 2006, decided on 5.10.2006.
Fundamental Rule, 81--
----Grant of allowances--Ex-Pakistan leave--Increments on account of improvement--Full allowances during leave on half pay--Petitioner was entitled to grant of full allowances during the leave on half average pay addressed on the strength of Fundamental Rule, 81 appears to be untenable on its face, when the rule did not provide any such eventuality--Employ of the Bank was not entitled to any allowance during his Ex-Pakistan Leave. [P. 69] A
Laches--
----Laches of almost 10 years would be another factor which would tilt the scales of justice against the grant of the claim asked for--Petition dismissed. [P. 69] B
Sh. Shapur Jan, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 5.10.2006.
Judgment
Ejaz Afzal Khan, J.--Burhanuddin, petitioner herein, seeks the issuance of an appropriate writ directing the respondents to grant him three advance increments on account of improvement in his academic qualification and full allowances during his leave on half pay in terms of Fundamental Rule 81.
The learned counsel appearing on behalf of the petitioner contended that though the qualification of master degree in Islamiyat is neither relevant nor entitles the petitioner to advance increments but similar facility has been given to one Abdul Wadood, by this Court in the case of Chairman ADBP Vs. Abdul Wadood in C.R. No. 555 of 1999 decided on 21.4.2000. The learned counsel in support of his contention also placed reliance on the case of Tara Chand and others Vs Karachi Water and Sewerage Board Karachi and others (PLJ 2005 SC 826). The learned counsel next submitted that the petitioner was also entitled to the grant of full allowances during the leave on half average pay as per Fundamental Rule 81.
A perusal of the relevant rules regulating the grant of increments reveals that an employee of the Bank would be entitled to advance increments only when he has acquired a higher qualification in the subject specified by the Bank. Islamiyat is not from amongst the subjects listed in the rules. He, therefore, cannot claim increments as of right and has rightly been declined by the respondents. The judgment of this Court rendered in the case of Chairman ADBP Vs. Abdul Wadood in C.R. No. 555 of 1999 decided on 21.4.2000 Supra would not advance the case of the petitioner as the claim of the respondent in that case was decreed on the premises which were not recognized by the rules governing the grant of increments. Therefore, this precedent being per incurium in nature does not have any binding force. The case of Tara Chand and others vs. Karachi Water and Sewerage Board Karachi and others (Supra) too would not advance the case of the petitioner as in that case, the Hon'ble Supreme Court after highlighting the scope of a Judgment in Rem and a Judgment in Persona held that a benefit which is due under the law to one should also be extended to another similarly placed regardless altogether of the fact, whether he approached the Court or not in view of the provisions contained in Rule 6 of Order XXVI of the Supreme Curt Rules, 1980 and Rule 33 of Order XLI of the C.P.C. But we do not think, the benefit extended to the respondent in the case of Chairman ADBP vs. Abdul Wadood (Supra) could be termed as due under the law by any means so as to justify its grant to the petitioner. Neither the respondent in that a case nor any of the persons, alluded to therein who were earlier granted three advance increments, was entitled to such benefit, when none of them acquired the higher qualification in the subject, thus, listed. Granted that equality before law is the supreme ideal for the Courts of law but it does not mean that a benefit, which should not have been extended to any, if extended to one, would furnish a justification for its extension to another. For commission of one wrong or two or any number thereof cannot furnish a justification for yet another. Similarly two wrong precedents would not legalize an act which is void from the very inception.
The argument that the petitioner is entitled to the grant of full allowances during the leave on half average pay addressed on the strength of Fundamental Rule 81 appears to be untenable on the face of it, when the rule does not provide any such eventuality. It becomes all the more untenable, when as per para 21.17 of the Personnel Manual, which is more relevant than the rule in this case, an employee of the Bank is not entitled to any allowance during his Ex-Pakistan Leave. Above all else, laches of almost ten years would be another factor which would tilt the scales of justice against the grant of the claim asked for. Therefore, we do not think, a case for interference in the exercise of extraordinary equitable discretionary constitutional jurisdiction is made out.
For the reasons discussed above, this writ petition being without substance is dismissed in limine.
(F.F.) Petition dismised
PLJ 2007 Peshawar 70
Present: Talaat Qayyum Qureshi, J.
SHAH MULK--Petitioner
Versus
Mst. HUSSAN PARI and another-Respondents
C.R. No. 1314 of 2006, decided on 8.11.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Qanun-e-Shahadat Order, (10 of 1984), Arts. 72 & 80--Documentary evidence--Proof of--Suit of the petitioner was dismissed by Courts below--Misreading and non-reading of evidence--Marginal witnesses and scribe could not be produced being dead but no such plea took in trial Court nor in appellate Court--Petitioner had to prove the documents relied upon by him and who had to examine attesting witnesses and scribe of the same, if all of them were dead, the fact would have been pleaded before the trial Court--Steps would have been taken to adduce secondary evidence with the leave of the Court--Held: No objection was raised to the production of documents would not render the documents as proved. [P. 72] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129(g)--Withholding best evidence, presumption attached--Party withholding best evidence, the presumption would be that if such witnesses were produced their deposition must have been against the one who withheld them. [P. 72] B
2005 SCMR 152, 2002 SCMR 235 and PLD 2003 Peshawar 189, ref.
Mr. Walayat Khan Khattak, Advocate for Petitioner.
Date of hearing: 8.11.2006.
Order
Petitioner/plaintiff filed suit in the Court of learned Civil Judge, Nowshera seeking declaration to the effect that he was owner in possession of the suit property on the basis of deeds dated 26.3.1952 and 14.8.1952 and that respondents have nothing to do with the said property. Perpetual injunction restraining the respondents/defendants to interfering into the property was also sought. The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court after framing issues recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 14.2.2006.
Feeling aggrieved with the said judgment and decree, the petitioner filed appeal in the Court of learned District Judge, Nowshera but his appeal was also dismissed vide judgment and decree dated 14.5.2006. Being not contented with the judgment and decrees of the Courts below, the petitioner has filed revision petition in hand.
The learned counsel for the petitioner argued that the learned trial Court had failed to resolve Issues No. 2 and 3 properly. The Courts below failed to appreciate that the claim of the petitioner/plaintiff was based on documents dated 26.3.1952 and 14.8.1952 and documents being more than 30 years old a presumption of truth was attached to them. Moreover the petitioner/plaintiff was in possession of the suit property which fact had been admitted by D.W.1 by Sirdast Khan in his statement.
The Courts below failed to appreciate evidence available on record, hence the impugned judgment and decrees are based on mis-reading and non-reading of evidence.
It was also argued that the Courts below have failed to exercise jurisdiction vested in them.
I have heard the learned counsel for the petitioner at length and perused the available record.
The claim of the petitioner is based on two deeds dated 26.3.1952 and 14.8.1952. It was the bounden duty of the petitioner/plaintiff to have proved those documents by producing marginal witnesses and the scribe but none of them was produced before the learned trial Court to prove those documents. The learned counsel while arguing this petition stated at the bar that the marginal witnesses of both deeds were dead, therefore, they could not be produced but the record of the case belies the stand of the learned counsel as neither any application mentioning that the marginal witnesses and scribe of the deeds were dead, was filed nor any permission was sought from the trial Court for producing the secondary evidence. However, at the appellate stage, the petitioner/plaintiff submitted an application for withdrawal of the suit with the permission to file fresh one. In the said application too, it was never mentioned that the marginal witnesses and the scribe of the deeds were dead rather a plea was taken that those witnesses could not be produced, therefore, the petitioner/ plaintiff be allowed to withdraw the suit enabling him to remove the lacuna and produce those witnesses too. That application alongwith the appeal was dismissed.
It is by now settled law that it was incumbent upon the petitioner/plaintiff to have proved both the deeds dated 26.3.1952 and 14.8.1952 and it was he who was to examine attesting witnesses and scribe of the same if all of them were dead, the said fact should have been pleaded before the learned trial Court and it should have been established that the marginal witnesses and scribe were not available due to their death, steps should have been taken to adduce secondary evidence with the leave of the Court. Simply because no objection was raised to the production of documents would not render the document as proved. This was held in Anwar Ahmad Vs. Mst. Nafis Bano through L.Rs (2005 SCMR 152).
It is also settled principle of law that a party withholding best evidence, the presumption would be that if such witnesses were produced their deposition must have been against the once who withheld them. Reliance in this regard is placed on Muhammad Mal Khan vs. Allah Yat Khan (2002 SCMR 235) and Mst. Gohar Sultan vs. Gul Waris Khan (PLD 2003 Peshawar 189).
Since the petitioner/plaintiff has failed to prove the documents relied upon by him, therefore, the Courts below have rightly dismissed this suit as well as appeal.
I have not been able to find out any misreading/non-reading of evidence or any illegality or irregularity or any jurisdictional error or defect warranting interference. Resultantly the revision petition in hand is dismissed in limine.
(R.F.K.) Petition dismissed
PLJ 2007 Peshawar 73 (DB)
Present: Salim Khan, J.
AZIZ KHAN--Appellant
versus
STATE--Respondent
Crl. A. No. 3 of 2006, decided on 9.6.2006.
Control of Narcotic Substances Act, 1999 (XXV of 1999)--
----S. 20--Sending a report to the Superior Officer, non observance of the directions in Section 20 CNSA was not fatal to prosecution--Although it made the I.O. liable to disciplinary action under the Police Rules--There were no complaints against the other inmates of house and accused/appellant also did not name his father or any of his brothers to be owner in possession of the charas in-question--Appeal was dismissed. [P. 74] A
Mr. Azmatullah Malik, Advocate for Appellant.
Qari Abdur Rashid, DAG for State.
Date of hearing: 19.5.2006.
Judgment
Salim Khan, J.--Arif Javed SHO recorded a Murasila which was converted into FIR No. 10 dated 14.1.2003 of Police Station, K.T.S., District Haripur. It was mentioned in the Murasila that it was complained publically that Aziz Khan was selling charas and opium at his house to the customers, that the complainant alongwith Bashir Hussain Shah ASI, Muhammad Saeed D.F.C., lady constable Kalsoom and other police officials raided the house of Aziz Khan, but he decamped from his house on jumping to the vacant plot near to his house from the roof top of his house. It was further alleged that a shopping bag containing 5 slabs of charas was recovered from beneath the used clothes in the residential room of the accused which weighed 5 kilograms, that samples were taken which were sent to chemical examiner. The accused was later on arrested, tried, convicted and sentenced to one year R.I. and a fine of Rs.10,000/- or to undergo simple imprisonment for one month in case of default. Benefit of Section 382-B, Cr.P.C. was also extended to the accused-appellant. Hence, the present appeal.
The learned counsel for the appellant contended that Kalsoom constable was shown present at the time of raid in each of the cases under F.I.Rs. Nos.8, 9 and 10 within a span of one hour and she was shown present in each of such F.I.Rs. in such a way that her presence for the purposes of other case could not be imagined. He also contended that no one from public was taken for the search of the house of the appellant and that the contraband charas was not recovered from the possession of the appellant. He also referred to the contradictions in the statements of the witnesses. The learned counsel for the appellant also argued that private witnesses were not attached to the prosecution, to the investigation and recovery although the scene of occurrence was within the Abadi.
The learned D.A.G. contended that the police witnesses were as good witnesses as the private persons, that it was never objected by the appellant that the samples were not kept in proper custody and the report of F.S.L. clearly showed that the seals of the samples were found intact when these were received in the laboratory, and the report of the laboratory was positive regarding charas. As far the objection of the learned counsel for the appellant that the house in question was inhabited by other persons of the family of the appellant, the learned D.A.G. replied that there was no complaint against the father and brothers of the appellant and the police did not suspect them and has no evidence to connect them with the crime in question.
As far the availability or otherwise of Kulsoom lady constable, the learned D.A.G. submitted that all the raids were conducted in the same sector and it was not necessary for the lady constable to remain at the scene of investigation of a case for the whole time as the recovery memo and the Murasila could be recorded after raid and Kalsoom lady constable could be taken from one place to another place in the same sector for the purposes of different raids. The learned D.A.G. contended that the provisions of Section 20 of C.N.S.A were not mandatory in nature, were directory and should have been observed by the I.O., but for the urgency of the matter in question due to fear of removal of the contraband by the appellant.
The only defence of the accused-appellant is that there were discrepancies in the case and that the contraband was not recovered from his personal possession, and that accused in other cases recorded on the same date have been released/acquitted. Obtaining a warrant or sending a report to the superior officers was the duty and responsibility of the police officer. But, the non-observance of the directions in Section 20 CNSA was not fatal to the prosecution case although it made the I.O. liable to disciplinary action against him under the Police Rules, after proper inquiry by his superior officers. As for the presence of Mst. Kulsoom at the time of raid, it was not found sufficient cause for acquittal of the accused-appellant because it was a mere irregularity. There is nothing on record to show that there were any complaints against the other inmates of the house, and the accused-appellant also did not name either his father or any of his brothers to be the owner in possession of the charas in question.
We do not find any merit in the present appeal and we dismiss the same accordingly.
(M.S.) Appeal dismissed.
PLJ 2007 Peshawar 75
[Abbottabad Bench]
Present: Talaat Qayyum Qureshi, J.
MANZOOR HUSSAIN--Petitioner
versus
IFTIKHAR AHMED and another--Respondents
C.R. No. 1 of 2005, decided on 5.3.2007.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 70--Oral evidence--Major contradictions--Statements of the witnesses were recorded after lapse of 8 years but such contradictions could not be termed as minor contradictions--Major contradictions proved that the witnesses of Talb-i-Muwathibat were not truthful and they were avoiding to make correct statement about the persons who were present at the time of Talb-i-Muwathibat. [P. 78] A
Administration of Justice--
----Witness--Liability--A party producing a witness is bound by their statement. [P. 78] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 70 & 71--Civil Procedure Code, (V of 1908), S. 115--Oral evidence--Proved--Right of pre-emption--Competent jurisdiction--Concurrent findings--Arts. 70 and 71 of Qanun-e-Shahadat Order are clear about mode of proof through oral evidence--Proof of talb-i-muwathibat is not merely a technicality but right of pre-emption is not activated under Talb-i-Muwathibat is performed in accordance with Law--Held: Courts below had properly appreciation of evidence and applied the law applicable to the present case--High Court had not been able to find out any misreading or non-reading of evidence or illegality or any material irregularity or any jurisdictional error or defect in concurrent findings of the Courts of competent jurisdiction.
[Pp. 78 & 79] C & D
Malik Muhammad Asif, Advocate for Petitioner.
Mr. Muhammad Naeem Anwar, Advocate for Respondents.
Date of hearing: 5.3.2007.
Judgment
The petitioner/plaintiff filed a suit for possession through pre-emption of land measuring 2 kanals 1 marla comprising Khasra No. 1633 situated at village Kotkay, District Mansehra against the respondents/defendants in the Court of learned Civil Judge, Mansehra. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 24.6.2003.
Being not satisfied with the said judgment and decree, petitioner filed appeal in the Court of learned District Judge which was entrusted to learned Addl: District Judge-III, Mansehra who after hearing the learned counsel for the parties dismissed the appeal vide judgment/decree dated 27.9.2004.
Being not contented with the judgments and decrees of the Courts below the petitioner has filed the revision petition in hand.
Mr. Malik Muhammad Asif Advocate, learned counsel representing the petitioner argued that the Talabs were made in accordance with law and the witnesses produced in order to prove Talb-i-muwathibat as well as Talb-i-ishhad in substance had proved that the Talb-i-muwathibat was made by the petitioner at 8 p.m. on 31.5.1995 in the house of Sultan.
About the Talb-i-ishhad, the learned counsel argued that inadvertently instead of writing the name of Abdur Rehman the name of Syed Imdad Hussain was mentioned. However, the said mistake was corrected while filing the suit in the plaint.
The Courts below have not only failed to appreciate the evidence available on record but they also failed to appreciate that the Talb-i-muwathibat was made on 31.5.1995, Talb-i-ishhad on 1.6.1995 and their statements were recorded on 25.5.2003, i.e., after lapse of 8 years and he being human being was thrown to forget about things which could never be made for non-suiting the petitioner/plaintiff. Reliance in this regard was placed on 2001 SCMR 798, PLD 2003 Peshawar 189 and PLD 2003 Peshawar 179.
On the other hand Mr. Muhammad Naeem Anwar Advocate, learned counsel representing Respondent No. 1 argued that it was the bounden duty of the petitioner/plaintiff to have proved his case but he failed to prove that Talb-i-muwathibat was made in accordance with law. The witnesses examined by him were not truthful witnesses. Hence were rightly disbelieved by the Courts below.
It was also argued that notice Talb-i-ishhad Ex.P.W.8/2 was served upon Syed Imdad Hussain and not on Syed Ibrar Hussain which is evident from the record and this could never be said to be a clerical mistake.
It was also argued that the Courts below have properly appreciated the evidence available on record and have rightly dismissed the suit as well as appeal and the concurrent findings of the Courts below need no interference in exercise of revisional jurisdiction by this Court.
I have heard the learned counsel for the parties and perused the available record.
The admitted position in this case is that land measuring 2 kanals 1 marla comprising Khasra No. 1633 situated at village Kotkay, District Mansehra has been purchased by respondents through registered sale-deed No. 1054 dated 31.5.1995 registered in the office of Sub-registrar Mansehra Ex.P.W. 1/1.
The case of the petitioner/plaintiff is that he made Talb-i-muwathibat in the house of Sultan in presence of Muhammad Hazoor (P.W.9) and Abdur Rehman. (P.W.10) and sent notices of Talb-i-ishhad Ex.P.W.8/1 and Ex.P.W.8/2 on 1.6.1995 through registered cover. The petitioner/plaintiff was examined as P.W.8. In the cross-examination he stated that when Talb-i-muwathibat was made by him only Muhammad Hazoor (P.W.9) and Sultan (not examined) were present and none-else was present there. It is worth mentioning that in para 2 of the plaint he had stated that at the time of making of Talb-i-muwathibat Muhammad Hazoor and Abdur Rehman were present. The presence of Sultan was never mentioned in the plaint. Not only he deviated from his plaint but the witnesses examined by him in support of the Talb-i-muwathibat did not fully support his case. Muhammad Hazoor (P.W.9) when cross-examined stated that at the time of making of Talb-i-muwathibat the other inmates of the house were also present ( ) Similarly, Abdur Rehman (P.W.10) when examined stated that at the time of making of Talb-i-muwathibat, Gustasip and Muhammad Fiaz were also present. The presence of these two persons is also fortified by Ex. P.W. 10/D-1 which is a notice of Talb-i-ishhad given by Muhammad Fiaz and to one Iftikhar Khan. In Paragraph No. 2 of the said notice it was mentioned that while making Talb-i-muwathibat by Muhammad Fiaz, Gustasip and Abdur Rehman were also present. The argument of the learned counsel for the petitioner that the witnesses were examined after lapse of 8 years, therefore, they were not expected to remember the minor details has no force.
No doubt this Court in "Mst. Gohar Sultan Versus Gul Waris Khan" PLD 2003 Peshawar 189, "Muhammad Khan Versus Bashir Ahmad" PLD 2003 Peshawar 179 and august Supreme Court of Pakistan in "Abdul Qayyum Versus Mushk-e-Alam etc" 2001 SCMR 798 held:
"The witnesses were making statements after lapse of considerable period from the date of Talb-i-Muwathibat, therefore, they were not expected to remember each and every minor details as to time. These were natural variations which a human being in the ordinary course of business would certainly make which do not in any way detract from the veracity of their evidence."
No doubt the statements of the witnesses were recorded after lapse of 8 years but these contradictions cannot be termed as minor contradictions. These are in fact major contradictions which clearly prove that the witnesses of Talb-i-muwathibat were not truthful and they were avoiding to make correct/true statement about the persons who were present at the time of making of Talb-i-muwathibat. Therefore, the judgments cited by the learned counsel for the petitioner cannot help him.
It is by now a settled law that a party producing a witness is bound by their statements. Reliance in this regard is placed on "Wali Muhammad Versus Mst. Sarwar Bibi" N.L.R. 2001 S.C.J. 501 and "Allah Dad Versus Government of Pakistan" 1999 C.L.C. 1571.
So far as Talb-i-Ishhad is concerned, notice Ex.P.W.8/2 was sent in the name of Syed Imdad Hussain. There is gulf of difference between the two names, i.e. Syed Imdad Hussain and Ibrar Hussain Shah. Mentioning the name of Syed Imdad Hussain could not be termed as clerical error. Talb-i-muwathibat, it is also settled law, is to be proved through oral evidence and there are no number of witnesses required by law to prove the said Talab. Articles 70 and 71 of the Qanun-e-Shahadat Order are clear about the mode of proof through oral evidence. The proof of Talb-i-muwathibat is not merely a technicality but in fact the very right of pre-emption is not activated unless Talb-i-Muwathibat is performed in accordance with law. The august Supreme Court of Pakistan in a very illuminative judgment reported in "Haji Muhammad Saleem Versus Khuda Bakhsh" PLD 2003 S.C. 315 held:
"12. Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption. The law as well as the fact is that they very right of pre-emption is not activated unless Talb-i-Muwathibat is performed. It should not be dubbed as mere technicality at times, it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of pre-emption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality, this Court in Said Kamal Shah's case PLD 1986 SC 360 would never have gone to the extent of saying that Talb-i-Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provisions qua Talb-i-Muwathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre-emptors in the country were non-suited because of non-assertion and performance of Talb-i-Muwathibat though not required by the then prevailing pre-emption laws in the country. What we want to emphasize is that Talb-i-Muwathibat should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of a right of pre-emption.
Keeping in view the above discussion it can safely be held that the Courts below have properly appreciated the evidence and applied the law applicable to the case in hand. I have not been able to find out any misreading or non-reading of evidence or illegality or any material irregularity or any jurisdictional error or defect in the concurrent findings of the Courts of competent jurisdiction.
Resultantly, this revision petition is dismissed. There shall, however, be no orders as to costs.
(R.A.) Petition dismissed
PLJ 2007 Peshawar 79 (DB)
Present: Ijaz-ul-Hassan and Fazal-ur-Rehman Khan, JJ.
RAHMAN GUL--Petitioner
versus
NIZAKAT BIBI and another--Respondents
W.P. No. 912 of 2006, decided on 8.11.2006.
(i) Maintenance--
----Dissolution of marriage--Recovery of dower--Disobedience was justified by non-payment of prompt dower--Husband is not bound to maintain his wife who refuses herself to him or is disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty--There was no evidence to suggest that after marriage the relations between the couple were cordial but the respondent left the house of the petitioner of her own without any fault on the part of the petitioner--Decree is supported by actual evidence and hardly calls for interference of High Court. [Pp. 81 & 82] B & C
(ii) Contitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Violation of law--Legality--If Tribunal or Court acted without jurisdiction or in violation of any relevant Statute or law and High Court in such cases cannot embark upon a re-appraisal of evidence and proceed as if it was hearing an appeal from a subordinate Court. It is the job of appellate Court to appraise the evidence in accordance with law--Petition dismissed. [P. 81] A
Mr. Saeedullah Khan Khalil, Advocate for Petitioner.
Date of hearing: 8.11.2006.
Order
Ijaz-ul-Hassan, J.--Mst. Nizakat Bibi. respondent, filed suit on 29.6.2004, before Judge. Family Court, Malakand at Dargai, against her husband Rehman Gul, petitioner, for dissolution of marriage, recovery of dower, maintenance and return of dowry articles. It was averred in the plaint that petitioner married respondent in consideration of gold ornaments, weighing 3 tolas as dower. At the time of marriage, parents of the respondent had given her dowry articles valuing Rs. 20,000/-. After marriage, the relations between the couple were not cordial due to ill treatment of the petitioner and his parents. After about one month of the marriage, petitioner expelled the respondent out of his house, depriving her of her gold ornaments and dowry articles. The respondent came back to the petitioner's house due to efforts of the elders of the locality. She was again kicked out of the house. During the period of separation, she has not been looked after and paid maintenance.
The suit was resisted and the allegations of the respondent were denied. Relevant issues were framed and the parties were allowed to adduce evidence in support of their respective contentions. At the conclusion of trial, learned Judge, seized of the matter, partially decreed suit vide judgment and decree dated 30.3.2006, qua dissolution of marriage, recovery of gold ornaments weighing two tolas, recovery of dowry articles, valuing Rs. 5000/- and maintenance for the past 24 months at the rate of Rs. 1,000/- PM.
Feeling aggrieved, the petitioner has filed instant writ petition, which is before us for consideration.
Learned counsel for the petitioner contended that judgment of the trial Court suffers from serious infirmities and the trial Court has not considered the legal and factual aspect of the case and has misread and non-appraised the evidence. He also contended that respondent left the house of the petitioner of her own and, as such, she was not entitled for maintenance. The finding recorded on Issue No. 7, regarding cruelty, were also brought under challenge. To substantiate the contentions, reliance was placed on the following citations:
Mst. Bushara Nazneen Vs. Allah Ditta and 2 others (2004 CLC 1700), Muhammad Asad Khan Vs. Mst. Sadaf Niaz and another (2005 CLC 1881), Muhammad Zafar Vs. Judge, Family Court and another (2005 CLC 1844), Abdur Rauf Vs. Mst. Rafia Gul and 2 other (2003 YLR 3047), Mst. Hanifa Bai Vs. Muhammad Moosa and another (PLD 1998 Karachi 234) and Dr. Anees Ahmad Vs. Mst. Uzma (PLD 1998 Lahore 52).
A
(F.F.) Petition dismissed.
PLJ 2007 Peshawar 82 (DB)
Present: Ijaz-ul-Hassan Khan and Fazlur Rehman, JJ.
BAKHT ZADA--Petitioner
versus
Mst. JOOMREZA and 2 others--Respondents
W.P. No. 968 of 2006, decided on 7.11.2006.
Constitution of Pakistan, 1973--
----Art. 199--Maintenance--Husband duty--Justification by non-payment of prompt dower--Husband is not bound to maintain his wife who refuses herself to him or is disobedient unless the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty--Dower fixed was not paid--Wife was kicked out from the house by husband and the husband did not provide any maintenance to her--Petitioner had contracted second marriage without prior permission of the respondent--No material of evidence seems to have been misappreciated or kept out of consideration. [Pp. 84 & 85] C
Islamic Law--
----Marriage is civil contract and not a sacrament--Liability of husband--It is the bounden duty of husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage--Islam has laid down parameters for spouses to live within those bounds and if parties transgress those parameters, they would relieve each other i.e. they may break matrimonial tie with kindness.
[P. 84] B
(iii) Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Violation of Statute or law--Suit for restitution of conjugal right was dismissed by the Courts below--Assailed--Discretionary in nature--Re-appraisal of evidence--Court has to see, if the Tribunal or Court acted without jurisdiction or in violation of any relevant Statute or law and High Court cannot embark upon a re-appraisal of evidence and proceed as it was hearing an appeal from a sub-ordinate Court--It is the job of Appellate Court to appraise the evidence and same has been done in the instant case in accordance with law--Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly that decision is incorrect does not render the decision as without lawful authority--Petition was dismissed. [P. 84] A
Mr. Masoodur Rehman, Advocate for Petitioner.
Date of hearing: 7.11.2006.
Order
Ijaz-ul-Hassan, J.--Mst. Joomreza, respondent, instituted a suit on 7.7.2004, against her husband Bakht Zada, petitioner, for dissolution of marriage, recovery of dower and maintenance and custody of Mst. Hussan Jamala, minor. It was alleged in the plaint that the petitioner married respondent about 10 years prior to the institution of the suit and three children were born out of the wedlock. After six years of the marriage, the relations between the spouses became strained due to stated ill treated of the petitioner and refusal on his part to pay dower of the respondent. It was also asserted that during the period of separation, the petitioner has not cared to pay maintenance allowance.
Bakht Zada, petitioner, also filed a suit on 9.8.2004, for restitution of conjugal rights. Both the suits were consolidated. Issues were framed and after recording such evidence as the parties wished to adduce, suit of Mst. Joomreza was partially decreed qua dissolution of marriage and recovery of dower and maintenance allowance, by judgment and decree dated 15.12.2004, passed by learned Senior Civil Judge/Judge Family Court, Shangla. The prayer of the wife for custody of her minor daughter was declined. The suit of the husband for restitution of conjugal rights was dismissed. An appeal was preferred thereagainst by the husband, which did not succeed. The same was dismissed by learned District Judge/Judge Family, Shangla, vide judgment dated 27.4.2006.
Feeling aggrieved, Bakht Zada, petitioner has approached this Court by way of filing instant writ petition, which is before us for consideration.
Learned counsel for the petitioner, contended that judgments and decrees of the forums below suffer from the vice of mis-reading and non-reading of evidence on record. He also contended that sufficient material was available on the file to demonstrate that dower was paid to the respondent-wife at the time of marriage and the respondent-wife left the house of the petitioner-husband of her own and refused to come back despite best efforts of the petitioner-husband, which has not been appreciated in its true perspective and that the document Ex.DW.1/2 has been ignored without any justifiable reason, which has resulted in complete failure of justice.
Jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is completely discretionary in nature and may be declined in appropriate cases. While exercising constitutional jurisdiction, this Court has to see, if the Tribunal or Court acted without jurisdiction or in violation of any relevant statute or law and High Court in such cases cannot embark upon a reappraisal of evidence and proceed as if it was hearing an appeal from a subordinate Court. It is the job of the appellate Court to appraise the evidence and same has been done in the instant case in accordance with law. No irregularity or jurisdictional defect has been pointed out by the learned counsel for the petitioner inviting interference of this Court. Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as without lawful authority, as held in Zulfiqar Khan Awan Vs. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 8 others (PLD 1973 SC 530).
The marriage under Islamic law is a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Quran and it is for the comfort, love and compassion. It is the bounden duty of husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live within those bounds and if the parties transgress those parameters, they should relieve each other i.e. they may break matrimonial tie with kindness.
No doubt, it is true that a husband is not bound to maintain his wife who refuses herself to him or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower, or she leaves the husband's house on account of his cruelty. It is clear from the material on record that at the time of marriage a sum of Rs. 10,000/- was fixed as dower of the respondent-wife, which has not been paid. There is also evidence on the file to prove that the respondent was kicked out from the house by the petitioner and all throughout the petitioner did not provide any maintenance to her. The record further reveals that the petitioner has contracted second marriage without prior permission of the respondent. The judgments and decrees passed by the Courts below are supported by actual evidence on the file and no material portion of evidence seems to have been mis-appreciated, non-appreciated or kept out of consideration. The writ petition has no force and the same is accordingly dismissed in limine.
(F.F.) Petition dismissed
PLJ 2007 Peshawar 85
Present: Dost Muhammad Khan, J.
HAJI NAWAB KHAN & others--Petitioners
versus
Mst. RABIA NASEER--Respondent
C.R. No. 1531 of 2005(m) with C.M. No. 1363 of 2005(n), decided on 27.6.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 10 & O, VII, R. 11--Non-apperance--Defence was struck off--Ex-parte decree--Discretionary power--Question of law--Petitioner had failed to submit written statement--Proper issues were framed for recording pro and contra evidence thereon so that the trial sails smoothly and within the prescribe of parameters--Court was not denuded of its authority to treat an application as a written statement if it raises important question of law or of facts which can be reduced into issues--Case remanded to trial Court with direction that application of petitioner would be treated as written statement.
[P. 87] B & C
(ii) Administration of Justice--
----Code of Civil Procedure is primarily meant for streamlining and channelizing the smooth administration of justice--Technicalities contained in the various provisions thereof were enacted with above object--Compliance will become mandatory in case some vested right accrues to the opposite party due to the negligent and wilful omission of the party at fault or compliance with the same becomes essential for securing the ends of justice or on the ground of public policy.
[P. 86] A
Mr. Amir Hussain, Advocate for Petitioners.
Absent for Respondent.
Date of hearing: 27.6.2006.
Judgment
Defence of the petitioners was struck off under Order VIII, Rule 10 C.P.C on 16.11.2005 by the leanred Civil Judge-VII, Peshawar because despite of directions given they failed to submit the same. Learned Additional District Judge-I, Peshawar confirmed the said judgment through judgment and decree dated 16-11-2005 hence, this petition of revision.
Both the parties appeared before the Deputy Registrar of this Court on pre-admission notice issued by the Court, on 7-5-2006. The parties were given "Parcha Peshi" while case was listed in their presence before the Court for hearing on 27-6-2006 i.e today. Several calls were made but none appeared from the respondent's side, therefore, they are placed ex-parte.
True that the petitioners did not appropriately comply with the order of the trial Court and failed to submit written statements, therefore, the discretionary powers were exercised under Order VIII, Rule 10 C.P.C, however, the learned trial Court as well as the learned Court of appeal conveniently ignored that in the application filed under Order VII, Rule 11 C.P.C important questions of law were raised and in the interest of justice the trial Court could competently treat the same as a written statement.
The Code of Civil Procedure is primarily meant for streamlining and channelizing the smooth administration of justice. The technicalities contained in the various provisions thereof were enacted with the above object. The compliance therewith will become mandatory in case some vested right accrues to the opposite party due to the negligent and wilful omission of the party at fault or compliance with the same becomes essential for securing the ends of justice or on the ground of public policy. The same are not to be used as thwarting/chowking devices by stifling down the process of justice itself. In the case of Imtiaz Ahmad Vs. Ghulam Ali (PLD 1963 SC 382), the Hon'ble Supreme Court laid down the following golden principle:
"the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on the grounds of public policy--Any system which by giving effect to the form and not the substance defeats substantive rights and is defective to that extent".
No doubt under Order VIII certain conditions are provided which have to be fulfilled while filing written statement but the object behind the same is that the defendant like the plaintiff, shall fairly disclose and place its case/defence before the Court in clear terms so that the opposite party shall know about the defence and that proper issues are framed for recording pro and contra evidence thereon so that the trial sails smoothly and within the prescribed parameters. The Court is not denuded of its authority to treat even a Misc. application as a written statement if it raises important questions of law or of facts which can be reduced into issues. In this case too, the trial Court was not only competent but was under obligations to have treated the petition under Order VII, Rule 11 C.P.C as a written statement.
Both the learned Courts below have conveniently ignored the salutary principle of justice as well as of law on the subject and in this way have exercised jurisdiction in a manner causing miscarriage of justice.
For what has been discussed above and to firmly secure the ends of justice on the basis of principle laid down by the Apex Court in Imtiaz Ahmad case supra, this petition is allowed, both the impugned judgments and decrees are set aside and the case is remanded to the trial Court with the direction that the application of the petitioners filed under Order VII, Rule 11 CPC shall be treated as a written statement and if it is deemed proper that points of law shall be decided first then, the trial Court shall act according to Order XIVm Rule 2 C.P.C. No order as to costs.
(F.F.) Petition allowed.
PLJ 2007 Peshawar 88
Present: Ijaz-ul-Hassan, J.
SHAH WAZIR KHAN--Petitioner
versus
TAHOOR-UL-ISLAM--Respondent
C.R. No. 352 of 2005, decided on 20.11.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Suit for permanent injunction--Suit was dismissed--Appeal was accepted--Appreciation of evidence--Controversial pleadings--Held: Sufficient material was available on the record to substantiate the claim of the plaintiff and the same has not been properly appreciated by the trial Court--Land in-question was "Shamlat Deh" owned by plaintiff and defendant, therefore defendant/petitioner had no justification to construct water channel without consent and permission of the plaintiff--Appellate Court rightly upset the findings of the trial Court--Revision was dismissed.
[P. 90] A & B
Mr. Lal Jan Khattak, Advocate for Petitioner.
Mr. Shakeel Azam Awan, Advocate for Respondent.
Date of hearing: 20.11.2006.
judgment
Shortly narrated the facts necessary for decision of the present civil revision are, that Tahoorul Islam, plaintiff, instituted suit against Ahmad and Shah Wazir Khan, defendants, for grant of permanent injunction, alleging that plaintiff is owner of suit land, detailed in the head note of the plaint and defendants had no justification to construct water channel in it without consent and permission of the plaintiff. It was also prayed that defendants be restrained to construct water channel or store construction material at the spot.
The suit was resisted by the defendants on all grounds, legal as well as factual. The trial Court after framing the relevant issues, arising out of controversial pleadings of the parties, called upon them to produce evidence in support of their respective cases, whereafter it dismissed the suit of the plaintiff, vide, judgment and decree dated 31.3.2004, holding that plaintiff has not been able to substantiate his claim by producing cogent and convincing evidence. An appeal was preferred thereagainst, which was accepted by judgment dated 23.12.2005, passed by learned Additional District Judge, Buner at Dagger. The judgment and decree of the trial Court dated 31.3.2004 was set aside and suit was decreed.
Appearing on behalf of the petitioner, Mr. Lal Jan Khattak, Advocate contended that respondent was not affected from the construction of water channel and only intended to repair it for the benefit of other co-sharers of the area. The learned counsel maintained that learned appellate Court has not taken note of the material aspects of the case nor has it dealt with the cogent reasoning adopted by the trial Court while dismissing suit of the plaintiff. The impugned appellate decree is not sustainable. Learned appellate Court had no legal justification to take contrary view of the matter and upset the reasoned judgment of the trial Court.
Opposing the prayer for acceptance of the civil revision and rebutting the arguments of the learned counsel for the petitioner, it has been argued by Mr. Shakeel Azam Awan, Advocate for the Respondent No. 1 that appellate Court has thoroughly scanned the evidence produced by the parties and had drawn correct conclusion from the record, which are not open to legitimate exception. In this regard reliance was placed on Sajawal Shah and another Vs. Syed Rahim Shah and others (PLD 1975 Supreme Court 325) and Mst. Bhag Bhari etc. Vs. Mst. Ghagan and another (PLD 1954 Lahore 356).
Contentions of the learned counsel for the parties have been heard in detail in the light of the material on file.
Having considered the matter from all angles, I find that the judgment dated 31.3.2004 rendered by learned trial Court is not sustainable in law. The said judgment, as compared to the learned appellate Court's judgment, suffers from grave legal errors, which have been rectified by the learned appellate Court, by reversing the findings of the learned trial Court and substituting its own findings, which are supported by reasons. I have not been persuaded by the learned counsel for the petitioner to restore the judgment of the trial Court, which has rightly been upset by the learned appellate Court. Learned counsel for the petitioner has not been able to show that the reasons given by the trial Court on the basis of evidence on the record are well founded and are weighty than the Court of appeal and that the Court of appeal without considering the material recorded the impugned judgment in a mechanical manner without application of independent judicious mind, which has resulted in failure of justice. Sufficient material was available on the record to substantiate the claim of the plaintiff-respondent, which has not been properly appreciated by the trial Court and put at shelf without any justifiable reason. The suit land is 'shamilat-e-deh' and plaintiff and Defendant No. 2 are co-owners. Defendant-respondent, as such, had no justification to construct water channel without consent and permission of the plaintiff-respondent.
In the result and for the foregoing reasons, finding no force in this civil revision, I dismiss the same, with no order as to costs.
(N.J.) Revision dismissed
PLJ 2007 Peshawar 90
Present: Ijaz-ul-Hassan, J.
SHERZADA & others--Petitioners
versus
MIR MUHAMMAD and another--Respondents
C.R. No. 937 of 2005, decided on 10.11.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Suit for declaration was dismissed by Courts below--Assailed--Concurrent finding of fact--Allegation of misreading and non-reading of evidence--Validity--Held: Impugned judgments and decrees suffered from acute misreading and non-reading of evidence without a positive attempt to substantiate the same, was of no consequence--Concurrent findings of fact recorded by Courts below cannot be upset by High Court in exercise of revisional jurisdiction--Revision was dismissed. [P. 92] B
1996 SCMR 137, ref.
(ii) Principle of Law--
----It is established principle of civil law that the plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case. [P. 92] A
Mr. Safeerullah Khan, Advocate for Petitioners.
Mr. Shamaan Ahmad Bajwa, Advocate for Respondent.
Date of hearing: 10.11.2006.
Judgment
Facts relevant for the disposal of instant civil revision are, that Janbaz and others, plaintiffs, instituted suit against Mir Muhammad and his brother Siraj Muhammad, defendants, claiming a declaration to the effect that plaintiffs were owners in possession of suit property, detailed in the plaint, having inherited the same from their predecessor-in-interest, late Jurabad and the entries in the revenue record, contrary to it, were illegal, void, fraudulent ineffective on the rights of the plaintiffs and liable to rectification. In the alternative, the plaintiffs also sought possession of suit property in case they were not found in possession of the same. The plaintiffs further prayed for grant of permanent injunction, restraining the defendants to interfere in the possessory rights of the plaintiffs.
The defendants resisted the suit on all grounds legal as well as factual and denied the claim of the plaintiffs in respect of suit property. The parties were put to trial on as many as nine issues. After recording such evidence as the parties wished to adduce, learned civil Judge/Illaqa Qazi, Buner at Daggar, vide judgment and decree dated 6.7.2004, dismissed the suit, holding that the plaintiffs have not been able to substantiate their claim by producing cogent and convincing evidence. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Buner at Daggar, vide judgment dated 27.4.2005.
Mr. Safirullah Khan, Advocate, learned counsel for the petitioners, contended, inter alia, that both the judgments and decrees passed by the forums below, are tainted with illegality of misreading of evidence and suffer from the defect of material irregularity, run counter to the evidence on the file, as such, are not sustainable at law in spite of being concurrent. The learned counsel also contended that deed dated 26.6.1915, basis of the petitioner's claim, produced during the trial and duly exhibited, has not been appreciated in its true perspective. The learned counsel added that sufficient material was available on the file to prove that the petitioners were successor-in-interest of one Shahbaz, son of Jurabaz, original owner of suit property, which has been put at shelf and excluded out of consideration, which has resulted in manifest injustice.
Contrarily, Mr. Shamoon Ahmad Bajwa, Advocate, appearing on behalf of respondents, on pre-admission notice, refuted the arguments of learned counsel for the petitioners and fully supported the impugned judgments and decrees of the Courts below.
It is established principle of civil law that the plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case.
The claim of the petitioners is that they are owners in possession of suit property, having inherited the same from Shahbaz son of late Jurabaz and respondents have no concern with it. The petitioners have produced five witnesses in support of their claim. The evidence led by the petitioners is discrepant and insufficient to lead to conclusion that petitioners are actually successors-in-interest of late Jurabaz, original owner of suit property. Both the Courts below have disbelieved the version of the petitioners for valid and sound reasons, which are not open to legitimate exception. Despite having been asked repeatedly to point out the evidence misread or non-read by the Courts below, learned counsel for the petitioners has remained unable to do so. The mere assertion of the learned counsel that the impugned judgments and decrees suffer from acute misreading and non-reading of evidence and cannot be allowed to remain intact, without a positive attempt on his part, to substantiate the same, is of no consequence. It is well settled law that a concurrent finding of fact recorded by two Courts below cannot be upset by this Court in exercise of the revisional. Jurisdiction under Section 115 CPC unless the two Courts below while recording the finding of fact have either misread the evidence or ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse to the evidence on record. It is well settled that it only lies on the ground of error or law or error in procedure, which may have affected the decisions of the case upon merits. If an authority is needed on the point, reference can be made to Sughran Bibi Vs. Mst. Aziz Begum and 4 others (1996 SCMR 137).
Pursuant to above, finding no substance in this civil revision, I dismiss the same, with no order as to costs.
(N.J.) Revision dismissed
PLJ 2007 Peshawar 92
[Abbottabad Bench]
Present: Muhammad Raza Khan, J.
FIRDOOS SHAH--Petitioner
versus
Mst. MEMOON BIBI--Respondent
C.R. No. 23 of 2003, decided on 12.12.2006.
Registration Act, 1908 (XVI of 1908)--
----Ss. 32 & 33--Contract Act, (IX of 1872), S. 215--Civil Procedure Code, (V of 1908), S. 115--Revisional jurisdiction--Registration of power of attorney for purpose of management and disposal of property--Responsibility of registration authority--Principal--Validity--Attorney had authority to enter into transaction thereto he was duty bound to explain that he had rendered true accounts of transaction to principal--If enters into bargain of sale, he receives the consideration on behalf of the rpincipal which has to be refunded and in case of an exchange he has to explain true value of the property. [P. 96] A
Power of Attorney--
----Property of principal--Restriction--Attorney has to take the principal in confidence before converting the property of the principal on the force of power of attorney into personal use or for benefit of his nearer relative--If property of the principal is transferred against petty amount and there is no proof that even the amount was ever transferred by the attorney to principal, transaction would suffer from inherent defect of being contrary to law and authority of the attorney. [P. 96] B & C
Registered Deed--
----Relationship of principal and agent--Notice to public-at-large--Registered deed amounts to notice to public-at-large but in view of relationship of principal and agent, the general trend of transaction by attorney may not come to notice of the principal or any one related to him unless such transaction is incorporated in revenue record where it can be noticed by every body. [P. 97] D
Power of Attorney Act, 1882--
----S. 2--Revocation of power of attorney--Effect--Held: Transaction by the attorney in favour of the third party might be considered to be lawful but the transfer of huge property against a petty sum of dower in favour of his own wife had to be scrutinized with caution, and though the revocation could not retrospectively but such transfer would not be approved unless the bonafides were established.
[P. 97] E
Estoppel--
----Question of--Principle of estoppel will not be applicable that the alleged compromise before the Collector was not proved through evidence. [P. 97] F
Adverse Possession--
----Possession of a co-owner will neither amount to adverse possession nor will it bar a suit for declaration and possession. [P. 97] G
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Appreciation of evidence--Concurrent findings of fact--Held: Lower Courts had properly appreciated the evidence and rightly applied the law--Petition was dismissed.
[P. 97] H
Mr. Muhammad Younis Khan Tanoli, Advocate for Petitioner.
M/s. Mr. Muhammad Asif Khan & Mr. Shaujat Ali, Advocates for Respondent.
Date of hearing: 12.12.2006.
Judgment
The facts lying in the back-ground of this civil revision are that Sultan Shah, the predecessor of the respondents, was the real brother of Firdoos Shah, the predecessor of the petitioners. The said Sultan Shah executed a power of attorney in favour of his brother Firdoos Shah for the purpose of management and disposal of his property. By exercising the said power of attorney Firdoos Shah executed the Deed No. 375 on 10.8.1978 whereby he transferred his own landed property as well as the property of his brother Sultan Shah to his wife Mst. Tahira Bibi in lieu of her dower. The power of attorney was revoked in 1983. He did not challenge the said Registered Deed No. 375 of 1978. The deed was not by then incorporated in the revenue record. So in the year 1992 a mutation was entered which was rejected by the revenue officer. During the proceedings of appeal a compromise was allegedly effected whereby the right of Mst. Tahira Bibi to the disputed land was conceded. The Collector did not accept the compromise and directed the parties to approach the Civil Court for the resolution of their dispute. However, the Addl: Commissioner accepted the compromise and consequently a mutation on the basis of the said registered deed was attested. Prior to the attestation of the said mutation the legal representatives of Sultan Shah had instituted a suit for the declaration to the effect that they were the owners of the property belonging to Sultan Shah and that the Registered Deed No. 375 dated 10.8.1978 was wrong, fraudulent and illegal, therefore, ineffective on their rights. There was also a prayer for perpetual injunction. This suit was decreed by the learned Civil Judge on 3.5.1999. The appeal against the said judgment and decree was dismissed by the learned District Judge, Mansehra on 28.10.2002. Hence, this revision petition.
The learned counsel for the petitioners agitated four points at the bar. Firstly, that the registered deed was a notice to the entire world and, therefore, after the attestation of a registered deed, it was the responsibility of the registration authorities to forward a copy of the deed to the revenue authorities for its incorporation in the record of rights. Secondly, that the delegation of authority to Firdoos Shah through a power of attorney has not been denied and the said attorney included the transaction of mortgage, sale, gift and exchange. So the exercise of the said authority was not restricted and the attorney could transfer the property to his wife in lieu of her dower and could also use the same for his personal account. Thirdly, that the revocation was not retrospective in effect because the contents of the revocation deed specifically mentioned that w.e.f. execution of revocation deed the attorney shall cease to have any authority under the general power of attorney. He further pointed out that once the attorney had exercised the authority vested in him, the principal or his legal heirs can only sue the attorney for damages but the transaction shall be deemed to have attained finality. Fourthly, that the registered deed was executed in 1978 and the power of attorney was revoked in 1983 but the said Sultan Shah who lived uptill 1992 or 1993 did not challenge the said registered deed during his life time. So the suit for possession as well as for declaration subsequently filed was barred by time. The learned counsel for the respondents, relying on various precedents argued that the execution of the power of attorney was not denied but the terms of the said authority has to be interpreted strictly, particularly when the attorney is transferring the property to a person of close fiduciary relationship. He further argued that the deed allegedly registered in 1978 was not brought on the revenue record till the death of the predecessor of the respondents which indicated mala-fides of the predecessor of the petitioners. With regard to the question of limitation he pointed out that the predecessor of the petitioners was admittedly acting as the attorney for his brother Sultan Shah, therefore, he was having the possession of all the property and so the permissive possession neither bars the suit filed subsequently nor does it constitute adverse possession. The learned counsel for the Respondents Nos. 3 to 7 argued, inter alia, that the alleged compromise before the Collector had neither been accepted by the said authority nor has been proved by the petitioners as the marginal witnesses of the said alleged compromise had appeared as D.W.4 and D.W.5 but they had neither confirmed the presence of the respondents-plaintiffs at the time of the said compromise nor did they affirm the signature or thumb impression by the petitioners in their presence. Thus the marginal witnesses had negated the alleged compromise.
Despite the fact that there was a concurrent findings of both the Courts in this case in favour of the respondents and particularly the learned Appellate Court has discussed all the aspects of the case threadbare but in addition thereto it has to be observed that the authority of an attorney needs further consideration in this case. The execution of power of attorney neither amounts to be divesting the principal of the authority over the subject-matter nor does it amount to absolute right of the attorney over the property as its owner. The attorney has to act as an agent of the principal. He has to account for all the transactions. It was not sufficient to prove that the attorney had the authority to enter into a transaction but in addition thereto he was duty bound to explain that he has rendered true accounts of the transaction to the principal. If he enters into a bargain of sale, he receives the consideration on behalf of the principal which has to be refunded to him and in case of an exchange, he has to explain the true value of the property received and that given in exchange. Similarly, the transactions of lease and mortgage should also be for the benefit of the principal. That is why, there is a restriction that the attorney has to take the principal in confidence before converting the property of the principal on the force of the power of attorney into personal use or for the benefit of his nearer relatives. In this particular case the amount of dower of Mst. Tahira Bibi was Rs.4000/-. Firdoos Shah had transferred his own landed property, alongwith considerable property of Sultan Shah, to his wife in lieu of her dower. He had to justify the consideration of the land so transferred and had to pay the consideration thereof to Sultan Shah. Section 215 of the Contract Act, provides for a situation where the agent deals on his own account in the absence of the agency, (i.e., the subject matter of his authority), without principal's consent and the illustration (a) to the said section prescribes that "A directs B to sell A's estate. B buys the estate for himself in the name of C. A on discovering that B has bought the estate for himself may repudiate the sale, if he can show that B has dishonestly concealed any material fact or that the sale has been disadvantageous to him." Thus when the property belonging to Sultan Shah was being transferred by his attorney Firdoos Shah to his wife in lieu of her dower, it was incumbent on Firdoos Shah, firstly, to have sought the permission from the principal for such transfer as well as for the consideration to be paid to Sultan Shah for such transfer. If the property of the principal is transferred against petty amount and there is no proof that even the said amount was ever transferred by the attorney to the principal, the transaction shall suffer from inherent defect of being contrary to law and the authority of the attorney. There can be no doubt that the said power of attorney was general in nature authorizing the predecessor of the petitioners to deal in the property in all manners of transaction but the consideration of each transaction was the right of the owner and the same had to be accounted for. In the case of accrual of rights of third party, the action of misappropriation of trust could be maintained whereas the right of third party being transferees for valid consideration with bona fides could be protected. However, in the case of transfer of the property by the attorney to a person closely related to him has to be strictly considered so that the position could not be misused by the attorneys. The intentions can be gathered from the fact that the said deed registered in 1978 was not incorporated in the revenue record till the death of the said Sultan Shah. There is no doubt that the registered deed amounts to notice to the public-at-large but in view of the relationship of principal and agent, the general trend of transactions by the attorneys may not come to the notice of the principal or any one related to him unless such a transaction is incorporated in the revenue record where it can be noticed by everybody. In view of the position of Firdoos Shah, as is appearing from the evidence, the confidential execution of a deed can be presumed particularly when he can convince persons like D.W.3 and D.W.4 to attest a document which was allegedly executed by the persons not known to the marginal witnesses and who had not signed or thumb impressed the deed in their presence and more particularly when one of them was admittedly a minor.
The revocation could not be retrospective in effect and, therefore, any transaction by the attorney in favour of a third party may be considered to be lawful and the right of a third party could be protected but the transfer of huge property against a petty sum of dower in favour of his own wife has to be scrutinized with caution and though the revocation may not operate retrospectively but such transfer shall not be approved unless the bona fides were established.
The question of estoppel and limitation is also nullified for the reason that the alleged compromise before the Collector was not proved through the evidence and the possession of the suit property with the predecessor of the petitioners being permissive one, coupled with the fact that he was also a co-owner being a real brother of Sultan Shah, therefore, the possession of a co-owner will neither amount to adverse possession nor shall it bar a suit for declaration and possession.
Both the Courts have properly appreciated the evidence and rightly applied the law and particularly the judgment of the learned Appellate Court is comprehensive and speaking one. Finding no interference, the revision petition is, therefore, dismissed. No order as to costs.
(N.J.) Petition dismissed
PLJ 2007 Peshawar 98
Present: Ijaz-ul-Hassan, J.
SARANJAM KHAN--Petitioner
versus
AQAL DIN, etc.--Respondents
C.R. No. 419 of 2005, decided on 30.11.2006.
(i) Qanoon-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 117--Onus to prove--Principle--Plaintiff has to prove his case from his own evidence and cannot benefit from witnesses in the defendant's case, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove. [P. 100] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Question of fact--Limited scope--Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact, rendered by Courts below unless it finds misreading and non-reading of evidence. [P. 100] B
Haji Muhammad Zahir Shah, Advocate for Petitioner.
Mr. Lal Jan Khattak, Advocate for Respondents.
Date of hearing: 2.10.2006.
Judgment
Shortly narrated the facts, leading to the filing of the present civil revision are, that Saranjam, plaintiff, instituted suit (No.40/1 of 2003), against Aqal Din and others, defendants, for a declaration to the effect that plaintiff had become owner of suit land, described in the plaint, by prescription i.e. mortgagee in possession for more than 60 years and no subsisting mortgage exists and the entries in the revenue record, contrary to it, were illegal, void and ineffective on the rights of the plaintiff. The defendants appeared in Court, submitted written statement and contested the suit on all grounds, legal as well as factual. They also filed Suit (No. 327/1) against petitioner, for possession by redemption of suit land. Both the suits were consolidated by learned Civil Judge, Karak. In view of divergent pleadings of the parties, following issues were framed:--
Whether plaintiff has no cause of action?
Whether the defendants/plaintiff has got cause of action?
Whether both the suits are competent in its present form?
Whether both the suits are within time?
Whether the Court has got jurisdiction to entertain the present suits?
Whether plaintiffs Aqal Din etc; are entitled for the decree of redemption as prayed for?
Whether defendants Sir Anjam is entitled for the decree of prescription as prayed for?
Relief.
At the end of the trial, on evaluating evidence of the parties and on the analysis of the legal position, learned trial judge, by his judgment and decree dated 23.9.2003, dismissed suit of the petitioner-plaintiff and decreed suit of Aqal Din and others, respondents, for possession by redemption of suit land on payment of Rs. 1218/-. An Appeal was filed by the petitioner before learned District Judge, Karak, but the same also could not earn any success for the petitioner and was dismissed by judgment dated 10.2.2005, giving rise to filing of this civil revision.
Learned counsel for the petitioner vehemently contended that both the Courts below have not appreciated the controversy in its true perspective and have illegally dismissed suit of the petitioner. The learned counsel maintained that sufficient material was available on the file to substantiate the claim of the petitioner and prove that petitioner was mortgagee in possession of suit land for more than 60 years and had become its owner by prescription, which was over-looked and ignored without any justifiable reason. The learned counsel placed reliance on Zarif Khan and others Vs. Muhammad and others (PLD 1983 Peshawar 58), Muhammad Zaman and 8 others Vs. Abdul Malik Khan and 7 others (PLD 1991 Supreme Court 524), Kata Mir and others Vs. Mst. Sho Begum and others (PLJ 2003 SC 412) and Ismail and 22 others. Vs. Rehmat Ali and 15 others (1993 SCMR 92).
Contrarily, learned counsel for the respondents, refuted the arguments of learned counsel for the petitioner and supported the impugned judgments maintaining that the same are based on correct appraisal of the evidence and there is no infirmity in the impugned judgment, which could justify interference by this Court while exercising revisional jurisdiction.
To Augument the contentions, he placed reliance on Samar Gul Vs. Central Government and others (PLD 1986 Supreme Court 35) and Faqir Gul and others Vs. Abdur Rehman and others (1999 CLC 346).
(W.I.) Revision dismissed
PLJ 2007 Peshawar 101
[Abbottabad Bench]
Present: Salim Khan, J.
I.D.B.P.--Appellant
versus
S.I.E. and another--Respondents
F.A.B. No. 12 of 2005, decided on 23.6.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 66(2)--Auction of property--No mention of any encumbrance in proclamation and warrant of auction--Sale of such property--Effect--Neither the decree holder nor auction purchaser were to be taxed for the purpose of such encumbrance and its amount. [P. 103] A
(ii) Auction Money--
----Omission on the part of Court--Effects--Parties not affected--Principle--Omissions by the Court cannot prejudice any of the parties and appellant cannot be declared liable to pay the arrears out of the amount of auction money. [P. 103] B
Mr. Fazal-e-Gul Khan, Advocate for Appellant.
Mr. Iftikhar Khan Tanoli, Advocate for Respondents.
Date of hearing: 23.6.2006.
Judgment
This first appeal Banking is against the order of Banking Court, Abbottabad dated 11.12.2004 where the observations regarding recovery of charges/claims of arrears have been given to the effect that the Respondent No. 1 (Small Industrial Estate Manshera through Deputy Director Mansehra) may demand their claims of arrears from the decree-holder Bank/IDBP/the appellant, otherwise the order was in favour of the appellant and Respondent No. 2.
We heard the arguments of the learned counsel for the appellant as well as of Respondent No. 1 Respondent No. 2 was not available as being not interested in the result of this F.A.B. The learned counsel for the appellant contended that there was nothing in the auction order to the effect that the encumbrance/claims of Respondent No. 1 from the Judgment-Debtor would be chargeable against the auction money of the disputed property, and no fact to this effect was, even, mentioned in the order in the light of Order XXI Rule 66 of C.P.C. But, the learned Executing Court, took it otherwise and held that as it was not mentioned in the said order that the arrears would not be recoverable from the auction sale proceeds, therefore, the impugned order, to the effect that the Respondent No. 1 may demand the said arrears from the appellant, was incorrect.
The learned counsel for Respondent No. 1 argued that the arrears were related to the property in question and were, recoverable against the said property. When asked whether any oral or documentary evidence was produced by the Respondent No. 1 before the Executing Court to show that any arrears were outstanding to be recovered from the judgment debtor or his property, whether such arrears, if any, were recoverable from the person of the judgment-debtor or from any of his property or the property in question only, or from the person as well as property of the judgment debtor, he could not show us that any such evidence was produced by Respondent No. 1 before the Executing Court. He admitted that the Respondent No. 1 had not, even, produced the lease deed, if any, or other agreement deed, if any, between Respondent No. 1 and the judgment-debtor regarding the property in question, sold through the auction in question.
The Respondent No. 1 may have a right to claim arrears against the judgment-debtor, and may have a right to recover the same either from the person or property of the judgment-debtor in accordance with the terms and conditions of the lease deed/agreement deed between the respective parties. But, the Respondent No. 1 had not specifically mentioned the amount of arrears and had not shown the chargeability of the said amount against the property in question.
Sub-rule (2) of Rule 66 of Order XXI of C.P.C. is as follows--
"(2) Such proclamation shall be drawn up after notice to the decree holder and the judgment debtor and shall state the time and place of sale, and specify as fairly and accurately as possible :
(a) ...........................................;
(b) ...........................................;
(c) any encumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) ............................................;"
Without mentioning any encumbrance to which the property was liable, and without mentioning the amount of such encumbrance and without adding it to the amount already outstanding and making a total amount for which the sale was ordered, in the proclamation and the consequent warrant of auction, neither the decree holder nor the auction purchaser were to be taxed for the purposes of such encumbrance and its amount. The encumbrance was not brought to the notice of the decree-holder or to the notice of auction purchaser before or at the time of auction, and the later verbal objection was a mere addition in the report of the auctioneer, without any solid basis for the same.
In these circumstances, we hold that the observation of the learned Executing Court regarding the claims of Respondent No. 1 from the appellant is not based on solid ground. The omissions by the Court cannot prejudice any of the parties, and, the appellant cannot be declared liable to pay the charges/arrears out of the amount of auction money, specially in the circumstances that further huge amount of the decree holder is still outstanding against the judgment-debtor.
By accepting the present appeal, we set aside the remarks/observations regarding the right of the Respondent No. 1 to demand the claims of arrears from the appellant. We, however, observe that the Respondent No. 1 shall have all the rights against the judgment-debtor, when they proceed in accordance with law for the recovery of their arrears against the judgment-debtor and/or his property.
(W.I.) Appeal accepted
PLJ 2007 Peshawar 103
Present: Muhammad Raza Khan, J.
NOOR REHMAN--Petitioner
versus
NATIONAL BOOK FOUNDATION and others--Respondents
C.R. No. 451 of 1999, decided on 21.11.2006.
(i) Requisition of Property--
----Lack of confidence--If Government agency requires a property of a citizen for the public purpose, there were legal ways of acquisition or requisition of property--Use of brutal force was never authorized and could not be permitted--Decisions of the Courts merely encourage the officials agencies to repeat such display of misuse of authority and thus the rights of the individual citizens are likely to be infringed repeatedly--The people are thus justified to demonstrate their lack of confidence in the system of state machinary. [P. 105] A
(ii) Trespass--
----Recovery of rent--Rent payable by an allottee to the Cantt. Board and not by a normal tenant to the landlord, whereas the position of the respondents was that of a trespasser who would had been subjected to the payment of enhanced rent. [P. 105] B
(iii) State Functionaries--
----Entitlement to receive rent--If the state functionaries can use the property of a citizen by their choice, the citizens shall, at least be entitled to receive the compensation of his choice, specially when the amount so claimed is at the minimum of the prevailing market rent of such premises--Petition was allowed. [P. 106] C
Mr. Muhammad Alam, Advocate for Petitioner.
Syed Asif Shah, Advocate for Respondent.
Date of hearing: 21.11.2006.
Judgment
This is a revision petition against the decisions of the learned Civil Judge as well as the Additional District Judge whereby they partially dismissed the suit of the present petitioner.
The petitioner had instituted a suit for the recovery of possession of a shop described in the head note of the plaint and demanded rent at the rate of Rs. 4000/- per month with effect from 19/5/1991 till the recovery of its possession and there was also a prayer for the recovery of Rs. 2,80,000/- as damages against the Defendants 1 to 6.
The plaintiff/petitioner was the successful bidder of the suit shop which he obtained through public auction held by the Cantt: Board Mardan and the possession was delivered to him after the deposit of the entire amount due from him to the Cantt: Board. The plaintiff/petitioner was using the shop and paying the dues of the Cantt: Board. However, Defendants 1 and 2, by mis-using the powers of all the respondents, forcefully took possession of the shop by breaking open the locks and damaging the personal property.
This suit was contested and at the conclusion of trial, the learned Civil Judge passed the decree for the possession of the shop and the recovery of rent payable by the plaintiff to the Cantt: Board, whereas the claim of market rent and the demand for recovery of damages was dismissed. The learned Appellate Court, however, reversed the findings of the learned Appellate Court on Issue No. 8 and thereby a decree of Rs. one lac was passed against the Defendant No. 3 Faridullah Khan (in person) whereas the remaining plea with regard to the enhanced rent was declined, hence this revision petition.
Arguments heard and record examined.
The records shows that the plaintiff was the person lawfully in possession of the shop on payment of prescribed rent to the Cantt: Board. The Defendants/Respondents 1 and 2 being National Book Foundation required a place for their office. By using the force and the official status of the respondents, they forcefully dispossessed the petitioner and took possession of the said shop for the purpose of office of the National Book Foundation. It was established through evidence, and as rightly held by the learned Appellate Court, that the said action was without the due process of law. It amounted to highhandedness and mis-use of authority by the functionaries of the State a against citizen and his property. The damages of Rs. one lac and that too against an Officer will not be a sufficient compensation to the plaintiff/petitioner. The rent paid by the petitioner to the Cantt: Board as a result of being a successful bidder and after paying a considerable amount of premium was certainly not the market rent. It was certainly less than the market value.
If the government agencies requires a property of a citizen for the public purpose, there were legal ways of acquisition or requisition of property. The use of brutal force was never authorized and cannot be permitted. The lukewarm decisions of the Courts merely encourage the official agencies to repeat such display of mis-use of authority and thus the rights of the individual citizens are likely to be infringed repeatedly. The people are thus justified to demonstrate their lack of confidence in the system of State machinery.
So far as the claim of possession of the suit shop and damages are concerned, the petitioner/plaintiff is satisfied but with regard to the claim of rent he has reservations. The rent, that has been decreed in his favour, was not the prevailing market rent. It was the rent payable by an allottee to the Cantt: Board and not by a normal tenant to the landlord, whereas the position of the Respondents 1 and 2 is that of a trespasser who should have been subjected to the payment of enhanced rent. There is sufficient evidence on the file indicating the rent upto Rs. 9000/- P.M. but since the plaintiff himself claimed the rent at the rate of Rs. 4000/- P.M. with effect from the date of his forceful dispossession, therefore, the amount over and above the said claim cannot be allowed. Since the respondents have taken an extra ordinary step of mis-use of the official authority, therefore, they were liable to pay the rent at the rate so determined by the plaintiff/petitioner. If the State functionaries can use the property of a citizen by their choice, the citizens shall, at least be, entitled to receive the compensation of his choice, specially when the amount so claimed is at the minimum of the prevailing market rent of such premises.
The revision petition is, therefore, allowed, the finding of both the Courts with regard to the determination of payable rent is modified and the petitioner/plaintiff is held entitled to a sum of Rs. 4000/- per month as the rent of the said shop with effect from the date of dispossession till its vacation.
(F.F.) Petition allowed
PLJ 2007 Peshawar 106
Present: Ijaz-ul-Hassan, J.
COLLECTOR LAND ACQUISITION MARDAN, etc.--Appellants
versus
MUHAMMAD AYUB KHAN etc.--Respondents
R.F.A. No. 186 of 2005, decided on 27.11.2006.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 18 & 23--Acquisition of land--Enhancement of compensation--Objection petition was accepted--Assailed--Determination of--Market value is only one of such matters, to be considered by Collector or Courts--Compensation is a very wide term indicating that land owner, for various reasons, is to be compensated and not merely paid price of land, which is just an interaction of supply and demand fixed between a willing buyer and willing seller--Place and situation of acquired land would be arch consideration to be given thoughtful attention for assessment of compensation of land--Appeal was dismissed. [P. 108] A
PLD 2004 Supreme Court 512 & PLD 1990 Peshawar 83, rel.
Mr. Lal Jan Khattak, Advocate for Appellants.
Mr. Salar Muhammad Ayub, Advocate for Respondents.
Date of hearing: 27.11.2006.
Judgment
By judgment dated 21.2.2005, learned Senior Civil Judge/Judge Land Acquisition, Mardan, has enhanced the quantum of compensation on Reference under Section 18 of the Land Acquisition Act, 1894, (hereinafter referred to as the Act), which judgment has been assailed by the Collector, Land Acquisition, Mardan and others, through instant appeal under Section 54 of the Act.
Vide Award No. 3/4 dated 21.3.2002, a piece of land, including the land of Muhammad Ayub Khan and others, Respondents 1 to 8, bearing Khasra Nos. 2687, 2690 and 2808, measuring 3 kanals 14 marlas, was acquired by the appellants at different rates, for the remodeling and widening of `khunder' drain, Mardan. The land owners objection to the compensation amount fixed for their acquired land and filed an objection petition under Section 18 of the Act, for the enhancement of the compensation. The objection petition, having been contested, was accepted by the Land Acquisition Judge, Mardan, by enhancing rate of their acquired land and it was also ordered that the appellants will also pay rate as determined in the judgment for the landed property, represented by Khasra No. 2486, owned by the answering respondents.
The validity and correctness of the impugned judgment is assailed by Mr. Lal Jan Khan Khattak, Advocate, mainly on the ground that while revising and enhancing the compensation, learned Referee Court has not kept in view the criteria and principle governing the determination of compensation to be paid for the acquired land. The compensation of the acquired land determined by the land Acquisition Collector was in line with the legal provision of the Act and also with the prevailing factor necessary for taking into account for determining actual market value of the acquired land. It was also contended that the trial Court proceeded on wrong premises to hold that the area falling in Khasra No. 2486 was also taken by the appellants, nor there is any evidence showing that the land owners have been deprived of this piece of land.
As against that, Salar Muhammad Ayub, Advocate for the contesting respondents, refuted the arguments of learned counsel for the appellants and supported the impugned judgment and decree whole heartedly, maintaining that the Referee Court has proceeded strictly on the basis of the evidence and the judgment and decree is in conformity with the principle governing the fixation of compensation.
The respective contentions have been considered in the light of evidence on the record.
It needs no reiteration that most important aspect of the qua land compulsorily required, is mandatory returns proposed to be given to the owners, is the compensation and not the market value. Very section 23 of the Act provides for various matters to be brought into consideration while determining compensation. Market value is only one of such matters, to be considered by Collector or Courts. Compensation is a very wide term indicating that the land owner, for various reasons, is to be compensated and not merely paid the price of land, which is just an interaction of supply and demand fixed between a willing buyer and willing seller. Mere classification or nature of land may be taken as relevant consideration, but is not an absolute one. Location, neighbourhood, potentiality or other benefits, all these factors cannot be ignored. The place and situation of the acquired land should be arch consideration to be given thoughtful attention for the assessment of compensation of the land. Province of Sindh through Collector of District Dadu and others vs. Ramzan and others (PLD 2004 Supreme Court 512) and Afzal Shah vs. Land Acquisition Collector and others (PLD 1990 Peshawar 83).
Having considered the matter from all angles, I am of the view that the compensating assessed and determined by learned trial Court is fair and reasonable. Upon the examination of the impugned judgment, I find that learned Reference Court adverted to every aspect of the case and advanced valid and cogent reasons in support of her finding. Learned counsel for the appellants has failed to draw my attention to any portion of evidence, which was allegedly over looked or was misread by the Court below. It may be pertinently mentioned here that Award No. 63 (Ex. OW.2/1) was announced on 25.8.1998, regarding lands adjacent to the acquired land and higher compensation was awarded to the owners, but in the case of respondents, a novel criteria was adopted and respondents were treated differently. Adverting to the second objection of learned counsel for the appellants, regarding acquisition of Khasra No. 2486, measuring 1 kanal 14 marlas, or otherwise, Hamesh Gul (PW.1) Patawri Halqa, placed on record `Aks Shajara' (OW.2/1), and deposed that said Khasra number was taken over by appellants but was not included in the Award. The testimony of the witness has gone un-challenged.
In view of the above, the Court was, thus, justified to rely upon the relevant factors and to fix the compensation accordingly, which is consistent with the criteria and the yardsticks laid down by the superior Courts. I, therefore, find no valid justification to take a different view of the matters than has been taken by the Reference Court. The appeal is without merit, which is dismissed, leaving the parties to bear their own costs.
(A.S.S.) Appeal dismissed
PLJ 2007 Peshawar 109
Present: Ijaz-ul-Hassan, J.
JAVED AHMAD and another--Petitioners
versus
MALIK SAID AMIR KHAN--Respondent
C.R. No. 1287 of 2005, decided on 24.1.2007.
NWFP Pre-emption Act, 1987 (V of 1987)--
----S. (3)--Civil Procedure Code, (V of 1908), S. 115--Suit of pre-emption--Contradictory evidence--Violation of administration of justice--Civil revision--Making of talb-i-ishhad by sending a notice in writing attested by two truthful witnesses under registered cover and acknowledgement due to vendee--Impugned judgment was neither contrary to the evidence on record nor in violation of the principle of administration of justice thus the judgment of the Appellate Court would ordinarily be preferred--Judgment of the trial Court was not sustainable in law--Such judgment as compared to the Appellate Court's judgment suffers from grave legal errors, which have been rectified by the Appellate Court by reversing findings of the trial Court and substituting its own findings which are supported by reasons--Judgment of Appellate Court does not suffer from any infirmity or jurisdictional defect within the contemplation of S. 115 CPC, amendable to the interference of High Court in its revisional jurisdiction--Revision was dismissed. [P. 112] A, B & C
Mr. Altas Khan Dagai, Advocate for Petitioners.
Mr. Tasleem Hussain, Advocate for Respondent.
Date of hearing: 22.1.2007.
Judgment
By virtue of sale Mutation No. 1112 attested on 9.8.2001, suit land, owned by Muhammad Ajmal, vendor was purchased by Javed Ahmad and his brother Saeed Ahmad, vendee-defendants, for a consideration of Rs. 1,30,000/-.
Syed Amir Khan, plaintiff on 7.11.2002, filed a suit for possession of the said land by pre-emption. According to him, the land, had, in fact been sold for Rs.
20,000/-, but the amount over and above it was inserted in the suit mutation in order to frustrate his right of pre-emption. It was claimed that plaintiff acquired knowledge of the sale of the land on 26.10.2001 in the village mosque after juma' congregation through one Misbahuddin son of Ghulam Yahya Qureshi.
He immediately declared intention to pre-empt and thereafter in presence of
Muhammad Sherin son of Muhammad Rahim and Badhshah Gul son of Torbaz, issued registered notice oftalb-i-ishhad' on the following day i.e. 27.10.2001, which was duly received by the defendants. It was averred that plaintiff being co-sharer, contiguous owner and participator in immunities and appendages of suit land, possessed preferential right of pre-emption, qua defendants, who were not equipped with this qualification.
The suit was resisted by the vendee-defendants on various grounds legal as well as factual, superior right of pre-emption of the pre-emptor was denied and requirements of `talabs' were stated to have not been fulfilled according to law. The parties were put to trial on the following issues:--
Whether the plaintiff has cause of action?
Whether the suit is incompetent and baseless?
Whether the suit is time barred?
Whether the plaintiff has fulfilled the Talabs according to law?
Whether the plaintiff is co-sharer and his property is attached and joint with the suit land?
Whether the plaintiff has easement rights in suit land?
Whether Rs. 1,30,000/- were actually fixed as sale consideration and were paid in good faith to the vendor?
What is the actual price of suit land?
Whether the plaintiff is entitled to the decree as prayed for?
Relief.
At the conclusion of the trial, the learned Civil Judge, Kohat, seized of the matter, in view of his finding on Issue No. 4, dismissed the suit by judgment and decree dated 19.1.2004, holding that the evidence produced by the pre-emptor was discrepant and contradictory and requirements of `talabs' had not been fulfilled. An appeal was preferred thereagainst before the learned District Judge, Kohat. The appeal was accepted, judgment and decree of the trial Court was set aside and suit was decreed on payment of Rs. 1,30,000/- by virtue of judgment dated 11.7.2005.
The petitioners, feeling aggrieved thereby, have filed instant civil revision, which is before me for consideration.
Mr. Atlas Khan Dagai, Advocate appearing for the petitioners strenuously contended that impugned judgment has been recorded in a mechanical manner without application of independent judicial mind and in total disregard to the material on file, which has resulted in manifest injustice. He also urged that the learned Appellate Court had no justification to accept the appeal and set aside a detailed judgment of the trial Court without assigning any reason.
On the contrary, Mr. Tasleem Hussain, Advocate, representing the respondent, refuted the arguments of learned counsel for the petitioners and supported the impugned judgment whole heartedly, maintaining that same is neither contrary to the evidence on record nor in violation of the principle of administration of justice, warranting interference of this Court in its revisional jurisdiction.
Truly, the standard for appraisal of evidence in civil cases is different from that applied in criminal cases, as both laws have laid down different standards of proof. In the instant case, in the plaint as well as in his statement recorded as PW.5, the pre-emptor has fully established his case and stated that on learning about the sale on 26.10.2001 in the village mosque, after the juma' prayers, through Misabuddin, he there and then declared his intention to pre-empt the sale and thereafter in present of Muhammad Sherin and Badshah Gul of his village, issued registered notice oftalb-i-ishhad' on 27.10.2001, which was duly received by the defendants. Both the witnesses have testified the assertion of the pre-emptor and have demonstrated complete unanimity on all important facts of the case. Though they were subjected to lengthy and searching cross examination, but nothing could be elicited to shake their credibility. Although it has been urged that the impugned judgment suffers from misreading and non-reading of evidence, yet the learned counsel for the petitioners despite his best efforts could not point out any portion of the evidence which has either been misread or non-read by the Appellate Court. The submissions of learned counsel for the petitioners that the reasons given by the trial Court on the basis of evidence on the record are well founded and are weighty than the Court of appeal and than the Court of appeal without considering the material on record, in a sketchy and for unfounded reasons, by drawing illegal assumption of the fact, has recorded the finding which cannot be allowed to remain intact, does not carry weight. The contradictions and omissions highlighted are inconsequential and do not cause dent in the pre-emptor's case. In this regard reliance can be placed on a judgment of this
Court titled Yar Muhammad Khan vs. Bashir Ahmad (NLR 2004 Civil 32). There is no good ground to hold that `talb-i-muwathibat' was not performed in accordance with law. Section 13(3) of the NWFP Preemption Act 1987 contains the words
"Making Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover and the acknowledgement due to the vendee..." It has never been the intention of law to compel the pre-emptor to prove that the notices were received by the vendess-defendants. The only duty of the pre-emptor is to prove that he/she sent the notices and that has been proved by the plaintiff-pre-emptor of this case. No efforts have been made by the vendees-defendants to show that something else than the notices were sent to them through the registered A.D. letters. Admittedly, respondent possesses superior right of pre-emption in respect of suit land qua the petitioners, who are devoid of this qualification. Karachi Metropolitan
Corporation and another vs. Pahell Ghyas and 3 others (1995 MLD 141), Messrs
Shafco International vs. Chairman, Pakistan Telecommunication Corporation, Islamabad and 4 others (1995 MLD 146), Muhammad Ayub vs. Mst. Nasim Akhtar and 7 others (2003 MLD 1349), Muhammad Ismail vs. Maqbool Ahmad and 8 others (2001
CLC 252), Messrs Syed Tasnim Hussain Naqvi vs. Federation of Pakistan through
Secretary Chairman, Railway Board, Islamabad and 10 others (2001 CLC 256) and
Muhammad Mubarik Ali vs. Muhammad Abdullah (2002 MLD 1073).
In my view, as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice, thus the judgment of the learned Appellate Court should ordinarily be preferred. The judgment of the trial Court is not sustainable in law. The said judgment as compared to the learned Appellate Court's judgment suffers from grave legal errors, which have been rectified by the Appellate Court by reversing findings of the trial Court and substituting its own findings which are supported by reasons.
In the ultimate analysis, I am of the firm view that the judgment of the Appellate Court does not suffer from any infirmity or jurisdictional defect within the contemplated of Section 115 CPC, amenable to the interference of this Court in its revisional jurisdiction. The civil revision fails, which is hereby dismissed, with no order as to costs.
(N.F.) Petition dismissed
PLJ 2007 Peshawar 113
Present: Hamid Farooq Durrani, J.
ABDUL AZIZ--Petitioner
versus
SAFEENA JAN--Respondent
C.R. No. 28 of 2003, decided on 23.4.2007
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2) & 115--Revisional jurisdiction--Ex-parte evidence--Suit was decreed--Application for setting aside the exparte decree was dismissed--Appeal also failed--Assailed--Concealment of fact--Application u/S. 12(2) CPC was filed by the petitioner before the Court which decided the appeal preferred against order for setting aside exparte decree--Application was dismissed--Revision petition--Ex-parte decree was passed against the petitioner due to the alleged concealment of fact--First round--Appeal was not allowed--Questioned--Decree as such was not varied, modified or interfered with in any manner whatsoever by Appellate Court--Application u/S. 12 (2) CPC was not competently filed before Session Court--Petition was dismissed. [P. 115] A
Haji Muhammad Yousaf, Advocate for Petitioner.
Mr. Ijaz M. Khan, Advocate for Respondent.
Date of hearing: 23.4.2007.
Judgment
The respondent Mst. Safeena Jan filed a suit against the petitioner on 17.09.1997. The claim contained in the plaint was in terms that the plaintiff/respondent was owner of Houses No.67 and 68 situated in the area of Khokhar, Tehsil and District Abbottabad through registered deed dated 23.05.1990. It was alleged that the defendant/petitioner, who was owner of adjacent House No. 69, had no right to interfere in the possession and ownership of the plaintiff/ respondent, therefore, a decree for permanent injunction was prayed for through the suit.
The petitioner/defendant was put on notice and was proceeded against exparte on 30.09.1997. Thereafter, exparte evidence was recorded and the suit was finally decreed on 26.11.1999. The petitioner applied for setting aside the exparte decree on 15.09.2000 which application was dismissed, after contest by the other side, on 03.07.2001. An appeal thereon was preferred which also could not find favour and was dismissed on 22.10.2002.
The petitioner, it was alleged, on 10.01.2003 gained the knowledge of institution of two suits by the respondent/plaintiff prior to Suit No. 191/1, filed against the petitioner. The said suits were regarding the same property and were already disposed of before the institution of Suit No. 191/1. As the said fact was not mentioned in the third suit (filed against the petitioner), an application u/S. 12(2) CPC was filed by the petitioner before the learned Court which decided the appeal preferred against the order of dismissal of application for setting aside exparte decree. The said application was dismissed in limine, with costs, on 01.02.2003 by the learned District Judge, Abbottabad. Aggrieved thereby the revision petition in hand was brought on 4.02.2003.
Learned counsel for the parties heard and relevant record perused.
It is found that the application u/S. 12(2) CPC was filed by the petitioner herein on the grounds that the plaintiff/respondent suppressed the fact of having filed two suits previously regarding the property in dispute and that the respondent after obtaining an exparte decree against the petitioner, was attempting to illegally occupy the house owned by the petitioner, in execution of the said decree.
The record reveals that respondent had earlier filed a suit on 29.05.1990 against one Mst. Shaheen Akhtar dr/o Imran. The said suit contained a prayer for grant of decree of permanent injunction against the defendant therein while the suit property was House No. 67 situated in Khokhar, Tehsil and District Abbottabad. That suit was, however, dismissed as withdrawn on 07.06.1992. The petitioner was apparently not related with the said litigation in any manner whatsoever. The second suit was filed by Mst. Safina Jan respondent on 08.02.1996 against one Abdul Latif s/o Mir Zaman for grant of a declaratory decree of ownership in respect of Houses No. 67 and 68 situated in Khokhar, Abbottabad. This suit was, however, dismissed for non-prosecution on 05.10.2000. In the subsequent suit too the petitioner did not figure out in any capacity.
As far as the non-mentioning of the factum about the institution of the above mentioned suits, in the plaint of Suit No. 191/1 filed against the petitioner is concerned, the record is abundantly clear on the point that the said fact, even if mentioned, would not have affected the merits of the third suit. Besides, the respondent had no where denied the filing of the said two suits nor had stated contrary to the said facts at any stage. The decree passed exparte against the petitioner was not arrived at by the learned trial Court due to the alleged concealment of fact.
Regarding the other ground asserted by the petitioner in terms of his alleged dispossession in execution of the decree passed against him, suffice it to state that the matter could conveniently be agitated before the learned Court executing the decree in question.
There is yet another aspect of the matter which requires to be looked into by this Court in its revisional jurisdiction. While dealing with the matter in the first round, the learned District Judge, Abbottabad had only disallowed the appeal of the petitioner through which the dismissal of application for setting aside exparte decree was questioned. The decree itself, as such, was not varied, modified or interfered with in any manner whatsoever by the learned appellate Court. The application under Section 12(2) CPC was, therefore, not competently filed before the said learned Court.
For what has been discussed above the petition in hand is dismissed being meritless. The parties are, however, left to bear their respective costs.
(R.A.) Petition dismissed.
PLJ 2007 Peshawar 115 (DB)
Present: Salim Khan and Hamid Farooq Durrani, JJ.
QAMAR ZAMAN--Petitioner
versus
SECRETARY NWFP PUBLIC SERVICE COMMISSION, PESHAWAR and 2 others--Respondents
W.P. No. 35 of 2007 with C.M. No. 13 of 2007, decided on 25.4.2007.
Police Order, 2002--
----Art. 7(3)--Constitution of Pakistan, 1973--Art. 199--Service matter--Qualified police officials--Eligible for the post of A.S.I.--Provisional list was recommended--Selection committee was constituted to check service record of candidates--Adverse entries against civil servant--Violation of law--Whether record is or is not clean--Determination--Depriving appropriate Public Service Commission of its right--Difference of opinion--Decision was in accordance with Regulation--Proceedings after recommendations--NWFP Public Service Commission had checked the record of the candidates and recommended the petitioner for appointment as A.S.I.--Recommendations of Public Service Commission was without lawful authority and void--Police Establishment could constitute such a committee for stages before selection by Commission and would send the record to the Commission for its consideration before decision of selection--Held: Order regarding civil servant dropping his candidacy and not appointing him and not allowing him to join of the Police Establishment was without lawful authority and void--Petition was accepted. [Pp. 118 & 119] A, B & C
Mr. Shad Muhammad Khan, Advocate for Petitioner.
D.A.G and P, DSP Khurshid Anwar, for Respondents.
Date of hearing: 25.4.2007.
Judgment
Salim Khan, J.--Qamar Zaman presently L.H.C. No. 442 Police Line Abbottabad instituted this Writ Petition No. 35/2007 against Secretary N.W.F.P. Public Service Commission and Inspector General of Police alongwith Secretary Home Department. He alleged that he, like other qualified police officials, was eligible for the post of A.S.I, by selection from amongst the graduates, that he appeared for written test and interview, and was placed on the provisional list duly recommended by the N.W.F.P. Public Service Commission. It was further alleged that the N.W.F.P. Public Service Commission checked the record of the recommendees and found them eligible, but other constables/head constables were appointed vide Office Order No. 22321-27/E-II dated 28.2.2006 while the petitioner was left over.
Comments of Respondent No. 2 were obtained who stated that there were adverse entries against the petitioner, and, therefore, the petitioner was not eligible and entitled to be posted as A.S.I.
We heard the arguments of the learned counsel for the petitioner and the learned Deputy Advocate General supported by Khurshid Khan D.S.P.
At the very out-set, the learned D.A.G. contended that, in accordance with the provisions of sub-article (3) of Article 7 of Police Order, 2002, the selection was to be made from amongst officials with clean record, and a selection committee was constituted by P.P.O. (Provincial Police Officer/I.G.P.) to check the service record of each of the candidates. He contended that there were two adverse entries against the petitioner, out of which one was by the officer in whose office the petitioner had conducted himself improperly, while the other was regarding absence from duty, though both the entries were minor in nature.
The learned counsel for the petitioner referred to the internal correspondence of the office of N.W.F.P. Public Service Commission and contended that Members 1 to 4 and 6 were in favour of the appointment of the petitioner and others, while Member 5 and the Chairman were against it, but it was decided in that office that the Regulation relating to the N.W.F.P. Public Service Commission had to be followed. The demand of that Regulation was that the decision of the commission would be by majority. It is always expected that the recommendation of the commission regarding selection of candidates would always prevail with the concerned department except when referred back for further consideration.
The provisions of Article 7 (3) of Police Order, 2002 are as follows:--
Constitution of police.
(1) .................................
(2) .................................
(3) The recruitment in the police other than ministerial and specialist cadres shall be in the rank of Constable, Assistant Sub-Inspector and Assistant Superintendent of Police:
Provided that selection for direct recruitment in the rank of Assistant Sub-Inspector shall be through the appropriate Public Service Commission and shall not exceed twenty five percent of total posts in that rank;
Provided further that 25% of the quota for departmental promotions to the rank of Assistant Sub-Inspector shall be filled, subject to rules, through selection by the appropriate Public Service Commission from graduate Constables or Head Constables of clean record.
(4) .................................
(5) .................................
(6) ................................."
It has clearly been provided that the vacancies in 25% quota for departmental promotions shall be filled from graduates constables and head constables of clean record by the appropriate Public Service Commission. The law, therefore, provides that it is the appropriate Public Service Commission which has to satisfy itself regarding the record of a graduate constable or head constable, for ascertaining his eligibility and suitability for the post of Assistant Sub-Inspector in his respective quota. It will be violation of the law if the Police Establishment, by itself, starts deciding whether a constable or head constable is or is not of clean record, because it will amount to depriving the appropriate Public Service Commission of its right to decide regarding the same. In this case, the N.W.F.P. Public Service Commission had checked the record of the Candidates and, through its majority decision, had recommended the petitioner for his appointment as Assistant Sub-Inspector. The Police Establishment was either to agree with the said decision or, if the law/rules so permitted, to refer the matter back to the N.W.F.P. Public Service Commission for reconsideration.
In this case, however, there was no chance for reference again as the case was properly considered by the Chairman and Members of the Commission to the extent that there was difference of opinion and the decision was taken by majority in accordance with their Regulation. The constitution of a committee in, or by, the Police Establishment for proceedings after the recommendations of the N.W.F.P. Public Service Commission was without lawful authority and void. The Police Establishment could constitute such a committee for stages before the selection by the Commission, and would send the record to the Commission for its consideration before the decision of selection.
Keeping in view the above, we have come to the conclusion that the order regarding the petitioner, dropping his candidacy and not appointing him and not allowing him to join as Assistant Sub-Inspector of the Police Establishment is without lawful authority and void. We accept the present writ petition accordingly.
(R.A.) Petition accepted.
PLJ 2007 Peshawar 119
Present: Ijaz-ul-Hassan, J.
WAKEEL KHAN and antoher--Petitioners
versus
AFSAR KHAN and others--Respondents
C.R. No. 1319 of 2006 with CM No. 1298 of 2006, decided on 23.4.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XLI, R. 31--Revisional jurisdiction--Provisions--Non-compliance of the provision--No specific misreading or non-reading of evidence--Appreciation of evidence--Question of giving issue wise findings--Requirement of law--Legality--It is sufficient for appellate Court to deal with all issues as are material for disposal of the controversy excepting abandoned by appellant--Appellate Court recording its findings on the points raised without discussing the issue separately cannot be said to have committed any illegality or error--Held: Law regarding framing of issues is firmly settled to effect that where parties enter into trial of the case with all awareness of controversy between them, its framing or non framing looses importance. [P. 121] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 25 & S. 115--Remanding the case--Question of--Discretionary power is used only in exceptional situation--If parties have led evidence with regard to particular point and the Court of first instance by giving specific finding on the point decided the same is light of evidence available on record--Remand of the case in appeal or revision is not proper exercise of the jurisdiction--Revision was dismissed. [P. 122] B
Mr. M. Farooq Shah, Advocate for Petitioners.
Date of hearing: 23.4.2007.
Judgment
The facts necessary for the disposal of instant civil revision are, that Afsar Khan, plaintiff instituted suit in the Court of Senior Civil Judge, Nowshera, against his brother Wakil Khan and others, defendants for a declaration to the effect that plaintiff was owner in possession of suit house, detailed in the plaint, having purchased the same from his mother late Mst. Shabnam Bibi, on the basis of `Iqrar Nama' dated 22.2.1999 and defendants had no concern with it and sale or transfer, if any, relating to suit house was illegal, fraudulent and liable to cancellation. The plaintiff also prayed for specific performance, claiming that defendants 1 to 4 were bound to get register the house in suit in the name of plaintiff. A prayer for possession of suit house, in case the plaintiff was not found in possession of the same, was also made.
The suit was contested by Defendants Nos. 1 and 5 alone. The remaining defendants did not resist the suit and filed `Iqbal Dawas' in favour of the plaintiff. As many as eight issues were formulated. After recording such evidence, as the parties wished to adduce in support of their respective stances, learned trial judge in view of her findings on Issue Nos. 1 and 4 to 6 decreed suit by judgment dated 24.11.2005, maintained in appeal by learned District Judge, Nowshera vide judgment dated 21.7.2006.
Learned counsel for the petitioners contended that impugned judgments and decrees of the two Courts below are the result of misreading and non-reading of evidence on record; that sufficient evidence was brought on record to dislodge the claim of the respondents, which has been ignored and kept out of consideration; that issues formulated in the case do not fully reflect the pleadings of the parties and a vital issue, regarding genuineness of the deed dated 2.2.1942 has not been framed and judgment of the appellate Court is not in conformity with the requirements of Order XLI Rule 31 CPC.
Having considered the matter from all angles, I am of the view that the trial Court as well as appellate Court adverted to every aspect of the case, rightly decided the issues agitated and rendered reasonable judgments, which are not amenable to the revisional jurisdiction of this Court. Both the Courts below have given exhaustive judgment after due appraisal of evidence on the file and after discussing all the prons and cons. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. The conclusion of fact arrived concurrently by both the lower Courts is not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence has been pointed out.
Adverting to the objection raised by the petitioner regarding non-compliance of the provisions of Order XLI, Rule 31 CPC, I find that learned appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The appellate Court has given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioner. So far as the question of giving issue-wise findings by the appellate Court is concerned, the same is not the requirement of law under Order XLI Rule 31 CPC. It is sufficient for the appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error. Even otherwise law regarding framing of issues is firmly settled to the effect that where parties enter into trial of the case with all awareness of controversy between them, its framing or non-framing looses importance. Fazal Muhammad Bhatti and another Vs. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018).
Learned counsel could neither point out as to which issue was improperly framed nor could he draw my attention to any material portion of evidence which was overlooked or misread by the appellate Court. Neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked by the appellate Court while deciding the appeal.
Adverting to the question regarding remand, it may be observed that the appellate and the revision Courts are always empowered to remand the case in terms of Order XLI Rule 25 CPC but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of the jurisdiction.
Pursuant to above, I am of the view that the findings recorded by learned trial Judge and affirmed by learned appellate Court are not only in consonance with the record of the case but the same are also in accordance with the law on the subject. The civil revision is devoid of force which is dismissed in limine. The listed application also meets the same fate.
(R.A.) Revision dismissed.
PLJ 2007 Peshawar 122
Present: Ijaz-ul-Hassan, J.
MALIL WASIL--Petitioner
versus
MUMTAZ-UR-REHMAN and others--Respondents
C.R. No. 174 of 2005, decided on 30.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. VII, R.11--Concurrent finding--Suit for recovery as damages--Maintainable--Malicious institution of civil suit--Unnecessary, baseless and frivolous allegations were alleged--Application for rejection of plaint--Plaint was rejected by Courts below--Assailed--Reputation--Badly affected--Determination--No suit for recovery of damages is generally maintainable for malicious institution of civil suit that on defeat of a civil suit that law provides for compensation to successful party by awarding costs to him.
[P. 123] A
Mr. Fazal-e-Haque Kohidamani, Advocate for Petitioner.
Mr. Shakeel Azam Awan, Advocate for Respondents No. 2, 3 and 4 (on pre-admission notice).
Date of hearing: 30.4.2007.
Order
This revision petition is directed against the concurrent findings of the two Courts below i.e. learned Civil Judge and learned Additional District Judge, Peshawar, whereby the former rejected suit of the plaintiff-petitioner under Order 7, Rule 11 CPC and the latter affirmed the same by dismissing the appeal.
Brief facts of the case are, that the plaintiff-petitioner instituted a suit against the defendants-respondents for recovery of Rs.10,00,000/- as damages, in consequence of filing written statement in another suit, wherein, according to the plaintiff-petitioner certain unnecessary and baseless allegations were alleged against him. The suit was contested by defendants-respondents. On 17.6.2002, defendants-respondents moved an application under Order 7, Rule 11 CPC, for rejection of the suit. The application having been resisted, was accepted and the plaint was rejected and appeal filed thereagainst also met the same fate. Hence instant revision petition.
I have heard learned counsel for the petitioner and learned counsel for the respondents on pre-admission notice in the light of the material on file.
The record reveals that the petitioner had instituted instant suit against the respondents for damages on the ground that in another suit, in written statement, the respondents had leveled certain baseless and frivolous allegations against the petitioner, due to which reputation of the petitioner was badly affected. The said written statement indicates that no such allegations exist, which can affect the reputation of the petitioner. Again no suit for recovery of damages is generally maintainable for malicious institution of civil suit, one of the reasons being that on defeat of a civil suit the law provides for compensation to successful party by awarding costs/special costs to him. In Haji Muhammad Shafi Vs. Mst. Hamidan Bibi (1990 MLD 597 Lahore), it was observed:
"No separate suit can be filed for recovery of costs incurred or damages suffered on account of institution or defence of a previous civil suit. Under Section 35 of the C.P.C. the Court while deciding a suit is empowered to grant cost to the affected party. Similarly Section 35-A of the C.P.C. provides Panacea for the loss suffered by a person in case the action brought against him is found to be frivolous, vexatious and mala fide. In these circumstances it cannot be contended with any success that a separate suit can be filed notwithstanding that while deciding the earlier suit, the Court had declined to grant any cost or had granted costs which are considered to be inadequate."
Having regard to facts and circumstances of the case, I see no good ground to interfere in the concurrent findings of facts arrived at by the two Courts below. Resultantly, this revision petition being devoid of force is hereby dismissed, with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2007 Peshawar 124
Present: Ijaz-ul-Hassan, J.
SAJJAD AHMAD--Petitioner
versus
CANON HOW THOMAS--Respondent
C.R. No. 614 of 2006 & C.M. No. 761 of 2006, decided on 8.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 155 & O.XXXIX, Rr. 1 & 2--Grant of temporary injunction--College canteen--No complaints--Mechanical manners--Status quo--Maintain till final disposal--Principle--Held: Petitioner had been running the college canteen for the last 36 years without any complaint, regularly paying rent without any default, shown to have invested substantial amount on running the canteen--Trial judge had given valid and cogent reasons for accepting application and granting temporary injunction--Appellate Court had not resorted to mandatory provisions of said order and dealt with the matter in a mechanical manner without application of judicial mind.
[P. 126] B
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2--Temporary injunction--Principle--Granting or refusal of injunction--Determination--Whether the plaintiff has made out a prima facie good legal case, secondly whether the balance of convenience lies in favour of the grant of injunction and thirdly, whether the plaintiff will suffer irreparable loss of the injunction is refused--Revision accepted. [P. 126] A
Mr. Tariq Javed, Advocate for Petitioner.
Mr. Abdul Latif Afridi, Advocate for Respondent.
Date of hearing: 16.1.2007.
Judgment
Canteen contractor Sajjad Ahmad, petitioner was issued notice dated April, 23 2005 calling upon him to withdraw business, due to planned developments for the new session 2005-06 and a change of College routine and making new arrangements for catering on the college campus.
The petitioner feeling aggrieved thereby, challenged the action of college authorities by filing suit in the Court of Senior Civil Judge, Peshawar with prayer that respondent be restrained to ask the petitioner to discontinue his business or evict him from the premises. Alongwith the suit, an application for the grant of temporary injunction, in the above lines, was also moved. The application having been opposed was accepted by order dated 7.12.2005 passed by learned Civil Judge, Peshawar and status quo was ordered to be maintained for six months or till final disposal of case which ever come first. An appeal was preferred thereagainst which came up for hearing before learned Additional District Judge, Peshawar. Vide judgment dated 17.1.2006 the appeal was accepted, order of the trial Court was set aside and status quo maintained was withdrawn. The petitioner has filed instant civil revision under Section 115 CPC which is before me for consideration.
Mr. Muhammad Tariq Javed Khan, Advocate learned counsel for the petitioner bitterly criticized the impugned order of learned appellate Court and attempted to argue that petitioner had successfully made out a good prima facie case for the grant of temporary injunction; that order passed by learned Civil Judge, Peshawar accepting the application of interim injunction is exhaustive and well reasoned and learned appellate Court accepted the appeal and reversed the order of the trial Court in haste, without application of independent mind and in total disregard to mandatory provisions of Order-39 Rules 1&2 CPC. To augment the contents, reliance was placed on Abdullah Bhai and others Vs. Ahmad Din (PLD 1964 S.C. 106), Diamond Food Industries Limited Vs. Joseph Wolf Gmbh & Co and another (2004 CLD 343) and United Bank Limited through Attorneys Vs. Messrs Aziz Tanneries (Pvt) Ltd. Through Chief Executive/Managing Director and 9 others (2004 CLD 1715).
Mr. Abdul Latif Afridi, Advocate representing the respondent, supported the impugned order forcefully maintaining that petitioner is not possessed of any legal character or status within the purview of Section 42 of Special Relief Act 1877; that his status is merely that of a licensee at the will of the respondent and petitioner cannot impose himself upon the college and its students for catering purposes under any law. The learned counsel added that there were general complaints against the petitioner by the students regarding overcharging for provisions and use of substandard material in edibles, which constrained the College Management to serve the petitioner with the notice in question.
I would refrain at this stage from going into the rival contentions of the learned counsel touching the merits of the suit and expressing my opinion thereupon lest it might influence the decision of the trial Court or prejudice the case of one party or the other in the suit which is yet to be heard and decided. I will, therefore, confine myself to the question as to whether the appellate Court was justified in accepting the appeal and setting aside the order of the trial Court regarding issuance of temporary injunction. The well known principles for grant or refusal of temporary injunction are firstly, whether the plaintiff has made out a prima facie good legal case, secondly whether the balance of convenience lies in favour of the grant of injunction and thirdly whether the plaintiff will suffer irreparable loss if the injunction is refused.
In the instant case, I find that petitioner has been running the college canteen for the last 36 years without any complaint from any quarter. The impugned notice also does not say so. The petitioner has been regularly paying rent without any default. The petitioner is also shown to have invested substantial amount on running the canteen. The learned trial Judge has given valid and cogent reasons for accepting application of the petitioner and granting temporary injunction. The learned appellate Court had no justification to take contrary view, accept. the appeal and reverse the order of the trial Court. Learned counsel for the petitioner contended with justification that learned appellate Court has not resorted to mandatory provisions of Order-39 Rules 1 & 2 CPC and dealt with the matter in a mechanical manner without application of judicial mind.
In view of the above I accept the civil revision, set aside the impugned order dated 17.1.2006 of the appellate Court and restore order dated 17.12.2003 of the trial Court. I make no order as to costs.
(F.F.) Revision accepted.
PLJ 2007 Peshawar 127
Present: Ijaz-ul-Hassan, J.
M/s. SERVIER RESEARCH & PHARMACEUTICALS PAK (PVT) LTD. through its Chief Executive, Lahore and another--Appellant
Versus
AAMIR SULTAN--Respondent
L.A. No. 19 of 2005, decided on 13.2.2007.
Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46--Reinstated in service with full back benefits and wages--Specific duty was asssigned--Probation period--There was no prescribed duty roster for any of the employee--Respondent was a permanent employee having more than six years service to his credit--His services was dispensed owing to no more required--No show cause notice was issued to the respondent and no proper inquiry had been conducted--Management had acted in an unusual manner unwarranted by law and in total disregard to the legal requirements. [P. 131] C
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--
----S. 2(i)--Industrial Relation Ordinance (XCI of 2002), S. 46--Definition of a workman--Designation--Unskilled, skilled, manual or clerical work--Question whether a workman would depend not upon his designation but on the nature of duties, performed by him--A workman is a person employed in any industry or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. [Pp. 130 & 131] A & B
Mr. Yahya Afridi, Advocate for Appellants.
Mr. Khurshid Ahmad Shahan, Advocate for Respondent.
Date of hearing: 20.12.2006.
Judgment
This appeal by M/s. Servier Research & Pharmaceuticals, Pakistan (Pvt) Limited, through its Chief Executive, 65 Main Boulevard Gulberg, Lahore and another, is directed against the judgment and order dated 27.7.2005, passed by learned Presiding Officer, Labour Court, Peshawar, whereby grievance petition of Aamir Sultan, respondent herein, calling in question his termination order dated 19.8.2004, was accepted and respondent was reinstated in service with full back benefits and wages.
"Pursuant to the decision of the management dated 19.8.2004, it is regretted to inform you that the company no more requires your services as the Medical Information Officer. While invoking Clause (e) of the terms and conditions stipulated in your letter of appointment dated 12.8.1998, your services are hereby terminated with immediate effect. You shall be entitled to receive one Month Notice pay in lieu of notice, as provided in the Clause ibid."
Aamir Sultan, feeling aggrieved, challenged the action of the management by filing a grievance petition under Section 46 of the Industrial Relations Ordinance, 2002, before learned Presiding Officer, Labour Court, Peshawar, alleging that prior to issuance of impugned order of termination, no proper procedure was adopted nor any inquiry was conducted, neither any show cause notice was served and, as such, the impugned order cannot be allowed to remain in field. The petition was resisted on all grounds legal as well as factual and it was pleaded that the services of respondent were terminated while exercising powers stipulated in the clause "e" of the Employment Contract dated 12.8.1998, and thus the respondent had no valid reason to grudge the action of the management.
Mr. Ihsanullah Khan Babar, the then learned Presiding Officer, Labour Court, Peshawar, per the impugned accepted the claim of the respondent and allowed his petition directing the appellant management to reinstate the respondent in service with full back benefits and wages, as detailed and mentioned above.
Appearing on behalf of the appellant management, Mr. Yahya Afridi, Advocate invited my attention to Clause (c) of the Appointment Agreement of the respondent and attempted to argue that the above said clause clearly stipulated that either party may terminate letter of confirmation by giving one month notice or in lieu, one month's notice pay without assigning any reasons and as such, respondent had no justifiable reason to call in question his termination. Additionally, the learned counsel submitted that the finding of the learned Labour Court in respect of the status of respondent being a `workman' is erroneous and contrary to the definition provided by the Industrial Relations Ordinance, 2002, and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as respondent was a Medical Information Officer/Sales Representative and thus not a worker or workman, qualifying the criterion of workman in any manner and under any statute. To augument the contentions, reliance was placed on Syed Matloob Hassan Vs. Brooke Bond Pakistan Limited Lahore (1992 SCMR 227), Mustekhum Cement Limited through Managing Director Vs. Abdul Rashid and others (1998 SCMR 644) and Yusuf Ali Shah Vs. Quetta Serena Hotel through General Manager and 2 others (2001 SCMR 1813).
Opposing the prayer for acceptance of the appeal and refuting the arguments of learned counsel for the appellant concern, it has been argued by Mr. Khurshid Ahmad Shahan, Advocate, representing the respondent that learned Labour Court has thoroughly scanned the material on record adverted to every aspect of the case and had drawn correct conclusion, which are not open to legitimate exception.
Upon the examination of the impugned judgment, I find that learned trial Judge on proper consideration of the material on record, delivered a reasoned judgment and the findings recorded by him are not only in accordance with the record of the case, but also in consonance with the law on the subject. Admittedly, the services of the respondent have been terminated `as no more required. Before issuance of termination order, no reason whatsoever has been communicated to the respondent, nor any show-cause/explanation was served. The management appears to have acted in a mechanical manner and terminated the services of a permanent employee, without giving him the right of hearing. It needs no reiteration that right of personal hearing is sacrosanct and it has to be provided to the affected persons before passing any order or determining a right.
As to the question whether a person is or is not a workman, it is now well established that the same would depend not upon his designation but on the nature of duties, performed by him. The nature of duties performed by the respondent reflects in the relevant clause of the appointment letter, which is reproduced below for facility sake:--
"Exclusivity: You shall devote your full time attention and abilities to your duties. Your duties will be primarily to promote and sell Servier Products anywhere in Pakistan, and will inter alia include, dissemination of the information of Servier Products to Trade, Medical Profession, Hospitals, Clinics, Physicians and Government Institutions in Pakistan. You shall aim at stimulating greater interest and appreciation amongst them for Servier Products. You will also coordinate your efforts with Servier's Distributors M/s. Muller & Phipps Pakistan (Private) Limited or any other distributor's) appointed by Servier, for the promotion/sale/distribution of Servier Products. You shall not directly or indirectly engage or be concerned or interested in any other business, occupation or profession."
The respondent did not exercise any power of hire or fire. Such duties, therefore, clearly fell within ambit of manual' or 'clerical' work. No doubt, the respondent was designated as Medical Information Officer, nevertheless the nature of his duties indicates that he belonged to the category of workers defined asworkman' in clause (i) of Section 2 of the Standing Orders Ordinance.
The definition of `workman' contained in the Standing Orders Ordinance is a simple definition indicating two categories of persons who may be employed in an industrial or commercial establishment to do either manual or clerical work. The words "skilled" or "unskilled" appearing in the said definition further indicate that a person may either be employed to do skilled or unskilled manual work or skilled or unskilled clerical work, as the case may be.
The definition of workman given in the (Standing Orders) Ordinance is any `person employed in any industry or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward, It need not be construed narrowly so as to destroy the purpose of the beneficial legislation. The definition appears to exclude those who do intellectual or managerial work and not other employees.
In the instant case, respondent was assigned field work during the probation period. There was no prescribed duty roster for any of the employee. The respondent was a permanent employee having more than six years service to his credit. His services have been dispensed with only on the ground of `no more required'. No show-cause notice has been issued to the respondent and no proper inquiry has been conducted. The management has acted in an unusual manner unwarranted by law and in total disregard to the legal requirements. The learned Presiding Officer had valid reasons to accept the grievance petition and I see no good reason to disagree with him and take contrary view. The case-law cited by learned counsel for the appellant is distinguishable and proceeds on different facts. The appeal is meritless. The same is dismissed, with no order as to costs.
(F.F.) Appeal dismissed.
PLJ 2007 Peshawar 131
Present: Hamid Farooq Durrani, J.
MAQSOOD-UR-REHMAN and another--Petitioners
versus
ABDUL MANAN--Respondent
C.R. Nos. 64 & 100 of 2003, decided on 9.2.2007.
(i) Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code, (V of 1908), S. 115--Condonation of delay--Application alongwith the revision petition--No cogent reason for condonation sought was mentioned--Plea was raised that petitioner was away from station in connection with his duty, therefore, could not file the revision petition in time--Provision of S. 5 of Limitation Act, would not apply to a revision petition, therefore, condonation cannot be allowed--Revision dismissed.
[P. 136] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI, R. 1--Commission to examine witness--Execution of decree--Objection petition--Revisional jurisdiction--Scope of--Execution Court--Legality--Appellate Court would not require any interference by High Court in its revisional jurisdiction--Executing Court was not a Civil Court for the purposes of O. 26 R. 1 CPC, therefore it could not appoint local commission in furtherance of execution of a decree--Secondly as during proceeding the similar exercise was taken up by trial Court and report of commission, then appointed, lent support to the judgment and decree passed in the main contest between parties--Appointment of commission, besides being unwarranted during execution proceedings would only tantamount to the re-opening of the matter--Impugned recourse was out of scope of execution proceedings while examined in light of legal provisions relevant for matter--High Court was not inclined to interfere, in its revisional jurisdiction. [P. 137] B
Mr. Sultan Ahmad Jamshid, Advocate for Petitioners.
Malik Masood-ur-Rehman Awan, Advocate for Respondent.
Date of hearing: 9.2.2007.
Judgment
A suit for permanent injunction was filed by Abdul Manan s/o Muhammad Akbar against Maqsood-ur-Rehman and Chan Zaib sons of Aziz-ur-Rehman which was decreed by the trial Court and appeal thereon was also dismissed by the appellate Court. The petitioner etc filed a revision petition Bearing No. 64/03 aggrieved from the judgments and decrees of the learned two Courts.
As all the revision petitions arise out of the same set of litigation between the parties, they are taken up together for decision through this single judgment.
The facts relevant for the purpose are that on 19.01.1994 the respondent in C.R.No. 64/13 filed a suit against the petitioner praying therein for a decree of permanent injunction against the petitioner in terms that the house of the respondent/plaintiff situated in Mauza Kokal, Tehsil and District Abbottabad was at a lower level than the houses of petitioners/defendants. The plaintiff/respondent was using the path from points A to D, as shown in the line plan attached with the plaint, since his forefathers, besides, the natural drainage of the plaintiffs house was also through point "D" which was in continuance since time immemorial. The defendants/petitioners were not legally entitled to raise construction in a manner whereby the drainage from the house of the plaintiff was caused to be obstructed. Further, they were not entitled to demolish the bath room of plaintiff/respondent located between points A & D which could result in discontinuation of use of the bath room by the inmates of the house of the plaintiff and obstruction of the easement rights including right of passage and discharge of water of the plaintiff/respondent. A further prayer for demolition of construction raised by the defendants petitioners at the disputed points, if any, and for restoration of rights of easement of the plaintiff, was also made in the plaint.
The petitioners/defendants entered the proceedings by filing a joint written statement on 07.05.1994. It is noted that the contents of the written statement were evasive and no specific denials were made therein except that the plaintiff had no concern with the spot in dispute nor he had any rights of easement thereabout. After settlement of issues the parties to the suit were allowed to produce their respective evidence and on 08.12.2001 the learned trial Court was pleased to pass a decree, as prayed for, in favour of the plaintiff/respondent.
The petitioners, aggrieved from the decree of the trial Court filed an appeal before the learned District Judge, Abbottabad, which was also dismissed on 14.11.2002.
Learned counsel for the petitioners/judgment debtors contended that no documentary evidence was attached by the respondent/plaintiff with the plaint which could divulge that the plaintiff had any right of easement regarding the disputed path/property. The said rights of easement regarding the bathroom were not even claimed by the plaintiff/respondent in his plaint. It was further contended that the learned trial Court failed to strike a specific issue regarding the right of easement vested in the plaintiff/respondent. Besides, the said question was also left undecided and instead the suit was decreed on the point of obstruction of the path only. On the other hand the learned appellate Court went on to also decide the question of rights of easement of the plaintiff/respondent on the same set of evidence thereby committed illegality and material irregularity, the learned counsel maintained. It was further argued that the evidence led by the respondent/plaintiff was extraneous to his pleadings which was not itself confidence inspiring. In his view, the concurrent findings of learned two Courts were liable to reversal.
The learned counsel appearing for the respondent, while attempting to dislodge the arguments from the other side, firstly referred to a report by local commission wherein the entire controversy between the parties was endeavored to be resolved through spot inspection. He further referred to the statement of DW-2/plaintiff wherein the easement was specifically claimed by the said witness and his averments were supported through the statements of PWs-3 and 4. The learned counsel also referred to the statement of local commission recorded as CW-1 and pointed out that the construction though prohibited during the proceedings of the suit was still going on at the time of spot inspection by the commission as per her statement. He contended that the decree was passed as prayed for in the plaint which was based on solid evidence and was in accordance with the spirit of law. The impugned findings, therefore, did not suffer from any illegality and were liable to sustain.
It would be useful to refer to the report of local commission dated 26.01.1995 who visited the spot on 26.01.1995. The statements of the plaintiff besides Abdul Samad and Muhammad Farid were also recorded during the proceedings in addition to certain photographs of the spot taken and attached with the report. It transpires from the commission report that at the disputed point the defendants had raised an incomplete construction which caused obstruction of the path in dispute and also the drainage of natural/rain water from the house of the plaintiff/respondent. It is further noticeable that there is no other drainage point from the house of the plaintiff which is located at a lower level than other the point of exit from the plaintiffs house. The report further reveals that the drainage of the disputed bath room ran from a point (Point No. 6) where the defendants/petitioners had raised construction of a room. It was also mentioned that there did not exist any alternative exit of the rain water from the house of the plaintiff except the point obstructed through the construction in dispute. Similarly, the statements of Abdul Samad, an elder of the locality revealed that the bath room was used since the time of grandfather of the parties which was now obstructed by the defendants. A similar statement was given by Muhammad Farid, another elder of the same locality. The local commissioner also appeared as CW-1 and stood the test of cross-examination by the parties but she affirmed the factum of blockade of the path and demolition of the bath room by the defendants. She further stated that at the time of visiting the spot the construction was being carried by the defendants.
It is further observed that the obstruction of rights of easement in favour of the plaintiff were categorically mentioned in the plaint and removal thereof was also claimed. The specific issue regarding the said right though was not struck by the learned trial Court but Issue No. 5 regarding the entitlement of the plaintiff to a decree for perpetual injunction and the evidence led thereon sufficiently covered the said point of controversy. The learned two Courts found the report of the commission to be well founded and impartial whereafter the factual controversy was set at naught.
In the light of the evidence available on record the concurrent findings of the learned two Courts did not warrant any interference by this Court in its revisional jurisdiction.
Adverting to CR No. 100/03 filed by the decree holders against the judgments of learned two Courts regarding dismissal of his application for initiating contempt of Court proceedings against the judgment debtors. It is noticed that the revision petition was filed with a delay of seven days. An application u/S. 5 of the Limitation Act for condonation of delay was although filed alongwith the revision petition but no cogent reason for the condonation sought was mentioned therein. It was taken as a ground that the petitioner was away from the station in connection with his duty, therefore, could not file the revision petition in time.
It is to be noted that the provisions of Section 5 of Limitation Act would not apply to a revision petition, therefore, the requisite condonation cannot be allowed, besides, no good ground is made out therefor.
Taking up the matter by way of C.R 33/03 it is seen that in the course of execution of decree, the decree holder submitted an objection petition in terms that the decree under execution was vague and had not disclosed the specific portion of the disputed construction to be demolished. It was further alleged that executing Court without notice to the judgment debtor # 2 and 3 issued warrants of possession, therefore, execution proceedings could not be continued and were liable to be consigned.
On 03.09.2004, the learned executing Court, while proceeding with the said objection petition, ordered the appointment of local commission with the directions:--
(01) To inspect the suit property in presence of the parties.
(02) To prepare site-plan .
(03) To record statements of the parties and independent witnesses.
(04) To determine that whether any portion of the Judgment debtors house has been demolished by the official of the Court.
(05) To give recommendations for the execution of the decree in the light of judgment/decree dated 8.12.2001.
Feeling aggrieved from the said order the respondents/decreed holders filed an appeal before the learned Additional District Judge (III), Abbottabad. The said appeal was allowed on 31.10.2005 whereby the order of appointment of local commission by the execution Court was set aside.
The impugned judgment of the appellate Court would not require any interference by this Court in its revisional jurisdiction. Firstly for the fact that executing Court was not a civil Court for the purposes of Order 26 Rule 1 CPC, therefore, it could not appoint local commission in furtherance of execution of a decree. Secondly as during the proceeding the similar exercise was taken up by the trial Court and the report of the commission, then appointed, lent support to the judgment and decree passed in the main contest between the parties. The appointment of commission, besides being unwarranted during the execution proceedings, would only tantamount to the re-opening of the matter. It is further seen that the impugned recourse was out of scope of execution. proceedings while examined in the light of legal provisions relevant for the matter.
There is no ambiguity regarding the decree under execution, therefore, the controversy between the parties could be set at rest by recording pro and contra evidence by the learned executing Court on the questioned points.
(N.F.) Petition dismissed.
PLJ 2007 Peshawar 137
Present: Ijaz-ul-Hassan, J.
H. SARFARAZ and others--Petitioners
versus
ABDUL HANAN and others--Respondents
C.R. No. 225 of 2002, heard on 13.10.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Question of fact--Examination of evidence--Concurrent finding of fact--Appreciation of evidence--Neither permissible nor warranted--High Court in exercise of its revisional jurisdiction could only be justified of such finding is the result of perverse appreciation of evidence on record--A wrong or erroneous conclusion on a question of fact by the Courts blow was not open to interference by High Court in exercise of its jurisdiction under S. 115 CPC--High Court had to attend the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence had to be discovered in reasoning of Courts below to justify interference in exercise of its revisional jurisdiction--Revision dismissed. [P. 140] A
Mr. M. Ismail Khalil, Advocate for Petitioners.
Sh. Wazir Muhammad, Advocate for Respondents.
Date of hearing: 13.10.2006.
Judgment
Facts necessary for the disposal of instant civil revision are that Abdul Manan and others, plaintiffs brought suit on 24.9.1998, claiming a declaration to the effect that plaintiffs were owners in possession of suit land, having inherited the same from their predecessor-in-interest late Samandar Khan; that defendants had no concern with suit land and mutations by Defendants No. 3 to 6 in favour of the remaining defendants were illegal, void, based on fraud and liable to cancellation. The plaintiffs also prayed for grant of permanent injunction restraining the defendants from interfering in the hereditary rights of the plaintiffs. A prayer for possession through partition was also made.
ISSUES
Whether the plaintiffs have got a cause of action?
Whether suit is incorrect in its present form?
Whether the plaintiffs are estopped to sue due to their own conduct?
Whether the suit is time barred?
Whether the suit is incompetent due to non-joinder and mis-joinder of necessary parties?
Whether the defendants had made improvement over the suit land, if so, to what extent and its effect?
Whether the sale mutation in respect of suit property by Defendants No. 3 to 6 in favour of other defendants are fictitious, against law and facts and inoperative upon the rights of plaintiffs.
Whether the plaintiffs are entitled to the decree as prayed for?
Relief.
At the conclusion of trial, learned Civil Judge, Takht Bhai, seized of the matter upon consideration of the material available or record, decreed the suit by judgment and decree dated 9.5.2001. An appeal was preferred thereagainst which did not succeed. The same was dismissed by learned Addl: District Judge, Mardan at Takht Bhai vide judgment dated 4.10.2001. Hence, instant civil revision.
Mr. Muhammad Ismail Khalil, Advocate for the petitioners attempted to argue that both the Courts below have arrived at a wrong conclusion and have ignored the material evidence on record and committed gross illegality and irregularity in accepting the claim of the plaintiffs and decreeing the suit. The learned counsel next contended that question of improvements has not been attended to and in case of decree for possession, petitioners were entitled for cost of improvements.
Sheikh Wazir Muhammad, Advocate for the respondents, on the other hand, supported the concurrent findings of facts recorded by the Courts below and contended that the same are unexceptionable and do not suffer from any legal or factual infirmity calling for interference by this Court in its revisional jurisdiction. A number of authorities were cited by the learned counsel in support of his submissions.
Although this Court is not called upon to reappraise the evidence on record in exercise of its revisional jurisdiction, yet, in the interest of justice. I have gone through the evidence and find that the reasoning recorded by the Courts below are in consonance with the evidence on record and no prejudice seems to have been caused to the petitioners. Learned counsel for the petitioners has failed to point out any illegality by way of misreading and non-reading of evidence by the Courts below. The trial Court as well as appellate Court have elaborately discussed every aspect of the case and have dealt with the case in detail, leaving no room further consideration. The learned trial Judge has taken pains to appraise the evidence on record in a correct manner. He neither misread nor omitted from consideration any material piece of evidence. The conclusion drawn by him from the evidence/material on record are fully justified in the circumstances of the case. The learned appellate Court had valid reasons to affirm the same.
The process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under Section 115, CPC in my view is neither permissible nor warranted by law. As earlier pointed out by me, interference with a finding of fact of the Courts below by the High Court in exercise of its revisional jurisdiction under Section 115 CPC could only be justified if such finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under Section 115 CPC. The High Court while examining a concurrent finding of fact recorded by the Courts below in exercise of its revisional jurisdiction under Section 115 CPC has to attend to the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasoning of the Courts below to justify interference in exercise of its revisional jurisdiction.
So far as the question regarding improvements is concerned, there is nothing on the file to demonstrate that improvements were effected on the property in suit and as such petitioners were entitled to receive cost of improvements. The contention is repelled.
No other point has been raised and rightly so.
In the result and for the foregoing reasons, the civil revision fails which is hereby dismissed, with no order as to costs.
(N.F.) Revision dismissed.
PLJ 2007 Peshawar 141
Present: Talaat Qayyum Qureshi, J.
MAFTAH-UD-DIN ASI KBI STAFF KOHAT--Petitioner
versus
FAIZ MUHAMMAD KHAN, S.P. INVESTIGATION KOHAT and another--Respondents
Cr. Misc. No. 173 of 2006, heard on 15.2.2007.
(i) Constitution of Pakistan, 1973--
----Art. 199--Quashment of FIR--Medical report--Murasila--Registration of case--Legality--On receiving the report of doctor regarding injury of his person was fresh, murasila was sent for registration of case against both officials and that he had no ill will or grudge with petitioner--Action taken by him was in accordance with law and he has committed no illegality whatsoever in sending murasila to SHO--Petition dismissed. [P. 143] A
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Pakistan Penal Code, (XLV of 1860) Ss. 324, 34, 337-F(1)--Constitution of Pakistan, 1973, Art. 199--Quashment of FIR--Provisions of--Cognizance offence--Legality--Registration of case--Commission of--Any person who gives any information either orally or in writing with regard to commission of cognizance offence can ask to register a case if any cognizance was committed--No illegality committed by respondent in sending murasila to the SHO--Petition dismissed. [P. 144] B
Mr. Muhammad Amin Lachi, Advocate for Appellant.
Respondent No. 1 present in person.
Mr. Ehsanullah Khan, Advocate and Malik Hamid Khan Afridi, Advocate for (Said Wali) Respondent.
Date of hearing: 15.2.2007.
Judgment
Said Wali was charged in a case registered vide FIR No. 477 dated 19.8.2005 under Section 324/34 PPC at police station Cantt. The investigation of the said case had been entrusted to Mr. Muhammad Raees Khan, ASI. The said accused was brought to Kohat Bureau of Investigation as the accused is kept in lockup in Kohat Bureau of Investigation where it was alleged that he was ruthlessly beaten by Mr. Muhammad Raees Khan, ASI of Kohat Bureau of Investigation Staff. The said Said Wali submitted an application to the SP Incharge of the investigation that he was unscrupulously beaten. Due to such beating injuries had been caused to his person. On the said application the Incharge SP Investigation Cell Kohat sent a murasila to the SHO of Police Station Cantt: on the basis of which FIR No. 372 was registered on 1.6.2006. Quashment of this FIR (No. 372) has been sought by petitioner Miftahuddin through petition in hand.
Mr. Muhammad Amin Khattak (Lachi), Advocate, learned counsel representing the petitioner argued that the petitioner was not present on the relevant day at Kohat. He had come to Peshawar and had spent a night there. The occurrence took place in his absence as is clear from the daily diary dated 31.5.2006.
It was also argued that the said FIR had been lodged against him due to mala fide intention at the instance of one Ayub Inspector who had ill will with the petitioner.
It was also argued that the SP Incharge of the Investigation had no lawful authority to proceed against the petitioner as under Sub-section (2) of Section 155 of the Police Order 2002 the prosecution could only be initiated on the report in writing by an officer authorized by the rules and officer authorized in the case of the petitioner was District Police Officer and not Incharge of S.P. Investigation, therefore, illegality has been committed by registering the said FIR.
It was also argued that the offences with which the petitioner has been charged are non-cognizable. Before proceeding against the petitioner, a departmental inquiry should have been conducted by the DPO and if he was found involved in the case, then he could be proceeded against.
On the other hand Mr. Ehsanullah Khan, Advocate, learned counsel representing the State and Malik Hamid Khan Afridi, Advocate, learned counsel representing Said Wali and Respondent No. 1 who was present in person argued that the petitioner was very much present at Kohat at the time of occurrence as is clear from the statement of Farmanullah Moharrar KBI. About the daily diary produced by the petitioner it was stated that the same was fabricated in order to safe his skin from the punishment.
It was also argued that on receipt of a written application from Said Wali, he was sent to the medical officer and after obtaining the report that the injuries caused on his body were fresh, murasila for registration of the FIR was sent to the police station concerned upon which the SHO registered the case.
It was also argued that the investigation of the case is complete, challan has been put in the Court of learned Judicial Magistrate on 25.6.2006 and charge has been framed, the case has now been fixed for evidence of the prosecution.
Malik Hamid Khan Afridi, Advocate, argued that the petitioner had filed an application under Section 249-A Cr.P.C. before the learned Trial Court but the said application has been dismissed by the Court below. The quashment of the FIR, at this stage, would amount to interfering into the process of the Court of the competent jurisdiction. Reliance in this regard was placed on Colonel Shah Sadiq Vs. Muhammad Ashiq and others (2006 SCMR 276).
I have heard the learned counsel for the parties at length and perused the available record.
The admitted position in this case is that Said Wali was accused in case registered vide FIR No. 477 dated 19.8.2005 under Section 324/34 PPC at Police Station Cantt: Kohat. It is also an admitted position that he was brought to the lockup of Kohat Bureau of Investigation. The argument of the learned counsel for the petitioner that Mr. Muhammad Raees Khan, ASI was the investigation office of the said case and the petitioner had nothing to do with the same, has no force. At the moment prima facie there is evidence in the shape of statement of Farmanullah the Moharrar of KBI that he was present at relevant time in the said center. Without dilating in detail about his involvement lest my observation may not influence the mind of the learned trial Court. Suffice to say that his presence is a question which would be seen by the learned trial Court.
As per the statement of Respondent No. 1 who is a senior police officer and Incharge of the investigation Cell Said Wali on receipt of his application was referred to the doctor by him and after obtaining his report that the injury of his person was fresh, murasila was sent for registration of case against both officials and that he had no ill will or grudge with petitioner. The action taken by him was in accordance with law and he has committed no illegality whatsoever in sending murasila to the concerned SHO.
The provisions of Section 154 Cr.P.C. with regard to the registration of a case are clear. On receipt of every information relating to the commission of a cognizance offence if given orally to an officer Incharge of the police station shall be reduced in writing by him or under his direction and be read over to the informant and every such information whether in writing or reduced to writing shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.
Any person who gives any information either orally or in writing with regard to the commission of cognizance offence can ask the Officer Incharge of the police station to register a case if any cognizable was committed what to speak of a superintendent of police who is Incharge of the investigation cell of the entire district. No illegality as mentioned above, whatsoever has been committed by Respondent No. 1 in sending murasila to the SHO of the concerned police station. So far as Section 337-F(1) PPC with which the petitioner has been charged is punishable with punishment of 5 years and the same is cognizable. Investigation of the case has been completed way back in June 2006 and challan of the case has been submitted in the Court wherein charge against the petitioner and his co-accused has also been framed and now the case is fixed for evidence. A similar proposition came up for hearing before august Supreme Court of Pakistan in Colonel Shah Sadiq Vs. Muhammad Ashiq and others (2006 SCMR 276) in which the following principle was laid down:--
"It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to Constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court."
Keeping in view the above dictum laid down by august Supreme Court of Pakistan I do not feel it appropriate at this stage, to deflect the working of the Court of competent jurisdiction. Resultantly, the petition in hand is dismissed.
(N.F.) Petition dismissed.
PLJ 2007 Peshawar 145
[Peshawar High Court Circut Bench Abbottabad]
Present: Salim Khan, J.
RASHID KHAN--Petitioner
versus
MIR AFSAR--Respondent
C.R. No. 126 of 2006 with C.M. No. 110 of 2006, decided on 13.11.2006.
Superior Right of Pre-emption--
----Talb-i-Muwathibat and Talb-i-Ishhad--Not properly made--Appreciation of evidence--Detail of sale was not mentioned at time of alleged talb-i-ishhad--Property in question was not found in possession of plaintiff--Not fatal to the case of plaintiff that sale of property in question by vendee was collusive and was intended to ward off the right of pre-emption--Being disguise, plaintiff was not required to pre-empt second sale. [P. 146] A
Opinion--
----Applicable--Demands were properly made--Such opinion could be formed on the basis of evidence available before the Court and has been formed--No chance for forming a different opinion on the basis of same evidence inspite of fact that more than one opinions can be formed on the basis of evidence and opinion formed by First Appellate Court is one of such opinions. [P. 147] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Attestation of mutation--Fees and taxes were paid--Entitlement--Execution of decree--Vendee defendant had, however paid fees and taxes on the entry and attestation of the mutation in his favour--He is entitled to Distt. Council Fee and mutation fee paid by him on official rates. [P. 147] C
District Council Fee--
----Mutation fee--Paid by pre-emptor--Vendee--Debtor at time of execution of decree--Civil revision which was dismissed but subject to observation regarding District Council Fee and mutation fee which would be paid by the pre-emptor to vendee-defendant/debtor at the time of execution of the decree. [P. 147] D
Mr. Iqbal Ahsan Khan Taher Kheli, Advocate for Petitioner.
Date of hearing: 13.11.2006.
Judgment
Through Suit No. 114/1 of 2003 instituted on 4.12.2003, Mir Afzal pre-empted the property sold through Mutation No.2033 attested on 24.9.2003 to Rashid Khan vendee-defendant. It was alleged that the suit property was 20 kanals 15 marlas and 1 kanal 1 marla in Khasra Nos. 1068/1, 1901 and 670. The suit was contested. The evidence of the parties was recorded on the basis of issues, arguments were heard. The learned Civil Judge, Ghazi held that the market value of the suit property was Rs.3,00000/- and was correctly mentioned in the mutation. He further decided that the plaintiff had superior right of pre-emption, but the Talb-i-muwathibat and Talb-i-Ishhad were not properly made. It was further held that the details of the sale were not mentioned to the plaintiff at the time of the alleged Talb-i-ishhad and, though it was mentioned to him that the suit property in his possession was sold, the suit property was not found in possession of the plaintiff. He, therefore, dismissed the suit of the plaintiff. On appeal by the plaintiff, the learned Addl: District Judge, Haripur at Ghazi, in Appeal No.23/13 of 2005 instituted on 27.6.2005, on the basis of the evidence of the parties and on perusal of record, came to the conclusion that the market value of Rs. 3,00000/- was properly fixed by the learned Civil Judge and it was rightly decided by the learned original Court that the plaintiff had superior right of pre-emption while the defendant did not have such a right. It was further held by the learned Addl: District Judge that the demands were properly made, that there were minor contradictions in the statements of the P.Ws., but those minor contradictions were not fatal to the case of the plaintiff. The learned Addl: District Judge also came to the conclusion that the sale of some of the suit property by the vendee-defendant to Aslam in Khasra No.670 vide Mutation No.2045 attested on 24.9.2003 was collusive and was intended to ward off the right of pre-emption of the plaintiff and being disguise, the plaintiff was not required to pre-empt the second sale also as the second sale was not a real one.
The counsel for the petitioner of the present civil revision against the judgment and decree mentioned above, of the learned Addl: District Judge, argued that the second sale was real one and it was not pre-empted by the plaintiff, therefore, the plaintiff was not entitled to any decree in respect of the property sold vide Mutation No.2045 mentioned above. There is nothing on record to show that what compelled the vendee-defendant to sell the said property through a mutation attested on the same date on which the mutation in his favour was attested. The defendant would have not got the Mutation No.2033 attested in his favour on 24.9.2003 for the whole of the property and would have opted to exclude the property allegedly sold by him from the said mutation, had the transfer through Mutation No. 2045 was a real one, and a mutation for the new transferee would have been attested directly from the vendor. The learned Addl: District Judge has properly appreciated the evidence in the circumstances of the case, and has come to a correct legal and factual conclusion.
As far the conclusion regarding the demands, the learned two Courts have applied their mind to the evidence of the parties and the learned Addl: District Judge, being the Presiding Officer of the Appellate Court and being the last Court of fact, appreciated the evidence and came to the conclusion that the demands were properly made. Such an opinion could be formed on the basis of the evidence available before the Court and has been formed. There is no chance for forming a different opinion on the basis of the same evidence inspite of the fact that more than one opinions can be formed on the basis of the same evidence and the opinion formed by the learned Appellate Court is one of such opinions.
The vendee-defendant had, however, paid fees and taxes on the entry and attestation of the mutation in his favour. He is entitled to the District Council Fee and the mutation fee paid by him on the official rates.
I do not find any merit in the present civil revision which is dismissed, but subject to observation regarding the District Council Fee and the mutation fee which shall be paid by the pre-emptor to the vendee-defendant/judgment-debtor at the time of execution of the decree. I, therefore, dismiss the present civil revision alongwith C.M. No. 110/2006.
(R.A.) Revision dismissed
PLJ 2007 Peshawar 147
[Abbottabad Bench]
Present: Salim Khan, J.
Raja JAVED AFANDI--Petitioner
versus
M. ZUBAIR and 9 others--Respondents
C.R. No. 437 of 2006, decided on 9.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Cogent and reliable evidence--Application for sending document to an expert--Concurrent findings--Application was submitted by defendant in Appellate Court with request that signatures on receipt were forged and receipt be sent to expert to provide the defendant a chance as additional evidence--Application was dismissed by Appellate Court--Not filed at proper time--In order to delay the proceedings and take benefit out of the same--First Appellate Court had properly decided the appeal and application--Held: No ground for interference in concurrent findings of Courts below the facts of the case regarding dismissal of application--Revision dismissed. [Pp. 148 & 149] A
Mr. Khan Afzal, Advocate for Petitioner.
Mr. Masoodur Rehman Awan, Advocate for Respondents on pre-admission notice.
Date of hearing: 9.4.2007.
Order
A suit was instituted by Fazal Dad (now dead and represented by his legal representatives) against Raja Javed Afindi for recovery of an amount of Rs.99,000/-. It was alleged that the defendant opted to be the counsel for the plaintiff and also told the plaintiff that he would provide job to him and his son in the Telephone Industry, and received amounts totaling Rs. 99,000/- from the plaintiff through fraud. The suit was contested. Evidence of the parties was recorded. The plaintiff produced Safdar who accepted his signature on the receipt Ex.P.W.1/1. Fazal Dad appeared as, P.W.2 in support of his claims. Mian Dad was also examined as P.W.3 who was also a witness to the receipt Ex.P.W. 1/1. The defendant appeared as D.W.I
Rs. 80,000/- only in favour of the plaintiff against defendant, holding that the payment of an amount of Rs. 19,000/- was not proved. Appeal No. 36/13 was instituted on 30.9.2003 against judgment and decree in Suit No. 293/1 instituted on 18.9.2000 and decided on 2.5.2003. The said appeal was also dismissed. An application was submitted by the defendant in the appellate Court with the request that his signatures on the receipt were forged and the receipt be sent to expert to provide the defendant a chance as additional evidence. This application was dismissed by the learned appellate Court on the ground that such an application was not submitted at proper time to the learned original Court.
I heard the arguments of the learned counsel for the parties regarding the present civil revision, including the question of the application. I also perused the record.
The receipt Ex.P.W. 1/1 has been properly proved by cogent and reliable evidence. The plaintiff had not submitted any application to the learned original Court for sending the document to an expert. The application of the present petitioner at the appellate stage is result of the afterthought, in order to delay the proceedings and take benefit out of the same. The learned Additional District Judge has properly appreciated the evidence and other record and has properly decided the appeal and the application. There is no good ground for interference in the concurrent findings of the learned two Courts regarding the facts of the case, and in the order of the learned appellate Court regarding the dismissal of the application of the present petitioner. Finding no merit in the present civil revision, it is hereby dismissed.
(R.A.) Revision dismissed
PLJ 2007 Peshawar 149
Present: Ijaz-ul-Hassan, J.
NAWAB ALI etc.--Petitioners
versus
SARDAR ALI etc.--Respondents
C.R. No. 323 of 2007 with C.M. No. 305 of 2007, decided on 20.4.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XXXIX, Rr. 1 & 2--Suit for declaration with pray for granting of permanent injunction--Determination--Question of--Ingredients--Existence of a prima facie--Irreparable damage or injury will accrue to applicant if injunction is not granted and that the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that, which is likely to arise from granting it, or in other words the balance of inconvenience should be in favour of applicant--Held: Court need not closely examine the merits of the case nor is the applicant to be required to establish his legal title--It is sufficient if the applicant is able to establish an arguable case. [Pp. 150 & 151] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Scope of--High Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact rendered by Courts below unless it finds misreading and non-reading of evidence. [P. 151] B
Mr. Abdul Mabood Khattak, Advocate for Petitioners.
Date of hearing: 20.4.2007.
Order
Sardar Ali Khan, plaintiff instituted suit against Abdul Hamid and his brother Hamid Khan, defendants, claiming a declaration to the effect that plaintiff was owner in possession of suit land, detailed in the plaint, by virtue of purchase and defendants had no concern with it. The plaintiff also prayed for grant of permanent injunction, restraining the defendants to transfer or alienate the suit property in any manner. A prayer for possession through partition by demolition of superstructure constructed thereon, was also made. Alongwith the plaint, an application duly supported by an affidavit for grant of temporary injunction, in the above terms, was also made. The suit as well as application were resisted on all grounds, legal as well as factual. Resultantly, learned Civil Judge, Peshawar, by her order dated 21.11.2006, accepted application and granted temporary injunction in favour of the respondent. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Peshawar, by judgment dated 27.1.2007. The petitioners, feeling aggrieved, have filed instant civil revision.
Learned counsel for the petitioners attempted to argue that the impugned judgments and orders of the Courts below have been recorded in a mechanical manner without adverting to the provisions contained in Order 39 Rules 1 and 2 CPC, which has resulted in manifest injustice. In support of the contentions, reliance was placed on Haji Shahjahan Khan Vs. Aurang Zeb Khan and another (PLD 1995 Supreme Court 462) and Amanullah Vs. Hameedullah and others (2006 YLR 856).
An injunction will only be issued if the circumstances mentioned in Rule 1 are attracted i.e. as a step in aid of or to refrain or prevent, waste, damage, alienation, sale, removal or disposal of property and even where this is so, it is discretionary with the Court to grant an injunction. The factors to be considered while determining the question of granting a temporary injunction are, the prima facie existence of a right in the applicant and its infringement by the respondent or the existence of a prima facie case in favour of the applicant, irreparable damage or injury will accrue to the applicant if the injunction is not granted and that the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that, which is likely to arise from granting it, or in other words the balance of inconvenience should be in favour of the applicant. The appellant is to prove the prima facie existence of the right claimed in the suit and also its infringement. The Court need not closely examine the merits of the case nor is the applicant to be required to establish his legal title. It is sufficient if the applicant is able to establish an arguable case or show that the nature and difficulty of the question is such that an injunction should issue, or in other words if the evidence were to remain as it is, the applicant should be able to show that he will get a decision in his favour and that the case is not bound to fail on account of some apparent defect in it.
In the instant case I find that learned trial Court on appraisal of the material on record, has considered the matter from all angles keeping in view the factors relating to grant or refusal of temporary injunction. The learned trial Court has advanced sound, cogent and sagacious reasons in support of the order. which are not open to exception. The learned appellate Court has also upheld said order for valid reasons. The scope of Section 115 CPC is limited and, as such, this Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact rendered by the two Courts below unless it finds misreading and non-reading of evidence therein. The mere assertion of learned counsel that the impugned judgments and orders suffer from misreading and non-reading of material on record, without a positive attempt on his part to substantiate the same, is of no consequence. It is well settled law that a concurrent finding of fact recorded by the Courts below cannot be disturbed by this Court in exercise of the revisional jurisdiction under Section 115 CPC unless the two Courts below while recording the finding of fact have either misread the evidence or ignored any material piece of evidence on record or the finding of fact is perverse to the evidence on record. Since the learned counsel has not been able to point out any illegality or irregularity in the decisions concurrently arrived at by the forums below, justifying interference of this Court in its revisional jurisdiction, the civil revision fails, which is hereby dismissed in limine. The listed C.M. also meets the same fate.
(J.R.) Revision dismissed
PLJ 2007 Peshawar 151
Present: Salim Khan, J.
ZAHOOR DEEN--Petitioner
versus
Mst. SAFINA BIBI and another--Respondents
W.P. No. 359 of 2006, decided on 27.4.2007.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5--Constitution of Pakistan, 1973 Art. 199--Suit for past maintenance--Entitlement for future maintenance--Jurisdiction--Future maintenance already decided--Dower house and cash amount are the basic right of wife to have to be given to her as decreed--Question of fact--Past maintenance should have been granted to wife when it was proved that she was forcibly ousted from the house of petitioner--Husband through the executing Court with a promise that he will maintain wife and her children properly--Held: Wife shall be at liberty to withdraw the said amount from the Court and take possession of said property--Petition dismissed. [P. 153] A & B
Mr. Muhammad Ayub, Advocate for Petitioner.
Mr. Khalid Rahman Qureshi, Advocate for Respondents.
Date of hearing: 27.4.2007.
Judgment
A suit was instituted by Zahoor Deen petitioner against Mst. Safina Bibi, daughter of Akbar (wife of the petitioner) for restitution of conjugal rights. Mst. Safina Bibi instituted suit for her self, for her son (Sohail Khan) and her daughter (Maya Bibi) for recovery of Rs. 1,00,000/- as dower, for recovery of Rs.15000/- as past maintenance, for possession of a house, for recovery of Rs.15000/- as past maintenance for Petitioner No. 2, for recovery of Rs.12,000/- as past maintenance for Respondent No. 3. Evidence of the parties was recorded. Suit of the petitioner was decreed subject to conditions mentioned in the judgment dated 15.4.2006 of the learned Judge Family Court for Suit No. 19/FC and 58/FC of 2005. On appeal, the learned Additional District Judge, Haripur, vide his judgment dated 31.10.2006, dismissed the suit of the petitioner for conjugal rights while granted decree for past maintenance as Rs. 42,000/-, for future maintenance at the rates already decided with 10% annual increase, preliminary decree for possession of 1/3rd of dowered house with cash amount of Rs.10,000/-. It aggrieved the present petitioner.
The learned counsel for the parties argued the case in detail. The main grievance of the learned counsel for the petitioner is that suit for conjugal rights of the petitioner has been dismissed and decree for future maintenance allowance has also been granted in favour of the respondent. The learned counsel for the respondents contended that neither the dowered house and cash amount nor the past maintenance has been paid to the respondents nor possession of 1/3rd of the dowered house has been given to them.
As the wedlock between the petitioner and Respondent No. 1 still subsists, it is necessary to grant decree for conjugal rights in favour of the petitioner, though it may be subjected to certain conditions. The dowered house and the cash amount of Rs.10,000/- are the basic right of Respondent No. 1 to have to be given to her as decreed. The petitioner is bound by the decree granted in favour of Respondent No. 1. The learned Appellate Court has come to the conclusion regarding the question of fact that past maintenance should have been granted to the Respondent No. 1 when it was proved that the Respondent No. 1 was forcibly ousted from the house of the petitioner. The learned Appellate Court had jurisdiction for coming to that conclusion. There was evidence for forming that opinion and the law permits the learned Appellate Court to form such an opinion. The opinion and conclusion of the learned Appellate Court, in this case, cannot be interfered with through writ petition. As for the future maintenance allowance of the Respondent No. 1, the petitioner shall have to offer a suitable accommodation to Respondent No. 1 through the executing Court with a promise that he will maintain Respondent No. 1 and her children properly.
In the light of the above, we dispose of this writ petition with the direction to the petitioner to deposit Rs. 42,000/- as the amount of past maintenance with further amount of Rs.10,000/- as the part of the dower and deliver the possession of 1/3rd of the suit house to the Respondent No. 1 as the remaining part of the dower. Respondent No. l shall be at liberty to withdraw the said amounts from the Court and take possession of the said property. The decree for conjugal rights in favour of the petition is a legal necessity and is declared as so granted but subject to the conditions as aforesaid. The petitioner shall offer the suitable premises for residence, and the proper maintenance to Respondent No. 1, and the Respondent No. 1 shall not remain entitled to future maintenance if she refuses to accept the said offer unreasonably. This writ petition shall stand dismissed if the petitioner does not perform his part of the obligation. We dispose of the writ petition accordingly.
(N.F.) Petition disposed of
PLJ 2007 Peshawar 154
Present: Ijaz-ul-Hassan, J.
SAID GHANI--Petitioner
versus
Mst. BIBI AMAN--Respondent
C.R. No. 1586 of 2004, heard on 5.3.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration--Defendant had no right to sell the suit property without consent and permission of plaintiff--Plaintiff was legally wedded wife of defendant and had transferred the property in question in favour of plaintiff in lieu of dower but during pendency of suit, defendant divorced the plaintiff and sold the property in favour of defendant--Revisional jurisdiction of High Court--Validity--Virtue of--Mehar Nama--Assailed--Appraisal of evidence--No legal defect--It stands established from the material on record that at the time of marriage defendant had transferred the property in-question in the name of his wife, in consideration of dower but subsequently sold it in favour of petitioner without consent and permission of his wife--`Mehar Nama' had been satisfactorily proved through the deposition of petition writer and the marginal witnesses--Nothing in rebuttal had been produced to dislodge the claim of respondent--Revision dismissed. [Pp. 156 & 157] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 31--Non-compliance of provision--Finding on all the points of controversy in careful manner--Question of--Requirements of provision--Appellate Court had given its findings on all the points of controversy and no prejudice seems to have been caused to petitioner--So far as the question of giving issue wise findings by Appellate Court was concerned, that was not requirement of law--Revision dismissed. [P. 157] B
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O.XX, R.5--Finding issue-wise--Question of--Mandatory--Requirement of recording findings issue-wise is not mandatory--Applicability--Appellate Court recording its findings on the points raised before it, without discussing issues separately cannot be said to have committed any illegality or error--Revision dismissed. [P. 157] C
(iv) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 25--Empowered to remand--Discretionary power in exceptional situation--Remand of case in appeal or revision is not proper exercise of jurisdiction--Validity--Held: Appellate and revision Courts are empowered to remand the case but such discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point that in light of evidence available on record, remand of the case in appeal or revision is not proper exercise of the jurisdiction--Revision dismissed.
[Pp. 157 & 158] E
(v) Evidence--
----Material portion of evidence which was overlooked or misread--Counsel could neither point out as to which issue was improperly framed, nor could he draw the Court attention to any material portion of evidence which was overlooked or misread by the Appellate Court--Revision dismissed. [P. 157] D
Qazi Muhammad Jamil, Advocate for Petitioner.
Mr. Yousaf Khan Yousafzai, Advocate for Respondents.
Date of hearing: 5.3.2007.
Judgment
Shortly narrated the facts are, that Mst. Bibi Aman, plaintiff instituted suit on 19.9.1997, against Said Ghani, Shabar and Muhammad Akram, defendants, claiming a declaration to the effect that plaintiff was owner in possession of suit property, detailed in the plaint, by virtue of `Mehar Nama' dated 20.12.1989; that Defendant No. 3 had no right to sell the suit property without consent and permission of the plaintiff and that sale by him in favour of Defendants 1 and 2, was illegal, void and inoperative on the rights of the plaintiff. A prayer for possession of suit property, in case the plaintiff was not found in possession of the same, was also made. The plaintiff further prayed for grant of permanent injunction, restraining the defendants to interfere in her possessery rights. It was averred in the plaint that plaintiff was legally wedded wife of Defendant No.3 and he had transferred the property in suit in favour of the plaintiff in lieu of dower but during the pendency of the suit, Defendant No.3 divorced the plaintiff and sold the property in suit in favour of Defendants 1 and 2, which necessitated the filing of suit.
The suit was resisted on all grounds, legal as well as factual and claim of the plaintiff was denied. Relevant issues were framed and pro and contra evidence was recorded. Learned Civil Judge/Illaqa Qazi, Malakand at Batkhela, seized of the matter, did not accept the claim of the plaintiff and dismissed her suit by judgment and decree dated 13.4.1999. An appeal was preferred thereagainst before learned District Judge/Zilla Qazi, Malakand at Batkhela, which was accepted by judgment dated 3.6.1999 and the matter was remanded to the trial Court with direction to decide the same afresh on merits after formulating fresh issues and affording an opportunity to the parties to produce evidence in support of their respective contentions. After remand, issues were recast and necessary evidence was recorded. The suit was allowed, vide judgment and decree dated 17.1.2004, which was maintained in appeal by judgment dated 3.11.2004.
Said Ghani, petitioner, feeling aggrieved thereby, has filed instant civil revision, which is before me for consideration.
Appearing on behalf of the petitioner, Qazi Muhammad Jamil, Advocate, contended that judgments and decrees of the Courts below are laconic and suffer from the vice of misreading and non-reading of evidence and `Mehar Nama' in question dated 20.12.1989, has been relied upon and made basis of the Respondent's No. 1 claim without any justification. Concluding the arguments, learned counsel reiterated that remand order of the appellate Court has not been substantially complied with; that judgment of the appellate Court is not in consonance with the requirements of Order XLI Rule 31 CPC and that issues formulated in this case do not fully reflect the pleadings of the parties.
Mr. Yousaf Khan Yousafzai, Advocate for answering Respondent No. 1, on the other hand, contended that the scope of Section 115 CPC is limited and as such, this Court cannot interfere in its revisional jurisdiction with the concurring findings on a question of fact, rendered by the Courts below, unless it finds misreading and non-reading of evidence therein.
Having adjudged the matter from all angles, I find that the trial Court as well as appellate Court adverted to every aspect of the case, rightly decided the issues agitated and rendered reasonable judgments, which are not amenable to the revisional jurisdiction of this Court. Both the Courts below have given exhaustive judgment after due appraisal of evidence on the file and after discussing all the prons and cons. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. The conclusion of fact arrived concurrently by both the lower Courts is not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence has been pointed out. It stands established from the material on record that at the time of marriage Muhammad Akram, Defendant No. 3 had transferred the property in suit in the name of his wife Mst. Bibi Aman, in consideration of dower but subsequently sold it in favour of Said Ghani petitioner, without consent and permission of his wife. The `Mehar Nama' dated 20.12.1989 has been satisfactorily proved through the deposition of Petition Writer and the marginal witnesses. Nothing in rebuttal has been produced to dislodge the claim of Respondent No. 1.
Adverting to the objection raised by the petitioner regarding non-compliance of the provision of Order XLI Rule 31 CPC, I find that learned appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The appellate Court had given its findings on the all the points of controversy and no prejudice seems to have been caused to the petitioner. So far as the question of giving issue-wise findings by the appellate Court is concerned, the same is not the requirement of law under Order XLI Rule 31 CPC. Umer Din Vs. Ghazanfar and 2 others (1991 SCMR 1868).
The last submission of the learned petitioner's counsel that appellate Court had failed to record judgment issue-wise and separately in terms of the requirement of Order XX, Rule 5 CPC and thus case is fit for remand in terms of Order XLI, Rule 23 thereof, the submission is equally without force. Order XX, Rule 5 CPC is evidently applicable to the original Court, which hears a civil suit. As regards appellate Court, the requirement of recording finding issue-wise is not mandatory. It is sufficient for the appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error. Even otherwise law regarding framing of issues is firmly settled to the effect that where parties enter into trial of the case with all awareness of controversy between them, its framing or non-framing looses importance. Fazal Muhammad Bhatti and another Vs. Mst. Sdeeda Akhtar and 2 others (1993 SCMR 2018).
Learned counsel could neither point out as to which issue was improperly framed nor could he draw, my attention to any material portion of evidence which was overlooked or misread by the appellate Court. Neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked by the appellate Court while deciding the appeal.
Adverting to the question regarding remand, it may be observed that the appellate and the revision Courts are always empowered to remand the case in terms of Order XLI Rule 25 CPC but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of the jurisdiction.
In view of what has gone above, it follows that the findings recorded by learned trial judge and affirmed by learned appellate Court are not only in consonance with the record of the case but the same are also in accordance with the law on the subject. The civil revision is found bereft of merit, which is dismissed with no order as to costs.
(N.F.) Revision dismissed.
PLJ 2007 Peshawar 158
Present: Ijaz-ul-Hassan, J.
TARIQ JAVED--Appellant
versus
KHAWAJA MUHAMMAD ADIL YOUNAS--Respondent
F.A.O. No. 38 of 2005, decided on 2.3.2007.
(i) Cantonment Rent Restriction Act, 1963 (XI of 1963)--
----S. 24--Ejectment petition--Ground of--Defaults--Question of--Mortgaged property--Marginal witnesses of deed--Respondent failed to prove the factum of mortgage--Appellant had produced the rent deed with marginal witnesses of deed and examined the witnesses who had collected the rent from respondent--Confirmed by official record of bank because the cheques which were tendered as rent were encashed by witnesses having his signature on back of cheques--Onus to prove the factum of mortgage was heavily placed on respondent but he had failed to discharge the same--Nothing had been brought on record to dislodge the claim of appellant--Appeal accepted. [P. 160] B
(ii) Cantonment Rent Restriction Act, 1963 (XI of 1963)--
----S. 24--Jurisdiction--Question of--Determination--Rent controller does not enjoy status of a Civil Court of general jurisdiction--Relationship of landlord and tenant--Rent controller has jurisdiction to decide questions relating to existence of facts upon which jurisdiction can be exercised. [P. 160] A
Mr. Naveed Maqsood, Advocate for Appellant.
Exparte for Respondent.
Date of hearing: 12.2.2007.
Judgment
This appeal under Section 24 of the Cantonment Rent Restriction Act,(XI of 1963), (hereafter called the Act) is directed against judgment and order dated 29.8.2002, passed by learned Additional Controller of Rents, Peshawar, whereby application of the appellant for ejectment of the respondent, from suit premises, was dismissed.
In brief, the factual background of the case is that Tariq Javed appellant moved an application under Section 17 of the Act, before Controller of Rents, Peshawar, seeking eviction of Khawaja Muhammad Adil Younas, respondent from the property in question i.e. a hall measuring 22'-7" X 32'-0 on 1st Floor and an area measuring 22'-7" X 32'-0 on the ground floor of the building, known as Pakistan Auto Store building situated at 20-Saddar Road, Peshawar Cantt:, on the grounds of default in payment of rent since March 1995, reconstruction and altercations in the property without permission and consent of the appellant. It was averred that appellant was owner of suit property and respondent was occupying the same as tenant, vide rent deed dated 25.10.1994, on payment of rent at the rate of Rs.9000/- P.M. and that respondent has committed default in payment of rent and has made alteration/changes in suit property, which necessitated the filing of an ejectment petition.
The respondent appeared in Court and resisted the application mainly on the ground that the petitioner and respondent have got no relationship of landlord and tenant as the respondent has obtained possession of the property in question as a mortgagee for the period of ten years and thus the Court has got no jurisdiction to proceed with the case. The following preliminary issue was framed for trial:-
"Whether the relationship of landlord and tenant exists between the parties?
Relief.
After recording such evidence as the parties wished to adduce, learned Additional Controller of Rents, Peshawar, by his order dated 29.8.2002, dismissed the application holding that existence of relationship of landlord and tenant between the parties has not been proved and the question of mortgage falls outside the jurisdiction of the Court.
Mr. Naveed Maqsood, Advocate, appearing on behalf of the appellant, contended that impugned judgment and order of learned Additional Rent Controller, is laconic and suffers from the vice of misreading and non-reading of the evidence. The learned counsel reiterated that sufficient material was brought on record to prove the relationship of landlord and tenant between the parties, which has been excluded out of consideration without any valid justification, which has resulted in manifest injustice. To augument the contentions, reliance has been placed on Manzoor Hussain and 2 others Vs. Abdul Aziz and 2 others (2000 YLR 2634 Lahore), Mian Muhammad Saleem vs. Zafar Riaz (2000 MLD 296 Lahore), Amanat Hussain Khan vs. Mrs. Asma Masood (2004 YLR 2514 (Karachi) and Shakeel Ahmad Vs. Mushtaq Ahmad (2000 YLR 992 Lahore).
It may be mentioned here that respondent did not appear in Court despite issuance of notices. He was held exparte on 6.5.2005 by Deputy Registrar of this Court on account of having refused to accept service.
The jurisdiction of Rent Controller under the Act is contingent on existence of relationship of landlord and tenant between the parties and the property, subject-matter of the proceedings, should be a building, residential or non-residential, rented land or scheduled building situated in an urban area. A Rent Controller does not enjoy status of a Civil Court of general jurisdiction, he is, nevertheless, entitled to determine the question of the relationship of landlord and tenant. Rent Controller has jurisdiction to decide questions relating to existence of facts upon which jurisdiction can be exercised. He is a special tribunal having a restrictive jurisdiction and as soon as it is proved beyond any shadow of doubt on record that no such relationship exists between the parties to the proceedings, his jurisdiction over the matter in question comes to an end and the Rent Controller cannot assume jurisdiction under the Act. The question of the existence of the relationship of landlord and tenant between the parties is one which has a direct bearing on the question of Rent Controller's jurisdiction. The question of tenancy carries certain advantages and must be proved by evidence of a very high order. It cannot be proved by mere oral evidence as held in 1983 SCMR 1064 and PLD 1974 Karachi 19.
Having adjudged the matter from all angles, in the light of the material on the file, I find that appellant has produced the rent deed (Ex.PW.3/1), produced marginal witnesses of the deed and examined the witness who has collected the rent from the respondent, which fact has been confirmed by the official record of the bank because the cheques which were tendered as rent were encashed by the said witness having his signature on the back of the cheques. The onus to prove the factum of mortgage, was heavily placed on the respondent but he has failed to discharge the same. Nothing has been brought on record to dislodge the claim of the appellant.
In view of the above, I accept the appeal and set aside the impugned order. The respondent shall vacate the suit premises within one month, subject to payment of rent. No order as to costs.
(N.F.) Appeal accepted.
PLJ 2007 Peshawar 161
Present: Ijaz-ul-Hassan, J.
SAID ALEEM JAN--Petitioner
versus
PESCO (WAPDA) through Chairman & others--Respondents
C.R. No. 1462 of 2005, heard on 24.11.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Administration of justice--Suit for declaration as well as damages--No justification to call upon plaintiff to pay excess amount of electricity bill and disconnection of electricity supply--Misreading/ non-reading of evidence--Appreciation of evidence--Trial Court suffered from grave legal errors and was not sustainable in law, whereas the judgment of the appellate Court was neither contrary to the evidence nor in violation of the principle of administration of justice--There was specific evidence on record which shows the misuse and stealing of electricity by illegal means--No infirmity in the impugned judgment, which justified interference in revisional jurisdiction--Revision dismissed. [Pp. 162 & 163] A & C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Objection regarding non-compliance of the rule--Points for determination--Held: Appellate Court had given its findings on all the points of controversy and no prejudice appeared to have been caused to the petitioner; to give the issuewise findings by the Appellate Court was not the requirement of law. [P. 163] B
1991 SCMR 1868 and 2000 CLC 709, ref.
Mr. Asadullah Jan, Advocate for Petitioner.
Mr. Naveed Akhtar, Advocate for Respondents.
Date of hearing: 24.11.2006.
Judgment
Facts relevant for disposal of the present civil revision in brief are, that Said Aleem Jan, plaintiff, instituted suit on 17.1.2004 in the Court of Senior Civil Judge/Aala Illaqa Qazi, Malakand at Batkhela, against PESCO, through Chairman WAPDA Lahore and others, defendants, for a declaration to the effect that defendants had no justification to call upon the plaintiff to pay amount in excess of the electricity consumed or disconnect the electricity supply from the premises of the plaintiff and that defendants were bound to send revised and correct electricity bill to the plaintiff for the month of December, 2003, after deducting the excess, amount. The plaintiff also prayed for recovery of Rs. 20,000/- as damages.
The suit was contested on all grounds, legal as well as factual and the allegations of the plaintiff were denied. The trial Court after framing as many as seven issues, arising out of controversial pleadings of the parties, called upon them to produce evidence in support of their respective cases, whereafter it decreed the suit of the plaintiff, vide judgment and decree dated 26.11.2004. An appeal was preferred thereagainst in the Court of learned District Judge/Zilla Qazi, Malakand at Batkhela, which was accepted by judgment dated 14.9.2005. The judgment and decree of the trial Court was set aside and suit was dismissed.
Mr. Asadullah Jan, Advocate, appearing on behalf of the petitioner, contended that the learned District Judge while reversing the judgment of trial Court, has ignored the evidence on the file and thus returned findings, which run counter to the record. He also maintained that impugned judgment being tainted with the defect of the non-reading of the evidence cannot be allowed to remain intact. He further contended that the impugned judgment does not substantially comply with the requirements of Order XLI Rule 31 CPC and thus the same is not in accordance with law.
Opposing the prayer for acceptance of the civil revision and rebutting the arguments of the learned counsel for the petitioner, it has been argued by Mr. Naveed Akhtar, Advocate, for the respondents that appellate Court has thoroughly scanned the evidence produced by the parties and had drawn correct conclusion from the record, which are not open to legitimate exception.
Having considered the matter from all angles, in the light of the material on the file, I find that the judgment rendered by learned trial Court is not sustainable in law. To my mind, the said judgment, as compared to the learned appellate Court's, judgment, suffers from grave legal errors, which have been rectified by the learned appellate Court, by reversing the findings of the learned trial Court and substituting its own findings, which are supported by reasons. I have not been persuaded by the learned counsel for the petitioner to restore me judgment of the trial Court, which has rightly been set aside by the learned appellate Court. The impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice. It has come in evidence that petitioner supplies electricity to his 'Hujra' as well as the adjoining mosque and also irrigates his fields through water pump. It has also come in evidence that on a number of occasions, petitioner was caught red handed stealing the electricity through hooks and direct connection from the main pole. When attention of learned counsel for the petitioner was drawn to this aspect of the matter, he had no plausible reply to make.
So far as the other objection raised on behalf of the petitioner, regarding non-compliance of the provision of Order XLI 41 Rule 31 CPC is concerned, I find that learned appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The appellate Court had given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioner. So far as the question of giving issue-wise findings by the appellate Court is concerned the same is not the requirement of law as under Order XLI Rule 31 CPC. The appellate Court is to state the points for determination give its decision thereon and reasons for the said decision be also mentioned. Umer Din Vs. Ghazanfar and two others (1991 SCMR 1868) and Mst. Husan Bano Vs. Faiz Muhammad and another (2000 CLC 709).
Since learned counsel for the petitioner has remained unable to advert to any such infirmity in the impugned judgment, which would justify interference therein while exercising revisional jurisdiction, I find no merit in this revision petition, which is hereby dismissed, with no order as to costs.
(N.J.) Petition dismissed.
PLJ 2007 Peshawar 163
Present: Ijaz-ul-Hassan, J.
MUHAMMAD AKBAR--Petitioner
versus
ALIF KHAN and others--Respondents
C.R. No. 128 of 2006, decided on 20.11.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. XLI, R. 23 & O.XX, R. 5--Provisions of--Violative of--Reappraisal of evidence--Suit for declaration--Effect of--Plaintiff was owner in possession of land in-question--By virtue of oral sale and entries in revenue record--Defendants were illegal, void and in effective on right of plaintiff and liable to concellation--Petitioner has claimed mis-reading and non-reading of evidence and wrong incorporation of entries in revenue record--Concurrence of facts recorded by Courts below were based on correct appreciation of evidence and were not amenable to revisional jurisdiction of High Court--Onus to prove the factum of oral sale was heavily placed on the shoulders of the petitioner being beneficiary but he had miserably failed to discharge same--Evidence produced by the petitioner was discrepant contradictory and suffered from infirmities--Appellate Court had failed to record judgment issue-wise and separately in terms of requirement of O. XX, R.5 and thus was fit for remanding in terms of O.XLI, R. 23. [Pp. 164, 165 & 166] A, B, C & E
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31 & O.XX, R.5--Requirement of recording issue-wise--Question of--Appellate Court had given its findings on all the points of controversy and no prejudice seems to have been caused to petitioner--Question of giving issue-wise findings by Appellate Court was not requirement of law--Requirement of recording finding issue-wise is not mandatory--It was sufficient for Appellate Court to deal with all issues as are material for disposal of controversy excepting abandoned by appellate. [P. 166] D & F
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 25--Discretionary power--Jurisdiction--Remand of case in appeal or revision is not proper exercise of jurisdiction. [P. 166] G
Mr. Fida Gul, Advocate for Petitioner.
Date of hearing: 20.11.2006.
Judgment
Concisely stated the facts, giving rise to the filing of instant civil revision are that Muhammad Akbar, plaintiff instituted suit against Alif Khan and others, defendants, claiming a declaration to the effect that plaintiff was owner in possession of suit land, detailed in the plaint, by virtue of oral sale and entries in the revenue record incorporated during the settlement, in the name of late Esa Khan, predecessor-in-interest of the defendants, were illegal, void and ineffective on the right of the plaintiff and liable to cancellation. The plaintiff also prayed for grant of permanent injunction, restraining the defendants to interfere in his possessory rights or alienate the suit land in any manner. In the alternative, he also prayed for possession of suit land in case he was not found in possession of the same. The plaintiff averred that after purchase he remained in continuous possession of suit land. The defendants filed produce suit and when the plaintiff inspected the revenue record, it transpired that suit land has been entered in the name of late Esa Khan.
The suit was resisted on all grounds, legal as well as factual and claim of the plaintiff was denied. Relevant issues were framed and after recording pro and contra evidence, suit was dismissed by judgment and decree dated 11.3.2005 of learned Illaqa Qazi/Civil Judge, Buner. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Buner at Dagger, by his judgment dated 6.7.2006.
Learned counsel for the petitioner contended that impugned judgments and decrees of the Courts below have been recorded in a mechanical manner without application of independent judicious mind and in total disregard to the material on the file; that respondents completely failed to prove stance taken in the written statement that the property in suit has been given to the petitioner on the basis of `Zamindari' (cultivation share); that the impugned judgments are violative of the provisions of Order XLI Rule 23 and Order XX, Rule 5 CPC and case is fit for remand.
Though the reappraisal of evidence is not permissible in revisional jurisdiction, yet as the petitioner has claimed mis-reading and non-reading of evidence and wrong incorporation of entries in the revenue record, I have undertaken this exercise to satisfy myself and to verify the propriety of judgments and decrees impugned herein. The concurrence of facts recorded by the Courts below are based on correct appreciation of evidence, and are not amenable to revisional jurisdiction of this Court. Despite having been asked repeatedly to point out the evidence statedly misread or non-read by the Courts below, learned counsel for the petitioner has remained unable to do so. The onus to prove the factum of oral sale, was heavily placed on the shoulders of the petitioner, being beneficiary, but he has miserably failed to discharge the same. The evidence produced by him is discrepant, contradictory and suffers from infirmities. The petitioner has not been able to show that the entries incorporated in the revenue record were illegal and void qua his rights and, as such, liable to rectification.
Adverting to the objection raised on behalf of the petitioner, regarding non-compliance of the provision of Order XLI Rule 31 CPC, I find that learned appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The appellate Court had given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioners. So far as the question of giving issue-wise findings by the appellate Court is concerned, the same is not the requirement of law as under Order XLI Rule 31 CPC. The appellate Court is to state the points for determination, give its decision thereon and reasons for the said decision be also mentioned. Umer Din Vs. Ghazanfar and two others (1991 SCMR 1868) and Mst. Husan Bano Vs. Faiz Muhammad and another (2000 CLC 709).
The last submission of the learned counsel that appellate Court had failed to record judgment issue-wise and separately in terms of the requirement of Order XX Rule 5 CPC and thus he is fit for remand in terms of Order XLI Rule 23 thereof, the submission is equally without force. Order XX, Rule 5 CPC is evidently applicable to the original Court, which hears a civil suit. As regards appellate Court, the requirement of recording finding issue-wise is not mandatory. It is sufficient for the appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error. The appellate and the revisional Court are always empowered to remand the case in terms of Order XLI Rule 25 CPC but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of the jurisdiction.
In the result and for the forgoing discussion, the civil revision fails, which is hereby dismissed in limine.
(R.A.) Revision dismissed.
PLJ 2007 Peshawar 166
Present: Ijaz-ul-Hassan, J.
MUHAMMAD IDRESS and others--Petitioners
versus
AMIR SAID and others--Respondents
C.R. No. 881 of 2006, decided on 14.5.2007.
(i) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 54--Civil Procedure Code (V of 1908), S. 115--Rebuttal of--Strong and cogent evidence--Missing--Serious infirmities--No reiteration--Strong presumption of truth is attached to revenue record--Mere assertion of petitioners that they have remained in possession of suit land for enjoying its usufruct in lieu of performance of duty of "Imamat" in village mosque without payment of any rent, without a positive attempt on their part to substantiate it, is of no consequence--Evidence produced by petitioner is discrepant and suffers from serious infirmities--Revision dismissed. [P. 170] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. VI, R. 1 & O. XIV, R. 1--Application for amendment--Rejected for valid reason--Civil revision--Non-framing of specific issue--Needless to emphasize that issue are not framed but allegations made in plaint are challenged in written statement and Court has allowed evidence to be led, then a decision rendered without framing of issues is not illegal--Appeal dismissed. [P. 170] B
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Non-compliance objection--Without the requirement of law--Objection raised by petitioners regarding non-compliance of provisions of O.XLI, R. 31 CPC--Appellate Court was alive to situation and issue involved has been dealt with and decided in a careful manner--Appellate Court had given its findings on all points of controversy and no prejudice seems to have been caused to petitioners--Question of giving issue-wise finding by Appellate Court is concerned, it is not the requirement of law--Appeal dismissed.
[P. 171] C
(iv) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 25--Question of remand of case--Discretionary powers--Absence of an issue--Validity--Where dispute absence of an issue on a particular point, parties have led evidence with regard to it, or where Court has given a finding on point despite the absence of a correct issue or where though no specific issue was raised, matter was decided without objection or where despite absence of an issue, parties had understood each other's case or where the entire evidence is available on record or where Appellate Court can itself come to a decision on the point, remand under Rule 25 will not be ordered.
[P. 171] D
(v) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for possession and recovery of mesne profit--Rejected by Courts below--Civil revision--Question of fact--Contentions--Concurrent findings--Courts below have given exhaustive judgments after due appraisal of evidence--No specific misreading or non-reading of evidence has been pointed out--Validity--Held: Petitioner's counsel has not been able to point out that impugned orders of Courts below being opposed to evidence on file and law applicable are not sustainable--Could not point out any illegality or jurisdictional defect--Miserably failed to persuade the Court to interfere with it--Revision dismissed. [P. 171] E
Mr. Muhammad Zahoor Qureshi, Advocate for Petitioners.
Haji Muhammad Zahir Shah, Advocate for Respondents.
Date of hearing: 7.5.2007.
Judgment
Facts necessary for the decision of this civil revision are, that Amir Said and his brother Said Fazal Hussain Shah, plaintiffs instituted suit against Fazal Maula and others, defendants, for possession of suit land and recovery of mesne profit at the rate of 500 per month for the last three years. The entries in the 'Khasra Girdawari' in the name of Fazl-e-Karim son of Shah Said, were also challenged. It was averred in the plaint that plaintiffs are owners of suit land and with their permission and consent, defendants used the same for the purpose of Dunghil (Deran) and that defendants were asked to vacate suit land but they declined to do so, which necessitated the filing of suit.
Muhammad Idrees, arrayed as Defendant No. 12, appeared in Court and contested the suit on all grounds, legal as well as factual denying the claim of the petitioners and asserting his own. The remaining defendants did not join the proceedings and they were held ex-parte. The parties were put to trial on the following issues:--
Whether the plaintiffs have got cause of action?
Whether the suit is bad in its present form?
Whether the plaintiffs are estopped to sue?
Whether the suit is within time?
Whether the plaintiffs are entitled to mesne profit if so, at what rate?
Whether this Court has got jurisdiction?
Whether the defendants are owners in possession of suit property?
Whether plaintiffs had given suit land to defendants for using as place of Deran?
Relief?
After hearing arguments of learned counsel for the parties and taking into consideration the material available on the record, learned Civil Judge, Lahore, seized of the matter, partially allowed the suit to the extent of possession of suit land by judgment and decree dated 7.7.2004. However, claim of the plaintiffs for recovery of mesne profit was not accepted. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Lahor, Swabi, through judgment dated 28.4.2006.
Feeling aggrieved thereby, Muhammad Idrees and his sisters Mst. Gul Wara and Mst. Zeenat-ul-Wara, petitioners, have filed instant civil revision under Section 115 CPC, assailing the concurrent findings of facts recorded by the Courts below.
Mr. Muhammad Zahoor Qureshi, Advocate for the petitioners, bitterly criticized the impugned judgments and decrees of the Courts below and contended with vehemence that same are the outcome of misreading and non-reading of evidence; that non-acceptance of the applications of the petitioners moved Under Order-VI Rule-17 CPC for amendment in the written statement, has materially prejudiced the cause of the petitioners; that issues framed in the case do not fully reflect the pleadings of the parties and that the requirements of Order XLI Rule 31 CPC have not been complied with. Concluding the arguments, learned counsel prayed that on acceptance of this civil revision, the case may be remanded to the trial Court for decision afresh after giving permission to the petitioners to amend their written statement so as to include the plea that petitioners remained in possession of suit land for enjoying its usufruct in lieu of performance of duties of 'Imamat' in the village mosque without payment of any rent. following judgments were relied upon by learned counsel in support of his contentions:
Mst. Ghulam Bibi and others Vs. Sarsa Khan and others (PLD 1985 Supreme Court 345), Aziz-ur-Rehman and another Vs. Atai Khan (represented by his heirs) and 6 others (PLD 1976 Peshawar 60) Muhammad Atiq and others Tayubuddin and others (MLD 1998 Peshawar 47), and Haji Muhammad Bashir etc. Vs. Mst. Zardan Bi, widow etc: (2000 CLJ 712).
Haji Muhammad Zahir Shah, Advocate, for the answering respondents, on the other hand, supported the impugned judgments and decrees of the Courts below maintaining that the trial Court as well as appellate Court adverted to every aspect of the case rightly deciding the issues agitated and rendered reasonable judgments, which are not amenable to the revisional jurisdiction of this Court. The scope of Section 115 CPC is limited and, as such, this Court cannot interfere in its revisional jurisdiction with the concurring findings on a question of fact, rendered by the Courts below, unless it finds misreading and non-reading of evidence therein. To substantiate the contentions reliance was placed on Muhammad Saleem Shah and 80 others VS. Aziz-ur-Rehman Shah and 43 others (PLD 2002 Supreme Court 280).
The dispute relates to land measuring 1 kanal 16 marlas, located in Khasra No. 533, situated in the area of mauza Yaqoobi, Tehsil Lahor district Swabi. The claim of the plaintiffs is fully supported by oral as well as documentary evidence. Per 'Fard Jamabandi' for the year 1999-2000( Ex.PW. 1/1), the land in dispute is entered in the names of plaintiffs while Fazle Kairm is mentioned as 'Ghair Dakhilkar'. It needs no reiteration that a strong presumption of truth is attached to the revenue record in terms of Section 54 of West Pakistan Land Revenue Act (XVII of 1967), for the rebuttal of which strong and cogent evidence is required, which is missing in the present case. The mere assertion of the petitioners that they have remained in possession of suit land for enjoying its usufruct in lieu of performance of duty of `Imamat' in the village mosque, without payment of any rent, without a positive attempt on their part to substantiate the same, is of no consequence. The evidence produced by the petitioners is discrepant and suffers from serious infirmities. Muhammad Idrees examined during the trial as (DW-1) clearly stated in his cross-examination that
Likewise, it has come in the cross-examination of Gul
Nawas (DW.2) that, 8. So far as the question regarding non-compliance of the provisions of Order VI, Rule 1 and
Order XIV, Rule 1, is concerned, I find that the plea of the petitioners as
serai khor' of land in suit has not been taken in the written statement. The petitioners moved application before the trial Court as well as before the appellate Court, seeking amendment in the written, so as to include the aforesaid plea in the written statement and applications were rejected for valid reasons. It may be noted here that Court did not prevent the parties from leading evidence at the trial with regard to the question ofserai'. The non-framing of a specific issue in such circumstances is inconsequential.
Needless to emphasise that if issues are not framed but allegations made in the plaint are challenged in the written statement and Court has allowed evidence to be led, then a decision rendered without framing of the issues if not illegal. In this view of the matter, I am fortified by the observations made in
Fazal Muhammad Bhatti and another vs. Mst. Saeeda Akhtar and 2 others (1993
SCMR 2018).
Adverting to the objection raised by the petitioner regarding non-compliance of the provisions of Order XLI, Rule 31 CPC, I find that learned Appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The appellate Court had given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioners. So far as the question of giving issuewise findings by the appellate Court is concerned, the same is not the requirement of law under Order XLI, Rule 31 CPC as held in Umer Din vs. Ghazanfar and 2 others (1991 SCMR 1868).
As far as the question regarding remand of the case in terms of Order XLI, Rule 25 CPC is concerned, powers under Rule 25 are discretionary and, as such, where despite absence of an issue on a particular point, the parties have led evidence with regard to it, or where the lower Court has given a finding on the point despite the absence of a correct issue respecting it or where though no specific issue was raised, the matter was decided without objection or where despite absence of an issue, the parties had understood each other's case or where the entire evidence is available on record or where the appellate Court can itself come to a decision on the point, remand under Rule 25 will not be ordered.
Both the Courts below have given exhaustive judgments after due appraisal of evidence on the file and after adjudging the matters from all angles. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. The conclusion of facts arrived concurrently by both the lower Courts is not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence has been pointed out.
Pursuant to above discussion, I find that there is a concurrent finding of facts against the petitioners and the High Court in exercise of its revisional jurisdiction would not interfere in the concurrent findings of the Courts below. Learned counsel for the petitioners has not been able to point out that impugned judgments and decrees of the Courts below being opposed to evidence on the file and the law applicable are not sustainable. Learned counsel could not point out any illegality or jurisdictional defect in the impugned judgments and decrees and miserably failed to persuade the Court to interfere with the same. The civil revision having been found destitute of substance, stands dismissed with no order as to costs.
(N.F.) Revision dismissed.
PLJ 2007 Peshawar 172 (DB)
[Abbottabad Bench Abbottabad]
Present: Salim Khan and Hamid Farooq Durrani, JJ.
KHALIL-UR-REHMAN deceased, through his Legal Representatives and others--Appellants
versus
GOVERNMENT OF N.W.F.P. through Secretary Education Deptt. Peshawar and 2 others--Respondents
R.F.A. No. 30 of 2004, decided on 23.5.2007.
(i) Land Acquisition Act, 1894 (I of 1894)--
----S. 4--Notification--Value of Land--Demanded the compensation of acquired land by land owners--Potential market value of suit property--Value of surrounding areas--Land was used for construction of buildings of educational department--Land had been assessed by Local Commissioner--Value of remaining area was fixed--It was not the kind of land but used of land, to which it was to be put which was to be taken into consideration--Purpose of assessing compensation of lands which were acquired as one block--Report accepted with the modification that value of all types of land out of the suit property was fixed for purpose of payment of compensation to the appellants--Order accordingly. [P. 177] B & C
(ii) Words and Phrases--
----Word--"Potential"--Meaning of--`Potential' means the power of strength of something, its possibility and capability, and its worth in latent or undeveloped state. [P. 175] A
Mr. Abdul Shakoor Khan, Advocate for Appellants.
Mr. Abdul Rashid, DAG and Mr. Muhammad Aslam Khan, Advocate for Respondents.
Date of hearing: 23.5.2007.
Judgment
Salim Khan, J.--Vide Award No. 139 dated 25.1.1995, the value of Bahir Di Abi land was fixed as Rs. 1,02,855/80 per kanal while the value of Ghair Mazrua kind of land was fixed as Rs.998/60 per kanal. Out of total 24 kanals 16 marlas land in Khasra Nos.700 and 701/3 and others mentioned in the award, 3 kanals 17 marlas land was Ghair Mazrua while the remaining 20 kanals 19 marlas land was Bahir Di Abi kind of land. It was on 12.9.1993 that notification under Section 4 of the Land Acquisition Act, 1894 was issued vide Office No. 570. The owners of the land demanded compensation of rupees five lacs to rupees ten lacs per kanal, which was not sanctioned. It aggrieved certain owners.
Qaisar Parvez and others filed objection petition under Section 18 of the above mentioned Act. The learned Senior Civil Judge, after recording the evidence of the parties, in case File No.36/4 instituted on 7.9.1995, dismissed the objection petition of Khalilur Rehman and others (who were petitioners alongwith Qaisar Parvez) on 22.3.2004. Khalilur Rehman and others have brought. R.F.A.No.30/2004 on the grounds mentioned in their appeal.
Objecting to the same Award No. 139, Suleman and others also filed objection petition. Vide judgment in case File No.34/2004, the learned Senior Civil Judge, as Referee Judge, dismissed the objection petition. Hence R.F.A.No.31 of 2004 was filed by the legal representatives of Suleman and Safdar, and by others.
Parvez Khan and others objected to the fixation of compensation through the same Award No. 139 dated 25.1.2005. Their objection petition was also dismissed by the learned Referee Judge on 22.3.2004 in case File No.24/4. They also filed R.F.A.No.32 of 2004.
The appeal of Muhammad Bashir and others has also come out of the judgment dated 22.3.2004 in case File No.33/4 by the Referee Judge Abbottabad, based on the objection petition of Muhammad Bashir and others.
Though the case of Kamran Khan appellant relates to the land in the same locality, but it was acquired vide Award No.l69/Acq: dated 30.3.2002. The objection petition was dealt with and the learned Additional District Judge, Abbottabad in Civil Case No.6/4 of 2004, dismissed the petition on 11.3.2005. Hence, the appeal by Kamran Khan and three others.
As the land in all these cases is situated in the same locality of the Revenue Estate Dhamtaur, Tehsil and District Abbottabad, and almost the same questions of fact and law are involved in these cases, these are taken together.
The main questions involved in these cases and discussed by the learned counsel for the parties are whether the report of the local commissioner was to be accepted or rejected and what should have been the compensation to be paid to the appellants, keeping in view the potential market value of the suit property. Vide order dated 4.9.2000, the learned Referee Judge had appointed local commissioner for inspecting the spot and assessing the value of the suit property. It has clearly been mentioned in the report of the local commissioner that the acquired land in all the four objections was at a distance of 2 kilometers from the limits of Cantonment Board Abbottabad and was lying on the Murree Road.
The land was acquired on the request of Secretary Board of Intermediate and Secondary Education, Abbottabad for their purposes. The learned Referee Judge had not considered the importance of appointment of a local commissioner in the light of the evidence of the parties, the objection of the respondents on the application of the present appellants for such appointment, which was accepted and the order had attained finality, and the non-withdrawal of the order dated 1.9.2000, regarding the appointment of local commissioner, at any time. The existence of the said order, without its withdrawal, was to be taken into consideration and a new commissioner was to be appointed to properly assess the land for its compensation, which has not been done by the learned Referee Judge. He, however, rejected the report of the local commissioner, mainly on the ground that the report was not supported by documentary evidence, and the average price was already shown by the patwari halqa.
The statement of patwari halqa was available on record, even then, the application of the appellants for appointment of local commissioner was accepted. It meant that the learned Referee Judge was satisfied that there was need for further assessing the compensation for the lands in question. The evidence recorded by the local commissioner is the evidence on record, and has to be read. It has come on record that the land in question is surrounded by other commercial and residential lands, and it is situated near to the Murree Road, at a distance of 2 kilometers from the limits of Cantonment Board, Abbottabad. It is the potential value of the land, and not its value according to one year average or five years average, which is to be taken into consideration while assessing the compensation (not the value) of such a land.
The word "potential" means the power or strength of some thing, its possibility and capability, and its worth in latent or undeveloped State. It is the site, situation, strata, status, suitability and surroundings of a land which are to be kept in view while assessing its compensation. A land may be of no worth for one purpose but it may be the most worthful for another purpose. It is not the kind of the land but the use of the land for a specific purpose which is to be kept in mind for the purpose of such assessment of compensation.
The land was used for construction of buildings of the Board of Intermediate and Secondary Education, Abbottabad and for its other necessities. It is not always necessary that the value of the surrounding land should be high for higher assessment. A land may or may not be suitable for a specific purpose in its undeveloped State, and that suitability or otherwise fixes its potential value. The kinds of different portions of the land, in such circumstances, become immaterial, because the total chunk of land, irrespective of its kinds, is used for a certain purpose for which it is found suitable.
The land acquisition proceedings are not a direct transaction between a willing vendor and a willing vendee. It is the will, choice and selection of the Government, Authority or Company with regard to a land which stands paramount, and the land owners have no right to hinder such will, choice and selection, except to demand the reasonable compensation. The land owners could expect high value of their lands in the near future due to the location of the land, and due to the development of the areas not far away from their property. The land in question, if not acquired for the purposes of Board of Intermediate and Secondary Education, Abbottabad, could be expected to fetch high price in market due to changing environments in the surrounding areas and rapid structural developments in Abbottabad valley.
All that has been said above, with regard to R.F.As. Nos. 30, 31, 32 and 33 of 2004 is applicable to the case in R.F.A.No.28 of 2005 on the ground that the area mentioned in the said case is adjacent to the area acquired vide Award No.139 dated 15.1.1995. It was Award No. 169 dated 30.3.2002 that land in the same vicinity was acquired, after about 7 years of the first mentioned award. It is always expected in the circumstances mentioned above that the said area would have fetched a very high price when surrounding area was already developed and, even, the adjacent area was used for the purposes of Board of Intermediate and Secondary Education.
The learned counsel for the respondents contended that the suit property in Appeal No. 28 mentioned above was a useless land which was acquired only for the purpose of draining the waste water of the already acquired area towards the said land. Such use of the property does not lower the status of the land as it was to be used for a purpose, which if not implemented, would have damaged the proper use and utility of the already acquired area. The acquisition of the land in this case was found essential, and was conducted on the will, choice and selection of the Board itself.
As has already been mentioned, the lands in question were not far away from the limits of Cantonment Board, Abbottabad. It has always been considered proper to take into consideration the value of the surrounding areas, even though situated in the adjacent Mauza. It is admitted fact that the lands in question are situated at some distance from the lands of Mauza Nawanshehr. The learned counsel for the appellants relied on a judgment of this Court in RFA No. 13 of 1998. Notification under Section 4 of Land Acquisition Act, regarding the lands in Mauza Nawanshehr Shumali and Mauza Kakul was issued on 5.11.1990, and Award No. 11 dated 26.5.1993 was issued on 26.5.1993. It is worth repetition at this stage that the impugned Award No. 139 was issued on 25.1.1995 while the impugned Award No. 169 was issued on 30.3.2002, long after the issue of Award No. 11 mentioned above. The Hon'ble Judges dealing with R.F.A.No.13 of 1998 had come to the conclusion that the compensation of the acquired land was to be further enhanced which was enhanced and was fixed at Rs.7,00,000/- (rupees seven lacs) per kanal, irrespective of the kinds of land, alongwith 15% compulsory acquisition charges, and 6% simple interest from the date of possession of the land in question till payment of the compensation. This judgment was granted on 18.2.2003.
The Division Bench headed by the Honourable Judges of this Court, while dealing with R.F.As.Nos.8 to 12 of 2001, and cross R.F.As.Nos.26 to 30 of 2001 held that the judgment/decree in R.F.A.No.13 of 1998 dated 18.9.2003 was a judgment/decree of their Lordships of a Division Bench of this Court, and that D.B. was bound by the said judgment, unless it was reversed or modified by the honourable Supreme Court, but neither appeal against that judgment had been filed nor it had been reversed or modified till 12.3.2004 (the date of announcement of the later mentioned judgment). The said former mentioned judgment, therefore, was followed in its letter and spirit. It has not been clarified before us that either the above mentioned judgments/decrees have been modified or reversed by the August Supreme Court of Pakistan, or the order of recovery of the decreed amounts, if paid, has been so passed.
The learned counsel for the parties took up the question whether the amount in the case of Kamran Khan and others was to be paid to all the owners recorded in the Jamabandi in the column of ownership, or to the owners recorded in the column of cultivation in their Hissadari possession. Once it is proved that the appellants in that case were in Hissadari possession of the property and the land in their possession was not more than their share in the properties, jointly owned by them alongwith other joint owners, and in view of a no objection till now by the other co-sharers, it will be in the interest of justice and may avoid any future disputes/litigation among the co-sharers, that the compensation is paid to the appellants who have been in Hissadari possession of the suit property. The legal rights of the joint owners/co-sharers shall, however, remain intact against the appellants for apportionment of their lands and, even, for apportionment of the compensation of the lands in dispute and its recovery from the appellants, but subject to a decree of a Court of competent jurisdiction.
The lands in question in the four cases before us have been assessed by the local commissioner at Rs.5,00,000/- per kanal for about five kanals, and the value of the remaining area was fixed as Rs.3,50,000/- per kanal. We have already discussed that it is not the kind of land but the use of land, to which it is to be put, which is to be taken into consideration for the purpose of assessing compensation of lands which are acquired as one block. We, therefore, set aside the impugned order of the learned Referee Judge with regard to the report of the local commissioner, and we accept the said report, but with the modification that the value of all types of land out of the suit property is Rs. 5,00,000/- per kanal for the purpose of payment of compensation to the appellants.
For the said purpose, we accept R.F.A.Nos.30, 31, 32, 33 of 2004 and 28 of 2005, set aside the impugned judgments/decrees in all the five cases mentioned above, and enhance the compensation of the suit land in all the five cases, irrespective of their kinds, for payment to its respective land owners, at the rate of Rs.5,00,000/- (rupees five lacs) per kanal, with 15% compulsory acquisition charges and 6% interest/profit from the respective dates of taking possession of the said properties to the date of payment of the compensation.
(A.S.) Order accordingly.
PLJ 2007 Peshawar 177
[Circut Bench Abbottabad]
Present: Talaat Qayyum Qureshi, J.
Raja SULTAN ERAJ ZAMAN--Appellant
versus
MILITARY ESTATE OFFICER HAZARA CIRCLE ABBOTTABAD and 2 others--Respondents
R.F.A. No. 26 of 2003, heard on 9.3.2007.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 3 & 23--Acquisition of land--Award of compensation----Assessment of market value--Essential--Entitlement to get acquisition charges and mutation fee--Determination of compensation--Land in-question a lot of potential in terms of commercial as well as residential value--Difference between the amount of compensation given in the award and the one year averages--Real market value of land be ascertained and compensation which admittedly is always more than the market price, should have been fixed--Case was remanded to ascertain marked value of acquired property. [P. 180] A & B
Mr. Khalid Rehman Qureshi, Advocate for Appellant.
Sardar Ghulam Mustafa, Advocate for Respondents.
Date of hearing: 9.3.2007.
Judgment
The land measuring 366 kanals situated at Mauza Julian, Tarnawa and Khan Pur, Tehsil and District Haripur was acquired for defence purposes on the request of the Military Estate Officer, Abbottabad. Notification u/S. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued on 8.3.1995 and Corrigendum was issued on 29.8.1995, the kind of land was Banjar, Kassi and Dhama Chiragah. The Land Acquisition Collector fixed Rs. 13113/- per kanal as compensation of the acquired land. The owners were also entitled to get 15% compulsory acquisition charges and 4% mutation fee. The said compensation had been fixed on the basis of Award No. 34 dated 1.2.1996 for Mauza Mamrial.
The appellants have filed the appeal in hand whereas the acquiring department did not file any appeal against the said judgment and decree.
Mr. Khalid Rehman Qureshi Advocate argued that the land of the appellants had lot of potential value and was very expensive. In order to prove the market value of the land of Ghair Mazrooha kind the appellants examined Malik Sajjad. Patwari Halqa Jollian who produced one year average for the period from 8.3.1994 to 8.3.1995 Ex. OW 2/2, accoridng to which the per kanal price in the area comes to Rs. 72194/80. They also examined Rashid Mahmood as OW-1 who was Record Keeper of the acquiring department. He also placed on record one year average for the period from 8.3.1994 to 8.3.1995 Ex. OW1/4. According to the said average Rs. 94659/80 was the average per kanal price in the said Mauza. The Courts below failed to appreciate both the documents hence the impugned judgment and decree is based on misreading and non-reading of evidence.
On the other hand Sardar Ghulam Mustafa Advocate learned counsel for Respondent No. 1 and Syed Amjad Ali Shah Advocate learned counsel for Respondent No. 2 argued that before the award was passed, the Land Acquisition Collector collected Ausat Yaksala on the basis of combined transaction in the area which comes to Rs. 2144/60 per kanal. Since the said average was very low, therefore, keeping the amount of compensation fixed in Award No. 34 dated 1.2.1996 for Mauza Mamrial, a sum of Rs. 13113/- per kanal was fixed as compensation. The acquiring department, it was argued, did not agree with the suit high compensation hence it had filed the objection petition that the amount of compensation be reduced.
It was also argued that in fact in the year 1990 a huge chunk of land was acquired for defence purposes and the area acquired through Award No. 37 had been ear marked, roads were constructed and the area was developed by the acquiring department. The land fixed by the learned Court below in the said back ground was on higher side.
We have heard the learned counsel for the parties and perused the available record.
The perusal of the record shows that the Court below has failed to appreciate the evidence on record in its true perspective. There were two one year averages placed on record; one by Malik Sajjad, Patwari Halqa Julian, who exhibited one year average for the period from 8.3.1994 to 8.3.1995 Ex. OW 2/2 whereby the price of land per kanal comes to Rs. 72,194/80 and the second one year average was produced by Rashid Mehmood OW-1, the Record Keeper of the acquiring department, who also placed on record copy of the one year average for the period 8.3.1994 to 8.3.1995 Ex. OW1/4 showing the average price to be Rs. 94,659/80 per kanal. The Patwari Halqa had clarified the position that for the one year average produced by him he had not mentioned Mutation No. 1436 attested on 24.11.1994 because the said mutation was with regard to the irrigated kind of land, hence the one year average given him was Rs. 72,194/80 per kanal.
Both the one year averages, as mentioned above, were not properly analyzed and appreciated. Moreover, the Court below also failed to appreciate that the land acquired by the respondents was situated on the road side. There was a road between Mauza Julian and Haripur. The said land had lot of potential, in terms of commercial as well as residential, value. This factor was not kept in to consideration. The Court below also did not bother to appoint a local commission to collect the right opinion with regard to the market value of the acquired land. Had the local commission been appointed, the same would have recorded the statements of the independent persons including the property dealers and could have submitted his report as to one what price a person was willing to sell and the other was willing to buy.
Since there is gulf of difference between the amount of compensation given in the award and the one year averages mentioned above. Therefore, it is necessary that the real market value of the land be ascertained and then compensation, which admittedly is always more than the market price, should have been fixed. We, therefore, allow the appeal in hand, set-aside the impugned judgment and decree passed by the learned Court below and remand the case back to the learned referee Judge with the direction to ascertain the market value of the acquired property by using the modes prescribed in the law and then fix proper compensation. In the award, the land owners have been deprived of 6% per annum interest also. That factor too was ignored by the Court below which should be taken care of. Parties are directed to appear before the learned referee Court on 29.3.2007. The learned referee Court is directed to dispose of the objection petition within a period of six months. The office is directed to send back the record much before the date fixed.
(W.I.) Case remanded.
PLJ 2007 Peshawar 180
Present: Talaat Qayyum Qureshi, J.
Mian BAHADUR SHAH--Petitioner
versus
SAID AFZAL--Respondent
C.R. No. 253 of 2004, decided on 1.12.2006.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Civil Procedure Code, (V of 1908), S. 115--Eviction petition--Civil revision--Specific period was granted to vacate the premises by Supreme Court was directed to hand over the vacant possession to the petitioner subject to payment of monthly rent regularly--After the expiry of six months he would be ejected by force without prior notice--Respondent was liable to hand over the possession to the petitioner but instead to doing the lawful, he preferred to hand over the possession of the suit premises to respondent which was not only illegal but was also contemptuous and was against his statement given by him before Court--It was based on malafide and was collusive. [P. 183] A & B
Mr. Gul Sadbar, Advocate for Petitioner.
Mr. M. Ejaz & Zia-ur-Rehman, Advocates for Respondent.
Date of hearing: 1.12.2006.
Judgment
This revision petition is directed against the judgment/order dated 1.1.2004, passed in Appeal No. 24/13 by the learned Additional District Judge-III, Charsadda.
Mr. Gul Sadbar Khan, Advocate, learned counsel representing the petitioner argued that the petitioner had filed eviction petition under Urban Rent Restriction Ordinance 1959 against Respondent No. 1. Eviction order was passed on 10.4.2000, which was upheld by the august Supreme Court of Pakistan.
It was also argued that Respondent No. 2 on 22.3.2001 filed objection petition claiming therein that he had purchased land measuring 4 kanals 6 marlas from Respondents No. 3 and 4 but the possession of the suit land had been handed over by Respondent No. 1 to him (Respondent No. 2).
It was also argued that having undertaken to hand over the possession to the petitioner before august Supreme Court of Pakistan, Respondent No. 1 could not hand over the possession to Respondent No. 2. The act of Respondent No. 1 was illegal.
It was also argued that the property in dispute was owned by the petitioner and not by Respondent Nos. 3 and 4. The sale in favour of Respondent No. 2 was collusive and fraudulent. The learned executing Court had appreciated the said position properly but the learned appellate Court failed to appreciate the same.
It was also argued that the possession of the disputed property was to be handed over to the petitioner but the same was not done and in order to avoid handing over the possession, Respondent No. 2 collusively filed the objection petition. He placed reliance on 1995 SCMR 726, 2003 SCMR 1416 and 1986 SCMR 1638.
On the other hand Mr. M. Ijaz Khan, Advocate, learned counsel representing Respondent No. 1 argued that Respondent No. 1 has handed over the possession of the suit property to Respondent No. 2, therefore, he was not left with any interest in the suit property.
Mr. Zia-ur-Rehman, Advocate, learned counsel representing Respondent No. 2 argued that he purchased land measuring 4 kanals 6 marlas comprising Khasra No. 1805/310/1 from Mian Mansoor Shah and Mian Muhammad Shah, Respondents No. 3 and 4 vide registered sale deed dated 17.10.2000. The possession of the suit property was handed over to him by Respondent No. 1.
That having gained the knowledge of the sale of the property through registered sale-deed dated 17.10.2000, the petitioner had filed a declaratory Suit No. 165/1 on 27.11.2000 in the Court of learned Civil Judge, Charsadda challenging the validity and legality of the said sale-deed. In the said suit the evidence of the parties has been recorded and the case has now been posted for 16.12.2006 for arguments/orders.
It was also argued that the learned executing Court while deciding the objection petition had drawn inferences from its own. It was held that Respondent No. 2 was close relative of Respondent No. 1, though there was nothing available on record to prove this fact.
It was also argued that the factual controversy was involved and the same could only be resolved by recording evidence of the parties. Reliance in this was placed on 1986 MLD 2997, 1999 CLC 374, 1991 MLD 1216, 2001 MLD 1621, 2003 CLC 10, 1990 MLD 2217 and 2003 SCMR 181.
I have heard the learned counsel for the parties and perused the available record.
It is admitted position that the petitioner filed eviction petition under Section 13 of the Rent Restriction Ordinance 1959 against Respondent No. 1 in the Court of Rent Controller, Charsadda on 10.4.1999. The said petition after due contest was accepted vide order dated 10.4.2000.
Feeling aggrieved with the said judgment/order, Respondent No. 1 filed appeal in the Court of learned Additional District Judge-II, Charsadda, which was dismissed vide judgment/order dated 31.5.2000 where after Respondent No. 1 filed W.P. No. 73/2000 before this Court which too was dismissed vide judgment/order dated 25.7.2000. He then approached the august Supreme Court of Pakistan by filing C.P. No. 343/2000. The said CP was disposed of vide order dated 8.8.2000 on the undertaking given by Respondent No. 1 that he should be given a reasonable time to vacate the premises on which the learned apex Court granted six months time with effect from 8.8.2000.
In order to reap the fruits of the decree, the petitioner filed execution petition in the executing Court. It was during the pendency of the execution proceedings that Respondent No. 2, namely, Tilla Muhammad filed objection petition on 22.3.2001. The learned executing Court after hearing the learned counsel for the parties dismissed the objection petition vide order dated 7.3.2003. Respondent No. 2 filed appeal in the Court of learned Additional District Judge-III, Charsadda, which was accepted vide order dated 5.1.2004. Being not satisfied with the said judgment/order, the petitioner has filed revision petition in hand.
The question that needs consideration in this case is as to whether Respondent No. 1 was liable to hand over the possession of the suit property to the petitioner. Answer to this question is in affirmative. As mentioned above the eviction order had been passed against him on 10.4.2000 which had been maintained up to august Supreme Court of Pakistan. Before the learned apex Court, Respondent No. 1 stated that he should be given some time for rehabilitation upon which the august Court granted him six months time from 8.8.2000 and he was directed to hand over the vacant possession to the petitioner (who was respondent before Supreme Court) subject to payment of monthly rent regularly. It was also ordered that after the expiry of the said period, he would be ejected by force without prior notice. The said order was passed on 8.8.2000.
Respondent No. 2 claims to have purchased land measuring 4 kanals 6 marlas comprising Khasra No. 1805/310/1 vide registered sale-deed dated 17.10.2000. The possession of the suit property was with Respondent No. 1. He was liable to hand over the vacant possession to the petitioner as per his statement given before august Supreme Court of Pakistan but instead of doing the needful, he preferred to hand over the possession of the suit premises to Respondent No. 2 which act of Respondent No. 1 was not only illegal but was also contemptuous as it was against the statement given by him before learned apex Court. The objection petition filed by Respondent No. 2 on the face of it is based on mala fide and is collusive, hence the same was rightly dismissed by the learned executing Court. The appellate Court failed to appreciate the said position. I, therefore, allow the revision petition, set aside the impugned judgment/order dated 5.1.2004 passed by the learned Additional District Judge-III, Charsadda and restore the judgment/order dated 7.3.2003 passed by the learned executing Court on payment of cost of Rs. 2000.
(F.F.) Petition allowed.
PLJ 2007 Peshawar 184 (DB)
[Pehsawar High Court Abbottabad Bench}
Present: Salim Khan & Ijaz-ul-Hassan, JJ.
SAFEER AKHTAR ABBASI--Petitioner
versus
Mst. KHADIJA BIBI & 2 others--Respondents
W.P. No. 18 of 2007, decided on 30.5.2007.
(i) NWFP Pre-emption Act, 1987--
----S. 24(i)--Civil Procedure Code, (V of 1908)--S. 148--Constitution of Pakistan 1973--Art. 199--Zar-e-Soim--Extention of time--Application for permission to deposit 1/3rd pre-emption amount, allowed--Deposited on the same date--Petitioner raised plea that amount was not deposited in time--Application was dismissed--Civil revision was also dismissed--Assailed--Validity--Held: Order of Civil Court and order of Appellate Court are against the law and are liable to setting aside--Both orders were illegal and without lawful authority and are hereby set aside. [Pp. 185 & 186] B
(ii) Words and Phrases--
----NWFP Pre-emption Act, 1987--S. 24(i) "Shall" the words "shall has been used in S. 24(i) of NWFP Pre-emption Act, 1984. [P. 185] A
S. Qaiser Ali Shah, Advocate for Petitioner.
Malik Manzoor Hussain, Advocate for Respondents.
Date of hearing: 30.5.2007.
Order
Salim Khan, J.--Learned counsel for the petitioner submitted that, vide Order Sheet No. 3 dated 27.6.2005, the learned original Court directed the pre-emptor respondent to deposit 1/3rd of the pre-emption amount before the next date. It was on 12.7.2005, the next date fixed by the Court, that the pre-emptor submitted an application for permission to deposit the 1/3rd pre-emption amount and the Court allowed the deposit of the same, which amount was deposited on the same date.
On 10.12.2005, the present petitioner (defendant) submitted application with a request to dismiss the suit on the ground that the 1/3rd of the pre-emption amount was not deposited in time. Vide the reply of the plaintiff, it was alleged that the Court had ordered the deposit of the 1/3rd pre-emption amount, but had practically, granted extention in the time in the light of Section 148 C.P.C., and the pre-emption amount was deposited accordingly. The learned original Court, vide order dated 16.2.2006, dismissed the application of the present petitioner. A civil revision was filed by the defendant, numbered as 22/CR dated 28.3.2006, which was dismissed on 15.12.2006. Hence this writ petition.
The learned counsel for the petitioner contended that the words used in sub-section (1) of Section 24 were "within such period as the Court may fix". He referred to the order dated 27.6.2005 wherein the words used are "plaintiff is directed to deposit 1/3rd of pre-emption amount before the date fixed. File to come up for attendance of defendant on 12.7.2005".
Learned counsel for the petitioner contended that the time fixed by the Court had already ended on 11.7.2005 and extention in time could not be granted by the learned original Court. He repeated his contention that the respondent had also accepted that the time fixed had passed but the Court had practically extended the time. The learned counsel for the petitioner relied on 2003 CLC 235, 1997 MLD 2945, 2002 SCMR 365, 2004 SCMR 418 and 2005 SCMR 1588 in support of his contention.
The learned counsel for the respondent, however, contended that the application dated 12.7.2005 was not for extention of time, and it was for permission to deposit the pre-emption amount which was already allowed. The learned counsel for the respondent relied on 1998 MLD 2413 and contended that, in rent cases, the tentative rent could be deposited on the date fixed. The words used in those laws, however, were "on or before the date fixed".
The word "shall" has been used in sub-section (1) of Section 24 of the N.W.F.P. Pre-emption Act, 1987, sub-section (2) thereof is the penalty clause which has categorically mentioned that the suit would be dismissed if the amount was not deposited within the period prescribed/fixed by the Court. The order of the Court was unambiguous and clear-cut. It was for the learned trial Court to consider at the initial stage, before issuing the first order, whether the time to be fixed was or was not sufficient, but once that period was fixed, the learned original Court did not have the power to take up the question of insufficiency of the period at a later stage. The learned original Court did not have any power to extend the time once 11.7.2005 had passed. It was immaterial whether the amount was deposited on 12.7.2005 before calling the case or otherwise.
In the light of above, we have come to the conclusion that the impugned order of the learned original Court, dismissing the application of the present petitioner, and the impugned order of the learned revisional Court, dismissing the civil revision of the present petitioner, are against the law and are liable to setting aside. We, therefore, accept the present writ petition and declare that both the above mentioned impugned orders are illegal and without lawful authority and are hereby set aside. The suit of the plaintiff, consequently, is liable to be dismissed. We direct the learned original Court and the learned revisional Court accordingly.
(R.A.) Petition accepted
PLJ 2007 Peshawar 186
Present: Ijaz-ul-Hassan, J.
ABDUS SHAKOOR--Petitioner
versus
MUHAMMAD ZAFARULLAH KHAN and others--Respondents
C.R. No. 1238 of 2005, decided on 9.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XXVI, R. 10(2)--Civil revision--Report of commissioner--Deposition to be evidence in suit--Valid reason--Not open to legitimate exception--Treated as evidence--Report is not binding on Court--Appreciation of evidence--It is not safe for a Court to act as an expert and to override elaborate report of a commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertion of either party--Courts below have not appreciated the evidence on record in its true perspective and a defective report commission was considered and made basis on the part to substantiate is of no consequence--Revision dismissed.
[P. 188] A & B
Mr. M.S.H. Qureshi, Advocate for Petitioner.
Mian Mohibullah Kakakhel, Advocate for Respondent.
Date of hearing: 18.1.2007.
Judgment
Shortly narrated the facts, leading to the filing of instant civil revision are, that Muhammad Zafarullah Khan and his wife Mst. Mumtaz Bibi, plaintiffs, filed suit on 22.1.1992, in the Court of Senior Civil Judge, Kohat, against Abdul Shakoor and his wife Mst. Amtari Jan (since dead), defendants, seeking possession through partition of suit house (detailed in the plaint), owned by their predecessor-in-interest Abdul Aziz. It was averred in the plaint that Abdul Aziz had transferred 1/3rd share in suit house in favour of Abdul Ghafoor and Mst. Amtari Jan, in his life time, through registered deed dated 10.12.1949 and the remaining was gifted to Amanullah Khan, Muhammad Nasrullah Khan and Muhammad Zafarullah Khan, and the parties were handed over the possession of their respective shares. It was also alleged that after the demise of Nasrullah Khan, share of Nasrullah Khan was devolved upon Abdul Ghafoor, Mst. Amtari Jan and Mst. Imtiaz Bibi and inheritance mutation was attested in favour of the said legal heirs of late Nasrullah Khan, according to their shari shares. Abdul Ghafoor gifted his whole share in favour of Zafarullah Khan through a registered deed dated 25.2.1981 and possession was handed over accordingly.
"Whether the plaintiffs are entitled to the decree for possession of the suit house through partition of 62/108 shares?
At the conclusion of the trial, learned Civil Judge, Kohat, seized of the matter, discussed aforesaid issue in detail and found plaintiffs entitled to 62/108 shares and Defendant No. 1 as owner of 46/108 shares, in suit house. Resultantly, vide judgment and decree dated 13.3.1997, suit was allowed and a preliminary decree for possession through partition was granted in favour of the plaintiffs against the defendants. On 12.4.1997, an application was moved by the decree holder for grant of final decree. Mr. Muhammad Idris, Advocate was appointed as local commission. He visited the spot and submitted his report. The report, having been objected to by both the parties, was set aside and Mr. Abdul Qayum, Advocate was appointed fresh commission. The learned commissioner visited the spot in presence of the parties/their representatives and submitted his report (Ex. CW.1/5) in Court. The report was confirmed, vide order dated 24.4.2006. A civil revision (No. 17/2004), was filed thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, by judgment dated 8.7.2005.
I have heard at length Mr. M.S.H. Qureshi, Advocate for the petitioner and Mian Mohibullah Kakakhel, Advocate for the respondents, in the light of the material on file.
It may be observed here that parties are closely related to each other. Abdul Shakoor, petitioner is real brother of Muhammad Zafrullah Khan, Respondent No. 1. They are litigating since 1992, in respect of partition of a small house situated in Mauza Jangal Khel, Kohat. As observed earlier, a preliminary decree has been passed in favour of the plaintiffs-respondents and for grant of final decree, a local commissioner has been appointed, who has submitted his report in Court. The report has been confirmed by order dated 24.4.2006 for valid reasons, not open to legitimate exception. Under Order XXVI, Rule 10 (2) of the Code of Civil Procedure, the report of the commissioner to whom the commission has been issued by the Court is to be treated as evidence in the suit, although it is not binding on the Court which may arrive at its own conclusion on the basis of the evidence on record. Needless to emphasize that it is not safe for a Court to act as an Expert and to override the elaborate report of a commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertion of either party. In the instant case, I find that Mr. Abdul Qayum, Advocate visited the spot in compliance with the order of the Court, in presence of the parties/their representatives and submitted a detailed and comprehensive report, adverting to all the aspects of the case. The findings of the trial Court and affirmed by the revisional Court are unexceptionable and hardly call for interference of this Court. The mere assertion of learned counsel for the petitioner that suit house was not partitionable, that Courts below have not appreciated the evidence on record in its true perspective and a defective report commission was considered and made basis of the impugned judgments, without a positive attempt on his part, to substantiate the same, is of no consequence.
The civil revision having been found bereft of merit, is dismissed, with no order as to costs.
(R.A.) Revision dismissed
PLJ 2007 Peshawar 188
Present: Salim Khan, J.
Mst. NARGIS--Petitioner
versus
MIRAN BAKHSH and others--Respondents
C.R. No. 266 of 2006, decided on 6.7.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration and ejectment of tenant--Rent deed--Question of--Recovery of amount--Concurrent findings--Civil revision--No need of further evidence--Jurisdiction--Original rent deed was never produced by petitioner at the time of recording of evidence and it was not proved. [P. 190] A
Mr. Abdul Zakir Tareen, Advocate for Petitioner.
Mr. Saadullah Khan, Advocate for Respondents.
Date of hearing: 6.7.2007.
Judgment
Miraan Bukhsh and Fazal Ahmad son of Muhammad Hussain instituted suit against Muhammad Ayub son of Muhammad Hussain, Wajid Ali and Mst. Nargas, daughter of Abdul Kareem (the present petitioner). It was alleged that the rent deed dated 12.5.1991 by Defendant No. 1 in favour of Defendant No.3 was fictitious, fake and collusive and was ineffective on the rights of the plaintiffs and Defendant No. 1. The other prayer was for dispossession of the defendants from the suit house with further prayer for recovery of compensation for use of the said house from May 1991 onwards by the defendants at the rate of Rs. 700/- per month. The defendants contested the suit. The contention of Defendants No. 1 and 2 was that Defendant No. 2, as attorney of Defendant No. 1, scribed the rent deed in favour of Defendant No.3, and that Defendant No. 1 had recovered from the illness and that Defendant No. 2 was maintaining the Defendant No. 1.
The plea of the present petitioner was that she was the tenant of Defendant No. 1 (Muhammad Ayub deceased) through Wajid Ali Defendant No.2 (the alleged attorney of Defendant No. 1). After conducting the necessary proceedings, the learned Civil Judge, Peshawar, while deciding Suit No. 179/1 of 26.6.2003 on 28.3.2005, granted decree in favour of the plaintiffs against the defendants regarding the declaration and dispossession of the defendants but dismissed the suit regarding recovery of the compensation amount. An appeal was filed by the present petitioner which was also dismissed by the learned Additional District Judge, Peshawar through judgment in Civil Appeal No. 45/13 dated 4.2.2006. Hence this civil revision.
I heard the arguments of the learned counsel for the parties and perused the record.
The learned counsel for the petitioner contended that Defendant No. 1 was a lunatic but his guardian at-litem was not appointed by the Court. The written statement of Defendants No. 1 and 2 shows that Muhammad Ayub, alongwith Wajid Ali, had submitted written statement wherein it was specifically mentioned that Defendant No. 1 had recovered from his illness. The present petitioner did not stress during the proceedings in the original Court that Defendant No. 1 was a lunatic. She, rather, stressed that Defendant No. 1 had appointed Defendant No. 2 as his attorney, who had entered into agreement with Defendant No. 3 (now petitioner) regarding tenancy. It is worth-mentioning at this stage that the original rent deed was never produced by the present petitioner at the time of recording of evidence and the same was not proved.
The learned counsel for the petitioner contended that a further Issue No. 3-A was framed regarding the possession of the suit premises, but no opportunity was given to the parties to produce evidence regarding the same. That issue was regarding Prayer No. 2 mentioned in the plaint itself, which was duly replied by the defendants. The parties fully knew their respective cases. The framing of the issue No. 3-A specifically was required by the learned original Court for more clarity of the judgment. Issue No.3-A was to the effect that whether the plaintiff was entitled to decree for recovery as prayed for while Issue
No. 2 was to the effect that whether the plaintiff was entitled for decrea/declaration as prayed for. The word "declaration" is overwritten in this issue. Without this word, the wording would be "for decree as prayed for" and would include Issue No. 3-A also. The insertion of the said word necessitated the framing of Issue No.3 specifically for further clarity. There was no need to allow further evidence in the light of the knowledge of the parties regarding their cases.
The learned counsel for the petitioner further contended that the learned Civil Court had no jurisdiction as the matter related to ejectment of a tenant and regarding rent. He could not be able to show me that any relationship of landlord was either claimed or admitted between the parties. It was not a case of a landlord against a tenant, rather a case by the owners against a trespasser. The learned original Court, therefore, had jurisdiction regarding the same.
The learned counsel for the petitioner further contended that Muhammad Ayub, a lunatic, was unable to contest the case, and a decree against him was nullity in the eyes of law. Defendant No. 2 and Defendant No. 3 were not his legal representatives. The two plaintiffs, however, were his legal representatives and they had the right to challenge the decree which they did not challenge and should have not challenged, because it was in their favour.
In the light of the above, I do not find any merit in the present civil revision, and I dismiss the same with costs of litigation throughout to be paid by the present petitioner to the original plaintiffs.
(N.F.) Revision dismissed
PLJ 2007 Peshawar 191 (DB)
Present: Salim Khan and Ijaz-ul-Hassan, JJ.
ISRAR MUHAMMAD--Petitioner
versus
TEHSIL NAIB NAZIM, TEHSIL LAHOR DISTT. SWABI
and 2 others--Respondents
W.P. No. 1847 of 2006, decided on 11.7.2007.
N.W.F.P. Local Government Ordinance, 2001--
----S. 132--Constitution of pakistan, 1973, Art. 199--Functions of--Cognizance of violations of laws and rules by a local Government--Maintainability--Dispute between organization--Mechanism--Functions of such commission to take cognizance of violations of laws and rules by Local Government in performance of its functions--Petitioners had remedy to avail the facility provided to him by the provisions of S. 132 of Ordinance, 2001--Petition dismissed.
[Pp. 192 & 193] A & B
Barrister Waqar Ali Khan, for Petitioner.
Mr. Muzammil Khan, Advocate for Respondents.
Date of hearing: 4.7.2007.
Judgment
Salim Khan, J.--W.P. No. 1847/2006 by Israr Muhammad against Tehsil Naib Nazim Tehsil Lahor of District Swabi and two others and W.P. No. 1894 of 2006 by Muhammad Naeem against the same respondents relate to the same questions of law, though with slight difference in basic facts. Israr Muhammad alleges that he is the Chairman of Executive Committee of Thooba Welfare Society Citizen Community Board (CCB) Union Council Soodher of Tehsil Lahor in District Swabi. Muhammad Naeem alleges that he is the Chairman of the Executive Committee of Rana Welfare Society Citizen Community Board (CCB) of Union Council Lahor (E) of District Swabi.
It is alleged in both the petitions that the Community Infrastructure Project-II (CIB-II) approved amounts for Tehsil Lahor, that projects for schemes of community welfare and development were assigned to the two respective societies, the newly elected Tehsil Council passed resolution to take away the said projects from these two societies which were given to Buland Hosla' andAzaad' CCBs respectively, that the Chief Minister issued directions to the Local
Administrator, but in vain, hence, these writ petitions.
Learned counsel for the respective petitioners referred to the Provisions of Section 98 of the North West Frontier Province Local Government Ordinance 2001 (the N.W.F.P. Ordinance No.XIV of 2001) (hereinafter referred to as the Ordinance,) and contended that the Citizen Community Board shall have a general body of its members with an elected Chairman, an Executive Committee and a Secretary of the Board for carrying out its functions. He also referred to the Provisions of Section 99, which refers to the business of the Citizen Community Board, including the meetings, the maintenance of annual statements of accounts and the record as well as the funds of the Board. He was of the view that the Chairman of the Citizen Community Board could sue on behalf of the Community Board. He referred to the resolution of the Thooba Welfare Society Citizen Community Board, through its Executive Members vide which they had authorized Gohar Ali son of Sarwar Khan for conducting case on behalf of the said Board against Tehsil Council. He also referred to such a resolution by Rana CCB who had authorized Muhammad Naeem Chairman to conduct legal proceedings in this respect as deemed proper by him. He was of the view that Muhammad Naeem and Israr Muhammad were duly authorized persons.
Sub-section (2) of Section 101 of the Ordinance provides that the Citizen Community Board shall sue and be sued in the name of its Executive Committee. Both the petitioners have filed these petitions in their private names. The learned counsel for the respondents, however, referred to Section 70-A and 70-B of the Ordinance, which relate to setting aside the resolution of Tehsil Council by the Zilla Council and the Chief Executive of the Province respectively. He also referred to Section 190 of the same Ordinance and contended that any person aggrieved by any order passed by a Local Government or its functionaries, in pursuance of the said Ordinance or the Rules or by laws made there-under, could appeal to such authority, in such manner and within such period as may be prescribed. He was of the view that the writ petitions were not maintainable as no appeal was filed by the petitioners, though the said remedy was available to them. He, however, could not produce any rules prescribing the manner and the period in which such appeal could be filed to a certain authority.
We perused the record during the arguments of the learned counsel for the parties.
The whole scheme of the N.W.F.P. Local Government Ordinance, 2001 is that the internal disputes between the organizations, the officers, the authorities and the Local Governments at different levels are to be settled internally through the mechanism provided in the Ordinance itself. Section 132 of the said Ordinance provides the functions of the Provincial Local Government Commission. It is one of the functions of the said Commission to take cognizance of violations of laws and rules by a Local Government in the performance of its functions. The other of its functions is to conduct, on its own initiative or, whenever so directed by the Chief Executive of the Province, an inquiry by itself or through District Government into any matter concerning a Local Government.
The petitioners had the remedy to avail the facility provided to them by the provisions of Clauses (b) and (g) of sub-section (1) of Section 132 mentioned above. They have not opted for the same as yet. The provisions of Article 199 of the Constitution of the Islamic Republic of Pakistan, in these circumstances, are not attracted. The above mentioned two writ petitions, therefore, are not maintainable and are hereby dismissed.
(N.F.) Petitions dismissed
PLJ 2007 Peshawar 193
Present: Ijaz-ul-Hassan, J.
SHADEED HUSSAIN--Petitioner
versus
KHADIM ALI--Respondent
C.R.No. 566 of 2005, decided on 15.1.2007.
Limitation Act, 1908 (IX of 1908)--
----Arts. 164 & 181--Civil Procedure Code (V of 1908) S. 115, O.IX, R.13--Suit for recovery--Ex-parte decree against petitioner--Assailed--Appeal dismissed--Civil revision--Period of limitation is 3 years--Trial Court had exercised jurisdiction which was upheld by First Appellate Court--High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115, C.P.C. unless and until judgments of the Courts below are result of misreading or non-reading of evidence or decision of the case is in violation of parameters prescribed by Superior Courts--Revision dismissed. [P. 195] A
Mr. Haider Zaman Shinwari, Advocate for Petitioner.
Syed Mazhir Hussain, Advocate for Respondent.
Date of hearing: 20.12.2006.
Judgment
Shortly narrated the facts leading to the filing of the present Civil Revision are, that Shadeed Hussain, plaintiff instituted suit against Khadim Hussain, defendant for recovery-of Rs. 66901 as outstanding dues on account of purchase of household articles from the shop of the plaintiff. The defendant contested the suit and denied the claim of the plaintiff. Relevant issues, arising out of the divergent pleadings of the parties, were formulated for trial. When the case was fixed for plaintiffs evidence on 5.1.2001, the defendant remained absent which resulted in passing of an exparte decree against him by order dated 7.1.2004. On 30.4.2004 defendant moved an application for setting aside exparte decree on the ground enumerated therein. The application was supported by an affidavit. The application having been contested, was accepted by order dated 11.11.2004. An appeal was preferred thereagainst which was converted into Revision Petition No. 12/2005 and dismissed by order dated 21.3.2005 by learned Additional Sessions Judge, Kohat and matter was remanded to the trial Court with direction to decide the same on merits.
Mr. Haider Zaman Shinwari, Advocate appearing for the petitioner mainly contended that material available on the record has not been appreciated in its true perspective and application for cancellation of exparte decree was hopelessly time barred in terms of Article 164 of the Limitation Act and thus should not have been entertained and decided in favour of the respondent. To augument the contentions, he placed reliance on Honda Atlas Cars (Pakistan) Ltd. Vs. Honda Sarhad (Pvt) Ltd. and others (2005 SCMR 609). As against that, Syed Mazhir Hussain, Advocate for the respondent refuted the view point portrayed by learned counsel for the petitioner and supported the impugned order whole heartedly.
Having considered the matter from all angles, I am of the view that the contentions raised by learned counsel for the petitioner are not substantial and the application for cancellation of exparte decree has been filed well within time. Since the respondent had appeared in Court in response to the summons issued and contested the suit and thereafter absented on 5.1.2001, therefore, the period of limitation available to him for filing application for setting aside exparte decree was three years under Article 181 of the Limitation Act and not 30 days. A similar question came up for hearing before the august Supreme Court of Pakistan in Messrs Rehman Weaving Factory (Regd) Bahawalnagar V. Punjab Small Industries Corporation, Lahore PLD 1981 SC-21, wherein it was observed that:--
"The next question arises as to what would be the period, of limitation for an application for setting aside an exparte decree, not covered by Article 164. That application may or may not be under Section 151. It could still be under the second part of Rule 13 of Order IX, though in some cases Section 151 might also apply. When defendant makes an application under Order IX, Rule 13 in connection with an exparte decree, which is not passed under Rule-6 of Order IX (on the first hearing), it would not be governed by Article 164. But that would not necessarily mean that there is no period of limitation for such an application. It is not essential here to examine the effect of `null and void order' on the question of limitation; is simple that where the defendant makes an application for setting aside an exparte decree, which is not covered by Article 164, it would be governed by Article 164, it would be governed by residuary Article 181 and the period of limitation would be three years from the accrual of the right to apply. Undoubtedly this period of limitation would be more than necessary in some of these applications but so would be the case in several other applications covered by Article 181. It is for the Legislature to do the exercise of rationalization, in the light of experience gain during three quarters of a country."
Following the dictum laid down in the above cited case law, this Court in Water and Power Development Authority V. Muhammad Hayat Khan and 7 others PLD 1986 Pesh: 81 observed that:
"We understand that PLD 1981 SC-21 is the latest authority in time laying down a law in unequivocal terms and language which is binding on all other Courts in the country as provided under Article 189 of the Constitution and as such we will respectfully follow it. We accordingly hold that in cases of applications for getting aside the exparte decrees other than those passed under Order IX, Rue 6 (1) (a), C.P.C. the law of limitation shall be Article 181 and not Article 164. In the present case the exparte decree was passed under Order XVII, Rule-2 read with Order IX, C.P.C. on 6.1.1980 at the time when the plaintiff had since closed their evidence in the case and it was necessarily not a stage of first hearing. Application for setting aside of the exparte decree was filed on 18.12.1982 within a period of 3 years from the date of the exparte decree and the application shall be, therefore, accepted within time."
It is well-settled principle of law that in case the trial Court has exercised jurisdiction which is upheld by the First Appellate Court, this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115, C.P.C. unless and until judgments of the Courts below are result of misreading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the superior Courts.
In the result and for the foregoing reasons, finding no substance in this Civil Revision. I dismiss the same with no order as to costs.
(N.F.) Revision dismissed
PLJ 2007 Peshawar 196
Present: Ijaz-ul-Hassan, J.
GHULAM FARID--Petitioner
versus
AKRAM KHAN--Respondent
C.R. No. 809 of 2006, decided on 2.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. V, R. 20(2) & O.IX, R. 13--Suit for recovery--Ex-parte decree--Civil revision--Barred at time--Notices were not served properly--Address was wrongly given and, therefore, substituted service was as effectual as personal service and no limitation can be reckoned from the date of decree--Copy of plaint alongwith summons was not affixed on his door and that his address was wrongly given--Testimony of the process server cannot be put at shelf and excluded out of consideration--Revision dismissed. [Pp. 197 & 198] A, B, C & D
Mr. Hussain Ali, Advocate for Petitioner.
Mr. Mushtaq Ahmad, Advocate for Respondent.
Date of hearing: 18.12.2006.
Judgment
Shortly narrated the facts leading to the filing of instant civil revision are that Akram Khan, plaintiff, instituted suit against Ghulam Farid, defendant, for recovery of Rs. 2,75,000/-. The defendant did not appear in Court and suit was decreed ex parte by learned Civil Judge, Peshawar by order dated 7.4.2005. On 29.9.2005, defendant submitted an application under Order IX Rule 13 CPC, for setting aside exparte decree, alleging that he was not served and the plaintiff had furnished his wrong address. The application having been strongly resisted, was dismissed, vide order dated 26.1.2006, on the ground that petitioner was properly served, but he intentionally failed to appear in Court. The application was also found barred by time. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Peshawar, vide order dated 19.5.2006.
Mr. Hussain Ali, Advocate, appearing on behalf of the petitioner, attempted to argue that petitioner was not served in the aforesaid suit as respondent gave his wrong address and with the connivance of Process Server, procured wrong report in order to obtain favourable decision. The learned counsel contended that the Courts below have not adverted to the facts of the case with due application of mind and dismissed the application in an arbitrary manner without framing any issue or recording evidence. Re-enforcing the contentions, reliance was placed on Ahmad Khan Vs. Haji Muhammad Qasim and others (2005 SCMR 664) and Muhammad Khan Vs. Muhammad Jamil and others (PLJ 2005 Peshawar 42).
Mr. Mushtaq Ahmad, Advocate, for the respondent, on the other hand, maintained that the report of the Process Service alongwith his affidavit and statement shows that the petitioner refused to accept service and the evidence adduced by him is not sufficient to contradict this allegation. The learned counsel added that the material on the record clearly shows that the petitioner had the knowledge of the suit and the decree passed against him and the application filed by him was barred by time. Concluding the arguments, the learned counsel reiterated that the impugned order is unexceptionable and hardly calls for interference in its revisional jurisdiction.
I have given my anxious consideration to the contentions of the learned counsel for the parties in the light of the material on the file and case law cited at the bar.
A perusal of the record would reveal that suit was filed on 31.7.2004. The defendant did not appear in Court and an ex parte decree was passed in favour of the respondent, vide order dated 7.4.2005. The petitioner moved an application on 29.9.2005, for setting aside ex parte decree. The same was dismissed on 26.1.2006. The defendant was summoned by trial Court, but it was reported by Iftikhar Ahmad Durrani, Process Server of the Court that defendant refused to accept service, where after service through affixation was ordered and affixation was accordingly made on the house of defendant. After affixation on the house of the defendant, the defendant was also served through publication in daily `Khabrain' Peshawar dated 8.2.2005, but even then the defendant did not appear before the trial Court and was placed ex parte.
The material on record would show that the petitioner had the knowledge of the proceedings taken against him and of the decree passed against him, which is evident from the report of the Process Server and other evidence, which he had not been able to shake. Sub-rule (2) of Rule 20 of Order V, CPC is reproduced below for facility sake:-
"Service substituted by order of the Court shall be as effectual as if it had been made on defendant personally."
Apart from the application and the statement of the petitioner, there is no evidence to show that his address was wrongly given and, therefore, according to sub-rule (2), mentioned above, substituted service is as effectual as personal service is and no limitation can be reckoned from the date of decree. In this regard reference can be made to a case titled S.R. Nawaz and another Vs. Mirza Nasir (PLD 162 Lahore 185), wherein it was observed:--
"It is the case of the appellants that they were residing in Karachi and thus they could not be served. In these circumstances, the learned Civil Judge was justified in ordering substituted service. Substituted service by order of the Court is as effective as if it had been made on the defendants personally."
The onus was heavily placed on the shoulder of the petitioner to prove that a copy of the plaint alongwith summons was not affixed on his door and that his address was wrongly given. In the absence of these facts, the sworn testimony of the Process Server cannot be put at shelf and excluded out of consideration. In a case reported as Kanhave Lal Vs. Kishore Chand (164 IC 790), it was held:--
"The affidavit or statement on solemn affirmation of the process serve that he had been unable to find the party and had effected service by affixing the summons on his residence is legal evidence which at least shifts the onus to the party to prove that he was not properly served."
In the result and for the foregoing reasons, finding no substance in this civil revision, I dismiss the same and allow the parties to bear their own costs.
(N.F.) Revision dismissed
PLJ 2007 Peshawar 198
Present: Ijaz-ul-Hassan, J.
ROOH-UL-AMIN etc.--Petitioners
versus
GUL AHMAD alias JAM KHAN and others--Respondents
C.R. No. 786 of 2003, decided on 12.1.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act (IX of 1908) S. 5--Suit for declaration with permanent injunction--Alternative--Possession of suit property--Claim of plaintiffs was denied--Barred by time--Civil revision--Evidence do not suffer from any misreading--Trial Court has exercised jurisdiction which is upheld by the First Appellate Court High Court seldom interferes unless and until the discretion is exercised arbitrarily--Courts below are based on elaborate, careful and correct appraisal of evidence which do not suffer from any misreading, as such cannot be legally interfered with u/S. 115 CPC--Revision dismissed. [P. 202] C & F
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Concurrent finding--Jurisdiction--Limited--High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115, CPC unless and until judgments of the Courts below are result of misreading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the superior Courts. [P. 202] D
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code (V of 1908), S. 115--Civil revision--Condonation of delay--Applicability--Revision petition was filed in High Court after 2 days--In this view of the matter, petitions is barred by 2 days--An application under Section 5 of the Limitation Act for condonation of delay for filing revision petition, has been moved--However, Section 5 of the Limitation Act is not applicable to proceedings under Section 115 CPC. [P. 202] E
Revisional Jurisdiction--
----Question of fact--Comeptent jurisdiction--Findings on questions of fact or law recorded by Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless such findings suffer from jurisdictional defect, illegality or material irregularities. [P. 201] B
Interpretation of Law--
----Plaintiff has to prove his case from his own evidence and cannot benefit from weaknesses in the defendants case. [P. 201] A
Mr. Abdul Latif Afridi, Advocate for Petitioners.
Mr. Muhammad Shoaib Khan, Advocate for Respondents.
Date of hearing: 22.12.2006.
Judgment
This civil revision has been preferred against the judgment and decree of the learned Additional District Judge/Izafi Zila Qazi, Swat dated 15.6.2002 whereby he dismissed the appeal of petitioners/plaintiffs and maintained the judgment and decree of the learned Civil Judge/Illaqa Qazi, Swat dated 22.6.2001 who vide the same had dismissed the suit of petitioners/plaintiffs.
Shortly narrated the facts, relevant for the decision of the instant petition are that Roohul Amin and his brother Saiful Ahad, plaintiffs instituted suit against Jalandar (since dead and represented by his legal heirs ) and others, defendants, for declaration to the effect that plaintiffs were owner in possession of 1/2 share in the legacy of their predecessor in interest, late Nawab Khan and defendant had no right to deprive the plaintiffs of their due share in the property left behind by Nawab Khan deceased. The plaintiffs also prayed for grant of permanent injunction restraining the defendants to transfer or alienate the suit property in any manner. In the alternative, the plaintiffs also prayed for possession of suit property in case they were not found in possession of the same.
The suit was contested by the defendants on all grounds, legal as well as factual. The claim of the plaintiffs was denied-and it was pleaded that Jalandar Khan Defendant No. 1 had purchased the suit property from his brother Amir Hafiz, father of the plaintiffs, on the basis of sale-deed dated 23.11.1941 and thus plaintiffs had no concern with it. The matter was also stated to have been settled by the decision dated 5.4.1965 of the then ruler of Swat. In view of the divergent pleadings of the parties, following issues were framed for trial:--
The plaintiffs in order to substantiate their claim produced 15 witnesses in all. As against that, 9 witnesses were examined from the defendant's side. After taking into consideration the material placed before him and hearing arguments of learned counsel for the parties, learned trial Judge dismissed the suit by judgment and decree dated 22.6.2001 which was maintained and upheld in appeal by learned Additional District Judge/Izafi Zila Qazi, Swat through judgment dated 15.6.2002.
I have heard Mr. Muhammad Shoaib Khan, Advocate for Respondents No. 1 to 5, 9 and 10 and I have also gone through the arguments in writing submitted on behalf of the petitioners.
It is a common ground between the parties that Amir Hafiz, father of the petitioners/plaintiffs and late Jalandar Khan Defendant No.1, were sons of late Nawab Khan, original owner of the suit property. The claim of the petitioners is that they have been deprived of their due entitlement by Jalandar Khan, in the legacy of late Nawab Khan. Though the petitioners have produced as many as 15 witnesses but they have not been able to establish their claim satisfactorily. The evidence produced by the petitioners is discrepant, contradictory and not worthy of credence. It is established principle of civil law that the plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendants case. Who ever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exists. A perusal of record would reveal that late Jalandar Khan had purchased the share of his brother Amir Hafiz, father of the petitioners, on the basis of sale deed dated 23.11.1941 and as such petitioners were divested of their entitlement in suit property. It also stands prove from the record that controversy regarding suit property has been resolved by ex-Ruler of Swat by decision dated 5.4.1965.
I have examined both the judgments passed by the Courts below and find that the same are unexceptionable, legal, apt to the facts and circumstances of the case and do not call for any interference by this Court. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. The judgments impugned in all respect, are not arbitrary or fanciful and fulfill all the requirements of doing justice on the basis of canons known in this behalf the learned counsel has not been able to point out any misreading or non-reading of evidence on the part of the forums below.
If an authority needed on the point, reference can be made to Abdul Hakeem Vs. Habibullah and 11 others (1997 SCMR 1139) wherein it was observed:--
"Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under Section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under Section 115, C.P.C. cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under Section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under Section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record. Having stated the above broad principles which would justify interference by a High Court with a concurrent finding of facts recorded by the Courts below, under Section 115, C.P.C."
It is well-settled principle of law that in case the trial Court has exercised jurisdiction which is upheld by the First Appellate Court, this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115, C.P.C. unless and until judgments of the Courts below are result of misreading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the superior Courts.
The revision petition was filed in this Court on 17.9.2002. The order of the lower appellate Court is dated 15.6.2002. Application for obtaining copy was made on 2.8.2002 and received on 3.8.2002. In this view of the matter, the petition is barred by two days. An application under Section 5 of Limitation Act (IX of 1908) for condonation of delay for filing the Revision Petition, has been moved. However, Section 5 of Limitation Act is not applicable to the proceedings under Section 115 CPC. Reliance can be placed on the cases of Muhammad Aslam and 12 others Vs. Faisal Nadeem and 3 others (2003 CLC 1812), Sultan Muhammad Vs. Muhammad Ashraf and 4 others (1991 CLC 269 Lahore) and M.E.O. and others Vs. Mian Sardar Shah and others (2002 CLC 1269 Peshawar).
The findings of the trial Court and the First Appellate Court are based on elaborate, careful and correct appraisal of evidence which do not suffer from any misreading, as such, cannot be legally interfered with under Section 115 C.P.C. The Civil Revision having been found bereft of merits is hereby dismissed with no order to costs.
(N.F.) Revision dismissed
PLJ 2007 Peshawar 203 (DB)
Present: Ijaz-ul-Hassan and Salim Khan, JJ.
LAND ACQUISITION COLLECTOR, SWABI SCARP, MARDAN and others--Appellants
versus
S. MUHAMMAD YOUSAF SHAH--Respondent
RFA No. 103 of 2003, decided on 14.2.2007.
Land Acquisition Act, 1894 (I of 1894)--
----S. 54--Reference petition--Partially accepted--Compensation of enhanced amount--Acquired by appellant for reconstruction--Entitlement of objector and quantum of compensation--Determination--Challenging the award--Market value may be high--Location--Neighbour hoods--Potential--Value--Appeal dismissed--Determining the amount of compensation--Court is to consider evidence brought on record by the parties and further land Acquisition Collector while determining compensation of acquired land has also to consider the potential and future prospective of land in additional to one year average--While determining the value of land acquired by the government and the price which willing purchaser would give to willing seller, only the past sale should not be taken into account but the value of land with all its potentiality may also be determined by examining other facts--Appeal dismissed.
[P. 205] A
Mr. Anwar Hussain, Advocate for Appellants.
Mr. Ghulam Ali, Advocate for Respondent.
Date of hearing: 14.2.2007.
Judgment
Ijaz-ul-Hassan, J.--This appeal under Section 54 of the Land Acquisition Act, 1894 (hereinafter called the Act), by Land Acquisition Collector, Swabi Scarp, Mardan and others, is directed against the judgment and decree dated 22.3.2003, recorded by learned Senior Civil Judge/Judge Land Acquisition, Mardan, whereby reference petition filed by Muhammad Yousaf, objector, under Section 18 of the Act, was partially accepted and the amount of compensation was enhanced from Rs. 744/45 per marla to Rs. 2500/- per marla, with usual compulsory acquisition charges and interest etc.
On the basis of
Award No. 115 dated 6.6.2000, land measuring 104 kanals 7 marlas, situated in
Mauza Bakhshali' Tehsil and District Mardan, including the landShah Nehri' in kind, belonging to Muhammad Yousaf, respondent, was acquired by the appellant, for reconstruction of `Inzar' drain Mardan. A sum of Rs.744/45 per marla was assessed as market price of the land.
Feeling aggrieved, S. Muhammad Yousaf Shah, objector, filed a reference on 31.10.2000, under Section 18 of the Act, before learned Senior Civil Judge/Judge Land Acquisition, Mardan, challenging the Award under reference, on three grounds qua actual area acquired, entitlement of the objector and quantum of compensation. The reference was strongly opposed, claim of the objector was repudiated and market price of land acquired was stated to have been fixed in conformity with the requirements of the provisions of Section 23 of the Act. In view of the pleadings of the parties, as many as ten issues were framed for trial.
The learned Acquisition Judge, after hearing arguments of learned counsel for the parties and taking into consideration the material placed before him, partially accepted the claim of the objector/respondent and enhanced the market price of land acquired from Rs.744/45 per marla to Rs.2500/- per marla, as mentioned and detailed above, through judgment and decree dated 22.3.2003.
Mr. Anwar Hussain, Advocate, representing the appellants, has disputed the fixation of the amount to the tune of Rs.2500/- per marla, being too exhorbitant as to be proportionate with the prevailing market rate at the time of acquisition. According to him, learned Acquisition Judge has wrongly and incorrectly enhanced the price of the land without adhering to the evidence on record. As per the learned counsel, the land acquired was not of so much value or of having that of important situation and location as to fetch the enhanced fixed compensation. The learned counsel reiterated that respondent could not discharge the burden of proving that the price assessed by the Collector was wrong for the reason that the Collector while determining the rate of compensation considered matters, which are mentioned in Section 23 of the Land Acquisition Act and as such, impugned judgment and decree cannot be allowed to remain in field. To augument the contentions, reliance was placed on Malik Nasim Ahmad Aheer and 4 others Vs. WAPDA and 3 other (PLD 2004 Supreme Court 897) and Shariat Suo No. 14/P of 1983 (PLD 1992 Federal Shariat Court 398).
Mr. Ghulam Ali, Advocate, appearing on behalf of the respondent, on the other hand, controverted the arguments of learned appellant's counsel and fully defended the impugned judgment. He placed reliance on Murad Khan Vs. Land Acquisition Collector Peshawar (1999 SCMR 1647).
We have considered the arguments of learned counsel for the parties, and have also gone through the impugned judgment, perused the material on record and the case law cited at the bar.
It is settled law that while determining the amount of compensation, Court is to consider evidence brought on the record by the parties and further Land Acquisition Collector while determining compensation of acquired land has also to consider the potential and future prospective of land in addition to one year average. While determining the value of the land acquired by the Government and the price which willing purchaser would give to the willing seller, only the past sale should not be taken into account but the value of the land with all its potentiality may also be determined by examining other facts.
Mere classification or nature of land may be taken as relevant consideration but not as absolute one. An area may be Banjar' orBarani' but its market value may be tremendously high because of its location, neighborhoods, potentiality or other benefits.
An assessment of the compensation payable for land acquired must take into account several factors, including the nature of the land, its present use and its capacity for a higher potential, its precise location in relation to adjoining land, the use to which neighboring land has been put and the impact of such use on the land acquired, and so on having regard to all these factors.
While dealing with the proposition, it was observed by this Court in Muhammad Sharif Vs. Land Acquisition Collector and others (2004 CLC 1048).
"In order to determine the amount of compensation to the persons who are deprived of an interest in lands the market value has to be assessed by taking into consideration principles laid down under Sections 23 of the Act. It is well-settled that under this section the owner is entitled to charge the price of his land fixed with reference to the probable use which given him the best return and not merely in accordance with its present use and disposition. The compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The land is not to be value merely in accordance with the use to which it is being put, but also by reference to the uses to which it was reasonably capable of being put in the future. The method of valuation to be adopted in ascertaining the market value of the land on the date of the notification under Section 4(1) are (i) opinion of experts; (ii) the price paid within a reasonable time in bona fide transaction of purchase of the land acquired. These factors, however, do not preclude the Court from taking any other special circumstances into consideration, the requirement being always to arrive as near as possible at an estimate of the market value. In arriving at a reasonable correct market value, it may be necessary to take even two or all of those methods into account inasmuch as the exact valuation is not always possible as no two lands may be the same either in respect of the situation or the extent of the potentiality nor is it possible in all cases to have reliable material from which that valuation can be actually determined. The market value at the date of acquisition has to be ascertained. Ascertainment of market value means that the valuation must be made on the basis that the property was put up for sale in the open market at the date of acquisition. That would mean what has to be ascertained. Ascertainment of market value means that the valuation must be made on the basis that the property was put up for sale in the open market at the date of acquisition. That would mean what has to be ascertained is the price which a wiling purchaser would pay on that date. It needs no reiteration that while determining the market value of the land or fair compensation thereof, reference is to be made to the present use and also to the use to which the land can be put in near future."
(N.F.) Appeal dismissed
PLJ 2007 Peshawar 207 (DB)
Present: Talaat Qayyum Qureshi and Ejaz Afzal Khan, JJ.
IKRAM ULLAH--Petitioner
versus
DISTRICT OFFICER REVENUE AND ESTATE, PESHAWAR AND 3 OTHERS--Respondents
W.P. No. 2143 of 2006, decided on 15.6.2007.
(i) Constitution of Pakistan, 1973--
----Arts. 199 & 212(2)--Matter of transfer and posting--Terms and conditions of service--Interference with smooth sailing of department--Jurisdiction--Transfer and posting being related to the terms and conditions of service would fall within the exclusive domain of the Service Tribunal and High Court cannot step in to interfere--Where transfer is motivated by malafides or is based on extraneous considerations to accommodate some blue-eyed chap, it being justiciable, can well be taken to the Service Tribunal, which has the exclusive jurisdiction to inquire into such matters--Held: Plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of Constitution of Pakistan and Service Tribunal has full jurisdiction to interfere in such like matters. [Pp. 209 & 210] A, B & C
(ii) Duty of Servant--
----Comply on his superiors orders--Government servant is expected to comply only those orders/directors of his superior, which are legal and within his competence. [P. 211] D
(iii) North West Frontier Province District Government Rules of Business, 2001--
----Rr. 21(2) & 25--Schedule V--Constitution of Pakistan 1973, Art. 199--Constitutional petition--Transfer by Minister of Revenue--Question of transfer and posting--Terms and conditions of service--Interference with smooth sailing of department--Jurisdiction--If the transfer orders would have been made in accordance with the policy directives of the Government and power was exercised by competent authority, there would have been no room for manoeuvering by officers affected by such transfer--Petitioner's case, when it being distinguishable on legal plane as well as factual, has no perceptible relevance to such case--Held: High Court does not feel persuaded to interfere with impugned order--Instead of dismissing this petition, treat it as an appeal before the departmental authority and send it for decision in accordance with law within one month--Petition disposed of.
[Pp. 212 & 213] E, G & H
(iv) Jurisdiction--
----Dictum of Hon'ble Supreme Court condemn the orders of transfer and posting of the civil servants passed by bureaucrats on the dictates of elected representatives or on account of mala fides or political considerations, but when redress can be had by an appeal before the departmental authority and then before the service tribunal, on proof of such facts--Held: No interfere with such orders in exercise of our extra ordinary equitable discretionary Constitutional jurisdiction--Petition disposed of. [P. 212] F
Mian Muhibullah Kakakhel, Advocate for Petitioner.
Sardar Shaukat Hayat, AAG for Respondent Nos. 1 to 3.
Mr. Abdul Qayyum Sarwar, Advocate for Respondent No. 4.
Date of hearing: 8.5.2007.
Judgment
Ejaz Afzal Khan, J.--Ikramullah, petitioner herein, has flung a challenge to the order dated 2.12.2006 of the District Officer Revenue and Estate Peshawar, whereby he has been transferred from Landi Yarghajao to Tarnab.
Learned counsel appearing on behalf of the petitioner contended that a look at the impugned order would clearly indicate that the petitioner was transferred at the instance of the Minister for Revenue who has no powers whatever to interfere with the smooth sailing of the Department, if seen in the light of the provisions contained in Articles 129 and 130 of the Constitution of Islamic Republic of Pakistan, 1973 and the Rules of Business framed there under and that it being motivated by mala fides and based on political considerations is liable to be struck down. Such order, the learned counsel added, is all the more liable to be struck down, when it is also violative of Rule 25 of North West Frontier Province District Government Rules of Business, 2001 framed under the North West Frontier Province Local Government Ordinance, 2001. The learned counsel to support his contention relied on the judgment rendered in the cases of Gulzar Ahmad Vs. District Officer Revenue and Estate Peshawar and others in Writ Petition No.1819 of 2006 decided on 22.11.2006 and Himayatullah Mayat vs. Government of N.W.F.P. through Secretary, Schools and Literacy Department Peshawar and 5 others (PLD 2006 Peshawar 119). The learned counsel next contended that though resort can be had to the departmental authority and then to the Service Tribunal but that process being too tedious and time consuming can neither be termed as alternate nor efficacious.
As against that, the learned counsel appearing on behalf of Respondent No. 4 contended that transfer and posting being a matter relating to the terms and conditions of service, falls within the domain of the Service Tribunal, therefore, this Court while exercising jurisdiction under Article 199 of the Constitution could not interfere therewith.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
Though the impugned order appears to have been made with the approval of the Minister for Revenue, but it per se would not prove that it was motivated by mala fides and based on considerations as could be termed political. In case it be so, it being essentially a question of fact cannot be inquired into by this Court in the exercise of its constitutional jurisdiction. Disputes as to transfer and posting of civil servants being related to the terms and conditions of service fall within the exclusive domain of the Service Tribunal. Orders of transfer and posting motivated by mala fides and political considerations, too, can be dealt with, in the first instance, by the Departmental Authority and then by the Service Tribunal. So can be the ones passed in violation of the rules of Business framed under the Constitution or the Local Government Ordinance. Jurisdiction of this Court in view of the provisions contained in Article 212(2) of the Constitution is barred. In the cases of Miss Rukhsana Ijaz Vs. Secretary, Education, Punjab and others (1997 SCMR 167), Ayyaz Anjum Vs. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169), and Rafique Ahmad Chaudhry Vs. Ahmad Nawaz Malik and others (1997 SCMR 170), it has been consistently held by the Hon'ble Supreme Court that transfer and posting being related to the terms and conditions of service would fall within the exclusive domain of the Service Tribunal and that the High Court cannot step in to interfere therewith under Article 199 in view of an express bar envisaged by Article 212(2) of the Constitution. In the case of Secretary Education NWFP Peshawar and 2 others Vs. Mustamir Khanand and another (2005 SCMR 17), the Hon'ble Supreme Court held in no uncertain terms that where transfer is motivated by mala fides or is based on extraneous considerations to accommodate some blue-eyed chap, it being justiciable, can well be taken to the Service Tribunal, which has the exclusive jurisdiction to inquire into such matters. In the case of Peer Muhammad Vs. Government of Baluchistan through Chief Secretary and others (2007 SCMR 54), the Hon'ble Supreme Court while dealing with similar proposition held as under:
"It is settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made there under. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such like matters."
"We need not stress here that tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as Incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats, which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior, which are legal, and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."
"A reading of Rule 21(2) with Schedule V of the Rules of Business ibid, makes it clear that the transfer of a Section Officer/Under Secretaries and other officers of equivalent rank within the department is to be done by the Secretary of that department. Rule 21 of the Rules of Business, which deals with power of posting, promotion and transfer of Government servants, does not contemplate exercise of these powers by the Minister. The normal period of posting of a Government servant at a station, according to the above referred policy decision of the Government, is 3 years, which has to be followed in the ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of Government, a transfer before expiry of 3 years' period becomes necessary in the opinion of competent Authority. The transfer orders in the present case, therefore, could neither be justified on the plane of policy directive of Government referred to above, nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rules of Business, ibid. We are in no doubt that if the transfer orders in the case before us would have been made in accordance with the policy directives of the Government referred to above and power was exercised by the competent Authority as contemplated by Rule 21(2) read with Schedule V of the Rules of Business, ibid, there would have been no room for manoeuvering by the officers affected by such transfer. The fact that the transfers were made in violation of policy directive of the Government, which has the status of a Rule, and provisions of Rule 21(2) ibid, were not followed strictly, opened the door for the Government servant concerned to bring in outside influences to obtain the desired transfers. We are also sorry to note that the Secretary LG&RD, neither resisted these unethical and undesirable moves of his subordinates nor he pointed out to the Hon'ble Minister Incharge, that the transfer orders made by him from time to time in respect of various officers of his department were neither in conformity with the declared policy of Government nor these transfer orders conform to the provisions of Rule 21(2) of the Rules of Business, ibid. It was the duty of the Secretary LG & RD to have pointed out to the Minister concerned the extent of his authority in such matter, besides bringing to his notice that such frequent transfer of a Government servant could neither be justified as the exigencies of service nor it could be described in the Public interest. We are constrained to observe that such unconcerned and lukewarm attitude on the part of a Head of a Government is not expected to promote discipline or efficiency in the Department. On the contrary such attitude may have a demoralizing effect on his subordinates encouraging to seek intervention and favours of outside agencies, which may ultimately adversely affect the overall discipline and efficiency in the department. We, therefore, expect that the guide lines mentioned in the policy directives of the Government referred to above and the provisions of Rule 21 of the Rules of Business, ibid, will be kept in view by all concerned while dealing with the transfers of Government servants. The office is directed to send a copy of this judgment to the Government of Punjab for circulating it to all its departments, for future guidance. With these observations, this petition stands dismissed as not maintainable."
We, too, by respectfully following the above quoted dictum of the Hon'ble Supreme Court condemn the orders of transfer and posting of the Civil Servants passed by the bureaucrats on the dictates of the elected representatives or on account of mala fides or political considerations, but when redress can be had by an appeal before the Departmental authority and then before the Service Tribunal, on proof of such facts, we would not like to interfere with such orders in the exercise of our extra ordinary equitable discretionary constitutional jurisdiction. This is what we held in the cases of Bakhtiar Ahmad Vs. SMBR in W. P. No. 1167 of 2006 decided on 3.8.2006, Professor Rehana Matiullah Vs. Chief Secretary and others in W.P. No. 1496 of 2006 decided 12.2.2006, S. Mansoor Hussain Shah Vs. Secretary LG/RD in W.P. No. 1153 of 2006 decided on 3.8.2006, Waqif Khan Vs. Government of N.W.F.P. in W.P. No. 1114 of 2006 decided on 28.7.2006, Pervez Khan vs. Addl. Chief Secretary FATA in W.P. No. 2261 of 2006 decided on 14.2.2007, Serat Bibi Vs. Government of NWFP in W.P. 1559 of 2006 decided on 5.10.2006. Abdal Qadir Vs. Government in W.P. No. 561 of 2006, decided on 12.5.2006, Nawab Gul Vs. SMBR in W.P. No. 1033 of 2006 decided on 18.7.2006, Sardar Ali vs. Director School in W.P. No. 942 of 2006 decided on 13.7.2006 and Muhammad Ilyas Khan Vs. District Revenue and Estate Officer and others in W.P. No. 835 of 2007 decided on 23.5.2007.
The case of Gulzar Ahmad Vs. District Officer Revenue and Estate Peshawar and others in Writ Petition No. 1819 of 2006 decided on 22.11.2006 cited by the learned counsel for the petitioner being per-incurium and even sub-silentio would not advance the case of the petitioner. For the precedent per-incurium being rendered in derogation of the Statute and the precedent sub-silentio being not fully argued with reference to the relevant law would not have binding force. The case of Himayatullah Mayat Vs. Government of N.W.F.P. through Secretary, School and Literacy Department Peshawar and 5 others (PLD 2006 Peshawar 119), too would not advance the case of the petitioner, when it being distinguishable on legal plane as well as factual, has no perceptible relevance to the case in hand.
Having thus considered, we do not feel persuaded to interfere with the impugned order. However, we by following the dictum rendered in the case of Muhammad Anis and others Vs. Abdul Haseeb and others (PLD 1994 Supreme Court 539), instead of dismissing this petition, treat it as an appeal before the departmental authority and send it thereto for decision in accordance with law within one month. The petitioner may, if so advised, ask for interim relief before the departmental authority. This writ petition thus stands disposed of.
(N.F.) Petition disposed of
PLJ 2007 Peshawar 213
Present: Ijaz-ul-Hassan, J.
Mst. ANWAR SULTAN and others--Petitioners
versus
JAFFAR KHAN--Respondent
C.R. No. 2 of 2007 with C.M. 2 of 2007, on decided 31.5.2007.
Civil Procedure of Code, 1908 (V of 1908)--
----S. 115--Mortgage deed--Unregistered--Redeemed on payment of mortgage amount--Manifest injustice--Positive and cogent evidence--Deed was illegal, forged, fictitious and in effective qua right of plaintiff--Validity--In certain eventualities Court enjoins the powers to itself compare the signature alongwith other relevant matters to effectively resolve the main controversy--Revision dismissed.
[P. 216] A
Khanzada Ajmal Zaib, Advocate for Petitioners.
Mr. Rahim Muhammad, Advocate for Respondent.
Date of hearing: 25.5.2007.
Judgment
The precise relevant facts leading to the filing of instant civil revision are, that Jafar Khan plaintiff instituted suit against Mst. Anwar Sultan and others, defendants, seeking a declaration to the effect that plaintiff was owner in possession of suit house, detailed in the plaint and deed dated 29.12.1977 was illegal, forged, fictitious and ineffective qua the rights of the plaintiff. A prayer for possession of suit house was also made in case the plaintiff was not found in possession of the same. The plaintiff further prayed for grant of permanent injunction, restraining the defendants to transfer or alienate the house in question in any manner. It was averred in the plaint that suit house was allotted to the plaintiff on account of being affecttee of Tarbela Dam Project; that the house was mortgaged in favour of one Fazal Qadir son of Baruddin, resident of Topi, Swabi for Rs. 25,000/- on the basis of unregistered mortgage deed dated 9.9.1988; that the same was got redeemed on payment of mortgage amount and that Defendant No. 1 taking advantage of the absence of the plaintiff from the village, took forcible possession of the house in dispute and started residing there.
The defendants filed written statement denying and controverting the contents of the plaint. It was pleaded that plaintiff had given the suit house to his son late Jehanzeb, husband of Mst. Anwar Sultan, Defendant No. 1, as gift on the basis of deed dated 29.12.1977 and Jehanzeb transferred the same in favour of Defendant No. 1 against dower.
After recording such evidence as the parties wished to adduce, in support of their respective stances, learned Civil Judge, Swabi, seized of the matter, proceeded to hold that plaintiff has not been able to substantiate his claim. Resultantly, suit was dismissed by judgment and decree dated 27.6.2006. An appeal was preferred thereagainst, which was accepted by learned Additional District Judge, Swabi, by judgment dated 27.11.2006. The judgment and decree of trial Court was set aside and suit was decreed.
The petitioners, feeling aggrieved thereby, have filed instate civil revision, which is before me for consideration.
I have heard Khanzada Ajmal Zeb, Advocate for the petitioners and Mr. Rahim Muhammad, Advocate for the respondent. I have also perused the record with their able assistance.
Learned counsel for the parties confined their arguments to the findings returned on Issues Nos. 5 and 6, which are to the following effect:--
Whether the plaintiff has transferred the suit property on the basis unregistered deed dated 29.12.1977, if so its effect?
Whether the unregistered deed dated 9.9.1988 is forced, fictitious and inadmissible in evidence.
Learned counsel for the petitioners strenuously contended that impugned judgment and decree of the appellate Court is contrary to the evidence on record; that appellate Court has not exercised the jurisdiction in accordance with law; that trial Court has discussed Issues Nos. 5 and 6 in detail and has given full consideration to the material on record and correctly found same in favour of the petitioners and that appellate Court had no justification to take contrary view of the matter and reverse the findings arrived at by the trial Court. Additionally, he urged that the admitted and disputed signatures of the respondent should have been sent to the hand writing expert for comparison and opinion in order to resolve the controversy conclusively and effectively and omission on the part of the Court to do so has resulted in manifest injustice.
Learned counsel for the respondent, on the contrary, refuted the arguments of learned counsel for the petitioners and supported the impugned judgment whole heartedly. To supplement the contentions, reliance was placed on the following authorities:
Ihsan Elahi Vs. Abdul Sattar (1993 CLC 1243), Muhammad Imran Vs. Said Akbar through his legal heirs (NLR 1997 Civil 185)
The parties are closely related to each other. Mst. Anwar Sultan Petitioner No. 1, is the widow of late Jehanzeb Khan son of Jafar Khan respondent. Petitioners 2 to 7 are sons and daughter respectively of late Jehanzeb. The dispute relate to a house constructed on an area measuring 10 marlas, situate in the area of Moza Bara Hamlet, Tehsil and District Swabi. The case of the respondent is that suit house was allotted to him, being affective of Tarbela Dam Project. He mortgaged the same in favour of one Fazal Qadir son of Baruddin, resident of Topi in consideration of Rs. 25,000/- on the basis of unregistered mortgage deed dated 9.9.1988. To prove the claim, respondent Jafar Khan appeared in the witness box as PW.4 and he produced Syed Rahim Shah, Stamp Vendor, as PW.1 and Ali Akbar and Tawas Khan as PW.2 and PW.3. As against that, Mst. Anwar Sultan was examined as DW. 1 and she produced Hakim Khan and Muhammad Nawaz as DW.2 and DW.3 respectively.
Having considered the matter from all angles, in the light of arguments of learned counsel for the parties and the evidence on the file, I am of the view that sufficient evidence has been brought on the record to substantiate the claim of the respondent. The mortgage deed dated 9.9.1988, has been satisfactorily proved through positive and cogent evidence. There is nothing in rebuttal to indicate, even remotely, that respondent had transferred the house in question in favour of his son Jehanzeb Khan as gift and the same was given to Petitioner No. 1 in lieu of dower. Even-otherwise the allotment of house and subsequent mortgage has not been seriously disputed. The learned appellate Court has given valid and cogent reasons for disagreeing with learned trial Court and forming a different opinion. The mere assertion of learned counsel for the petitioners that evidence on record has not been properly appreciated by the appellate Court in its true perspective, without a positive attempt on his part, to substantiate the same, is of no consequence. Despite having been asked repeatedly to point out the evidence, which was misread or non-read by the appellate Court, learned counsel remained unable to do so. The objection of learned counsel for the petitioners regarding omission on the part of the appellate Court to send the admitted and disputed signatures/thumb impressions of the respondent to the hand writing hand expert for comparison and opinion, is equally without substance. The omission on the part of the Court to do so, does not appear to have caused prejudice to the interest of the petitioners. It is settled principle that in certain eventualities Court enjoins the powers to itself compare the signature alongwith other relevant matters to effectively resolve the main controversy. Messrs Waqas Enterprises and others vs. Allied Bank of Pakistan and 2 others (1999 SCMR 85).
Pursuant to above, finding no substance in this civil revision, I dismiss the same with no order as to costs and maintain the impugned judgment dated 27.11.2006.
(N.F.) Revision dismissed.
PLJ 2007 Peshawar 217
Present: Ijaz-ul-Hassan, J.
BACHA KHAN and others--Petitioners
versus
ABDUL QAYYUM and others--Respondents
Civil Revision No. 1422 of 2005, decided on 26.1.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 27--Production of additional evidence in Appellate Court--Powers are to be exercised only if Court considers that it would not be able to pronounce judgment without further evidence--Such provision cannot be used for benefit of a party which has not been vigilant to see that no weaknesses are left in the case. [P. 219 & 220] B
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, Rr. 23 & 24--Remand of case by Appellate Court--Sufficient evidence--Determination--Only those cases remanded which could not be decided on the basis of available material/record if controversy can be resolved on available evidence then question of remand does not arise power not be exercised lightly sufficient care should be taken--Revision accepted. [P. 220] C
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, Rr. 25 & S. 115--Remand of case--Jurisdiction--Discretionary power--If parties have led evidence with regard to particular point and the Court of first instance by giving specific finding on the point decided the same in light of evidence available on record--Remand of the case in appeal or revision is not proper exercise of jurisdiction.
[P. 219] A
1976 SCMR 388; 1975 SCMR 221 & PLD 2004 SC 10, ref.
M/s. Mazullah Barkandi and Shahabuddin Burq, Advocates for Petitioner.
Mr. Abdul Samad Khan, Advocate for Respondents No. 1 to 5.
Mr. Masoodur Rehman, Advocate for Respondents No. 6 to 10.
Date of hearing: 24.11.2006.
Judgment
In brief, factual background of the case is that Abdul Qayum and others, plaintiffs had instituted suit against Bacha Khan and others, defendants for declaration and possession alongwith other reliefs, in respect of certain landed property, detailed in the head note of the plaint.
Defendants Nos. 1 to 4, 6 & 7 appeared in Court, and contested the suit on all grounds, legal as well as factual. Following issues were framed for trial:--
At the conclusion of the trial, learned Civil Judge/Illaqa Qazi, Tehsil Matta District Swat, who tried the suit, decided Issue Nos. 1 to 4, 6 & 7 together and proceeded to hold that evidence produced by the plaintiffs was discrepant and not confidence inspiring and plaintiffs have miserably failed to substantiate their claim. On the contrary, sufficient material in shape of document dated 21.3.1970 and agreement deeds dated 22.8.1963, 28.6.1957 and 21.2.1958 respectively has been brought on the record to rebut the claim of the plaintiffs. Issue Nos. 2 and 3 pertaining to limitation and res-judicata, were also decided against the plaintiffs and suit was found barred by time in terms of Article 120 of the Limitation Act. Resultantly, suit was dismissed by judgment and decree dated 4.3.2005. An appeal was preferred thereagainst before learned District Judge, Swat which was assigned to learned Additional District Judge, Swat for disposal. By judgment dated 10.11.2005, the appeal was accepted, judgment and decree dated 4.3.2005 was set aside and case was remanded back to the trial Court for re-decision with the direction to appoint a local commission to decide the lis.
Bacha Khan and other petitioners, feeling aggrieved thereby, have filed instant Civil Revision u/S. 115 CPC, which is before me for consideration.
M/S Mazullah Barkandi and Shahabuddin Burq, Advocates for the petitioners, bitterly criticized the impugned judgment and attempted to argue that the appellate Court has illegally exercised its jurisdiction by remanding the case without giving findings on all the issues in flagrant disregard to mandatory provisions of Order 41 Rule 31 CPC; that the evidence on record was sufficient for the appellate Court to decide the matter itself instead of remanding the case and the appellate Court has not properly understood the law and the facts of the case which has resulted in complete failure of justice.
Opposing the arguments of learned counsel for the petitioners, Mr. Abdul Samad Khan, Advocate for Respondents No. 1 to 5 and Mr. Masoodur Rehman, Advocate for Respondents No. 6 to 10 maintained that there is no infirmity in the impugned judgment, which could justify interference by this Court while exercising revisional jurisdiction and the civil revision deserves outright dismissal. To substantiate the contentions, reliance was placed on Mst. Saleem Akhtar Vs. Nur Muhammad Khan and 4 others (1994 C L C 1828).
I have considered the submissions of learned counsel for the parties at some length in the light of the material on the file.
The appellate and the revisional Court is always empowered to remand the case in terms of Order XLI, Rule 25, C.P.C., but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of jurisdiction. Needless to emphasize that powers under Order XLI, Rule 27, C.P.C. are to be exercised only if the Court considers that it would not be able to pronounce judgment without further evidence, and this provision cannot be used for the benefit of a party which has not been vigilant enough to see that no weaknesses are left in its case.
Under Order XLI, Rules 23 and 24 CPC only those cases should have been remanded which could not be decided on the basis of available material/record as it would be in the interest of justice that if a controversy can be resolved on the basis of available evidence then the question of remand does not arise. This power should not be exercised lightly but sufficient care should be taken in remanding the case. The Court should examine the evidence and if it comes to the conclusion that it is not sufficient to pronounce the judgment or decide the issues between the parties, it can remand the case or may itself record the evidence and decide it. But if on record there is adequate and sufficient evidence on which decision can be made, the remand would not be justified. In this regard reference can profitably be made to Nasir Ahmad and another Vs. Khuda Bakhsh and another (1976 SCMR 388), Fateh Ali Vs Pir Muhammad and another (1975 SCMR 221) and Ashiq Ali vs. Zameer Fatma (PLD 2004 SC 10).
A perusal of the record would reveal that petitioners have become owners of suit property not only on the basis of sale-deed
dated 21.3.1970 but have also placed on record certain other deeds in support of their claim. It needs no reiteration that it is always for the plaintiff to prove his case and he cannot take benefit of the weaknesses, if any, of the defendant's case. The appointment of commission, in the instant case, will not give any strength to the plea of the respondents about their ownership, as rightly contended by learned counsel for the petitioners. The appointment of commission seems to be an exercise in futility in the circumstances of the case. The learned trial Court has delivered a detailed and exhaustive judgment considering all the aspects of me case, leaving no room for further deliberation. The authority cited on behalf of the respondents, is distinguishable and proceeds on different facts.
(M.S.A.) Revision accepted
PLJ 2007 Peshawar 221 (DB)
Present: Muhammad Qaim Jan Khan and Ejaz Afzal Khan, JJ.
HADIA and others--Petitioners
versus
E.D.O. etc.--Respondents
W.P. No. 989 of 2006, decided on 21.12.2006.
Locus Poenitentiae--
----Principle of--Service matter--Petitioners were appointed on contract against the vacant posts of PST for a period of 3 years--No fresh applications for appointment on contract against such posts could be invited before the expiry of 3 years--Held: Section 21 of the General Clauses Act, 1897 provides that power to pass an order includes the power to amend vary or rescind it--But such power being enshrined in the principle of locus poenitentiae cannot be exercised where the order passed is acted upon and a valuable right has accrued in consequence thereof. [Pp. 222 & 223] A & B
1992 SCMR 1420, 1947 KB 130, (1975) 1 QB 1917 &
1992 SCMR 1652, ref.
Miss Musarrat Hilali, Advocate for Petitioners.
Mr. Nizar Muhammad Khan, DAG for Respondents.
Date of hearing: 21.12.2006.
Judgment
Ejaz Afzal Khan, J.--Applications were invited through advertisement published in Daily Ausaf dated 27.3.2004 by the Executive District Officer Swabi, for the posts of P.T.C. female teachers. The candidates qualifying the test and interview were appointed as P.S.T., vide order dated 20.10.2004 for a period of three years. They assumed their charge and duty and have been working against the said posts since then. When on 15.6.2006 again applications were invited for the same posts for appointment on contract through advertisement published in the daily Mashriq dated 15.6.2006, the incumbents of the said posts challenged the aforesaid advertisement by filing Writ Petitions Nos.1097, 1101, 1102, 1300, 1526 and 1774 of 2006. These are disposed of by this single judgment as identical point of law is involved in all of them.
The learned counsel appearing on behalf of the petitioners contended that when the petitioners were appointed on contract against the vacant posts of PST for a period of 3 years, no fresh applications for appointment on contract against such posts could be invited before the expiration of 3 years and that the impugned act of the respondents being against law and detrimental to the accrued rights of the petitioners is liable to be set at naught.
As against that, the learned DAG appearing on behalf of the respondents, by referring to Section 21 of the General Clauses Act submitted that where a power is conferred on a functionary or authority to pass an order, it also includes a power to add to, amend, vary or rescind that, therefore, the order rescinding the appointments is not open to any interference.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
It is not disputed that the petitioners were eligible and that they qualified the prescribed test and interview. It is also not disputed that they were appointed on contract for a period of 3 years, vide order dated 20.10.2004 and that they have been working as such ever since then. The question arises, then, why fresh applications are invited for appointment on contract for the same posts when the stipulated period has not yet expired? The learned DAG tried to answer the question by referring to Section 21 of the General Clauses Act. But this reference, to our mind, is misconceived on the face of it. This provision of law, undoubtedly, provides that power to pass an order includes the power to amend, vary or rescind it. But this power being enshrined in the principle of locus poenitentiae cannot be exercised where the order passed is acted upon and a valuable right has accrued in consequence thereof. In the case of Muhammad Nawaz Vs. Federation of Pakistan and 61 others (1992 SCMR 1420), the Hon'ble Supreme Court held that the principle of locus poenitenutiae is not available to an authority when the order competently passed by it was acted upon and a valuable right accrued consequent upon that. Such order cannot be recalled or rescinded even under the principle of promissory estoppel. In the case of Central London Property Trust Ltd. Vs. High Trees House Ltd (1947) KB 130, Lord Dinning while dealing with the principle of promissory estoppel held as under:--
"The law has not been standing still since Jorden-v-Money. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made, and which was in fact so acted on. In such cases the Courts have said that the promise must be honoured."
"Promissory estoppel...applies whenever a representation is made, whether of fact or law, present or future, which is intended to be binding, intended to induce a person to act upon it and he does act upon it. That is the case here. Mr. Evenden entered into his employment with the football club on the faith of the representation that he would not be prejudiced and that his employment should be regarded as a continuous employment. Acting upon it, he has lost any rights against the supporters' club. The football club cannot be allowed to go back on it. His employment is to be treated as continuous for the whole 19 years. He is entitled to the full redundancy payment of 459 pounds "
Government is not an exception to this principle. Its promise or its representation is also binding on it, if and when made or held out. In the case of Messrs Army Welfare Sugar Mills Ltd. and others Vs. Federation of Pakistan and others (1992 SCMR 1652), the Hon'ble Supreme Court after considering the entire case law on the subject held that the promissory estoppel is also available against the Government and its functionaries, if it is not against the legislature, against law or a promise not lawfully extended. But where the promise extended, besides being free from any such infirmity, has also been acted upon and consequent upon a valuable right has accrued, as in this case, it cannot be recalled or rescinded.
When considered in this background, we do not think, the respondents have the power to rescind or recall the order thus passed before the expiration of 3 years. Therefore, we allow these writ petitions, declare the act of the respondents as without jurisdiction and lawful authority and hold that the petitioners are entitled to retain the posts till the expiration of the stipulated period.
(M.S.A.) Petitions allowed
PLJ 2007 Quetta 1 (DB)
Present: Raja Fayyaz Ahmad, CJ & Akhtar Zaman Malghani, J.
ABDUL KHALIQ--Petitioner
versus
ABDUL MALIK and 7 others--Respondents
C.P.No. 374 of 2004, decided on 28.12.2004.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 540--Pakistan Penal Code, (XLV of 1860), Ss. 302, 147, 148 & 149--Application for summoning of Court witness--Accepted--Assailed--The witnesses who had been summoned as Court witnesses u/S. 540 Cr.P.C., were neither named in FIR, nor examined by Police nor their names were mentioned in the calendar of witnesses nor any witness examined in the case has mentioned any one of them, it could not be said that their evidence have appeared from record to be essential--By summoning these witnesses it can be alleged that trial Court has passed order to assist the party in building up his case, and thereby cast a shadow on it of not being impartial--The Court while exercising powers u/S. 540 Cr.P.C. was required not to abandon its high place of an impartial arbiter and should always refrain from acting as an investigating agency or assuming role of investigator, however; altruistic motive may be--At the time of filing of application and making order no evidence was available before trial Court to judge whether such evidence was essential to just decision of the case, but on application of accused persons trial judge directed for sending the empties to Ballistic Expert for examination, thereby, attempting to create evidence by assuming role of investigator, not permissible u/S. 540 Cr.P.C.--During investigation only empties were recovered from place of occurrence, but no weapon of offence was secured, therefore, the empties could not have been used against accused persons as corroboratory evidence, as such it was not essential to send these empties to Ballistic Expert to see whether same were fired from one weapon or more than one to disadvantage of the prosecution, more particularly when in light of unfortunate aspect of our society and possibility of getting favourable report by either party cannot be ruled out--Petition allowed.
[Pp. 4 & 5] A & B
M/s. Muhammad Zafar & Baz Muhammad Kakar, Advocates for Petitioner.
M/s. Ehsan-ul-Haq & Mr. Naeem Akhtar, Advocates for Respondents.
Date of hearing : 30.11.2004.
Judgment
Akhtar Zaman Malghani, J.--In this Constitutional Petition the petitioner has challenged validity of order dated 23.7.2004 passed by Special Judge, Anti Terrorism Court-I, Quetta, whereby; application filed by the accused/private respondents under Section 540 Cr.P.C. for calling Noor Ahmed as Court witness and sending empties to the Ballistic Expert for examination to ascertain whether the empties were fired by one or more weapons, was allowed.
Briefly stated, facts of the case are that a case vide FIR No. 57/2003 was registered under Sections 302/147/148/149 P.P.C. against the private respondents in levies station, Khanozai, District Pishin. After usual investigation the challan was submitted before the Special Judge, Anti Terrorism Court-I, Quetta. It appears from the record that during progress of prosecution evidence the accused/respondents moved an application under Section 540 Cr.P.C. for calling Noor Ahmed son of Ahmed Khan as Court witness as well as sending the crime empties secured from the place of occurrence to the Ballistic Expert in order to ascertain the number of weapons from which these empties were fired. The learned trial Judge after hearing the parties allowed the application vide order dated 23.7.2004. Hence this petition.
We have heard the learned counsel for the petitioner as well as learned counsel for the private respondents and learned Advocate General. We have also gone through the impugned order. It is vehemently contended by the learned counsel for the petitioner that after passing of the order by the Special Judge, Anti Terrorism Court, same was challenged before this Court and on 30.7.2004 this Court suspended the impugned order but despite such suspension, which was communicated to the Court on 31.7.2004, the empties were sent for examination and a favourable report was obtained, which report in view of order of this Court dated 30.7.2004, was a nullity in law. He further contended that Noor Ahmed, who was sought to be examined by the accused party as a Court witness, was father-in-law of one of the deceased persons and not a cited witness. He himself has not come forward to give evidence nor lodged any report, as such, his statement was not so much material to attract the provisions of Section 540 Cr.P.C. As regards sending of crime empties for examination, the learned counsel urged that the application under Section 540 Cr.P.C. was moved when prosecution evidence was almost complete and in the application it has not been shown as to how evidence of Ballistic Expert was necessary for the just decision of the case and more particularly when no weapon of offence was recovered, yet the learned Anti Terrorism Court directed for sending the empties recovered from the scene of occurrence to the Ballistic Expert to ascertain the fact as to whether the same were fired from one or more weapons, thereby; attempting to create evidence in order to help the accuse party to build-up their case, to the disadvantage of prosecution and in a way the learned Judge assumed the role of investigator, which has never been the object and purpose of Section 540 Cr.P.C. conferring discretion on the Court to examine any person whose evidence appears to be essential for arriving to a just conclusion. In support of his arguments the learned counsel placed reliance on the judgment reported in PLD 1949 Lahore page-100.
On the other hand, the learned counsel for the private respondents contended that the application under Section 540 Cr.P.C. was allowed by the Anti-Terrorism Court on 23.7.2004 and on the same day the Public Prosecutor was directed to send the empties for Ballistic Expert's opinion and the empties were accordingly sent on 29.7.2004 whereas; the order of this Court which was effective till 3.8.2004, was communicated to the trial Court on 31.7.2004 when the empties were already dispatched to expert and rest of the proceedings were done by the expert without knowledge of the order of this Court, as such; there was no violation. He further contended that according to the prosecution version six persons were holding Kalashnikovs and two were holding pistols whereas the deceased persons in total received five injuries and in this back ground the application was moved which was allowed by the trial Court after concluding that evidence of the expert was essential for reaching to truth, by exercising its power under Section 540 Cr.P.C. which gives discretion to the Court and such discretion once exercised by the trial Court cannot be challenged by invoking constitutional jurisdiction of this Court. He further contended that the impugned order is neither whimsical nor arbitrary to warrant interference by this Court. The learned counsel in support of his contentions referred to the judgments reported in 1995 P.Cr.L.J. page 730, PLD 1987 Lahore page 252, PLD 1984 Supreme Court page-95, 1993 SCMR page 550, PLD 1994 Lahore page 93, PLD 1983 Lahore page 139, 1987 SCMR page 56, 1974 SCMR page 64, PLD 1981 Quetta page 15 and 1985 SCMR page 491. However; it was stated at bar that the application to the extent of examination of Noor Ahmed as Court witness is not pressed.
The learned Advocate General supported the impugned order.
We have carefully considered the respective contentions put forth by the parties' learned counsel. There is no cavil with the proposition that the Court under Section 540 Cr.P.C. has plenary powers for summoning a person as witness or re-examining any person already examined at any stage of the proceedings, if such evidence appears essential for just determination of controversy involved in the matter. The first part of section gives the discretionary powers to summon or recall any person whereas the second part imposes an obligation on the Court to summon and examine or re-call and re-examine any such person, if his evidence appears essential to the just decision of the case. But where witnesses who had been summoned as Court witness under Section 540 Cr.P.C., were neither named in FIR nor examined by police nor their names were mentioned in the calendar of witnesses nor any witness examined in the case has mentioned any one of them, it could not be said that their evidence have appeared from the record to be essential. By summoning these witnesses it can always be alleged that the trial Court has passed the order to assist the party in building up his case and thereby cast a shadow on it of not being impartial. The Court while exercising powers under Section 540 Cr.P.C. is required not to abandon its high place of an impartial arbiter and should always refrain from acting as an investigating agency or assuming role of investigator, however; altruistic motive may be. In the judgment reported in 1991 MLD page 17 while dealing with the discretionary powers of the Court under Section 540 Cr.P.C. it was observed as under:--
"But the trial Judge in exercise of his wide powers conferred on him by Section 540, Criminal Procedure Code shall always refrain himself from acting as an Investigating Agency embarking upon a roving enquiry in a case by summoning certain persons as Court witnesses. A trial Judge an impartial arbiter cannot assume the role either of an investigating officer or a prosecutor while acting under that section even though he may be motivated by pious reasons and his enthusiasm of doing justice in the case".
Likewise; in the judgment reported in PLD 1975 Lahore page 1431 the Hon'ble Judges held that the Court is not presumed to take over the role of investigator while exercising the powers conferred on it under Section 540 Cr.P.C.
In another case reported in 1998 P.Cr.L.J. page 2059 where on re-investigation of the case a DSP had held the accused innocent but could not submit his report to the Court because challan had already been submitted to the Court. The accused applied to the Court to exercise its power under Section 540 Cr.P.C. to call the DSP. It was held that the DSP was one of the investigating officers of the case and not himself a witness in the case and had no personal knowledge about the facts of the case, the evidence of said DSP was not essential to just decision of the case because neither it would help accused nor serve any useful purpose.
In the instant case admittedly at the time of filing of application and making order no evidence was available before the learned trial Court to judge whether such evidence was essential to just decision of the case but on the application of accused persons the learned trial Judge directed for sending the empties to Ballistic Expert for examination, thereby; attempting to create evidence by assuming role of investigator, not permissible under Section 540 Cr.P.C. It may be seen that during investigation only empties were recovered from the place of occurrence but no weapon of offence was secured, therefore; the empties could not have been used against the accused persons as corroboratory evidence, as such; it was not essential to send these empties to Ballistic Expert to see whether same were fired from one weapon or more than one to disadvantage of the prosecution, more particularly when we see the same in the light of unfortunate aspect of our society and the possibility of getting favourable report by either party cannot be ruled out.
Expert evidence has neither any independent evidentiary value nor the same can form sole basis for conviction or acquittal of the accused. In the judgment reported in PLD 1964 Peshawar page 59 while considering the report of Ballistic Expert their Lordships observed as under:--
"It follows from the above discussion, that though the evidence of ballistic expert has a corroborative value, it alone cannot be made a basis of conviction. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is a legal proof of its existence, he cannot take it as "proved", and moral certainty or suspicion, however, grave, cannot be allowed to take the place of proof. In this connection I may profitably quote the words of caution of Mr. Justice Darling in the trial of Steinie Morrison when addressing the jury, he said:--
"All that about the revolver, and so on, is very suspicious, gentlemen, but you know you must not convict a man on one suspicion; you must not convict him on a thousand suspicions; you must not add a thousand suspicion circumstances together and say, that is proof'. No you must find some where a solid anchorage upon which you can say,I am secure of this basis'."
In view of above discussion, we; are of the view that sending of crime empties for examination of the expert was not essential for the just decision of the case and the learned Judge erred in law by allowing the application under Section 540 Cr.P.C.
After having gone through the report we smell foul play. It may be noticed that the impugned order was suspended on 31.7.2004 but it has been claimed that the articles were already sent to the Ballistic Expert on 29.7.2004 and in this regard reliance is placed on the Letter No. 7077-78/PB (CB) dated 29.7.2004 addressed to the Assistant Inspector General of Police, Criminalistic Division, Government of Sindh, Karachi by Superintendent of Police, Crime Branch, Quetta. Copy whereof is available on judicial record of the trial Court. It does not indicate as to when it was received by the trial Court as it did not bear signature or initial of the Presiding Officer or any other official of the Court. The letter also shows that the place where name of the officer, by whose hand the empties were being sent, was to be incorporated, has been left blank. Similarly the report of Ballistic Expert also does not indicate the name of the officer who handed over the empties in the office of Ballistic Expert and the relevant column has been left blank, creating a doubt as to whether the articles were taken to the expert by police official or by the accused party. The urgency which has been shown in the instant case in sending the articles by the Crime Branch without intervention of Court and examination of the empties by the expert within a few days also raise a number of questions in the mind. Any how after suspension of order by this Court which became operative as soon it was passed, any exercise carried out by the crime branch or expert would have no legal sanctity and the report is a nullity in law.
The learned trial Court while allowing the application placed reliance on the judgment reported in PLD 1987 Lahore page 252 which has no application to the facts of the instant case as in that case the empties and crime weapons both were available before the Court. It is also indicative from the impugned order that the learned Judge has not found the proposed evidence essential to just decision of case but allowed the application after coming to the conclusion, in his own words "it might help the Court".
So far objection regarding maintainability of constitutional petition is concerned; we may observe where exercise of the discretion was wholly unjust, unreasonable or perverse this Court can interfere with the impugned order in its supervisory jurisdiction. In the case in hand as already observed the learned trial Court while allowing the application assumed the part of investigator and acceptance of the application amounts to be a device for creating evidence in favour of one party disadvantageous to other party which has never been intention of the law and the discretion exercised by the learned Judge was wholly unjust and unreasonable warranting interference by us in exercise of constitutional jurisdiction.
So far case law relied by the learned counsel for the private respondents is concerned, the same is distinguishable on facts.
In view of what have been stated above, we; are inclined to declare the impugned order dated 23.7.2004 as illegal, void and nullity in law. Consequently the same is set aside. Parties are left to bear their own costs.
(T.S. Faisal) Petition allowed.
PLJ 2007 Quetta 7 (DB)
Present: Amanullah Khan Yousafzai, C.J. Akhtar Zaman Malghani, J.
MINING INDUSTRIES OF PAKISTAN (Pvt.) Ltd. through its Authorized Director--Petitioner
versus
DEPUTY SPEAKER, BALOCHISTAN PROVINCIAL ASSEMBLY, QUETTA and 3 others--Respondents
C.P. No. 276 of 2005, decided on 26.6.2006.
(i) Constitution of Pakistan, 1973--
----Arts. 63(4) 166, 69 & 127--Election Petition--Privilege--Determination of disqualification--Acts and deeds--Obligation--Powers of Speaker and deputy Speakers--Freedom of Speech--A member of Parliament or Provincial Assembly would render himself disqualified under Art. 63 (1)(g) to remain member as such, if he propagates any opinion or acts in any manner prejudicial to the ideology, sovereignty, integrity or security of Pakistan, morality or maintenance of Public order, or defames or brings into ridicule the judiciary or Armed Forces of Pakistan--Proceedings of an assembly are protected under Art. 69 but to enjoy that immunity, such proceedings must fall wholly within privileges of Assembly--It is certainly not legal right or privilege of assembly to out step its own competence and jurisdiction laid down by the Constitution.
[P. 10] A & B
(ii) Constitution of Pakistan, 1973—
----Art. 63(2)--Executive Order XXV of 2002--Question of disqualification, Determination of--Powers of Speaker and Deputy Speaker--Acts and deeds--It is for the speaker and in his absence, Deputy Speaker is under legal obligation to take a decision on submission of a reference as to whether a question as contemplated under Art. 63(2) of Constitution has arisen, because he is not to act as a post office and to forward reference without application of mind and determining the question--Held: On submission of an application or reference, speaker or Deputy Speaker of Assembly should be forwarded the question regarding disqualification of member Assembly to the Chief Election Commission for taking decision at his end--Order accordingly. [Pp. 11 & 12] C & D
PLD 1970 SC 98, 1995 MLD 1903, ref.
M/s. Nawaz Kasuri & Tariq Mehmood Butt, Advocates for Petitioner.
Ch. Mumtaz Yousaf S.C., Mr. H. Shakil Ahmed & Mr. Mansoor Khan Jadoon, Advocates for Respondents.
Date of hearing : 30.5.2006.
Judgment
Akhtar Zaman Malghani, J.--Following reliefs have been claimed in the instant Constitutional petition:--
"Under the circumstances, it is respectfully prayed that this Hon'ble Court may be pleased to direct Respondent No. 1 to perform his constitutional obligations by making reference under Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973 against Respondents Nos. 2 and 3 for determination of their disqualification as envisaged under Article 63(g) of the Constitution of Islamic Republic of Pakistan, 1973.
Any other relief as may be fit and appropriate may also be awarded accordingly."
Briefly stated, facts of the case are that the petitioner filed an application before the Respondent No. 2 for making reference to the Chief Election Commissioner of Pakistan as contemplated under Article 63(2) of the Constitution as according to the petitioner, Respondent No. 2 and Respondent No. 3 (speaker) had rendered themselves disqualified on account of their acts and deeds enumerated in the application. The grievance of the petitioner is that the Deputy Speaker failed to perform his constitutional obligation despite repeated requests.
We have heard the learned counsel for the parties and have also gone through the record. The learned Counsel for the petitioner vehemently contended that the speaker of the Provincial Assembly as well as Respondent No. 2 had rendered themselves disqualified, therefore; a petition was filed before Respondent No. 1 to refer their case for disqualification as envisaged under Article 63(2) to the Chief Election Commissioner of Pakistan, which he was under legal obligation to do but he refused to refer the matter. The learned counsel was of the view that Deputy Speaker on receipt of the application should have sent the reference to the Chief Election Commissioner, who was competent to decide as to whether on the basis of allegations mentioned in the application, Respondents Nos. 2 and 3 have become disqualified, but Respondent No. 1 failed to perform his lawful duty. The learned counsel further argued that Article 69 of the Constitution of the Islamic Republic of Pakistan was not attracted in the instance case as the petitioner had not challenged the proceedings of assembly but invoked the jurisdiction of Deputy Speaker under Article 63(2), which he could exercise in absence of Speaker and as Speaker had also rendered himself disqualified by joining hands with Respondent No. 2, therefore; Deputy Speaker would take place of the Speaker for the purpose of forwarding reference to the Chief Election Commissioner.
On the other hand, the learned counsel for the Respondent No. 2 vehemently contended that the validity of proceedings in assembly could not be called in question in any Court as envisaged under Article 69 of the Constitution. He further contended that under Article 66(1) read with Article 127 of the Constitution any speech made or thing done by a member on the floor of assembly are immune from action in the Court, as such, petition is not maintainable. He further contended that the application of petitioner for making reference under Article 63(2) had already been rejected, as such; the petition has become infructuous. He further argued that before making reference to Chief Election Commissioner, the Speaker or for that matter Deputy Speaker has to see as to whether the allegations leveled in the application against a member would amount to disqualify such member and the arguments that he had to refer the matter to Chief Election Commissioner without going into merits of the allegations, would be against the spirit of law.
Learned counsel for the Respondent No. 3 in addition to above arguments contended that under Rule 114 of the Rules of Procedure and Conduct of Business, 1974 the Speaker was bound to forward the resolution passed by assembly to the concerned authorities/departments.
We have carefully considered the contentions put forth by the parties' learned counsel in the light of relevant provisions of law. Before dealing with the question as to whether Speaker or for that matter Deputy Speaker was bound under the law to forward the reference to Chief Election Commission without application of mind, we would like to first attend the legal objections raised in respect of maintainability of petition in the light of Articles 66 and 69 read with 127 of the Constitution.
Article 66 of the Constitution contemplates as under:--
"(1) Subject to the Constitution and to the rules of procedure of [Majlis-e-Shoora (Parliament)], there shall be freedom of speech in [Majis-e-Shoora (Parliament)] and no member shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in [Majlis-e-Shoora (Parliament)], and no person shall be so liable in respect of the publication by or under the authority of [Majlis-e-Shoora (Parliament)], of any report, paper, votes or proceedings."
From the very opening words of the Article it is crystal clear that freedom of speech in assembly is subject to the Constitution and rules of procedure. Article 68 of the Constitution provides that no discussion shall take place in Majlis-e-Shoora with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties, thus; no discussion could be made with respect to conduct of a Judge of Supreme Court or High Court in the discharge of his duties by referring to Article 66 because such privilege is qualified one subject to other provisions of Constitution including Articles 68 and 204 of the Constitution. Similarly; a member of Parliament or Provincial Assembly would render himself dis-qualified under Article 63(1)(g) to remain member as such; if he propagates any opinion or acts in any manner prejudicial to the Ideology of Pakistan or the sovereignty integrity or security of Pakistan or morality or the maintenance of Public Order or defames or brings into ridicule the judiciary or the Armed Forces of Pakistan notwithstanding anything contained in Article 66 or 69 of the Constitution. Of course, proceedings of an assembly are protected under Article 69 but to enjoy that immunity, such proceedings must fall wholly within the privileges of Assembly. It is certainly not the legal right or privilege of Assembly to out step its own competence and jurisdiction laid down by the Constitution. Therefore; a question relating to the title of a person to be a Member of the House or to continue to sit therein is not a question pertaining to the internal proceedings of the house, but a question affecting the Constitution of the House and not barred from inquiry by the Courts under Article 199. In this regard, we are fortified by the judgment reported in PLD 1970 SC 98, wherein it was observed as under:--
"In this view of the matter, while I am prepared to concede that all that fairly concerns the internal proceedings of the House relating to its proper business is immune from challenge in Courts, I am not in a position to agree that a question relating to the title of a person to be a Member of the House or to continue to sit therein is a question pertaining to the internal proceedings of the House. It is a question affecting the Constitution of the House and, therefore, it is not a question which can possibly be barred from enquiry by the Courts under Article 111 of the Constitution. This is not a matter which pertains either to the regulation of the procedure of the house or the conduct of its business or the maintenance of order in the Assembly or affecting any of its privilege. This is not a question, therefore, which, in my opinion, relates to the "internal proceedings" or an Assembly. Clause (1) of Article 111 bars the Courts only from enquiring into the validity of "proceedings in an Assembly" in the formal sense and nothing more.
In this connection I may also point out that the learned Attorney-General appearing in response to a notice issued to him under Order XLV, Rule 2 of the Supreme Court Rules, very frankly conceded that if total strangers or intruders, without any colour of right, had participated in the Assembly, that proceeding would not be a valid proceeding and the Courts would be entitled to question the validity of such a proceeding notwithstanding the provisions of Article 111. If this be so, then it is obvious that the bar created by Clause (1) of Article 111 notwithstanding the omission of the words "on the ground of any alleged irregularity of procedure", which occurred in Sections 41(1) and 87(1) of the Government of India Act, 1935, was not an absolute bar. The mere omission of these words does not indicate that the scope of the immunity has been enlarged. The words of Article 89(1) of the 1956 Constitution were to the same effect as the words of Article 111(1) of the Constitution of 1962, and they were considered in the case of Ahmed Saeed Kirmani, to have given immunity only in respect of matters falling fairly within the scope of the "internal proceedings" of the House relating to its proper business. If under those provisions the immunity was held to be confined only to internal proceedings, I see no reason to think that their scope has been widened in Article 111(1) of the 1962 Constitution."
"If a reference is submitted to him, he is not bound to forward/transmit the same, to the Chief Election Commissioner for decision forthwith. The Speaker has to apply his own mind judiciously to the allegations made in the reference, after fully taking into consideration the relevant provisions on the subject and then to decide as to whether "any question" in the nature of disqualification has "arisen" which may justify the making of reference to the Chief Election Commissioner."
In view of what have been discussed above, we are inclined to hold that on submission of application or reference it was for the Speaker and in case in hand for Deputy Speaker to judiciously determine as to whether a question as envisaged under Article 63(2) of the Constitution with regard to disqualification of Respondents Nos. 2 and 3 had arisen and reference should be forwarded to the Chief Election Commissioner which decision had already been taken by him by declining to forward the reference which decision could not be said to be without jurisdiction, as such; the petition being devoid of any merits is dismissed accordingly.
(Sh. Zulfiqar Ahmad) Petition dismissed.
PLJ 2007 Quetta 12 (DB)
Present: Akhtar Zaman Malghani & Ahmad Khan Lashari, JJ.
ABDUL GHAFOOR & 6 others--Petitioners
versus
B.I.S.E. QUETTA, through Chairman & 3 others--Respondents
Constitutional Petition No. 243 of 2004, decided on 29.12.2005.
(i) Board of Intermediate and Secondary Education Ordinance, 1977 (XI of 1977)-
-
----S. 20--Board of Intermediate & Secondary Education Service Regulation, 1991, Reglu. 11--Balochistan Servant (E&D) Rules, 1992, R. 16--Applicability of Civil Servants Act, 1974 to the employees of Board--Held: Neither Civil Servant Act, 1974 nor any other rules made there under except the rules mentioned in Regulation 11 are applicable to the employees of Board. [P. 16] A
(ii) Board of Intermediate & Secondary Education Ordinance, 1977 (XI of 1997)—
----Ss. 2(a), 6, 20 & 33(4)--Board of Intermediate & Secondary Education Services Regulations, 1991, Reglu. 11(c)--Constitution of Pakistan, 1973, Art. 199--Respondent brother of Provincial Minister of Education, working as Librarian in (BS-16) in Govt. Inter College was transferred and posted as Assistant Controller (B-17) in the Board, on deputation for three years--Notification was challenged by petitioners/employees of Board through Constitutional petition--Validity--Admittedly respondent was a Government employee and in order to transfer his services to the Board the authorities should have adhered to provisions of Ordinance, 1977 and regulation made thereunder but the perusal of impugned notification shows that the same was issued by Secretary Education--Approval for his deputation was granted by the Secretary S & GAD and not by the Government--Board was only competent to approve deputation of respondent and not the Secretary S&GAD--Undisputedly the Board (members of Board stated in detail) has not approved the deputation and only chairman who cannot be presumed to be the Board has recommended (not approved) for deputation nor any notification has been placed on record which could show that the Board has delegated its power to Chairman Board--Under Section 33(4) appointment can be made only for two years and not more than that whereas notification speaks about deputation for three years, as such on such score also notification so issued was illegal and without lawful authority--Notification declared to have been passed without lawful authority and of no legal effect in circumstances. [Pp. 16 & 17] B, C, D, E, F & H
Constitution of Pakistan, 1973—
----Art. 199--Aggrieved person--Petitioner challenged notification whereby respondent was transferred and posted in the Board of Intermediate Secondary Education Quetta as Assistant Controller--Petitioners who are employees of Board are not aggrieved persons--Contention of--Held: Petitioners were employees of Board and any illegal appointment made in the Board would certainly effect their rights and privileges--Petitioners were aggrieved persons with the meaning of Art. 199 of the Constitution--Objection taken in this regard was held to be without any substance.
[P. 17] G
Mr. W.N. Kohli, Advocate for Petitioners.
Mr. Khadim Hussain, Advocate and Mr. Sundar Dass, Advocate for Repsondent No. 1.
Mr. Amanullah Tareen, Assistant A.G. for Respondents Nos. 2 & 3.
Mr. Mehmood Khokhar, Advocate for Respondent No. 4.
Date of hearing : 8.12.2005.
Judgment
Akhtar Zaman Malghani, J.--The following reliefs have been claimed in the instant Constitutional Petition:--
"(a) That the order dated 29.4.2004 passed by Respondent No. 2 by transferring and posting the Respondent No. 4 as Assistant Controller (B-17) in Balochistan B.I.S.E Quetta on deputation initially for a period of three years is illegal unlawful and without jurisdiction and deserves to be declared as such.
(b) A further direction to the Respondents Nos. 1 to 3 to fill the post of Assistant Controller by promotion from the next lower grade on the basis of seniority cum merits without restriction of qualification in accordance with the Balochistan B.I.S.E Ordinance, 1977 and the B.I.S.E Employees Service Regulation, 1991.
(c) Any other relief which may please be deemed fit and proper in the circumstances of the case may also be awarded to the petitioners.
(d) Cost of the petition".
Briefly stated, facts of the case are that the petitioners are employees of Board of Intermediate and Secondary Education Balochistan, Quetta. It, is grievance of the petitioner that the Respondent No. 4 who was previously working as Librarian in B-16 in Government Inter College Muslim Bagh was transferred and posted as Assistant Controller B-17 in the Board on deputation for a period of 3 years against the provisions of BISE Ordinance, 1977 and BISE Employees Service Regulation 1991 as according to the relevant laws only Chairman, Secretary, Controller of Examination can be appointed in the BISE whereas for the remaining posts appointments are to be made in accordance with the provisions of Ordinance and Regulations made thereunder but in order to favour Respondent No. 1 who is brother of Provincial Minister for Education, his services were transferred to the Board in contravention of Ordinance and Regulations.
We have heard the learned counsel for the parties. It is vehemently contended by the learned counsel that the deputation of Respondent No. 4 and this appointment as Assistant Controller in the Board was illegal being contrary to Ordinance ad Regulations as the Board is autonomous body and rules of deputation applicable to Government Servant are not made applicable to the employees of Board. He further contended that the post of Assistant Controller was to be filled in from, the employees on the basis of seniority cum merit basis but on account of illegal appointment of Respondent No. 4 the petitioners have been deprived from their legal rights. According to him even the deputation was not made by the Government of Balochistan being Controlling Authority as is evident from the copy of summary produced in the Court which shows that the approval was given by Secretary S&GAD who has no concern with the Board or Board Employees and the powers exercised by him in the garb of Notification issued in respect of Government Employees were without jurisdiction and without lawful authority.
On the other hand, the learned counsel for the Respondent No. 4 vehemently contended that the petitioners are not aggrieved persons within the meaning of Article-199 of the Constitution of Pakistan, as such; they cannot maintain instant Constitutional petition because the post of Assistant Controller, according to the Service Regulations of the Board are to be filled in through promotion and initial appointment in proportion of 2/3rd and 1/3rd respectively. As far as promotion quota is concerned, that has been exhausted and remaining posts were to be filled in by initial recruitment. He further contended that the Government has power under Section 33(4) of BISE Ordinance, 1977 to appoint any person to the post of Assistant Controller/Assistant Secretary.
Learned counsel for the Respondent No. 1 supplementing arguments of the learned counsel for the Respondent No. 4 contended that under Section 33(4) of the BISE Ordinance, Controlling Authority is empowered to create posts or appoint the First Chairman, First Secretary, First Controller of Examination and any other officer whereas under Section 12 the Government is Controlling Authority of the Board, therefore, the Respondent No. 4 was rightly and legally posted as Assistant Controller.
The learned Assistant A.G contended that according to the Notification dated 17.10.2001 issued by the Government of Balochistan, Secretary S&GAD is empowered to approve deputation of any Government servant. He further stated that deputation of Respondent No. 4 was approved by Secretary, S&GAD who was competent authority in the matter, as such; no illegally has been committed for transfer of service of Respondent No. 4 to the Board and the petition being without merits is liable to be dismissed.
We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the relevant law, regulations of Board, Balochistan Establishment Manual copy whereof was placed on record by Deputy Secretary S&GAD. It may be seen that the Board was set up under BISE Ordinance-IX of 1977 and according to Section 3 the Board is a body corporate. Section 11 empowers the Board to appoint such officers are staff as it may consider necessary. Similarly under Section 12 of the Ordinance Government of Balochistan is Controlling Authority of the Board whereas Board has been empowered under Section 20 of the Ordinance to make any regulation subject to approval of Government of Balochistan. The Board under the power conferred upon it by virtue of Section 20 framed regulations called Board of Intermediate and Secondary Education Services Regulations, 1991 with the approval of Government. Perusal of Regulation 11 shows that the following rules as amended from time to time were made applicable mutatis mutandi to the employees of the Board:--
(i) The Balochistan Civil Servant (Efficiency and Discipline) Rules, 1983.
(ii) Revised Leave Rules for Civil Servants Balochistan Government, 1984.
(iii) Balochistan Government Servants (Conduct) Rules, 1979.
(iv) Government of Balochistan Pension Rules.
(v) Balochistan Civil Servant (Appeals) Rules, 1983.
It has been further stated in the said Regulation that any reference to the Secretary of the Government shall be construed to be reference to the Board. It may further be observed that the Balochistan Civil Servant (E&D) Rules, 1983 were repealed under Rule 16 of the Balochistan Civil Servant (E&D) Rules, 1992 which were not adopted or incorporated in the Regulations 1991 by the Board nor any approval of the Government was obtained in this behalf as provided by Section 20 of the Ordinance XI of 1977, therefore, the same could not be read as part and parcel of Regulations, 1991 by reference as already held by this Court in C.P. No. 52/2000 and we have been informed that the said judgment has been upheld by the Hon'ble Supreme Court by refusing to grant leave to appeal, therefore, it is evident that neither Civil Servant Act, 1974 nor any other rules made thereunder except the rules mentioned in Regulation 11 are applicable to the employees of Board. Admittedly Respondent No. 4 was a Government employee and in order to transfer his services to the Board the authorities should have adhered to the provisions of Ordinance, 1977 and regulations made thereunder but the perusal of impugned Notification shows that the same was issued by the Secretary Education which reads as under:--
"NO. SO (Academic) 5-1/2002 4594-99/-with the approval of the competent authority, Mr. Abdul Qahir, Librarian (B-16), Government Inter College, Muslim bagh is hereby transferred and posted as Assistant Controller (B-17) in Balochistan Intermediate and Secondary Education, Quetta on deputation basis initially for a period of three years.
The terms and condition of his deputation will be stated later on."
"Notwithstanding anything contrary in the Ordinance the Controlling Authority may create posts or may appoint the first Chairman, the first Secretary, the first Controller of Examinations and any other officer for a period not exceeding two years".
It is abundantly clear from the above reproduced provisions even if it is presumed that the same are applicable such posting/appointment can be made only for two years and not more than that, whereas undisputedly the Notification speaks about deputation for three years, as such; on this score also Notification so issued was illegal and without lawful authority.
As regards objection of the learned counsel with regard to maintainability of petition on the ground that the petitioners are not aggrieved persons, it may be seen that the petitioners are employees of Board and any illegal appointment made in the Board would certainly effect their rights and privileges which is also evident from the reply of Respondent No. 1 dated 23.11.2005 wherein it has been stated that the cases of promotion of three petitioners namely Abdul Ghafoor, Mehran Khan and Jan Muhammad Senior superintendents to Assistant Controller have been recommended by Appointment Committee according to seniority cum fitness against the vacant posts and Notification to this effect will be shortly issued which shows that the stand taken in the para wise comments that all the vacancies of promotion quota have been filled in is not correct and at the time of filing of this petition there were certain vacancies available to be filled in from promotion quota, as such; petitioners are aggrieved persons within the meaning of Article 199 of the Constitution of Pakistan and objection taken in this regard is without any substance.
For the fore going reasons we are inclined to declare Notification dated 19.4.2004 to have been issued without lawful authority and of no legal effect. Parties are left to bear their own costs.
(Rafaqat Ali Sohal) Order accordingly.
PLJ 2007 Quetta 18 (DB)
Present: Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, Sheikh ABDUL SATTAR LASI--Petitioner
versus
SUPERINTENDENT DISTT. JAIL QUETTA and another--Respondents
C.P. No. 490 of 2006, decided on 4.10.2006.
(i) Prisoners Act, 1900--
----S. 3--Incharge of prison--Duties of--Incharge of prison has to receive and detain all persons duly committed to his custody by any Court until such person is discharged or removed in due course of law.
[P. 22] A
(ii) Prisoners Act, 1900--
----S. 4--Duties of officer incharge of prison--Discharged from custody--Liability--Held: Officer incharge is bound to return the orders to concerned Court--When it has been duly executed together with certificate of such execution, showing also where necessary, why the person committed thereby has been discharged from custody before execution. [P. 22] B
(iii) Prisoners Act, 1900--
----Ss. 17 & 4--Remission in history ticket of prisoner--Duties of officer incharge of prison--Validity of wrong entry--Disposal of prisoner--Legality--Where officer incharge doubts the legality of a warrant or order, he has to refer the matter to Provincial Govt. as to further disposal of the prisoner. Held: Superintendent Jail cannot enter any remission in the history ticket of a prisoner on his own or on the direction of any incompetent authority--Any wrong entry would not create any valid legal right in favour of prisoner. [P. 22] C
(iv) General Clauses Act, 1897 (X of 1897)--
----S. 21--Principle of Locus Poenitentiae--Applicability--Held: Principle of locus poenitentiae is not available to the Govt. or authority once decisive steps are taken and vested rights have been created in favour of a particular individual or class of persons but where the initial order had been made by an incompetent person or the very order is illegal then such principle is always available irrespective of the fact that vested right created or not. [Pp. 22 & 23] D
(v) Criminal Procedure Code, 1898 (V of 1898)--
----S. 401--Remission of sentence--Deletion by Supreme Court--Validity--Petitioner was granted remission of specified days by Government before recording of his conviction by NAB Court--Entitlement--Held: Petitioner was not legally entitled to the remissions which were illegally entered in his history ticket, such remissions could be omitted/deleted at any time before his releasing--No question of withdrawal arises but it is a case of rectification--Petition was dismissed. [Pp. 25 & 26] E, F & G
PLD 1964 SC 503; PLD 1963 Dacca 422; PLD 2005 SC 163; 2000 SCMR 908; PLJ 1999 SC 2331; PLD 1969 SC 407; PLD 1992 SC 207; 1999 CLC 1883; PLD 2003 Q. 1 & 1997 MLD 3142, ref.
M/s Muhammad Aslam Chishti & Mr. Talat Waheed, Advocates for Petitioner.
Mr. Salahuddin Mengal, A.G for Respondents.
Date of hearing: 23.8.2006.
Judgment
Akhtar Zaman Malghani, J.--The following reliefs have been claimed in the instant Constitutional Petition:--
"I. Declare that deletion of remissions for 1661 days = 04 years 07 months 11 days, earned during under trial period (from arrest on 29.05.2000 till conviction on 26.07.2001) intimate vide reply Annexure "0-4" dated 01.03.2006 was without lawful authority and of no legal effect and same be set aside.
II. Appropriate directions both mandatory and prohibitory, be made to respondents to give effect to above declaration and to count the remissions of under trial period (1661 days = 04 years 07 months 11 days) towards petitioner's imprisonment and to release petitioner forthwith, if not required in any other case".
Briefly stated, facts of the case are that the petitioner was tried and convicted by the Accountability Court No. 1 under Section 10 of the National Accountability Bureau Ordinance, 1999 vide judgment dated 26.07.2001 and sentenced to twelve years R.I with fine of rupees twenty five crore, in default to further undergo four years R.I. Appeal filed by him before this Court was dismissed on 16.12.2003, against which judgment he filed petition for leave to appeal Being No. 14 of 2004 before the Hon'ble Apex Court which was not pressed on merits but reduction of sentence was sought. By order dated 18.03.2005 the Hon'ble Supreme Court of Pakistan reduced the substantive sentence from twelve years to ten years, whereas; quantum of fine was maintained, however; imprisonment in default was reduced to three years. At the time of conviction of the petitioner 1661 days remissions were incorporated in his history ticket which were granted by the Government, Federal as well as Provincial, and Jail Authorities prior to date of his conviction. It appears from the record that after pronouncement of judgment by the Hon'ble Supreme Court in the case Haji Abdul Ali vs. Haji Bismillah and three others reported in PLD 2005 SC 163 the above said remissions were deleted from history ticket of the petitioner, hence this petition.
We have heard the learned counsel for the petitioner as well as learned Advocate General. The learned counsel for the petitioner contended that the judgment pronounced by the Hon'ble Supreme Court could not be implemented with retrospective effect as remissions granted to the petitioner and entered in his history ticket have become past and closed transaction. In support of his contentions, he referred to the judgment of Lahore High Court rendered in Writ Petition No. 18205 of 2005. He further contended that once remissions were included in history ticket and acted upon, the same became vested right and Respondent No. 1 could not retrace steps on principle of locus poenitentiae. The learned counsel in support of his arguments placed reliance on the judgments reported in 1997 SCMR 15, PLD 1991 Supreme Court 973 and PLD 2002 Supreme Court 1079.
On the other hand, the learned Advocate General contended that principle of locus poenitentiae is available to the authority despite decisive steps. In case the very order is illegal no right vests in a person to take benefit of illegal order. He further contented that this Court is bound to follow the judgment of Division Bench pronounced in the case of Abdul Ali, because according to him, the facts and circumstances of Bhattacharya's case are distinguishable and could not be made applicable to the facts and circumstances of the instant case. In support of his arguments, he referred to the judgments reported in PLD 2005 Supreme Court 163 and 2000 SCMR 908.
We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the judgments referred to by them. After having gone through the judgment delivered by Hon'ble Full Bench of Lahore High Court and the judgments referred to in the said judgment, we with all respect in our command and due deference, were unable to agree with the proposition dealt with in the said judgment for the following reasons.
While declaring order of withdrawal of remission illegal reliance was place on the judgment reported in PLD 1963 Dacca 422 and affirmed in the judgment reported in PLD 1964 Supreme Court 503. Perusal of said judgment would show that the facts and circumstances of that case were altogether different. In that case remission was granted specifically to Lieutenant Colonel Bhattacharya by the Provincial Government by communicating said remission to the concerned Superintendent Jail, who on receiving said order duly entered the said remission in his ticket of history but later on said remission was withdrawn by the Provincial Government and during arguments the Government initially came up with the plea that the said order was result of misconception as the Provincial Government only wanted to communicate order of President, whereby; four years remission was granted to Bhattacharya by the President and afterwards with the plea that the Provincial Government has and had no power under Section 401 Cr.P.C to grant any remission with regard to a sentence passed by Special Military Court by virtue of the President's Order 26 of 1962 as also because of various Martial Law Regulations. The Hon'ble Judges after dilating upon the arguments so advanced concluded that the Provincial Government was empowered to grant remission under Section 401 Cr.P.C even to the persons convicted and sentenced by Special Military Court and Order 26 of 1962 or other Martial Law Regulations did not put any embargo on the powers of Provincial Government conferred upon it by virtue of Section 401 Cr.P.C. They also dealt with the plea of mistake and came to the conclusion that such plea was not legally available to the Provincial Government. After declaring the remission granted by Provincial Government valid, withdrawal of same was declared illegal. Interestingly the proposition in hand was also dealt with in the said judgment in following words:--
"In fact, as we have already stated above, in all the cases where mistake has operated to avoid a contract the ground upon which such avoidance has been effected was, in reality, something other than what is popularly understood as mistake. But apart from the law of contract the doctrine of mistake, whenever available as a defence, is restricted only to one point, namely, where it can be shown that the order made or the act done was, in fact, never made or done. For instance, suppose that the Provincial Government in the exercise of its powers under the said Section 401, while considering the sentence of six months passed on A and B, had decided to remit the whole of the sentence passed on A only and had recorded an order to that effect, withouts granting any remission as a one suppose again, that, through inadvertence, while communicating the order it was stated that B had been granted such a remission, any claim by B that he was entitled to be released could be resisted on the ground that, in fact, no remission was granted to B and that the remission was actually granted to A. There was a mistake in communicating the order as passed. Such a defence could be set up against B on the ground that, in reality, no order was made in favour of B."
(Emphasis have been provided)
"It may be observed that Section 20 of the West Pakistan General Clauses Act (corresponding section in General Clauses Act 1897 is Section 21) lays down where by any West Pakistan Act or Regulation a power to issue notifications, orders, rules, schemes, form or bye-law is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, convert or rescind any notifications, orders, rules, or bye-laws so issued. Similar to the power contained under the above provisions of the Act, under the principle of locus poenitentiae, the authority concerned has the power of receding its order till a decisive step is taken. In this regard reference may be made to the case of Pakistan, through the Secretary, Ministry of Finance versus Muhammad Himayatullah Farukhi (PLD 1969 SC 407) in which the following observation has been made in respect of the above principle:
"There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
Reference may also be made to the case of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another versus Jalaluddin (PLD 1992 SC 207), in which this Court had commented upon the above principle as under:--
"The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under Section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order."
In our view, the principle of locus poenitentiae is not attracted to the present case inter alia for the reasons, firstly, the appellants were not the authority which had approved Respondent No. 5's building plan in violation of the above provisions of the Order and the Regulations. Secondly, since the above approval was in contravention of the provisions of law, the above illegal action/order cannot be treated as irrevocable or past and closed transaction. It may also be stated that as the order of approval of the plan is illegal, perpetual rights cannot be gained on the basis of the same.
Likewise in the judgment reported in 2000 SCMR 907 the above view was affirmed by the Hon'ble Apex Court in following words:--
"It was held that under Section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. It was further observed that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an Illegal order."
Similarly; in the judgment reported in 1999 CLC 1883 it was observed as under:--
"If, however, due to any fallacy of facts, misrepresentation or misreading of any document or due to any other vitiating factor, a wrong or unwarranted order was passed, the same could be corrected by the same authority which passed the previous order, or by upper hierarchy under the same law in view of Section 21 of the General Clauses Act, 1897 (Act No.X of 1897), which reads as under:--
"Power to make, the include power to add to amend, vary or rescind orders, Rules or bye-laws.--Where by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
and, in this way, any wrong or mischief can be undone by the same authority. "
As already observed, petitioner was not legally entitled to the remissions, which were granted prior to the date of recording his conviction and were illegally entered in his history ticket, as such; could be omitted/deleted at any time before his release in the light of law annunciated in the above referred judgments as before returning the warrant the Superintendent Jail is under legal duty by virtue of Section 4 of the Prisoners Act, 1900 to certify that the warrant or writ has been duly executed including the reasons where the prisoner has been discharged before execution thereof and obviously such certificate could, only be issued at the time of release of prisoner and not before that and what would happen if at that time officer-in-charge notices same discrepancy in calculation of sentence, answer certainly would be that he can competently rectify such mistake and the prisoner cannot claim any vested legal right on account of any such wrong and illegal entry. In such event no question of withdrawal of remission arises but it is a case of rectification. In Bhattacharya's case the remission was specifically and legally granted to him, which was withdrawn by the Provincial Government on the ground not legally sustainable, whereas; the facts of the instant case are distinguishable as the remissions were neither specifically granted to the petitioner nor he was legally entitled to it. If the dictum laid down in Bhattacharya's case is made applicable to the petitioner's case, then it would also be equally applicable in the case of Abdul Ali, who was found not entitled to the remissions granted during the period when he was under trial prisoner and recorded in his history ticket by the Hon'ble Supreme Court in the judgment reported in PLD 2005 Supreme Court 163.
It may also be noticed that Hon'ble Supreme Court of Pakistan in the above quoted judgment affirmed the view taken by this Court in Abdul Ali case (PLD 2003 Quetta 1) and we are bound to follow the said division bench judgment unless same is reversed by a larger bench of this Court as held by this Court in the judgment reported in 1997 MLD 3142 in the following words:--
"We afraid, both the suggestions are not acceptable, because, it is a long standing practice that if a Division Bench has given a judgment on particular question of law, another Division Bench of same High Court, while hearing identical matter in exercise of jurisdiction under Article 199 of the Constitution, is bound to follow the earlier judgment of Division Bench, unless, some new point is not agitated or more convincing arguments with support of fresh material including legal provisions etc are not advanced. As for as following judgment of another High Court on same question of law, is concerned, there is no prohibition, except with the condition that if the judgment has more convincing reasons, based on such legal proposition, legal provisions, material, etc., which was not before the Bench of other High Court, who had already decided identical matter."
In view of what have been discussed above, in our considered view, the petitioner was not legally entitled to the remissions granted by the President and Provincial Government before recording of his conviction and were rightly omitted/deleted from his history ticket, as such; we find no merits in the instant petition which is dismissed accordingly.
(J.R.) Petition dismissed.
PLJ 2007 Quetta 26 (DB)
Present: Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, J.
AGHA SHAHID HASSAN BUGTI--Petitioner
versus
FEDERATION OF PAKISTAN through MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN, CIVIL SECRETARIAT, ISLAMABAD and 4 others--Respondents
C.P. No. 563 of 2006, decided on 13.11.2006.
(i) Anti Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 11-B & 11-E--Freezing of account--Validity--Bank accounts of petitioner were neither forfeited by A.T.C. nor he was tried or convicted by such Court--Notification--Exercising the power u/S. 11-E of Anti-Terrorism Act, 1997--Assailed--Held: Competent Authority has been authorized under S. 11-E to freeze the accounts proscribed organizations and not of individuals who suspected to be affiliated or associated with organization--Notification set aside. [P. 29] A & B
(ii) Anti Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 11-B & 11-E--Words, "reasons to believe"--Connotation of Held: The term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. [P. 30] C
(iii) Constitution of Pakistan, 1973--
----Art. 23--Right to acquire, hold and dispose of property by citizen of Pakistan has been protected which could not be taken away or curtailed on mere presumption. [P. 30] D
Mr. Amanullah Kanrani, Advocate for Petitioner.
Ch. Mumtaz Yousaf, Standing Counsel.
Syed Pervaiz Akhtar, Advocate for Respondents.
Mr. H. Shakil Ahmed, Advocate Respondent No. 3.
Date of hearing: 3.10.2006.
Order
Akhtar Zaman Malghani, J.--The petitioner has challenged validity of office memorandum dated 15th July, 2006 issued by Ministry of Interior, Government of Pakistan and notification dated 17th July, 2006 of Ministry of Finance, whereby; bank accounts of the petitioner were freezed.
Briefly stated, facts of the case are that at the petitioner who is sitting Senator was maintaining two accounts i.e. 096084 (PLS) and 50026-8 with Respondents No. 4 and 5 respectively. On 22.07.2006 he presented two cheques amounting to Rs. 20,000/- and Rs. 1,00,000 to Respondents No. 4 & 5 for encashment which were returned with the remarks "Accounts freezed by a competent Authority". According to the petitioner action of freezing his accounts was illegal and without lawful authority as there was no material available with the competent authority to show that the petitioner was member of proscribed organization or was associated with it in any manner.
We have heard the learned counsel for the petitioner, Standing counsel and counsel for respondents Banks. Learned counsel for the petitioner vehemently contended that the allegations of respondents being member of proscribed organization Balochistan Liberation Army (BLA) are based on no evidence, therefore; his accounts could not have been freezed by exercising powers under Anti Terrorism Act, 1997. He next contended that the petitioner is sitting member of Senate of Pakistan and could not be imagined that he would be associated with a proscribed organization. It was next argued by the learned counsel that the respondents could not deprive the petitioner of his lawful and legitimate money in violation of Articles 18, 23 and 24 of the Constitution, as such; impugned, notifications are liable to be declared, as unlawful.
On the other hand, the learned Standing counsel vehemently contended that the accounts of petitioner were freezed under the provisions of Anti Terrorism Act, 1997 which empower the Government to freeze accounts of any organization or person who is affiliated/associated with the proscribed organization, having reasons to believe that the petitioner was affiliated/associated with BLA which was declared proscribed organization. In support of his arguments he referred to the parawise comments submitted by Respondent No. 1.
Learned counsel for respondents banks argued that under the law they were bound to follow instructions issued by State Bank of Pakistan.
"I am directed to the above subject and to say that under the Ministry of Interior's SRO No.F.7/26/2001-Poll.1(3) dated 17th April, 2006 and O.M No. 7/26/2001-Poll. 1. 1(3) dated 15.07.2006 (copies enclosed), the Balochistan Liberation Army (BLA) has been proscribed as an entity involved in terrorism under Anti Terrorism Act, 1997 sub-section (1) of Section 11-B read with Section 11-E and Section 11-H of the Anti Terrorism Act, 1997 (XXXVII of 1997-as amended) provides the powers to the State Banks of Pakistan or any other Federal or Provincial authority authorized in this regard to freeze the Accounts of proscribed organizations. The individuals list enclosed, received from the Ministry of Interior are affiliated/associated with the Balochistan Liberation Army (BLA).
Sd/-
(Syed Abdur Rashim Shah)
Section Officer.
Aforesaid notification was issued in pursuance to direction contained in office memorandum dated 15th July, 2006 issued by Ministry of Interior requesting Ministry of Finance to ask State Bank of Pakistan or any other Federal or Provincial authority duly authorized to exercise power conferred by sub-section (1) of Section 11B r/w Section 11E and Section 11H under the Anti Terrorism Act, 1997 (as amended). Section 11B of the Anti Terrorism Act, 1997 enables the Federal Government to proscribe certain organizations upon reasons to believe that they were involved in terrorism, whereas; Section 11-E empowers to seal office and freeze accounts, if any, of proscribed organization and Section 11H makes it an offence punishable under Section 11-N for any person who invites another to provide money or other property and intends that it should be or has reasonable cause to suspect that it may be used for the purpose of terrorism or receives money or property and intends that it should be used or has reasonable cause to suspect that it may be used for the purpose of terrorism. Similarly; a person commits an offence within the meaning of sub-section (3) of Section 11 who provides money or the property and knows or has reasonable cause to suspect that it will or may be used for the purpose of terrorism. Upon conviction under the aforementioned offences the Anti Terrorism Court has been conferred under Section 11Q with the power to forfeit any money or other property which, at the time of offence, he had in his possessions or control. Thus, under the scheme of law as narrated above the Federal Government or competent authority has been authorized under Section 11E to freeze the accounts of proscribed organization and not of individuals who suspected to be affiliated or associated with such proscribed organization. For individuals separate procedure has been laid down in Sections 11-O and 11-Q, wherein; only Anti Terrorism Court has been authorized to forfeit the money or other property of individuals upon their conviction under Section 11-H of the Act. Admittedly; in the instant case bank accounts of the petitioner were not forfeited by the Anti Terrorism Court nor he was tried or convicted by the Court but under the impugned notification issued by Ministry of Finance on the request of interior Ministry by exercising the powers purportedly under Section 11-E of the Act, 1997, which as already observed does not confer powers on the Federal Government or any other authority to freeze account of an individual. Similarly; name of the petitioner has been included in the list of individuals affiliated/ associated with proscribed organization BLA through office memorandum issued by Ministry of Interior on 15th July, 2006 which reads as under:--
"The undersigned is directed to refer to Ministry of Finance, Government of Pakistan, Islamabad U.O No. 212-AFS(EF&P)/2006 dated 01.7.2006 on the subject cited above and to say that the Federal Government has proscribed the BALOCHISTAN LIBERATION ARMY (BLA) vide this Ministry's Notification No. 7/26/2001-Poll. 1(3) dated 7th April, 2006 as an entity involved in terrorism. We have reasons to believe that the individuals listed in the Annexure are affiliated/associated with BALOCHISTAN LIBERATION ARMY (BLA).
Sd/-
(MUHAMMAD NASIR)
Section Officer
It is evident from the above reproduced notification that it was issued by the Ministry as they have reasons to believe that the petitioner and other individuals mentioned in the list were affiliated/associated with the proscribed organization. Probably the words "reasons to believe" have been borrowed from Section 11-B which provides that an organization is proscribed if the Federal Government, having reasons to believe that an organization is concerned in terrorism, by order, lists it in the First Schedule. "Belief" being a conviction of the mind arising not from the actual person or knowledge but by way of inference of evidence received or information derived from others. It falls short of an "absolute" certainty (PLD 1952 FC 19 referred), therefore; the term "reasons to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in "reasons to believe" as observed by the Hon'ble Apex Court in the judgment reported in PLJ 1995 SC 396. Right to acquire, hold and dispose of property has been protected under Article 23 of the Constitution of Islamic Republic of Pakistan which could not be taken away or curtailed on mere presumption. No material was placed before us or appended with the rejoinder to the petition from which it could be inferred that the petitioner was in any manner associated/affiliated with the proscribed organization. He is sitting member of Senate elected on the seat of a political party, otherwise; he would have been disqualified to be member of Senate being affiliated/associated with a proscribed organization. But so far no action has been taken against him under Section 11-F Anti Terrorism Act, 1997 which provides punishment for a person who belongs or professes to belong to a proscribed organization, therefore; it is hard to believe that he was associated/affiliated with the proscribed organization BLA, as such; the impugned notifications to the extent of petitioner are not sustainable in the eyes of law.
For the foregoing reasons, we are inclined to allow this petition and declare that directions of Respondents No. 1 to 3 to freeze accounts of the petitioner are without lawful authority and of no legal effect. Accordingly; Respondents No. 4 & 5 are directed to honour the cheques and make payment.
Petition is disposed of accordingly.
(J.R.) Petition disposed of.
PLJ 2007 Quetta 31 (DB)
Present: Amanullah Khan Yasinzai, C.J.and Akhtar Zaman Malghani, J.
MUNIR AHMAD & others--Petitioners
versus
MINISTER FOR HOME & TRIBAL AFFAIRS GOVT. OF BALOCHISTAN, QUETTA and 3 others--Respondents
C.P. No. 336 of 2005 and C.P. No. 309 of 2006, decided 7.3.2007.
Constitution of Pakistan, 1973--
----Art. 199--Service matter--Constitutional Petitions--Question of facts and law--Appointment as Risaldar Levies--Recommendation--No appointment orders were issued--Assailed--Contentions--Recommendations of selection committee for other districts were given due weight and appointments were made accordingly--Legality--No reasons for rejection of recommendations--Selection committee was neither biased nor committed any irregularity in the process--No reasons have been assigned for withholding appointments of petitioners which act on the part of competent authority was arbitrary and discriminatory and could not be approved--Appointments of the petitioners were not withheld due to some irregularity but on political consideration as it is evident from summary prepared for the approval of C.M. who also failed to give reasons for directing to reconduct test and interviews only to the extent of District "C"--Respondents were directed to issue appointment letters to petitioners. [P. 34] A, B & C
M/s. Raja Amir Abbas & Syed Abuzar, Advocates for Petitioners (in C.P. No. 336 of 2005).
Mr. Salahuddin Mengal, AG for Respondents (in C.P. No. 336 of 2005).
Mr. Mohsin Javed, Advocate for Petitioner (in C.P. No. 309 of 2006).
Mr. Salahuddin Mengal, AG for Respondents (in C.P. No. 309 of 2006).
Date of hearing: 26.12.2006.
Judgment
Akhtar Zaman Malghani, J.--By this common judgment we intend to dispose of Constitutional Petition No. 336 of 2005 and Constitutional Petition No. 309 of 2006 as identical questions of fact and law are involved in both these petitions.
" It is therefore respectfully prayed that this Hon'ble Court may be pleased to declare that the direction issued by Minister Home and Tribal Affairs, Government of Balochistan, Quetta (Respondent No. 1) by means of letter dated 16.2.2005 regarding re-test/interview of the petitioners as null and void and further this Hon'ble Court may direct the concerned authorities to issue appointments letters to the petitioners as per recommendation made by Selection Committee concerned.
Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be awarded".
"It is therefore respectfully prayed in view of submissions made herein above, the recommendation/selection already made by the Provincial Selection Committee may kindly be declared as null and void and of no legal effect and consequence as well as in clear violation or recruitment rules etc; with further direction to official respondents to fill up the vacancies for district Chagai at Dalbandin afresh as well as on merits in accordance with law after re-advertising/conducting test and interviews.
Any other relief which this Hon'ble Court may deem fit and proper may also be awarded".
We have heard learned counsel for the petitioners as well as learned Assistant Advocate General. The learned counsel for the petitioners Munir Ahmed and another vehemently contended that the petitioners were recommended by the legally constituted committee for appointment but Respondent No. 1 with malafide intention and in order to accommodate his favorite ones illegally stopped process of recruitment and directed for fresh test and interviews, who had no authority under Balochistan Civil Servants (Appointment, Promotion and Transfers) Rules, 1979 to issue such directions. He further contended that even Chief Minister without lawful excuse could not brush aside the recommendation of selection committee. According to the learned counsel for the petitioners the selection committee besides selecting candidates from Chagai District also selected candidates for appointment from other districts which recommendations were approved by the competent authority and the candidates so selected were accordingly appointed but in respect of candidates of district Chagai discrimination was made and their appointment was withheld.
On the other hand, the learned counsel for petitioner Salah-Ud-Din vehemently contended that after bifurcation of District Chagai into two districts fresh advertisement was required to be made in respect of newly created District inviting applications from the suitable candidates.
The learned Assistant Advocate General vehemently contended that the recommendations were sent to the Chief Minister, who directed for fresh test and interviews of the candidates of District Chagai after observing irregularity in the appointments of levies posts.
We have carefully considered the contentions put forth by the parties' learned counsel. It may be noted that through advertisement dated 12.05.2003 applications for appointment on different posts of levies department lying vacant in different districts were invited, pursuant to which petitioners Munir Ahmed and Attaullah applied for the posts of Risaldar Levies and Levies Sepoy respectively from Chagai District. Meanwhile Chagai District was bifurcated into two districts i.e. Chagai and Nushki. The selection committee constituted by the Government of Balochistan vide Notification No. SO(TA)6-8/2003/330-1466 dated 12.08.2004 after conducting test and interviews recommended name of petitioner Munir Ahmed for the post of Risaldar Levies and Attaullah for the post of Levies Sepoy. It may further be noted that the selection committee was for the whole province and besides recommending names of petitioners Munir Ahmed and Attaullah, they also recommended various candidates for appointment but surprisingly only appointments in respect of Chagai Districts were withheld, whereas; recommendations of the selection committee for other districts were given due weight and appointments were made accordingly, therefore; it could not be said that the selection committee was biased or they committed any irregularity in the process, otherwise the government would have not accepted the recommendations of such committee in respect of other districts. No reasons have been assigned for withholding appointments of petitioners which act on the part of competent authority is arbitrary and discriminatory and could not be approved. We are conscious of the fact that recommendations of the selection committee are not binding upon the appointing authority, however; while rejecting such recommendations there must be some reasons for rejection as discretion vested in the competent authority is to be exercised judiciously with full application of mind and not in arbitrary manner, otherwise; spirit behind the rules that the candidates should be selected through selection committee in order to maintain transparency in the process would be defeated and the appointing authority would go on rejecting the recommendations of the selection committee until desirous candidates are recommended. Under Balochistan Civil Servants (Appointment, Promotion and Transfers) Rules, 1979 appointments are to be made on the recommendation of departmental selection committee or Public Service Commission and not on political consideration but the letter written by Respondent No. 1 to Respondent No. 3 clearly shows that the appointments of the petitioners were not withheld due to some irregularities but on political consideration which fact is also supported by contents of Para No. 5 of the summary prepared for the approval of Chief Minister, which is reproduced herein below:--
"There have been many difficulties in finalizing the recommendations as it was difficult to please and satisfy every one. There was also the question of allocating posts on the basis of tribal population in a district. I believe that selection committees have tried to keep the tribal strength in view while recommending candidates for recruitment. In the meanwhile, the Director General, Balochistan Levies force, was told to hold back issuance of appointment orders. This order was communicated to him in pursuance of the orders of the Minister for Home and Tribal Affairs Department".
Similarly Worthy Chief Minister also failed to give reasons for directing to re-conduct test and interviews only to the extent of Chagai district.
In view of what have been discussed above, we are inclined to hold that the direction with regard to re-test and interviews was without lawfully authority and of no legal effect, consequently the respondents are directed to issue appointment letters to petitioners Munir Ahmed and Attaullah accordingly. Resultantly; Constitutional Petition No. 309 of 2006 having no merits is dismissed in limine accordingly.
(M.A.) Order accordingly.
PLJ 2007 Quetta 35 (DB)
Present: Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, J.
MIR KHALID LANGOV--Petitioner
versus
SECRETARY MINISTRY OF INTERIOR GOVT. OF PAKISTAN, ISLAMABAD--Respondent
C.P. No. 479 of 2006, decided on 27.11.2006.
(i) Exit from Pakistan (Control) Ordinance, 1981--
----S. 2(3)--Constitution of Pakistan, 1973, Art. 199--Exit Control List--Placement of name--Notification--Assailed--Maintainability--Liberty of a citizen--Curtailed--Federal Government was obliged--Intention of exercising power u/S. 2(3) of Ordinance 1981--Notification was silent--Documents consisting of a note with heading of "brief" and copies of three F.I.Rs.--Held: `Brief' was without any signatures of the person who had issued it and on what basis; and FIRs were registered after the impugned notification--Validity--Notification could not be adjudged on the touchstone of events which were non existent at the time of issuance of notification--Such unauthenticated information was not sufficient to curtail liberty and free movement of petitioner guaranteed by the Constitution.
[Pp. 37 & 38] A, B & C
(ii) Constitution of Pakistan, 1973--
----Art. 199--Exit from Pakistan (Control) Ordinance, 1981, S. 2(3)--Alternate remedy of review--Reason for placing name--Non-disclosed--Maintainability--Constitutional petition was maintainable without resorting to the remedy available under the Ordinance 1981 as on account of non-mention of grounds in the impugned notification--Right of review could not be exercised, was correct. [P. 38] D
Exit Control List--
----Notification--Assailed--Validity--Notification was declared as bad in law invalid and without lawful authority--Petition was accepted.
[P. 38] E
PLD 1999 Lahore 459, rel.
PLD 2003 Kar. 705; PLD 1997 Lah. 61 and 2003 CLC 246, ref.
Mr. Muhammad Wasey Tareen, Advocate for Petitioner.
Mr. Mumtaz Yousaf, Standing Counsel for Respondent.
Date of hearing: 10.10.2006.
Judgment
Akhtar Zaman Malghani, J.--The petitioner has challenged, validity of notification dated 8th June, 2006 whereby; his name was placed on the Exit Control List by invoking constitutional jurisdiction of this Court with following relief:--
"It is, therefore; respectfully prayed that keeping into consideration the facts and circumstances, the impugned notification dated 8th June, 2006 passed by respondent may kindly be set aside and the placement of the name of petitioner in ECL, may kindly be removed, in the interest of justice".
We have heard the learned counsel for the petitioner who vehemently argued that in the impugned notification no reasons have been mentioned for placing name of the petitioner on Exit Control List. He further contended that the petitioner is a law abiding citizen of Pakistan and his liberty could not be curtailed without justification, lacking in the instant case. The learned counsel next argued that the impugned notification was issued without affording opportunity of hearing to the petitioner. According to him the Constitutional petition was maintainable without resorting to the remedy available under the Exit from Pakistan (Control) Ordinance, 1981 as on account of non-mention of grounds in the impugned notification right of review could not be exercised. In support of his contentions the learned counsel referred to the judgments reported in PLD 1999 Lahore 59, PLD 2003 Karachi 705, PLD 1997 Lahore 61 and 2003 CLC 246.
On the other hand, the learned standing Counsel vehemently contended that it was not necessary for the Government to have specified the grounds on which order was made as it would not have been in the public interest. He further contended that the petition without availing remedy of review under the relevant law was not maintainable.
We have carefully considered the contentions put forth by the parties' learned counsel. Before dilating upon the respective contentions we find it appropriate to reproduce the impugned notification which reads as under:
"It has been decided to place the name of Mr. Khalid Lango s/o of Abdul Khaliq Lango, r/o Railway Housing Society, Joint Road, Quetta, on Exit Control List under Section 2 of Exit from Pakistan (Control) Ordinance, 1981.
Sd/-
(Maqsood Ahmed)
Section Officer
It is evident from the said notification that no reasons whatsoever have been mentioned in the said notification for placing name of the petitioner on Exit Control List. Though; under sub-section (3) of Section 2 it is not necessary for the Federal Government to specify grounds, if it will not be in the public interest, yet as liberty of a citizen guaranteed, by the Constitution is being curtailed, the Federal Government is under legal obligation to have at least shown the basis of its intention of exercising power under sub-section (3) of Section 2 of Ordinance, 1981 but the impugned notification is silent about such reasons. Similarly the Federal Government on demand of Court is legally bound to place on record the material which prompted it to place name on Exit Control List in order to satisfy conscious of the Court and to show that such exercise was not a colourful one. In the instant case on our demand Standing Counsel placed on record documents consisting of a note with heading of "Brief" and copies of three FIRs. The "Brief" about which privilege has been claimed, is without any signature and it is not ascertainable from it as to who had issued it and on what basis. No other material, was placed before us in support of allegations made in the said "Brief", therefore; in our considered view such unauthenticated information/report is not sufficient to curtail liberty and free movement of petitioner guaranteed by the Constitution which is supreme law of the country. As regards FIRs registered against the petitioner, suffice to observe that impugned notification was issued on 8th June, 2006, whereas; FIR Nos. 107/06 of P.S Sariab, 183/06 of P.S Civil Line and 221/06 of P.S Saddar were registered on 30.08.2006 and 29.08.2006, therefore; validity of notification could not be adjudged on the touchstone of events which were non-existent at the time of issuance of notification.
Adverting to the contention of the learned Standing Counsel regarding non-maintainability of petition without availing remedy of review available under Section 3 of the Exit from Pakistan (Control) Ordinance, 1981, it may be observed that reasons for" placing name of the petitioner on Exit Control List have neither been communicated to the petitioner nor disclosed in the impugned notification which was necessary to enable the petitioner to avail remedy of review and in absence thereof it was neither appropriate nor possible for him to have availed such remedy, therefore; the Constitutional petition was maintainable. In this regard we are fortified by the judgment reported, in PLD 1999 Lahore 459 wherein it was observed as under:--
"As noted, sub-section (2) of Section 2 excludes the right of prior hearing or an opportunity of showing cause. In sub-section (3) the Federal Government can withhold disclosure of grounds which in its opinion will not be in public interest to disclose. In my view, exclusion of prior hearing or of show-cause notice does not absolve the Federal Government from stating and conveying the reason, after the action has been taken. This is necessary to enable the affected person to avail the right of review under Section 3. It is common sense that without knowing the case of the Federal Government, the exercise of right of review would be rendered nugatory.
In view of above discussion, we are inclined to declare notification dated 8th June, 2006 whereby; name of the petitioner has been placed on Exit Control List to be bad in law, invalid and without lawful authority which is accordingly struck down.
(N.J.) Order accordingly.
PLJ 2007 Quetta 39
Present: Mehta Kailash Nath Kohli, J.
FARIDA ZAFAR ZEHRI and 2 others--Petitioners
versus
FEROZA KHANUM and 17 others--Respondents
C.R. No. 96 of 2006, decided on 6.10.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Jurisdiction--Scope--Order could be challenged and recalled under S. 12(2) C.P.C.--Bar to--Question of fraud, is alleged and separate suit has been clearly barred to be filed before any Court of civil jurisdiction. [P. 41] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Issues were not framed--Application--List of witnesses--Application dismissed--Held: Petitioners belonging to local set-up and being womenfolk, was not in a position to locate and found out their witnesses during specified time--Trial Court was required to provide further opportunities to lead evidence in that behalf--Held: Opportunities were provided before taking any action of penal consequence. [P. 41] B
Mr. Iftikhar-ul-Haq, Advocate for Petitioners.
Ch. Mumtaz Yousaf, Advocate for Respondents No. 1 to 13.
Mr. Aminuddin Bazai, Addl. A.G. for Respondents No. 14 to 17.
Date of hearing: 6.10.2006.
Order
This petition is directed against order dated 11th March, 2006 passed by Senior Civil Judge-I, Quetta, whereby; application filed under Section-12(2) CPC has been directed to be dismissed on the ground of having failed to produce the list of witnesses and evidence in this regard.
Facts of the case, in brief, are that a suit for declaration, partition, possession and injunction etc. was filed by petitioners-plaintiffs in the Court of Senior Civil Judge-I, Quetta. It has been stated that the then alleged attorney, who filed application seeking antedating the matter and thereafter sought permission to withdraw the suit. The relevant order sheet of the trial Court is reproduced herein-below:--
Record further shows that application under Section 12(2) CPC was filed by the present petitioners in the Court of Senior Civil Judge-I, Quetta on the ground of collusion and fraud. Notice of the application was given to other side, who filed their reply. Learned trial Court without framing any issue directed for filing of list of witnesses and leading of evidence vide order dated 15th February, 2006 and the matter was adjourned to 11th March, 2006, and on account of non-filing of list of witnesses and production of evidence, application was dismissed. Against aforementioned order, present petition has been filed. Notice of this petition was given to the other side.
It has been contended by Mr. Iftikhar-ul-Haq, learned counsel for petitioners that no issue was framed by the trial Court; in this regard, no reasonable and proper opportunity was provided to lead evidence. It was further contended by the learned counsel for petitioners that on 15th February, 2006, the case was adjourned for 11th March, 2006 and direction was made for filing of list of witnesses and recording of evidence. The petitioners being ladies could not contact their witnesses and obtain necessary documents in this regard. It was further contended that the fair opportunity was not provided to petitioners.
On the other-hand, Chaudhry Mumtaz Yousaf, learned counsel for private respondents has seriously contested the same and urged that it was mandatory upon the petitioners to have submitted list of witnesses within the stipulated time.
I have considered the arguments advanced by parties' learned counsel and perused the record. The first question raised by learned counsel for private respondents is that application was not competent under Section 12(2) of the CPC. It would be proper to reproduce herein-below Section 12(2) CPC:--
"12 Bar to further suit (1).....................
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
From perusal of above provision of law it is clear that order made by the same Court could be challenged and re-called under Section-12(2) CPC, provided question of fraud etc. is alleged and a separate suit has been clearly barred to be filed before any Court of civil jurisdiction.
The other contention of respondents' counsel that it was mandatory for the petitioners to have filed the list of witnesses and led the evidence in this regard. It is quite clear that the direction was made to file the list of witnesses, which was admittedly not filed within seven days, however; petitioners belonging to local set-up and being womenfolk, not in a position to locate and find out their witnesses during said time. Learned trial Court was required to provide further reasonable opportunity to lead evidence in this behalf. Normally three opportunities are provided before taking any action of penal consequences.
In the circumstances of the case, the impugned order dated 11th March, 2006 is not proper and legal, and thus; is directed to be set aside. The trial Court is directed to frame the issues in this behalf and thereafter provide reasonable opportunity to lead evidence. Consequently, petition is allowed and the case is remanded to the trial Court for decision in accordance with law, with no order as to costs.
(W.I.) Case remanded.
PLJ 2007 Quetta 41
Present: Ahmed Khan Lashari, J.
PANDOK and others--Petitioners
versus
KOHDA IQBAL and others--Respondents
C.R. No. 176 of 2002, decided on 1.12.2006.
Balochistan Tenancy Ordinance, 1978--
----Ss. 63(c), 44 & 45--Civil Procedure Code (V of 1908), S. 115--Civil revision--Right of occupancy--Claim--Suit by a tenant--Jurisdiction--Determination--No Court shall take cognizance of any dispute or matter with respect to which any such application or proceeding might be made or had--Application u/Ss. 44 or 45 by landlords for possession of land, where right of occupancy has become extinct shall be presented to Revenue Court. [P. 47] D
Balochistan Tenancy Ordinance, 1978--
----S. 64(3)--Suit for declaration and permanent injunction of landed property--Maintainability of suit--Failed to pay Haq-e-Malqana--Determination--Being tenants used to pay Haq-e-Malqana--Not denied ownership rights but also refused to pay Haq-e-Malkana--Jurisdiction of Revenue Court--Suits shall be instituted heard and determined by Revenue Court and no other Court shall take cognizance of any dispute or matter with respect to which any suit might be instituted--Tenants were not paying Haq-e-Malqana and sought their eviction from land on the ground which exclusively falls within jurisdiction of Revenue Court constituted under Balochistan Tenancy Ordinance, 1978. [P. 47] E & F
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Balochistan Tenancy Ordinance, 1978, Ss. 63 & 64--Revisional jurisdiction--Concurrent findings--Without considering the legal proposition of law, illegally proceeded with case--Failed to pay Haq-e-Malqana--Suit for declaration and permanent injunction--High Court while exercising revisional jurisdiction can interfere in concurrent findings based on erroneous assumption of facts patent error of law and arbitrary exercise of powers--Held: High Court inclined to set aside the impugned judgments and directed to respondents for presentation of same be Revenue Court having jurisdiction over the matter. [P. 47] G
Document--
----Produced and exhibited--Not disputed--Question of--Sanctity of--Since the documents produced and exhibited were not disputed at such stage--Sanctity of these documents cannot challenge. [P. 46] C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 100--Document--30 years old document--Certified copies--Presumption of--Not imperative--Contents--30 years old document, if produced from proper custody and was free from any suspicion--Court could presume signature and any party which purported to be in handwriting of the particular person--Held: Principle would equally apply to certified copies of documents of 30 years old. [P. 46] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 76--Secondary evidence--Production of--Mere production of copy of original document would not be enough to entitle party to suit to produce secondary evidence, unless condition for production of secondary evidence stood satisfied suggesting that original document was either lost or was not traceable. [P. 46] B
Mr. Muhammad Aslam Chishti, Advocate for Petitioners.
Mr. Basharatullah, Advocate for Respondents.
Date of hearing: 10.11.2006.
Judgment
This Civil Revision Petition under Section 115 C.P.C. is directed against the judgements/decrees dated 30-11-2001 and 10-04-2002 respectively passed by Qazi, Turbat and Majlis-e-Shoora, Mekran Division, whereby; suit filed by respondents, seeking declaration and permanent injunction of landed property, was decreed and the petitioners' appeal was dismissed.
The petitioners filed their written statement and contested the suit on legal as well as on factual grounds. The petitioners claimed that they are owners with possession of the suit-property since time immemorial, the suit filed by the respondents was not maintainable and hopelessly barred by time.
The learned trial Court, in order to resolve the controversy existing between the parties, framed the following issues:--
The respondents, in order to prove their plea, produced eight witnesses and also placed on record documentary evidence. The petitioners, in rebuttal, adduced four witnesses and thereafter statements of the parties were recorded on oath through their attorneys.
On completion of proceedings, the learned trial Court on 31.08.1999 decreed the suit in favour of respondents. The petitioners, being aggrieved of the judgement/decree, filed Civil Appeal No.128 of 1999 before Majlis-e-Shoora, which was dismissed on 16-11-1999. The petitioners approached this Court by filing Civil Revision Petition No.25 of 2000, whereby the impugned judgements/decrees were set aside and matter was remanded to the trial Court with the direction, after providing opportunity of cross-examination to the parties, the documents be brought on record in accordance with law.
On remand, the parties relied on the evidence already produced before the Court and only got recorded their statements. The respondents' attorney through his statement tendered the documents. The learned trial Court, after hearing the parties' counsel, vide judgement dated 30.11.2001 decreed the suit, against which Appeal No. 06 of 2002 was filed and the Majlis-e-Shoora vide judgement/decree dated 10-04-2002, dismissed the appeal, hence this petition.
Mr. Muhammad Aslam Chishti, learned counsel for petitioners, contended that the Courts below in excess of jurisdiction, after determination of the status of petitioners as Maurosi Bazgar in suit-land, restrained them from interference in the property. He next contended that in view of Balochistan Tenancy Ordinance, 1978, the Civil Court had no jurisdiction to proceed with the dispute, thus, the judgements and decrees impugned herein were passed without jurisdiction. It was also argued that the findings of the Courts below, in respect of possession of the suit-land, were made in favour of petitioners, but it was held that the respondents are in constructive possession, which findings are contradictory in nature, contrary to the law, procedure and set principle. He lastly argued that in post-remand proceedings, the respondents merely tendered the documents through their attorney, which were illegally accepted and relied upon, resulting into decreeing the suit in their favour.
Mr. Basharatullah, learned counsel for respondents, contended that, in fact, the respondents filed suit for possession and, accordingly, prayer was made for injunction, restraining the petitioners from interference. He next contended that since the petitioners denied the respondents' ownership rights, thus, suit was competently filed before the Civil Court seeking dispossession of the petitioners. He further argued that the documents were produced and exhibited with consent of the petitioners and they did not raise any objection, thus, at this stage, the documents cannot be questioned to be not proved. He lastly argued that the concurrent findings arrived at by the Courts below are based on correct interpretation of law and proper appreciation of evidence, thus, for want of any illegality or irregularity, the judgements are not open to interference. Learned counsel in support of his arguments referred the judgements-reported in PLD 1968 SC 140, PLD 1969 SC 136, PLD 1983 Quetta 52, 1990 SCMR 694, 1990 SCMR 441, 1999 CLC 200 and 1994 SCMR 291.
I have heard the learned parties' counsel and have gone through the record as well as impugned judgements and cited case laws. The case of respondents is that they purchased the suit-property against certain amount vide sale-deed and the petitioners, being their Latband Maurosi Bazgars, failed to pay the Haq-e-Malqana, therefore, they were compelled to institute the suit for declaration of their ownership rights as well as dispossession of the tenants. It may be noted that photocopies of the documents were brought on record and the learned trial judge, while accepting these documents, held that the petitioners were provided opportunity of cross-examination, who did not raise objection, thus, documents were admitted to be proved. The presumption of truth of 30 years old document is attached with Article 100 of the Qanun-e-Shahadat Order, 1984. The presumption is not imperative, but it is satisfaction of the Court to assume the contents thereof and signatures appearing thereon were of the particular person or persons. The Article provides that 30 years old document, if produced from the proper custody and was free from any suspicion; Court could presume signature and any part thereof which purported to be in handwriting of the particular person. This principle would equally apply to certified copies of documents of 30 years old, while Article 76 of the Order lays down for production of secondary evidence, mere production of copy of original document would not be enough to entitle party to suit to produce secondary evidence, unless condition laid down in the Article for production of secondary evidence stood satisfied suggesting that the original document was either lost or was not traceable. I may refer the judgements on the point-reported in 1988 CLC 2388 and 1999 CLC 200. The Courts below, considering the evidence, declared that the petitioners are in possession of the land as tenants to the respondents and ordered for their eviction for non-payment of the dues. While dealing with the contention of learned counsel for respondents that since the documents produced and exhibited were not disputed, therefore, at this stage, the petitioners cannot challenge the sanctity of these documents. The judgements referred on the point are distinguishable on facts and circumstances of the case. As stated above, the petitioners, at the very outset, disputed the sale-deed and claimed to be in possession of the property as owners, thus, in the given circumstances, the sale and other documents were to be proved in accordance with law. The point discussed in the above referred judgements by the Hon'ble Supreme Court was that:
"Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial."
Thus, for such reasons the authorities referred to, are not applicable in the instant case.
Though the learned trial Court, after having gone through the pleadings of the parties, framed issues, but no issue was framed regarding maintainability of the suit in view of Section 63 of the Balochistan Tenancy Ordinance, 1978, which provides that no Court shall take cognizance of any dispute or matter with respect to which any such application or proceeding might be made or had, while First Group (c) of the above Section clearly indicates that application under Section 44 or 45 by landlords for possession of land, where the right of occupancy has become extinct, shall be presented to the Revenue Court. Section 64 to the Ordinance further lays down that the following suits shall be instituted in heard and determined by Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any suit might be instituted:
SECOND GROUP
(c) suits by a tenant to establish a claim to a right of occupancy, or by landlord to prove that a tenant has not such a right ;
(d) suits by a landlord to eject a tenant;
The learned Courts below fell in error before proceeding with the case to consider the relevant law dealing with the dispute. Sub-section (3)(i) to Section 64 of the Ordinance lays down that:
"When in a suit cognizable by and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub-section be heard and determined only by a Revenue Court, Civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII, Rule 10, Civil Procedure Code, and return the plaint for presentation to the Collector."
The contents of the plaint clearly indicate that the respondents filed suit on the ground that the tenants were not paying them Haq-e-Malqana and sought their eviction from the land on that ground, which exclusively falls within the jurisdiction of Revenue Court constituted under the Balochistan Tenancy Ordinance, 1978.
What has been discussed hereinabove, the Courts below, without considering the legal proposition of law, illegally proceeded with the case, thus, the judgements/decrees impugned herein are without jurisdiction. High Court, while exercising revisional jurisdiction, can interfere in the concurrent findings, based on erroneous assumption of facts, patent error of law and arbitrary exercise of powers, thus, I am inclined to set aside the impugned judgments/decrees and direct the Qazi to return the plaint to the respondents for presentation of the same before the Revenue Court having jurisdiction over the matter.
This disposes of Civil Revision Petition No. 176 of 2002 with no order as to costs.
(R.A.) Order accordingly
PLJ 2007 Quetta 48 (DB)
Present: Muhammad Nadir Khan and Mehta Kailash Nath Kohli, JJ.
SAMANDER KHAN and another--Petitioners
versus
Haji ABDUL REHMAN and others--Respondents
Const. P. Nos. (s) 40 & 41 of 2005, decided on 10.3.2006.
Illegal Dispossession Act, 2005 (XI of 2005)--
----S. 3(2)--Criminal Procedure Code (V of 1898), Ss. 190(2), 544 & 250--Constitution of Pakistan, 1973 Art. 199--Constitutional petition--Illegally occupied land--Complaint was filed for taking cognizance of offence that was dismissed by ASJ on the ground that it should be rooted through magistrate u/S. 190(2) of Cr.P.C.--Assailed--Question of--Whether direct complaint is entertainable by Session Judge--Provision of--Authorized by law to award compensation to affectees--Only Session Court can take cognizance in the matter having been authorized by law to refer the matter for investigation to concerned S.H.O.--Both proceedings (Civil/Criminal) can run parallel, provided question of title has been determined, which can be dealt with only after taking evidence and allowing opportunity to parties to lead evidence with liberty of being heard that has not been done in present case--Session Judge is directed to decide same in accordance with law. [Pp. 52, 53 & 55] B, C & D
Administration of Justice--
----Illegality--Constitutional jurisdiction--Constitutional jurisdiction is discretionary one and is intended to administer the cause of justice and not to promote or encourage injustice--Held: High is not bound to set aside every irregular or illegal order. [P. 52] A
Mr. Narain Dass. D. Kapoor, Advocate for Petitioners.
Mr. H. Shakeel, Ahmed, Advocate for Respondent Nos. 1 to 5.
Mr. Abdul Raheem Mengal, Asstt. A.G. for Respondents No. 23 & 24.
Mr. Abdul Jalil Lehri, Advocate for Respondents No. 1 to 4 in Const. P. No. (s) 41 of 2005.
Mr. Abdul Raheem Mengal, Asstt. A.G. for Respondents Nos. 9 & 10 in Const. P. (s) 41 of 2005.
Date of hearing: 2.3.2006.
Order
Mehta Kailash Nath Kohli, J.--This order shall dispose of Constitutional Petition No.(S)40 of 2005 as well as, Constitutional Petition No.(S)41 of 2005, as common question of law is involved.
Facts of the case, in brief, are that petitioners in Constitutional Petition No. (S)40 of 2005, filed an application before Deputy Collector/Collector Nasirabad on 11th May, 2001, for partition of joint property situated at Mauza Shori Darabi (Androon), Tehsil Chattar, District Nasirabad bearing Khewat No. 1, Khatooni No.29, Khasra numbers 21/10, 22/5, 22/6, 34/1, 35/1, 36/1, 37/1, 38/1, 38/2, 39/1, 62/1, 63/1, 63/2, 64/1, 65, 66/1, 67/1, 83/3, 84/1, 85/1, 86/1, 87/1, 87/2, 88/1, 88/2, 110/2, 112, 113/1, 114, 115/1, 132/3, 132/4, 133/1, 133/3, 134/1, 134/2, 135/1, 135/2, 136/1, 136/2, 137/1, 137/2, 158/1, 159/1, 160, 161/1, 162/1, 179/3, 180/1, 181/1, 182/1, 183/1, 184/2, 204/6, 204/7, 204/8, 205/1, 205/2, 206, 206/3, 206/4, 207/1, 207/2, 207/3, 208/3, 208/4, 226/2, 227/1, 227/2, 228/1, 228/2, 229/1, 229/3, 230/1, 230/2, 250/6, 251/1 and 252/2, measuring 640 acres, 01 rod, 21 pole, 80 Qitats of comprising of 16 shares; out of which, the petitioners have five shares as their respective share. While in Constitutional Petition No. (S) 41, 2005, petitioners claimed land bearing Khewat No. 6 Khatooni No. 6, Khasra numbers 257, 258, 259, 260, 261, 262, 264, 265, 266, 269, 270, 272, 273, 275, 280, 281, 282, 283, 284, 285, 286/1, 288, 289, 290, 291 and 292, measuring 2852 rod, 23 pole, 28 Qitats, comprising of seven shares, situated at Mauza Shori Darabi (Bairoon), Tehsil Chattar, District Nasirabad.
Record contemplates that the said application was resisted by private respondents on the ground that a civil suit in respect of proprietary rights titled `Haji Abdul Rahman & others versus Bashir Ahmed & others is pending adjudication in the competent Court of jurisdiction. Record further reflects that in the revenue record disputed property has been mentioned as Government land, and petitioners as well as private respondents have been shown as bazgars of 16' Shares.
The Executive District Officer (Revenue) Nasirabad, vide order dated 1st December, 2001, directed Revenue Officer Chattar, to partition the property according to Land Revenue Act. Against aforementioned order, Respondent No. 1 filed a review application on the ground that the then Executive District Officer (Revenue) had no jurisdiction to pass such order while holding temporary charge of the post. The learned Executive District Officer (Revenue) Nasirabad, vide order dated 19th June, 2002 directed the Naib Tehsildar/Revenue Officer, Chattar for partition of the property. Being aggrieved of.the aforementioned order, private respondents filed appeal before the Land Commissioner/ Chairman, Revenue Tribunal-I, Quetta, who on scrutiny, came to the conclusion that the Executive District Officer (Revenue) had no jurisdiction to adjudicate upon the matter, as such; set aside the order dated 19th June, 2002 and remanded the case to Executive District Officer (Revenue) with the following observations:--
"(i) Fresh proceedings U/S 135 of the Land Revenue Act may be initiated;
(ii) A report from the revenue staff with regard to site position may be obtained and in partition proceedings the areas sold by both the parties may be subtracted from their respective shares;
(iii) Both the parties should be afforded full opportunity to explain their pleas."
Petitioners being aggrieved of the order of Land Commissioner/Chairman, Revenue Tribunal, had filed revision petition before the Senior Member, Board of Revenue, Quetta. The learned Senior Member, Board of Revenue after hearing the parties and appraisal of record, vide order dated 28th May, 2003, concluded in the following terms:--
"20. The nutshell of the above discussion is that--
(i) the first order dated 01-12-2001 was competently made by Mr. Zahid Ali Abbasi while holding the additional charge of the post of EDO (Revenue), Nasirabad;
(ii) the review application of respondent Abdul Rahman was hopelessly time-barred;
(iii) the second order of the 19.06.2002 declaring the first order of the 01.12.2001 without lawful jurisdiction was made by the successor EDO (Revenue), Nasirabad without seeking the prior approval of the next higher forum;
(iv) the Land Commissioner/Chairman, Revenue Tribunal No. 1 also erred by endorsing the conclusion of the successor EDO (Revenue) on the point of competency of the predecessor EDO, (Revenue) and passed order dated 18.11.2002 on a time-barred appeal.
Record further contemplates that against aforementioned order, private respondents filed Constitutional Petition No.(S) 40 of 2003 before this Court. During pendency of Constitutional petition Executive District Officer (Revenue) Nasirabad submitted report dated 10th September, 2003. Contents of the report as reproduced as under:-
A Division Bench of this Court disposed of the said petition vide judgment dated 26th September, 2003. Relevant observations, are reproduced herein-below:--
"After hearing the learned counsel for the parties and perusing the comments, we have not been convinced that the order passed by learned Senior Member, Board of Revenue is contrary to law. Learned counsel for the petitioners has not been able to point out any illegality or irregularity, which can warrant interference by this Court.
It is well settled that the Constitutional jurisdiction is discretionary one and is intended to administer the cause of justice and not to promote or encourage injustice. The High Court is not bound to set aside every irregular or illegal order, if it has not caused any material prejudice or gross miscarriage of justice.
Learned counsel for private respondents have pointed out that the provisions of Section 5 of the Limitation Act were not applicable in the circumstances of the case. It has been stated that the impugned order has already been implemented and the partition has since been carried out.
We do not find it a fit case for interference in exercise of our Constitutional jurisdiction and the petition is accordingly dismissed.
Since the impugned order has already been implemented and the petition being merit less, therefore, there is no justification for initiating proceedings in the Contempt Application No. (S)05 of 2003, and; the same is accordingly dismissed."
Record further shows that against aforementioned judgment passed by Division Bench of this Court, a petition has been filed before the Hon'ble Supreme Court of Pakistan and is pending adjudication.
A complaint was filed on 17th August, 2005 before Sessions Judge Nasirabad at Dera Murad Jamali, wherein `Additional' was added subsequently, under Section 3(2) of Illegal Dispossession Act, (here-in-after, called Act XI of 2005) readwith Section-544/200 Cr.P.C., for taking cognizance of the offence, as the private respondents have illegally & occupied the said land. Record reveals that the learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali, without taking cognizance, dismissed the complaint on the ground that the said complaint should be rooted through Magistrate First Class, as contemplated under Section-190 (2) of the Code of Criminal Procedure. While dismissing the said complaint, the learned Additional Sessions Judge also proceeded on merits and having passed certain remarks, which are conjectural in nature, and; proceeded to examine the interest of public at large, which was not within his domain vide judgment dated 12th September. 2005.
Against aforementioned order of learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali, the present petition was filed. Preadmission notice was directed, in compliance whereof; Mr. H. Shakeel Ahmed and Mr. Abdul Jalil Lehri, Advocates appeared on behalf of respondents, and; contested the petition, while Mr. Abdul Raheem Mengal, learned Assistant Advocate General appeared on behalf of official respondents.
Mr. Narain Dass D. Kapoor, learned counsel for petitioners contended that the learned Sessions Judge could have taken cognizance by directly exercising jurisdiction under Special law. It was further contended that he had no jurisdiction to pass conjectural remarks and observations, and; may had sent the same to Magistrate for appropriate orders.
On the other-hand, learned counsel appearing for respondents contended that since, civil matter was pending, as such, criminal proceedings were uncalled for, and; supported the impugned judgment.
We have heard the learned counsel for the parties and perused record of the case. Act XI of 2005 was enacted by the Legislature and notified vide notification dated 7th July, 2005, wherein; illegal possession of the property was held to be an offence and not only it was made punishable to the extent of ten years imprisonment; it was also authorized by the law to award compensation to the affectees under Section-544 of the Code of Criminal Procedure. Section-4 of the said Act provided that the cognizance of the offence is taken, where contravention of Section-3 shall exist by the Sessions Courts on a complaint and the offence was made as non-cognizable. Section 5 of the said Act further provided that upon a complaint, the Court is empowered to direct the officer-in-charge of a Police Station to investigate and complete the investigation and forward the same within fifteen days to the Court; the Court was further authorized to pass interim orders and in case of having established the fact that possession was illegally delivered, it was authorized by law to pass an appropriate; order for putting the person into possession, who has been dispossessed from the land. The provisions of Code of Criminal Procedure have been applied by virtue of Section-9 of the said Act XI of 2005. The provisions of Code of Criminal Procedure have been applied simultaneously; with reservation that in case, if special provision is available, that will over ride the provisions of Code of Criminal Procedure.
Now the question before us is, as to whether direct complaint is entertainable by the Sessions Judge, who has been defined as Court by virtue of Section-2(a) of the Act XI of 2005 Sections-4 and 5 of the Illegal Dispossession Act XI of 2005 are reproduced herein-below:--
"4. Cognizance of offence.--(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of Section 3 shall be triable by the Court of Session on a complaint.
(2) The offence under this Act shall be non-cognizable.
(3) The Court at any stage of the proceedings may direct the police to arrest the accused."
"5. Investigation and procedure.-(1) Upon a complaint the Court may direct, the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court.
Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this sub-section.
(2) On taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded.
(3) The Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days."
A special procedure has been laid down and the word `Notwithstanding' is given in Section-4 if it is read alongwith Section 5 of the Act XI of 2005, has provided special procedure. The Court as defined in Section-2(a) is a Court of Sessions Judge, who could alone, can take cognizance in the matter, having been authorized by law to refer the matter for investigation to the concerned SHO of the area. Application of mind to proceed with the matter for the purposes of either for investigation of case, or trial tantamounts to taking of cognizance, which has been prescribed by Sections-4 and 5 of Act XI of 2005.
The Hon'ble Supreme Court of Pakistan in the case of Habib Bank Limited v. The State and 6 others (1993 SCMR 1853) has observed as under:"
"....... Section 5(8) provides that a Special Court shall in all matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of the cases by Magistrates. According to Section 12 the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. These provisions show that where the Ordinance is silent about conduct of the proceedings of a trial, the provisions of Code of Criminal Procedure would apply otherwise overriding provisions contained in the Ordinance will apply for the trial of the case. Ordinance has regulated the procedure for the trial of the scheduled cases of which Special Court has exclusive jurisdiction."
The other question arises, as to whether, learned Additional Sessions Judge, was competent under law to have passed judgment, making observations against the petitioners, and; what course was open to him for deciding the complaint, which he was competent to entertain.
In the case-in-hand, learned Additional Sessions Judge has proceeded to decide the case on the ground that the matter is subjudice before the Hon'ble Supreme Court, and thus; criminal proceedings are un-called for. It is to note that both the proceedings (Civil/Criminal) can run parallel, provided question of title has been determined. The questions, as to whether dispossession has taken place, and; whether the title in the property vests with the petitioners, or the questions of facts, could had been dealt with only after taking evidence and allowing the opportunity to parties to lead evidence with liberty of being heard, which has not been done in the case in hand.
In the circumstances of the case, we are left with no option, but to set aside the impugned order and direct the learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali to decide the same in accordance with provisions of law.
Constitutional Petitions No. (S)40 and 41 of 2005 stand disposed of with no order as to costs.
(A.S.Sh.) Order accordingly
PLJ 2007 Quetta 56 (DB)
Present: Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, J.
Mst. BIBI ZAHRA and 5 others--Petitioners
versus
GOVT. OF BALOCHISTAN through its CHIEF SECRETARY CIVIL SECRETARIAT QUETTA and 2 others--Respondents
Constl. P. No. 262 of 2006, decided on 18.7.2006.
Colonization of Government Lands Act, 1912 (V of 1912)--
----S. 10(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit against Deputy Commissioner--Land "Charagah Ankara"--Recommendation by Minister Revenue and Secretary Law--Allotment of land--Respondents were not acting upon the direction of Chief Minister and procrastinating the matter without any just cause and reason--Question of--Whether Board of Revenue was bound to implement--Validity--Notification--Applicable to the Province of Balochistan--Eligibility of the persons entitled to lease hold rights--Scope of--Mode of lease--State land will be leased out to unemployed youth landless persons falling in categories under Clause 3(1), (a)(b) (c) & (d) for a period of thirty years initially subject to extension on performance basis for which no cast will be recovered from such categories for initial period of five years--Under Clause 9, an allottee who has developed land shall be entitled to grant of ownership/property rights of leased land on payment of nominal price to be fixed by Government after expiry of extended lease period--Held: Land was allotted on the direction of Chief Minister in violation of land lease policy--Petition was dismissed.
[P. 64] A, B & C
M/s Fakharuddin G. Ibrahim & Syed Ayaz Zahoor, Advocates for Petitioners.
Mr. Aminuddin Bazai, AAG Muhammad Iqbal, D.C. Forest Depart: (Admn) Quetta on behalf of EDO Forest Gawadar, Khawaja Muhammad Naeem, Senior MBR for Respondents.
Date of hearing: 27.6.2006.
Judgment
Akhtar Zaman Malghani, J.--Following reliefs have been claimed in the instant Constitutional Petition:--
"A. Declaring that the respondents after issuance of letter dated 8.11.05, is bound under the law to allot 4100 acres of land in favour of petitioner, and in not doing so, their such act is totally illegal, improper, based on malafides, as well as in excess and mis-exercise of authority vested in them.
B. On having declared so the respondents be directed to strictly act in accordance with order dated 8.11.05, by implementing the same in letter and spirit.
C. Any other relief deemed fit and proper in the circumstances of the case may also be awarded alongwith the cost of petition, in the interest of justice".
"The appellants, as per Civil Miscellaneous Application # 5890 of 2005 have decided to withdraw the main appeal only on the assurance of the respondent Government to allot 4100 acres of land to the appellants. There is no assurance before this Court from the side of the respondents.
In the circumstances, in view of the Civil Miscellaneous Application, Civil Appeal # 1607 of 2005 is hereby dismissed as withdrawn with the condition that if the promised allotment is not made in favor of the appellants within a reasonable time, the instant appeal shall stand restored, on the application of the appellants."
According to the petitioners NAB on the direction of President of Pakistan carried out detailed enquiry and forwarded recommendations to Govt of Balochistan, on the basis whereof the entire record was re-examined and Chief Minister on the recommendations of Director General, Gwadar Development Authority, Minister Revenue and Secretary Law directed Respondent No. 2 for allotment of 4100 acres of land in favour of petitioners with further directions that NAB Balochistan Before handing over the allotment letter will ensure that the case is withdrawn from the Supreme Court by the petitioners and they had settled their issues with the buyers of the land. It is grievance of the petitioners that despite their approach Respondent Nos. 1 and 2 are not acting upon the directions of Chief Minister and procrastinating the matter, without any just cause and reason.
We have heard the learned counsel for the petitioners as well as learned Additional Advocate General. Mr. Khawaja Muhammad Naeem Senior Member, Board of Revenue also appeared in person and with permission addressed the Court on factual side of the controversy.
Learned counsel for the petitioners vehemently contended that the decision to allot the land to the petitioners was taken in larger interest of Government, because subject matter of the suit was land measuring 4040 acres but in pursuance of judgment of this Court, the Government illegally and unlawfully taken away 12617 acres 2 rods and 17 poles land existed in the name of petitioner's predecessor, which was obviously wrong, therefore; on the basis of summary the Chief Minister directed for allotment of 4100 acres land in favour of petitioners, which was perfectly justified on the basis of documents and Board of Revenue was bound to follow the order of Chief Minister as no reasons have been shows in the comments for not implementing the order of Chief Minister.
On the other hand, the learned Additional Advocate General contended that the order of Chief Minister having been made in violation of Land Lease Policy, 2000 Balochistan Board of Revenue was not under legal obligation to implement the same, more so; when such directions have been conveyed through unofficial letter as evident from the reference number, starting with the words "U.O" which means unofficial. He further contended that the petitioners had already moved application before Hon'ble Supreme Court for restoration of appeal, as such; petition may not be found maintainable.
Learned Senior, Member Board of Revenue on the factual side contended that the suit filed by the predecessor-in-interest of the petitioners was in respect of land measuring 4040 acre but after passing of decree he succeeded in getting transfer of state land measuring about 17000 acre with connivance of subordinate revenue staff. He further contended that even otherwise the state land could not have been mutated in favour of petitioner or their predecessor in pursuance of decree passed by Qazi Court, because no decree was passed declaring the plaintiff owner of land in dispute or directing the revenue staff to enter the land in the name of decree holder. He further stated that under the Land Lease Policy only 36 acres land could be leased out to any person.
We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the documents available on record. It would not be irrelevant to mention here that the petitioners' counsel filed an application under Section 151 C.P.C in order to bring certain facts on record when judgment was already reserved, however; after having heard the learned counsel it was decided that the said facts would be taken into consideration at the time of dictating judgment. The facts narrated in the said application are as under:--
"(a) The First Settlement in Gawadar took place in 5th September, 1996 and in that Settlement an area of 1241 rods 14 poles i.e. 3167 acres was entered in the record of rights in the name of predecessor-in-interest of petitioners namely Mir Khudai Dad Khan.
(b) The land measuring 9500 acres (in fact is 9450 wrongly incorporated as 9500 acres) was entered in the name of Government of Balochistan in the First Settlement on 20.10.96.
(c) So the land measuring 3167 was entered in the name of petitioners' predecessor first and land measuring 9500 acres was entered in the name of Government , subsequently.
(d) The judgment and decree was passed by learned Qazi, Gawadar on 21.4.1996, which stated that the petitioner is the owner of land in occupation of the Forest Department and the land where marks were made for the Deep Sea Port, which was soon appealed before the learned Majlis-e-Shoora, who dismissed the same vide judgment dated 30.10.96 and therefore, on the basis of decree so passed by the learned Qazi, land measuring 9500 acres (in fact is 9450 acres) was transferred in the name of predecessor-in-interest of petitioners. Meaning thereby the land measuring 3167 acres was neither the subject matter of suit nor ever was under challenge fore any Court of law.
(e) After the judgment of Hon'ble High Court dated 16.4.04, instead of cancelling 9500 acres of land from the name of petitioner, the respondents cancelled the entire land.
(f) lt was therefore, that in view of such situation, when the matter was assailed before the Hon'ble Supreme Court, a High level meeting was held on 22.12.2004, in NAB (B) in which amongst others. Governor, Balochistan, Chairman, NAB Pakistan, Chief Minister, Balochistan, D.G. NAB and Chief Secretary participated and accordingly summary was moved and the Chief Ministry considering the same, directed for allotment of 4100 acres of land in favour of petitioners, being compensation as against 9500 acres, subject to withdrawal of petition from the Hon'ble Supreme Court and not agitating any right more than 4100 acres, which condition of the Government was fulfilled. Thus it had absolutely no concern with the lawful legally mutated property of petitioner measuring 3167 acres, carried out in the first settlement, much before the execution of the decree of Qazi, Gawadar and mutating of 9500 acres of land in the name of Government of Balochistan."
It is evident from the contents of para 'a' that the same have not been correctly incorporated. According to petitioners' own showing and supported by Khatooni appended with the application during the settlement carried out in the year 1996 an area of 1241 rods 14 poles was entered in the name of predecessor-in-interest which is equal to 310 acre 1 rod 14 pole and not 3167 acres as mentioned in that para as one acre is equal to four rods.
"State land will be allotted to a person or group of persons (having common pursuit and background) through Cooperative Societies by way of lease in the following order of preference--
(a) The order of preference based on permanent residence of the applicant shall be, as follows:---
(i) Resident of the village or revenue estate where the land is situated;
(ii) resident of the adjoining village or revenue estate;
(iii) resident of a village or revenue estate in the same district where the land is situated.
(b) The order of preference based on previous land holding is as follows:-
(i) Landless heirs or residents having no interest in a land, commercial or industrial plant in the area;
(ii) Heirs or residents in possession of land or interest thereon (through expected inheritance/otherwise), short of 16 acres irrigated and 32 acres of un-irrigated land, who will be provided state land just to supplement the aforesaid ceiling. Similarly such residents who do not own or have no interest in any commercial or residential or industrial plant will be provided state land as per ceiling prescribed for such categories hereinafter".
Whereas; Clause 3 deals with scope of lease in following words:--
"(1) Rural Areas: Fifty percent state land in each revenue estate/Tehsil will be kept reserved for future utilization and the remaining fifty percent may be allotted/leased out to eligible categories, for public purpose and to landless persons under the policy in the following proportions:--
(a) For Agricultural purposes a total of 25% of the allottable state land (atleast 16 acres irrigated or 32 acres unirrigated land) may be leased out in the name of duly registered Cooperative Societies comprising memberships of unemployed graduates.
(b) For farming upto ten percent of state land may be allotted for the following purposes in favour of duly registered societies comprising memberships of unemployed graduates.
(i) For poultry farming, atleast one and half acre of state land may be leased out subject to feasibility studies/recommendations of the Livestock Department.
(ii) For dairy farming, atleast ten acres of 1 and may be leased out for housing animals/milk production subject to feasibility studies by Livestock Department.
(iii) For Fish Farming atleast 5 acres of land may be allotted subject to feasibility studies/recommendations by the Fisheries Department.
(c) For establishment of Cottage Industries/agro-based processing plants, state land upto five percent at the rate of 10 acres may be leased in the name of duly registered Cooperative Societies comprising memberships of unemployed youths subject to feasibility studies/recommendations of the Small Industries Department.
(d) Agriculture land at the prescribed ceiling to the extent of 15% of state land may be allotted to the duly registered Cooperative Societies comprising membership of other landless/unemployed persons.
(e) Remaining 45% of state land in the rural areas will be leased out for public purposes or through auction or at the market rate to individuals/other categories, as usual."
Mode of lease have been provided in Clause-5 of the notification, sub-clause (1) of which contemplates that the state land will be leased out to the unemployed youth/landless persons falling in categories under Clause 3(1), (a), (b), (c) and (d) for a period of thirty years initially subject to extension on performance basis, for which no cost will be recovered from such categories for the initial period of five years, whereafter the performance in respect of utilization of land will be evaluated by the authority mentioned in sub-clause 1 (a), (b) and (c). Similarly; under sub-clause (2) of Clause 5 rate of lease money per year will be determined by the committee keeping in view market value/performance. Under Clause-9 an allottee who has developed the land, shall be entitled to the grant of ownership/property rights of the leased land on payment of nominal price to be fixed by the Government after the expiry of extended lease period. Letter dated 8th November, 2005 directing Board of Revenue to allot 4100 acres land in favour of petitioners appears to have been issued by bypassing the above scheme where-under no order of transferring the ownership rights could be made except under Clause-9, that too; in favour of lease holders. Therefore, in our considered view Respondent No. 2 was under no legal obligation to act upon the directions communicated in the said unofficial letter. The Hon'ble Apex Court in Constitutional Petition Nos. 6 to 9 of 1994, 1-Q of 1995, 23 to 26 of 1995 titled Nawabzada Jahangir Shah and others Vs. Province of Balochistan and others decided on 2nd November, 1998 observed as under:--
"Prima facie the above order of transferring the ownership rights could not have been made under the above Scheme. The Chief Minister had no power to grant ownership by bypassing the above Scheme, under which the ban on allotment of State land was lifted."
It may be noted that in the above referred cases also land was allotted on the direction of Chief Minister in violation of Land Lease Policy.
For the foregoing reasons, we find no merits in the instant petition, which is dismissed accordingly.
(R.A.) Petition dismissed
PLJ 2007 Quetta 65
Present: Muhammad Nadir Khan, J.
M/s. GEARS HOBBING LTD. through its Factory Manager and others--Appellants
versus
ABDUL HAMEED and others--Respondents
CMA Nos. 1 to 4/2005 in L.A. Nos. 14 to 17/2005 and L.A. Nos. 2 to 9 of 2006, decided on 25.4.2006.
(i) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46(7) Reinstatement--Employee ordered to be reinstated by Labour Court-Employer informed the employee that he is being taken in employment and posting him at another place--Order does not amount to reinstatement. [P. 76] A
(ii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46(7)--Reinstatement--Order of reinstatement not complied with employee--Cannot be proceeded against for absence without complying with order of reinstatement. [P. 78] B
(iii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----Ss. 49(4)(e) & (9)--Allegations were of unfair labour practice--Petition u/S. 46 was not maintainable--Contention repelled. [P. 81] E
(iv) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46--Back benefits statement--Remained jobless" discharges burden of proof of workman. [P. 82] F
(v) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46(5)--Compensation in lieu of reinstatement strained relationship and serious difference justify compensation in lieu of reinstatement.
[P. 82] G
(vi) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968--
----St.O. 15(4)--Domestic enquiry--Report of enquiry officer--Scope of interference stated. [P. 80] C & D
Appellant Balochistan Engineering Ltd. Factory.
Mr. Muzaffar Ahmed, Advocate for Respondent.
Date of hearing: 4.4.2006.
Judgment
This common judgment shall dispose of Review Applications No. 1/05, 2/05, 3/05 and 4/05 filed in Labour Appeals Nos. 14/05, 15/05, 16/05, 17/05 respectively along with Labour Appeals Nos. 2/06, 3/06, 4/06, 5/06, 6/06, 7/06, 8/06 & 9/06 involving similar facts, common law points and are out come of the show-cause notice dated 08.04.2000 issued by the Branch Manager Plant of the appellant (hereinafter referred to as the company) to the respondents (hereinafter referred to as the workers) which reads as under:--
"It has been noticed that you are indulging in the affairs of the management and are acting in disorderly manner while leaving the place of duty during working hours, opening the office o Plant Manager & sting therein, jointly and collectively without observing office discipline and also misusing the official Telephone for private purposes and taking away Official Files & important official papers from the Plant Manager's Office and also taking tea, smoking cigarettes while sitting in the Plant Manager's office during working hours. You have indulged in the affairs of the management, while re-moving the following workers from their duty places as managed by the production department:
Name Code#
Sheikh Jaweed Elahi 37
Syed Mansoor Ali 59
Mushtaq Ahmed 29
Badar Zaman 15
Without permission of the manager and forcing them to appoint and carry work in Quality Control Department against the wishes of the management which is a gross misconduct.
You are disrespectfully ignoring the warning whereas you are extending threats to the factory management, thus your actions are subversive of discipline, therefore, you are jointly & severally called upon to submit explanation to the above charges with 72 hours thereof failing which disciplinary action will be taken against your according to law."
The workers submitted their reply, denying the allegations. Simultaneously they asked for the supply of copy of report on the basis of which show-cause notices were issued and reserved their right to submit their detailed reply. The company thereafter issued termination letter-dated 31.08.2000. The workers being aggrieved by their termination, served the company with grievance notices issued by each of them individually but on failure of the company to redress their grievance by re-instating them, filed grievance applications u/S. 25-A of Industrial Relations Ordinance, 1969 (hereinafter referred to as the IRO, 1969) before Presiding Officer Third Labour Court Balochistan at Hub (hereinafter referred to as the Labour Court). Their applications were dismissed by means of order dated 30.03.2002 with following observations:--
"The applicant miserably failed to prove that the strength of workers at the time of termination of his service was more than 50 in number. The provision of S.O. 15(4) of Standing Orders Ord. 1968 are therefore, not applicable and the respondent is not legally bound to hold enquiry etc before terminating the applicant from service".
The workers being aggrieved by the dismissal of their grievance applications filed appeals u/S. 37(3) of IRO, 1969 which were disposed off by means of order dated 09.12.03 as the counsel for the parties conceded that the evidence available on the record reflects that when aggrieved workers were removed from service the number of workers of the establishment was more than 50, therefore, the impugned order was not supported by the company. Accordingly, the order dated 31.8.2000 was set aside. The workers were ordered to be re-instated with effect from 31.8.2000. However, the company was allowed to hold fresh enquiry in the matter, if so desired.
Record reflects that the workers in pursuance of the order dated 9.12.2003 of this Court approached the company by means of applications dated 13.12.2003 for their re-instatement in terms of order dated 9.12.2003 passed by this Court. The company thereafter issued re-instatement order dated 6.2.2004 which reads as under--
"REINSTATEMENT ORDER.
We refer to the order of the Honourable High Court of Balochistan Quetta, in the Labour Appeal No. 11/2002, dated 9.12.2003, whereby it was directed to reinstate you in the service of Company.
We hereby take you in the employment of the Company from the date of your reporting for employment and hereby posted at our transit Ware House, SF Unit No. 87 SITE Karachi from the date of your joining, in accordance with clause # 6 of your appointment letter dated 1.12.1992, and on the same terms and conditions.
You are further directed to report to Mr. M. Farooq Kalia, Assistant Manager Dawood Yamaha transit Ware House, SF Unit No. 87 SITE Karachi with immediate effect.
Please note that if you failed to report to Mr. M. Farooq Kalia, Assistant Manager Dawood Yamaha transit Ware House, SF Unit No. 87 SITE Karachi for duty within one week time, we will not be obliged to take you in the employment of the Company".
The workers did not accept their re-instatement in the above terms and served the company with grievance notice dated 16.2.2004 issued by them individually wherein they prayed as under:--
"I, pray to your goodself to send me the payees account cheque or pay order in the sum of Rs. 3,14,878/- for the wages etc. till 9.12.2003 and Rs. 19,800/- towards the monthly wages till 28.2.2004.
I further pray that I be reinstated on the machine, job on which I was employed at G.H Ltd., HUB Plot No. C-300 to C-294, in compliance of the Order dated 9.12.2003 passed by Honourable High Court, Quetta (Balochistan)."
The company refused to redress the grievance of the workers which led the workers to file grievance Applications No. 33, 34, 35 and 147 u/S. 46 of IRO, 2002 with following prayer:--
"It is, therefore, prayed that this honourable Court may be pleased to set aside ANN.C/3 and restore the status quo ante termination and be further pleased to direct the respondent to put the applicant back in the same job and under the same terms and conditions of work and employment with payment of all rights, privileges wages and benefits from the date of illegal removal i.e. 31.8.2000 in the interest of justice.
Any other relief/benefits deemed fit and proper in the circumstances of the case be also allowed with cost throughout.
Ad interim orders for payment of current wages, wages and benefits, all rights and privileges from the date of removal. i.e., 31-08-2000 be granted in the interest of justice".
The company resisted the applications by filing of reply. The workers filed their affidavits, they were cross examined by the company and no evidence was produced in rebuttal. The applications were disposed of by means of judgment dated 21.05.2005 with following observations:--
"In view of above discussion I am of the considered opinion that the applicant is entitled to receive the wages, benefits as provided under the Law as ordered by the Honourable High Court of Balochistan dated 09.12.2003, from the date of his reinstatement with effect from 31.8.2000 till the order dated 09.12.2003, passed by the Honourable High Court of Balochistan as after rejoining his service and conducting a fresh enquiry, once again the applicant was removed from his service on 30.6.2004 and that matter is also pending before this Court.
Needless to add here that the observations made herein above, qua the other matters pending before this Court are purely tentative in nature which shall not affect the matters pending before this Court which shall be decided on their own merits.
In view of above mentioned facts and circumstances of the case application filed by the applicant is partly accepted and respondent is hereby directed to pay him wages benefit and privileges in accordance with law from the date of his removal i.e., 31.8.2000, to the date of order on 09.12.2003, parcel by the honourable High Court Balochistan.
Application filed by the applicant is disposed of accordingly, the parties are left to bear their own costs".
The company challenged the above judgment by filing of Labour Appeals No. 14/05, 15/05, 16/05 and 17/05 which were disposed off with the consent of the parties vide order dated 18.10.05, which reads as under:--
"Mr. Abdul Samad Advocate.
Mr. Shafiq Qureshi Advocate.
This appeal under Section 47(3) of IRO is directed against the order dated 21.05.05 passed by 3rd Labour Court Balochistan at Hub, whereby the appellant/company has been directed to pay the wages of the respondent/worker w.e.f. 31.08.2000 till 9.12.03.
The relevant facts for disposal of this appeal are that during earlier round of litigation the worker filed appeal before this court against the dismissal of his grievance application filed before the 3rd Labour Court Balochistan at Hub, against the order of termination of his service. The appeal filed by the respondent/worker was allowed by this Court vide order dated 09.12.03 with following observation:--
"During the course of arguments after going though the evidence/statements of the parties the learned counsel for the respondent fairly conceded that from the evidence available on the record it transpires that when the appellant was terminated the number of workers of the Establishment was more than fifty, therefore, he does not support the impugned order. Hence he expressed his no objection on setting aside of the impugned order as well as the termination order. However request is made for remand of the matter for fresh inquiry by the respondent.
Mr. Shafiq Qureshi, the counsel for the appellant expressed his no objection for remanded of the matter to the respondent for fresh inquiry subject to setting aside of the termination order and re-instatement of the appellant.
Talking into consideration the above submissions made by the learned counsel for the parties the termination order dated 31-8-2000 is set aside with the consent of the parties. Resultantly the appellant is reinstate w.e.f. 31.8.2000; however, the respondent shall be at liberty to hold fresh inquiry in the matter if so desired. The impugned order dated 30.3.2002, accordingly is set aside and the appeal is allowed, with no order as to costs."
After passing of the above order the company held fresh inquiry and the services of respondent/worker has again been terminated w.e.f. 30.06.04, however before passing of the order of termination, the respondent/worker filed application for compliance of order of this court with prayer for payment of his wages for the period from 30.8.2000 till passing of the order dated 09.12.03 and also future salaries.
The said application was resisted by the Company, however Labour, Court allowed the application partially as the company has been directed to pay the wages of the respondent/worker from 31.08.2000 to 09.12.03 and further wages after passing of the order of this Court has been made subject to the disposal of the grievance petition filed against the termination of the applicant in result of fresh inquiry.
The counsel for the appellant who made an attempt to make out a case for refusal of wages for the period which has been allowed by Labour Court but on facing difficulty in said regard came up with plea that company may be allowed 15 days time to pay the wages of the respondent/worker, for the period from 31.8.2000 to 9.12.03 and the appeal is not pressed on merit.
Counsel for the respondent expressed his no objection on the above plea.
Accordingly with the consent of the parties the order dated 21.05.05 passed by 3rd Labour Court Balochistan at Hub is upheld and the company is allowed to pay the wages to the respondent/worker within 15 days by depositing pay order in the Labour Court for the amount payable to respondent/worker for the period from 31.8.2000 to 9.12.2003.
Appeal accordingly stands disposed off' with no order as to cost.
The Company thereafter filed Applications No. 1/05, 2/05, 3/05 and 4/05 for review of above order.
The company during pendency of above proceedings served the workers with show-cause notices dated 10.11.04 which reads as under:--
"SHOW-CAUSE
You were posted at our transit warehouse S.F. Unit 87 SITE Karachi and was directed to report to Mr. Farooq Kalia, Assistant Manager vide our letter dated 06.2.2004, but as per information from Mr. Farooq Kalia you have not report for duty and remaining absent without intimation or information, which is d gross misconduct.
Your absence from the duty is more than ten days: You are advised to submit your explanation to this show-cause notice within three days from the date of the receipt of this letter, failing which the proper legal action will be followed in accordance with law.
Since you have not reported for duly as directed, therefore no enquiry, can be held against you in terms of the order dated 09.12.2003. Unless you submit to the power/authority & jurisdiction of the employer, we cannot hold the enquiry as directed by the Honourable High Court, Quetta. The question of back benefits cannot be ascertained and determined as claimed by you. The back benefits are subject to the result of the enquiry please note."
The workers submitted their reply dated 24.4.2004 claiming that in terms of the order passed by this Court the workers were to be posted/reinstated at the place where they were employed at the time of removal from service. The company considering the reply of the workers dissatisfactory, issued enquiry notices dated 18.5.2004 which were duly replied by the workers on 21.5.2004. The workers resisted the enquiry proceedings and they allegedly did not participate in the enquiry proceedings which were conducted ex-parte, whereafter enquiry report dated 2.6.04 was submitted wherein the enquiry officer held the workers remained absent for more than ten days, the charges leveled against them under the Standing Order, 15(3)(c) have been proved and action as per law was recommended against, the workers. On the basis of enquiry report workers were dismissed from service by means of dismissal order dated 30.6.04. The workers thereafter served the company with grievance notices dated 17.7.04 issued by them individually and thereafter filed grievance Applications No. 165/04, 166/04, 168/04 and 171/04 before the Labour Court. The company resisted the applications whereupon the parties were called to lead evidence in support of their respective pleas. The workers filed their affidavits and they were cross examined by the company. In rebuttal the company filed affidavits of Yousaf Memon Senior Manager Administration, Muhammad Anees and Irshad Ali Plant Managers. They were cross-examined by the workers. The learned Labour Court concluded the proceedings by means of order dated 31.12.2005 whereby the applications filed by the workers for their re-instatement have been allowed and the company has been directed to re-instate them in service with full back benefits in accordance with law. The company being aggrieved by the order of re-instatement of the workers filed Labour Appeals No. 03/06, 06/06, 07/06 and 08/06.
The company, simultaneously in continuation of show-cause notice dated 08.4.2000 and the order of this Court dated 9.12.2003 issued enquiry notices dated 07.6.2004 which were replied by the workers on 14.6.2004. However, the enquiry was conducted during which Aamir Mirza was examined as complainant while Abdul Majeed, Mushtaq Ahmed, Javed Ellahi, Syed Mansoor Ali and Badar Zaman were examined as witnesses. The workers allegedly disappeared in the middle of the enquiry. The enquiry officer submitted his report and observed as under:--
"I have gone through the statement of complainant and his witnesses. The following points are clearly established.
Amir Mirza complainant gave his statement as staled into the charge sheet and Mr. Ahmed Mujeebuddin corroborated his statement about the misconduct of Abdul Hameed & others whilst the four workers who gave same statement that they were transferred illegally by Abdul Hameed and others by force and under threat.
In the circumstances I have no hesitation to accept the statement of complainant & his witnesses and come to the conclusion that charges levelled against Mr. Abdul Hameed are proved and he is guilty of misconduct contained in the show-cause notice dated 8.4.2002".
In pursuance of the enquiry report dismissal orders dated 30.6.04 were issued. The workers served the company with grievance notices but the company did not withdraw the dismissal order whereupon grievance Applications No. 165/04, 168/04, 169/04 and 171/04 u/S. 46 of the IRO, 2002 were filed before the Labour Court which were contested by the company by filing of written reply. The workers, thereafter filed their affidavits and were cross-examined by the company. In rebuttal the company examined Muhammad Anees Manager, Abdul Hameed Lasi Senior Manager Human Resources, Muhammad Yousaf Memon Senior Manager Administration, Shameel Javed Deputy Manager, and Irshad Ali Manager, who were cross-examined by the workers. The learned Labour Court concluded the proceedings by means of judgment dated 31.12.12005 whereby the company has been directed to re-instate the workers in service with full back benefits in accordance with" law. The company challenged the judgment dated 31.12.2005 passed in grievance Applications No. 165/04, 168/04, 169/04 and 171/04 by filing Labour Appeals No. 03/06, 06/06, 07/06 and 08/06.
Mr. Abdul Ghani counsel for the company argued that the learned Labour Court not only misappreciated the evidence but ignoring the law passed orders for re-instatement of workers with back benefits. According to the learned counsel for the company the workers against whom the charge of misconduct was leveled were involved in unfair labour practices and they deliberately did not participate in the enquiry proceedings. The workers taking benefit of the said fact got themselves re-instated by this Court vide order dated 09.12.2003 and thereafter again adopted delaying tactics and despite their re-instatement they did not join the duty and also refused to accept the order of re-instatement, they remained absent for more than 10 days, whereupon enquiry proceedings were conducted as per law which proved the charge of their wilful absence. The company in pursuance of the order of this Court dated 9.12.2003 conducted separate enquiry about the allegations made against the workers in show-cause notices dated 08.4.2000 and the said enquiry proceedings which too were in accordance with law and the workers having no defence left the enquiry proceedings in the half way and did not produce any defence while the charge of misconduct as alleged in the show-cause notice dated 08.4.2000 was proved which resulted in their dismissal from service. The trial Court ignoring the enquiry proceedings without recording of any reason re-instated the workers while grant of back benefits to the workers is also illegal as the workers did not produce any evidence that they remained jobless after their removal from service till finalization of the proceedings before the Labour Court.
Counsel for the company resisted the judgment dated 21.5.05 contending that the Labour Court erred in granting back benefits without examining the issue about workers, willful refusal to join their duty despite their re-instatement. Learned counsel for the company further argued that as per order sheets dated 29.1.2005, 12.2.2005, 5.3.2005, 19.3.2005, 2.4.2005, 11.4.2005 the Applications No. 33/04, 34/04, 35/04 and 171/04 were to be disposed off along with connected applications but abruptly on 21.5.2005 the applications were allowed and the company was directed to pay back benefits to the workers. According to the learned Counsel for the company the dismissal order of the workers could not be set aside merely on the ground that second show-cause notice was not issued to the workers as the same was not legally required. The learned counsel further argued that the workers failed to prove the allegations of malafide on the part of the company for their removal from service. It was also argued by the counsel for the company that the affidavits in evidence filed by the workers do not meet the legal requirements. Besides, the applications of the workers before Labour Court were not maintainable as the workers claiming to be office bearers were to approach NIRC in terms of Section 49(4)(c) of IRO, 2002. Learned counsel for the company supported his arguments by following case law:--
AIR 1986 SC 995, SBLR 2004 Sindh 960, SBLR 2004 Balochistan 960, NLR 1996 Service 11, LA No. 227/04 Karachi High Court PLD 1967 SC 367-372, SBLR 2006 Sindh 243, 1996 SCMR 201-213, 2001 SCMR 931, PLD 1987 SC 207, 1982 SCMR 651, 1992 PLC 415, 1992 SCMR 2169, 1982 PLC 365, 1990 PLC 643, 1987 PLC 23, 1962 PLC 528, 1993 PLC 304, 1972 PLC 83, 1986 PLC 1158, 2004 TD Lahore 180, PLD 1982 SC 460, PLD 1981 SC 225; 1981 SCMR 631, 1988 SCMR 1352, 1997 PLC 132, 1999 SCMR 734, PLD 2003 SC 952, NLR 2000 Labour 952, SBLR 2004 Sindh 1565, 1978 SCMR 212, 2004 PLC 293, 1995 PLC 675, PLD 1986 Karachi, 1988 P.Cr.L.J. 2347, SBLR 2004 Sindh 1066, AIR 2004 Deli 64, 2004 SCMR 1308, 2004 TD Labour 442 and PLD 1990 SC 1.
Mr. Muhammad Shafiq Qureshi counsel for the workers supported the impugned judgments/orders and argued that the very basis for initiation of action, i.e. show-cause notice dated 08.4.2000 was malafide. The charge was not specific. Company without adopting the proper course terminated the services of the workers the termination orders being illegal were set aside by this Court vide order dated 09.12.2003 and the company did not initiate any enquiry for more than six months, which could be initiated at the best within one month of passing of the order. According to the learned counsel the company tried to dispense with the services of the workers on fictitious ground that the workers did not join duty despite their re-instatement, but the re-instatement order was in fact an offer for fresh appointment which the workers did not accept and their such act could not be termed as refusal to join duty. The learned counsel for the workers argued that the order dated 09.12.2003 passed by this Court was not complied by the company which by itself is enough to reflect on the malafides. The company initiated the enquiry proceedings only after the workers pressed for their re-instatement in terms of order of this Court. The enquiry proceedings about their willful absence as well as misconduct in terms of show-cause notice dated 08.4.2000 were conducted in an illegal manner. The workers were not afforded proper opportunity to defend themselves. The conduct of enquiry officer was partial and he was favouring the company which is apparent from the enquiry proceedings itself. Learned counsel for the workers argued that when the workers were not re-instated as per order of this Court, they cannot be said to have absented themselves from duty. Similarly, the company failed to establish the charge leveled in the charge sheet dated 08.04.2000 as the Company failed to bring on record any material about workers being involved in tampering of the record or misuse of telephone as neither any record tampered by the workers nor telephone bills were produced before the enquiry officer. Similarly, no document was brought on record to show that the workers named in the show-cause notice were transferred from one section to the other section. Above all the record of production for the said period was also not produced to prove that the act of workers slowed the manufacturing process. Learned counsel for the workers while labeling both the dismissal orders as illegal contended that the services of the workers were terminated on 30.6.04 while they have not been paid their dues after 08.4.2000 and for the intervening period they were entitled for their wages which the company has withheld illegally. The learned counsel finally came up with alternate plea that if the company is of the view that the services of the workers cannot be restored on account of differences between the parties then the option left to the company is to pay the workers their back benefits with compensation in lieu of their re-instatement as provided by Section 46(5) IRO. Counsel for the workers in support of his arguments placed reliance on the following judgments:
1992 PLC 45, 2002 PLC 274, 1960 PLC 201, 1990 PLC 80, AIR 1986 SC 995, SBLR 2004 Sindh, SBLR 2004 Balochistan 219, NLR 1996 Service 11, PLD 1967 SC 367, SBLR 2006 Sindh 243, 1996 SCMR 201, 2001 SCMR 931, PLD 1978 SC 927 and 1982 SCMR 651.
Submissions made by the learned counsel for the parties considered. Record of the case perused. As already stated the basis of the action in all the three cases was the show-cause notice dated 08.4.2000 referred to hereinabove on the basis of which the services of the workers were terminated on 31.8.2000 but the said termination order was set aside by this Court vide order dated 9.12.2003 and the workers were ordered to be re-instated. Further, the company was allowed to hold enquiry about the allegations made in the show-cause notice dated 08.4.2000 and the company before initialing enquiry about the allegations of show-cause notice dated 08.04.2000, issued second show-cause notice to the workers on 24.4.2004 wherein the workers were alleged to have remained absent from duty for more than ten days as after their re-instatment on 6.2.2004 they did not join duty and on said charge enquiry was initiated. Simultaneously, another enquiry was also ordered to be held about the allegations of show-cause notice dated 08.4.2000 and in result of both the enquiries two separate dismissal orders dated 30.6.2004 were issued stating that the workers were found guilty of misconduct as well as for remaining absent for more than ten days.
Before going into the allegations made in show-cause dated 08.4.2000, I deem it appropriate to examine the allegations about workers' absence from duty for more than ten days after their re-instatement on 06.2.2004. It has already been stated that after termination of service of workers on 31.8.2000 they were re-instated with back benefits by this Court vide order dated 09.12.2003. The workers filed application for their re-instatement on 13.12.2003, in response to which the company issued letter dated 06.2.2004 which on bare perusal reflects that the workers were not re-instated. They were rather taken into employment of the Company-from the dale of their reporting for duty. Furthermore, they were posted at difference stations, Muzaffar Ahmed was directed to report at Dawood Yamaha Assembling plant Uthal. Abdul Hameed was directed to report to M. Farooq Kalia Assistant Manager Dawood Yamaha Transit Ware House Karachi. Ghulam Haider was to report at Regional Service Office Multan and Abdul Rasheed was directed to report at Regional Service Office Quetta. The said order further stated that the said offer is valid only for one week, whereafter the company would be not obliged to take them in employment.
The above referred order while cannot be termed as order of re-instatement, it is also found to be not allowing the workers to join their duty which they were performing at the time of termination of their services which in my view is not compliance of order of this Court dated 9.12.2003. In a case of similar circumstances the High Court of Sindh at Karachi in Labour Appeal No. 227/2004 where the worker was ordered to be- re-instated in service though was re-instated, but was not allowed to occupy his office from which he was removed. His re-instatement was held to be not in compliance to the order about his re-instatement. The relevant observations in said regard reads as under:--
"It is an admitted position that the respondents after the order of this Court issued a letter to the applicant for reinstating him in the service. The said letter reads as under:
Reference No. MAZ/2005/1 May 07, 2005
Mr. Abdul Rehman Baloch
D-17, Block-L
North Nazimabad
KARACHI.
Subject: Letter of reinstatement.
In complete compliance of orders passed by the hon. Sindh High Court in Labour Appeal No. 227 of 2004 you are informed as follows:
You are reinstated in service.
Since at present we are not able to find a job in Karachi appropriate to your qualifications and experience, you are not required to come to office till further orders you will be treated on duty and your emoluments will be paid in accordance with your terms and conditions of employment.
Position of your emoluments, dues, liabilities shall be separately communicated to you in due course of time.
For EMMAZED publications private limited.
(M. K. LODHI)
Personnel officer.
From the above letter, it is clear that the applicant was reinstated in service but he was not allowed to occupy his office from which he was removed. The question is whether in the above circumstances the letter issued by the respondent is the compliance of the order of the Court? The word "reinstate" has been defined in the Black's Law Dictionary as under:--
"Reinstate. To install; to re-establish, to place again in the former state, condition, or office, to restore to a state of position from which the object or person had been removed".
It appears that the applicant has not been restored to his original position or office from which he was removed. At the time of dismissal from service, the applicant was working as sub-editor with the respondents. After instatement, the respondents should have posted him as sub-editor, the post from which he was removed. As such, it appears that the compliance of the order has not been fully made in the circumstances of the present case."
Having in view the order dated 9.12.2003 passed by this Court and the order of re-instatement dated 6.2.2004 I have no hesitation to hold that the workers were not re-instated as directed by this Court. Hence, they cannot be said to have failed to join their duty after having been re-instated. In such view of the matter the action taken against the workers on the ground that they did not join their duty and remained absent for more than ten days after their re-instatement order dated 6.2.2004 cannot be validated, therefore, without going into the enquiry proceedings and the action taken in pursuance of the same it would be suffice to observe that the dismissal of workers on the ground that he remained absent for more than ten days, without his proper re-instatement in terms of order dated 31.8.2000 was without any foundation and the dismissal order on said ground was illegal.
Adverting to show-cause notice dated 08.4.2000 according to which the workers were alleged to be indulging in the affairs of management and acting in disorderly manner, they allegedly left the place of duty during working hours and opened the office of Plant Manager wherein they allegedly tampered with the files, they were found taking tea, smoking cigarettes and misused the telephone. Further they removed the workers from the place of their duty and were appointed in other departments against the wishes of Management. The above acts of the workers were alleged to be gross misconduct. As already stated the earlier order of termination of service of the workers on the basis of show-cause notice dated 08.4.2000 was set aside by this Court vide order dated 09.12.2003 and the company was allowed to hold fresh enquiry if so desired. The company left the matter unattended till issuance of the enquiry notice dated 07.6.2004 and meanwhile initiated enquiry about absence of workers from duty who were statedly re-instated on 06.2.2004, but as already held the workers were never re-instated, they were rather offered fresh appointment which they did not accept, therefore, they have not been held guilty of the charge of being absent from duty for more than ten days. The company after initiating the enquiry about absence of worker issued enquiry notice dated 07.06.04 for holding enquiry about the charge of misconduct leveled by show-cause notice dated 08.4.2000. The workers though raised number of objections about the enquiry proceedings which were not entertained by the Enquiry Officer, and they were not allowed to defend themselves through Anwar Minhas as he was stated to be not co-worker. However, the Enquiry Officer proceeded with the matter, by reading the charge, which was denied by the workers, whereafter Aamir Mirza who was stated to be the complainant was examined, he deposed that the reason for issuance of show-cause notice was that workers being office bearers of the Union had paralysed the management. He further stated that the workers and the other office bearers of the Union used to occupy the office of Plant Manager where they used to smoke cigarettes and made alterations in the files. They also used to forcibly take the files from the Admn. Office, they took charge of the production and did not allow the Line Incharge to look after the line. They used to transfer the workers from one machine to other. According to the complainant all this was being done to pressurize the management to accept the Charter of Demand which was under negotiations and he alleged that the telephone was used for their personal matters and no body was to question them as they used to misbehave and abuse. The complainant was cross-examined by the workers who felt aggrieved by the conduct of the complainant as well as the Enquiry Officer as the complainant instead of replying his questions avoided the same stating it to be irrelevant and the Enquiry Officer also did not allow the workers to get answers from the complainant. According to the observations recorded by the enquiry officer the workers left and they did not return even after one hour. Thereafter, ex-parte proceedings were carried during which witnesses namely, Mujeebuddin, Mushtaq Ahmed, Javed Ellahi, Syed Mansoor Ali and Badar Zaman were examined. The substance of their evidence is that Mushtaq Ahmed, Javed Ellahi, Syed Mansoor Ali and Badar Zaman were transferred by the workers from one Department/Section to the other. However, no documentary evidence whatsoever was brought on record by the management to support the allegations about tampering of the record or misuse of telephone, and the management also did not produce the Charter of Demand which the workers being office bearers of the Union intended to get signed from the management by adopting coercive methods as alleged by the complainant Aamir Mirza. The evidence collected by the Enquiry Officer at the best reflects that four workers were transferred from one Department to the other, but no evidence was brought on record to show that the said transfer resulted in any loss to the Company or that the said transfer was of such nature because of which the manufacturing process was hampered. It would be not irrelevant to observe that the company did not produce the record i.e. attendance sheet of different sections to support the ocular evidence about transfer of four workers by the office bearers of the Union, i.e. workers from their section where they were appointed by the management. In such circumstances the said allegation is found to be also doubtful, however if even it is believed that 4 workers were transferred by the company from one department/section to other then too the said act cannot be said to be prejudicial to the company as no loss was caused to the Company by said transfer and there is no evidence that the Company ever objected to the same. In such view of the matter the said transfer cannot be considered to be misconduct as defined in Standing Orders Section 15. The charge put forth through show-cause notice dated 8.4.2000, therefore, remained doubtful and the workers, therefore, could not be dismissed from service by holding them guilty of misconduct, at this juncture, I feel to observe that normally the labour Court and the appellate Court cannot substitute the findings of enquiry officer by reappraisal of the evidence recorded during enquiry merely on the ground that a view contrary to one taken by enquiry officer can be arrived, but if the finding of enquiry officer is found to be on account of misreading and the enquiry officer has mis-conducted or the findings are contrary to record can be substituted by Labour Court or the appellate Court. In the present case at first instance no finding has been recorded and the enquiry officer after giving the substance of the evidence directly recorded his opinion without supporting it by an reason and such opinion in view of the evidence referred to hereinabove cannot be agreed and action taken on such opinion cannot be given any weight. Besides, it would be not irrelevant to observe that not only the enquiry report was improper, the enquiry proceedings also reflect on impartiality of enquiry officer for forming of such view, I am persuaded by the endorsement made by worker Muzaffar Ahmed at the time of making his signature under the statement of Mushtaq Ahmed. The endorsement reads as under:--
The above endorsement indicates that the workers were not provided proper opportunity to cross-examine the witnesses, which fact is further supported by the answers made by complainant, such conduct of enquiry officer and the witnesses seem to be the reason for refusal of workers to participate in the enquiry proceedings. The case law i.e. 1999 SCMR 734 and NLR 2000 Labour 114 relied by the counsel for the company having distinguishable facts and circumstances cannot be applied in the instant case to uphold the enquiry report and action taken on the basis of the same, as in my view company failed to establish misconduct alleged in show-cause notice dated 08.04.2000.
In view of what has been discussed above, I am of the view that both the dismissal orders i.e. on ground of willful absence from duty for more than ten days and the allegations made in the show-cause notice dated 08.4.2000 were illegal and the same were rightly set aside by the labour Court.
As I am of the view that both the dismissal orders were not legal, therefore, the contention of the learned counsel for the company that second show-cause notice was not necessary, is found to be irrelevant.
Learned counsel for the company made an attempt to challenge the maintainability, of the grievance notice filed before the Labour Court contending that the workers, being office bearer who alleged that their termination was malafide and company was involved in Unfair Labour Practice were required to approach NIRC u/S. 49(c) of the IRO, 2002, and their applications under Section 46(3) of IRO 2002 was-not maintainable, the plea of learned counsel for the company is found to be having substance, as Section 49(9) of IRO 2002 expressly states that the jurisdiction of Labour Court to entertain cases of unfair labour practice on the part of employees or workmen whether individually or collectively is not excluded.
The counsel for the company attacked the affidavits in evidence filed by the workers, contending that it was not in conformity with the provisions of Order XIX Rule 3 (1) CPC and such affidavit could not be admitted in evidence. Reliance in said regard was placed on judgments SBLR 2004 Sindh 1066 and 1988 P.Cr.L.J. 2347.
The submissions made by the learned counsel considered and the affidavits in evidence filed by the workers in all the four cases examined, which is found to have been made an oath, as indicated by the endorsement made by the commissioner for taking oath, which reads as under:
"The deponent named above stated on oath before me at Karachi this 4th day of December 2004, who is identified by Mr. Muhammad Shafiq Qureshi Advocate, who is known to me personally."
In such view of the matter it would be suffice to observe that the plea of the learned counsel for the company is contrary to the record of the cases in hand and his plea cannot make the affidavits in evidence nugatory/inadmissible.
The workers have been reinstated with full back benefits. Counsel for the company has objected to the grant of back benefits contending that there was no evidence that the workers remained unemployed after their dismissal from service by the Company. Learned counsel contended that the onus in said regard rested on the workers which they failed to discharge.
On the other hand the said contention of the learned counsel for the company is repelled by the counsel for the workers who supported his plea by referring to the affidavit in evidence of the workers who stated on oath that they remained unemployed after dismissal from service and their such statement could not be controverted.
After having gone through the record and the submissions made by the learned counsel for the parties as well as the series of judgments relied by both the parties, it is to observe that the workers in their affidavits in the evidence categorically stated that they remained jobless after being dismissed from service which fact could not be controverted by the company, and the company failed to produce any evidence about workers being in any gainful service during the period they remained out of service. Although Abdul Hameed worker stated that he was engaged in farming during said period, but his such statement would not show that farming was adopted by him only because he was removed from service as his evidence shows that he was involved in the same even when he was in service of the company, while he denied the plea of the company about having any shop where he does business and the company failed to prove the said plea raised during his cross-examination. However, with regard to other three workers the company did not even agitate that they were engaged in any gainful business or employment after their dismissal from service. In such view of the matter the workers are found to have discharged the onus about their being un-employed after their dismissal and the company was unable to rebut the same. In such circumstances worker could not be refused back benefits. Hence the order of reinstatement with back benefits is found to be unexceptional calling for no interference. However, it is to observe that the relations between the company and the workers has become strained and there exist serious differences between the parties making it difficult if not impossible for them to work in a harmonious manner and in such circumstances remedy has been provided u/S. 46(5) of IRO, 2000 whereby the worker can be compensated in lieu of their reinstatement. The counsel for the workers has impliedly accepted the said position by raising alternate plea for awarding compensation to the workers in lieu of their reinstatement in service. Having in view the above attending circumstances, I deem it appropriate to amend the order of reinstatement of the workers by granting them compensation of 15 months pay and allowances in lieu of their reinstatement in addition to the back benefits for the period they remained out of service till passing of this order.
Accordingly, the order dated 18.10.2005 passed in Labour Appeals No. 14/05, 15/05, 16/05 and 17/05, is merged in this order resultantly the review Application No. CMAs 01/05, 02/05, 03/05 and 04/05 are dismissed and except above modification of order of reinstatement of respondents/workers in service, Labour Appeals No. 02/06, 03/06, 04/06, 05/06, 06/06, 07/06, 08/06 and 09/06 having no merits are dismissed with no order as to cost.
(R.A.) Order accordingly
PLJ 2007 Quetta 83 (DB)
Present: Mehta Kailash Nath Kohli and
Muhammad Nadir Khan, JJ.
WAZIR KHAN--Petitioner
versus
SPECIAL JUDGE ANTI-TERRORISM COURT SIBI
and another--Respondents
C.P. No. (s) 23 of 2007, decided on 5.6.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 494--Constitution of Pakistan, 1973 Arts. 199 & 203--Anti-Terrorism Act, S. 7--Explosive Substance Act, 1884, Ss. 3, 4 & 5--Constitutional petition--Question of--Withdrawal of case--Jurisdiction--Duty of Court--Exercise suo-moto--It is duty bound of Courts to see, as to weather the withdrawal of cases are based on cogent grounds or based on no evidence--Criminal justice should not be hampered and real culprits should not take undue advantage of Section 494 Cr.P.C. and go escort free--It is turn of petitioners to lead defence version--Moreover, jurisdiction has been invoked under
Art. 199 of Constitution of Pakistan--High Court refrain ourselves to comment on the evidence available on record--Held: Trial Court should decide the matter within period of two months positively--Petition is dismissed. [Pp. 87 & 88] A, B & C
Mr. Muhammad Aslam Chishti, Advocate for Petitioner.
Date of hearing: 31.5.2007.
Judgment
Mehta Kailash Nath Kohli, J.--This Constitutional petition is directed against order dated 16th May, 2007 passed by Special Judge, Anti-Terrorism Court Sibi Nasirabad Division at Sibi in Anti-Terrorism Case No. 14 of 2006, registered vide FIR No. 63 of 2006 under Section 3/4/5 of Explosive Substances Act readwith Section 7 of Anti-Terrorism Act, on 2nd September, 2006 at 07:40 p.m. by P.S. City Sibi, whereby; application filed by District Attorney/Special Prosecutor, ATC under Section 494, Cr.P.C for withdrawal of case has been rejected. Following relief has been sought in the present petition:--
"PRAYER:--
(i) Honourable Court may.
(a) Declare impugned order of 16.5.2007 as without lawful authority;
(b) On setting aside impugned order, Honourable Court may be pleased to allow application of Special Prosecutor dated 11.5.2007 and to acquit petitioner.
(ii) In case, Honourable Court declines to interfere with impugned order on any ground, proceedings before Anti-Terrorism Court (1st respondent) in Anti-Terrorism Case No. 14/2006 may be quashed to the extent of petitioner; exonerating and acquitting petitioner."
Facts of the case, in brief, are that Inspector Jan Muhammad Khosa, SHO Police Station, City Sibi lodged FIR No. 63 of 2006 on 2nd September, 2006 alleging therein that he alongwith other Police officials were patrolling the area; about 07:00 p.m. when they reached near Levies Station, sound of explosion was heard from bus stand side, consequently; they reached bus stand, where people had already gathered in a street and informed that explosion took place in the house of one Wazir Khan Bangulzai. It was further alleged that SHO/complainant alongwith Police officials entered in the house and found a panic person, who was taken into custody and on interrogation he disclosed his name to be Ghulam Muhammad son of Ghulam Rasool, caste Rahija, resident of Dhadar and was Working a cleaner of Wazir Khan's vehicle, while driver of the vehicle had alighted at Kolpur and the vehicle was brought by another driver namely Manan son of Behram Khan; said Ghulam Muhammad further disclosed that he alongwith driver Manan, Barkat, Ahmed Nawaz son of Ali Akbar, Nazir Ahmed and Raheem Bakhsh sons of Ahmed Khan were residing in the alleged house for three/four days. It has been stated that on enquiry with regard to alleged explosion, Ghulam Muhammad did not give satisfactory explanation. It was further alleged that accused Ghulam Muhammad, Manan, Barkat, Ahmed Nawaz, Nazir Ahmed and Raheem Bakhsh had brought the bomb for committing terrorist act, which unfortunately exploded inside the alleged house, which had caused damage in the house, as well as, glasses of the minibus and a car were also, broken. The alleged explosive material was taken into possession and sealed in parcel, and accordingly a case under Section 3/4/5 of Explosive Substances Act readwith Section 7 of Anti-Terrorism Act, 1997 was registered with above said Police Station. Consequently, petitioner alongwith above said persons were arrested. After completion of investigation, challan of the case was prepared and charge was framed, to which the accused persons did not plead guilty and claimed trial.
To substantiate accusation, prosecution has produced PW-1 Muhammad Boota (Sub-Inspector), PW-2 Muhammad Sudheer (ASI), PW-3 Muhammad Riaz Awan, Section Commander, Bomb Disposal Squad, PW-4 Khair Bakhsh (Police Constable), PW-5 Khameesa Khan (Police Constable) and statement of PW-6 Jan Muhammad (IP/SHO) were recorded. After close of prosecution evidence statements of accused persons including present petitioner were recorded under Section 342, Cr.P.C, wherein they had denied the allegations and pleaded their innocence.
Record reflects that on 11th May, 2007, an application under Section 494, Cr.P.C. was filed by District Attorney/Special Prosecutor, ATC; alongwith application letters dated 28th April, 2007 addressed by Government of Balochistan, Home and Tribal Affairs Department (Judicial Section) were filed regarding withdrawal of case registered against petitioner and other co-accused persons. It would be appropriate to reproduce herein-below contents of the letter dated 28th April, 2007, addressed to the Secretary, Law Department by Home and Tribal Affairs Department:--
"SUBJECT: WITHDRAWAL OF CASE FIR No. 63/2006 U/S. 3-4-5 EXP: ACT 7 ATA OF POLICE STATION CITY DISTT. SIBI.
The undersigned is directed to refer to the subject noted above and to state that the competent authority, has approved withdrawal of non-compoundable offences in terms of powers vested in him under Section 494 Cr.P.C in case FIR No. 63/2006 under Section 3-4-5 Explosive Act, 7 ATA of Police Station City District Sibi, registered against the accused Wazir Khan Bangulzai and others, which is under trial before the Special Judge, Anti-Terrorism Court, Sibi (copy of approved summary is enclosed).
Sd/- (Nasir Hameed)
Section Officer (Judl:)"
The learned Special Judge, Anti-Terrorism Court, Sibi vide order dated 16th May, 2007, concluded in the following terms:--
Against aforementioned order, petitioner Wazir Khan has filed the present petition before this Court.
Mr. Muhammad Aslam Chishti, learned counsel for petitioner has appeared and urged that the trial Court has seriously erred in refusing to allow withdrawal of the case under Section 494, Cr.P.C. It was further pointed out that it was a case of no evidence, as such; permission to withdraw the case was to be granted. In the alternate, it was submitted that this Court should exercise jurisdiction to suo-moto quash the proceedings on the ground of there being no evidence onrecord against the accused persons.
We have considered the arguments advanced by learned counsel for petitioner and perused the record. From perusal of withdrawal order, reproduced herein-above, it is quite clear that no ground has been mentioned nor any reason has been shown for withdrawal of the case. Simply allowing the petitioner to withdraw from the case would amount to throttling the process of law and is not permissible in law. Mr. Chishti had referred two judgments reported in PLJ 1982 SC 27 and PLD 1980 Lahore 201. The first case referred to by Mr. Chishti related to mass cases registered pursuant to disturbance, which had taken place due to rigging of elections by the Government and the Government after taking all those factors had taken note of the fact that those cases were not based on genuine facts. The factum of rigging was the base for withdrawal of the prosecution cases. In the second case, reported in PLD 1980 Lahore 201, Single Judge of the Lahore High Court was pleased to consider in the related case, the learned Judge had considered the fact of the order passed by the competent authority should be a judicial and speaking order and a bare reference to withdrawal and to act mechanically was held not to be proper. It was further concluded that the supervisory jurisdiction under Section 439, Cr.P.C., can be exercised by the High Court to correct the errors committed by the Courts below. The above two judgments referred to by the learned counsel for petitioner are distinguishable to the facts and circumstances of the case in hand. It is a case related to Explosive Substances Act and as per conclusions drawn by the trial Court, the entire evidence has been recorded. The Government has not given any cogent or plausible reason for withdrawal of the case. The learned trial Court had rightly come to the conclusion that the prosecution has already recorded the entire evidence and it is the defence, who has to lead the evidence. The basic principle on the point is that it is bounded duty of the Courts to see, as to whether the withdrawal of the cases are based on cogent grounds or based on no evidence. The discretion vested with the trial Court should be exercised in such like manner; the criminal justice should not be hampered and real culprits should not take undue advantage of Section 494, Cr.P.C. and go escort free. Reference is made to the judgment of Mir Hassan v. Tariq Saeed & 2 others (PLD 1977 SC 451); relevant observations of their lordships are reproduced herein-below:--
"Section 494 is an enabling provision, and vests in the public prosecutor the initiative and the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. What the Court has to determine in such a case, for the purpose of giving consent, is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. The application for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecution to continue where there is insufficient or meager evidence to justify a conviction. In making such an application the public prosecutor may legitimately be instructed by the Government which, under the legal system obtaining in Pakistan, is responsible for the prosecution of all cognizable offences.
The discretionary power having been vested in the public prosecutor by the statute, the Court acts, so to say, in a supervisory capacity, to see that the power is not abused in any manner exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary course of justice. The Court must, therefore, satisfy itself that there do exist on the record grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution. It is clear that this supervisory function of the Court can be exercised only on a consideration of all the facts and circumstances of the case available to the Court, and not in disregard of any material factor or circumstance having a bearing on the issue. At the same time, it is also clear that in undertaking this exercise the Court cannot embark upon the kind of detailed analysis of the evidence which can appropriately be undertaken only at the conclusion of a judicial trial. Any such attempt would, in our opinion, amount to throttling the prosecution or interfering with the ordinary course of justice."
The next question, raised by learned counsel for the petitioner that this Court should exercise suo-moto and on appraisal of evidence should come to the conclusion that no case is made out against petitioner and the proceedings be quashed. The learned counsel has referred to a judgment reported in PLJ 2007 Cr. C (Karachi) 32. The above exercise of jurisdiction was made by the Division Bench of Karachi High Court in the case in which death was awarded in absentia and the Court had come to the conclusion that the order which was made by subordinate Courts was void and illegal order, where suo-moto exercise under Article 203 of the Constitution of Islamic Republic of Pakistan was made, is not applicable on the facts and circumstances of present case. In the case in hand, the facts are distinguishable as the trial Court has already recorded the evidence and it is the turn of petitioner including other accused persons to lead defence version. Moreover, the jurisdiction has been invoked under Article 199 of the Constitution of Islamic Republic of Pakistan. Their lordships of Hon'ble Supreme Court of Pakistan in the case of Ali Muhammad through Legal heirs & others v. Chief Settlement Commissioner & others (2001 SCMR 1822) were pleased to hold that the High Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan should not exercise suo-moto. Relevant observations are reproduced herein-below:--
"30. Now it would be considered whether learned Judge in Chambers of High Court had lawfully granted relief to respondents Ismatun Nisa and others while disposing of appeal filed by Sardar Shahid knowing well that they are not party in the writ petitions filed by them. In this behalf without dilating in detail on this proposition it is sufficient to observe that in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan High Court does not enjoy suo moto jurisdiction to grant relief to a party as it has been held in Fazl-e-Haq, Accountant General, West Pakistan v. The State (PLD 1960 SC (Pak.) 295), Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677), Akhtar Abbas and others v. Nayyar Hussain (1982 SCMR 549) and Haji Muhammad Sadiq and others v. Khairati (1984 CLC 2239)."
Learned counsel for petitioner had attempted to take us through the evidence, but; we refrain ourselves to comment on the evidence available on record. However, we observe that the learned trial Court should decide the matter within period of two months positively.
For the foregoing reasons petition being devoid of merit is accordingly dismissed in limine.
(N.F.) Petition dismissed
PLJ 2007 Quetta 89 (DB)
Present: Ahmed Khan Lashari and Akhtar Zaman Malghani, JJ.
Mst. SHAH BAKHT and 4 others--Petitioners
versus
RODIN and 4 others--Respondents
C.P. No. 239 of 2006, decided on 3.5.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXII, Rr. 1 & 3--Guardian and Wards Act, (VIII of 1890), S. 7--Constitution of Pakistan, 1973 Art. 199--Constitutional petition--Natural guardian--Next friend of minor--Interest of minors--Mother automatically becomes--Permission of Court, unnecessary--Mother, father, grandfathers and other relatives are natural guardian of minors--Court, while appointing a person other than the guardian, should give reasons--Non-appointing of a guardian ad litem to defend minor is a technical in nature and Court is to see whether the interest of minor was properly safeguarded--Matter should be proceeded and decided on merit--Mother of minors on instituting of suit automatically becomes the next friend of minors and permission of Court is not necessary in case, unless it is shown that she was disqualified to act on account of her interest being in conflict with interest of minors--Petition allowed. [Pp. 90 & 91] A, B & C
Mr. Muhammad Qahir Shah, Advocate for Petitioners.
Date of hearing: 19.4.2007.
Judgment
Ahmed Khan Lashari, J.--By this constitutional petition, orders dated 25-01-2006 and 6.4.2006, respectively, passed by Civil Judge and District Judge, Nushki, have been challenged, whereby application, filed by the petitioners under Order XXXII, Rule 1 CPC, seeking her appointment as next friend of her minor children, was dismissed and Steno of the Court was appointed as guardian of the minors.
The concise facts, giving rise to file instant petition, are that one Master Gul Mir died on 25-11-1998, leaving behind a house and other immovable property having in possession of the respondents. The Petitioner No. 1, being widow and Petitioners No. 2 to 5 minor daughters and sons of the deceased, filed suit against the respondents for declaration, partition and recovery of articles in the Court of Civil Judge, Nushki, on the averments that after the death of Master Gul Mir, the Respondent No. 1 being father and Respondents No. 2 and 3 brothers of deceased, after, retaining the articles, turned out the petitioners from the house, compelling them to institute the suit. The Petitioner No. 1, mother of Petitioners No. 2 to 5, vide application under Order XXXII Rule 1 CPC sought permission of the Court, the minors to sue through next friend. The respondents contested the suit as well as application. The learned trial Court by means of impugned order appointed Steno of the Court as guardian of the minors and dismissed the application. The Petitioner No. 1 filed revision petition before District Judge, which was dismissed, hence this constitutional petition.
Mr. Muhammad Qahir Shah, learned counsel for petitioners, contended that in presence of natural guardian i.e. Petitioner No. 1, there was no occasion for the trial Court to appoint Steno of the Court as next friend of the minors. It was next contended that the Court declined the appointment of next friend on the ground that the District Judge, earlier, on the application of Petitioner No. 1, under Section 7 of the Guardian & Wards Act, declined the relief to her and Civil Judge was appointed as guardian to the property of minors. The conclusion drawn by the Courts below for refusing the relief to the petitioner is not sustainable, as the next friend is to be appointed liberally to a person, who had no adverse interest with the minor or in the suit property.
Respondent No.2 Wahid Bakhsh appeared for himself as well as attorney for Respondents No. 1 and 3 and submitted that the suit of petitioners was not maintainable on the grounds of law as well as on merit, therefore, impugned orders be maintained and petition be dismissed.
We have considered the arguments of learned petitioners' counsel, heard the respondent in person and have gone through the impugned orders, which indicate that prior to institution of suit, Petitioner No. 1 moved an application under Section 7 of the Guardian and Wards Act, 1890, seeking her appointment as guardian of the minors' property, but her application was rejected and in consequence thereof, Civil Judge, Nushki was appointed as guardian. The order was not challenged, which attained finality, thus, the application of petitioner No. 1 for appointing her next friend of the minors in the suit was dismissed on the ground that since Senior Civil Judge was Guardian of the minors' property, therefore, Steno of the Civil Judge would act as next friend to the minors in the suit. Order XXXII, Rule 1 CPC provides that every suit by a minor shall be instituted in his name by a person, who in such suit shall be called the next friend of the minor, while Rule 3 of the Order empowers the Court on being satisfied appoint a proper person to be guardian of the minor defendant to safeguard his interest. The proper person defined in the Order is the natural guardian of minor i.e. mother, father, grandfather and other relatives. The Court, while appointing a person other than the guardian, should give reasons as held in the case of Badiazzaman and others versus Habibullah reported in PLD 1968 Dacca 919. It may be noted that non-appointing of a guardian ad litem to defend the minor is a technical in nature and Court is to see whether the interest of minor was properly safeguarded as held in the case of Muhammad Sharif and another versus Nadeem Shah and others reported in 1988 SCMR 804. The rules of procedure should not be used as stumbling block and in case substantial compliance of the rule is made, the matter should be proceeded and decided on merit. The Petitioner No.1, mother of the minors, on instituting of the suit, automatically becomes the next friend of minors and permission of the Court is not necessary in the case, unless it is shown that she was disqualified to act on account of her interest being in conflict with the interest of minors. There was no occasion for appointment of Steno as next friend of the minors bypassing the natural guardian. The conclusion drawn by the Courts below for not appointing the mother as next friend of the minors, on the ground that Civil Judge was appointed as guardian of property of the minors, is erroneous, thus, we allow this petition and set aside the impugned orders. The Petitioner No. 1 may act as next friend of her minor daughters and sons in the suit filed by her. The parties are directed to bear their own cost.
(N.F.) Petition allowed
PLJ 2007 Quetta 91 (DB)
Present: Mehta Kailash Nath Kohli and Muhammad Nadir Khan, JJ.
ABDUL LATIF, GENERAL COUNCILOR, UNION COUNCIL SONMIANI, DISTT. LASBELLA--Petitioner
versus
PROVINCE OF BALOCHISTAN through Secretary, Home & Tribal Affairs, Civil Secretariat, Quetta & anothers--Respondents
C.P. No. 213 of 2004, decided on 7.6.2007.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Rights--Goverment Policy--Jurisdiction of Levies force--Ceased Tehsildars and Naib Tehsildars to perform their duties as officer-in-charge of police station--Challenged by councilor--Levies force is an effective institution having local people of the area with long experience of tribal society, culture and customs of the province, while the jurisdiction of Levels Covers of the Province, which has effectively controlled the law and order situation in these areas and the ratio of crime is lowest--Held: Petitioner had no personal interest in the matter and could not be treated as aggrieved person--Discretion could not be exercise to allow favouring people to remain backward in the area--Steps taken by Government in introducing the policy was a step forward in justifying the rule of law--Petition dismissed. [Pp. 92 & 94] A, B & D
Interpretation of law--
----Principle--Orders which are passed on universal principles made applicable to all parts of the country, unless are repugnant to any provision of statute or fundamental rights cannot be interfered or loathed with. [P. 94] C
Mr. Shah Muhammad Jatoi, Advocate for Petitioner.
Mr. Abdul Nasir Kasi, Advocate for Respondent Nos. 1 & 2.
Date of hearing: 4.6.2007.
Judgment
Mehta Kailash Nath Kohli, J.--This petition is directed against order dated 14th February, 2004, passed by District Coordination Officer, Lasbella at Uthal, whereby; Government of Balochistan while declaring the districts of Quetta, Nasirabad and Lasbella into `A' areas, ceased the Tehsildars and Naib Tehsildars to perform their duties as officer-in-charge of Police Stations from the date of their replacement by Police officers to be posted by the police Department.
Facts of the case, in brief, are that petitioner is
General Councilor of Union Council Sonmiani, District Lasbella, who has challenged the passing of above said order of competent authority. It has been stated that Levies force is an effective institution having local people of the area with long experience of tribal society, culture and customs of the
Province, while the jurisdiction of Levies covers 95% area of the Province, which has effectively controlled the law and order situation in these areas and the ratio of crime is lowest. The absorption of B' areas intoA' areas is an attempt to infringe the Constitutional rights of Levies force.
Notice of the petition was issued to the respondents.
Respondent No. 2 i.e. Home and Tribal Affairs Department filed parawise comments stating therein that the decision was taken in a high level meeting chaired by both the President and Prime Minister of Pakistan, whereby it was decided that all districts shall be converted into A' area in a phased programme spread over five years. It was further stated the Levies force has served the Province definitely well, however; it has its limitations being a tribal based force. In modern times it is necessary that policing functions are performed with absolute neutrality and by using modern methods of investigation, crime detection and preparing of evidence to be effective for
Court trials, which function can be more better performed by the Police, which have developed an institutional capacity for such tasks. It was stated that the crime rate in Levies area i.e.B' area has been less as compared to `A' area is not because of the extraordinary performance of the Levies force, rather due to tribal bonds and environment, which serves as deterrent to the crime. It has been stated that there is a criterion for absorption of Levies force into
Police force, whereby; Levies personnel have been given option to take the new job or proceed on retirement, if eligible. Respondent No. 2 Provincial Police
Officer in his parawise comments has resisted the petition by stated that the
Levies force are untrained, uneducated and unprofessional, which is acceptable to the people who follow the local customs and act according to the social and tribal norms, which may at time be opposed to the laws of the land.
It would be appropriate to reproduce herein-below contents of order dated 14, February, 2004, issued by District Coordination Officer, Lasbella:--
"In partial modification of this Department's Notification No. SO (Judl.) 4(5) Vol. V/456093, dated 9th January, 1997, the Government of Balochistan is pleased to declare that for the districts of Quetta, Nasirabad and Lasbella, recently completely into `A' areas, the Tehsildars and Naib Tehsildars shall cease to perform the duties as officers-in-charge of Police Stations from the date they are replaced by Police Officers to be posted by the competent authorities of the Police Department."
BY THE ORDER OFGOVERNOR BALOCHISTAN
No. 1442-57/3(21)/SB/DCO/LBA Office of the District Coordination Officer, Lasbella at Uthal Dated Uthal the 14th February, 2004."
Mr. Shah Muhammad Jatoi, learned counsel appeared on behalf of petitioner, while Mr. Abdul Nasir Kasi, learned counsel represented the official respondents.
Learned counsel for petitioner has contended that; (a) despite the fact that Levies force is still one of the best law enforcing agency but its substitution with incompetent force without giving opportunity of hearing or taking into confidence the local interest of the area, and thus; the impugned notification is against the spirit of maintaining law and order, as well as, this act is favouritism and also violation of fundamental rights; (b) the Levies force being extremely popular in public, but its substitution has got hatred in the society by way of bulldozing the interest of public without their consent, hence; the impugned notification has been issued to get rid of local people, and thus; is required to be declared as unlawful; (c) the Government of Balochistan has taken the decision without placing this issue before the Provincial Assembly, rather; instant decision was made contrary to wishes of the Public at large.
On the other-hand, learned counsel for official respondents has placed on recorded minutes of the meeting chaired by the President and Prime Minister of Pakistan whereby the regular law already extended to the area is to be applied through regular force in order to establish rule of law and uniformity of the same with other parts of country. The first question for examination is to whether the Superior Courts have interfered in policy matters whereby; the uniformity of law and machinery having been installed to bring people of said area at par with other citizens of country. It is an established principle of law that the orders which are passed on universal principles made applicable to all parts of the country, unless are repugnant to any provision of statute or fundamental rights cannot be interfered or loathed with. We are supported by the judgments reported in the cases i.e. Ahmed. Abdullah & 62 others v. Government of Punjab & 3 others (PLD 2003 Lahore 752), Prof. Noor Muhammad. Khan Marwat, Principal, Lucky College of Education & Research, Lakki Marwat v. Vice-Chancellor, Gomal University, Dera Ismail Khan & 2 others (PLD 2001 SC 219), Muhammad. Iqbal Rafi & 2 others v. The Province of Punjab, Lahore & others (1986 SCMR 680). The relevant observations of the Full Bench of Lahore High Court are reproduced herein-below:--
"37. ... ... ...Sitting in the Constitutional jurisdiction this Court would not like to, enter into the policy making domain of the State or question the legislative wisdom."
We are also of the view that the petitioner has no personal interest in the matter and cannot be treated as aggrieved person; the discretion cannot be exercised to allow favouring people to remain backward in the area. According to us, the steps taken by the Government in introducing the policy is a step forward in justifying the rule of law.
Thus, for the foregoing reasons, we see no merit in the petition, which is accordingly, dismissed.
(A.S.) Petition dismissed
PLJ 2007 Quetta 95
Present: Muhammad Nadir Khan, J.
MUHAMMAD NAEEM--Appellant
versus
GENERAL MANAGER M.C.B. and another--Respondents
L.A. No. 1 of 2007, decided on 19.6.2007.
Industrial Relations Ordinance, 2002 (XCI of 2002)--
----Ss. 36 & 47--Service matter--Terminated from service--Assailed--Grievance notice--Time barred--Grievance notice was to be issued within 30 days--Issued after one month and three days of dismissal of his appeal--Civil servant did not file any application for condonation of delay--Appeal dismissed--Appellant issued notice after one month and three days of dismissal of his appeal, whereas, grievance notice was to be issued within 30 days, hence if even the period spent by appellant before wrong forum is excluded then too he issued the grievance notice after expiry of period of 30 days--Appellant did not file any application for condonation of delay explaining the circumstances due to which he issued grievance notice after dismissal of his appeal--Held: Limitation is not to be condoned without application--Grievance application filed by appellant on basis of grievance notice issued after prescribed period of one month was rightly rejected by Labour Court and such order being unexceptional needs no interference--Appeal dismissed. [P. 99] B, C & D
Limitation--
----Limitation would start from date of dismissal and not from the date of issuance and receiving the copy of order of dismissal of appeal.
[P. 99] A
Mr. M. Usman Yousafzai, Council for Appellant.
Mr. Shahid Anwar Bajwah, Counsel for Respondents.
Date of hearing: 30.5.2007.
Judgment
This labour appeal u/S. 47(3) of Industrial Relations Ordinance, 2002 (hereinafter referred to as IRO, 2002) is directed against the order dated 21.12.2006 passed by First Labour Court Balochistan, Quetta, whereby the grievance petition u/S. 46 of IRO, 2002 filed by the appellant against the respondent has been dismissed.
The case of appellant (hereinafter referred to as the applicant/worker) is that in Feb. 1977 he was appointed as Cashier in Muslim Commercial Bank Liaquat Bazaar Branch Quetta. During service the applicant on account of his good performance and hard work was awarded cash award, letter of appreciation etc. The applicant was posted in different branches of the Bank where he demonstrated his good performance and during his service neither the bank nor any customer complained against him. The bank keeping in view the performance of the applicant, promoted him as Grade-3 Officer and he was also moved to the next higher grade with effect from 1.1.2003. Subsequently, on 27.1.2003 the applicant was served with charge sheet for the wrong committed by the other employees of the bank. Applicant submitted his reply to the charge sheet on 30.1.2003 whereafter he was served with supplementary charge sheet dated 4.4.2003 which too was replied by the him. The bank thereafter appointed Mr. Muhammad Ameen AVP as Enquiry Officer who submitted his report and the services of the applicant were terminated vide order dated 17.7.2003. The applicant filed appeal before respondent on 27.7.2003 but received no reply. The applicant thereafter filed service appeal before Federal Service Tribunal on 5.1.2004 which was dismissed vide order dated 26.4.2004 for want of jurisdiction. After dismissal of the service appeal, applicant issued grievance notice u/S. 46 of IRO to the respondents on 29.5.2004 which was not replied by the respondent. Thereafter, the applicant filed application u/S. 46 of IRO before First Labour Court Balochistan Quetta on 29.6.2004 wherein he challenged his termination order dated 17.7.2003.
The respondent resisted the application by filing of rejoinder wherein number of preliminary objections including application being time barred were raised and on merits too the plea of the applicant was resisted.
Learned Labour Court out of pleadings of the parties framed following issues:--
Whether the petitioner does not come within the definition of worker/workmen IRO, 2002 If so what would be the effect?
Whether the Court has jurisdiction to entertain or dispose of the present application?
Whether applicant served any valid grievance notice under law within the contemplation of Section 46 IRO 2002?
Whether application is time barred or otherwise?
Whether applicant dismissed properly after proper domestic inquiry under law?
Whether the petitioner is entitled for the relief claimed for?
Relief?"
Applicant in support of his plea in addition to his affidavit filed affidavits of AW. 1 Muhammad Sharif, AW.2 Ejaz Ahmed and AW.3 Haji Akhtar Muhammad. Applicant as well as his witnesses were cross examined by the respondent. In rebuttal respondent filed the affidavits of RW.1 Muhammad Nasir Anjum and RW. 2 Muhammad Rafique.
Learned Labour Court concluded the proceedings by means of order dated 21.12.2006 whereby the grievance petition has been dismissed holding it to be time barred.
Mr. Muhammad Usman Yousafzai counsel for the appellant/applicant argued that the trial Court failed to appreciate the facts and circumstances of the case which explain the delay in filing of the grievance petition as the applicant due to bonafide mistake of law filed service appeal before Federal Service Tribunal which was finally held to be without jurisdiction and dismissed vide order dated 26.4.2004 copy whereof was issued to the applicant on 12.5.04. The applicant thereafter without wasting any time issued grievance notice dated 29.5.2006 which was not relied. Hence he filed the grievance petition on 19.6.2006. According to the learned counsel for the applicant the grievance notice as well as the grievance petition excluding the earlier period during which the applicant bonafidely pursued the matter before Federal Service Tribunal, were within time. The counsel for the application supported his plea by the following case law:--
PLD 1995 SC 629, 1995 SCMR 1665.
Mr. Shahid Anwar Bajwah learned counsel for the respondent supported the impugned order and argued that the grievance notice was issued by the applicant was time barred. The applicant did not file any application for condonation of delay, in absence of which the delay could not be condoned. Learned counsel for the respondents further argued that the period during which the applicant pursued the matter before Federal Service Tribunal if even excluded then too his grievance petition was filed with delay as the period from 17.7.2003 to 5.1.2004, i.e. the date of dismissal of applicant from service till the date of filing of appeal before Federal Service Tribunal remained un-accounted for Furthermore, the service appeal of the appellant before Federal Service Tribunal was dismissed on 26.4.2004, whereafter the grievance notice was issued on 29.5.2004, whereas u/S. 46 of IRO the grievance notice was to be served within a period of one month. The grievance petition, therefore, on said score was also time barred. Grievance petition filed on the basis of time barred notice was rightly dismissed by the labour Court. Learned counsel for the respondent supported his arguments by following case law:--
PLD 1988 SC 83, 2007 PLC 46.
The facts of the case referred to hereinabove reflect that the appellant/applicant was removed from service on 17.7.2003 whereafter he filed the appeal before respondents on 27.7.2003 which was not relied. Thereafter, he filed appeal before Federal Service Tribunal on 5.1.2004 which was dismissed on 26.4.2004 for want of jurisdiction. The order dated 26.4.2004 reflects that appellant/applicant was present on the date when order dated 26.4.2004 was passed, however, copy of the order was issued to him on 12.5.2004. The facts and circumstances of the case though reflect that the appellant was serving the respondent bank as Officer bonafidely filed the appeal before Federal Service Tribunal and the time consumed by him in pursuing the appeal before Federal Service Tribunal need to be excluded while after dismissal of appeal on 26.4.2004 he receive the copy of order dated 12.5.2004. Thereafter he served the respondent bank with notice on 29.5.2004. The question which cropped up was that whether the date for issuance of grievance notice is to be reckoned from the date of dismissal of appeal by Federal Service Tribunal or from the date of issuance of the copy of the order, i.e. 12.5.2004. The honourable Supreme Court in its judgment 2007 PLC 64 being relied by the counsel for respondent/bank refused to grant leave to the worker in a case having somewhat similar facts and circumstances as the worker even after dismissal of the constitution petition and intra-Court appeal, did not issue the grievance notice within period of one month. The relevant observations reads as under:--
"In case the aforesaid facts are put in a juxtaposition, then it is clear that the petitioner had served grievance notice on 7.11.2002 after 3 years and 4-1/2 months and thereafter filed grievance petition on 25.11.2002. In case the cause of action accrued on 30.9.2002 to him after dismissing of his I.C.A. by the learned High Court, even then he had not served grievance notice to the respondents in terms of Section 46(1) of I.R.O. 2002 within specified period of one month. It is a settled principle of law that the question of limitation under Section 46 of the I.R.O. has to be rigidly construed on the well-known maxim that no party is allowed to circumvent the provisions of the statute of limitation. It is yet another principle of law that the party approaching Court of competent jurisdiction for redress of grievance beyond specified period of limitation is bound to explain each day's delay to the satisfaction of respective forum because a valuable right accrues to the other side. See Government of Punjab v. Muhammad Salim PLD 1995 SC 396 = 1995 SCMR 546; Rehmat Ullah and others v. Ulyas Khan 1968 SCMR 975 and Pakistan Railway v. Ghulam Sarwar 1989 SCMR 864".
From the above observations of the honourable Supreme Court it is clear that even after excluding the period spent pursuing the matter before the wrong forum, the limitation would start from the date of dismissal and not from the date of issuance or receiving the copy of the order of dismissal of the appeal. As stated hereinabove the appeal filed by the appellant was dismissed on 26.4.2004. The order reflects that the appellant was present on the said date and the order was announced in his presence, therefore, he was very much in knowledge of the order dated 29.4.2004. Furthermore, there is nothing on record to show that when the appellant applied for issuance of order dated 26.4.2004 passed by Federal Service Tribunal Islamabad. The letter dated 12.5.2004 rather reflects that copy of order was sent by Assistant Registrar on its own for information of the applicant. In such circumstances the applicant cannot take any benefit by the letter dated 12.5.2004 about issuance of the copy of the order to him. In such view of the matter the judgment of honourable Supreme Court referred to hereinabove shall apply and I have no hesitation to hold that appellant/worker issued the notice after one month and three days of dismissal of his appeal, whereas u/S. 46 IRO, 2002 the grievance notice was to be issued within 30 days, hence if even the period spent by the appellant before wrong forum is excluded then too he issued the grievance notice after expiry of the period of 30 days. At this juncture it is to observe that the appellant did not file any application for condonation of delay explaining the circumstances due to which he issued the grievance notice on 29.5.2004 after dismissal of his appeal on 26.4.2004. The Hon'ble Supreme Court has held that limitation is not to be condoned without application (1999 SCMR 2353, 1986 SCMR 1624).
Having in view the above facts and circumstances. I have no other alternative but to hold that the grievance application filed by the appellant/applicant on the basis of grievance notice issued after the prescribed period of one month was rightly rejected by the learned Labour Court and the said order being unexceptional needs no interference.
Appeals, thus having no merits is dismissed.
(N.F.) Appeal dismissed
PLJ 2007 Quetta 100 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Akhtar Zaman Malghani, J.
Maulana ABDUL HAQ BALOCH FORMER MPA & MNA, JAMAT-E-ISLAMI & 2 others--Petitioners
versus
GOVERNMENT OF BALOCHSTAN through Secretary Industries & Mineral Development, Quetta & 6 others--Respondents
C.P. No. 892 of 2006, decided on 26.6.2007.
Constitution of Pakistan, 1973--
----Art. 199--Balochistan Mining Concession Rules, 1970 (Repealed and new Rules known as Balochistan Mineral Rules, 2002--Scope--Constitutional petition--Larger interest of public--Chagai Hills Exploration Joint Venture Agreement--Contentions--Mineral resources of copper and gold deposit explored in the area--Province of Balochistan are not plundered and looted by authorities who have control over them--Transaction of exploration and production of copper and gold with foreign companies are contaminated with illegalities--Clandestine and illegal manner--Huge mineral resources has been handed over to respondents without taking into consideration--Violation of rules and regulations--Leasing of the area--Controversy notices were issued to respondents--Validity--Entitlement for mining at agreed ratios of profit--Companies with huge capitals, have been established, who are doing the risky business of exploration and government of developing countries, have entered into agreement with them for exploring the metal deposits, by investing huge amount at their own risk and cost and on exploration would be entitled for mining at agreed ratios of profits--By virtue of suchy agreement, the Government of Balochistan without spending a single penny was entitled to have 25% profit on the extraction and production of minerals--After execution of CHEJVA, BHP commenced with exploration work, spent huge amount in collecting samples, carrying out chemical analysis, by drilling in the area--Held: Question of--Whether a petition falls under ambit of public interest litigation the Courts have to see that a person approaching the Court is acting bonafide and not for any personal gain or private motive or political motivation or other oblique consideration on has to show genuine and visible public wrong--Petition dismissed.
[Pp. 103, 104, 106, 116, 118 & 137] A, B, C, D, E & O
Malafide--
----Malafide could not be attributed to legislature, unless ultra vires to the Constitution. [P. 121] F
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Mining agreement--Entitlement of royalty--Assailed--Interest of public--Chagai Hills Exploration Joint Venture agreement--Transactions with foreign companies were carried out in clandestine and illegal manner--Mineral resources handed over to respondent, assailed--Validity--Government of Balochistan has executed mining agreements but in none of such agreement--Held: Interest of the people of Balochistan is very well secured and once the production starts the Balochistan in addition to royality will be entitled to 25% share which will fetch huge amount of revenue for Govt. of Balochistan--CHEJVA has been executed legally and the interest of the people of Balochistan has been very well taken care of--Further held: General and untrammelled rights cannot be given to the people to file frivilous cases in name of public interest litigation--Petition dismissed. [P. 121, 122] G & H
Constitution of Pakistan, 1973--
----Art. 199--Balochistan Mining Concession Rules, 1970, Preamble--Ground reality--Constitutional Petition--Chagai Hills Exploration Joint Venture Agreement--Welfare and benefit of the people of Balochistan--Transaction of exploration and production of copper and gold with foreign companies are contaminated with illegalities--Violation of Rules and Regulations--Validity--Question of--Reality--Govt. of Balochistan has issued many licenses for mining purpose to different persons and companies for mining in different minerals, but Govt. is not a share holder in any of the mining lease as in case in hand--Held: Local people of most of the area, where mining has been carried out for years are deprived from basic necessities of life whereas Govt. and lease holders have made millions--Petitioners are not aware about same or have closed their eyes to the reality--Petition dismissed. [P. 127] I
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Chagai Hills Exploration Joint Venture Agreement--Mineral resources of copper and gold deposit explored in the area--Transaction of exploration and production of copper with foreign companies are contaminated with illegalities--Clandestine and illegal manner--Assailed--Locus standi--Aggrieved person--Validity--Petitioners have no locus standi to file the petition, as they have shown no personal grievance to justify the filing of petition and do not fall within the definition of an aggrieved person, as envisaged under Art. 199 of the Constitution and have no legal nexus or any other relevance to mining industry to indulge in frivolous litigation--Petition dismissed. [P. 127] J
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Post and closed transaction--Barred by laches--Illegality--Relief--Relief sought cannot be granted after long period of 13 years, in respect of past and closed transaction and writ jurisdiction which is discretionary in nature cannot be exercised in favour of indolent nor it can be exercised to perpetuate an illegality--Held: Being a past and closed transaction, it cannot be re-opened. [P. 133] K
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Chagai Hills Exploration Joint Venture Agreement--Assailed--Public interest--Maintainability--Alternate remedy--Petition is not maintainable, as alternate remedy is available to petitioner--Question of--Held: Being a question of public importance, therefore, question of alternate remedy may be ignored. [P. 133] L
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Chagai Hills Exploration Joint Venture Agreement--Assailed--Question--Factual controversy--Jurisdiction--Validity--High Court while exercising jurisdiction under Art. 199 of Constitution would not interfere as it requires evidence since the petition is replete with factual controversy and disputed facts, therefore, High Court will not exercise jurisdiction to decide factual controversy--Held: Without any hesitation that factual controversies are involved in the petition therefore, High Court while dealing the case under Art. 199 of Constitution should refrain from going into same--Petition dismissed. [Pp. 134 & 135] M & N
Mr. Abid Hassan Minto, Advocate & Mr. Anwar-ul-Haq, Advocate for Petitioners.
Mr. Salahuddin Mengal, A.G. for Respondent No. 1.
Mr. Shakil Ahmed, Advocate for Respondent No. 2.
Mr. Muhammad Riaz Ahmad, Advocate & Ch. Mumtaz Yousaf, Standing Counsel for Respondent No. 3.
Qazi Faez Isa, Advocate for Respondent No. 4.
M/s. Sajid Zahid Muhammad Chinoy and Abdul Rehman Jamali, Advocates for Respondent Nos. 5 & 7.
Mr. Muhammad Zafar, Advocate for Respondent No. 6.
Mr. Abdul Hafeez Pirzada & Sikandar Bashir Mohmand, Advocates for the Respondent No. 8.
Date of hearing: 8.5.2007.
Judgment
Amanullah Khan Yasinzai, C.J.--Facts relevant for disposal of instant petition are that; petitioners Maulana Abdul Haq Baloch, Yousaf Masti Khan and Ehsanullah Vaqas; claim to be a Former MPA, MNA, Jamat-e-Islami, Secretary General, National Workers' Party and MPA, Punjab
Assembly/Member, Jamat-e-Islami Political Party, respectively in such capacity, have filed instant petition, in the larger interest of public, to ensure that the mineral resources of copper and gold deposits, explored in the area of Reko
Diq situated in District Chagai of the Province of Balochistan, are not plundered and looted by the Authorities, who have control over them. It is their case that, Province of Balochistan is rich in mineral resources, which exclusively belong to the People and the Provincial and Federal Governments, are just Custodian/Trustees of the said Wealth. It is stated that, Reko Diq area (earlier known as Koh-e-Dalil') in District Chagai, is rick in copper and gold Deposits, which have been discovered by the Geological Survey of Pakistan and that a News Article appeared in DailyBusiness Recorder' of 22nd July, 2006, which revealed that a meeting between the Federal Minister for Petroleum and Natural Resources and the Chief Executive and Chairman of Respondents 4 and 5, was held and that in said meeting, the Respondents 4 and 5 showed their interest to make investment, with the intention to explore and extract 250,000 tones of copper and substantial amount of associated gold from the said area.
After going through the said News Item, the petitioners as per their case, started probing in the matter, regarding mining of copper and gold in the Reko
Diq area and initially they were of the view that huge and substantial work must had already been done in the Reko Diq area in the last 14 years when the said area was handed over to Respondent No. 8 for exploration, but now they have come to know that no real. work has been done and that, all transaction in respect of exploration and production of copper and gold with foreign companies are contaminated with illegalities. On the strength of news Item, published in Daily `The News' on May 26th 2004, it is further the case of petitioners that, transactions with foreign companies were carried out in a clandestine and illegal manner, whereby deposits of huge mineral resources, have been handed over to respondents, without taking into consideration the interest of the people of Balochistan and that, initially the area was leased out to Respondent No. 8 without observing the Rules and Regulations, covering the subject of exploration of mineral resources and its mining and thus; after going through its news item, they tried their best to lay hand on the relevant documents and during this process they came to know that, an agreement was executed by the Government of Balochistan with the Australian based Company
(Respondent No. 8), they could not be able to get any other information from official sources. However, through other sources i.e. Websites, they have came to know that, Balochistan Development Authority (in short "BDA") had entered into an Agreement known as "Chagai Hills Exploration Joint Venture
Agreement" (herein-after referred to as "CHEJVA") with
Respondent No. 8, entitling Respondent No. 8 and BDA to have profit share in the production of minerals at the ratio of 75% and 25% respectively. According to the petitioner, they could not be able to lay hands on this agreement executed on 29th July, 1993. It is the plea of petitioners that leasing of such area to Respondent No. 8 through CHEJVA was in violation of various provisions of Balochistan Mining Concession Rules, 1970 (herein-after referred as
"1970 BMC Rules"). From the Websites it was further revealed to them that, Respondent No. 8 has further assigned the Reko Diq area to Respondent No.
4. Petitioners have further pointed out that though Respondent No. 8 by virtue of CHEJVA was committed to spend an amount of U.S. $:130 Million for H4
(Starter) Project (a part of deposits of copper and gold in Reko Diq), but had only. spent U.S.$7.00 Million and after exploration has assigned H4 Project to
Respondent No. 4, which is a newly established Company, having no experience in the field of mining. It is the contention of petitioners that since 1993 no substantial work has been carried out that only the respondent-Companies are sniffing around Reko Diq, without doing anything towards the Project. It is their case that, assignment made in favour of Respondent No. 4 was through good office of Respondent No. 6, who also made huge money in this deal. It has been pointed out that, Respondent Nos. 5 and 7 had acquired the entire share holding of Respondent No. 4, at the ratio of 50:50. It is also the contention of petitioners that, 1970 BMC Rules were repealed and new Rules known as
"Balochistan Mineral Rules, 2002", (herein-after referred as
"2002 BMC Rules") were framed by the Government of Balochistan under the influence of respondent-Companies, to make out a way for legalizing the illegal acts. Besides the Reko Diq area has also been illegally declared as
Export Promotion Zone (in short "EPZ"), just to benefit the respondents. In a nutshell; the grievance of the petitioners seems to be that execution of CHEJVA, is in violation of 1970 BMC Rules and since 1993 no significant work has been done and the Foreign Companies are only sniffing around deposits of Reko Diq and making money, without any practical work, thus following relief has been sought:--
"Under the circumstances, it is respectfully prayed that this honourable Court may be pleased to declare that all transactions, starting from and based upon the CHJV of 1992-93, including each grant of a license or other concession to any of the respondents and every transfer of interest in Reko Diq leading up to the latest acquisition (whether contemplated or completed) of Respondent No. 4, by Respondent No. 5 and of Respondent No. 4's interest in Reko Diq by Respondents No. 5 and 7, are illegal, ultra vires, unconstitutional and mala fides and liable to be set aside. This Honourable Court may be pleased as a consequence, to order that interests in Reko Diq be disposed of strictly in accordance with the applicable law, rules and policy and after inviting bids.
Any other relief including orders for appropriate inquiries and investigations and recovery of fortunes amassed by the Respondents in the subject deals may also be kindly granted."
As observed above, the entire petition was basically filed on the strength of News item of the Daily "The News" dated May 26th, 2004, so in order to understand the real controversy notices were issued to the respondents, who filed their respective replies supported by numerous documents, which will be discussed at a later stage, but before that, we would like to streamline the factual position and background of entire scenario.
History reveals that Copper and gold are being mined and converted into metal since ancient times. The scientific research proved that deposits of copper and gold are lying along Tethyan Magmatic Arc which extends from Eastern Europe through Turkey, Iran, Balochistan and across the Himalayas to Myanmar. The Pakistan section of the Tethyan Arc is known locally as the Chagai Arc. The Gazetteer of Balochistan, published in 1906, reveals that during the field visit of 1898-1901, for the first time, Mr. E. Vrendernburg, Deputy Superintendent of the Geological Survey of India, first documented copper staining at the site known as sulfide Valley in which the Saindak mine is located in the words; "Ores of copper, lead and iron, and some other minerals of commercial value, such as sulpher-gokurt, sulphate of lime and sulphate of alumina-phulmak have been met within several localities." He on the basis of his study opined that "the physical drawbacks of the region, the absence of fuel and the difficulty of obtaining labour, make it improbable that any satisfactory return could be obtained under existing conditions." The presence of copper deposits was later re-confirmed by the Geological Survey of Pakistan during field mapping in 1962, but as regards the Reko Diq area, there has never been any discovery of copper-gold. However, being an area located on Tethyan Arc there were prospects of copper-gold deposits but no steps were taken for discovery of any deposits. One of its major reason might be that, without putting large risk capital investment, one could not discover or prove such mineral deposits. On International level, many Companies with huge capitals, have been established, who are doing the risky business of exploration, and Governments of developing Countries, have entered into Agreements with them for exploring the metal deposits, by investing huge amount at their own risk and cost, and on exploration, would be entitled for mining at agreed ratios of profit. For the first time in 1993, BHP, Minerals International Exploration Inc. A corporation registered in the State of Delaware United States of America, (in short "BHP") i.e. Respondent No. 8, showed interest in the exploration of copper-gold and other associated minerals in an area of about 8000 Sq. Km in Chagai district. This resulted in execution of CHEJVA on 29th July, 1993, between the BHP and the Government of Balochistan. By virtue of this Agreement, the Government of Balochistan without spending a single penny was entitled to have 25% profit on the extraction and production of the minerals. After execution of CHEJVA, BHP commenced with the exploration work, spent huge amount in carrying out in collecting samples, carrying out chemical analysis, by drilling in the said area. The initial work narrowed down the area to 1000 Sq. Km and ultimately on the basis of sampling and mapping Reko Diq was identified as an area containing huge reserves of copper and gold in 1995. To evaluate the reserves, 20,000 meters drilling was carried out in different sites of Reko Diq by BHP resulting in discoveries of copper-gold deposits. On 4th March, 2000 Addendum No. 1 to CHEJVA was made, whereby BDA was appointed as an Agent of the Government of Balochistan in the matter of Joint Venture. In 2000, after the BHP identified H-4 Reko Diq Prospect, the same was not found to be of much large size by the BHP, as it being a big Company mainly focusing on major mining, therefore, it firstly offered its 75% share to the Government of Balochistan, having first preferential right, and on refusal of Government of Balochistan, due to lack of resources, NOC was obtained by BHP, for transferring its share to any other Company, capable of making huge investment and thereafter on 28th June, 2000, in view of the provisions of CHEJVA, sold its share of 75% to Respondent No. 4, an Australian Company in the name and style of Tethyan Copper Company (in short "TCC") with a provision of claw back right in case of a major find. TCC thereafter commenced with the further exploration by spending huge amount in the process of drilling, collection of samples and carrying out tests. On 28th April, 2006, Respondent No. 5 Antofagasta Plc, a Company from Chile purchased the entire shareholding of Respondent No. 4, and thereafter indirectly transferred 50% shares to Respondent No. 7 Barrick Gold Corporation, (in short "BCE") a Company based in Canada, including acquisition of Respondent No. 8's claw-back right. The two Companies said to have an international recognition in the filed of mining copper and gold and already carrying out major mining explorations in different Countries of the World. It is said that TCC after becoming 75% share holder in Reko Diq, commenced with operational works and made drilling of 60,000 meters and further committed to make drilling of another 90,000 meters till mid of 2008; this being the factual background of Reko Diq area.
After service of notice, all the respondents filed their separate Counter Affidavits. Respondent No. 1, 2, 4, 5, 6, 7 and 8, besides contesting the petition on merits, also raised preliminary legal objections, which are summed up as below:--
(i) The petitioners have no locus standi to file instant petition, as they do not fall under the definition of an `aggrieved persons' in terms of Article 199 of the Constitution of Islamic Republic of Pakistan.
(ii) As petitioners are seeking setting aside of the acts, orders, decisions and transactions took place way back in 1992-93, therefore, the petition is hit by the principles of laches.
(iii) As in the Hierarchy of 1970 BMC Rules and 2002 BMC Rules, an alternate remedy is available to petitioners, therefore, instant writ petition is not maintainable.
(iv) As petition involves intricate and disputed questions of facts, which are not dealt with in writ jurisdiction, therefore, petition deserves dismissal.
(v) The petitioners cannot question the past and closed transaction after a long period of 13 years, therefore, relief as sought cannot be granted to.
(vi) Respondent No. 6 is not a necessary party, as no relief has been claimed against him.
(vii) The petitioners have not approached with clean hands; and
(viii) Petitioners have no prima facie case or any cause of action accrued in their favour.
Respondent Nos. 1 and 2 i.e. the Government of Balochistan through Secretary, Industries and BDA, have filed a detailed reply, stating therein that, BDA with the prior approval of the Government of Balochistan signed a Joint Venture Agreement with BHP for the exploration of gold and Associated Minerals in District Chagai on 29th July, 1993, wherein it was agreed that 25% share shall belong to the BDA and 75% share to the BHP. While repudiating the contention that the agreement was in violation of 1970 BMC Rules, it was stated that the Government has rightly executed CHEJVA with Respondent No. 8. In this regard, Rules were relaxed by the Government. While giving the factual background of the case, it was averred that CHEJVA was executed by the BDA with the prior approval of the Government and thereafter the BHP carried out reconnaissance upto 1999 and reported millions of tones of copper-gold in Reko Diq from two areas (projects), i.e. supergene (H4/Tanjeel Project) and Hypogene (Western extension) It was further stated that, BHP was granted ten Prospecting Licericies, out of which, nine PL's were surrendered and one PL of Reko Diq was retained. After implementation of the National Mineral Policy, 1970 BMC Rules were replaced and 2002 BMC Rules were enacted. Exploration Licence No. 5 was granted to the Joint Venture for Reko Diq area for three years, which was further renewed for a period of three years upto February, 2008. However, it was agreed between the Government of Balochistan and BHP for change in the CHEJVA and Government of Balochistan issued Addendum No. 1 in March, 2000, whereby BDA was appointed as an Agent of the Government of Balochistan. On 28th June, 2000, BHP brought in an Australian Company, Minor Resources NL/Tethyan Copper Company to reply it with the later under certain terms and conditions mentioned in the option agreement, but since the Government of Balochistan had the first right to purchase therefore offer was made to the Government of Balochistan, which was refused, due to heavy risk investment to be made on the exploration and allowed BHP to transfer its interest to TCC. On transfer of interest, TCC carried out extensive exploration activities at Reko Diq on the supergene deposit (H4/Tanmjeel Project) and reported 167 million tone of copper at an average grade of 0.7% copper. It contains 1.1 MT of copper metal (2.9 billion pounds of copper metal). On basis of same, TCC planned to produce 45000 tones copper per annum. It was further stated that TCC is also involved in detailed exploration work on H4 project and has reported an estimated resource of about one billion tones at an average grade of 0.58% copper 0.28% gold containing 7.1 million tones of copper metals (15.6 billion pounds) and 10.9 million ounces of gold. It was further stated that, Antofagasta of Chile and BGC have purchased the shares of TCC and after acquiring the shares both Respondents 5 and 7 have started a very huge advanced drilling and exploration programme at Reko Diq with an estimated budget of US$:30 million for eighteen months programme ending December, 2007. It was further stated that, petitioners belong to Political Parties and the petition is politically motivated with a view to serve ulterior motive and as far the interest of the people of Balochistan is concerned, that stands fully secured, as the agreement in no way can be termed adverse to their interest, rather share on higher side has been fixed, which is also unprecedented. The petition has been filed without proper study on the subject of exploration of minerals.
Respondent No. 3 also denied the contents of the petition and stated that mining exploration exclusively falls within the domain of Provincial Government and Federal Government has unnecessarily been made party and that CHEJVA has been arrived at between Government of Balochistan and BHP, to which the Respondent No. 3, has nothing to do.
Respondent No. 4, averred that the petition is frivolous and without any lawful basis. Regarding main grievance of the petitioners that nothing has been done at the site, the same was denied and it was stated that
Reko Diq area was initially discovered in 1996-97 by Respondent No. 8, after field mapping, collection of samples for analysis and satellite image interpretation. It was stated that over 5,000 samples were collected by Respondent
No. 8 and over 35,000 chemical analysis were performed to measure the concentration of various metals in order to identify anomalous areas for further investigation. It was further stated that after getting the area, the
Respondent No. 4 commenced with the operations and carried out 60,000 meters of drilling and would further carry out another 90,000 meters of drilling till mid of 2008, whereas 170 employees and contractors are employed at the site, who have been accommodated in a modem Camp, who are working day and night. TCC also disputed the averment made in the petition that, initially the Geological survey of Pakistan discovered the copper-gold deposits, by stating that infact no drilling was ever made by the GSP and entire discovery has been initially that of the Respondent Nos. 8 and subsequently of Respondent No. 4. It was also denied that Respondent No. 4 is a newly established Company having no experience in the field of exploration and mining. It was explained that, before starting mining, exploration is the first stage, wherein they have to carry out survey and drilling work to confirm the deposits, which by itself is a time consuming work. Allegation of loot and plunder was categorically denied.
It was further stated that without the efforts of Respondent No. 8, no one would have known about the deposits of copper-gold, lying in the remotest area of Balochistan, which lacks infrastructure. It was further stated that declaring of Reko Diq as Export Promotion Zone' (in short "EPZ"), is beneficial to the province of Balochistan, as due to the same, the Government of Balochistan, will be making more money from the Project. It was also pointed out that even theSaindak Project' has also been declared EPZ, but no hue and cry was made in respect of same. It was also stated that, at the time of assignment by the Respondent No. 8, it was agreed that the Respondent No. 8 will have a claw back right in case of major find, however the said right of
Respondent No. 8 was terminated against an amount of U.S.$:60 Million, out which $19 Million was paid to the Government of Pakistan as withholding tax, on the said transaction. Respondent No. 4, further stated that 1.7 Km airstrip at
Reko Diq is expected to commence in 2007 and further 330 people staff and contractors will be working. According to the respondent, Data collection and development option studies are continuing whereafter feasibility studies will commence on the most economic option. After feasibility reports, it would be determined when and where the mine will be constructed. It was also pointed out that respondent is recruiting local people and on account of their having low level of literacy and skills the respondent is also imparting education and trainings. Contents of the petition were further denied on the ground that it is based on a `News Item' appeared in Daily Newspaper "The News" on 26th May, 2004, but the said report was denied and contradicted by the same
Newspaper in its Publication dated 1st June, 2004. It was also stated that petitioners cavalier attitude towards one of the country's most significant foreign investment project displays a complete lack of knowledge and sensitivity and betrays a lack of interest for the welfare of the people of Balochistan in particular and of Pakistan in General.
Respondent No. 5 besides taking legal objection, as referred above, challenged the contents of the petition on merits. It was stated that Respondent Nos. 5 and 7 have acquired the shares of Respondent No. 4, against an amount of U.S. $: 260 Million (including the acquisition of Respondent No. 8's claw-back right). It was pointed out that Respondent Nos. 5 and 7 are the largest Exploration Companies in the field of copper and gold respectively and are managing the mining of minerals in different projects around the world. After acquiring the Respondent No. 4, they spend huge amount and made available technical expertise and experience, which resulted in the success of Reko Diq Project. It was averred that the petition is not based on facts rather it has been filed on the basis of Press Report of 26th May, 2004, which subsequently has been denied by the same Newspaper. It was stated that the petitioner seems to have never visited the site and therefore, averments made in the petition are without any authenticity.
Respondent No. 6 besides taking preliminary objection to the petition, stated that he remained the Director of Tethyan Copper Company Pakistan (Private) Limited, for a limited period when it was wholly owned subsidiary of TCC, and now he is no more the Director of said Company w.e.f. 30th June, 2006. It was further stated that he is no more the Director of the Company and has been made party with ulterior motives just to malign him and he has nothing to do with the Respondent No. 4. It was further stated that the allegations made are totally false frivolous, vexatious, misconceived and unsubstantial in facts and law. It was pointed out by Respondent No. 6 that on similar set of allegations a petition was filed by Petitioner No. 3, before the Hon'ble Supreme Court of Pakistan for declaring the grant of concession in respect of Rhodo 2 as illegal was dismissed vide Judgment dated 26th May, 2005.
Respondent No. 7 in reply to the stay application of petitioner, adopted the contents of the Counter Affidavit filed by Respondent No. 5, in addition to summarizing the stature of its Company, being World's pre-eminent gold mining Company in terms of market capitalization, annual gold production and gold reserves, based in Canada and doing 26 operating mining works North America, South America, Australia and Africa with over 20,000 employees (including joint venture personnel).
Respondent No. 8 has also filed a detailed Counter Affidavit, challenging the petition on legal and factual grounds. It was stated that ever since the CHEJVA was arrived at, the exploration work was started. It was stated that CHEJVA was rightly executed by the Provincial Government as under Article 142(c) readwith Article 137 of the Constitution, the Government possesses the legislative and executive authority to deal with and govern all matters relating to exploration and exploitation of minerals. It was further sated that 1970 BMC Rules were competently relaxed, keeping in view the provisions of Article 172(1) and 173 of the Constitution and in this behalf duly Notification dated 20th January, 1994 was issued. It was pointed out that GSP never discovered the deposits and it was the respondent who after making huge investment, able to prove the deposits in Reko Diq. It was also pointed out that permission to carry out exploration work was competently granted to the Respondent No. 4 by the Government of Balochistan. Regarding the factum of work being carried out it was stated that from 1993 to 1995, satellite imagery and its interpretations, Bulk Leach Extractable Gold (BLEG) sampling programme on over 13000 square kilometers and 6000 rock samples were carried out. On the basis of aforementioned data, 20 different areas were identified, which were then reduced to 10 and ultimately after more detailed Rock Chip Sampling and Mapping, Reko Diq was identified to have copper-gold reserves. Thereafter 10 Prospecting licences covering an area of 1000 square Kilometers were applied which were granted on 8th December, 1996 and on basis of such licenses further mapping and exploration work was undertaken and in 1997 first phase drilling was completed at Reko Diq and five other areas. Out of ten licences nine were relinquished and only one PL-4 was retained which was amalgamated with PL 14 granted on 21st February, 2000 and covered the area of Reko Diq. In 2000 the Respondent No. 8 assigned its rights to TCC. It was also stated that CHEJVA has been executed in the best interest of the people of Balochistan as the Government of Balochistan has 25% `free carried interest' without any investment or recourse, in addition to royalty and such rate of percentage is not even available under the 1970 BMC Rules or 2002 BMC Rules.
We have heard at length, Mr. Abid Hassan Minto, learned Counsel for petitioner, Mr. Salahuddin Mengal, learned Advocate General for Respondent No. 1, Mr. H. Shakil Ahmed learned Counsel of Respondent No. 2, Ch. Mumtaz Yousaf, learned Standing Counsel for Respondent No. 3, Qazi Feaz Isa, learned Counsel for Respondent No. 4, Mr. Sajid Zahid, learned Counsel assisted by M/s Muhammad Chinoy and Abdul Rehman Jamali, Advocates for Respondents 5 and 7, Mr. M. Zafar, learned Counsel for Respondent No. 6 and Mr. Abdul Hafiz Pirzada, learned Counsel assisted by Mr. Sikandar Bashir Mohmand, Advocate for Respondent No. 8.
At the outset Learned Counsel for petitioner, stated that if respondents give an undertaking that no further assignment/transfer will take place as had earlier taken place between Respondent No. 8 and 4 and further if a fixed time is given as to when the mining work will start, he will not press the petition. On such statement, learned Counsel for respondents showed their own reservations and stated that, they will argue the matter, on completion of the arguments of learned Counsel for petitioner.
Mr. Abid Hassan Minto, learned Counsel, while meeting with the legal objections raised in the Counter Affidavits filed by respondents, responded that, as far as the locus standi of petitioners is concerned, they have their no personal axe to grind or any personal interest, and as this petition has been filed in the larger interest of the people which fully comes within the ambit of public interest litigation' therefore, questions of locus standi, and laches would not come in the way of petitioners.
To support his view point he referred to Regulation of Mines and Oil-Fields and
Mineral Development (Government Control) Act, 1948, and stated that the very preamble of this Act shows that; it has been made inpublic interest' and since the 1970 BMC Rules have been framed on the strength of this Act, therefore, acts adverse to the interest of public, when challenged would fall under the definition of `public interest litigation' and being so, the petitioners cannot be knocked out, merely on technical grounds, such as locus standi or laches. On merits, learned Counsel pointed out that lot of time has passed since execution of CHEJVA but no substantial work has been carried out and Respondent No. 8, after doing some preliminary work, has sold his interest to Respondent No. 4, which is against the Rules and so far nothing has been shown towards the actual and practical mining at the site. According to learned Counsel CHEJVA was executed in violation of 1970 BMC Rules and as regards the plea of Respondent
No. 8 that 1970 BMC Rules were relaxed by the Government in exercise of its
Rule-98, no such Notification to this affect has been placed on record. It was further contended by learned Counsel that, BDA had no business to enter into
CHEJVA and it was only the Government of Balochistan to have entered into such an Agreement. Learned Counsel prayed that since all transactions were carried out in violation of the Rules and detriment to the interest of Government and the people of Balochistan, therefore, CHEJVA may be declared unlawful and further bids may be called from new Companies and after auction the area be assigned to new Bidders for exploration in the best interest of the people of
Balochistan. In support of his contentions, learned Counsel, relied on PLD 1969
SC 223 (Mian Fazal Din vs. Lahore Improvement Trust, Lahore and another), PLD 1970 Dacca 85 (Dr. A.N.M. Mahmood vs. The Syndicate of the University of Dacca and others), PLD 1982 Karachi 889 (Sultan Mawjee and others vs. Federation of Pakistan
Chamber of Commerce and Industry, Karachi and 3 others), 2004 CLC 1353
(Ardeshir Cowasjee and 11 others vs. Sindh Province and others), 2000 YLR 2724
(Philips Electrical Industries of Pakistan Ltd. vs. Pakistan and others), PLD 2006 SC 394 Moulvi Iqbal Haider vs. Capital Development Authority and others), PLD 2006 SC 697 (Wattan Party through President vs. Federation of Pakistan through Cabinet Committee of Privatization Islamabad and others), 1992 CLC 2065
(Province of Punjab through Collector Faisalabad and 8 others vs. Muhammad
Yaqoob) and 1999 SCMR 2883 (Ardeshir Cowasjee and 10 others vs. Karachi
Building Control Authority (KMC), Karachi and 4 others).
Mr. Sajid Zahid, learned Counsel, after explaining that respondents 5 and 7 have equal share of 50% each in Respondent No. 4, argued that in the entire petition it has been alleged that, transactions have been carried out in violation of 1970 MBC Rules, but not a single violation has been highlighted in the pleadings. Learned Counsel elaborated that on the repeal of 1970 BMC Rules and enactment of 2002 BMC Rules, Exploration Licences No. 5, 6 and 8 have been validly and lawfully granted. On the question of locus standi' learned Counsel stated that petitioners do not fall Within the definition of anaggrieved person' as envisaged under Article 199 of the Constitution. Learned
Counsel pointed out that standing of Petitioner No. 1 is only that he is member of a National Party MMA, Petitioner No. 2 resides in Sind and is Secretary of
National Workers' Party, therefore cannot represent the people of Balochistan, and Petitioner No. 3 is a MPA of Punjab Province therefore, he too cannot represent the interests of the people of Balochistan. According to learned
Counsel, they have no legal nexus or any other, relevance to the Mining
Industry and `public interest litigation' does not give, a general untrammeled right, to indulge in frivolous litigation.
In support of his contention, learned Counsel placed reliance on PLD 1980 Quetta 55 (Sardar Sawal Khan vs. Gul Baran Coal Company
Quetta and another), PLD 1961 SC 192, (Islamic Republic of Pakistan vs.
Muhammad Saeed) PLD 1967 Lah 184, (Muhammad Ismail vs. Mirza Gul Chiragh and others), PLD 1992 Kar 54 (Muntizma Committee, Al-Mustafa Colony (Regd.) Karachi and three others vs. Director Katchi Abadies, Sindh and 5 others), 1995 MLD 966
(Pervez Iqbal Rana vs. Pakistan Agricultural Storage and Services Corporation through Managing Director and 3 others) and 1994 CLC 2318 (Muhammad Nawaz
Sharif vs. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others). On the Issue of locus standi' learned Counsel also referred to the Judgment of Hon'ble Supreme Court dated 26th May, 2005, passed in similar type of case as the one in hand, filed by
Petitioner No. 3, pertaining to discovery of natural gas inSafed Koh Block'
On the point of `laches' learned Counsel argued that petition is barred by laches. The original agreement was executed way back in 1993, whereas BDA was appointed as Agent of Government of Balochistan vide Addendum dated 4th March, 2000, therefore, the petitioners have challenged the same after lapse of 13 years, during which period, huge investment has been made. On this point reliance was placed on 2004 SCMR 400. Learned Counsel next contended that petition is based on factual controversy and disputed facts will require evidence and this Court in exercise of its extra-ordinary constitutional jurisdiction, cannot enter into such factual controversies. To support his this view point, he referred to 1997 CLC 562(Messrs Ittehad Cement Industries Ltd.
vs. Government of Balochistan through Secretary Industry, Quetta and 4 others), PLD 2001 SC 415 (Secretary to the Government of Punjab, Forest Department, Punjab
Lahore through Divisional Forest Officers vs: Ghulam Nabi and 3 others), 1984
SCMR 377 (Mst. Musharofa Begum vs. Syed Nayyar Hussain and others) and 1982
SCMR 497 (Messrs Bakhsh Textile Mills Ltd vs. Pakistan and others). Learned
Counsel also asserted that, 1970 BMC Rules and 2002 BMC Rules, provides equal and efficacious remedy in shape of appeal to the petitioners, therefore, instant petition is otherwise not maintainable. He in this behalf referred to 2004 SCMR 400 (Farzand Raza Naqvi and 5 others vs. Muhammad Din through legal heirs and others) PLD 1991 SC 102(Chief Administrator of Auqaf vs. Muhammad
Ramzan and others) and PLD 1967 Dacca 06 (Haji Mojakkir Ali vs. Regional
Transport Authority, Sylhet and others).
Mr. Abdul Hafeez Pirzada, learned Counsel for Respondent No. 8, apart from arguing on the legal points as to the maintainability of petition, contended that ever since the execution of CHEJVA, by the Government of Balochistan, in purported exercise of authority vested in it under Article 142(c) readwith Article 137 and Articles 172(1) and 173 of the Constitution, the Respondent No. 8 had spent a huge amount over the exploration of copper and gold deposits, and thus being a past and closed transaction cannot be re-opened. It was next contended that, CHEJVA was legally executed between BDA acting as Agent of the Government of Balochistan and Respondent No. 8 and the 1970 BMC Rules provides authority to the Government to relax the Rules and after relaxing the Rules, the CHEJVA was arrived at between the parties. Learned Counsel also argued that petitioners have an alternate and efficacious remedy therefore, instant petition is not maintainable. As regards merits, learned Counsel pointed out that it is a case of contractual obligations between the parties, which has no nexus with the `public interest litigation'. He further asserted that entire petition is based on an information appeared in daily Newspaper "The News" dated 26th May, 2004, which was subsequently denied by the same Newspaper in its Publication of 1st June, 2004. Learned Counsel also stressed that, since petitioners have not approached this Court with clean hands, therefore, they are not entitled for any discretionary and equitable relief. Lastly learned Counsel while referring to the prayer clause of petition, whereas it has been prayed that all transactions be declared null and void and fresh bids be invited by auctioning the area, pointed out that under the mining schemes, the areas are not put to auction as minerals are always hidden and licences are granted to only those, who had carried out exploration.
Qazi Faez Isa, learned Counsel for Respondent No. 4, while adopting the arguments of learned Counsel for respondents regarding the legal objections, on the basis of documents filed alongwith the Counter Affidavits, elaborated the work carried out by Respondent No. 4, and to be done till mid of 2008. Learned Counsel pointed out that respondents were granted nine Exploration licences and they have given up most of the licences and have retained only one licence and further stated that, after exploration and given up of certain areas by the Respondent No. 4, new Investors have applied which shows that it was only due to the efforts of Respondent No. 8 and 4 that, copper and gold deposits have been discovered and had the Respondent No. 8 not started the exploration work, no one would have known about he deposits of copper and gold. Learned Counsel also argued that since the Respondent No. 4 has invested huge amount therefore, he would be keen to recover the same, and thus the contention of learned Counsel Mr. Abid Hassan Minto that, after lapse of long time nothing has been done at the side, is not correct. With the assistance of a local Geologist, learned Counsel demonstrated through pictures and intensive exercise of exploration has been carried out before starting the mining operation of extracting copper and gold.
Mr. H. Shakeel Ahmed, while promoting the arguments of learned counsel for respondents re-iterated that relief sought in the petition cannot be granted after lapse of about 14 years whereby much exercise has been done and lot of amount has been spent initially by the Respondent No. 8 and then Respondent No. 4, proving huge deposits of copper and gold existing in the area and in case such relief is granted the entire exercise will come to an end.
Mr. Salahuddin Mengal, learned Advocate General, while supporting the arguments of learned Counsel for respondents, stated that Government of Balochistan has rightly entered into CHEJVA and it is in the best interest of the people of Balochistan that this Project should continue and in case, it is stopped, it would not be in the interest of the people of Balochistan and further stated that business of exploring and mining is a risky business involving huge amounts and modern technology, and the Government of Balochistan had no resources to explore the minerals, thus CHEJVA was rightly arrived at with the BHP and thereafter the area was assigned to Respondent No. 4, who has spent a huge amount in exploration.
Before dilating upon the contentions of learned Counsel for parties, it may be observed that if petitions under Article 199 of the
Constitution, claimed to have been filed in the larger interest of public and questions of public importance are involved bringing it within the purview of
public interest litigation'; then the petitioners invoking the jurisdiction of the Court in such like petitions need not show their locus standi in the strict juristic sense, though question of 'locus standi' may be a hurdle, but not in a strict legal sense, and to overcome such a hurdle, the person has to show that the matter pertains to public interest litigation and he has an interest in the performance of a public duty, if performed accordingly, the public-at-large would suffer. Thus, in such a case, the question of locus standi would be interpreted liberally. But the condition precedent for forming such a view is that, petitioner has to show that the case falls within the ambit ofpublic interest litigation' and thereafter only the other legal aspects will be given a liberal interpretation. "Public Interest Litigation" has been exhaustively dealt with by the Superior Courts. It has been observed that; whether a petition falls under the ambit of `public interest litigation' the
Courts have to see that a person approaching the Court is acting bona fide and not for any personal gain or private motive or political motivation or other oblique consideration, or to earn cheap popularity and to maintain the petition, one has to show the genuine and visible public wrong/injury.
The learned Counsel for petitioners throughout the hearing, argued with vehemence that the petition has been filed in the larger interest of the people of Balochistan and it is a case falling under the ambit of public interest litigation'; therefore, the legal objections raised by learned counsel for respondents may be ignored by giving liberal interpretation, thus being a moot question going to the root of the case, we would like to first deal with this question, by slightly touching the merits of the case, regarding the question ofpublic importance' with reference to the execution of CHEJVA, transfer of shares by the Foreign Companies, exploration work done so far at the site, evaluation of interest of the people of
Balochistan in CHEJVA and other collateral aspects.
Learned Counsel for petitioner argued that there is no provision under the 1970 BMC Rules to enter into a Joint Venture Agreement and allowing the parties to assign its share to any third party and despite lapse of 13 years no positive result has been achieved and further on the strength of CHEJVA, during the past 13 years the foreign Companies have been benefiting by assigning the shares and nothing has been done and further that, CHEJVA is in violation of Rules-12 30, and 31 of the 1970 BMC Rules, whereby under Rule-30, no prospecting Licence cane be granted for a period less than one year or more than two years. Further under rule-31 the Licensing authority can renew the licences for a period not exceeding 12 months.
Mr. Abdul Hafiz Prizada., learned Counsel strenuously opposed the arguments and contended that, CHEJVA has been validly executed between BDA on behalf of the Government of Balochistan and Respondent No. 8 and stated that CHEJVA was executed in the year, 1993 which continued and further the assignments took place under the 2002 BMC Rules. Learned Counsel argued that, since the minerals exclusively fall within the domain of Provincial Government, thus under Article 1973 of the Constitution, the Provincial Government could enter into an agreement, thus CHEJVA was in accordance with the provisions of Constitution.
Adverting to the contention of learned Counsel for petitioner that CHEJVA was in violation of 1970 BMC Rules, we are not convinced to subscribe to the said contention. It may be seen that Article 142(c) readwith Article 137 of the Constitution, empowers the Provincial Government to deal with and govern all matters relating to exploration and exploitation of minerals. Further Article 173 of the Constitution empowers and authorizes the Provincial Government to acquire any property and to make contracts. It would be beneficial to refer to Article 173 of the Constitution, which reads as under:--
"Power to acquire property and to make contracts etc. (1) The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislation, to the grant, sale disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts.
(2).....
(3) All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Government of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Government by such person and in such manner as he may direct or authorize."
As far as the Authority of the Government of Balochistan is concerned, CHEJVA was rightly executed, as Article 173 of the Constitution empowers the Provincial Government to enter into such agreement and BDA has entered into the agreement as an Agent of the Government of Balochistan. Besides the Addendum No. 1 was added to CHEJVA on 1st March, 2000 and Authorization letter was also issued by the then Governor, Balochistan, whereby BDA was authorized to act as an Agent of the Government of Balochistan. which makes CHEJVA lawful. Next contention of learned Counsel regarding violation of Rules, it is pertinent to mention here that rule 98 of 1970 BMC Rules, empowers the Government to relax the Rules. In this regard the Government of Balochistan had relaxed the Rules vide Notification dated 20th June, 1994, which reads as follows:--
No. S.O. (MR) 5-9/94. 254-60. In exercise of the powers confirmed by Rule 98 of Mining Concession Rules, 1970, the Government of Balochistan is pleased to grant the following relaxation as a special case in favour of BHP Company enabling the Company to carry out its exploration work without any complication :--
Grant of Exploration Areas.
Area available for prospecting licence.
Application for prospecting licence.
Satisfaction of conditions attaching to prospecting licences.
Exclusive right.
Other Minerals.
Government rights pre-emption acquisition merger, and taking control in national emergency.
Assignments.
Application for mining lease.
Royalty.
Penalties
Employment and training.
Mining lease."
From the perusal of same, it transpires that as a special case rules were relaxed. However, no illegality was pointed out regarding such relaxation, thus the contention of learned Counsel that, CHEJVA was in violation of the Rules is repelled, as the Government has exercised its powers strictly in accordance with the forecorner of the Rules. It may not be out of place to mention here that the said Rules were repealed after enactment of 2002 BMC Rules and the Exploration Licences No. 5, 6 and 7 were issued in favour of Respondent No. 4 were under the said enacted Rules, on the basis of which, huge investments were made. It may be noted here that 2002 BMC Rules were framed, after promulgation of Mineral Policy of 1995, wherein the Mining Rules of all the Provinces were re-framed. As far as the allegation that 2002 BMC Rules were framed under the influence of Respondent No. 4, there is nothing on record to prove the same. In this regard it is suffice to observe that mala fides could not attributed to the Legislature, unless ultra vires to the Constitution. In this behalf, reliance is placed on PLD 1983 SC 457 (Fouji Foundation and another vs. Shamimur Rehman). Relevant portion therefrom reads as under:--
"The High Court seems to have got over the repeal of these legislative instruments by holding that as they were enacted, mala fide they are void and the first appellant acquired no right in the Mill from its inception. This assumption is wholly erroneous as no mala fides can be pleaded against a statute and for that reason it cannot be regarded as being void."
It is pertinent to mention here that in CHEJVA, it has been agreed upon that without spending a single penny the Government of Balochistan shall have 25% share in the profit in addition to royalty, taxes etc. whereas BHP would have 75% share in the profit, which has been now assigned to Respondent No. 4. The contention of learned Counsel for respondents is not without substance that the interest of the people of Balochistan has been very much protected, as Government of Balochistan is alone holder of 25% share, without any recourse and without spending a single penny, which fact could not be dined. It may be observed that the Government of Balochistan has executed numerous mining Agreements but in none of such agreement, she is a share holder. Thus it can be held without hesitation that interest of the people of Balochistan is very well secured and once the production starts the Balochistan Government in addition to royalty will be entitled to 25% share, which will fetch huge amount of revenue for the Government of Balochistan. Thus it can be safely held that CHEJVA has been executed legally and the interest of the people of Balochistan has been very well taken care of.
It may be seen that after execution of CHEJVA, the Respondent No. 8 commenced with the exploration operation and from 1993 to 1995, over an area of 13000 Sq. Kilometers by carrying out satellite imagery and its interpretations, Bulk Leach Extractable Gold (BLEG) sampling programme, and on the strength of such data and exercise, identified 20 different areas and then reduced to ten and at last after more Rock Chip Sampling and Mapping, Reko Diq was identified to have copper-gold deposits. Thus the focused area of 13000 Sq. Kilometers was reduced to that of 1000 Sq. Kilometers. In 1997 First phase drilling was completed and ultimately after relinquishing nine licences one licence PL-4 was retained, which covered the area of Reko Diq. As BHP was permitted under the CHEJVA for assignment of share to Respondent No. 4 i.e. TCC with a provision of claw back right in case of major find, therefore, with the assent of the Government, the interest was sold to TCC, who has further invested huge amount and carried out extensive drilling and has employed 170 employees and contracts, besides constructing 1.7 Km Airstrip. Through pictures and Maps it has been shown that TCC carried out 60,000 meters of drilling and would further carry out another 90,000 meters drilling till mid of 2008. After the shares of TCC were acquired by Respondent No. 5 and 7, who are big International Companies, they further invested huge amount and provided TCC their technical expertise and experience. All this shows that effective and practical exploration work has been done at the site. Here it is significant to note that it is but natural that, once the respondents have invested huge amount, they would be very keen in recovery the same, thus the question that no work has been done is baseless and the respondents are just sniffing around Reko Diq, does not appeal to a prudent mind, arise.
As regards the Exploration licences, the same were granted initially by relaxing 1970 BMC Rules and later under the 2002 BMC Rules, which fully provide an authority to the Government for grant of such licences, therefore, the plea that the licences have been granted in violation of the Rules is without any force and substance.
As far as the question of giving Reko Diq, the status of EPZ is concerned, it may be seen that similar status has been given to Saindak Project and declaring of said area as EPZ would be beneficial for the people of Balochistan, as it will increase its potential to make more money from the Project.
It is imperative to note that CHEJVA is not the sole agreement, which has been executed. In this regard an Agreement of Saindak Project was also executed, whereby the mining work has been handed over to Chinese Government. Similarly many licences have been issued to different Companies for exploration of other Minerals, such as Coal, Zinc etc. and areas have been leased out to different Companies and in such like cases the Government of Balochistan is only entitled to the Royalty on the extracted mineral. In the case in hand, this being first Agreement wherein without any recourse and investment of a single penny, the Government of Balochistan shall be entitled to 25% profit, in addition to royalty. It has been alleged that mineral wealth which belongs to the people of Balochistan has been plundered and looted on the basis of agreement, but not a single instance has been quoted about such loot and plunder. Besides we have gone through CHEJVA and the Addendum added to it, which do not suggest that, wealth has been looted. Thus, CHEJVA being an agreement between two parties, there is no question of public importance and further, in our considered view the interest of the people of Balochistan has been very well taken care of, by making giving 25% profit to Government of Balochistan. It may be observed that general and untrammeled rights cannot be given to the people to file frivolous cases in the name of public interest litigation. In this behalf, reference may be made to AIR 2004 SC 280 (Ashok Kumar Pandey vs. State West Bengal and others). Relevant paras therefrom reads as under:--
"12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs.
"Public Interest law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interest. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such service to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others".
The Courts has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interest: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others: and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motive, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, through they have no interest of the public or even of their own to protect.
Courts must do justice by promotion of good faith and prevent law from crafty invasions. Court must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good (see State of Maharashtra v. Prabhu (1994 (2) SCC 481) and Andhra Pradesh State Financial Corporation v. M/s. GAR-Re-Rolling Mills and another (AIR 1994 SC 2151) No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions (see Dr. B.K.Subbarao v. Mr. K.Parasaran (1996) 7 JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public."
Similar observations were made in PLD 1992 Karachi 54 (Muntizma Committee, Al-Mustafa Colony (Regd.) Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others). Relevant parasd therefrom are also reproduced herein-below :--
"As we understand the phrase `public interest litigation", it means nothing more than what it states namely it is a litigation in the interest of public. Public interest litigation is not that litigation, which is meant to satisfy the curiosity of the people, but it is litigation which is instituted with a desire that the Court would be able to give effective relief to the whole or a section of the society. In the interest of administration of justice some of the old and well-established procedural rules and practices have been altered. Public interest litigation can now be initiated not only by filing formal petitions in Court but even by writing letters and telegrams.
Whenever the conscience of the Court is shocked, on account of action or inaction on the part of the Federation or Province, the Court will exercise its jurisdiction under Article 199 of the Constitution.
It is true that public interest litigation has come to stay as one of the species of litigation in which redress may be found from the Court of law. However, this does not confer a general and untrammeled right to indulge in frivolous litigation without any genuine cause of action and the necessity of seeking redress of some real grievance. Consequently while recognizing such litigation, Courts have taken care to add a word of caution that certain minimum conditions must be satisfied before the Courts shall lend assistance to such litigant asking for relief. The various factors which might stand in the way of entertaining such petitions were highlighted in para 17 by the Supreme Court of India in the case of S.P. Gupta and others v. President of India and others (AIR 1982 SC 149) where it was observed as under:--
"...But we must hasten to make it clear that the individual who move the Court for judicial redress in cases of this kind must be acting bona fide with a view of vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold; whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of person or the constitutional or legal right to such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party....
Accordingly a public interest litigation can be initiated for judicial redress for public injury by a person not personally hurt. This principle will not apply where an association or organization or a registered society seeks to enforce a personal right or private right of another, as distinguished from public injury."
It may be observed that though the petitioners claim to have filed this petition for the welfare and benefit of the people of Balochistan; needless to observe, none of them ever bothered to visit the site to see; what is the ground reality. It may note be out of place to point out that the Government of Balochistan has issued many licences for mining purpose to different persons and Companies for mining in different minerals, such as coal, chrome, marble etc., but the Government of Balochistan is not a share holder in any of the mining lease, as in the case in hand. It is painfully noted that local people of most of the areas, where mining has been carried out for years are deprived from basic necessities of life, whereas the Government and the lease holders have made millions, perhaps the petitioners are not aware about the same or have closed their eyes to the said reality. Mr. Faez Essa, learned Counsel for the Respondent No. 4, emphatically argued that about 200 local people have been employed, and the Respondent No. 4 is committed to establish a Mining Academy once the mining starts, besides roads and Airstrip have been constructed and jobs will be created and the Government of Balochistan shall get 25% share without any investment. Thus in view of the above discussion in our considered view the case does not fall within the purview of `public interest litigation' as the interest of the people of the area even has been very well taken care of, which could not be rebutted by the Counsel for the petitioners and accordingly this contention is repelled.
Since it has been held that instant case does not fall within the ambit of `public interest litigation' therefore, we would now proceed to decide the legal objections raised by the respondents.
The respondents had challenged the locus standi of petitioner and it was argued that petitioners have no locus standi to file the petition, as they have shown no personal grievance to justify the filing of petition and do not fall within the definition of an `aggrieved person' as envisaged under Article 199 of the Constitution and have no legal nexus or any other relevance to the Mining Industry to indulge in such like frivolous litigation.
Answering the said legal objection, learned Counsel for petitioners argued that since CHEJVA has been executed in violation of the 1970 BMC Rules and the petition has been filed by petitioners in the larger interest of public and comes within the ambit of `public interest litigation', therefore, question of locus standi may be ignored. In support of his contention learned Counsel placed reliance on PLD 1969 SC 223, wherein regarding locus standi, following observations were made:--
"It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses, that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
The other case laws relied upon by learned Counsel is similar.
In reply to the above contention, Mr. Abdul Hafiz Pirzada and other Counsel argued that since the arrangement and grant of licence is legal and in accordance with the Constitution and 1970 BMC Rules and all procedural requirements were complied with and as CHEJVA has been arrived between two competent parties therefore, petitioner cannot claim to be personally aggrieved from the same and since no illegalities have been committed thus petitioners not being `aggrieved persons' have no locus standi to file the instant petition.
The case law referred to by learned Counsel for petitioner, regarding locus standi pertain to cases whether the applicant/petitioners had direct or indirect concern with the subject-matter of the case, whereas in the instant case the petitioners have no nexus or any concern with the mining Industry. It may be observed here that they have not applied for mining Licence of said area. Thus in strict sense, since the petitioners have only agitated the matter on the ground that CHEJVA and
Exploration licences are in violation of the Rules, thus in the larger interest of public, they have filed this petition, which contention has already been repelled, therefore, it is held that they do not come within the definition of an aggrieved person'. In this regard reliance may be placed on PLD 1980 Quetta 55. In this case the petitioner who filed the petition had not applied for the
Mining lease and his locus standi was challenged, as he was not anaggrieved person' and following observations were made:--
"The question as to who could be considered an aggrieved person' within the meaning of Article 98 of 1962 Constitution which is in pari materia with Article 199 of the present Constitution was considered in the case of Muhammad Abdul Salam v. Chairman, East Pakistan Election Authority and other
(PLD 1961 Dacca 231) and it was held that a person invoking writ jurisdiction of the Court should atleast be able to show that he had suffered alegal grievance' if not an actual grievance. Such person, it was held, could be one who was deprived of some benefit or had suffered any disadvantage by the order sought to be challenged by him. Such is not the case here. We are therefore of the view that the petitioner was not an aggrieved person in any recognized sense of the term, and is, as such, incompetent to maintain this petition."
It was also argued by the learned Counsel for respondents that any person asking for performance of statutory duties as in the case in hand, he has not shown that he had some particular grounds for claiming such performance. As for as the performance of statutory duty as agitated by petitioners is concerned, in this regard reference may be made to PLD 1961 SC 192 wherein following observations were made:--
"It is necessary in order to entitle a person to ask for the performance of any public duty by mandamus to show that he has some particular ground for claiming such performance, apart from the fact that he is interested in the performance of such a duty as a member of class of persons, all of whom are equally interested therein. As observed in the case of The Queen v. The Guardians of the Lewisham Union (1897) IQB 498 at 501), the Courts have never claimed to exercise a general power to enforce the performance of statutory duties by public bodies on the application of anybody who chooses to apply but have always required that an applicant should have a legal and specific right in him to enforce the performance of such duties."
Learned Counsel for respondents further contented that since the agreement was executed between two parties in compliance of Rules and after promulgation of 2002 BMC Rules, licences were issued, thus their interest being not more than that of general public and as such they cannot be said to be an `aggrieved person'. In this regard reliance was placed on PLD 1967 Lahore 184, relevant para therefrom reads as under:--
"An exhaustive definition of the term `aggrieved party' will not be attempted, but a party cannot be said to be aggrieved if his rights or interest are not adversely affected or if he suffers no loss or injury by a particular order. The petitioner cannot be said to have suffered in any way by the transfer of the premises to the Respondent Nos. 1 and 2. In Reg. V. Nicholson, it was held that assuming certiorari to be the fitting remedy, as a matter of discretion, certiorari ought not to go firstly on the ground of delay and secondly because the applicants had not shown, as they should have shown, that they had peculiar grievance of their own, beyond some inconvenience suffered by them in common with the rest of the public. What is necessary, therefore, to prove for a party who comes to this Court is that he has a peculiar grievance of his own and not merely an inconvenience which he has suffered in common with rest of the public."
It was also argued by learned Counsel for respondents that since the petitioners have sought judicial review of the agreement on administrative side, therefore, in such like case the petitioners have to show that they had direct interest in the act, which has been challenged. Admittedly the direct interest of petitioners is lacking in instant case. Reliance was placed on 1995 MLD 966, wherein it was held as follows :--
"I have considered the arguments addressed by the learned Counsel for the parties, have perused the record and have also gone through the relevant case-law on the subject. In case of "Tariq Transport Co. Lahore (Supra) while deciding the question of locus standi of a person to invoke extra ordinary jurisdiction of this Court, at pages 452, 454, 465 and 497 of the report, it has been held that it is basic principle that a person seeking juridical review of administrative or quasi judicial action must show that he has a direct personal interest in the act which he challenges before his prayer for review is entertained. He does not have standing to sue unless he is interested in and affected adversely by the decision of which he seeks review. His interest must be of a personal and not of an official nature."
The question regarding aggrieved person' andlocus standi' was discussed in 1994 CLC 2322, wherein following observations were made:--
The first and foremost question which arises for determination in this Constitutional petition is whether the petitioner has locus standi to maintain the writ petition. Under Article 199 of the Constitution a petition can only be made by an aggrieved person. A person cannot be held to be an aggrieved person unless he had a right in the performance of statutory functions by a person performing functions in connection with the affairs of the Federation or the Province in respect of any right which he may have in relation to the performance of the said functions.
In view of the above discussion, we are of the considered view that petitioners have no locus standi to file this petition and as they are not aggrieved persons, as laid down under Article 199 of the Constitution, therefore, the petition is not maintainable, on this score.
Adverting to the next contention of respondents that the petition is barred by laches in this regard learned Counsel for petitioner contented that since it is a recurring cause of action therefore, petition is not barred by laches and further repeated his contention that since petition is a `public interest litigation', therefore, no question of laches is involved, whereas Mr. Abdul Hafiz Pirzada, learned Counsel contended that after a period of almost 13 years a vested right has been created and petitioners have come after such a long period and even the provisions of Limitation Act does not apply.
Considering the arguments of learned Counsel for parties, it may be observed that first agreement was executed in the year, 1993, between BHP and the Government of Balochistan and thereafter BDA was appointed as an Agent to the Government of Balochistan vide Addendum No. 1 to CHEJVA, with the concurrence of the then Governor and further work was assigned to Respondent No. 4 by Respondent No. 8, who is presently doing the exploration work and has spent a substantial amount on the exploration and it was Respondent No. 8 who after hectic efforts succeeded in discovering huge deposits of copper and gold and thereafter assigned its share to Respondent No. 4 who is now carrying out the work, whereby the CHEJVA as observed hereinabove was legally arrived at between the parties and a vested right has been created in their favour. It may be observed that equity support the vigilant and not the indolent. As far as the contention that it is a recurring cause of action and Respondent No. 4 was recently inducted is without substance. It may be observed that initially the agreement was executed in the year, 1993 on the basis of which exploration was made by Respondent No. 8 and after discovery of copper and gold deposits the work was assigned to Respondent No. 4 who with the passage of time has spent substantial amount of money and has paid about 19 million Dollars to the Government of Pakistan towards taxes. It may be observed here that as per the contention of petitioners they first received the information through news item dated 26.05.04, but even then the petitioner did not act in time and waited for over two years to file the petition, without giving any cogent reasons. Besides the said News Article also rebutted by the same Newspaper on 1.6.04. It may be mentioned here that the conduct of petitioner in filing the petition after lapse of 13 years is not understandable, as to why they waited for such a long period and further it is their case that they have been trying to get information, which they could not get. It is strange to note that even during the entire proceedings none of the petitioner appeared on a single day and further it is astonishing to note that if the petitioners have concern regarding the loot and plunder of the wealth, lying hidden in Reko Diq, even they never visited the site to ascertain the actual work done on the site. Thus in our considered view keeping in view the conduct of petitioner and delay in filing the petition, we are of the firm opinion that the petition is hopelessly barred by laches. In this behalf, we are fortified from the case law reported as 2004 SCMR 400, relevant para therefrom reads as under:--
"The dismissal of writ petition on the sole ground of laches depends upon the facts and circumstances of each case, but there can be no exception to the rule that the delay in seeking the remedy of appeal, review or revision beyond the period of limitation provided under the statute in absence of reasonable explanation, can not be condoned and in the same manner if the remedy of writ petition is not availed within reasonable time, the interference can be refused on the ground of laches. However, the laches cannot be equated with limitation and by itself is not a sufficient ground to non-suit a person if the equities are not against him and he has not been sleeping over his right or was not indolent. The question of laches in the writ petition is always considered in the light of the conduct of the person invoking the constitutional jurisdiction of the High Court and the degree of his negligence if any and that if by grant of relief being sought by him no injustice is caused to the opposite-party, the constitution petition should not be dismissed merely on the ground of laches without examining the dictates of justice. The laches in simplest form mean failure of a person to do something which should have been done by him within a reasonable time and is not synonymous with delay alone but it can be worked out to the disadvantage to another person in the matter of his right. In suitable cases, the Court in its discretionary jurisdiction, subject to the offering of reasonable explanation, can condone the delay in filing an appeal, review or revision, as the case may be and similarly, can also ignore the delay if any in filing the writ petition in the interest of justice."
Coming to the next contention of learned counsel for respondents that it is a `past and closed' transaction, it may be noted that, CHEJVA was executed in the year, 1993, and further Addendum was added to the same with the approval of the then Governor under the 1970 BMC Rules. During this period, no objection whatsoever was ever
raised by any one from the public, more so none appeared from said District Chagai, where Reko Diq is situated and it was very well within the knowledge of local people of the area regarding execution of CHEJVA and the work was started there, as per the own contention of respondents, local people have also been employed. After relaxation of the 1970 BMC Rules by the Government, everything was carried out in a lawful and legal manner and after 13 years, the petitioners have prayed to strike down the agreement and let everything be washed away. It may be noted that, as observed hereinabove, vested rights have been created and further the learned Counsel could not point out any illegality or irregularity in the execution of agreement. Besides the agreement was executed under the 1970 BMC Rules and thereafter the licences were issued after the promulgation of 2002 BMC Rules, which are in accordance with law. The arguments of Mr. H.Shakeel Ahmed, learned Counsel for BDA has substance that, at this stage, the relief sought cannot be granted after long period of 13 years, in respect of a past and closed transaction and further writ jurisdiction which is discretionary in nature, cannot be exercised in favour of indolent nor it can be exercised to perpetuate an illegality. Hence it is held that being a past and closed transaction, it cannot be re-opened. In this regard, reference may be made to 1995 MLD 1016 (D.P. Edulji & Co. (Pvt.) Ltd. vs. Government of Punjab and others).
It was strenuously argued by learned Counsel for respondents that, petition is not maintainable, as alternate remedy is available to petitioner. It may be noted that we are unable to agree with the contention of learned Counsel for petitioner that, since this being a question of public importance, therefore, question of alternate remedy may be ignored. It may be mentioned here that, petitioners could have challenged the issuance of Licences under the 2002 BMC Rules, but the petitioners have not chosen to approach the concerned Authority under the 2002 BMC Rules, wherein the alternate remedy is available for redressal of grievance, as agitated in the petition, is available. In this regard reference may be made to 2004 SCMR 400. Relevant para therefrom reads as under:--
"There is no cavil to the proposition that if the remedy of appeal is available to a party under the statute, without availing such statutory remedy the constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot be invoked and the remedy of writ petition cannot be allowed to be availed as substitution of appeal. Following the above rule, the High Court undoubtedly in the normal circumstances, should not entertain the Constitution petition if an alternate remedy under the relevant statute is available to a party but this rule does not create bar of jurisdiction rather it regulars the constitutional jurisdiction of High Court and thus in exceptional circumstances the High Court may exercise its constitutional jurisdictional in a matter in which the statutory remedy of appeal or revision as the case may be, Was available but could not be availed."
Coming to the contention of learned Counsel Mr. Sajid Zahid that, factual controversy is involved in the petition, thus this Court while exercising jurisdiction under Article 199 would not interfere in the same, as it requires evidence and the learned Counsel vehemently argued that since the petition is replete with factual controversy and disputed facts, therefore, this Court will not exercise jurisdiction to decide factual controversy. Learned Counsel in support of his contention stated that, all the allegations/averments made by the petitioners have been strongly disputed in Counter affidavits. During the arguments, learned counsel demonstrated through the contents of petition and Counter affidavits, that factual controversies have been specially denied. For instance in para 3 and 7(i) of the petition, it has been alleged that the Geological Survey of Pakistan discovered copper and gold in Reko Diq in 1972, whereas all the respondents have denied and stated that copper and gold in Reko Diq was discovered in the year, 1996-97. Respondent No. 4 has denied this version in paras 6, 13 and 18 of the Counter Affidavit, whereas Respondent No. 8 has denied the same in para 11.3 of Counter Affidavit and Respondent No. 5 denied in para 3 of Counter Affidavit.
It may be noted that main source of information for filing the petition is the News Item dated 26th May, 2004, and the contents of the same were specially disputed by all the respondents in addition to pointing out that the said News was rebutted by the same Newspaper in its publication dated 1st June, 2004. The main grievance in the petition was that no actual work has been done at the site, which was strongly disputed by the respondents and it was stated that Respondent Nos. 8 and 4 have made huge investments. This assertion has been rebutted in paras 11.5 and 11.7 of Respondent No. 8's Counter Affidavit and in para 6 and 16 of Respondent Nos. 4 and 5' Counter Affidavits. As observed hereinabove, that before filing the petition the petitioners even did not care to visit the site to find; whether any work has been carried out and if so to what extent and similarly such allegations made in the petition were also denied by the respondents in their Counter Affidavits. We need not go into further details, regarding factual controversy, thus it can be held without any hesitation that factual controversies are involved in the petition, therefore, this Court while dealing the case under Article 199 of the Constitution, should refrain from going into the same. In this behalf reference may be made to 1984 SCMR 377, 1982 SCMR 497, 1997 CLC 562 and PLD 2001 SC 415. Thus while exercising jurisdiction under Article 199 of the Constitution, the Courts do not act as a `Court of Facts' and cannot substitute their own findings.
Coming to the last contention of learned Counsel Qazi Faez Isa that, lot of work has been done by spending huge amount by the Respondent No. 4 and in this behalf, Learned Counsel also explained the reasons; as to why such a long period has been consumed in exploration work. It may be mentioned here that Balochistan though is rich in mineral, but the minerals deposits especially the one i.e. copper and gold found in Reko Diq, are lying in a very remote area of the Province, where there is no infrastructure. It takes a lot of time to start mining in such an area, as before starting the work, infrastructure has to be built. In this regard it would be appropriate to refer to the report of UNDP regarding the mineral deposits in the Province. Relevant portion therefrom reads as under:--
"Minerals are believed to be the significant wealth of Balochistan. However this resource has not been fully exploited. It contributes only about 3% of the GDP and employs a small percentage of labour force. The total value of annual production of minerals is Rs. 3.4 billion out of which 3.1 billion comes from natural gas alone. This sector has remained under developed because of inadequate resources provided for detailed survey of the potential, lack of physical infrastructure and insecurity to the private sector. Mineral and natural resource of a country require multiphase costly exploration programs. Mining Industry is a complex, complicated, heterogeneous, require long gestation period, risky and capital intensive. Hence every effort should be made to strengthen this important Industry."
"Balochistan has geologic setting favorable for exploration, evaluation and utilization of varied type of mineral deposits (table 6). It has many showings/prospects of copper porphyry deposit which is being developed by Saindak Metals (Pvt.) Limited, presently operated by Chinese (MRDL) & Riko-Diq (explored & evaluated by Australian firm TCC), about 30 porphyry type copper/gold prospects have been identified in Chagai District. Among these Koh-e-Dalil, Dasht-e-Kain, Mashkichah, Tallarak, Kabulkel, etc. have been explored to some extent. Beside copper/gold deposits, chagai Island arc is also favourable for hosting iron lead zinc, sulpher and dimensional stones etc."
"Primitive, deficient and wasteful mining practices, poor infrastructure & lack of will, non-availability of financial resources, tribal system leading to poor and deteriorating law and order situation, difficult terrain, remote location, non availability of technical manpower, partial implementation of national mineral policy 1995 and poor information dissemination are the major constraints and bottleneck in the development of mining culture and mineral based industry in Balochistan. The investor wants to keep his investment safe, and until the Government of Balochistan adopts a clear cut investor's friendly policy, provides security, motivates tribal chief to maintain law and order in their areas and consistency of its policy, private investors are shy in investing in Balochistan. There is a need that the same yardstick be adopted by the Government for local investors and foreign investors, so that local investors feel security of their investment in Balochistan."
Now in this background, learned Counsel Qazi Feaz Isa stated that, after spending a considerable amount such discovery was made. It may be observed here that it was due to the efforts of Respondent No. 8 that minerals were discovered, whereas the same would remain hidden for unknown time and the people of Balochistan would not be deriving any benefits. It may also be observed here that if the Project is developed into Mining, the Province of Balochistan will receive royalty in addition to 25% profit and additionally as the area has been declared EPZ, this would further benefit the Government of Balochistan, as it would bring in lot of revenue and though the petitioner has taken an exception, but Saindak Project has also been declared as EPZ and further the main grievance of the petitioner is that after execution of the Agreement no substantial work has been done. In the Counter Affidavits filed by respondents it has been mentioned that huge amount has been spent and lot of drilling and other works relating to exploration have been carried out. In as much as while transferring the area by Respondent No. 8 to Respondent No. 4, a huge amount has been paid to the Government of Pakistan in the context of taxes. It has been pointed out by Respondent No. 4 that 60,000 meters of drilling has been undertaken in EL-5 and another 80,000 meters of drilling has been committed till the middle of 2008, and 170 employees and contractors have been employees and accommodated in a modern Camp, besides doing construction of 1.7 km airstrip at Reko Diq. Learned Counsel Qazi Faez Isa, demonstrated the carrying out of such work through pictures and Maps, which were not rebutted. Thus we are not inclined to agree with the learned Counsel fort petitioner that since the time of execution of the agreement, no work has been carried out.
As observed hereinabove that the petition is based merely on a News Item, which was soon rebutted by the same Newspaper. Since the Counter Affidavits filed by respondents have not been disputed by other side thus the inference would be that, same have been admitted and further it may not be out of place to mention here that, since so much amount has been spent initially by Respondent No. 8 and then by the Respondent No. 4, therefore, it is but natural that Respondent No. 4 would be keen in doing the mining at the earliest. Since exploration is a time consuming work, which involves drilling, collection of samples and tests, thus mining cannot be started over a night and further Exploration licences have been issued to the respondents and renewed upto 2008, on the evaluation of work being carried out by them at the site. Thus it can be safely concluded that, lot has been done and efforts have been made to start the mining, which of course is a slow and time consuming process. It may be mentioned here that even the areas after exploration, abandoned by the Respondent No. 4, the new Investors have applied for the same, thus it cannot be said that mineral wealth of the people have been looted and plundered.
In the petition, it was prayed that CHEJVA may be cancelled and the entire work may be put to auction. Suffice it to observe that mining areas are not put to auction. Mining licences are issued at different stages, as it is a risky business and after exploration by a party when the area is proved, then it becomes his vested right to do mining. In this behalf, much has been done by respondents, which would be beneficial to the people of Balochistan in coming years.
In view of the above discussion, we see no merits in the petition, which is accordingly dismissed, leaving the parties to bear their own costs.
Before parting with the judgment, we would like to place our thanks and gratitude to the learned Counsel for parties, for their valuable assistance.
(R.A.) Petition dismissed
PLJ 2007 Quetta 138 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Akhtar Zaman Malghani, J.
Haji ABDUL WAHID--Appellant
versus
ABDULLAH & 5 others--Respondents
R.F.A. No. 33 of 2006, decided on 25.6.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 96 & O.XLI, R. 1--Limitatiion Act, (IX of 1908), S. 12(2)--Production of evidence--Question of limitation--Exclusion of aggregate period occupied in obtaining copies--Relaxation by way of exclusion of time--When applications for copy of decree and judgment are made separately but within due dates, an appellant while claiming aggregate period will not be allowed the overlapping period to be excluded twice which is to be computed only once. [P. 142] A
Limitation Act 1908 (IX of 1908)--
----S. 12(2)--Question of--Tampering in dates of application--Exclusion of aggregate period in obtaining copies of judgment and order--Compution period of limitation--Application for copy was moved on the day when the judgment was announced, whereas, copyist of Civil Court, has inscribed the date under his signature which means copy was prepared on such date and not earlier--Held: No tampering in dates and period spent between dates has to be excluded for the purpose of computing period of limitation prescribed for appeal.
[P. 144] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 96 & O.XLI, R. 1--Limitation Act, (IX of 1908), S. 12(2)--Computing period of limitation--Decided without leading evidence--Cause of action--Issue of limitation is mixed question of fact and law which could not be decided without affording opportunity of leading evidence to the parties but the lower Court decided such issue on the presumption that suit having not been filed within three years was barred by time--Case was remanded with direction to decide it afresh in accordance with law. [P. 144] C & E
Damage--
----Joint business--Plaintiffs were claiming share in joint business, which was a recurring cause of action and a continuous wrong--Appellants has also claimed amount in respect of damage caused to property as well as relief for directing defendants to remove unauthorized occupation over one of flats allegedly occupied by them after dispossessing tenant of appellant--It could not be decided on basis of pleadings of parties but it requires evidence. [P. 144] D
Mr. Muhammad Qahir Shah, Advocate for Appellant.
Mr. Kamran Murtaza, Advocate for Respondents.
Date of hearing: 4.6.2007.
Judgment
Akhtar Zaman Malghani, J.--The instant appeal has been directed against the judgment and decree dated 28.04.2006 passed by Civil Judge, Chaman in Civil Suit No. 05 of 2005, whereby; suit filed by the appellant was dismissed.
"It is accordingly respectfully prayed that a decree may be passed in favour of the plaintiff and against the defendants by way of permanently restraining the defendants, their agent, successor or attorney not to make any sort of alteration, deterioration and destruction in the property of plaintiff.
By further directing to remove unauthorized occupation over one of the flat of plaintiff constructed over the shops situated at Qandhari Road, Chaman through mandatory injunction.
By directing the defendants not to threat the tenants of plaintiff without any reason and further the defendants be restrained from encroaching and trespassing upon the property of plaintiff.
By directing the defendants as to make the outstanding amount of plaintiff whereas, an amount of Rs.05 million is outstanding against the defendants since income of the same has not been tendered since the year, 1980 whereby, the predecessor of Defendants No. 1 to 5 and Defendant No. 6 promised on number of occasions and also among the notables of the area that he will make the payment of outstanding dues, same may be recovered from the defendants.
The mesne profit of Rs. 01 million whereby, the property is being utilized by the defendants may also be granted to the plaintiff.
By further directing the defendants to make the payment of Rs. 1 million as damages so caused to the property of plaintiff.
Any other order as may be deemed fit and proper in the circumstances of the case may also be awarded in the interest of justice".
The suit was contested by the respondents. Out of pleadings of the parties, following issues were framed:--
"1. Whether the suit is not maintainable in presence of the Eviction applications filed by the plaintiff? O.P.D.
Whether the suit is barred by Limitation? O.P.D.
Whether the suit is hit by the provisions of Section 10 C.P.C.? O.P.D.
Whether the property in dispute was rented out to the predecessor of the Defendants No. 01 to 05 at the monthly rent 500/- by the plaintiff and his predecessor? O.P.P.
Whether the predecessor of plaintiff and the predecessor of Defendants No. 01 to 05 entered into a (contract) that on establishment of flour Chakki the income will be distributed equally? O.P.P.
Whether the predecessor of Defendants No. 1 to 05 used to pay a little amount up to 1990 out of the income of flour Chakki? O.P.P.
Whether the property in dispute was constructed by the predecessor of the Defendants No. 01 to 05 with the permission of the predecessor of the plaintiff? O.P.D.
Whether it was settled between the predecessor of plaintiff and the predecessor of Defendants No. 1 to 05 that their income of the flourmill will be shared by the parties on profit and loss basis, besides the predecessor of Defendants No. 01 to 05, has to pay Rs.500/- per month to Haji Khan? O.P.D.
Whether the Defendant No. 06 is working jointly with remaining defendants, which is in the knowledge of the plaintiff? O.P.D".
It appears from the record that the learned Civil Judge after hearing the arguments on legal issues dismissed the suit vide judgment and decree dated 28.04.2006.
We have heard learned counsel for the appellant as well as learned counsel for the respondents. The learned counsel for the appellant vehemently contended that the suit filed by the appellant was dismissed on the point of limitation without recording evidence, which judgment was illegal and not sustainable. He further contended that the issue with regard to limitation was a mixed question of facts and law which could not be resolved unless the parties are allowed to produce evidence, therefore; the judgment and decree was liable to be set aside.
On the other hand, learned counsel for the respondents vehemently contended that the appeal filed by the appellant was barred by time as the decree was passed on 28.04.2006, whereas; application for copy of the decree was moved on 04.08.2006 when period of limitation had already been expired because appeal was to be filed against the decree, not against the judgment and any time spent in obtaining copy of the judgment could not be computed towards period of limitation. He further argued that copy of judgment indicates that tampering had been made in the dates in order to bring the appeal within time. However; he was unable to defend the impugned judgment and decree on merits.
We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment. As the learned counsel for the respondents raised objection that the appeal is barred by time, therefore; we find it expedient to first decide question of limitation. It may be noted that impugned judgment and decree was passed on 28.04.2006, whereas; the instant appeal was presented before this Court on 05.08.2006. The copy of judgment appended with the appeal shows that application for issuance of copy of the judgment was moved on 28.04.2006, whereas; copy was prepared on 04.05.2006 and it was delivered to the appellant on 08.05.2006. On the other hand application for obtaining copy of decree was moved on 04.08.2006 and on the same day it was delivered to the appellant. If time is to be calculated from the date when the copy of judgment was delivered to the appellant, the appeal has been filed within the prescribed period of ninety days. The learned counsel for the respondents argued that in computing period of limitation prescribed for an appeal only time requisite for obtaining copy of the decree is to be excluded and not the time requisite for obtaining copy of the judgment because under Section 96 the appeal has been provided against the decree and not against the judgment but we are not impressed by the arguments of the learned counsel as the same were based on misconception of law, ignoring the provisions of Order XLI Rule 1 CPC and Section 12(2) and (3) of Limitation Act, 1908. It may be observed that Section 96 is to be read with Order XLI Rule 1 CPC which provides that memo of appeal shall accompany a copy of judgment and it is well settled law that if copy of judgment or decree is not filed alongwith the appeal, the same will not be presumed to have been validly presented/filed. The learned counsel in this regard referred to the judgments wherein it has been held that without filing copy of the decree the appeal would not be maintainable but there are also judgments wherein it has been held that, memorandum of appeal must also be accompanied by a copy of the judgment otherwise the presentation is not valid, if any case law is needed, we may refer to the judgment reported in 1991 CLC 1288, wherein; it was observed as under:--
"Under Order XLI, Rule 1, C.P.C. it is incumbent upon the appellant to append with the memorandum of his appeal certified copies of the impugned judgment and decree of the Court below. The appellate Court has the power to dispense with the copy of the judgment but has no power to dispense with the copy of the decree. An appeal in which the memorandum is not accompanied by a certified copy of the judgment will not be considered to have been validly presented and therefore would be liable to be dismissed unless the Court dispensed with the said copy".
Similarly; under Section 12 of Limitation Act, 1908 in computing the period of limitation prescribed for any appeal the time requisite for obtaining both, a copy of the judgment as well as a copy of decree shall be excluded except where these two periods overlap each other. There is no obligation imposed upon an appellant to file application for copies of judgment and decree at one and the same time. He can make his application for copies at different times. In such case, if the time requisite for obtaining copy of one of these documents extends the time of limitation, then the application made for obtaining the copy of the other document after the time originally fixed for filing an appeal under the law of limitation but before the extension of time allowed by reason of the time required for obtaining copy of one of these documents expires, will entitle the appellant to extension of time required for obtaining copy of other document, because; Section 12(2) of the Limitation Act, 1908 provides a relaxation by way of exclusion of time requisite for obtaining copy of decree while sub-section (3) relates to copy of judgment. Sub-sections (2) and (3) of Section 12 of the Limitation Act allow the appellant to avail exclusion of aggregate period occupied in obtaining copies of both the judgment and decree as of right. However; when applications for copy of decree and judgment are made separately but within due dates, an appellant while claiming aggregate period will not be allowed the overlapping period to be excluded twice which is to be computed only once.
In the judgment reported in AIR 1924 Patna 113 while dealing with the above stated proposition, it was held as under:
"No doubt, an application for copies of the judgment and the decree must be made before the expiry of the time for filing an appeal. There is, however, no obligation imposed upon an appellant to file applications for copies of judgment and decree at one and the same time and therefore he can make his applications for copies at different times. It seems to be settled by authorities that the applications made at different times will entitle the appellant to take advantage of the time occupied in obtaining copies of both judgment and decree. Now, if the time requisite for obtaining copy of one of these documents extends the time of limitation, then the application made for obtaining copy of the other document after the time originally fixed for filing an appeal under the law of limitation but before the extension of time allowed by reason of the time required for obtaining copy one of these documents expires, will entitle the appellant to extension of time required for obtaining copy of the other document".
Likewise; above said view was confirmed in Abdul Ghafoor Vs. Sher Muhammad (PLD 1961 Lahore 366), wherein; it was observed as under:--
"Under these provisions an appellant can, for purposes of his appeal take advantage, as a matter of right, of the time spent in obtaining the copies of the judgment and the decree passed against him. It is open to him to make separate applications to get these copies on different dates. This is, however, subject to the rule that while the appellant can wait to apply for the copies till last date of limitation, he is not permitted to do so after it has expired. If the time prescribed for any action has already run out, no subsequent action will bring it back to life. The legal requirement, therefore is that to interrupt the running of the time, action must be taken before the prescribed time has run out".
In another judgment reported in 2002 MLD 1995 the Hon'ble Judges while dealing with the proposition observed as under:--
"The import of sub-sections (2) and (3) of Section 12 of Limitation Act would be that the appellant is entitled to avail exclusion of aggregate period occupied in obtaining copies of both, the judgment and decree as of right. But when applications for copies of decree and judgment are made, of course within due dates, an appellant while claiming aggregate period will not be allowed the overlapping period to be excluded twice. In other words, the overlapping period is to be computed only once; for, it is a settled concept that the time runs only once and not twice".
The learned counsel next argued, that there was tampering in the dates of application, preparation of copy and delivery of copy, but after having perused the original record we find no substance in his arguments because the original record indicates that the application for copy was moved on 28.04.2006, on the day when the judgment was announced, whereas; copyist of Civil Court, Chaman has inscribed the date as 08.05.2006 under his signature which means copy was prepared on the said date and not earlier, therefore; there was no tampering in the dates and period spent between 28.04.2006 and 08.05.2006 has to be excluded for the purpose of computing period of limitation prescribed for the appeal. After holding the appeal to be within time, we do not consider it necessary to dilate upon arguments advanced by the learned counsel in respect of application for condonation of delay as there was no necessity for filing of such application.
Adverting to merits of the case, admittedly; issue of limitation is mixed question of fact and law which could not be decided without affording opportunity of leading evidence to the parties but the learned Civil Judge decided the said issue on the presumption that first default was claimed to have occurred in the year 1990, as such; period of limitation would start from 1990 and suit having not been filed within three years from 1990 was barred by time, ignoring the fact that the plaintiffs were claiming share in the joint business, which was a recurring cause of action and a continuous wrong Besides; the appellant has also claimed amount in respect of damage caused to the property as well as relief for directing the defendants to remove unauthorized occupation over one of the flats allegedly occupied by them after dispossessing tenant of the appellant. When damage was caused or when tenant of plaintiff was dispossessed could not be decided on the basis of pleadings of parties but it requires evidence.
For the foregoing reasons, we are inclined to set aside the judgment and decree dated 28.04.2006 passed by Civil Judge, Chaman and remand the case with the direction to decide the same afresh in accordance with law and in the light of observations made hereinabove.
Parties are left to bear their own costs.
(N.F.) Case remanded
PLJ 2007 SC 1
[Appellate Jurisdiction]
Present: Javed Iqbal & Muhammad Nawaz Abbasi, JJ.
ABDUL MAJEED--Petitioner
versus
STATE--Respondent
Jail Petition No. 238 of 2005, decided on 8.5.2006.
(On appeal from the judgment dated 3.5.2005 passed by Lahore High Court, Lahore, in Crl. Appeal No. 292-J/2000 & M.R. 656/2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code (V of 1898), S. 544-A--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Grave and sudden provocation--Ocular account furnished by independent witnesses supported by medical evidence--Challenge to--Appreciation of evidence--Story of committing zina by deceased with sister of petitioner in her house in presence of her husband, would neither appealable to mind nor acceptable rather defence version, would suggest that petitioner suspecting illicit liaison of deceased with his sister, having dragged him forcibly from street inside the house with help of his brother-in-law, shot him dead--Defence plea of grave and sudden provocation would also be negated by fact that neither Mst. "N", sister of petitioner was caused any damage in occurrence nor "J" her husband has explained circumstances under which deceased was murdered in his house so much so petitioner himself did not make statement on oath in support of his version of occurrence--Ocular account furnished by quite independent witnesses, duly supported by medical evidence and attending circumstances as well as admission of petitioner of firing at deceased in house of "J", was found confidence inspiring and truthful--Eye witnesses being not inimical to petitioner would have no reason to make false deposition and perusal of their evidence would show that they have narrated occurrence in its natural sequence without any exaggeration and material contradiction--Held: There was no legal or factual defect in concurrent finding of two Courts calling interference by Supreme Court--Petition was accordingly dismissed. [P. 4] A & B
Mr. F.K. Butt, ASC for Petitioner.
Mr. G.N. Gohar, ASC for State.
Date of hearing : 8.5.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185 (3) of the Constitution has been directed against the judgment dated 31.5.2005 passed by a Division Bench of Lahore High Court, Lahore, whereby criminal appeal filed by the petitioner against the conviction and sentence of life imprisonment awarded to him under Section 302(b) PPC with direction to pay compensation of Rs. 25,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased by learned Additional Sessions Judge, Gojra, was dismissed.
"In fact on 31.7.1999 at about 10. p.m I came to the house of my sister Nasreen wife of Jaffar accused and saw Haji Sultan Mehmood deceased and Mst. Nasreen my sister committing Zina with each other in the residential room of Jaffar accused while Jaffar accused was sleeping in the courtyard. I flared up and could not control myself and due to sudden provocation I fired with carbine on the person of Haji Sultan Mehmood and injured him. My intention was just to teach him lesson and not to kill him. In the meanwhile Mst. Nasreen my sister ran away always remained armed and keep fire-arm. The PWs are closely related to the deceased so due to relationship they have deposed against me".
The learned State counsel, on the other hand, has submitted that the witnesses while proceeding to the house of Haji Nazar Ahmed to inquire about the deceased have seen the occurrence, therefore, their presence at the scene of occurrence was quite natural. He argued that eye-witnesses have narrated the occurrence in the manner in which it had taken place without any exaggeration and the fact that deceased was murdered in the house of Jaffar Hussain at night time by itself is not a circumstance to suggest the correctness of the defence version or to disbelieve the prosecution case supported by the direct evidence.
The time and place of the occurrence and the circumstances leading to the fateful incident may apparently create an impression that the motive for the murder was different to that of set up by the petitioner but the story that petitioner having seen Mst. Nasreen, his sister in compromising position with the deceased in the house of Jaffar Hussain under grave and sudden provocation, committed the crime would not appeal to mind. Jaffar Hussain while sleeping in the courtyard of his house, must not be ignorant of the presence of deceased in his house with his wife and sudden visit of the petitioner to the house of her sister at night time, without any purpose and knowledge of the inmates, would seriously reflect upon the correctness of the defence version. Jaffar Hussain (acquitted accused) in his statement under Section 342 Cr.P.C. denied his involvement in the case without acknowledging the plea of grave and sudden provocation taken by the petitioner in his defence. The examination of two versions together and visualizing the situation in the light of circumstances leading to the occurrence, we find that the story of committing zina by the deceased with the sister of petitioner in her house in presence of her husband, would neither be appealable to mind nor acceptable rather the defence version, would suggest the petitioner suspecting illicit liaison of the deceased with his sister, having dragged him forcibly from the street inside the house with the help of his brother-in-law, shot him dead. The defence plea of grave and sudden provocation would also be negated by the fact that neither Ms. Nasreen, sister of petitioner was caused any damage in the occurrence nor Jaffar Hussain, her husband has explained the circumstances under which deceased was murdered in his house so much so the petitioner himself did not make a statement on oath in support of his version of the occurrence. The ocular account furnished by the quite independent witnesses, duly supported by the medical evidence and attending circumstances as well as the admission of the petitioner of firing at the deceased in the house of Jaffar Hussain, was found confidence inspiring and truthful. The eye-witnesses being not inimical to the petitioner would have no reason to make a false deposition and perusal of their evidence, would show that they have narrated the occurrence in its natural sequence without any exaggeration and material contradiction. From the analysis of the evidence in the light of the circumstances of the case in totality, we have not been able to find out any misreading or non-reading of evidence or any other legal or factual defect in the concurrent finding of the two Courts regarding the guilt of petitioner calling for interference of this Court.
In the light of foregoing reasons, we find no substance in this petition which is accordingly dismissed. Leave is refused.
(B.T.) Petition dismissed.
PLJ 2007 SC 4
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Raja Fayyaz Ahmed, JJ.
SIKANDAR--Petitioner
versus
STATE & another--Respnodents
Crl. P. No. 187 of 2005, dismissed on 18.1.2006.
(On appeal from the judgment dated 12.4.2005 of Peshawar High Court, Abbottabad Bench in Crl. Appeal No. 215/2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Absence of medical evidence--Conviction and sentence--Challenge to--If charge of murder is proved through direct evidence, absence of medical evidence may not be fatal--Eye-witnesses, without any exaggeration or improvement have consistently stated that petitioner armed with Kalashnikov, fired at deceased as result of which he having sustained injuries, died at spot and ocular account to this extent, stood corroborated by recovery of three empties of 7.62 rifle from place of occurrence and factum of sustaining fire-arm injuries by deceased mentioned in injury statement and inquest report prepared by I.O. on inspection of dead body at house of deceased--Dead body was not sent for postmortem examination because complainant party was not prepared to permit postmortem examination of deceased and in these circumstances, homicidal death having been proved by direct evidence of most natural and quite independent witnesses, non-availability of medical evidence would be of no consequence--Trial Court as well as High Court having found testimony of eye-witnesses, truthful and reliable, have concurrently held petitioner guilty of charge and no defect of misreading or non-reading of evidence or misappreciation of evidence has been found calling for interference by Supreme Court--Held : No exception to conclusion of evidence drawn by two Courts can be taken--Judgment of High Court upheld and petition for leave to appeal dismissed. [Pp. 7 & 8] A & B
Mr. Akbar Khan Swati, ASC (Absent) and Ch. Akhtar Ali, AOR for Petitioner.
None for Respondents.
Date of hearing: 18.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This Criminal petition has been directed against the judgment dated 12.4.2005 passed by a Division Bench of the Peshawar High Court, Abbottabad Bench whereby the appeal filed by the petitioner against the conviction and sentence of life imprisonment with fine of Rs. 100000/-, half of which was payable to the legal heirs of the deceased as compensation, awarded to him by the Sessions Judge/Zila Qazi Kohistan, under Section 302(b) PPC was dismissed.
The brief facts of the prosecution case as contained in the statement of Gul Khan, brother of Gul Shahzada, deceased, recorded by the SHO of Police Station, Pattan, at the house of deceased on the day of occurrence, on the basis of which case was registered against the petitioner for the murder of deceased, are that on 4.11.2001 at 9.00 a.m. when deceased, alongwith his wife Mst. Begum Jan, minor daughters, son Ghulab and a close relative Gulbar Khan son of Haji Abdul Karim, were proceeding towards village Pattan, from their village Shamal Gullo, the petitioner being armed with Kalashnikov, suddenly confronting them inquired from the deceased that where he was going without return of his money and on reply of the deceased that the matter would be settled in accordance with Shariah, the petitioner opened firing as a result of which, deceased having sustained injuries died at the spot. The dead body of Gul Shahzada, was taken to his house and meanwhile SHO of Police Station Pattan, on receipt of information about the occurrence reaching at the house of deceased, recorded the statement of Gul Khan and prepared the injury statement as well as inquest report of the deceased. The complainant and family members of the deceased, did not permit the despatch of dead body for the postmortem of the deceased and consequently, the dead body was buried without postmortem. The investigating officer having taken into possession three crime empties of 7.62 bore rifle and blood stained earth from the place of occurrence, sent these articles in sealed parcels, alongwith blood stained shirt of deceased, to the forensic science laboratory for examination and on completion of the investigation, challaned the petitioner to face the trial.
The prosecution in addition to the two eye-witnesses namely Gul Bahar Khan (PW-3) and Gulab Khan (PW-2) also produced Gul Khan
(PW-1) complainant of the case, Amir Alam (PW-4), who was the marginal witness of the recovery memos. Muhammad Yasin (PW-5), Muhammad Salim Shirwani, SHO (PW-6), Said Rehman (PW-7) and Ghulam Muhammad (PW-8) who remained associated with the investigation. The petitioner in his statement under Section 342 Cr.P.C. denied the charge and pleaded false implication due to suspicion.
Learned counsel for the petitioner, in support of this petition, has contended that the deceased was murdered on a path leading to village Pattan in presence of Ghulab Khan, his son. Gulbar Khan son of real sister of appellant and Mst. Jan Begum, wife of deceased, and all these witnesses were also present at the house of deceased at the time of arrival of SHO, but the case was registered on the basis of statement of Gul Khan who was not an eye-witness therefore, his evidence being hearsay, was to admissible. The learned counsel next argued that non-production of Mst. Jan Begum wife of deceased, who was most natural and important witness, would seriously reflect upon the claim of Ghulab Khan and Gulbar Khan of having seen the occurrence and the correctness of prosecution version. Learned counsel also argued that delay in registration of the case coupled with the attending circumstances, would lead to a strong inference that it was an unseen occurrence and petitioner due to suspicion was substituted for unknown culprit. Learned counsel pointing out the minor discrepancies and contradictions in the prosecution evidence, submitted that the charge against the petitioner was not proved beyond reasonable doubt and High Court without following the settled rule of appreciation of evidence and application of independent mind, affirmed the finding of the trial Court regarding the guilt of the petitioner in a mechanical manner.
The deceased was fired at while he was going on a kacha path leading to village Pattan at a distance of about two kilometers from his house and it being hilly area, the dead body was brought on foot to the house of deceased consuming about three houses and before the matter could be reported to the police, the SHO of the concerned police station, on coming to know about the occurrence, of his own, reached at the house of deceased and recorded the statement of Gul Khan (complainant), real brother of deceased on the basis of which case was registered, therefore, in these circumstances, delay in the registration of case, would be of no significance. The complainant certainly was not an eye-witness but this is not necessary that case must be registered on the basis of information to be given by a person having direct knowledge of occurrence rather law can be set at motion by any person. This may be pointed out that First Information Report is not substantive evidence and statement of first informant, who is not an eye-witness can not be treated at par to the direct evidence of an eye-witness but the same may be used as corroborative evidence. In the present case, Gul Khan, real brother of deceased on the basis of information given to him by the eye-witnesses namely Gulab Khan and Gulbar Khan who have furnished the ocular account made a statement before the SHO for registration of case and eye-witnesses in their statements having acknowledged the factual position narrated in the statement of complainant, affirmed the story of FIR to be correct. The complainant and eye-witnesses are closely related to the deceased as well as to the petitioner and being not inimical towards the petitioner, were quite independent and truthful. The presence of the eye-witnesses at the spot while proceeding in the company of deceased, was beyond doubt and their testimony being confidence inspiring, would alone be sufficient to sustain the conviction. The contention of the learned counsel that without postmortem examination of the deceased, the cause of death being not ascertainable, the charge of murder could not be proved only on the basis of oral testimony of the eye-witnesses, may be relevant in a case in which in absence of medical evidence it is not possible to determine the real cause of death. The medical evidence is not substitute of direct evidence rather is only a source of corroboration in respect of nature and seat of injury, the kind of weapon used, the duration between the injury and death and may confirm the ocular account to a limited extent but cannot establish the identity of the accused or connect him with the commission of offence, therefore, if the charge of murder is otherwise proved through the direct evidence, the absence of medical evidence may not be fatal. In the present case, the eye-witnesses, without any exaggeration or improvement, have consistently stated that petitioner armed with Kalashnikov, fired at the deceased as a result of which he having sustained injuries, died at the spot and the ocular account to this extent, stood corroborated by the recovery of three empties of 7.62 rifle from the place of occurrence and the factum of sustaining of fire-arm injuries by the deceased mentioned in the injury statement and inquest report prepared by the investigating officer on the inspection of dead body at the house of deceased. This is in the evidence of SHO that dead body was not sent for postmortem examination because the complainant party was not prepared to permit the postmortem examination of the deceased and in these circumstances, the homicidal death having been proved by the direct evidence of most natural and quite independent witnesses, the non-availability of medical evidence would be of no consequence. The trial Court as well as the High Court having found the testimony of the eye-witnesses, truthful and reliable, have concurrently held the petitioner guilty of the charge and we having perused the record with the help of learned counsel for the parties, have not been able to find out any defect of misreading or non reading of evidence or misappreciation of evidence, calling for interference of this Court and consequently, we would take no exception to the conclusion of the evidence drawn by the two Courts and uphold the judgment of the High Court.
In the light of forgoing discussion, we find no substance in this petition and same is accordingly dismissed. Leave is refused.
(B.T.) Petition dismissed.
PLJ 2007 SC 8
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan &
Muhammad Nawaz Abbasi, JJ.
UMAR FAROOQUE--Petitioner
versus
STATE--Respondent
Jail Petition No. 24 of 2004, decided on 24.4.2006.
(On appeal from the judgment dated 22.9.2003 passed by the Lahore High Court, Lahore in Criminal Appeal No. 108 of 2002).
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 7(c) & 7(h)--Constitution of Pakistan, 1973, Art. 185(3)--Gathering of accused at particular spot--Conspiracy to commit some offence--Secret information--Exchange of fire between accused and police--Arrest of accused from same spot of gathering after eleven days--Identification--Conviction and sentence--Challenge to--No conviction at all can be based on identification which is witnessed by police officials in case where police itself is complainant and accused remained in custody of that very police for about or more than twenty days--Accused were separately arrested, but at other, it is said that they were arrested together--In between time of arrest and identification parade, three dates were adjourned for purpose and on last date parade was conducted--It is also on record than men from police were also arrayed in parade alongwith accused so as to be conveniently excluded by police witnesses--Police party had not been able to identify culprits at time of occurrence--Their arrest is highly doubtful and circumstances provide reasonable inference that defence evidence in that behalf could be most probable--Identification parade was totally fake and illegal providing no chances for prosecution to rely thereupon as circumstantial evidence--Held: Petitioner entitled to benefit of doubt--Petition converted into appeal and allowed.
[P. 11] A, B, & C
Mr. Tariq Bilal, ASC for Petitioner.
Mr. Dil Muhammad Tarar, ASC for A.G. Punjab for State.
Date of hearing : 24.4.2006.
Judgement
Sardar Muhammad Raza Khan, J.--Umar Farooque son of Muhammad Farooque, through this jail petition, seeks leave to appeal against judgment dated 22.9.2003 whereby his appeal against conviction was dismissed. The conviction and sentence recorded by the learned Judge Special Court IV Lahore was as follows:--
Under section 7 (c) of the
Anti Terrorism Act, 1997: to life imprisonment and also to pay fine of
Rs. 50,000/ and in default thereof to further undergo six months S.I; and
Under Section 7 (h) of the
Anti Terrorism Act, 1997 to undergo 7 years R.I and fine of Rs. 10.000/- and in default to undergo 6 months S.I.
The facts narrated by Mumtaz Ahmed constable, in FIR # 62 dated 1.2.2002 of Police Station Iqbal Town Lahore, are that Muhammad Azam, Inspector/SHO alongwith police party was on patrol duty when he received a secret information that four unknown and duly armed person have gathered at Doongi Ground Khyber Block Allama Iqbal Town and are conspiring to commit some offence. The police party reached the place at 11:15 a.m. They saw four persons sitting together under the sun in the open ground near Shadab Institute of Training. Seeing the police party, all the four ran away and took shelter behind a wall of the training institute.
They, from the said shelter, opened fire at police. Muhammad Azam Inspector/SHO and Ameer Ali constable got injured. The police and the accused exchanged fire during the occurrence in which one of the suspects, subsequently known to be Adil, died on the spot. The remaining three made got their escape.
The police started investigation and searched for the accused. The occurrence having taken place on 1.2.2002, the suspects were apprehended on 11.2.2002, eleven days after the occurrence from the same spot in Doongi Ground. Their test identification parade was conducted on 2.3.2002 where Muhammad Azam, Ameer Ali and Arif happened to identify them. They were indicated to face trial under section 7(c) and 7(h) of the Anti-Terrorism Act of 1997. Babar Shehzad is reported to be an absconder while Talat Mehmood has been acquitted. Umar Farooque is the only petitioner before us. It may be mentioned at this juncture that the accused also have examined as many as four witnesses in defence, pleading mainly that the accused belonging to Wah had no business at all to do at Doongi Ground Iqbal Town Lahore, that they were never present at the spot, that they were arrested long before the given date from Wah and that the story of their apprehension on 11.2.2002 from the same spot at Doongi Ground is altogether fictitious and concocted.
The prosecution, in nutshell, relies upon the ocular testimony of police witnesses, the apprehension of the accused on 11/2/2002 from the same spot and the test identification parade conducted on 2.3.2002 wherein they were identified by the witnesses. In that behalf, when one reverts to the prosecution evidence, it becomes clear from the very FIR that on seeing the police party, the culprits had run away and had taken positions behind a wall. It is any body's guess as to how the witnesses could have identified the culprits when, while running they had their backs towards the police and while firing, they admittedly were behind a wall. Except that the accused left a dead body behind, there was no occasion at all for them to have disclosed their identity because from behind the wall, they had succeeded in running away.
It does not appeal to common sense as to why the police should run after some people about whom it is not known as to what offence they were about to commit and why at all should they be conspiring in an open ground at broad day light. One cannot comprehend, without a pinch of salt, as to why the same culprits who lost one of their companions would get together again at the same spot eleven days after the occurrence and would be apprehended like sitting ducks not attacking police to avenge the killing of their companion. It is amazing to note that when they had no reason so to do, they opened fire at police and when, they had all the reasons, they surrendered so peacefully. Their apprehension from the spot on 11.2.2002 does not appeal to common sense as well as reason. In that behalf one cannot overrule the defence version that they had already been arrested from Wah Cantt, and a fake arrest of 11.2.2002 was shown on record.
Coming to the circumstantial evidence of test identification parade, it may be remarked that this one is the strongest piece of evidence used against them It is an admitted fact that right from the day of their physical apprehension they were brought to the police station. They must have been produced before the Magistrate for remand during investigation and it was after twenty days from their arrest that they were produced before Mr. Muhammad Iqbal Magistrate for identification parade. It has been proved beyond doubt that during these days they remained under custody of same police which had registered a case against them and the members whereof were to appear against them as eye-witnesses. They were, subsequently, identified by the same witnesses under whose custody or under the custody of whose colleagues, they remained throughout. There cannot be a false identification parade than the one in hand. No conviction at all can be based on an identification which is witnessed by police officials in a case where police itself is a complainant and the accused remained in the custody of that very police for about or more than twenty days.
At one time, it is said that they were separately arrested but at the other, it is said that they were arrested together. In between the time of arrest and the identification parade, three dates were adjourned for the purpose and on the last date the parade was conducted. It is also on record that men from police were also arrayed in the parade alongwith accused so as to be conveniently excluded by the police witnesses.
On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umar Farooque could be convicted.
After having thoroughly gone through the evidence, we are of the firm view that police party had not been able to identify the culprits at the time of occurrence. That their arrest is highly doubtful and the circumstances provide reasonable inference that the defence evidence in that behalf could be most probable. That the identification parade was totally fake and illegal providing no chances for the prosecution to rely thereupon as a circumstantial evidence. The petitioner is, therefore, entitled to the benefit of doubt.
The instant petition after conversion into appeal is allowed and the petitioner Umar Farooque is hereby acquitted of the charges under sections 7(c) and 7(h) of the Anti-Terrorism Act of 1997. The conviction and sentence recorded through the final impugned judgment is hereby set aside. The petitioner, if not required to be detained in any other cause, is directed to be released forthwith.
(B.T.) Appeal allowed.
PLJ 2007 SC 12
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
MUHAMMAD ISHAQUE--Petitioner/Appellant
versus
STATE--Respondent
Cr. A. No. 115 of 2004 & J.P. No. 246 of 2002, decided on 8.8.2006.
(On appeal from the judgment dated 10.6.2002 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in Criminal Appeal No. 498 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 324--Constitution of Pakistan, 1973, Art. 185(3)--Quantum of evidence--The presence of witnesses as well as the alleged time of occurrence was highly doubtful--Corroboration was sought from motive but, as the background would suggest, it can cut both ways and can equally be a motive for false charge--Further corroboration was sought from the discovery of .12 bore shotgun, strictly speaking, it is not discovery at all, at the first place because the gun of accused is licensed one, moreover it did not match with all four empties allegedly recovered from rooftop, a place attributed to the accused. [P. 15] A
Constitution of Pakistan, 1973--
----Art. 185(3)--Pakistan Penal Code (XLV of 1860), Ss. 302 & 324--Conviction and sentence recorded against accused--Assailed--Leave to appeal--There was burning on all four inlet wounds of the deceased, such burning can occur at the most from a distance of 5 to 7 feet from muzzle to victim--Amazingly, the distance from assailant to victim is 132 feet--Burning from a distance of 132 feet is impossible--From a distance of 132 feet, the dispersal is larger and velocity and force becomes slower and weaker--The pallets were recovered from left lumber region and lower and lateral part of left scapula indicating a positive deflection that could have occurred only when there was a force behind--Such force could not have been possible from a distance of 132 feet and from a .12 bore Shehbaz shot gun of pak-made, it was an unseen occurrence, where recording of FIR was delay with the help of a dishonest investigation--Appeal accepted. [P. 15] B
Ch. Afrasiab Khan, ASC with Mr. M.A. Zaidi, AOR for Appellant.
Mr. Mehmood A. Sheikh, ASC for State.
Date of hearing : 8.8.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Leave has been granted to Muhammad Ishaque son of Ghulam Din against the judgment dated 10.6.2002 rendered by a learned Judge in Lahore High Court, Rawalpindi Bench, whereby, his appeal against conviction and sentence was rejected. Initially, learned Additional District and Sessions Judge Gujar Khan vide judgment dated 31.10.2000 had convicted the appellant under Section 302 PPC and sentenced him to life imprisonment and to a payment of
Rs. 1,00,000/- as compensation under section 544-A Cr.P.C. He was also convicted under section 324 PPC and sentence to imprisonment for five years with a fine of Rs. 10,000/-.
The background of the occurrence given by Zafar Iqbal complainant is that, on 19.4.1999 at about 6.15 a.m he was giving lesson to children in the village mosque when Muhammad Ishaque appellant called him from the rooftop of one Talib Hussain asking the complainant to come out of the mosque. On second call the complainant replied that he would come out after completion of daras. On third call he came out to the courtyard of the mosque with the same answer. The appellant descended from the rooftop, went to his house, returned while armed with a .12 bore shotgun and fired three shots at Zafar Iqbal, hitting the outer wall and the right side of the outer gate.
Hearing the report of fire shots Shaukat Ali, the brother of the complainant ascended the rooftop of the house of Ali Qadar and forbade Muhammad Ishaque from firing. Muhammad Ishaque turned towards Shaukat Ali and fired at him hitting him on his chest. The victim died on the spot. The occurrence, besides complainant, was said to have been witnessed by Manga Khan and Ali Qadar. The motive is, that about a year prior to the occurrence, Muhammad Ishaque had lodged a report under section 337-A PPC against the complainant as well as Shaukat Ali, the deceased. A day prior to the occurrence i.e. on 18.4.1999 Shaukat Ali deceased and Muhammad Ishaque accused had quarreled with each other on a dispute over a path. The complainant had intervened to settle the matter.
On conclusion of trial, the prosecution relied upon the ocular testimony of Zafar Iqbal PW-4, Ali Qadar PW-5 and Manga Khan PW-6. Further support is sought from the postmortem report, recovery of 12 bore shotgun at the instance of the accused, on 24.5.1999. It may be recalled that the occurrence having taken place on 19.4.1999, the accused was arrested on 7.5.1999 while the discovery of gun occurred on 24.5.1999. Admittedly, it was a licensed shotgun.
It is a fact proved on record that not only the complainant but also the two eye-witnesses have direct enmity with the accused and a case already stood registered against them under Section 337-A PPC at the instance of the wife of Muhammad Ishaque appellant. In this background of proved enmity, the ocular testimony of all the three witnesses would require strong support from unimpeachable source. Weather such corroboration is available or not, is the important exercise to be adhered to.
Beginning from Zafar Iqbal, one may recall that he was allegedly fired at three shots from 12 bore shotgun by the appellant, from a distance of 160 feet. In spite of a wide dispersal in view of the distance involved, the complainant escaped totally unhurt. This cannot be overlooked on the argument of being a coincidence because in almost the same distance, the assailant killed Shaukat Ali with just one fire shot. We inculcate doubt qua the presence of complainant in the mosque. No pallets were recovered from the mosque and no child receiving lesson from the complainant was ever examined.
Despite the murder of his real brother, allegedly witnessed by him, the complainant did not go to the police station. Someone by the name of Ch. Muhammad Azeem Member District Council had informed the police. Had the complainant been present on the spot he would certainly have gone to lodge the report.
There is also an unexplained delay extending to about five and a half hours in lodging the report. Apparently, it seems to have been delayed by two hours fifteen minutes but the evidence negates it altogether. The Investigating Officer Noor Muhammad SI (PW-8), during cross-examination and in his spontaneous first breath, admitted that telephonic information was received by him at 5:00 a.m. Meaning thereby that the occurrence must have taken place prior to 5.00 a.m. as against the time given by the complainant as 6-15 a.m. Realizing that his receipt of telephonic information at 5:00 a.m. contradicts the entries in the FIR, the I.O corrected himself saying that the information was received at 7:30 a.m. and he reached the spot in one hour i.e. at 8:30 a.m. All the witnesses have unanimously stated that the I.O. reached the spot at 10-00/10-30 a.m. We are of the considered view that the occurrence had taken place prior to 5-00 a.m not witnessed by any one and so the deliberations were made in recording the FIR after 10-30 a.m but incorrect time was mentioned in the FIR as 8:30 a.m in order to conceal the possibility of deliberations.
When cross-examined, the complainant said that he had joined the fajar prayer at about 4:30 a.m but did not remember the name of pesh imam. Anyhow, he is not the pesh imam. Realizing the probable contradictions, he suddenly took a somersault and said the he had offered the prayer at 5-00/5-30 a.m. individually. Such contradictions indicate that he was not at all present at the mosque. His false presence was concocted to bring the time of occurrence to 6-15 a.m which seems to be prior to 5.00 a.m.
The complainant and other witnesses admitted that the roof of the house of one Muhammad Sarwar was at a higher level than that of Talib Hussain where the assailant was standing. According to site-plan the roof of Muhammad Sarwar intervenes the places of the accused and the victim. One cannot make out from the site-plan as to whether the roof of Ali Qadar where the victim died was clearly seen from the Courtyard of the mosque. The presence of the witnesses as well as the alleged time of occurrence is highly doubtful.
Corroboration is sought from the motive but, as the aforesaid background would suggest, it can cut both ways and can equally be a motive for false charge.
Further corroboration is sought from the discovery of .12 bore shotgun. Strictly speaking, it is not discovery at all, at the first place because the gun of the accused is licensed one, which license was recovered along therewith. Moreover, it did not match with all the four empties allegedly recovered from the rooftop of Talib Hussain, a place attributed to the accused.
Last but not the least, corroboration is sought from the postmortem report but strange it is to observe that it was totally ignored by the two Courts that postmortem report has further damaged the already doubtful case of the prosecution. We are surprised to notice that there is burning on all the four inlet wounds of the deceased. Such burning can occur at the most from a distance of 5 to 6 feet from muzzle to the victim. Amazingly, the distance from the assailant to the victim is 132 feet.
One cannot say that the doctor has written burning on the inlet wounds incorrectly and that the injuries could not have been caused from short distance. Before adverting to this discussion, we may settle one thing once for all that burning from a distance of 132 feet is impossible. Now, coming to the other attending circumstance, one may realize that from a distance of 132 feet, as in the site-plan, the dispersal is larger and velocity and force becomes slower and weaker. This is totally negated by the remaining observations of the doctor on the postmortem report, which shows that the walls, ribs and cartilages, pleurae, larynx and trachcae, right lung, left lung, small intestines, large intestines and liver were damaged. The pallets were recovered from left lumber region and lower and lateral part of left scapula indicating a positive deflection that could have occurred only when there was a force behind. Such force could not have been possible from a distance of 132 feet and from a 12 bore Shehbaz shotgun of Pak made. Other doubts about the occurrence mentioned in the earlier part are fortified by the postmortem report showing burning on the inlet wounds. We are quite certain that it was an unseen occurrence where recording of FIR was delayed with the help of a dishonest investigation.
For the aforesaid reasons, we had recorded our acquittal of the appellant on 8.8.2006, accepting the criminal appeal as well as jail petition and setting aside the impugned judgment dated 10.6.2002 of the learned Lahore High Court, Rawalpindi Bench. These are our reasons for the short order dated 8.8.2006.
(T.S. Faisal) Appeal accepted.
PLJ 2007 SC 16
[Review Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar &
Saiyed Saeed Ashhad, JJ.
MUHAMMAD RAWAB--Petitioner
versus
STATE & another--Respondents
Crl. Revision Petition No. 28 of 2004 in Crl. Appeal No. 345 of 2004, decided on 17.3.2006.
(On review from the judgment of this Court dated 27.4.2004 passed in Crl. Appeal No. 345 of 2003 & on appeal from judgment of Lahore High Court, Rawalpindi Bench Rawalpindi dated 5.8.2002 passed in Crl. Appeal
No. 279-T, of 2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A--Anti Terrorism Act (XXVIII of 1997), S. 7(e)--Criminal Procedure Code (V of 1898), S. 345(7)--Constitution of Pakistan, 1973, Art. 185(3)--Compounding of offence--Scope--There is no denying fact that Section 365-A PPC read with Section 7(e) of Anti--Terrorism Act, 1997 is not compoundable--Provisions as contained in Section 345(7) Cr.P.C. have been couched in such plane and simple language that there is hardly any scope for any interpretation except that non-compoundable offence cannot be made compoundable by Supreme Court for simple reason that no amendment, deletion, insertion or addition could be made by Supreme Court and it could only be done by legislature as this aspect of matter falls in its exclusive domain of jurisdiction--Provisions as contained in Section 345 Cr.P.C. cannot be stretched too far by including non-compoundable offence therein under garb of humanitarian grounds or any other extraneous consideration--It is against public policy to compound a non-compoundable offence, keeping in view state of facts existing on date of application to compound--No offences shall be compounded except where provisions of Section 345 Cr.P.C. are satisfied as to all matters mentioned in Section--Held: If petitioner is grieved from provisions enunciated in Section 345 Cr.P.C. then its vires should have been challenged being repugnant to Holy Quran and Sunnah--Petition was accordingly dismissed. [Pp. 17 & 18] A, B & C
1992 SCMR 2079, PLD 2001 Lah. 212, KLR 1986 Cr.C. 448, 2003 SCMR 658, 2002 SCMR 1885, 28 Bom. 326, AIR 1955 Mad. 369, AIR 1917 Cal. 705, AIR 1925 Nag. 395, PLD 1950 Lah. 86, AIR 1948 Pat. 58, AIR 1941 Sindh 186, AIR 1925 Lah. 464, 1999 MLD 3085, NLR 1991 Cr. 363, references.
Dr. Baber Awan, ASC for Petitioner.
Nemo for Respondents.
Date of hearing : 17.3.2006.
Order
Javed Iqbal, J.--The petitioner has sought review of the judgment dated 27.4.2004 whereby the appeal preferred on behalf of petitioner has been dismissed.
The prime contention of Dr. Babar Awan, learned ASC on behalf of the petitioner is that compounding of offence is guaranteed by all means in the injunction of Islam as laid down in Holy Quran and Sunnah which aspect of the matter has not been considered in the judgment impugned. In order to substantiate his esteemed view Dr. Babar Awan, learned ASC argued that compounding of offences and the compromise is guaranteed in Holy Quran between fighting factions of the society as enumerated in Surah Al-Nisa verse 114 as well as in Surah Al-Hujrat verse 1079.
We have examined the prime contention of learned ASC as mentioned herein above. The question which needs determination would be as to whether parties can be allowed to compound the offences which are not compoundable by virtue of the provisions as contemplated in Section 345 Cr.P.C. specially in view of the specific bar as mentioned in sub-section (7) of Section 345 Cr.P.C. which has been dilated upon and decided vide judgment impugned relevant portion whereof is reproduced herein below for reference:--
"3. Heard D. Babar Awan, learned ASC on behalf of appellant and learned Advocate General for the Sate. The pivotal question which needs determination would be as to whether parties can allowed to compound the offences which are not compoundable by virtue of the provisions as contemplated in Section 345 Cr.P.C. specially in view of the specific bar as mentioned in sub-section (7) of Section 345 Cr.P.C. There is no denying the fact that Section 365-A PPC read with Section 7(e) of the Anti Terrorism Act, 1997 is not compoundable. The provisions as contained in Section 345(7) Cr.P.C. have been couched in such a plane and simple language that there is hardly any scope for any interpretation except that a non-compoundable offence cannot be made compoundable by this Court for the simple reason that no amendment, deletion, insertion or addition could be made by this Court and it could only be done by the legislature as this aspect of the matter falls in its exclusive domain of jurisdiction. The provisions contained in Section 435 Cr.P.C. cannot be stretched too far by including the non-compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. It may be noted that tabulation of the offences as made under Section 345 Cr.P.C. being unambiguous remove all doubts uncertainty and must be taken as complete and comprehensive guide for compounding the offences. The judicial consensus seems to be that "the legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where provisions of Section 345 Cr.P.C. are satisfied as to all matters mentioned in the section" (emphasis provided)
Dalsukharan Hargovandas v. Charles Debretton (28 Bom. 326), Meenakshi Sundarammal v. Subramania Ayyar (A.I.R 1955 Mad 369), Akshov Singh v. Rameshwar Bagdi (A.I.R 1917 Cal. 705), Mt. Rani v. Mt. Jaiwanti (A.I.R 1925 Nag. 395) Crown v. Muhammad Hussain (PLD 1950 Lahore 86), Gurunarayan Das and others (A.I.R 1948 Pat. 58) Agha Nazarali Sultan Muhammad v. Emperor (A.I.R 1941 Sindh 186), Emperor v. Jarnally and others), A.I.R 1925 Lah. 464), Ghulam Rasool v. State (1999 MLD 3085), Muhammad Asif v. State (N.L.R 1991 Cr. 363), Noor Muhammad alias Noora v. State (1992 SCMR 2079), Muhammad Nazir alias Jeera v. State (PLD 2001 Lah. 212), Muhammad Anwar v. State (K.L.R 1986 Criminal Cases 448) Nawab-ul-Hassan v. State (2003 SCMR 658) and Yousaf Ali v. State (2002 SCMR 1885)"
(B.T.) Petition dismissed.
PLJ 2007 SC 19
[Appellate Jurisdiction]
Present: Javed Iqbal, Nasir-ul-Mulk & Hamid Ali Mirza, JJ.
NAZIR AHMAD--Petitioner
versus
MUHAMMAD ARIF & others--Respondents
Crl. Petition No. 436 of 2004, decided on 27.4.2006.
(On appeal from the judgment of the Lahore High Court Lahore dated 3.11.2004 passed in Crl. Appeal No. 276/J of 2001).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Incident taking place in darkness of night--Assailant not identified by complainant--Setting aside conviction & sentence by High Court--Validity--Careful scrutiny of record would reveal that "N" (petitioner) by whom FIR was got lodged was not residing in house where alleged occurrence had taken place--It has also come on record that place of residence of "N" was at distance of 15 acres--It is worth mentioning that on first instance "N" was examined on 29.6.1997 and no mention whatsoever was made qua respondents in his statement besides that his statement was also got recorded as PW-11 by trial Court--Incident had taken place in darkness of night and no light was available at spot--Respondents are residing in same village but neither they could be identified nor their names could be mentioned in earlier statement of "N" got recorded on 29.6.1997--Statement of Mst. "B" was got recorded after delay of 24 days and on basis whereof strong inference can be drawn that statement was got recorded after deliberation--No doubt that respondents have been nominated in supplementary statement evidentiary value whereof cannot be more than statement recorded u/s 161 and as such it cannot be considered as substantial evidence on basis whereof conviction could have been awarded to respondents--Mere fact that Supreme Court might have taken different view of evidence should not be sufficient to over-rule findings of Court below--But where acquittal of respondent cannot be maintained, as findings recorded by High Court are clearly not supportable on record, interference by Supreme Court is not only justified, but necessary in interest of justice--Held: Judgment impugned is neither perverse nor arbitrary, but on other hand cogent reasoning has been given to upheld determination of trial Court--Petition devoid of merit is dismissed and leave refused. [Pp. 21 & 22] A, B, C, D, E, & F
Syed Ali Hassan Gillani, ASC and Mehr Khan Malik, AOR for Petitioner.
Nemo for Respondents.
Date of hearing : 27.4.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against judgment dated 3.11.2004 whereby the criminal appeal preferred on behalf of Muhammad Arif & others (respondents) has been accepted and the judgment of learned Special Judge (STA) Court, Mianwali dated 22.11.2000 was set aside whereby Muhammad Arif was convicted under Section 302 (b) PPC as sentenced to death. Muhammad Saleem and Muhammad Nazir were convicted under Section 302 (b) PPC and sentenced to life imprisonment and more so they were also convicted under Section 324/34 PPC and sentenced to suffer R.I for five years and to pay fine of Rs. 10,000/- each and in case of default to undergo one year R.I each.
Briefly stated facts of the case as enumerated in the judgment impugned are to the effect "that on 4.6.1997 at evening time, Nazir Ahmad, complainant went to the dera of Muhammad Ramzan and Muhammad Amir his cousins in connection with an urgent work. There, the complainant came to know that his cousin Muhammad Ramzan alongwith his mother had gone to Lahore. Muhammad Amir, the other cousin of the complainant, asked the complainant to stay with him for a night because the complainant had got late. On the asking of Muhammad Amir, the complainant stayed at the dera of Muhammad Ramzan and Muhammad Amir. The complainant alongwith Muhammad Amir and Mst. Bakthan and Mst. Hameedan went to their respective cots after putting the same from western to eastern side in courtyard of the house. Muhammad Ismail aged about 6/7 years son of Muhammad Ramzan also slept alongwith Mst. Hameedan. The complainant woke up early in the morning. At about 4 a.m, three persons armed with fire-arms came there. One of them was aged person having small beard and moustaches while other two were quite young. The accused asked Muhammad Amir to wake up. Muhammad Amir grappled with them. On alarm, the complainant, Mst. Bakhtan and Mst. Hameedan also woke up. A 12 bore licenced gun was lying near Mst. Hameedan. She intended to fire upon the accused but one of the accused snatched the gun from her and other two fired shots which landed upon the neck of Mst. Hameedan. She fell down. One bullet hit upon the forehead of Muhammad Amir due to firing made by the accused. One of the accused gave a butt blow on the face of Mst. Bakhtan due to which apart from upper lip, her four teeth were fractured Muhammad Saleem who was sleeping on the cot of Mst. Hameedan sustained a bullet injury upon his head. The complainant took shelter under a chappar in order to save his life. The people residing in the dera situated nearby attracted to the place of occurrence on hearing the sound of fires. The accused on seeing the people decamped from the spot. It was alleged in the FIR that the complainant and other injured witnesses could identify the assailants if brought before them. The injured namely Mst. Bakhtan, Mst. Hameedan and Muhammad Ismail were being removed to the hospital but Mst. Hameedan succumbed to her injuries in the way". After completion of investigation the respondents were sent up for trial and on conclusion whereof they were convicted as per details mentioned herein above. Being aggrieved an appeal was preferred on behalf of respondents which has accepted vide judgment impugned, hence this petition.
Syed Ali Hassan Gillani, learned ASC entered appearance on behalf of Nazir Ahmed (petitioner) and contended strenuously that the impugned judgment of learned High Court acquitting the respondents of murder charges and causing serious injuries to the victim is against law and facts of the case and besides that the reasoning given by the High Court is without substance having no nexus whatsoever with the evidence which has come on record. In order to substantiate the said contention it is urged with vehemence that the ocular evidence furnished by the injured witnesses whose presence was natural has been disbelieved on extraneous considerations. It is next argued that the eye account furnished by the prosecution duly corroborated by the medical evidence has been ignored without any rhyme and reason. It is next contended that the injured witnesses had not only nominated the respondents but also described the role played by them in commission of alleged offences and FIR was also got lodged with promptitude. It is also pointed out that the learned Special Judge (STA) Court, has examined the evidence in depth and convicted the respondents by a well-reasoned order, which has been reversed without assigning any cogent reasoning.
We have carefully examined the above-mentioned contentions, scanned the entire evidence and perused the judgment of learned trial Court as well as the judgment impugned carefully. A careful scrutiny of the entire record would reveal that Nazir Ahmed (petitioner) by whom the FIR was got lodged was not residing in the house where the alleged occurrence had taken place. It has also come on record that place of residence of Nazir Ahmed was at a distance of 15 acres. It is worth mentioning that on first instance Nazir Ahmed was examined on 29.6.1997 and no mention whatsoever was made qua the respondents in his statement besides that his statement was also got recorded as PW-11 by the learned trial Court. We have scrutinized his statement with abundant caution which is indicative of the fact that the incident had taken place in the darkness of night and no light was available at the spot. It is quite amazing that the respondents are residing in the same village but neither they could be identified nor their names could be mentioned in the earlier statement of Nazir Ahmed got recorded on 29.6.1997. This would lead us to draw the irresistible conclusion that the assailants could not be identified by Nazir Ahmed. It has also been observed with curiosity that the statement of Mst. Bakhtan was got recorded after delay of 24 days. The date of recording of her statement is 29.6.1997 on the basis whereof a strong inference can be drawn that statement was got recorded after deliberation. The learned ASC on behalf of petitioner could not explained that as to why the respondents who were residing in the same village could not be named as accused in the FIR scrutiny whereof would reveal that it was got lodged against some unknown culprits. The learned ASC has laid much stress on the factum of recovery in oblivion of the fact that there is no report from Fire-arm Expert and thus the factum of recovery would have no substantial bearing on merits of the case because the empties and crime weapons could not be sent to Firearm Expert. We are not persuaded to agree with learned ASC that this could have been done even at this stage by this Court because no such request was made at opportune moment before the trial Court and if it is accepted now it would amount to provide another opportunity to the prosecution to fill in the lacunas which cannot be done. No doubt that the respondents have been nominated in supplementary statement evidentiary value whereof cannot be more than a statement got recorded under Section 161 and as such it cannot be considered as substantial evidence on the basis whereof conviction could have been awarded to the respondents. It is worth mentioning that "the principles which have been consistently followed by the Supreme Court are that as an ultimate Court, the Supreme Court must give due weight and consideration to the findings of the Courts below, and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not arrived at by disregard of any accepted principle regarding appreciation of evidence. The mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to over rule the findings of the Court below. However, if the grounds upon which the High Court has acted are not supportable on the record, or the decision on a question of fact has turned upon inadmissible evidence nor upon a faulty reading of evidence, or where there has been a departure from the procedure in the reception of evidence or otherwise interference by this Court would be justified and necessary. Therefore, Supreme Court will be reluctant to interfere with such orders unless it is possible to demonstrate with certainty that none of the grounds upon which he was acquitted is at all supportable, even, though upon the evidence on record a different conclusion might be arrived at. But where the acquittal of the respondent cannot be maintained, as the findings recorded by the High Court are clearly not supportable on the record, interference by the Supreme Court is not only justified by necessary in the interest of justice:. (State v Khan Beg 1970 SCMR 353, Haq Nawaz v. Muhammad Khan 1977 SCMR 356, Farid v. Aslam PLD 1977 SC 4, Fazal Ilahi v. Zamurad Khan PLD 1977 SC 535).
On the criterion as mentioned herein above this petition has been examined and we are of the considered view that the judgment impugned is neither perverse nor arbitrary but on the other had cogent reasoning has been given to upheld the determination of learned trial Court. No illegality or infirmity could be pointed out persuaded us to grant leave to appeal.
In sequel to above mentioned discussion this petition being devoid of merit is dismissed and leave refused.
(B.T.) Petition dismissed.
PLJ 2007 SC 23
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi & Shakirullah Jan, JJ.
DILBER MASIH--Petitioner
versus
STATE--Respondent
Jail Petition No. 304 of 2003, decided on 15.2.2006
(On appeal from the Judgment passed by Lahore High Court, Lahore dated 16.7.2003 in Crl. Appeal No. 213-J-2001).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 449--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence--Firing single shot by petitioner on lower part of body--Extensive bleeding for want of care and medical aid--Mitigation for lesser punishment--Prosecution has placed on record copy of report lodged by deceased regarding theft of his motorcycle whereas eye-witnesses have consistently deposed that accused had grievance against deceased for his having suspected him to have committed theft of his motorcycle and for same grudge while trespassing into his house fired at deceased--Petitioner was identified by witnesses in electric ligh in courtyard of house as well as while running in street after occurrence and defence has not been able to bring on record any evidence, direct or circumstantial to suggest that either it was dark night or there was no electric light available in courtyard of house or in street, and in view thereof, no any other exception to conclusion of evidence drawn by two Courts regarding guilt of petitioner can be taken--However, while taking into consideration question of sentence, that single shot was fired by petitioner on lower part of body of deceased which caused fracture of his leg and at first instance, he was taken to Gojra Hospital in injured condition for medical aid but was referred to Allied Hospital and on way to Hospital, his condition become serious, therefore, he was brought back to Gojra Hospital and in this process, deceased for want of proper care and medical aid expired due to extensive bleeding--Held : Life of deceased could be saved if proper medical aid would have been provided to him at Gojra and thus these circumstances would certainly provide some mitigation for lesser punishment--Petition was converted into appeal and partly allowed with reduction of sentence of death awarded to appellant to life imprisonment. [Pp. 25 & 26] A & B
Mr. M. Zaman Bhatti, ASC for Petitioner.
Raja Saeed Khan, AAG for Respondent.
Date of hearing : 15.2.2006.
Judgement
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 16.7.2003 passed by a Division Bench of Lahore High Court, in a criminal appeal filed by the petitioner whereby conviction and sentence of death awarded to him under Section 302 (b) PPC and rigorous imprisonment for a term of ten years under Section 449 PPC with direction to pay Rs. 10,000/- as compensation to the legal heirs of the deceased, was maintained and appeal was dismissed. The death sentence awarded to the petitioner was confirmed and murder reference sent by the trial Court was answered in the affirmative.
The brief facts in small compass, as contained in the FIR lodged by Farhan Ullah Masih (complainant) at police station Gojra, are that on the day of occurrence, Iftikhar Ullah Masih, his maternal uncle and Hafiz Ullah Masih his paternal uncle, having visited his house, remained busy in conversation on the domestic problems and at bout 10 pm Hafiz Ullah Masih left for his house whereas he and Iftikhar Ullah Masih went to sleep on roof top of the house and his father Sarfraz Ullah Masih, slept in the courtyard of the house. The complainant and Iftikhar Ullah Masih were still talking when they saw that Dilbar Masih (petitioner), armed with .12 bore carbine, by scaling over the wall entered in the courtyard of the house and after firing a shot at Sarfraz Ullah Masih, ran away by scaling over the wall and on their noise Hafiz Ullah Masih coming out of his house, tried to apprehend Dilbar Masih but he escaped. Sarfraz Ullah Masih was taken to civil hospital Gojra for treatment and the doctor after giving first aid, referred him to Allied Hospital, Faisalabad but due to serious condition, he was brought back to Civil Hospital Gojra from a short distance and before could be given treatment, he last his breath. The motive for the occurrence as stated in the FIR, was that about 5/6 months earlier motor cycle of deceased was stolen and he having suspected the accused to have stolen his motorcycle, demanded payment of the price of motorcycle or prove his innocence whereupon the accused felt insulted and having nursed grudge against the deceased, committed his murder. The prosecution in proof of the charge, mainly relied upon the ocular account furnished by Hafeez Ullah Masih (PW-10), Farhan Ullah Masih complainant (PW-8) and Iftikhar Ullah Masih (PW-9) duly supported by medical evidence and motive. The accused in his statement under Section 342 Cr.P.C. denied the charge and pleaded innocence.
Learned counsel for the petitioner in support of this petition, has contended firstly, that there was inordinate delay of about six hours in lodging the report and it was an unseen night occurrence, secondly the deceased was murdered in the courtyard of his house and except the complainant, his son, no other witness was present and that eye-witnesses being closely related to the deceased, were not independent and thirdly, pointing out the minor discrepancies and contradictions in the evidence and suggestion put to the witnesses in the cross-examination regarding the illicit relations of deceased with Mst. Sughran, contended that he was fired at by some of the relative of Mst. Sughran and neither the witness have seen the occurrence nor they could identify the assailant in the dark from roof top of the house and that petitioner was substituted for unknown assailant due to the suspicion. In nutshell the contention of the learned counsel was that the circumstances, leading to the happening of the incident in the night would create a reasonable doubt regarding the commission of offence by the petitioner and lastly, he argued that single injury on non vital part of the body, would indicate lack of intention to kill which could be considered a mitigation for lesser punishment, therefore, the sentence of life imprisonment would be sufficient to meet the ends of justice. The learned Assistant Advocate General, on the other hand has opposed this petition with the contention that deceased was murdered in the courtyard of his house and the complainant being inmate of the house was most natural witness whereas presence of Iftikhar Ullah Masih, his paternal uncle in the house was also not unexpected and since deceased has suspected the petitioner to have stolen his motorcycle, therefore, he had a strong motive to commit the crime.
The occurrence in the present case had taken place in the Courtyard of the house of deceased within the sight of Farhan Ullah (complainant) and Iftikhar Ullah, his paternal uncle, the most natural witnesses. There is nothing on record to suggest the false implication or substitution of the petitioner for unknown culprit as none of the witnesses had any reason or malice against the petitioner to involve him in the murder of the deceased. Hadayat Ullah Masih, maternal uncle of the deceased and his neighbourer on hearing the noise rushed out of his house and having seen the accused running in the street made an attempt to apprehend him but could not succeed. This witness was also quite independent and having narrated the facts in natural sequence, has supported the prosecution without any exaggeration and also corroborated the eye-witnesses in each material point.
Learned counsel has not been able to do convince us that testimony of eye-witnesses, was suffering from any disqualification to be excluded from consideration or that it being tainted with malice was not reliable. The prosecution has placed on record the copy of the report lodged by the deceased regarding theft of his motorcycle whereas the eye-witnesses have consistently deposed that accused had grievance against the deceased for his having suspected him to have committed the theft of his motorcycle and for the same grudge while trespassing into his house, fired at the deceased. We find that the ocular account would also be supported by the medical evidence to the extent of sustaining the fire-arm injury by the deceased at the hand of petitioner and in these circumstances, the minor discrepancies and contradictions pointed out by the learned counsel for the petitioner would not be material either to effect the credibility of the evidence of eye-witness or create any doubt or dent in the prosecution case. The petitioner was identified by the witnesses in the electric light in the courtyard of the house as well as while running in the street after the occurrence and defence has not been able to bring on record any evidence, direct or circumstantial to suggest that either it was a dark night or there was no electric light available in the courtyard of the house or in the street, and in view thereof, we would not take any exception to the conclusion of the evidence drawn by the two Courts regarding the guilt of the petitioner. However, while taking into consideration the question of sentence, we find that a single shot was fired by the petitioner on lower part of the body of deceased which caused fracture of his leg and at the first instance, he was taken to Gojra hospital in injured condition for medical aid but was referred to Allied Hospital, Faisalabad and on the way to hospital at Faisalabad, his condition became serious therefore, he was brought back to Gojra hospital and in this process, the deceased for want of proper care and medical aid expired due to the extensive bleeding. It may be seen that the life of the deceased could be saved if proper medical aid would have been provided to him at Gojra and thus these circumstances would certainly provide some mitigation for lesser punishment. This petition is, thereof, converted into an appeal and is partly allowed with reduction of sentence of death awarded to appellant to life imprisonment with direction for payment of compensation to the legal heirs of the deceased in terms of the judgment of the High Court. The sentence awarded to him under Section 449 PPC is however, maintained. This appeal, with above modification in the sentence, is partly allowed.
(B.T.) Order accordingly.
PLJ 2007 SC 26
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Raja Fayyaz Ahmad, JJ.
RAFIULLAH, EX-HEAD CONSTABLE--Appellant
versus
STATE--Respondent
Crl. Appeal No. 67 of 2005, decided on 19.1.2006.
(On appeal from the judgment dated 7.5.2003 passed by Lahore High Court, Lahore in Crl. A. No. 78/2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 409--Prevention of Corruption Act, 1947, S. 5(2)--Breach of trust--Conviction & Sentence--Enhancement of punishment by High Court--Validity--Allegation of misappropriation was not in respect of any particular property rather he was charged in general terms for misappropriation of certain properties of different cases of value of Rs. 4,26,133/- without giving detail of such properties and High Court being influenced by fact that petitioner was moharrar, without pointing out any exceptional circumstances for enhancement of sentence, interfered in quantum of punishment--There is no cavil to proposition that appellate or revisional Court, in suitable cases may examine question of sentence but enhancement of sentence is not proper for mere reason that Court was competent to award maximum term of sentence provided under law--Held: There was no justification for enhancement of sentence of appellant--Sentence of appellant was set aside and sentence awarded to him by trial Court was restored. [Pp. 29 & 30] A & B
Mr. Arshad Ali Chaudhry, ASC for Appellant.
Mr. Tariq Bilal, ASC for State.
Date of hearing : 19.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of this Court has been directed against the judgment dated 7.5.2003 passed by a learned Judge in Chamber of the Lahore High Court, Lahore whereby the Criminal Appeal No.78 of 2002, filed by the appellant, Rafiullah, against the conviction and sentence awarded to him by the trial Court under Section 409 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 was dismissed with enhancement of sentence under Section 409 PPC from three years and fine of Rs. 50,000/- to Rs. 100,000/- In default of payment of fine, he was directed to undergo R.I for six months.
"I have gone through the leave granting order of senior puisne Judge and dissenting order of my learned brother Judge and have gone through the record minutely.
Brief facts of the case are that the petitioner was charged under Section 5 of the Prevention of Corruption Act II of 1947, read with Section 409/411 PPC, by learned Special Judge Anti Corruption, Sargodha which charge was denied as such prosecution examined seven PWs and after closing of evidence the petitioner was examined under Section 342 Cr.P.C. who pleaded his innocence and stated that he has been falsely implicated in the case. After recording of evidence and hearing learned counsel for the parties, learned trial Court convicted the petitioner under Section 5(2) of the Prevention of Corruption Act, 1947, read with Section 409/411 PPC and sentenced him to three years RI with fine of Rs. 50,000/- and in default to undergo further two months RI extending benefit of Section 382-B Cr.P.C. The petitioner appealed against the judgment of conviction & sentence before the Lahore High Court, Lahore which appeal was dismissed but on issuing show-cause notice to the petitioner his sentence was enhanced from three years to 10 years RI and fine of Rs. 50,000/- was also enhanced to Rs. 1,00,000/- (one lac) or in default thereof six months RI.
Charge was read over to the petitioner on 5.12.2001 which stated that the petitioner while being posted as Malkhana Moharrir, Saddar Mianwali during the period from 1995 to 1999 was entrusted with 25200 cartridges and an amount of Rs. 4,26,133/- being property of different cases, was misappropriated by him and thereby committed criminal breach of trust punishable under Section 409 PPC read with 5(2) of Prevention of Corruption Act, 1947. The above charge would show that the petitioner has been alleged to have committed offence of breach of trust during the period of 1995 to 1999 in respect of the cases properties said to have been entrusted to him as per Ex. PW/1-31 ranging from Entry No. 1 to 313 in cases for the period from 1993 to 1998 consequently there has been contravention of Section 239(c)(e) Cr.P.C. as the petitioner was charged for more that one offence of same kind allegedly committed during the period of five years which prima facie caused prejudice to the petitioner.
Besides above, under Section 409 PPC ingredients of entrustment is to be proved beyond any reasonable doubt before the accused is convicted under Section 409 PPC but in the instant case prima facie there is not evidence to the effect as to what amount of case property/arms ammunition were entrusted to the petitioner/accused and by whom under which acknowledgment entry of the register. Prima facie statement of PWs 2 & 3 who got the report prepared and found some amount and arms ammunition short but prima facie no proof of entrustment has brought on record. It has also to be observed that after arrest of the petitioner/accused one Abdul Rehman was having the key of Malkhana without he being given proper charge of the same by the petitioner. PW-3 Inspector (legal) Naik Muhammad has deposited that he did not check all the case property of the Malkhana and that the keys were with one Ataullah, City Moharrir, before charge was given to Abdul Rehman. PW-4 Abdul Rehman has deposited that deficiency of currency was originally estimated as Rs. 4,26,133/- alongwith ammunition, but later on, after checking by Khalid Bashir Cheema, the currency notes valuing Rs. 3,76,579 were found deficient. He also deposed that 25200 cartridges were found which were said to be missing, thereby all the above said evidence appeared to be inconsistent with the charge so framed.
I may also add that petitioner filed an appeal before High Court under Section 410 Cr.P.C. against his conviction by the Special Judge under Prevention of Corruption Act who possessed the powers of Sessions Judge, whereas the High Court while exercising the appellate powers under Section 423 Cr.P.C. dismissed the appeal and enhanced the sentence from three years R.I to ten years R.I and also enhanced the amount of fine from Rupees Fifty thousand to Rupees One lac, considering the fact that there was no appeal or revision from the State. It is also to be seen whether the High Court could have enhanced the sentence of the petitioner in its appellate jurisdiction when there was even no appeal from the State.
I have also observed that the impugned judgment of trial Court does not contain point for determination, decision thereon and reasons for decision as required under sub-section (1) of Section 367 Cr.P.C.
All the above legal points need consideration, therefore, in my view it is a fit case where leave to appeal ought to be granted to consider inter-alia the above legal pleas. I accordingly grant leave to appeal in the case and concur with learned senior puisne Judge".
Learned counsel for the appellant has contended that the enhancement of the sentence by the High Court in appeal in exercise of suo moto powers under Section 439 Cr.P.C. was not legal and proper as the power of enhancing sentence must be exercised sparingly only in exceptional cases in which failure to exercise such power may lead to a serious miscarriage of justice. Learned counsel for the State, on the other hand has submitted that petitioner being moharrar, Saddar, Mianwali, misappropriated the case properties of a number of cases, therefore, the High Court keeping in view the serious nature of allegation, while dismissing the appeal filed by the petitioner against the conviction, enhanced his sentence in its revisional jurisdiction.
The perusal or record would show that allegation of misappropriation was not in respect of any particular properly rather he was charged in general terms for misappropriation of certain properties of different cases of the value of Rs 4,26,133/- without giving the detail of such properties and High Court being influenced by the fact that petitioner was moharrar, Saddar, without pointing out any exceptional circumstance for enhancement of sentence, interfered in the quantum of punishment. There is no cavil to the proposition that appellate or revisional Court, in the suitable cases, may examine the question of sentence but enhancement of sentence is not proper for mere reason that Court was competent to award maximum term of sentence provided under the law.
(B.T.) Order accordingly.
PLJ 2007 SC 30
[Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
SUPREME COURT OF PAKISTAN IN SUO MOTO ACTION--Petitioner
versus
ADVOCATE GENERAL, SINDH & other--Respondents
Crl. Misc. Application No. 189 of 2006, decided on 28.4.2006.
Juvenile Justice System Ordinance, 2000 (XXII of 2000)--
----S. 10--Detention of minor children by Police--Tied up with hand cuffs & fetters--New flashing on G.E.O. TV--Magistrate allowing judicial remand--Violation of law--Suo moto action by Supreme Court--Primarily detention of boys is against provision of Section 10 of Ordinance--However, Police authorities had taken initiative and decided to proceed against responsible police officers--Therefore, no further comments are required to be made in this behalf--Judicial Magistrate writes down detailed order at stage of granting remand to accused produced before him by police--However, comparing both orders it appears that one of orders was prepared later on, in order to save his skin--Civil Judge exceeded his jurisdiction--He should have not sent boy to judicial lock-up noticing that police had already kept him in police station--Supreme Court have developed system of local bodies, if relatives of boys were not coming forward, Magistrate could have asked I.O. to summon "Nazim" or Naib Nazim or councilor of area and may have handed over his custody to him as he has no power to send him to police or judicial lock up at investigation stage--Held: Judicial Magistrate prima facie had acted illegally, contrary to law, he is restrained to exercise judicial powers.
[Pp. 32, 35 & 36] A, B, C, D, E & F
Raja Abdul Ghafoor, ASC on behalf of A.G. Sindh.
Mr. Anwar Subhani, AIG, Legal.
Date of hearing : 28.4.2006.
Order
Iftikhar Muhammad Chaudhary, C.J.--This Criminal Misc. Application has arisen out of suo moto action taken 17th April 2006.
First Enquiry Report:
The inquiry was conducted by a team of the police officers in which following findings have been recorded:
During the enquiry Point Nos. 1 and 2 were answered in positive as both the accused boys were caught red handed by the complainants and were brought on police station by themselves. The complainants and other persons discussed above insisted on registration of the case against them.
Point No. 3 is also replied positively. From the examination of the record available as well as the statements discussed above it is beyond any shadow of doubt that the two boys namely Asad and Saeed were handed over to police and arrested on 15.04.2006 at 1630 Hrs and were kept in Lock-up till 17.04.2006, for two days. One of the accused namely Saeed was released by SP (Inv) Hyderabad on 17.04.2006 at 730 Hrs as being minor and younger of the two. Where as the other accused boy was taken to judicial Magistrate-I for police remand. The Magistrate remanded the accused and placed him under Judicial custody. The copies are enclosed as Annexure.
It is also correct that the 3rd accused boy namely Muzamil was arrested on 17.4.2006 at 1630 Hrs and was brought on Police Station. Qasimabad by and was handed over to IO ASI Khalil Rehman Shah. The IO in turn handed over the custody of the boy to WHC/1957 Abdul Majeed. The WHC tied the feet of the boy with Iron Chain fearing that the nominated accused boy might escape from the police station which is not safe custody of any accused.
From the above discussion it is proved beyond any doubt that 2 boys were kept for 2 days in police Lock-Up ASI Khalil Rehman Shah being Investigation Officer of the case as well as being incharge of investigation (SIO) PS Qasimabad is responsible for detaining boys.
Regarding chaining of this boy WPC/1957 Abdul Majeed is responsible as he has tied the feet of the accused with Iron chain after the accused was handed over to him by the said I.O again due to un-favourable circumstances at the police station.
TIO/Insp. Hamid Theheem is also found negligent in supervision the police station staff.
The departmental proceeding for above misconduct on the part of officers/officials is being initiated under Removal from Service Ordinance 2000.
Second Enquiry Report:
A perusal of enquiry report by District Judge, Hyderabad indicated that facts noted in the report of police Authorities have been endorsed, particularly, that boy Muzammil was arrested on 17th April 2006 and his legs were tied with fetters contrary to the provision of Section 12 of the Juvenile Justice System Ordinance 2000, although in the police repot, it is mentioned that fetters were applied to ensure that he may not escape. But according to the learned Sessions Judge, no such apprehension has been shown in the papers about the escape of the child from the custody. Similarly Saeed, aged about 6 years, remained in police custody w.e.f. 15th April 2006 to 17th April, 2006 and his detention with police is absolutely illegal and being a juvenile he was required to be dealt with accordingly. As far as Asad, the third boy is concerned, he was remanded to Central Prison, Hyderabad as per report of the Incharge Civil Judge/Judicial Magistrate, Hyderabad, Nadeem Zafar Hashmi. It seems that the Magistrate had passed order on 17th April 2006, contents whereof are reproducted herein below:
"Accused Asad son of Lukhadino by Case Khashkehli, produced by police Qasimabad, Hyderabad involved in an offence/crime punishable under Section 454/380 PPC/14 H.O in Crime No 60 of 2006 & 59 of 2006 with the request of 14 days police custody remand. Accused Asad on enquiry disclosed his age about 14/15 years, but failed to produce any documentary proof regarding his age. Even offence is non-bailable but according to Juvenile Justice System Ordinance 2000, offence committed by Juvenile persons under the age of 15, be treated as bailable offence. Following the law laid down in (1988 P Cr.LJ 1985 Muhammad Anwar V/S the State (Karachi), accused who claims to be a young boy has not produced any documentary proof like testimonial or birth certificates, nor any guardian or relative is present, hence physical appearance is not a conclusive or authentic proof of age of accused not it could be termed as an expert opinion. Further following the law laid down in 2005 PLD 15 (Lahore), the Juvenile Justice System Ordinance 2000 abolished and the cases pending in Juvenile Courts were transferred to the Ordinary Courts having jurisdiction.
In view of the above there is very much confusing circumstances whether this Court follow Juvenile Justice System Ordinance 2000 or not as the same has been abolished by Judgment 2005 PLD 15 (Lahore). Nobody made any request to submit bond for release of accused and to get safe custody of accused.
In these circumstance accused seems to be a youth/juvenile offender, hence in the interest of justice I asked about guardian of accused, but he stated that no body from his family came in Court. I also made enquiry from. I.O about guardian of accused, he failed to submit any information regarding attending of Court by guardian/any family member of accused. I directed to the I.O to drop accused at his house after collecting address of accused from the record of Police Station and obtained personal bond of his family members. On such accused refused to go with police again to P.S with the fear that they will beat him and requested to remand him to jail. This Court also asked from accused regarding any telephone number of his relative but he failed to give the same. The under signed also tried to collect information regarding officer of prohibition, but failed to collect such information regarding prohibition officer. I, therefore, remand to accused to Judicial custody with the opinion as and when any person from his family members will appear and will submit bond, accused will released and custody will be handed over to him, IO is directed to submit challan within stipulated time and to inform accused relative about case:.
"Accused produced by police made no complainant of maltreatment at the hands of police.
I.O. requested for police custody remand to recover stolen property. Accused nominated in F.I.R., I find no cogent ground for police custody remand, as accused seems to be Juvenile. I therefore allow 14 days Judicial Custody Remand, with directions to submit Challan with time."
A perusal of above order indicates that remand was granted knowing well the age of boy who had to be dealt with according to the provision of Juvenile Justice System 2000. In the detailed order dated 17.4.2006, reference of PLD 2005 (Lahore) 15 is incorrect, because every Judicial Officer knows that this judgment has been suspended by Supreme Court on 11.2.2005. Said order is reproduced herein below:
"Civil Petitions Nos. 300 and 303 of 2005 are connected matters. In both these petitions judgment delivered by learned Lahore High Court Lahore on 6.12.2004 in W.P No. 20645 of 2002 has been impugned. It is contended by Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan that the reasons assigned for holding Juvenile Justice System Ordinance, 2000, to be altra vires to the constitution, are not sustainable in law. Further contends that the findings of High Court, in fact, are based upon extra legal consideration, which could not be a ground for striking down said Ordinance, Learned Attorney General also argued that learned High Court erred, while interpreting Articles 4,9 and 25 of the Constitution and failed to consider the real spirit of these Articles. Mr Anees Jillani, ASC appearing in C.P 303 of 2005, adopted arguments of learned attorney General for Pakistan.
The above points intra-alia, required consideration. Issue notices to Farooq Ahmed, respondent with a direction to submit his comments on the points raised in these petitions within three weeks. Notice be also issued to the Advocate-Generals of all the four Provinces. The operation of the impugned judgment is suspended till further orders. These petitions be fixed for regular hearing after the comments are received.
Even otherwise in the normal course it had never happened that a Judicial Magistrate writes down a detailed order at the stage of granting remand to an accused produced before him by the police. However, comparing both the orders it appears that one of the orders was prepared later on, in order to save his skin. Thus we are of the opinion that Civil Judge exceeded his jurisdiction. He should have not send the boy to the judicial lock-up noticing that police had already kept him in police station without any justification for two days, for which the police offered explanation that both these boys Asad and Saeed were arrested on 15th April 2006, on 16th April 2006 being the holiday, they cold not produce them. In this behalf it may noted that there are duty Magistrates available in the Court on holidays for the purpose of granting remand, therefore, police could have produced them before him on the following day. Even otherwise we have developed a system of local bodies, if the relatives of the boys were not coming forward, the Magistrate could have asked the I.O to summon the Nazim or Naib Nazim or Councilor of the area and may have handed over his custody to him as he has no power to send him to police or judicial lock at the investigation stage.
Proceedings stand concluded accordingly.
(B.T.) Order accordingly.
PLJ 2007 SC 36
[Appellate Jurisdiction]
Present : Iftikhar Ahmad Chaudhry, CJ and
Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
COLLECTOR OF CUSTOMS, COLLECTORATE OF CUSTOMS, RAWALPINDI--Appellant
versus
KHUD-E-NOOR and others--Respondents
Criminal Appeals Nos. 519 to 527 of 2005, decided on 27.4.2006.
(On appeal from judgment/order dated 15.10.2003 passed by Lahore High Court, Rawalpindi Bench in Cr. A. 133-141/2003).
Customs Act, 1969 (IV of 1969)--
----S. 156(1)(8)--Notification--Removal of foreign currency from Pakistan--Conviction & sentence by Special Judge, Customs, Taxation and Anti--Smuggling--Appeal allowed by High Court setting aside conviction and sentence--Challenge to--It is concluded that in respect of criminal case, falling under any provision of law, prevailing in country, if person claims that he has been authorized to take currency out of Pakistan, he has to adopt proper procedure i.e. through Bank etc. and no one can be allowed to shift currency except to tune of 10,000 US$, as it has been prescribed by State Bank of Pakistan that if it has been purchased from authorized dealer--Prosecution has produced overwhelming incriminating evidence against respondents to establish that they were found smuggling US$ out of country in pursuance of Section 2(5) read with Section 156 (1)(8) of Act, 1969--It may not be out of context to note that though respondents claimed them that they have purchased currency from money changer but during investigation receipt so produced by them was found to be fake--Held: Respondents were not authorized to transfer US$ 10,000/-, if it is proved, subject to condition that same has been purchased from authorized dealer in view of notification of State Bank of Pakistan--Judgment of High Court set aside and conviction passed by Special Judge Customs was restored. [Pp. 39, 41 & 42] A, B & C
2000 SCMR 814, PLD 2003 SC 250, PLD 1976 SC 452, ref.
Malik Itat Hussain Sheikh, ASC Mr. M.S. Khattak, AOR and Mr. Mumtaz Ahmed, Member (Legal), CBR for Appellants.
Mr. Altaf Ellahi Sheikh, ASC for Respondents.
Mr. Yahya Afridi, ASC (in Cr. A. 519/2005).
Raja Muhammad Irshad, DAG with respondents (except M. Zaman, Respondent in Cr. A. 527/2005) on Court Notice.
Date of hearing : 27.4.2006.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--These appeals by leave of the Court have been filed against the judgment dated 15.10.2003 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi. As common questions of facts and law are involved in all the appeals, therefore, we intend to dispose them of by means of instant common judgment.
Sr.# Name of respondent Amount
Khud-e-Noor s/o Mian Noor Khan 60000 US$
Raees Khan s/o Nauroz Khan 41000US$
1320 China Currency
337 China Currency
160 China Currency
732 China Currency
850 China Currency
Gul Khan s/o Muhammad Jan 89500 US $
Shero Khan s/o Zargul Khan 28100 US$
Muhammad Zaman s/o Aleem Jan 61000 US$
In the circumstances, cases vide FIRs Nos. 167 to 175 dated 11th April, 2001 u/S. 156 (1) (8) of the Customs Act 1969 [herein after referred to as `the Act, 1969'] were registered against them. On completion of investigation, they were challaned before the Special Judge, Customs, Taxation and Anti Smuggling Rawalpindi-Islamabad. Learned trial Court after trial, vide judgments dated 30th January 2003, convicted the respondents u/S. 156 (1) (8) of the Act 1969 and sentenced them to undergo R.I for one month (which they had already undergone) with fine of Rs. 100,000/- and in defualt in the payment of fine to further undergo imprisonment for two years each. High Court allowed their appeals vide impugned judgment whereby conviction/ sentences awarded to them by the trial Court were set aside.
Leave to appeal has been granted to examine the question with regard to interpretation of amended Section 4 of the Protection of Economic Reforms Act, 1992 [herein after referred to as "the Act, 1992"].
Learned counsel appearing for appellant contended that respondents were in unauthorized possession of the foreign currency as the same has not been purchased by them from an authorized dealer, thus have failed to fulfill the requirement of Sections 2 (b) and 4 of the Act 1992, in view of the judgment reported in Irshad Ahmad Shaikh v. State (2000 SCMR 814).
Learned counsel for respondents contended that impugned judgment does not suffer from any illegality or irregularity, as the same has been passed by the learned High Court after taking into consideration all the attending circumstances of the case, as such the same deserves to be upheld. To support the acquittal of the respondents, he relied upon the judgment in the case of Asghar Ali v. State (PLD 2003 SC 250).
We have heard learned counsel for the parties and have also gone through the relevant provision of the law on the subject. Before examining the case on merits, it is considered appropriate to point out that according to the definition of
"economic reforms", incorporated Section 2 (1) (b) of the Act, 1992, it means "economic policies and programmes, laws and regulations announced, promulgated or implemented by the Government on and after the 7th day of November, 1990 relating to privatization of public sector enterprises, and nationalized banks, promotion of savings and investments, introduction of fiscal incentives for industrialization and deregulation of investment, banking, finance, exchange and payments systems, holding and transfer of currencies". With reference to instant case, word transfer' is most important. It may be noted the vide
Foreign Exchange (Temporary Restriction) Act, 1998 [herein after referred to asthe Act, 1998'], the concept of transfer of currency' was not amended.
Obviously transfer of the currency out side the country means legal transfer i.e. through authorized dealers, banks etc. and not through personal baggage or by any other illegal manner. It is to be noted that the Act of 1998 is applicable w.e.f 28th May 1998 and in pursuance of its Section 2, the protection of the Act, 1992 was suspended and after the promulgation of the same on 21th July 1998, State Bank of Pakistan issued Notification No. 1017 (1) 1998 on even date. According to clause (d) of the said notification, a person was authorized to take out of Pakistan foreign exchange issued to him by an
Authorized Dealer in Pakistan and endorsed on his passport to the extent of 10,000 US$ or equivalent thereto any other currency. The wordtransfer' obviously would mean a `legal transfer' and even if a person claims to be benefited of the Act 1992, which was amended subsequently by means of Act, 1998, he has to show that he is legally authorized to transfer the money out side the country for any purpose including his business. According to Section 2(a) of the Foreign Exchange Regulation Act, 1947, "authorized" dealer means a person for the time authorized under Section 3 to deal in foreign exchange". Therefore, it is concluded that in respect of a criminal case, falling under any provision of law, prevailing in the country, if a person claims that he has been authorized to take the currency out of
Pakistan, he has to adopt the proper procedure i.e. through Bank, etc. and no one can be allowed to shift currency except to the tune of 10,000 US$, as it has been prescribed by the State Bank of Pakistan that if it has been purchased from the authorized dealer.
Next question for consideration is whether in respect of culpable act, committed by a person the Act, 1969 shall remain suspended in terms of Section 3 of the Act, 1992. Answer to this proposition has already been given in the case of Irshad Ahmed Shaikh (ibid). Relevant para therefrom is reproduced herein below for convenience:--
"In order to comprehend the effect and paradigms of the operation of the Protection of the Economic Reforms Act, 1992, it is necessary to see the objective, which the legislation set out to achieve. This inter alia, would emerge upon a close scrutiny of the entire enactment and, if and when any ambiguity or uncertainty comes to be encountered, by making reference to the preamble, where after, if even then a satisfactory answer eludes the pursuit, going as far as the previous legislative measures on the subject, when available, as also the subsequent legislative developments, if any. An examination of the Protection of the Economic Reforms Act, 1992, clearly shows that the enactment was the culmination point of the economic policies, programmes, laws and regulations announced, promulgated or implemented by the Government (of Mian Muhammad Nawaz Sharif) on and after November, 7, 1990 relating inter alia, to promotion of savings and investments, introduction of fiscal incentives for industrialization and deregulation of investment, banking, finance, exchange and payments systems, holding and transfer of currencies and privatization of public sector enterprises alongwith nationalized banks. It was in that context that Section 3 of the statute was mandated to have effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947, the Custom Act, 1969, the Income Tax Ordinance, 1979 or any other law for the time being in force. The phrase last-quoted, therefore, is not one where the implications of the rule of ejusdem generic may be totally uninvocable. One, there from may be tempted to say here that the expression "any other law for the time being in force" could have meant largely to refer to fiscal and monetary promulgation having a direct nexus with economic activities. Two things seem to have been clearly excluded, one, the Constitutional law, being unamenable to supersession by a sub-Constitutional measure and second, as a corollary and even otherwise, laws inter-acting with criminal or penal acts of commission or omission. This in Zahoor Illahi v. Zulfiqar Ali Bhutto, PLD 1975 SC 383, this Court construed the generalized immunity, attaching to the Prime Minister under Article 248 of the Constitution, not to extend to illegal or criminal acts, such as contempt in contemplation of Article 204. Section 4 of the Act, which follows upon Section 3, opens itself to a similar interpretation and an entitlement of all persons freely "to bring, hold, sell, transfer and take out foreign exchange within, or out of Pakistan in any form", no liability attaching for making a foreign currency declaration nor such persons being liable to "be questioned in regard to the same", do not occasion a free licence to transgress the bonds of penal law nor to bypass or circumvent criminal processes, such as investigations of inquiries to assess culpability nor the consequential trials to determine punishment or penalties. In other words, the declarations being exempted and the question being foregone, pertain specifically to the absolute rights and total freedom to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form, no restriction or preclusion under the Foreign Exchange Regulation Act, 1947, the Customs Act, 1969 or the Income Tax Ordinance 1979, being attracted nor any taxes or duties being payable nor any confiscation or other such recourse being available. Even so, if such money or part thereof was utilized or acquired the status of being the subject-matter of an offence then, while the foreign exchange would still remain beyond the realm of being taken over, an inquiry to bring home the guilty of an accused person e.g. of theft or embezzlement could surely be undertaken and pushed to its logical conclusion. The question asked, therefore, pursuant to Section 4 of the enactment, would in no way result in deprivation of the foreign exchange in focus, as inclusive of the rights to own or possess the same yet the use thereof of for or in relation to a criminal or penal act could always be probed."
Learned counsel appearing for respondents relied upon the judgment in the case of Asghar Ali
(ibid). As per the facts of this case, raiding party of the Coastguards apprehended the petitioner alongwith the vehicle parked on the seashore at
Spot Bander'near aHORA' and during the personal search of the petitioner, Pakistani and foreign currencies were taken into possession. The learned trial
Court convicted the petitioner but the learned High Court maintained his conviction/sentence under Section 156(1)(8) and (89) of Act, 1969; the appeal filed by him before this Court was allowed and this Court set aside the conviction/sentence. It may be noted that petitioner in that case claimed the possession of Pak currency but denied the possession of foreign currency which was recovered from the secret cavities of the vehicle in which he and his companions were traveling; as and such this Court held that thus the part of the transaction relating to the recovery of foreign currency from the secret cavities of vehicle would constitute an offence under Section 156(1)(8) of the
Customs Act, 1969 whereas the part relating to the recovery of Pak currency from the possession of petitioner while traveling in the territory of Pakistan would not be an offence under the Customs Act, 1969, therefore, the seizure of
Pak currency and registration of case under Customs Act, 1969 to that extent was illegal and consequently, the trial of the petitioner before the departmental authorities would be without jurisdiction and illegal." In instant case, the prosecution has produced overwhelming incriminating evidence against the respondents to establish that they were found smuggling US$ out of country in pursuance of Section 2(5) read with Section 156(1)(8) of the Act, 1969. It may not be out of context to note that though the respondents claimed them that they have purchased the currency from money changer but during investigation the receipt so produced by them was found to be fake. Therefore, we are of the opinion that under these circumstances, the respondents were not authorized to transfer US $ 10,000/- if it is proved, subject to the condition that the same has been purchased from the authorize dealer, in view of the notification of the State Bank of Pakistan, referred to herein above.
Admittedly the respondents failed to discharge their burden in terms of Section 167 of the Act, 1969, therefore, learned Trial Court rightly convicted them.
However, we are of the opinion that in absence of any mitigating circumstance, the Court may have not taken the lenient view because if such culprits are allowed to be treated leniently, the object and the purpose of promulgation of penal law would be frustrated. It is well settled by the time that if an offence has been established against an accused, he is bound to be punished adequately under the law. [Muhammad Sharif v. Muhammad Javed @ Jeda Tedi (PLD 1976 SC 452)]. This aspect of the case can also be looked into from another angle i.e. no doubt that under the Act, 1992, certain facilities have been given for the purpose of development and promotion of the economic activities in the country but simultaneously, it is also be checked that the foreign currency is not moved out unauthorizedly otherwise it would promote the offence of money laundering, as well, and as a result whereof public exchequer would be affected badly and its ultimate result has to be borne by the common man.
For the foregoing reasons, appeals are allowed as a result whereof the judgment of Lahore High Court, date 15th October 2003 is set aside, consequently, the convictions passed by the Special Judge Customs Rawalpindi vide judgment dated 30th January 2003 is restored and sentences, in pursuance of the notices issued to respondents are enhanced to two years with fine of Rs. 100,000/- each and in default in payment of fine they are ordered to further undergo sentence for a period of three months under Section 156(1)(8) of the Customs Act, 1969. However, benefit of Section 382-B Cr.P.C. shall be extended to them.
It is informed that the respondents belong to Tribal Area and it would not be possible to cause their arrest. Except Muhammad Zaman (Respondent in Cr. A. 527/2005) all convicts are present in Court, they are directed to be taken into custody to serve the sentences. Warrant of arrest be issued enabling the Political Agent, Malakand for causing the arrest of Muhammad Zaman for the purpose of implementation of the order.
(B.T.) Order accordingly.
PLJ 2007 SC 42
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
MUHAMMAD SAJID--Petitioner
versus
STATE--Respondent
Jail Petition No. 445 of 2004, decided on 8.3.2006.
(On appeal from the judgment dt. 1.11.2004 of the Lahore High Court, Lahore passed in Crl. Appeal No. 2312/03).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324 & 34--Anti--Terrorism Act (XXVII of 1997), S. 7(c)--Constitution of Pakistan, 1973, Art. 185(3)--Broad daylight--Ocular version fully corroborated by medical evidence--Conviction and sentence--Concurrent finding of fact--Challenge to--Admittedly, incident took place in broad daylight and was promptly reported to police by complainant--There exist no question of substitution or false implication as no previous enmity existed in between parties--Ocular version furnished by injured PWs is fully corroborated by medical evidence furnished by Dr. "S" (PW.5) and Dr. "A" (PW-7)--They in unequivocal terms deposed against petitioner that on their attempt to get deceased child released from clutches, he slaughtered child in their presence in brutal manner and was apprehended at spot--They were cross examined at length but not single question was suggested to those eye-witnesses about his false implication--Thus their testimony cannot be discarded on pretext being closely related with deceased--Mere relationship is hardly sufficient to discard evidence unless it is shown that said was furnished with some motive or malice--Conviction under Section 13-D of Arms Ordinance for having illicit possession of said dagger was additional factor for maintaining conviction and sentence--Held: There was no justification to interfere with concurrent findings of guilt recorded against petitioner by Courts below which were accordingly maintained--Petition devoid of force was dismissed and leave to appeal refused. [Pp. 45 & 46] A, B, C, D & E
Mr. Arshad Ali Ch., ASC for Petitioner.
Mr. M. Aslam Malik, ASC for Respondent.
Date of hearing : 8.3.2006
Order
Abdul Hameed Dogar, J.--This petition is directed against judgment dated 1.11.2004 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 2312 of 2003 filed by petitioner was dismissed, the conviction and sentence of the petitioner:--
(i) Under Section 302(b) PPC and 7(A) of the Anti Terrorism Act, 1997 to death on two counts for the murders of Muhammad Ramzan and Saim Raza. He was also directed to pay compensation of rupees one lac each to be paid to the legal heirs of the deceased in default whereof to undergo SI for two years;
(ii) Under Section 324 PPC read with Section 7(C) of the Anti Terrorism Act, 1997 to ten years RI and Rs. 20,000/- each as fine in default whereof to further undergo SI for one year for murderously assaulting Mst. Shehzadi Shehar Bano, Muhammad Hussain, Abdul Razzaq and Shahid PWs; and
(iii) Under Section 13 of the Arms Ordinance, 1965 to three years R.I.
awarded by the trial Court were maintained. Murder Reference No. 43-T/03 for confirmation of death sentence was also answered in affirmative.
In this case Muhammad Ramzan and Saim Raza were murdered whereas Mst. Shehzadi Shehar Bano, Muhammad Hussain, Abdul Razzaq and Shahid sustained injuries at the hands of petitioner Muhammad Sajid.
Precisely, the facts leading to the filing of instant petition are that on 1.8.2003 at about 9.00 a.m. complainant Abdul Hafeez (PW-10) alongwith his brother Muhammad Ramzan was present at his home in the village Kopra Kalan when noise of Shrieks of the ladies and children were heard from the house of Sabir Hussain Shah. The complainant alongwith his brother Muhammad Ramzan went to the house of Sabir Hussain Shah where the ladies were standing out of the house and informed that petitioner Muhammad Sajid who was follower of Sabir Hussain was restrained to come to their house six/seven years back, had suddenly come in the house and gave a sota blow at the person of Hassan Raza. The ladies restrained him from beating the child. The petitioner picked up a churri and lifted Siam Raza, a minor child, Mst. Shehzadi Shehar Bano tried to restrain him whereupon he gave a churri blow on her left shoulder. Muhammad Ramzan @ Zaildar who tried to rescue minor child was given 2/3 successive churri blows by petitioner who died at the spot, thereafter, petitioner decamped towards Kopra Khurd on bicycle who was chased by complainant and others. He was stopped near the dera of Muhammad Afzal Ghumman and they tried to get the child released but petitioner slaughtered Saim Raza with churri in their presence. Petitioner also gave churri blows to PWs Muhammad Hussain, Muhammad Shahid and Abdul Razzaq.
Petitioner was apprehended at the spot and was handed over to the police who after completion of investigation was sent up him to face trial before Judge, Anti Terrorism Court No. 1, Gujranwala.
Prosecution in order to establish its case examined 19 witnesses in all.
Dr. Shaukat Ali Bhatti, MO (PW-5) conducted post mortem of deceased Muhammad Ramzan and found following injures on his person:--
An incised wound 4 cm x 1 « cm oblique DNP on front of left chest, one cm above and lateral to left nipple.
An incised wound 5 cm x 2 cm oblique muscle deep going down on back and outer aspect of left chest lower most part.
An incised wound 2 « cm x « cm vertical skin deep on back and outer aspect of left upper arm in middle.
On autopsy of deceased Saim Raza, he found following injuries:--
An incised wound 3 cm x « cm muscle deep, transverse on left upper eyelid.
An incised wound 4 cm x 1 cm muscle deep transverse on left side of face, 1 cm from angle of mouth.
An incised wound 10 x 4 cm vertebrae deep transverse on front and both sides of neck in middle, skin subcutantuous tissues, neck muscle, trachea, esophagus, blood vessel of neck were cut and damaged.
Dr. Abdul Razzaq (PW-7) medically examined PWs Muhammad Hussain, Hassan Raza, Mst. Shahzadi Shehar Bano and Muhammad Razzaq and found various injuries on their persons.
In his statement recorded under Section 342 Cr.P.C. petitioner denied the case of prosecution and pleaded false implication. While answering to question "why this case is against you and why have the PWs deposed against you?" replied in the following manner:--
"As the conflict about borrowed money existed between me and Pir Sabir Shah. I often asked the said Pir Sabir Shah for returning the borrowed money to the tune of Rs. 70,000/-, but the said Pir Sabir Shah turned down my request. On the day of occurrence, I was deceitfully called by Sabir Shah in the name of giving back my borrowed money, but when I reached there, Pir Sabir Shah issued orders to his Muraidians for beating me, so that he might be taught a lesson for demanding money from him. The attack was desperate, so just to save the relation between soul and body, I suded `Chua Ramba' which was lying nearby. As the PWs are muraidains of Pir Sabir Shah, they have been issued instructions by Pir Sabir Shah to depose falsely against me for the dispute between Pir Sabir Shah and me in relation to the money to the tune of Rs. 70,000/-.
He neither opted to record statement on Oath as require under Section 340(2) Cr.P.C. nor led any evidence in his defence.
On conclusion of trial, petitioner was convicted and sentenced as stated above.
We have heard Mr. Arshad Ali Ch., learned counsel for the petitioner and Mr. Muhammad Aslam Malik, appearing on behalf of State at length and have gone through the record and proceedings of the case in minute particulars.
Admittedly the incident took place in the broad daylight and was promptly reported to the police by complainant. There exist no question of substitution or false implication as no previous enmity existed in between the parties. Muhammad Ramzan and Saim Raza, a minor child was done to death in a gruesome manner, besides Mst. Shahzadi Shehar Bano (PW-15), Muhammad Hussain (PW-16), Abdul Razzaq (PW-17) and Shahid (PW-18) were injured by petitioner. The ocular version furnished by the above said injured PWs is fully corroborated by medical evidence furnished by Dr. Shaukat Ali Bhatti (PW-5) and Dr. Abdul Razzaq (PW-7). They in unequivocal terms deposed against the petitioner that on their attempt to get
the deceased child released from the clutches, he slaughtered the child in their presence in a brutal manner and was apprehended at the spot. They were cross-examined at length but not a single question was suggested to those eye-witnesses about his false implication. Thus their testimony cannot be discarded on the pretext being closely related with the deceased. It is well settled principle of law that mere relationship is hardly sufficient to discard the evidence unless it is shown that the said was furnished with some motive or malice. Irrespective of above, the said ocular testimony is corroborated by the recovery of blood-stained dagger which was reported to be stained with human blood by Chemical Examiner. PWs Muhammad Hussian and Razzaq also supported the factum of recovery of blood-stained dagger from the possession of the petitioner whose testimony was not shattered in cross-examination. Conviction under Section 13-D of the Arms Ordinance for having illicit possession of the said dagger was an additional factor for maintaining the conviction and sentence. Moreover, learned counsel for the petitioner has failed to point out any illegality, misreading or non-reading in the impugned judgment. We also do find any justification to interfere with the concurrent findings of guilt recorded against petitioner by both Courts below, which are accordingly maintained.
(B.T.) Petition dismissed
PLJ 2007 SC 46
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Nasir-ul-Mulk, JJ.
PROVINCE OF PUNJAB through AGRICULTURAL DEPARTMENT, LAHROE and others--Appellants
versus
SHAHID PERVIZ and others--Respondents
C.As. Nos. 1919 to 1924 of 2002, decided on 15.11.2005.
(On appeal from the judgment of Punjab Service Tribunal, Lahore dated 12.7.2002 passed in Appeal Nos. 580, 668, 841/2000).
Service Matter--
----Reduction in punishment--Negligence of the officials--With drawal of G.P. Fund advances--Signature of cashier without verification of the sanction of payment--Appellant was awarded penalty of recovery of financial loss and reduction in time scale--Responsibility and liability--Held: Appellant being responsible officials were required to be extra vigilant in such sensitive matters and were not supposed to put the signatures on the vouchers without verification of the sanction for payment--Admission of the cashier would not absolve them from their responsibility of taking proper care and vigilance in checking the bills so that no mischief could be done by the cashier--Orders accordingly. [P. 50] A & B
Syed Sajjad Hussain Shah, AAG and Mr. Muhammad Hussain Naqshbandi, ASC for Appellants (in C.A. 1919-1921 of 2002 and C.A. 1922-1924).
Mr. Muhammad Hussain Naqshbandi, ASC for Respondents (in C.A. 1919-1921 of 2002).
Syed Sajjad Hussain Shah, AAG for Respondents (in C.A. 1922-1924 of 2002).
Date of hearing: 11.5.2005.
Judgment
Muhammad Nawaz Abbasi, J.--These connected civil appeals have arisen out of a common judgment dated 12.7.2002 passed by the Punjab Service Tribunal whereby the separate appeal filed by the appellants against the different punishments awarded to them by the departmental authority were partly allowed with alteration in the penalties.
Rs. 112570/- whereas Amjad Aleem appellant in C.A 1924/2002 was imposed the penalty of reduction in time scale by 3 stages and recovery of Rs. 67500/-. Abdul Razzaq appellant in C.A 1923 of 2002 was dismissed from service and was also imposed the penalty of recovery of Rs. 183800/-. The Tribunal by reducing the punishment of all the three appellants into reduction in time scale by one stage, partly allowed their appeals.
"By this judgment we propose to decide the titled civil petitions involving identical questions of law and facts.
The Petitions Nos. 3526-L, 3540-L and 3580-L of 2002 alongwith cashier were proceeded against regarding fraudulent withdrawal of certain G.P. Fund advances on the bills bearing their signatures. The Inquiry Officer was of the opinion that though negligence on the part of these petitioners in connection to withdrawal of G.P. Fund advance was proved but they were not party to the fraud for which cashier was responsible. The departmental authority imposed penalty of dismissal from service on Shahid Pervaiz and Ch. Abdul Razzaq and penalty of reduction in time scale by three stages on Muhammad Amjad Aleem petitioner in addition to that, penalty of recovery of specified amounts from them was also imposed.
Feeling aggrieved, these petitioners filed appeals before the Punjab Service Tribunal which have been decided through the impugned judgment dated 12.9.2002. The Penalties of dismissal from service imposed on Shahid Pervaiz and Ch. Abdul Razzaq petitioners have been modified in the manner that their order of dismissal from service was set aside and penalty of recovery of specified amount maintained by finding that they were not parties to the fraud but were negligent. Whereas penalty of Muhammad Amjad Aleem was modified to the extent that the same was converted into reduction in time scale by one stage as a consequence thereof, Shahid Pervaiz and Ch. Abdul Razzaq petitioners were ordered to be reinstated and period of intervening to be treated as leave of the kind to be due.
These petitioners have challenged the said judgment. It was argued by the learned counsel for the Petitioners that since the petitioners were held to be not party to the fraud and it was only the Cashier who was wholly responsible who had also found to have caused financial loss to the state and the beneficiary of withdrawal of the G.P. Fund advances, therefore, the penalty of recovery of specific amounts from the petitioners namely, Shahid Pervaiz and Abdul Razzaq were not justified in law as the same in inconsistent with the findings whereas petitioner Muhammad Amjad Aleem has also challenged the imposition of penalty to reduction in time scale by one stage. It was also contended that the penalties imposed on them through modification also do not commensurate with the finding of merely negligence though they were not even negligent, for the Cashier admitted that he was wholly responsible.
The Provincial Government has filed Civil Petitions Nos. 3376-L, 3377-L and 3378 of 2002 seeking grant of leave to appeal challenging the same judgment.
It was contended on behalf of the petitioners by the learned counsel, Mr. Muhammad Sharif Butt, ASC that the penalties imposed by the departmental authority were justified.
Leave is granted in all these petitions to further examine the entire case.
During the pendency of the appeals, recovery of the amounts from the appellants in Civil Petitions Nos. 3526-L, 3540-L and 3580-L of 2002 shall remain stayed. These appellants in compliance with the judgment of the Service Tribunal impugned in these petitions shall in the meantime be re-instated and allowed to perform their duties against the posts who shall also be paid their salaries etc., admissible to them.
Since it is Service matter, therefore, hearing of these appeals shall be expedited for which order from Hon'able Chief Justice shall be obtained".
The sole question for determination in these appeals would relate to the liability of the appellants in the transactions of fraudulent withdrawal of certain amounts from GP Fund Accounts. The Tribunal has held that although the appellants were neither party to the fraud nor were the beneficiary but due to their negligence, cashier committed mischief and caused loss to the exchequer. The grievance of the appellant is that the Tribunal after coming to the conclusion that the cashier being the actual beneficiary, was responsible for causing financial loss to the Government and the appellants were not party to the transaction, failed to consider the legality of the penalty awarded to them and that in any case, the penalties imposed upon them being not commensurated to the nature of charge of negligence, were excessive. The charge against the appellants was that they with active connivance of each other and the cashier as well as staff of the District Accounts Office Multan, having prepared fictitious/forged documents have withdrawn certain amount of G.P. Fund advance from different accounts, and misappropriated the government money. The Tribunal having considered the matter in detail held that obviously fraud was committed by the cashier with the connivance of staff of District Accounts Office and the failure of appellants to have not properly checked and verified the bills with due care and vigilance, was misconduct.
Learned counsel for the appellants has contended that the cashier by giving an affidavit has taken the responsibility of the alleged fraudulent withdrawal of GP Fund advances on the basis of fake vouchers and in view of the finding of the Inquiry Officer as well as the Tribunal, the penalty awarded to them was not proper and in any case, the recovery of amount of alleged loss of the Government was without any legal justification.
The learned AAG on the other hand has contended that the Inquiry Officer as well as the Tribunal has held that due to the negligence of the appellant financial loss was caused to the government, therefore, the punishment awarded to them by the competent authority was quite in accordance with law. However, he stated that if the amount of loss is ultimately deposited by the cashier, the amount requires to be paid by the appellants will be refunded to them.
This is a matter of record that the appellants without proper verification and vigilance put their signature on the vouchers on the basis of which G.P Fund advances were withdrawn, and notwithstanding the fact that they were not party to the fraud, the negligence on their part, was established beyond doubt. The appellant being responsible officials were required to be extra vigilant in such sensitive matters and were not supposed to put the signatures on the vouchers without verification of the sanction for payment. The admission of the cashier would not absolve them from their responsibility of taking proper care and vigilance in checking the bills so that no mischief could be done by the cashier. Be that as it may, the appellants were neither party to the fraud nor they were beneficiary of the transaction and charge against them was only that of the negligence, therefore, the penalty to the extent of recovery of financial loss caused to the government as a result of fraud committed by the cashier was not proper and thus we while maintaining the penalty of reduction in the time scale, set aside the penalty of recovery of loss from them and modify the judgment of Tribunal, accordingly. Consequently, Civil Appeals Nos. 1922 to 1924 of 2002 filed by the appellants are partly allowed whereas connected appeals Bearing Nos. 1919 to 1921 of 2002 filed by the Government of Punjab are dismissed. There will be no order as to costs.
(Waseem Iqbal Butt) Orders accordingly.
PLJ 2007 SC 50
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Ch., CJ, Mian Shakirullah Jan & Syed Jamshed Ali, JJ.
AHAD SHARIF @ MUHAMMAD AHAD and another--Petitioners
versus
JAVAID TARIQ and others--Respondents
Civil Petition No. 2468 of 2005, decided on 12.4.2006.
(On appeal from the judgment/order dated 22.9.2005 passed by Lahore High Court, Multan Bench in W.P. No. 4694 of 2005).
(i) Constitution of Pakistan, 1973—
----Arts. 185(3) & 225--Punjab Local Government Ordinance, (XIII of 2001), S. 70--Jurisdiction of High Court in election matters--Law provide exclusive jurisdiction to the tribunal and bar the jurisdiction of High Court in the election matters--Held: If a statute has prescribed a remedy, normally the same should be adhered to but it does not mean that in case where order of the election functionary is patently illegal--High Court would be debarred to exercise its Constitutional jurisdiction, which is much higher than jurisdiction available to a tribunal under a subordinate legislation. [P. 53] A
(ii) Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----S. 152(1)(J)--Constitution of Pakistan, 1973, Art. 185(3)--Qualification--Question upon authority to occupy office--Objection by third person--Validity--Authority was challenged by contesting person because of its disqualification being a defaulter, can a third person can object the same--Held: Any other person can question upon him to show his authority to occupy the office, when he is disqualified under the relevant law to do so.
[P. 53] B
Dr. Babar Awan, ASC and Mr. Arshad Ali Ch., AOR for Petitioners.
Malik Muhammad Qayyum, ASC, Mian Arshad Latif, ASC and Mr. M.S. Khattak, AOR for Respondents.
Date of hearing : 12.4.2006.
Order
Iftikhar Muhammad Chaudhry, C.J.--Petitioners seek leave to appeal against the judgment dated 22nd September 2005 passed by Lahore High Court, Multan Bench Multan in Writ Petition No. 4694 of 2005. Concluding para therefrom reads as follows:--
"9. Writ petition accordingly is allowed and the impugned order dated 26.7.2005 passed by the learned DRO, Vehari, accepting the nomination papers of Respondents Nos. 4 & 5 is declared to be without lawful authority and is set aside. Result would be that order passed by the learned R.O rejecting the nomination papers of Respondents Nos. 4 & 5 on 24.7.2005 shall hold field. A copy of this order to be remitted to the learned DRO, Vehari. Records of the learned Judge Banking Court be remitted back immediately.
Before dilating upon the respective contentions of the learned counsel appearing for parties, it is important to point out that ZTBL filed a suit against Petitioner No. 2 Yasin Shafi before the Banking Court. He filed an application for leave to appear and defend the suit, which was refused and the suit was decreed on 22nd July 2000. Admittedly decree remained unsatisfied till the filing of the nomination papers. Under Section 152 (1)(j) of the Punjab Local Government Ordinance, 2001 [herein after referred to as `the Ordinance'], a person shall qualify to be elected or to hold and elective office or membership of a local Government if he has not been adjudged a willful defaulter of any tax or other financial dues owed to be federal, a provincial, or a local government or any financial institution, including utility bills outstanding for six months or more. Learned High Court in view of facts and circumstances of the case employed this provision of law and concluded that as admittedly Respondent No. 4 has been adjudged to be a defaulter of the ZTBL, therefore, he has not qualified to contest the election.
Learned counsel appearing for petitioners contended that the learned High Court has illegally accepted the writ petition, declaring Noor Muhammad (Respondent No. 4) to contest the election for the office of Nazim/Naib Nazim, in presence of alternative remedy of filing election petition, particularly in view of the fact that during pendency of the petition, polling had taken place and both the respondents were declared successful as Nazim/Naib Nazim of UC-80, District Vehari. Reliance in this behalf has been placed by him on Election Commission of Pakistan v. Javaid Hashmi (PLD 1989 SC 395), Ghulam Mustafa Jatoi v. Additional District & Sessions Judge (1994 SCMR 1299), Aftab Shahban Mirani v. President of Pakistan and others (1998 SCMR 1863) and Nazir Ahmed v. Chief Election Commissioner (PLD 2002 SC 184).
On the other hand, Malik Muhammad Qayyum, learned ASC appearing for respondents contended that as Petitioner No. 2 was admittedly disqualified to contest the elations as he has been adjudged defaulter of the ZTBL under Section 152 (1)(j) of the Ordinance 2001, therefore, he had no lawful authority to be elected for the office of Nazim/Naib Nazim and when there are such admitted facts, then filing of election petition is not mandatory and the High Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as the Constitution] can declare the election of such candidate illegal.
We have heard both the sides and have gone through the relevant provision of law, which have been narrated herein above namely Section 152 (1)(j) of the Ordinance, 2001. It is no body's case the Petitioner No. 2 Yasin Shafi had satisfied the decree passed by the learned Banking Judge against him, therefore in such admitted position, two things are to be borne in mind; firstly under the scheme of the Ordinance, 2001 there is no constitutional bar of invoking jurisdiction of the Election Tribunal as it is provided under Article 225 of the Constitution, according to which no election to a House or a Provincial Assembly shall be called in question except by an election petitioner presented to such tribunal and in such a manner as may be determined by Act of [Majlis-e-Shoora (Parliament)]. In this context, this Court in the case of Election Commission of Pakistan v. Javed Hashmi (ibid) has held that "Article 225 is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commission and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge i.e. by election petition and that to if the process of the election is complete; whereas in the case of Ghulam Mustafa Jatoi (ibid) this Court observed that constitutional jurisdiction of the High Court can be invoked if the order of an election functionary which is patently illegal/without jurisdiction. Relevant para therefrom is reproduced herein below:--
"The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed herein above".
Above principle has been reiterated in the case of Aftab Shahban Mirani (ibid). Secondly, we have to keep in our mind that Rule 70 of the Punjab Local Government Election Rules, 2005 [herein after referred to as `the Rules, 2005'] has excluded the jurisdiction for calling in question the election and this opinion has been formed without taking into consideration the judgment in the case of Ghulam Mustafa Jatoi (ibid) and Aftab Shahban Mirani (ibid).
We feel no hesitation in holding that if a statute has prescribed a remedy, normally the same should be adhered to but it does not mean that in a case where the order of the election functionary is patently illegal, the High Court would be debarred to exercise its Constitutional jurisdiction which is much higher than the jurisdiction available to a Tribunal under a subordinate legislation.
Applying the above noted principle in instant case, it is to be observed that Petitioner No. 2 has been adjudged to be a defaulter to occupy the office, therefore, not only the Respondent No. 4 who was contesting the election but any other person can question upon him to show his authority to occupy the office, when he is disqualified under the relevant law to do so.
Thus in view of above admitted and peculiar facts and circumstances, we are of the opinion that learned High Court had rightly interfered in the order passed by the District Returning Officer dated 26th July 2005, whereby the petitioners were allowed to contest the election.
For the foregoing reasons, petition is dismissed and leave declined.
(Waseem Iqbal Butt) Leave to appeal declined.
PLJ 2007 SC 54
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Nasir-ul-Mulk, JJ.
ABDUL SATTAR--Appellant
versus
PAKISTAN WATER & POWER DEVELOPMENT AUTHORITY and 2 others--Respondents
C.A. No. 953 of 2004, decided on 10.11.2005.
(On appeal from the judgment dated 1.7.2003 passed by Federal Service Tribunal in Appeal No. 81 (k)CS/2000).
(i) Federal Service Tribunals Act, 1973—
----S. 4--Constitution of Pakistan, 1973, Art. 212--Service matter--Dispensation of a regular inquiry--Effect--Appellant was dismissed from the service by competent authority without regular inquiry--Legality--Held: Competent authority might without holding a regular inquiry, passed the final order if the charge was not based on question of facts otherwise, the dispensation of regular inquiry would amount to deprive a person from the right of defence and fair opportunity of hearing--Matter involving controversial questions of facts cannot be decided without detail scrutiny and proper appreciation of oral and documentary evidence and this is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts without recording the evidence and providing him proper opportunity of cross-examining the witnesses and to make his defence. [P. 58] A
(ii) Service Matter--
----Dispensation of a regular inquiry--Not a general rule--Spirit of law and concept of substantial justice--In the normal circumstances, a case of misconduct involving controversial question of fact must not be decided in summary manner as the dispensation of regular inquiry in such a case would amount to defeat the law and a condemned a person unheard--Discretionary power of the dispensation of the regular inquiry would be exercised only in exceptional circumstances and not as general rule in every case, as the exercise of the powers of dispensation of regular inquiry in case involving factual controversy against the spirit of law and the concept of substantial justice--Appeal allowed. [P. 59] B
PLJ 1987 1393, 2001 SCMR 1566, NLR 2003 Service 1, 2003 SCMR 110 ref.
Mr. M.M. Aqil Awan, ASC for Appellant.
Mr. Muhammad Munir Paracha, ASC and Ch. Muhammad Akram, AOR for Respondents.
Date of hearing : 10.11.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 1.7.2003 passed by Federal Service Tribunal whereby the appeal filed by the present appellant against the penalty of dismissal from service imposed upon him by the competent authority, was dismissed.
"You did not prepare any drawing for a realistic estimate during arboriculture worked at Thermal Power Station, Guddoo. You could have saved expenditure on ground leveling, turfing and installation of two tubewells. Thus you have caused a loss of Rs 1,408,509.20 to WAPDA. At least the expenditure of Rs. 1,73,478.61 incurred on the installation of two tubewells could have been easily saved".
The appellant in his reply, denied the allegation as under:-
"......3. That my reply to the alleged charge/allegation of non preparation of any drawing for a realistic estimate during the process of arboriculture work at Thermal Power Station and loss of Rupees 14.08,509.20 and expenditure of Rs. 173,478.61 incurred on the installation of two tube wells is also based on following reasons and cogent grounds as under:--
(a) That the estimate was prepared according to the schedule of WAPDA composite rate of 1990 alongwith 20 % premium allowed, after approval and sanctions of the Chief Engineer TPS Guddu.
(b) That the total expenditure of the project was Rs. 18,09,440.00, whereas tender was of Rs. 23,35,000.00 wherein loss of
Rs. 14,08,509,20 has been imaginary, rather ludicrous.
(c) That the date of the tender was 25.06.1996 and project was completed on 24.01.1997. As such, action after two years at belated stage is not tenable nor according to principle of natural justice, when all the superior authorities had investigated, enquired, verified, issued, instructions and approved during the process of execution of the project.
(d) That the estimation of arboriculture work at Thermal Power Station, Guddu was duly based on the drawings available in the record. As such, suppositions regarding extra expenditure on ground leveling, turfing and installations of two tube-wells are not tenable in view of the WAPDA composite schedule rates of 1990.
(e) That the installations of two tube wells were very essential in view of the required need of the thickly populated colony, building, playgrounds, parks and other amenities, as during the summer season requirement of the water is acute need of the said project on account of hottest area of the country and dry land, otherwise, estimated by the two Sub-Engineers civil deputed by the Chief Engineer TPS Guddu under his supervision. The estimation carried out by them under WAPDA composite schedule rates of 1990. As such, saving of expenditure on two tube-wells on my part does not arise nor attracted to me.
(f) That the parks and two tube-wells are in existence as well as in operation and in use of the employes of the colony, based on the estimation which was executed and finalized under supervision of the Chief Engineer, who was authority of the project work.
(g) That it is also pertinent to mention here, that the civil work of the project was direct under execution and supervision of two Sub-Engineers civil, who has prepared estimation of the civil work under direct supervisions of the Chief Engineers, TPS, Guddu and Director Technical, TPS, Guddu, including drawings of the civil works available in the record of WAPDA, namely, fencing, earthwork leveling, dressing and installation of two tube wells. As such, I was not concerned with the civil work of the project and only arboriculture works of the project at site was under my supervision.
(h) That during the progress of the project of work disputed in the Show Cause Notice and explanation, on fictitious complaints, fact finding investigations/enquires were ordered through Hon'able Chairman, WAPDA's Inspection Team, namely, technical Inspection II, comprising on two members of monitoring Cell (Civil), monitoring and surveillance division, who conducted the inspection and verify the project work in the monthly of December 1996 at the site and found no any irregularity in the project work (Report enclosed).
(i) That during the process of execution and completion of project work, that the work was time and again inspected and verified by the Chairman, WAPDA's Inspection Team (M&S) Division and other authorities, who had also issued instructions for the execution of the work, which were followed and carried out in later and spirit. As such, charge/allegation of the Show Cause Notice has not been based on correct information rather based on hypothetical surmises and conjectures".
"Petitioner seeks leave to appeal against the judgment of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) dated 1.7.2003, passed in Appeal No. 81 (K) CS of 2000.
It is inter alia contended that no regular enquiry was held against the petitioner before inflicting major penalty of dismissal from service and recovery of huge amount form him; that enquiry report by the Director-II Works supporting the case of the petitioner was not at all considered by the Authority as well as the Tribunal; that no grounds were recorded for dispensing with the regular enquiry before taking action against the petitioner and that the principles of natural justice were flagrantly violated in this case.
Points urged required serious consideration. Leave to appeal is, therefore, granted to consider, inter alia, the above submissions".
Learned counsel for the appellant has contended that the in reply to the letter of explanation, the appellant having specifically denied the allegation contained therein, explained the factual position in detail, therefore, it was essential for the competent authority to hold a proper inquiry in the matter before passing the final order as has been held in Baharat Ali Vs. Director Excise and Taxation, Lahore (PLJ 1987 SC 1393), Zahoor Ahmed Vs. WAPDA (2001 SCMR 1566), Syed Yaqoob Shah Vs. Xen Pesco (Wapda) Peshawar (NLR 2003 Service 1) and Abdul Qayyum Vs. D.G. Project Management Organization (2003 SCMR 1110). The learned counsel submitted that the charge against the appellant involving factual controversy could not be proved without recording the evidence and providing proper opportunity to him to cross-examine the witnesses and produce evidence in rebuttal whereas the competent authority on the basis of a preliminary inquiry which was conducted in his absence, held him guilty of the charges. In nutshell, the argument of learned counsel was that the appellant was awarded the major penalty of dismissal from service without providing him proper opportunity of hearing and he was condemned unheard.
Learned counsel for the respondents, on the other hand, has contended that allegations against the appellant were proved on the basis of official record therefore, there was no need of a regular inquiry and the competent authority after taking into consideration the reply of appellant to the show cause notice and giving him personal hearing passed the final order strictly in accordance with law.
The pivotal question requiring determination would be whether in the nature of allegation contain contained in the letter of explanation, the dispensation of a regular inquiry was justified or such an inquiry was essential.
The perusal of the charge and the reply of the appellant would show that without ascertaining the correct factual position, it would not be possible to hold the appellant responsible for causing the loss to the exchequer. The competent authority may in exercise of the powers under Rule 5 (iii) of the ibid rules, by dispensing with the requirement of regular inquiry, follow the summary procedure but his power must be exercised in exceptional cases in which either there is no factual controversy or the facts are admitted. The competent authority may, without holding a regular inquiry, pass the final order if the charge is not based on the disputed questions of facts otherwise, the dispensation of regular inquiry would amount to deprive a person from right of defence and fair opportunity of hearing. The matter involving controversial questions of facts cannot be decided without detail scrutiny and proper appreciation of oral and documentary evidence and this is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts without recording the evidence and providing him proper opportunity of cross examining the witnesses and to make his defence. In Ghulam Muhammad Khan Vs. Prime Minister of Pakistan and others (1996 PLC (CS) 868) it was held by this Court as under:--
"5. It has been consistently held by this Court that there is a marked distinction between Rule 5 and Rule 6 of the rules, inasmuch as under the former Rule, a regular inquiry can be dispensed with, whereas the latter Rule envisages conducting of regular inquiry which will necessitate the examination of witnesses in report of the charges brought against the accused civil servant, his right to cross-examine such witnesses and his right to produce evidence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, will depend on the nature of the alleged misconduct. If the nature of the alleged misconduct is such on which a finding of fact cannot be recorded without examining the witnesses is support of the charge or charges, the regular inquiry could not be dispensed with. Reference may be made in this behalf to the case of Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222)".
It is well settled principle of law that in the normal circumstances, a case of misconduct involving controversial question of fact must not be decided in summary manner as the dispensation of regular inquiry in such a case would amount to defeat the law and condemned a person unheard. The discretionary power of the dispensation of the regular inquiry should be exercised only in exceptional circumstances and not as a general rule in every case, as the exercise of the power of dispensation of regular inquiry in a case involving factual controversy is against the spirit of law and the concept of substantial justice. The departmental authorities are certainly not required to follow the procedure of the regular Courts and observe the technicalities of law for determining the question of guilt or innocence of a person but the fair and reasonable opportunity of hearing to enable a person to make his defence is an inalienable right of a person facing the charge of misconduct. In the present case, the factual controversy regarding the need of installation of two tubewells and the correctness of the estimates of arboriculture work could not possible be resolved without a regular inquiry with participation of appellant and detail scrutiny of record to ascertain that in what manner the appellant was responsible for causing loss to the exchequer.
In the light of foregoing discussion, we allow this appeal, set aside the impugned judgment of the Tribunal and reinstate the appellant in service with permission that department may hold a proper inquiry into the allegations against the appellant which should be concluded within six months. The payment of back benefits for the period during which the appellant remained out of job, shall be subject to the result of the inquiry. This appeal is accordingly allowed with no order as to costs.
(Waseem Iqbal Butt) Appeal allowed.
PLJ 2007 SC 60
[Appellate Jurisdiction]
Present: Javed Iqbal, M. Javed Buttar & Karamat Nazir Bhandari, JJ.
MUHAMMAD AKRAM MALIK--Petitioner
versus
DR. GHULAM RABBANI, etc.--Respondents
Civil Petition No. 1466 of 2005, decided on 8.8.2006.
(On appeal from the judgment dated 27.1.2005 of the Lahore High Court, Rawalpindi Bench, passed in C.R. No. 8 of 2004).
Civil Procedure Code, 1908 (V of 1908)—
----S. 12(2)--Constitution of Pakistan, 1973, Art. 185(3)--Plea of fraud and misrepresentation--Held: Application could have been summarily dismissed if it is without any substance but generally where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality such application should have not been dismissed summarily and without recording the evidence--Primarily it was satisfaction of the Court concerned either to frame issues, record evidence or decide such application as might be deemed fit and proper after considering the merits of each case. No yard-stick could be fixed for rejection of such application--Petition dismissed. [P. 61] A
Petitioner in person.
Mr. Muhammad Kabeer, ASC for Respondents Nos. 1 & 2.
Date of hearing : 8.8.2006
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the order dated 27.1.2005 whereby the revision petition preferred on behalf of respondent has been accepted and the judgment dated 3.10.2003 passed by the learned Senior Civil Judge, Islamabad whereby application under Section 12(2) CPC filed by the respondent was summarily dismissed, has been set aside.
Briefly stated facts of the case are that petitioner filed a suit for recovery of rupees fifty million as compensation/damages in the Court of Senior Civil Judge, Islamabad against respondent which was decreed ex-parte by means of judgment and decree dated 15.11.2000 which was assailed by means of application under Section 12(2) CPC which has been accepted vide order impugned, hence this petition.
Mr. Muhammad Akram Malik (petitioner) appeared in person and urged emphatically that the legal and factual aspects of the controversy have not been appreciated in its true perspective, which resulted in serious miscarriage of justice. It is argued that well reasoned judgment passed by the learned Senior Court Judge, Islamabad on 3.10.2003 whereby the application preferred on behalf of respondents under Section 12(2) CPC has been dismissed could not have been reversed in exercise of revisional jurisdiction by the learned High Court which is limited in nature and besides that it was not necessary to frame issues for disposal of any application preferred under Section 12(2) CPC and it could have been disposed of summarily and as such no illegality has been committed by the learned Senior Civil Judge. In order to substantiate his contention the learned ASC has referred the dictum laid down in case Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCMR 531). It is next contended that the learned Single Judge of Lahore High Court, Lahore has erred while holding that Article 184 of Limitation Act, 1908 was not applicable to the application preferred under Section 12(2) CPC and the application being hopelessly barred by time pursuant to part 1 of Article 164 of the Limitation Act, 1908 has been accepted and question of Limitation could not be decided in accordance with law. It is also argued that there was no allegation qua fraud and on this score alone application under Section 12(2) CPC could have been dismissed. It is contended with vehemence that the law does not provide duplication of proceedings and simultaneous action could not have been initiated under Section 12(2) CPC and Order 9 Rule XIII CPC which aspect of the matter has been ignored by the learned Single Judge in chambers causing grave prejudice to the petitioner.
We have examined the above-mentioned contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned whereby the revision petition preferred on behalf of respondent has been accepted. There is no cavil with the proposition that an application preferred under Section 12(2) CPC could have been summarily dismissed if it is without any substance but generally where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality such application should have not been dismissed summarily and without recording the evidence. It is worth mentioning that primarily it is the satisfaction of the Court concerned either to frame issues, record evidence or decide such application as may be deemed fit and proper after considering the merits of each case. No yardstick can be fixed for rejection of such applications. A similar proposition was discussed in case Ghulam Muhammad vs. Ahmed Khan (1993 SCMR 662) wherein it was observed as follows:--
"It is correct that the determination of allegations of fraud and misrepresentation, usually involved investigation into the questions of fact but it is not in every case that the Court would be under obligations to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view, the matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. It is within the competence of the Court to frame formal issues and record evidence if the facts of a particular so demand.
It is well-entrenched legal proposition that the framing of issues depends on the circumstances of each case, nature of alleged fraud and the decree so obtained. Framing of issues in every case to examine the merits of the application would certainly frustrate object of Section 12(2) CPC which is to avoid, protracted and the time consuming litigation and to save the genuine decree-holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts below which are already overburdened."
The petition in question has also been adjudged on the touch stone of the criterion as mentioned herein above. We are of the considered view that misrepresentation and fraud have been alleged in the application preferred under Section 12(2) CPC as is indicative from para 6 of the application which has been reproduced in the order impugned. In fact the learned trial Court has not appreciated the contents of application in the light of provisions as contained in Section 12(2) CPC and dismissed the same in a casual and cursory manner. In view of the circumstances of the case and allegations leveled in the application under Section 12(2) CPC it should have not been dismissed summarily. The learned High Court has exercised its discretion judiciously and the order impugned being well based does not warrant interference as no prejudice whatsoever has been caused to the petitioner who would have ample opportunities to canvass his point of view and substantiate his claim and rebut the allegation of misrepresentation and fraud before the Courts concerned.
We have also advered to the question of limitation which has rightly been appreciated by the learned single Judge in chambers as Article 164 of Limitation Act, 1908 could not be made applicable to the application preferred under Section 12(2) CPC and Article 181 of Limitation Act, 1908 would be applicable. A similar proposition was examined in case Govt. of Sindh v. Fazal Muhammad (PLD 1991 SC 197) and it was observed as follows:--
"The intention of the legislature in amending Section 12 CPC by adding sub-section (2) is to provide a substitute for such a suit against a judgment, decree or order obtained by fraud etc. Since no limitation period is specifically provided for such an application, in view of the above object, this will be governed by Article 181 of the Limitation Act, which is a residuary Article for applications for which no period of limitation is provided elsewhere in the Limitation Act or by Section 48 of the CPC. The period for such an application, as provided in the Article is three years when the right to apply accrues i.e. the date when the judgment, decree or order was obtained by fraud, misrepresentation or without jurisdiction. But, if a judgment, decree or order is sought to be reviewed under Section 114, CPC on the grounds mentioned in Rule 1 of Order XLVII of the CPC though the application is made under Section 12(2) CPC the period of limitation as provided in Article 173 of the Limitation Act, will be 90 days from the date of the judgment, decree or order, except in cases specifically provided by Articles 161 and 162, which respectively deal with the review of the judgments and decrees of the Small Causes Court and the High Court."
In sequel to above-mentioned discussion the petition being meritless is dismissed and leave refused.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 SC 63
[Appellate Jurisdiction]
Present: Fariq Muhammad Khokhar & M. Javed Buttar, JJ.
AMJAD SHARIF QAZI & 6 others--Apellants
versus
SALIM ULLAH FARIDI & 9 others--Respondents
Civil Appeals Nos. 290 & 291 of 2003, decided on 22.5.2006.
(On appeal from judgment dated 20.11.2002 passed by the Lahore High Court, Lahore in RSA Nos. 2, 3/1997).
Civil Procedure Code, 1908 (V of 1908)—
----S. 100--Jurisdiction of High Court in second appeal--Held: Concurrent finding of facts recorded by the Courts below, howsoever erroneous, could not be upset by High Court in second appeal--High Court had no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact the High Court reappraised the evidence and substituted the findings which was not permissible in law--Held: Findings recorded by trial Court, which were affirmed by the First Appellate Court were neither preserved nor the result of any misreading of evidence on record nor any material piece of evidence was ignored--The oral as well as documentary evidence was fully discussed in judgments--High Court exceeded his jurisdiction in reversing the concurrent findings recorded by trial Court and First Appellate Court--Appeals allowed.
[Pp. 67 & 72] A & B
Mr. Amir Alam Khan, ASC and Mr. Mahmood A. Qureshi, AOR (absent) for Appellants (in both cases).
Mr. Gulzarin Kiani, ASC for Respondents Nos. 1, 5, 7-9 (in all cases).
Mr. Hafeez Qureshi, ASC and Mr. Muhammad Munir Peracha, ASC (in all cases).
Ex-parte for Respondent No. 10.
Date of hearing : 22.5.2006.
Judgment
M. Javed Buttar, J.--These appeals are directed against judgment and decrees dated 20.11.2002 passed by a learned Judge in Chambers of Lahore High Court, Lahore, whereby RSAs Nos. 2 & 3 of 1997, instituted by the Respondents Nos. 1 to 9, were allowed, the judgments and decrees passed by the trial Court and the First Appellate Court were set aside, the respondents' suit for redemption of mortgage was decreed and a preliminary decree was passed on payment of Rs. 71,000/- within two months and the appellants' suit for specific performance of agreement to sell was dismissed.
The dispute relates to Property No. S. 31-R-20, known as 120-Mcleod Road, Lahore. This property was mortgaged by Kafayat Ullah Faridi, the predecessor of Respondents Nos. 1 to 9 in favour of Qazi Muhammad Sharif, the predecessor of appellants, vide registered mortgaged deed dated 16.8.1960 (Exh. P4), on payment of Rs. 71,000/- as mortgage money. The mortgage was created for a period of 30 years. It was a mortgage with possession. The mortgagee was allowed to construct and re-model the house. The mortgage period ended on 16.8.1990. The mortgagor died on 16.6.1962 and Muhammad Sharif Qazi died on 15.6.1980. On 7.2.1982, Respondents Nos. 1 to 9 instituted an ejectment petition against the appellants which was contested by the appellants through written statement. The ejectment petition was withdrawn on 6.10.1983. On 8.8.1983 Respondents Nos. 1 to 9 instituted a suit for possession by redemption of the above property on payment of Rs. 71,000/- as mortgage money. It was averred that the appellants were requested to receive Rs. 71,000/- and return the possession of the mortgaged Bungalow to the plaintiffs but they declined to do so. The suit was resisted alleging that the plaintiffs had no locus standi to institute the suit for redemption of the property, the predecessor-in-interest of the plaintiffs vide agreement dated 7.11.1960 (Exh. P2), sold the equity of redemption in favour of predecessor-in-interest of the defendants and vide agreement dated 18.10.1961 (Exh. P3), admitted to have received the full sale consideration and also admitted that Qazi Muhammad Sharif would be deemed to be in possession of the property as full owner, the mortgage was for 30 years and after the execution of the agreement dated 18.10.1961, the formality of registration of sale-deed could be completed any time, after the issuance of the PTD, Mst. Jameela Begum, the mother of the plaintiffs had been postponing the execution of the sale-deed with the promise that the same shall be done on attaining the age of majority by the plaintiffs, her sons. It was further stated that the property in dispute was sold for an amount of Rs. 1,01,000.00 vide agreement to sell dated 7.11.1960 (Exh. P2), payment of Rs. 30,000.00 was acknowledged by Kafaitullah Faridi vide agreement dated 18.10.1961 (Exh. P3) and under the said agreement the vendee could get the sale-deed executed in his favour before 15.8.1990. In the alternative it was pleaded that they were in adverse possession.
On 13.9.1984 the appellants also filed a suit for specific performance of agreement to sell dated 18.10.1961. It was averred in the plaint that late Kafaitfullah Faridi was transferred the suit property vide PTO No. DSC-1-501/049038 dated 30.11.1959. He was a man of meager sources and had a small verified claim to the tune of Rs. 5000/- only and was not in a position to make the payment of the full price of the property. He vide registered mortgaged deed dated 16.8.1960, mortgaged the same property for a consideration of Rs. 71,000.00 for a period of thirty years. Thereafter, vide agreement dated 7.11.1960 he agreed to sell the property for a consideration of Rs. 1,01,000.00 in favour of Qazi Muhammad Sharif (predecessor-in-interest of the appellants). It was agreed that after the issuance of PTD in favour of Kifaitullah Faridi, he will send a registered notice for completion of the sale within 15-days for payment of the balance amount of Rs. 30,000.00. Vide another agreement dated 18.10.1961, late Kafaitullah Fridi, acknowledged the payment of entire sale consideration as under:--
(i) Receipt of Mortgage amount Rs. 71,000.00
(ii) Previously received amount Rs. 9,125.00
(iii) Cash by hand on 18.10.1961 Rs. 15,000.00
(iv) Payment vide Cheque dated
18.10.961 Rs. 5,875.00
Total:-- Rs. 1,01,000.00
After having paid the entire sale consideration to Kafaitullah Faridi, nothing was left to be performed except the formal execution of the sale-deed after issuance of the PTD. It was further alleged that they had been paying all the utility bills and the taxes, Kafaitullah Faridi deceased did not serve any notice on late Muhammad Sharif Qazi, after the issuance of PTD in his favour, the plaintiffs had spent huge amount on the renovation of the house after becoming its owners under the agreement dated 18.10.1961, the cause of action arose in the year 1982 when the defendants (respondents) filed an ejectment petition against them and also refused to accept the execution of the aforesaid agreement to sell.
"1. Whether the Suit No. 311/1 of 1984 is time barred? OPD
Whether the plaintiffs have no locus standi ?
Whether the plaintiffs have no cause of action? OPD
Whether the agreement of sale-deed dated 18.10.1961 was executed by late Kafaitullah Faridi, the predecessor-in-interest, of the defendants and full consideration was paid to him towards the agreement ? OPP
Whether the plaintiffs are entitled to the decree for Specific Performance of that contract? OPP
Whether the defendants have no locus standi and no cause of action to institute the Suit No. 91/1 of 1983?
Whether the plaintiffs are in possession of the property in dispute as mortgagee? OPD
Whether the mortgage deed dated 16.8.1960 still subsists? If not what is its effect? OPD
Whether the defendants are entitled to redemption, of the suit property? If so, on what terms and conditions? OPD.
Whether the mortgage deed dated 16.8.1960 stands substituted by agreement of sale dated 7.11.1960 and 18.10.1961 and nature of possession stands changed from mortgage to complete bargain of sale? OPP.
Whether the Suit No. 911/1 of 1983 is premature? OPP
Whether the possession of the plaintiffs over property in dispute is protected under Section 53-A of Transfer of Property Act? OPP.
Whether the defendants of Suit No. 91/1 of 1983 are entitled to special costs under Section 35-A? If so, to what extent?
13A. Whether the agreement dated 7.11.1960 and 18.10.1961 are result of fraud and are fake and fabricated documents, hence are not enforceable against the defendants. OPD
Relief".
The appellants produced nine PWs and documentary evidence Exh. P1 to Exh. P 12. The Respondents Nos. 1 to 9 produced four defence witnesses and documentary evidence Exh. DW1/D1 to exh. DW1/D5. The learned trial Court after hearing the learned counsel for the parties and after perusing record, vide its judgment dated 30.1.1993 dismissed the respondents' suit for redemption of mortgage and decreed the appellants' suit for specific performance of the agreement to sell dated 18.10.1961 (Exh. P3). It was held that appellants had performed their part of agreement and Respondents Nos. 1 to 9 were directed to execute and complete the sale-deed within a period of one month, otherwise the sale-deed was to be executed through process of execution.
The Additional District Judge, Lahore vide his judgment and decrees dated 10.11.1996 dismissed the two appeals filed by Respondents Nos. 1 to 9 and as mentioned above, the second appeals preferred by Respondents Nos. 1 to 9 were allowed vide the judgment and decrees impugned before us.
We have heard the learned counsel for the parties and have also seen the available record.
It is submitted by Mr. Amir Alam Khan, the learned counsel for the appellants that concurrent finding of facts recorded by the Courts below, howsoever erroneous, could not be up set by the High Court in second appeal under Section 100 of Civil Procedure Code (V of 1908), the High Court had no jurisdiction to entertain the second appeals on the ground of erroneous finding of fact, the learned Judge of the High Court reappraised the evidence and substituted the findings which was not permissible in law (relied upon Abdul Majid and others vs. Khalil Ahmad (PLD 1955 F.C. 38), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291), that the High Court illegally undertook the exercise of comparing the signatures in the second appeal and illegally expressed a different opinion without pointing out as to where the trial Court or the First Appellate Court were wrong or committed mistakes and even otherwise, the High Court could not have undertaken this exercise for the first time in the second appeal (relies upon Saheb Khan through Legal heirs v. Muhammad Pannah (PLD 1994 SC 162), that the judgment of the High Court is based on surmises and conjectures, that mutuality to an agreement is a notion which is not applicable in Indo-Pakistan, that High Court has drawn presumption against the appellants because property tax receipts were not produced in evidence whereas P.T.I. assessment is in favour of the appellants (referred to Exhs. P. 9 to P. 12) and even otherwise, it is an admitted position that taxes were being paid by the appellants, the reasoning given by the learned Judge in the impugned judgment in upsetting the concurrent findings of fact recorded by the trial Court as well as First Appellate Court are not cogent, the learned Judge has given wrong and illegal conclusions from the facts found, he could not have gone into the reasonableness of the sale price mutually agreed upon between the parties and even otherwise, the sale price settled between the parties represented the market value of the property in dispute in the year 1960/1961 and in any case the learned Judge could not have gone into this question without holding an inquiry; that the signatures which ahve been doubted by the learned Judge are admitted signatures, it was suggested to PW-6 Haji Islam Akhter Warsi that he had put his signatures on Exh. P. 2 in collusion with and on the asking of the appellants and this suggestion was denied and that the impugned judgment is liable to be set side.
Mr. Gulzarin Kiani, learned ASC representing the respondents has vehemently opposed the appeals and has supported the impugned judgment. It is submitted by him, that the conclusions drawn by the learned Judge of the High Court are based on the evidence produced by the parties, that the appellants cannot take any benefit from the fact that they had been paying taxes etc. because as per mortgage deed (Exh. P.4) it was liability of the mortgagee to pay taxes, the entries in the Assessment Registers are neither here nor there, one does not become owner merely because of the entries in the Assessment Registers and even otherwise, how could the mortgagee be recorded as owner on the basis of mere agreement to sell, PW-2 Zia-ur-Rehman was the scribe, extract of Register of Deed Writer was not produced, Exh. P. 2 was an unregistered document, signatures of the vendor in English on the same, were held by the High Court to be a forgery, that the appellants in their written reply to the respondents' ejectment petition did not refer to two agreements (Exhs. P.2 and P.3) and referred to only one agreement by describing it as "an" agreement, payment under the agreement was not mentioned, material evidence available on the record was not duly considered by two Courts below, therefore, the learned Judge of the High Court correctly re-appraised the evidence and that the market price of the property in dispute was much more than the alleged sale price mentioned in the agreement to sell, therefore, the learned Judge correctly took notice of this aspect of the case as well.
Mr. Hafeez Qureshi, learned ASC representing Respondents Nos. 4 and 5 and Mr. Muhammad Munir Peracha ASC representing Respondent No. 6 adopted the arguments of Mr. Gulzarin Kiani ASC and further submitted that PW-2 Zia-ur-Rehman Stamp Vendor is to be disbelieved viz. Exh. P2, it is not clarified as to who purchased the Stamp paper for this document although it was purchased from him, he has merely stated that one Ghulam Muhammad, who is not marginal witness of Exh. P. 2, who was representative of Faridi Sahib, had brought this Stamp paper to him and this shows that Exh. P. 2 is a forged document and that there was no need for the mortgagee to enter into an agreement to sell as he was not gaining anything under the sale agreements because no payment there-under was being made immediately.
It was held in the impugned judgment that a notice through registered post was to be issued after obtaining the PTD for execution of sale-deed, there was nothing on the record to show the date of issuance of PTD, no notice for execution of sale-deed was issued to appellants and in the absence of the same it could not be said that the appellants' suit for specific performance was barred by time and the same was consequently held to be within time. It was further held that the agreements dated 7.11.1960 (Exh. P2) and dated 18.10.1961 (Exh. P3) could not be termed as mortgage by conditional sale and the same appeared to be sale. The learned Judge in Chambers of Lahore High Court, thereafter deliberated upon the evidence produced by the parties and held that the signatures of Islam Akhtar Warsi (PW-6), a marginal witness of agreement dated 7.11.1960 (Exh. P2), were not signatures of this witness but were in the hand writing of the scribe. According to him, it was visible to the naked eyes. He further concluded that since the above said PW-6 was not a witness of the sale transaction, he was silent as to the contents of the document and had not said a word about the sale consideration of Rs. 1,01,000/- and other stipulations, therefore, the sale could not be said to have been provided. It was also held that Exh. P2 demonstrated that the offer was not from deceased Kafayatullah Faridi but by Qazi Muhammad Sharif proposing conditions of sale to himself. It was thus concluded that "This writing (Ex. P2) by Qazi Muhammad Sharif in his own favour coupled with doubtful signatures of Islam Akhter Warsi, PW-6, cannot be considered an agreement to sell".
The learned Judge, thereafter, rejected the sale document dated 18.10.1961 (Exh. P3) by holding that the same remained unproved because its marginal witnesses did not inspire confidence. In this regard, he referred to the statement of PW-3 Mehmood Ashraf to point out contradiction in his statement in regard to his age at the time of execution of the said document. He was also influenced by the fact that there were no separate receipts showing the payment of Rs. 9,125/- and Rs. 15,000/-, as alleged. He then went on to discuss the statement of PW-4 Ghulam Sarwar and concluded that he was not a reliable witness because this witness in his cross-examination had admitted that he went to the house of deceased Kafayatullah Faridi 2/3 times whereas subsequently he admitted that he did not know him before the execution of Exh. P3 and that he was an employee of the appellants since 1962.
Thereafter, it was further concluded that since he had already held that Exh. P2 was not a valid document and since Exh. P3 had its origin in Exh. P2, any super structure built upon Exh. P2 automatically fell to the ground. It was concluded that both Exh. P2 and Exh. P3 were not proved and seemed to have been fabricated after the death of Kafat Ullah Faridi. He further concluded that in his view, signatures of Kafayatullah Fridi on the said documents were visibly different and did not match each other. He further opined that the Bungalow in question measured about 2 Kanals and 5 Marlas which had about 16/17 rooms and was situated in the heart of the town and, therefore, the sale price of this bungalow i.e. Rs. 1,01,000/- could not by any stretch of imagination be said to be its true market value.
We are of the view, that the above conclusions of the learned Judge on the basis of the evidence available on the record are wrong. There is nothing on the record to show that the signatures on Exh. P. 2 are not that of PW-6 but of the scribe. The learned Judge was deciding a second appeal but acted as if he was deciding a First Appeal. His conclusion that Exh. P. 2 was not proved was abrupt and was not based on cogent reasons. He did not discuss the reasoning of the trial Court as well as the First Appellate Court and did not give reasons for differing with the reasons of the Courts below. We have gone through the judgments of the trial Court as well as the First Appellate Court. Cogent reasons have been given in the said judgments for the conclusions drawn in the same. They are based on the evidence available on the record and they did not suffer from any misreading or non-reading of evidence.
The concurrent findings of fact could not be reversed on surmises and conjectures or merely because another view was also possible. PW-3 and PW-4 have been disbelieved merely on the basis of minor contradictions without any reference to the reasonings advanced by the trial Court and the appellate Court. It is reiterated that learned Judge did not realize that it was a second appeal before him and he could not interfere in the concurrent finding of facts recorded by two Courts below while exercising jurisdiction under Section 100 C.P.C., how so erroneous those findings were, unless such findings had been arrived at by the Courts below either by misreading of evidence on record or by ignoring a material piece of evidence on record or through perverse appreciation of evidence. The learned Judge did not point out any misreading or non-reading of evidence or the other criteria laid down by this Court in the judgments discussed below to enable him to undertake the reappraisal of evidence in the second appeal. The learned Judge was also wrong in holding that the sale price mentioned in the agreement to sell did not represent the true market value of the property in dispute. He did not realize that Exhs. P. 2 and P. 3 were executed in the years 1960 and 1961 and at that time the prices of the properties in the area in question, where the property in dispute is situated, were much less and in any case such conclusion could not have been arrived at without any evidence available on the record. Furthermore, the very fact that the mortgagor mortgaged the property with possession for a period of thirty years in favour of the predecessors of the appellants for Rs. 71,000/- in the year 1960, shows that the market price of the property in dispute could not have been more than Rs. 1,01,000/- for which it was sold by the mortgagee in favour of the mortgagor through agreements (Exhs. P2 and P.3) executed in the year 1960-1961 because no body would part with his property for a long period of 30 years through a mortgage, if the mortgage money did not represent a major part of its market value. Similarly signatures of vendor, on the agreement in question were disbelieved, for the first time in second appeal, without any basis.
In Abdul Majid and others v. Khalil Ahmad (supra), it was held that "the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits". It was further held that "assuming that the High Court did not agree with the lower Courts appreciation of the evidence, that could not be a ground for it to reverse the concurrent finding of fact of the lower Courts" and that "the High Court had no jurisdiction to entertain the second appeal on this ground and it exceeded its functions in interfering with those findings".
Similarly, in Haji Muhammad Din v. Malik Muhammad Abdullah (supra), it was laid down by this Court that concurrent finding of fact of two Courts below could not be disturbed by High Court in second appeal unless Courts below while recording finding of fact had either misread the evidence or had ignored any material piece of evidence on record or the same was perverse.
The scope of Section 100 of Civil Procedure Code (V of 1908) was again considered by this Court in Haji Sultan Ahmad through L.Rs. v. Naeem Raza and 6 others (1996 SCMR 1729) and it was reaffirmed as under:
"5. From the above discussed legal position, it is quite obvious that the concurrent finding recorded by the Courts below cannot be interfered with by the High Court with exercising jurisdiction under Section 100, C.P.C. how so erroneous that finding may be, unless finding has been arrived at by the Courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence", and
... "In fact, the entire process of reasoning by the learned Judge in Chambers in upsetting the concurrent finding of facts was the result of reappraisal of evidence on record in the case which was not permissible under Section 100, C.P.C".
In view of the above-mentioned, both the appeals are allowed and impugned judgment dated 20.11.2002 of the Lahore High Court, is set aside with no orders as to costs.
(Fouzia Fazal) Appeals allowed.
PLJ 2007 SC 72
[Appellate Jurisdiction]
Present: Javed IQbal & Raja Fayyaz Ahmad, JJ.
PEER MUHAMMAD--Petitioner
versus
GOVT. OF BALOCHISTAN through its Chief Secretary & others--Respondents
Civil Petition No. 77-Q of 2006, decided on 3.8.2006.
(On appeal from the judgment dated 20.6.2006 of High Court of Balochistan, Quetta, passed in C.P. No. 310 of 2006).
Constitution of Pakistan, 1973—
----Art. 212--Constitutional jurisdiction--Question of posting of a Government servant squarely falls within the jurisdictional domain of the competent authority subject to law and rules made thereunder--Question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved--Held: Where no question of law of public importance is involved leave to appeal may not be granted--Petition dismissed. [P. 74] A & B
Syed Ayaz Zahoor, ASC and Mr. M.W.N. Kohli, AOR for Petitioner.
Nemo for Respondents.
Date of hearing : 3.8.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 20.6.2006 whereby the civil petition preferred on behalf of petitioner has been dismissed.
Heard Syed Ayaz Zahoor, learned ASC on behalf of petitioner who mainly contended that the learned Division Bench of High Court of Balochistan has erred while holding that the petition was not maintainable in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan when the relief sought was not related to the terms and conditions of the service and only it was prayed that earlier order passed by High Court of Balochistan in C.P. No. 187 of 2006 be got implemented. It is next contended that the posting of Ghulam Rasool (respondent), against the post of Director General, Agriculture Extension Balochistan has been made in violation of the relevant Agriculture Service Rules and besides that it was mandatory upon the Provincial Government to implement the orders of High Court of Balochistan in letter and spirit.
We have carefully examined the contentions as agitated on behalf of petitioner and perused the judgment impugned with care and caution. A careful scrutiny of the record would reveal that the entire controversy revolves around the posting of "Director General, agriculture Extension" and the petitioner wants to be posted against it. We are not persuaded to agree with the prime contention of Syed Ayaz Zahoor, learned ASC on behalf of petitioner that order of learned High Court in Civil Petition No. 187/2006 was not implemented by the Provincial Government for the simple reason that no categoric direction whatsoever was given qua the posting of petitioner as Director General, Agriculture Extension but on the contrary the Provincial Government was directed to take action strictly in accordance with law and on permits. It is worth mentioning here at this juncture that Mr. Ghulam Rasool (respondent) who has been posted as Director General, Agriculture Extension is equally qualified and he could have been posted against the vacancy of Director General, Agriculture Extension. No legal right of the petitioner has been infringed. A desire simplicitor cannot be equated to that of legal right. "A legal right is that right which is recognizable and enforceable at law. A legal right is less abstract than the conception which is represented by the unqualified word `right', because the unqualified word includes both juristic and legal conceptions. The juristic conceptions have their source in and pertain to what is idealistic, or to the word order as a whole, or to the social order in principle. They come out of what Prof. Roscoe Pond has called "culoudcuckootown"; while legal conceptions and legal rights pertain to an actual legal order. These two kinds may sometimes fall far apart because while the former belongs to the science of law, the latter belongs to a particular system of law. Hence jurists may hold different ideas as to them without affecting the law. The two kinds of conceptions meet when the provisions of a particular legal system need to be better understood by breaking them up, like a beam of light, into the waves of thought, by passing them, as it were, through the prism of jurisprudence. The diffraction that is achieved is both realistic and colourful." (Piran Ditta v. Noor Muhammad (PLD 1966 Kar. 618).
Admittedly the petitioner had no legal right to be posted against a particular post hence the question of its infringement does not arise as pressed time and again by the learned ASC on behalf of petitioner. It is well settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned ASC could have been dilated upon in constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such like matters. In this regard we are fortified by the dictum laid down in case Kh. Abdul Wahid v. Chairman, WAPDA (1986 SCMR 1534). There is no denying the fact that leave to appeal to Supreme Court is competent only if the case involves a substantial question of law and public importance which is sine qua non for the invocation of jurisdiction as conferred upon this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan as neither any question of public importance is involved nor enforcement of any of the fundamental rights. There is no cavil with the proposition that "where no question of law of public importance is involved leave to appeal may not be granted." In this regard reference can be made to cases Director Food v. Rashid Ahmad (1990 SCMR 1446), Muhammad Manzoor Ahmad v. Commissioner Multan Division (1990 SCMR 560), Sattan v. Rani (1989 SCMR 1677), Govt. of Punjab v. Khalid Hussain Gill (1898 SCMR 748).
In sequel to above mentioned discussion the petition being devoid of merit is dismissed and leave refused.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 SC 75
[Appellate Jurisdiction]
Present: ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
MIR AJAM KHAN--Petitioner
versus
Mst. QURESHA SULTANA and others--Respondents
C.P. No. 371-P of 2001, decided on 17.5.2006.
(Against the judgment dated 6.7.2001 passed by the Peshawar High Court in CR No. 141 of 1995).
Contract Act, 1872 (IX of 1872)—
----S. 214--Constitution of Pakistan, 1973, Art. 185(3)--Held: Party personally knowing circumstances of the case is duty bound to appear as its own witness and submit to cross examination failing which truth of that party may be discredited--The title was established to the land in-question on the basis of documentary evidence--Petitioner had no title and was relying only on an oral assertion even without bringing the vendor into the witness box from whom he had statedly purchased the land--Petition dismissed. [Pp. 77 & 78] A & B
Mr. M. Sardar Khan, ASC and Sh. Wazir Muhammad, ASC for Petitioner.
Nemo for Respondents.
Date of hearing : 17.5.2006.
Order
Syed Jamshed Ali, J.--The suit filed by Mst. Quresha Sultana and her husband Maj. (Retd.) Farooq Shah (Respondents Nos. 1 and 2 herein) for possession of the land in dispute based on title was decreed by the learned trial Court on 1.2.1990. However, on the appeal of the petitioner the decree was reversed and the suit was dismissed on the ground that Maj. (Retd) Farooq Shah, Respondent No. 1, had appeared as attorney of Respondent No. 1 in support of her case who was not properly authorized and was not himself a proper party. On the revision petition of Respondents Nos. 1 and 2, the learned High Court found that the reason for interference of the learned First Appellate Court in the decree of the trial Court was unsustainable. Accordingly, it restored the judgment and decree of the learned trial Court vide judgment dated 6.7.2001 which has been impugned in the present petition.
The claim of Respondent No. 1 in suit was based on Mutation No. 7551 dated 10.9.1977. However, Petitioner No. 1 setup counter title by claiming purchase of the land in dispute from the same vendor orally in 1956-57. The trial Court and the learned High Court dis-believed the so-called oral transaction of sale and preferred the documentary evidence of title of Respondent No. 1.
The learned counsel for the petitioner contends that Respondent No. 2 had no locus-standi to be joined as a plaintiff in the suit, the plaintiff-Respondent No. 1 did not appear as her own witness and Respondent No. 2 who appeared as an attorney had not filed power of attorney before the learned trial Court. According to him, non-appearance of Respondent No. 1 to support her own case was fatal. Reliance was placed on K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah & others (PLD 1957 (WP) Karachi 258). Another complaint being made is that copy of the power of attorney was submitted before the learned High Court which could not have been received and looked into in view of Article 76 of the Qanun-e-Shahadat Order, 1984. He further submitted that, in fact, Respondent No. 2, as attorney of the vendor, has been selling land to different persons and the sale made by him on behalf of the owner in favour of his wife was illegal.
The submissions made by the learned counsel for the petitioner have been considered. Joinder of Respondent No. 2, as co-plaintiff, did not militate against the claim of Respondent No. 1 in the suit nor it caused any prejudice to the petitioner in any manner. Non-appearance of the plaintiff in this case was also not fatal. Respondent No. 2 was the general attorney of the vendor from whom Respondent No. 1 had purchased the land and therefore, he was fully in knowledge of the relevant facts. The judgment in the case of K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah & others supra proceeds on its own facts. Non-appearance of the party as a witness came under consideration of the Superior Courts at a number of occasions. The first important judgment to be found is Sardar Gurbakhsh Singh v. Gurdial Singh and another (AIR 1927 P.C. 230). In the said case a male child was being put up as a legitimate heir of the Jagirdar which was disputed. His mother, although present in the Court, did not appear in the witness box. It was in this context that the following observations were recorded by their Lordships of the Privy Council--
" ............ The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination" (underlining is ours to supply emphasis).
"Equally notable is his absence from the witness box--quite deliberate as is shown by the record--in relation both to his alleged adoption and to the will of Partab Bahaduer Singh which he propounded in the circumstances presently to be referred to. The case against adoption, judged merely by his own conduct at every stage, is almost overwhelming. He has elected to leave that conduct of his entirely without explanation. If his failure to give evidence was attributable to a reluctance to testify shared with many Indians of high caste, that is unfortunate, because in the present case his failure to testify has strained judicial credulity to breaking point. "
"It is a settled principle of law that party personally knowing circumstances of the case is duty hound to appear as its own witness and submit to cross-examination failing which truth of that party may be discredited" (under-lined to supply emphases).
"But in the argument made by Dr. Das, if accepted, would mean that the plaintiff should have been called to disprove the defendant's case. In my view, there is no question of invoking presumption of Section 114, illustration (g) of the Indian Evidence Act and the principles laid down in the said Privy Council decision, cannot apply in this case ".
The ratio of the aforesaid judgments is that if there are certain facts and circumstances specially in the knowledge of the party, an adverse inference could be drawn from its non-appearance. There cannot, however, be any caste iron mould for the aforesaid principle. It will depend on the facts of each case. In case the circumstances on which a party relies are proved by evidence on record, then non-appearance of the party would not be fatal. It may be observed that a presumption (drawn from the conduct of a party), could not nullify proof of a fact by the evidence produced in the case.
As far as the contention that the attorney could not have sold the land in favour of his own wife is concerned, it is based on Section 214 of the Contract Act. According to the said section, it is the principal who could
repudiated the transaction. Till date the principal had never questioned the transaction made by Respondent No. 2 in favour of Respondent No. 1.
The matter stands concluded by a finding of fact duly arrived at by the learned High Court. While Respondent No. 1 was able to establish her title to the land in question on the basis of documentary evidence, petitioner had no title and was relying only on an oral assertion even without bringing the vendor into the witness box from whom he had statedly purchased the land particularly when the alleged vendor was his brother-in-law.
For what has been discussed above, we do not find any merit in this petition which is dismissed. Leave refused.
(Fouzia Fazal) Leave refused.
PLJ 2007 SC 78
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Faqir Muhammad Khokhar & Shakirullah Jan, JJ.
DHAN FIBRES Ltd.--Appellant
versus
CENTRAL BOARD OF REVENUE, ISLAMABAD and others--Respondents
Civil Appeal No. 2721 of 2001, decided 21.8.2006.
(On appeal from the judgment/order dated 3.6.1999 passed by Peshawar High Court, Peshawar in W.P. No. 1442/1997).
Sales Tax Act, 1990 (VII of 1990)--
----S. 2(26), 6(2) & 34--Constitution of Pakistan, 1973, Art. 185(3)--Ultra vires--Question of payment of tax--Validity--Payment of sales tax--Held: Tax in respect of taxable supplies made in Pakistan during the tax period would be paid by the registered person at the time of filing return in respect of that period--There was no impediment or hurdle for appellant to ensure deposit of sales tax by submitting the tax return instead of filing the same on the last cutout date, thereby depriving the public exchequer from the tax, which was due on the said date because actually the tax would be deemed to have been received when the bank instrument was cleared--Tax shall be paid by the registered person at the time of filing of the return in respect of the period--Appeal dismissed.
[Pp. 80 & 81] A & B
Mr. Imtiaz Rashid Siddiqui, ASC and Mr. Mahmud-ul-Islam, AOR. for Appellant.
Mr. M. Bilal, Sr. ASC and Mr. Mumtaz Ahmed, Member (Legal), CBR. for Respondents.
Date of hearing : 24.2.2006.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--This appeal by leave of the Court is directed against the judgment dated 3rd June 1999, passed by Peshawar High Court, Peshawar in W.P. No. 1442/1999.
Leave to appeal has been granted to examine the following questions:--
whether under Rule 5(4) of the Filing of Monthly Return Rules, 1996 vide notification No. SRO 551(1)/96 dated 1st July 1996 are ultra vires of Section 6 of the Sales Tax Act, 1990?
Whether payment of tax made in deviation to the rules of 1996 could attract the liability particularly additional tax under Section 34 of the Sales Tax Act, 1994?
Precisely stating facts, giving rise to instant proceedings, are that appellant submitted tax returns and pay orders in respect of the tax period in terms of Section 2(9) and (43) of the Sales Tax Act, 1990 [herein after referred to as the Act, 1990'] namely on or before 20th of the month, on 20th October 1996, 20th
November 1996, 20th February 1997 and 20th May 1997 respectively, accompanying bank instrument, meant for the payment of tax. Admittedly, after clearance the returns were accepted on 22nd October 1996, 23rd November 1996, 23rd February 1997 and 22nd May 1997, respectively, beyond the due date of 20th of the month.
Therefore, the appellant was informed that as the tax has not been deposited on or before the stipulated date therefore, under Rule 5(4) of the Filing of
Monthly Return Rules, 1996 [herein after referred to asthe Rules, 1996'], appellant was liable to pay additional tax under Section 34 of the Act, 1990, on account of delayed payment. Accordingly an order in original No. 118/1997 dated 25th' June 1997 was issued whereby additional tax liability has been imposed upon the appellant. Thus a Constitution petition was filed on its behalf, questioning the constitutionality of Rule 5(4) of the Rules, 1996 and the order dated 25th June 1997. Learned High Court dismissed the writ petition by means of impugned judgment. Hence instant appeal by leave of the Court.
Learned counsel for appellant contended that no sooner the tax return alongwith bank instrument for payment of the tax is submitted on or before 20th of the month, so as to discharge tax liability for the relevant tax period, it would be deemed that tax has been paid within time and the time consumed by the bank in clearance of the instrument would not constitute the delay on its part.
On the other hand learned counsel appearing for the respondents contended that law has provided 20th of the each month to be a cutout date and as the tax return is to be submitted of the preceding month, therefore, if the payment has been made beyond the date to the Tax Department, it would be deemed that on the said date the return has been filed. According to him this is import of Rule 5(4) of the Rules, 1996.
We have heard the learned counsel for the parties and have gone through the relevant provisions of the law as well. It is to be noted that Section 26 of the Act, 1990 provides that "every registered person shall furnish not later than the due date a true and correct return in the prescribed form to a designated bank specified by the Board, indicating the purchases and the supplies made during a tax period, the tax due and paid and such other information, as may be prescribed." In pursuance of above provision, vide Notification No. SRO No. 551(l)/1996 dated 1st July 1996, the CBR framed rules. Relevant rule i.e. 5(4) is reproduced herein below for convenience:--
"5. Receipt of return by the Bank.--
(1) .....................................................................
(2) ..................................................................
(3) .....................................................................
(4) On clearance of the instrument, the Bank official shall sign and stamp the return indicating the date on which the payment is received by the Bank and the said date shall be treated as the date of payment of tax and submission of tax return.
At this juncture, it may not be out of context to note that Section 6(2) of the Act, 1990 provides that the tax in respect of taxable supplies made in Pakistan during the tax period shall be paid by the registered person at the time of filing the return in respect of that period under Chapter-V. This provision of law makes it abundantly clear that tax has to be paid alongwith return on or before 20th of each month being a cutout date, in the way/mode/manner and at the time specified, meaning thereby that by means of any recognized mode, tax is required to be deposited and must be received by Government treasury on or before the 20th of the month and if the bank instrument has not been cleared on the said date then it would be deemed that the return has been filed and accepted on the date when the tax was actually received. As in present case, admittedly, the bank instrument for payment of tax was cleared after 20th of the month when the return was submitted. Thus in view of violation, the appellant was liable to pay the additional tax in accordance with Section 34 of the Act, 1990. In this behalf learned counsel appearing for respondents relied upon D.G. Khan Cement v. Federation of Pakistan (2004 SCMR 456), wherein this Court while examining the implications of Section 34 of the Act, 1990 has held that "imposition of penalty or additional tax under Section 34 of the Sales Tax Act, 1990 was mandatory and there was no discretion left with the Authorities to allow any exception." It has been further observed that "each and every case, however, had to be decided on its own merits as to whether the evasion or non-payment of tax was wilful or mala fide, decision on which would depend upon the question of recovery of additional tax." In our considered opinion in the instant case there was no impediment or hurdle for appellant to ensure deposit of sales tax by submitting the tax return before 20th of the month instead of filing the same on the last cutout date, thereby depriving the public exchequer from the tax, which was due on the said date because actually the tax would be deemed to have been received when the bank instrument was cleared. Section 2(26) of the Act, 1990 clearly mandates that the tax shall be paid by the registered person at the time of filing of the return in respect of the period. Making payment means that the bank instrument should be cleared by the bank before the 20th of the month, otherwise, it would be deemed that the tax was paid subsequently. The word `paid' used in the Section, as per its dictionary meaning represents that the money has been given.
Thus, we are of the opinion that so far as the Rule 5(4) of the Rules, 1996 is concerned, it is not ultra vires to Section 6 of the Act, 1990 and under these circumstances the department had rightly imposed additional tax upon the appellant in terms of Section 34 of the Act, 1990.
For the foregoing reasons, appeal is dismissed with costs.
(Fouzia Fazal) Appeal dismissed.
PLJ 2006 SC 81
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-Ul-Mulk, JJ.
MUHAMMAD ZAHID IQBAL and others--Petitioners
versus
D.E.O. MARDAN and others--Respondents
Civil Petitions No. 350-P to 356-P, 364-P, 377-P to 379-P, 389-P/to 398-P, 406-P to 408-P, 435-P to 468-P, 473-P to 477-P, 492-P to 495-P, 501-P to 506-P, 541-P, 560-P, 597-P, 598-P, 413-P, 478-P to 484-P, 496-P to 500-P, 504-P, 507-P to 509-P, "^532-P, 540-P, 543-P to 545-P, 561-P & 562-P, 603-P to 605-P, 510-P to 512-P, 542-P, 547-P to 549-P, 569-P to 572-P, 576-P to 579-P,, 590-P to 600-P, 550-P to 557-P, 582-P to 584-P and 589-P OF 2005, decided on 26.10.2005.
(On appeal from the judgment dated 11.6.2005 of the NWFP Service Tribunal, Peshawar passed in Appeals No. 2054, 2001, 2353, 2182, 2605, 2037,2203, 561, 2347, 2346, 2352/2000, 258/2003, 116/2002, 15, 16, 17,1184, 1186, 1187/2003, 1237/2002, 158, 298/2004, 2036, 2193, 2889/2000, 935, 944, 1013/2001, 401, 539, 620, 668, 707, 807, 645, 808, 809, 810 to 816, 860, 861, 870, 908, 915, 1027, 1126, 1166/2002, 10,281,282,634/2003, 236/2004, 1020/2001, 1021/2001, 634, 1237/2002, 157/2003, 907/2000, 606/2002, 246, 1163/2003, 260/2001, 686, 714/2002, 244/2003, 344/2005, 344/2004,658/2002, 505/2003 dated 7.7.2005 passed in Appeal No.387/2005, dated 4.7.2005 in Appeals No.361/2003, 638, 644, 700/2002, 229/2003, 32, 341/2004, 1011/2001, 2232/2000, 7, 6/2003, 208, 552/2004, 702/2002, 768, 917, 1282/2003, 634, 1024, 680/2003, 645, 679/2004, 916, 13/2003, dated 4.8.2005 in Appeals No.869/2002, 569, 1002/2004, 737/2002, 345, 1346/2003, 870/2004, 401, 567, 568. 510, 50, 242, 569, 1347, 504, 604, 507, 618/2003, 859/2004, 524, 526, 920/2003 dated 14.4.2005 passed in Appeals No.594, 602, 598, 606, 610, 623, 667, 1079/1997, dated 10.9.2005 in Appeals No.800/2004, 254. 260/2005 and 817/2004, respectively)
NWFP Service Tribunal Act, 1974--
----S. 4--Constitution of Pakistan, 1973, Art. 212--Service matter--Illegalities and irregularities in appointment--Termination of civil servant appointed by using illegal means--Appellants were appointed under the political influence--Terminated by the department with the allegations of irregularity--Petition was filed for their reinstatement--Held: Once the appointees are qualified to be appointed, their services cannot subsequently be terminated on the bases of lapses and irregularities committed by the department itself. Such laxities and irregularities committed by the Government can be ignored by the Courts, only when appointees lacked the basic eligibilities--Orders accordingly. [P. 84] A
1996 SCMR 1185, 1996 SCMR 413, 2002 SCMR 1124, PLD 2003 SC 724, 2004 SCMR 630, 2004 SCMR 303 and 2005 SCMR 85, ref.
Dr. Hussain Khan, AOR for the Petitioners (CPs 350-P, 352 to 356, 389, 397-P, 406 to 408-P/2005).
Mr. Fateh Muhammad Khan, AOR for Petitioners (in CPs. 390-P to 396, 413 & 544-P/2005).
Mr. Khushdil Khan Mohmand, ASC with Mr. Mir Adam Khan, AOR for Petitioners (in CPs. 435-P to 468, 473 to 477, 492 to 495, 502, 503, 505, 506, 541, 560, 597, 478 to 484, 496 to 500, 504, 507 to 509, 532, 540, 544, 545, 561, 562, 510 to 512, 542, 547 to 549, 569 to 572, 576 to 579, 590, 591, 598 to 600, 582 to 584-P/2005).
Mr. Mir Adam Khan, AOR for Petitioners (in CPs. 550-P to 557 & 589-P/2005).
In person for Petitioner (in CPs. 351-P, 377 to 379, 501, 398, 543, 603 to 605-P/2005).
Nemo for Petitioner (in CP 364-P/2005).
Mr. Muhammad Younas Tanoli, Advocate General NWFP, Mr. Imtiaz Ali, ASC & Hafiz Aman, ASC for Respondents (in all cases).
Date of hearing: 26.10.2005.
Judgment
Sardar Muhammad Raza Khan, J.--All the petitions in hand, involving common questions of law and fact are taken up together to be decided through this single judgment.
The services of the petitioners holding different posts of PTC, CT, PET and TT Teachers etc., in education department of NWFP were terminated on different dates in the year 1997. They resorted to the learned NWFP Service Tribunal, Peshawar on the strength of Hameed Akhtar Niazi's case (1996 SCMR 1185) claiming similar treatment which had been meted out to other civil servants who had been earlier reinstated into service by the Tribunal. After hearing the parties at length, the learned Tribunal dismissed all the appeals vide its judgment dated 11.6.2005 and hence these petitions.
Learned counsel for the petitioners seriously challenged the stance taken by the authority that the appointments of the petitioners were politically motivated. The learned counsel while placing reliance on numerous judgments of this Court advanced the argument that if once the irregularity or illegality is committed by the department itself, it cannot turn around and reverse its own order taking benefit of its own illegalities.
This view was negated by the learned counsel for the department on the strength of two Division Bench judgments rendered by this Court in CPSLAs 274 and 323 of 2004 on 31.10.2003 and CP # 96-P of 2002 on 5.11.2003; both by the same learned Bench. The crux of the aforesaid judgment was that an ill-gotten favour by a civil servant through illegal means should not be endorsed and perpetuated by the Court. This needs to be discussed in some detail.
The factum of illegal appointments allegedly obtained through illegal means of using political pressure etc. and the terminations based thereon, has remained a subject of close discussion by this Court which, for the first time, in Secretary to Government of NWFP Zakat/Social Welfare Department, Peshawar and another vs. Sadullah Khan (1996 SCMR 413) held the view that the Government cannot be allowed to take advantage of its own lapses and illegalities in terminating the services of the Civil Servants provided they were otherwise qualified to hold such posts. This view of the full Bench of this Court was subsequently followed by numerous full Benches of this Court. First in series was a full Bench judgment in Syed Sikandar Ali Shah's case (2002 SCMR 1124) where, otherwise qualified Civil Servants, were reinstated despite irregularities and lapses, because, those were committed by the department itself.
The view consistently remained followed in another full Bench judgment in CPs. # 455 to 457 and 461-P of 2001 decided on 13.10.2003. In the case of Sui Southern Gas Company Limited (PLD 2003 SC 724), a larger Bench consisting of five Hon'ble Judges of this Court, reiterated the above view maintaining the earlier view of this Court in case of Sadullah Khan (ibid). Again in WAPDA vs. Abbas Ali Malano and another (2004 SCMR 630) the same disapproval of Government action was reiterated particularly in case of appointees who otherwise fulfilled the requisite qualifications for the appointment. The judgment in Collector of Customs and Central Excise. Peshawar and 2 others vs. Abdul Waheed and 7 others (2004 SCMR 303) by another full Bench can also be referred to in this behalf. The above view is followed in Muhammad Shoaib's case (2005 SCMR 85) where the majority followed the consistent view as discussed. One learned Judge no doubt gave a dissenting view but the majority verdict consistent with the view followed by this Court since 1996 had to be maintained. The two judgments relied upon by the learned counsel for the Government earlier referred to in some portions of this judgment are also rendered by the same Hon'ble Judge who gave a dissenting view in Muhammad Shoaib's case (supra). We do honour views of the Hon'ble Judge but the principle enunciated by numerous full Benches and one larger Bench of this Court has to be followed and maintained.
Such principle, in nut shell and consistently declared by this Court is that once the appointees are qualified to be appointed, their services cannot subsequently be terminated on the basis of lapses and irregularities committed by the department itself. Such laxities and irregularities committed by the Government can be ignored by the Courts only when the appointees lacked the basic eligibilities, otherwise not.
The aforesaid view if applied to the present cases, the petitioners, we are afraid, cannot draw any benefit therefrom because at the time of their initial appointments, they lacked basic qualifications, requirements and eligibilities. They were appointed as PTC, CT, PET and TT Teachers in the department but they lacked the pre-qualifications and training courses, CT certificates and junior diploma in physical education as pre-requisites for the posts aforesaid. It is obvious that in the circumstances, they could not take advantage of the conditional view taken by this Court.
Most of the petitioners had initially resorted to Peshawar High Court. Their writ petitions were accepted subject to Certain conditions of re-advertisement and interviews in open competition. The petitioners did not either participate in such competition or could not qualify and hence were rightly dislodged by the learned Tribunal. Numerous Teachers appointed against their posts for the last so many years have not been impleaded at all.
The services of the petitioners were terminated in the year 1997 but they resorted to the Tribunal, under Section 4 of the NWFP Service Tribunals Act, 1974 with a delay of five years or more. There are one or two exceptions but their delay was also of more than three years. Their claim that such delay ought to have been condoned, is totally unjust because such condition is highly un-precedented, at the first place and highly unjustified, at the other, so as to jeopardize the interest of those incumbents who are equally in large number and who have not been impleaded at all. The learned Tribunal, in the circumstances, rightly declined to condone the delay.
The upshot of the above discussion is that the petitioners have no merit in their petitions, which are dismissed and leave to appeal refused.
(Waseem Iqbal Butt) Order accordingly.
PLJ 2007 SC 85
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
PAKISTAN TOBACCO BOARD and another--Petitioners
versus
TAHIR RAZA and others--Respondents
Civil Petition No. 320-P of 2006, decided on 8.6.2006.
(Against the judgment dated 29.5.2006 passed by the Peshawar High Court in W.P. No. 1534/2004).
(i) Pakistan Tobacco Board (Services) Rules, 1985--
----R. 20--Pakistan Tabacco Board Ordinance (I of 1968), S. 30--Constitution of Pakistan, 1973, Art. 212--Leave to appeal--Re-employment--Notification--Contrary to rules and policy of Government--Assailed--Discretion power--Held: It is President of Pakistan who was the re-pository of discretion that re-employment is permissible only in public interest--Merely because petitioner was hardworking and efficient officer did not authorise the Federal Government to bye-pass the said rule--Mere warrant i.e. notification of the Federal Government was sufficient answer to writ of quo warranto, had no merit--Mere issuance of notification was not enough--It had to be demonstrated by the petitioner that his appointment was in accordance with law and rules.
[Pp. 87 & 88] A & C
(ii) Constitution of Pakistan, 1973--
----Art. 199--Writ of quo warranto, which is of course, is now an obselete writ and substituted by a prohibitory order is to inquire from a person the authority of law under which he purports to hold a public office--It is primarily inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others who might be entitled to the said office--Petition dismissed. [Pp. 87 & 88] B
Qazi Muhammad Anwar, ASC and Mr. Fateh Muhammad Khan, AOR for Petitioners.
Nemo for espondents.
Date of hearing : 8.6.2006.
Order
Syed Jamshed Ali, J.--Khan Faraz, Petitioner No. 2, has been working in the Pakistan Tobacco Board as Secretary in BS-19 from 26.8.1998 till his retirement on 19.4.2004. However, on the basis of the recommendation of the Chairman, Pakistan Tobacco Board, he was
re-employed on contract basis for a period of two years vide notification dated 9.10.2004 of the Establishment Division, Govt. of Pakistan. Mushtaq Ahmed, Assistant Development Officer, and Tahir Raza Respondent No. 1 challanged the aforesaid appointment on the ground that it was contrary to the relevant rules and the policy of the Government. The petition was resisted but was allowed by the learned High Court with the findings that under the relevant rules the authority competent for re-employment of Petitioner No. 2 was the President of Pakistan and that the recommendation of the Chairman of the Board for re-employment of Petitioner No. 2 in the absence of the recommendation of the selection board was illegal.
(a) That the competent authority in the Federal Government for appointment in question was the Prime Minister in accordance with the Rules of Business and approval of the Prime Minister was obtained on the proposal initiated by the Chairman of the Pakistan Tobacco Board which was routed through the Commerce Ministry.
(b) Rule of Business having been framed under the constitution will have precedence, over the Pakistan Tobacco Service Rules, 1985, framed under Section 30 of the Pakistan Tobacco Board Ordinance, 1968 (I of 1968).
(c) It was not pleaded in the writ that the President alone was the competent authority and therefore, the petitioners had no opportunity to meet the said objection.
(d) The impugned notification of the Federal Government was a complete answer (warrant) for Petitioner No. 2 to hold the post and the learned High Court could not have peeped into the documents of the Government which related to its internal business.
(e) The notification was duly endorsed to the President of Pakistan and it was substantial compliance of Rule 20 of the aforesaid rules.
(f) Any infirmity of technical nature would not invalidate the notification of appointment of Petitioner No. 2.
(g) Petitioner No. 2 has rendered in-valuable services and his further retention was in public interest.
He maintains that in any case tenure of Petitioner No. 2 will expired on 8.10.2006, neither the Tobacco Board nor Petitioner No. 2 is interested in further extension of his services and in case Petitioner No. 2 has to vacate the office forthwith it will create a void and ensuing administrative problems for the petitioner Board. And, therefore, Petitioner No. 2 may be allowed to complete the extended term.
We have considered the submissions made by the learned counsel for the petitioner. The appointment in question is governed by the Pakistan Tobacco Board (Service) Rules, 1985 which have been framed under Section 30 of Pakistan Tobacco Board Ordinance, 1968 (I of 1968) by the Federal Government and are, thus, statutory. Rule 20 is reproduced hereunder:--
Re-employment.--Any employee may not be re-employed after superannuation unless such re-employment is necessary in public interest and is made with the approval of the President of Pakistan.
Perusal of the said rule shows that not only it is the President of Pakistan who is the re-pository of discretion but also that re-employment is permissible only in public interest. Merely because Petitioner No. 2 was described as hard working and efficient officer did not authorise the Federal Government to bye-pass the said rule.
The learned counsel relied on the Rules of Business to contend that Prime Minister was the competent authority. He, however, did not produce before us any material to demonstrate that on the date of approval of the Prime Minister to the impugned re-employment, he was competent authority for the posts in grade 19 in the autonomous bodies. On the existing record, it is not possible for us to upset the finding of the learned High Court that the President of Pakistan was the competent authority. Endorsement of the copy of the impugned notification to the office of the President could hardly be said to be compliance of Rule 20 above said.
None of the other contentions of the learned counsel has any merit. In fact it was in reply to the constitutional petition that Respondent No. 2 (Ministry of Commerce) had taken the stand that appointment in-question was approved by the Prime Minister. Therefore, the contention of the learned counsel that the learned High Court had been doing a roving inquiry in respect of the internal business of the Government is beyond our comprehension. The writ of quo warranto, which is of course, is now an obselete writ and substituted by a prohibitory order is to inquire from a person the authority of law under which he purports to hold a public office. It is primarily inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others who may be entitled to the said office. Therefore, keeping in view the nature of such proceedings the learned High Court can undertake such an inquiry as it may deem necessary in the facts and circumstances of a particular case including examination of the entire relevant record and this exercise can be done suo moto even if its attention is not drawn by the parties concerned.
While considering the aforesaid principle in Lahore Improvement Trust, Lahore through its Chairman v. The Custodian. Evacuee Property. West Pakistan, Lahore and 4 others (PLD 1971 SC 811), this Court reiterated the following observations from The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector (PLD 1966 SC 725):--
"To satisfy the requirement of this rule it is the duty of the Court to examine the entire record pertaining to the action taken, order passed and proceedings undertaken which are challenged as without lawful authority under Article 98 of the Constitution. Otherwise grave miscarriage of justice may take place in the exercise of this beneficial jurisdiction. The objection raised by Mr. Ghias Muhammad that the appellants or the Court suo moto could not make resort to any document on the record of the Collector, the Trust and the University which was not relied upon in the High Court has, therefore, no substance"
It may be noted that the above said observations were made in the litigation which was not inquisitorial as in case of a writ of quo warranto. We also cannot help observing that the Federal Government has not challenged the order of the learned High Court and this petition has been brought by the Pakistan Tobacco Board and the Secretary. This singular fact speaks loud that it is not the Federal Government who is interested to retain Petitioner No. 2, it is in fact the Pakistan Tobacco Board, who had initiated the proposal, who want to see Petitioner No. 2 in their service.
The other submission that mere warrant i.e. notification of the Federal Government is sufficient answer to the writ of quo warranto, has no merit. Mere issuance of notification was not enough. It had to be demonstrated by the petitioners that his appointment was in accordance with law and the rules.
In support of the views we have formal we will like to refer to some leading judgments on the issue. The first to be noted is Dr. Sher Bahadur Khan Panee Deputy Inspector General of Prisons, Northern Range, Peshawar v. The Govt. of West Pakistan, through the Chief Secretary, West Pakistan Government, Lahore (PLD 1956 Peshawar 77) (DB). In the said case services of a doctor were extended for one year by the Chief Minister, NWFP which was challenged before the learned High Court in a writ of quo warranto. The order did not state that it was being passed on public grounds. Before the learned High Court it was argued that doctor Saeed Ahmed was an efficient and competent doctor and in view of shortage of doctors his retention in service was justified. The argument was repelled with the following observations:--
"It will be futile to consider these grounds in relation to the retention of Dr. Saeed Ahmad in service, because they are not recorded in writing in the order of Sardar Bahadur Khan, and at the utmost it can be said that they are the invention of the clever brain of the learned counsel himself. In all probability these grounds did not ever occur to Sardar Bahadur Khan. In any case Grounds Nos. 1 and 2 would be the private grounds concerning Dr. Saeed Ahmad alone, as distinguished from "public grounds" mentioned in the rule in question. As regards the third ground, there is nothing on the record to show that there is any dearth of efficient and competent doctors in Pakistan, or if there is any, it can be removed effectively by retaining the services of Dr. Saeed Ahmad in the Medical Department. Surely, like everybody else in the world, Dr. Saeed Ahmad is also not indispensible. The order of his retention in service, thus, is without jurisdiction, and must be held as void in law".
"It was contended that as in the present case the President was the rule-making authority and as he passed an order which was strictly not in accordance with the relevant rule, it should be presumed that, for the purpose of this case, the President had amended the rule which, therefore, should not be considered to stand in the way of his order. With all espects, we venture to think that this interpretation will violate the sanctity of rules."
The aforesaid two cases have been referred by us to demonstrate that the discretion of even the highest state functionary is circumscribed by law and as against their whims or liking, compulsion or expediency it is the will of the legislature which is to prevail. Unless those in authority starting from the top are willing to surrender their will to the rule of law, the latter will remain confined to the causality ward. The public functionaries, who are responsible to process these cases either do not have adequate time to examine the rules properly or the courage to post the competent authority i.e. President or the Prime Minister or the Chief Minister with the correct legal position.
As to the question whether mere warrant is sufficient, we will like to refer to Muhammad Azam Malik v. Ghulam Murtaza Buttar and 3 others (1993 PLC (CS) 253), a judgment of the learned Lahore High Court. In this case the appointment of an officer in Faisalabad Development Authority in BS-18 and 19 was called in question. The learned High Court had interfered with the following observations:--
"It is true that the appointment of staff of the Authority and their promotion falls within the exclusive power of the authority and the officers who have been delegated with such power, but where a person is recruited in violation of the statutory rules on the subject, writ of quo warranto is available".
"Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not" (emphasis supplied).
We have considered the request of learned counsel that Petitioner No. 2 may be allowed to complete his tenure which will expire on 8.10.2006. Such a course was adopted by the learned Lahore High Court in the case A.R. Azar Supra. In the said case, while the writ petition decided on 22.11.1956 the extended tenure of the officer was to expire on 30.11.1956 (i.e. after 8 days). However, in this case, a period of four months is still there for completion of the extended tenure of the Petitioner No. 2. Further, the writ petition was filed by Mushtaq Ahmad and Tahir Raza but before this Court only Tahir Raza, has been impleaded. Moreover, even Tahir Raza, is not before this Court at this stage. Keeping in view the aforesaid circumstances, we are not inclined to allow the request made.
For what has been stated above, we do not find any merit in this petition which is dismissed. Leave declined.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 SC 91
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
Dr. NOSHEEN QAMAR--Petitioner
versus
SHAH ZAMAN KHATTAK and another--Respondents
C.P. No. 132-P of 2003, decided on 30.5.2006.
(On appeal from the judgment dated 25.11.2002 passed by High Court of Peshawar in WP No. 1321/2000).
Muslim Family Courts Act, 1964--
----S. 10--Constitution of Pakistan, 1973, Art. 185(3)--Power of Court in Khula--Held: Family Court can dissolve the marriage on the ground of Khula at the pre-trial hearing but in that case the wife would not be entitled to dower--Leave granted. [Pp. 93 & 94] A & B
Mr. Ajmal Khan, ASC Mr. M. Zahoor Qureshi, AOR for Petitioner.
Mr. Abdul Sattar Khan, ASC for Respondents.
Date of hearing : 23.5.2006.
Order
Syed Jamshed Ali, J.--The petitioner, a disillusioned wife, seeks leave to appeal against the judgment dated 25.11.2002 of the learned Peshawar High Court. She has been liberated from the marital tie but at the cost of her dower amounting to Rs. 200,000/-. She had filed a composite suit claiming dower, articles of dowery, maintenance and had also sought dissolution of marriage on the ground of physical and mental cruelty, non payment of maintenance, non performance of conjugal rights and also that he had taken another wife without petitioner permission. Her claim to dower, besides a cash component of Rs. 200,000/-, was 15 tolas of gold ornaments and half share in house on Plot No. 423 situated in the Armoured Colony, Manki Road, Nowshera. The respondent-husband had also filed a suit for restitution of conjugal rights. His defence to the suit of the petitioner-wife was that despite his best efforts, the petitioner was not prepared to perform her conjugal obligations and wanted him to live in the house of her father. As far as claim of the petitioner-wife to the cash dower is concerned, the position taken by the respondent in the written statement, was that the dower was only 15 tolas of gold ornaments which were given to the petitioner at the time of marriage. It is significant to note here that he did not own that amount of Rs. 200,000/- and half share in the house aforesaid was settled as dower, although the Nikah nama so clearly recited.
As far as 15 tolas of gold ornaments and the share in the house is concerned, the observation of the learned trial Court was that the petitioner may file suit in the Civil Court for recovery thereof. The learned trial Court while granting decree for dissolution of marriage did not so state that the basis thereof was "khula".
As far as decree for dower of Rs. 200,000/- is concerned, the respondent filed an appeal before the learned District Court, which we were informed, is pending. However, as far as decree for dissolution of marriage is concerned, the respondent challenged the same in Constitutional Petition No. 1321/2000. At the time of hearing, he confined the challenge to the decree to the extent of dower money on the plea that the marriage had been dissolved on the ground of "khula", therefore, the petitioner was not entitled to the dower amount. The plea of the respondent husband was sustained vide the impugned judgment. It was also observed that the petitioner had not challenged finding on Issue No. 9 regarding cruelty.
The learned counsel for the petitioner vehemently contended that the learned High Court misread the record in-as-much-as that the trial Court while answering Issue No. 9 against the petitioner had not recorded its reasons and the High Court did not consider the evidence. It is also vehemently contended that dower money is not a benefit arising out of marriage and, therefore, could not have been forfeited by the learned High Court. It is next maintained that in fact the learned High Court has set aside the decree for dower, although appeal of the respondent was pending before the learned District Court.
On the other hand, the learned counsel for the respondents has placed reliance on the finding on Issue No. 9, the reasoning of the learned trial Judge as well as the learned High Court to contend that in the circumstances there could not be any other inference except that learned trial Court had dissolved the marriage on the ground of "khula". He relied upon Mst. Khurshid Bibi Vs. Baboo Muhammad Amin (PLD 1967 SC 97), Mst. Balqis Fatima Vs. Najm-ul-Ikram Qureshi (PLD 1959 (W.P.) Lahore 566) and Muhammad Siddiq Vs. Mst. Ghafuran Bibi (PLD 1971 SC 192).
We have considered the submissions made by the learned counsel for the parties and have carefully gone through the record.
We will like to observe that Section 10 of the Muslim Family Courts Act, 1964 was amended on 1.10.2002 which empowers the Family Court to dissolve the marriage on the ground of khula at the pre-trial hearing but in that case, the wife would not be entitled to dower. However, in this case, the decree was passed on 16.5.2000. Therefore, that amendment not being retrospective will not apply.
After hearing the learned counsel for the parties and our own study of the subject, which we found fascinating, we are of the view that, inter alia, the following questions arise in this case for determination:--
(i) Whether the finding of the learned trial Court that Issue No. 9 was not proved was not in accordance with the evidence on the record and the reasoning of the learned trial Court itself;
(ii) Whether in the circumstances of the case could it not be said that the learned trial Court had not dissolved the marriage on the ground of "Khula "?
(iii) Whether the learned High Court did not err in law by observing that the petitioner had not challenged finding on Issue No. 9, because the decree was in her favour which she could, under Rule 22 of Order XLI of the Code of Civil Procedure, defend even on the ground decided against her?
(iv) Whether the following principle was not attracted in the facts and circumstances of the case?:--
"If the wife has been compelled by the ill-treatment of the husband to seek for a divorce, it is unlawful for him to take an indemnity. And if the man has forced the woman to accept the khula, a talak will take place without any liability to pay the indemnity ".
(Radd-ul-Mukhtar Vol. II, P. 928 noted by Syed Ameer Ali in Mohammedan Law Vol. II, Re-print 1965 at page 469).
(v) Whether dower is not a benefit arising out of marriage to be restored to the husband in case of dissolution of marriage on the ground of "Khula " and whether rule laid down in Mst. Saiqa Vs. Addl. District Judge etc. (PLJ 2003 Lahore 309) and Manawar Iqbal Satti Vs. Mst. Uzma Satti and 2 others (PLJ 2003 Lahore 760) propounds correct law?
(vi) Whether in the absence of specific demand by the respondent for indemnity in the form of waiver of the cash dower of Rs. 200,000/- the learned High Court could grant him the indemnity and whether the rule laid down in Mukhtar Ahmad Vs. Mst. Ume Kalsoom and another (PLD 1975 Lahore 805) and Noor Muhammad Vs. Judge, Family Court, Burewala, District Vehari and another (PLD 1989 Lahore 31) does not lay down the correct law?
(vii) Whether the decree of cash dower could be collaterally impeached before the High Court during pendancy of appeal before the District Court?
(Fouzia Fazal) Leave granted.
PLJ 2007 SC 94
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
FAIZUM alias TOOR--Petitioner
versus
NANDER KHAN & others--Respondents
C.P. No. 538-P of 2001, decided 9.5.2006.
(On appeal from the judgment dated 30.10.2001 passed by the Peshawar High Court in WP 61/2001).
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 4--Limitation Act (IX of 1908), Art. 181--Constitution of Pakistan, 1973, Art. 185(3)--Particulars of fraud--Held: Particulars of fraud were required to be given to overcome the bar of limitation but were not given in the application--Particulars of fraud must be fully described and established by the cogent evidence. [P. 95 & 96] B & C
(ii) Limitation Act, 1908 (IX of 1908)--
----Art. 181--Civil Procedure Code (V of 1908), S. 12(2)--Constitution of Pakistan, 1973, Art. 185(3)--Limitation in fraud--Duty of Court--Held: Limitation for an application of fraud was three years--There was no waiver of question of limitation and even if the parties did not point it out, it was the duty of the Court to apply the law of limitation where it was found to be applicable--Petition dismissed. [P. 95 & 96] A & D
Syed Asif Shah, ASC and Syed Safdar Hussain, AOR for Petitioner.
Nemo for Respondent.
Date of hearing: 9.5.2006.
Order
Ch. Ijaz Ahmed, J.--In the suit filed by the Respondents Nos. 1 and 2, a consent decree was passed on 30.3.1971. The petitioner filed an application on 20.1.1986 under Section 12 (2) of the Code of Civil Procedure for recalling of the said decree on the ground of fraud. This was dismissed by the learned trial Court vide order dated 3.5.2000 which was affirmed by the learned District Judge and ultimately by the learned High Court vide order dated 30.10.2001. The petitioner seeks leave to appeal against the said order.
The learned counsel for the petitioner contends that the suit was decreed on the day on which it was filed and mutation was also attested on the same day (not so stated in the aforesaid application). The other grievance is that in the first round of litigation, the case was remanded by the learned High Court in CR No. 250 of 1993 decided on 15.2.1994 for comparison of the thumb impressions of the petitioner on the Wakalatnama and the compromise. Although the expert submitted the report but it was not clear and determinative. Accordingly the petitioner made a request for the expert being summoned for examination in the Court but it was declined and even the request for issuing interrogatories for examination of the expert was refused. When questioned whether the application made was within time, his contention was that limitation will start from the date of discovery of the fraud and it was so stated in the application that only one month preceding filing thereof, the petitioner came to know of the fraud. He maintains that the application of the petitioner was not dismissed by the Courts below on the ground of limitation. Reliance has been placed on Allah Bakhsh and others v. Mst. Irshad Begum and others (1986 SCMR 1496).
The submissions made by the learned counsel for the petitioner have been considered. Undisputedly limitation for an application under Section 12 (2) CPC is governed by Article 181 of the Limitation Act which is three years. In fact, the petitioner was seeking extension of limitation under Section 18 of the Limitation Act on the ground of fraud. We have carefully perused the application. The averment in Para 2 is reproduced hereunder:--
The particulars of the fraud were required to be given under Rule 4 of Order VI of the Code of Civil Procedure to overcome the bar of Limitation but were not given in the application. In fact, in accordance with the dictum laid down by the Privy Council in Bal Gangadhar Tilk and others v. Shrinivas Pandi and others (AIR 1915 P.C. 7), the application did not even disclose any cause of action. The rule laid down therein was reiterated in Ghulam Shabbir v. Mst. Nur Begum & others (PLD 1977 SC 75). The judgment relied upon by the learned counsel for the petitioner proceed on its own facts and are not applicable to the instant case which is governed by the rule laid down by this Court in Izzat Bakhsh v. Nazir Ahmad and 13 others (1976 SCMR 508). In the said case time was sought to be extended under Section 18 in a suit for pre-emption with the averment that the plaintiffs did not come to know of the sale-deed as the same was registered in another district. This Court, will repelling the plea, observed that the averment did not qualify for extension of limitation, under Section 18, particulars of the fraud must be fully described by the plaintiff and established by the cogent evidence.
As far as the contention of learned counsel that the application was not dismissed on the ground of limitation is concerned, as held by this Court in Ahsan Ali vs. District Judge and others (PLD 1969 SC 167), there is no waiver of the question of limitation and even if the parties do not point it out, it is the duty of the Court to apply the law of limitation where it is found to be applicable.
We have, however, noticed that even on merits, the petitioner had no case for the reason that PW2, the learned counsel of the petitioner, before the trial Court, affirmed the thumb impression of the petitioner on the compromise as well as on the Wakalatnama. The learned counsel had not much to say as to why the statement of his own learned counsel examined as a witness should be discarded.
In view of the categorical statement of PW2, non-examination of the expert in the Court, although his report was against the petitioner, was not of any material consequence. We, therefore, see no infirmity or illegality in the impugned order. This petition is, accordingly, dismissed and leave refused.
(Fouzia Fazal) Petition dismissed.
PLJ 2007 SC 97
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
FAZAL WADOOD--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 87-P of 2005, decided on 7.6.2006.
(Against the judgment dated 28.6.2005 passed by the Peshawar High Court, Peshawar, in Crl. A. No. 526/2004).
(i) Constitution of Pakistan, 1973--
----Art. 185(3)--Concurrent findings--Principle of consistency--Held: As an ultimate Court, must give weight and consideration to the findings of Courts below and ordinarily it should not disturb their findings unless these are unreasonable or had arrived at in disregard to any accepted principle of appreciation of evidence--Supreme Court might take a different view of evidence should not be sufficient to over rule the findings of lower Courts--However if the grounds upon which High Court had acted are not supported by record, decision on a question of fact had turned upon inadmissible evidence or upon a faulty reading of evidence or where there had been departure from due procedure in the reception of evidence or otherwise, then interference by Supreme Court would be justified and necessary. [Pp. 98 & 99] A
(ii) Criminal Trial--
----Retracted confession--Held: If an accused makes an allegation that his confession was false or was made under mental stress, threat, duress or inducement, it may qualify as a retracted confession--Accused disowned having made a confessional statement suggesting thereby that Magistrate had fabricated the record--No such suggestion was put to Magistrate who recorded the confession--The confession was not even retracted and so was sufficient to sustain capital punishment. [P. 100] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 91--Voluntary nature of confession--If confession is proved beyond any shadow of doubt to be voluntary it provides effectual proof--Confession which was recorded in accordance with law, is presumed to be a genuine within the meaning of Art. 91 of the Qanun-e-Shahadat Order--Thus, it has to be treated as voluntary. [Pp. 100 & 101] C
PLD 1975 SC 160; PLD 1969 SC 89; PLD 1964 SC 813; PLD 2006 SC 30 and
1968 P.Cr.L.J. 569, ref.
Mr. Javed A. Khan, ASC & Mr. Fateh Muhammad Khan, AOR for Petitioner.
Pir Liaqat Ali Shah, A.G. NWFP for State.
Respondent No. 2 in person.
Date of hearing: 7.6.2006.
Order
Ch. Ijaz Ahmed, J.--The petitioner has sought leave to appeal against the judgment of the learned High Court dated 28.6.2005 wherein the punishment of death on two counts and other sentences awarded to the convict/petitioner for the murder of Akhtar Hussain and Mst. Hussain Zeba and for inflicting injuries on the person of Farman Ali complainant/PW7, were confirmed by the learned High Court in the impugned judgment.
The learned counsel for the petitioner submits that the statement of Farman Ali, PW 7, was recorded after three days inspite of the fact that he was discharged from the hospital on 4.5.2002 and this fact was not considered by the Courts below in its true perspective. He next submits that PW7 Farman Ali did not state in his statement that he had seen the actual occurrence. His statement is also not in consonance with the medical evidence and in fact medical evidence contradicts his evidence. He further urges that learned Courts below erred in law to award capital punishment to the convict/petitioner on the basis of the confessional statement which was not recorded in accordance with the law and denied by the convict/petitioner in his statement under Section 342 Cr.P.C. He maintains that there is no direct evidence to connect the convict/petitioner with the commission of offence and petitioner/convict was convicted on circumstantial evidence in the shape of his confession, abscondance, medical evidence and recovery of T.V. and VCP. He urges that Akhtar Hussain deceased aged 6/7 was allegedly thrown in a drum which was not recovered and produced by the prosecution which created doubt qua the story of the prosecution. He contends that the medical evidence belied the confession and in the circumstances extracting the maximum penalty was not warranted and punishment of life imprisonment would meet the ends of justice.
The learned Advocate General supported the judgment and submitted that confessional statement was recorded immediately after the arrest of the petitioner which was rightly relied upon by both the Courts below that it was voluntarily. Both the Courts below have considered the evidence on record with judicial application of mind. This Court, ordinarily, does not interfere in the concurrent conclusions arrived at by the Courts below. He urged that if the Court is satisfied that judicial confession is voluntary, it by itself was sufficient to award capital punishment. Reliance was placed on Manjeet Singh v. The State (PLD 2006 SC 30).
The submissions have been considered. Both the Courts below have concurrently found petitioner guilty after proper appreciation of
evidence on record. The principle of consistency enunciated by this Court is that as an ultimate Court, it must give due weight and consideration to the findings of the Courts below and ordinarily it should not disturb their findings where it is satisfied that these are reasonable and were not arrived at in disregard of any accepted principle regarding appreciation of evidence. The mere fact that the Supreme Court might take a different view of the evidence should not be sufficient to over rule the findings of the Courts below. However, if the grounds upon which the High Court has acted are not supportable on the record, or the decision on a question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence, or where there has been a departure from due procedure in the reception of evidence or otherwise, which is calculated to interfere with the due or safe administration of justice, then interference by this Court would be justified and necessary. See Syed Mushtaq Ahmad v. Siddiquiullah and others (PLD 1975 SC 160).
(a) Medical evidence.
(b) Recoveries meant for electrocution.
(c) Confessional statement.
(d) Abscondance.
(e) Recovery of T.V. and VCP alongwith two video cassettes.
"I have not made any confessional statement nor any legal formality was observed for the so called confessional statement allegedly recorded by PW-1".
"Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to actupon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true".
"We have also noted that independent persons like Murad Ali P.W.5, Taj Muhammad P.W.9 and Sakhawat Gul P.W.10 have furnished evidence in support of prosecution case. ................. In the instant case on the facts and circumstances like confessional statement, the testimony of P.W. Farman Ali and the recoveries read with the medical evidence we have no doubt at all that the abscondance of the appellant provide the necessary corroboration and thus it bears upon guilt of the appellant".
"This is settled law that a retracted confession either judicial or extra-judicial, if is found truthful and confidence inspiring and also qualifies the test of voluntariness, can be used for conviction without looking for any other sort of corroboration".
It is a settled law that if an accused, in his statement under Section 342 Cr.P.C., makes an allegation that his confession was false or was made under mental stress, threat, duress, or inducement, it may qualify as a retracted confession but in this case he disowned having made a confessional statement before the Magistrate suggesting thereby that a judicial officer had fabricated the record. It was not even so suggested to PW.1 the Magistrate, who had recorded the confession. The petitioner was patently lying. Thus, the confession was not even retracted and standing by itself is sufficient to sustain capital punishment.
In the instant case PW1 who had recorded the confession of the petitioner has testified as to voluntary nature of the confession. If confession is proved beyond any shadow of doubt to be voluntary it provides effectual proof. The confession which was recorded in accordance with the law, is presumed to be a genuine within the meaning of Article 91 of the Qanun-e-Shahadat Order, 1984. Thus, it has to be treated as voluntary. See Hari Pada Debneth vs. The State (1968 P.Cr.L.J. 569). This is without prejudice to the observations in the preceding paragraph.
We may add that in the circumstances abscondance of the petitioner also provides sufficient corroboration, See Muhammad Din's case (1976 SCMR 185) & Gul Hassan's case (PLD 1969 SC 89). The prosecution case is very straightforward. The parties are closely related to each other, therefore, question of substitution does not arise.
Accordingly, the petition has no merit and the same is dismissed. Leave refused.
(Javed Rasool) Leave refused
PLJ 2007 SC 101
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
ABDUL AHAD--Petitioner
versus
AMJAD ALI & others--Respondents
Crl. P. No. 17-P of 2006, decided on 17.5.2006.
(On appeal from the judgment dated 16.1.2006 passed by the Peshawar High Court in Crl. M.Q.P. 200/2005).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 419, 420, 468, 471, 109 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal, refused--Proceedings were stayed--Assailed--Validity--Criminal proceedings should be stayed pending the decision of civil suit but the matter was one of discretion entirely--Guiding principle should be to see as to whether the accused was likely to be prejudicial if the criminal proceedings were not stayed in case of dispute regarding title where it was difficult to draw a line between a bonafide claim and the criminal action--All the Courts below had exercised discretion in favour of the respondent keeping in view the guiding principles laid down by the Superior Courts--No infirmity or illegality was found in the impugned judgment--Petition dismissed. [Pp. 102 & 103] A
PLD 1968 SC 281 and 1971 PCr.LJ 331.
Mr. Afridi Khan, ASC and Mir Adam Khan, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 17.5.2006.
Order
Ch. Ijaz Ahmed, J.--The petitioner has sought leave to appeal against the judgment of the learned Peshawar High Court dated 16.1.2006 through this petition.
The brief facts out of which the present petition arises are that petitioner filed a complaint before Ilaqa Qazi under Sections 419/420/468/471/109/34 PPC. The respondent filed application for stay of the proceedings on the ground that civil suit had already been filed before the competent Court which was pending adjudication. The Qazi concerned stayed the proceedings vide order dated 18.10.2004 which was upheld up to the level of the learned Peshawar High Court vide impugned judgment dated 16.1.2006.
The learned counsel for the petitioner submits that learned Courts below erred in law to stay the proceedings without adopting the proper procedure as prescribed by the Code of Criminal Procedure.
We have heard the learned counsel for the petitioner and perused the record. The learned Peshawar High Court had considered the contentions of learned counsel of the petitioner and rejected the same as is evident from para 3 of the impugned judgment which is reproduced hereunder:--
"Admittedly, the suit house is not the exclusive ownership of the petitioner. He is owner of the house in question alongwith his brother Ghulam Rabbani. Instalment of electricity meter is not a title deed. Abdul Samad, father of the petitioner and Ghulam Rabbani, is alive and he has tendered an affidavit in Court that he has given this house to Abdul Ahad, the present petitioner, and his brother Ghulam Rabbani and that there was a tussle over the electricity expenses. So in order to avoid the same, Ghulam Rabbani, the other brother/owner through respondent Amjad Ali installed another meter in the said house. Moreover, a civil suit regarding ownership is pending in a competent forum. So keeping in view the facts and circumstances of the case, the orders of the two Courts below need no interference and the quashment petition in hand having no legal force is hereby dismissed in limine".
There is now consensus of opinion that there is no invariable rule that a criminal proceeding should be stayed pending the decision of civil suit but the matter is one of discretion entirely. While exercising discretion the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceedings are not stayed in case of dispute regarding title where it is difficult to draw a line between a bonafide claim and the criminal action. All the Courts below had exercised discretion in favour of the respondent keeping in view the guiding principles laid down by the superior Courts. See Muhammad Akbar v. The State (PLD 1968 SC 281), Sheikh Ahmad vs. Sheikh Muhammad Younis (1971 P.Cr.L.J. 331) and Mansharam Madhavadas v. Chetanram Rupchand and others (AIR 1945 Sindh 32).
We do not find any infirmity or illegality in the impugned judgment. Therefore, the petition being devoid of any merit is hereby dismissed. Leave refused.
(Aliya Sattar Chaudhry) Leave refused
PLJ 2007 SC 103
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
MAQBOOL AHMAD & another--Appellants
versus
STATE--Respondent
Crl. A. No. 28 of 2006, decided on 9.8.2006.
(On appeal from the judgment dated 30.9.1997 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 3 of 1997).
Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (VII of 1979)--
----S. 10(3)(4)--Anti-Terrorism Act (XXVII of 1997), S. 38--Constitution of Pakistan, 1973, Art. 12--Conviction and sentence awarded to appellant, assailed--Quantum of sentence--Punishment of the offence was imprisonment for a term which could extend to 25 years and whipping numbering thirty stripes--Section 10(4) of the Ordinance was introduced in 1997 and hence no punishment could be awarded under the said section, being in glaring violation of Art. 12 of the Constitution--Objection regarding the conduct of trial by special Court under Anti-Terrorism Act, 1997 was unfounded--Any person accused of having committed an offence before the commencement of Anti-Terrorism Act, 1997 could be tried by the Court constituted under the Anti-Terrorism Act, 1997 but punishment awarded would be in accordance with law prevailing at the time when the offence was committed--Trial by Anti Terrorism Court was in accordance with law, protected by Section 38 of Act, 1997--Section 38 of the Anti-Terrorism Act, 1997 r/w. Art. 12 of the Constitution would certainly render the punishment awarded u/S. 10 (4) of the Ordinance, void ab initio, with reference to the date of occurrence and the date of insertion of S. 10(4) in the Ordinance--Consequently, appeal partially accepted and imprisonment for life awarded to the accused was reduced.
[Pp. 104 & 105] A, B & C
Hafiz Hifz-ur-Rehman, ASC for Appellants.
Mr. Dil Muhammad Tarar, ASC for Advocate General Punjab for Respondent.
Date of hearing: 9.8.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Maqbol Ahmed and Riaz Ahmed, the convicts under Section 10(4) Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979, sentenced to life imprisonment and a fine of Rs. 10,000/- each, etcetera, have filed this appeal where leave was granted on 27.1.2006 by this Court to consider the quantum of sentence alone.
Both were tried and convicted for committing zina-bil-jabr liable to tazir with Mst. Naseem Begum aged 16/17 with reference to FIR # 240 dated 5.6.1997 of Police Station City Pakpattan. The charge was framed under Section 10(4) of the Ordinance and the trial was conducted by Anti Terrorism Court No. II, Multan.
Learned counsel for the petitioners made two-fold submission. One that the trial could not be conducted by the Anti Terrorism Court constituted in August 1997 and second that the accused could not be charged and convicted under Section 10(4) of the Ordinance, for the section is introduced through amendment in December 1997.
In the instant case the offence has taken place on 5.6.1997 when, according to Section 10(3) of Ordinance VII of 1979 the punishment of the offence was imprisonment for a term which could extend to 25 years and whipping numbering thirty stripes. So far as Section 10(4) of the Ordinance is concerned, it was introduced in December 1997 and hence no punishment could be awarded under the said section, being in glaring violation of Article 12 of the Constitution.
The objection regarding the conduct of trial by Special Court under Anti Terrorism Act 1997, is unfounded. Any person accused of having committed an offence before the commencement of Anti Terrorism Act of 1997 could be tried by the Court constituted under the Act but the punishment awarded shall be in accordance with law prevailing at the time when the offence was committed; provided the offence otherwise constituted a Terrorist Act. We are of the considered view that the trial by Anti Terrorism Court was in accordance with law, protected by Section 38 of the Anti Terrorist Act 1997. However, Section 38 of the Act read with Article 12 of the Constitution would certainly render the punishment awarded under Section 10(4) of the Ordinance void ab initio, with reference to the date of occurrence and the date of insertion of Section 10(4) in the Ordinance.
Consequently, while partially accepting the appeal, the imprisonment for life awarded to the appellants is reduced to imprisonment for a term which shall extend to 20 years with the infliction of 30 stripes each and a compensation of Rs. 50,000/- each under Section 544-A Cr.P.C., to be paid to the victim.
(Aliya Sattar Chaudhry) Appeal accepted
PLJ 2007 SC 105
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ.
AMANULLAH--Petitioner
versus
STATE--Respondent
Jail Petition No. 340 of 2005, decided on 14.6.2006.
(Against the judgment/order dt. 14.6.2005 passed by Peshawar High Court, Peshawar in Crl. Appeal No. 829/2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence--Raising of same contention which were raised before High Court--Confession--Corroboration by motive, recovery of pallets from dead body noticeable absconsion for five years--High Court maintained conviction on basis of confessional statement of petitioner which was found to have been corroborated by motive, recovery of pallets from dead body, noticeable absconsion for five years and report of Fire Arms expert--Held: Not fit case for re-appraisal of evidence--Petition dismissed.
[P. 106] A
Mr. Zulfiqar Khalid Maluka, ASC for Petitioner.
Mr. Muhammad Naeem Sheikh, ASC for State.
Date of hearing: 14.6.2006.
Order
Ch. Ijaz Ahmed, J.--The petitioner was convicted under Section 302(b) PPC and sentenced to death alongwith compensation of
Rs. 1,00,000/- to be paid to the legal heirs of the deceased or in default to suffer 2 years S.I. for the murder of Yasin Khan vide judgment dated 15.10.2004 passed by the learned Additional Sessions Judge/District Qazi Swat. Benefit of Section 382-B was also extended to the petitioner-convict. His conviction was maintained by the learned High Court but the sentenced was altered to life imprisonment with benefit of Section 382-B Cr.P.C. The direction for compensation was maintained.
Learned counsel for the petitioner submits that presence of PW4, Mst. Bakht Meena was not present at the place of occurrence and her statement was not believed by the learned High Court as is evident from para 9 of the impugned judgment. That confessional statement of the petitioner was recorded without observing legal formalities. That the recovery of crime weapon at the instance of the petitioner has become doubtful because in the confession he has mentioned that the crime gun was recovered earlier by the police two years after the occurrence and the present gun sent with the crime empty was not the crime gun and this fact was not considered by the Courts below in its true perspective. That occurrence is un-witnessed and the confessional statement only is not sufficient to convict the petitioner for commission of the offence. The petitioner was arrested on 14.9.2003 and his confessional statement was recorded allegedly on 18.9.2003 after 4 days and this fact was not considered by the Courts below in its true perspective.
Learned counsel for the respondent has supported the impugned judgment.
We have considered the submissions and have carefully gone through the record. The learned counsel for the petitioner has raised the same contentions which were raised before the learned High Court which were rejected with cogent reasons as is evident from paras 12 to 15 of the impugned judgment. The learned High Court maintained the conviction on the basis of the confessional statement of the petitioner which was found to have been corroborated by the motive, recovery of the pallets from the dead body, noticeable absconsion for five years and report of the Fire Arm expert. In view of concurrent conclusions of the learned Courts, we do not find it a fit case for re-appraisal of the evidence.
Accordingly, this petition is dismissed. Leave refused.
(B.T.) Petition dismissed
PLJ 2007 SC 106
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Muhammad Nawaz Abbasi, JJ.
ABDUL RAUF--Petitioner
versus
STATE--Respondent
Jail Petition No. 36 of 2006, decided on 24.8.2006.
(On appeal from the judgment dated 14.12.2005 of the High Court of Balochistan, Quetta in Cr.A. No. 98 of 2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(a) & 324(b)--Conviction and sentence awarded to petitioner--High Court altered the conviction from 302(a) PPC to 302(b) PPC but maintained the death sentence--Testimony of complainant was found true convicining and trust-worthy by the Courts below--Supreme Court did not found any inherent defect in her evidence as she was subjected to lengthy cross-examination but nothing material was brought on record to doubt her veracity--Petitioner in his statement u/S 342 Cr.P.C.--While admitted motive in clear words that his younger sister was married to brother of deceased and complainant was not happy--Petitioner admitted his abscondence and was arrested after about seven months of the incident which is a strong corroborative piece of evidence against him--Defence witnesses are cooked one and are not trustworthy, their testimony rightly rejected--When prosecution case and the defence version are put in juxta position, the former seems to be true and reliable--In the event of proof of charge of Qatl-e-amd, normal penalty, under the law, is death and mitigating circumstances must be shown for award of lesser penalty--Leave to appeal refused.
[P. 111 & 112] A, B, C & D
Mr. Arshad Ali, Ch., ASC for Petitioner.
Mr. Mehmood Raza, Addl. AG Balochistan for State.
Date of hearing: 24.8.2006.
Judgment
Abdul Hameed Dogar, J.--This petition is directed against judgment dated 14.12.2005 passed by a learned Division Bench of High Court of Balochistan, Quetta whereby Criminal Appeal No. 98 of 2003 filed by petitioner Abdul Rauf was dismissed, his conviction was altered to 302(b) PPC, and sentence of death awarded by the trial Court was maintained as Tazir. His conviction and sentence under Section 324 PPC to seven years R.I. with direction to pay Rs. 100,000/- as Arsh to complainant was also maintained. Murder Reference No. 11 of 2003 forwarded by trial Court for confirmation of death sentence was answered in affirmative.
Briefly, stated the facts of the case are that on 9.2.1997 complainant Fouzia Ajmal lodged FIR No. 75/2000 at Police Station Satellite Town, Quetta stating therein that on the fateful day at about 10.30 p.m. petitioner came to her house and sat with her husband and started talking about his sister and brother in law. After serving tea she went to offer Isha prayer. She further stated that at that time her two minor daughters Paris and Hubab Faizeen were sleeping in their room whereas her servant Karim Tajik was present in the side room. Petitioner went to the bathroom as soon as she finished her prayer she saw petitioner coming out of bathroom carrying a silencer fitted pistol and fired at her husband, he also fired at her but pistol did not go off whereupon he inflicted pistol blow on her head due to which she fell down on sofa set, petitioner dragged her to kitchen by pulling her hairs where he took a knife and slew her throat due to which she became semi unconscious, thereafter petitioner went to the upper storey of the house and she head streams of her daughters. On gaining conscious she came out of the kitchen and saw dead bodies of Ajmal and Karim. She went to the upper storey where she found dead bodies of her daughters.
The motive behind the occurrence was that petitioner complained about the unhappiness of his sister to deceased Muhammad Ajmal who is brother of brother in law of petitioner who did not listen but instead insulted him.
After registration of case petitioner was not arrested and was declared as proclaimed offender. On 13.1.2001 petitioner was arrested and after usual investigation he was sent up to face trial.
On autopsy on the dead body of Muhammad Ajmal, on 23.4.2000, PW-10 Dr. Sarfraz Jamali, Medical Officer found the following injuries:
Circular wound of entrance 1 c.m. in diameter, on right side of epigastria region of abdomen;
Bid deep incised wound on right side of neck up back of right side of neck.
Bid deep incised wound on left side of anteriolateral aspect of neck.
Crush injury on occipital region of skull with brain matter out of bone fractured.
Multiple incised wounds on right ear and back of right ear.
On the same day, the said medical officer also found the following injuries on the dead body of Paras Faizeen:
Ligature mark (strangulation) present around the neck c.m. in width.
Ligature marks present around both wrist joints and ankle joints.
Face and lips are cyanosed. Forth present from mouth.
On the same day, the said medical officer also found the following injuries on the dead body of Hubab Faizeen aged 12 years:
Ligature Mark (strangulation) present around the neck cm in width.
Ligature marks present around both wrist joints and above both ankles.
Tongue slightly protruded.
Blood stains from both nostrils.
Face and lips are cyanosed.
Bruise 2 cm x 2 cm on right cheek blow eye, laterally.
On the same day, the said medical officer also found the following injuries on the dead body of Muhammad Karimullah son of Shairul Vakil:
Triangular lacerated wound 2 cm x 2 cm on right side of forehead.
Lacerated wound 2 c.m. x c.m. bone deep on left temporal region of skull.
Lacerated wound 2 c.m. x c.m. bone deep above Injury No. 2.
Ligation mark around the neck, c.m. in width.
Six lacerated 3 wounds on occipital region of skull, all are bone deep 6 c.m. x c.m. to 8 c.m. x 1 c.m. in circumference bone is clinically fractured.
Three lacertrated wounds on dorsal aspect of right hand 2 to c.m. in circumference.
Face is swellen.
On the same day, the medical officer also medically examined injured Fouzia Ajmil and noted the following injuries on her person:
Incised wound about 3 c.m. x c.m. muscle deep, blood stained on back of right wrist joint with two parallecusts.
Lacerated wound on left side of forehead 3 c.m. x c.m. deep up to bone blood stained.
Incised wound on right anterilateral aspect of neck 7 cm. muscle deep, blood stained.
Three lacerated wounds, 1 c.m. c.m. muscle deep with swelling each with on dorsal aspect of left hand.
Incised wound between thumb and index finger of right hand
1 c.m. x c.m. muscle deep blood stained.
Lacerated wound 4 c.m. c.m. muscle deep blood stained on middle of frontal region of skull.
Incised wound on left occipital region of skull behind left ear, 2 c.m. x c.m. muscle deep blood stained.
Incised wound parallel to Injury No. 7, 1 c.m. x c.m. muscle deep.
Big incised wound on back of left side of neck 10 c.m. x 1 c.m. with bleeding.
Z shaped lacerated wound 5 c.m. x c.m. deep upto bone, blood stained on left parietal region of skull.
Incised wound parallel to Injury No. 9, 10 cm x c.m. muscle deep, blood stained.
Crush injury on occipital region of skull, 12 c.m. x 3 c.m. deep upto bone.
Lacerated wound on left occipital region of skull 4 c.m. x c.m. deep upto bone, blood stained.
Circular wound 1 c.m. in diameter on right arm, with echymosis and two small circular back cuts.
Lacerated wound (gun shot) with black margins on lateral aspect of right side of chest, lateral aspect of right breast 2 c.m. x 1 c.m. in diameter.
Lacerated wound blow Injury No. 15, 3 c.m. X c.m. muscle deep.
Lacerated wound below Injury No. 16, 2 c.m. x c.m. muscle deep.
In order to prove its case prosecution examined 15 witnesses in all.
The petitioner in his statement recorded under Section 342 Cr.P.C. denied the case of prosecution and claimed innocence. He did not opt to give statement on Oath as required under Section 340(2) Cr.P.C. but produced Tahir Naeem (DW-1), Dr. Abdul Sattar (DW-2) and Sabeel Rehman (DW-3) in his defence.
On conclusion of trial, petitioner was convicted and sentenced under Section 302(a) PPC to death. He was also convicted and sentenced under Section 324 PPC for causing injuries to complainant and to suffer seven years R.I. He was also directed to pay Rs. 100,000/- as Arsh to the complainant.
On appeal, the learned High Court vide impugned judgment altered the conviction of the petitioner from 302(a) PPC to 302(b) PPC but maintained the death sentence.
We have heard Mr. Arshad Ali Ch., learned ASC on behalf of petitioner and Mr. Mehmood Raza, Addl. AG Balochistan on behalf of State and have gone through the record and proceedings of the case in minute particulars.
It is mainly contended by learned counsel for the petitioner that the impugned judgment is erroneous, untenable in law, unjust and is based upon conjectures and surmises. He further contended that FIR was prepared after deliberation and prosecution has not proved the case against the petitioner and benefit of the same has to be extended to the petitioner. The police has shown arrest of the petitioner from Quetta but he was actually arrested from Karachi which means that the prosecution version is not credible and showing false arrest of the petitioner from Quetta. He further contended that statement of sole witness was not properly appreciated by the learned trial Court as well the learned High Court which resulted in miscarriage of justice. He also stated that murder of four persons shows that the number of culprits was more than one and possibility cannot be ruled out that the eye witness might have been screening someone by putting whole blame on the petitioner. He further contended that there is contradiction between the ocular and medical evidence. He stated that broken wrist watch and pair of spectacles show that a scuffle took place between the culprits and the deceased but nothing has been brought on record in this regard. Pistol and empties were sent to fire-arm expert after one year and two months, as such, report of fire-arm has lost its evidentiary value. He lastly contended that in the facts and circumstances of the case the death sentence is harsh and requires to be altered to imprisonment for life.
On the other hand Mr. Mehmood Raza, Addl. AG Balochistan supported the impugned judgment and stated that petitioner has acted in a brutal manner and committed murder of four persons and caused several injuries to complainant, therefore, does not deserve any leniency in the sentence.
The prosecution in this case has been able to bring on record the testimony of complainant injured Fouzia Ajmal, who supported the case of prosecution as disclosed in the FIR and whose testimony was found true, convincing and trustworthy by the trial Court and upheld by learned High Court. We also did not notice any inherent defect in her evidence as she was subjected to lengthy cross-examination but nothing material was brought on record to doubt her veracity. Complainant who herself received injuries deposed that on the fateful day at 10.30 p.m. petitioner came to her house where her husband and other deceased were available. She while narrating the incident has categorically stated that petitioner not only committed murder of her husband Muhammad Ajmal but also caused murders of her daughters, namely, Paris and Hubab Faizeen and her servant Karim Tajik and also caused several injuries to her. She survived luckily and went to police station in semi unconscious position. It is explicit that petitioner in his statement under Section 342 Cr.P.C. while replying to Question No. 1 had admitted motive in clear words and stated that his younger sister was married to Afzal brother of deceased Muhammad Ajmal, and she was not happy, because she was not properly treated by her in laws. He has not given any explanation with regard to his false implication but produced statement in writing wherein he took the plea of alibi and stated that on 20.4.2000 he went to Waggan where he felt pain in his abdomen and was taken to Hospital where he remained admitted from 20.4.2000 to 24.4.2000 and was arrested from Gulf Hotel, Karachi on 7.1.2001. As such he admitted his abscondence and was arrested after about seven months of the incident which is a strong corroborative piece of evidence against him. The defence witnesses are cooked one and are not proved relevant or trustworthy, therefore their testimony was rightly rejected. When prosecution case and the defence version are put in juxta position, the former seems to be true and reliable and the latter is manipulated and managed one hence not relevant at all. In the event of proof of charge of qatl-e-amd, normal penalty under the law, is death and mitigating circumstances must be shown for taking a lenient view for the award of lesser penalty, which fact is lacking in the present case. Learned counsel for the petitioner though argued at length but could not point out any illegality, misreading or non-appraisal of evidence warranting interference in the impugned judgment. Since petitioner has committed murder of four innocent persons as such he was rightly convicted and sentenced to death on four counts. Irrespective of above, his conviction and sentence under Section 324 PPC to 7 years R.I. for causing injuries to complainant is also maintained.
Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(Malik Sharif Ahmed) Leave refused
PLJ 2007 SC 112
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
GHULAM MUHAMMAD and others--Petitioners
versus
GOVERNMENT OF BALOCHISTAN and others--Respondents
C.P. No. 111-Q of 2005, decided on 31.7.2006.
(On appeal from the judgment dated 15.8.2005 of the High Court of Balochistan, Quetta passed in Civil Revision No. 400/1996).
Constitution of Pakistan, 1973--
----Art. 185(2)(d)(e)--During pendency of petition for leave to appeal, CMA was filed instead of filing appeal, leave to appeal was filed within limitation--CPLA having been entertained by the office without any objection, so the delay in seeking for conversion of CPLA as a direct appeal deserves to be condoned--Held: Entertaining the petition for leave to appeal though not maintainable and incompetently filed by the office without objection was not the sole factor and reason for condoning the delay for conversion of the petition into direct appeal but simultaneously the other factors and the circumstances of each case were taken due notice of and considered for condoning the delay in entertaining the request for conversion of the petition into direct appeal which as well depended upon showing of sufficient cause, bona fide error or misconception of law and confusion; recklessness and negligent conduct, if any; as the case may be--AOR is a senior counsel, who without taking due notice of the fact that vide impugned Judgment the decree of the learned first appellate Court being immediately below the High Court was set aside and, the value of the subject matter of the dispute was admittedly not less than 50000/- directly appealable to Supreme Court u/A. 185(2)(d)(e) of the Constitution--Held: Error in filing the petition for leave to appeal on his part was not negligent or reckless, therefore, the same could not be condoned lightly merely because the office entertained the petition for leave to appeal without objection--Sufficient cause have to be shown for condonation of delay. [Pp. 115 & 116] A, B & C
1992 SCMR 1202; 2006 SCMR 504; 2003 SCMR 875; 2005 SCMR 1371 ref.
Syed Ayaz Zahoor, ASC and Mr. M.W.N. Kohli, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 31.7.2006.
Judgment
Raja Fayyaz Ahmed, J.--Through this petition, leave to appeal has been sought for by the petitioners/plaintiffs from a consolidated judgment dated 15.8.2005 passed by the learned Single Judge in Chambers, High Court of Balochistan, Quetta, whereby Civil Revisions Nos. 400/1996 and 121/1997 filed by Respondent No. 1, Government of Balochistan and Respondent No. 4, Hub Power Company Limited have been accepted and the judgment and decree dated 20.11.1996 passed by the Majlis-e-Shoora/First Appellate Court decreeing the suit of the petitioners in their favour, was set aside.
In the final round of litigation, the suit instituted by the petitioners and their mother (since dead), being Civil Suit No. 22/1989 filed initially against Respondents Nos. 2 and 3 i.e. Collector, District Lasbella and Tehsildar Hub, Lasbella for declaration and permanent injunction, in respect of the suit property in which subsequently the Government of Balochistan and Hub Power Company Limited were impleaded as defendants, was dismissed by the learned Qazi, Lasbella at Uthal vide judgment and decree dated 13.9.1995, which was assailed by the petitioners in appeal before the learned Masjlis-e-Shoora, Khuzdar/First Appellate Court. The learned appellate Court vide judgment and decree dated 20.11.1996 set aside the decree of the learned trial Court and decreed the suit in favour of the petitioners/plaintiffs by accepting their appeal, which was assailed separately by Respondents Nos. 1 and 4 separately in the above said Civil Revisions before the learned Single Judge of the High Court of Balochistan Quetta. The revision petitions filed by the said respondents have been accepted by the common judgment, which has been impugned through the instant petition.
During pendency of his petition for leave to appeal, CMA No. 57-Q/2006 was filed on 25.4.2006 on behalf of the petitioners by their learned AOR praying therein that due to inadvertence mistakenly instead of filing appeal, petition for leave to appeal was filed within the prescribed period of limitation, against the judgment impugned herein due to bona fide mistake and misconception of law, as well as; CPLA having been entertained by the Office without any objection, so the delay in seeking for conversion of CPLA as a direct appeal deserves to be condoned.
The learned ASC for the petitioners has been heard. It has mainly been argued that CPLA was filed against the impugned judgment within the prescribed period of limitation and the same was entertained without any objection by the Office. According to the learned counsel under a bona fide error petition for leave to appeal was filed, although; appeal was directly competent against the impugned judgment, whereby the judgment and decree of the First Appellate Court being immediately below to the High Court was reversed, therefore, the delay in making the request for treating the petition as direct appeal against the impugned judgment is condonable on the grounds urged in the Misc. Application and the petitioners in the given circumstances of the case on account of the contributory factors may not, in the ends of justice be non-suited. The learned counsel in support of his contentions and to supplement his view point has placed reliance on the reported judgments of this Court i.e. (1) Chairman, NWFP Forest Development Corporation and others v. Khursheed Anwar Khan and others (1992 SCMR 1202), (2) Taza Gul and others v. Hafiz Fazal Subhan (2006 SCMR 504).
The submissions put forth on behalf of the petitioners by their learned counsel in support of the Civil Misc. Application have been considered in the light of the above said cited case law. Admittedly, vide impugned judgment; the decree of the First Appellate Court being immediately below to the High Court was set aside and thus the same was amenable to appeal before this Court by filing direct appeal as the subject matter of the dispute was not less than Rs. 50,000/- but instead, petition for leave to appeal was incompetently filed, which was entertained, as such; without any objection by the Office. During pendency of this petition, the above said CMA has been filed on behalf of the petitioners requesting for condonation of the delay of 29 days for treating this petition as an appeal against the judgment impugned therein on the grounds noted above.
In the case of Chairman, NWFP Forest Development Corporation and others, this Court, while seized of the matter, observed that the petition for leave to appeal if treated as a direct appeal was time barred and as a petition for leave to appeal was within time, by keeping in view the facts of the case concluded that error in filing the petition for leave to appeal instead of direct appeal seemed apparent on record, entertained the oral request of the counsel for the appellant converted the petition into appeal after hearing both the parties by holding that the question of limitation, thus, lost its significance.
In the case of Taza Gul and others, it was held by this Court that instead of filing direct appeal, petition for leave to appeal was filed, the office did not raise any objection to the maintainability of the petition but after publication of the judgment of this Court in the case titled Muhammad Inayat v. Fateh Muhammad reported in (2003 SCMR 875), the petitioners in the said case filed application for converting the petition for leave into appeal under Article 185(2)(d)(e) of the Constitution of Islamic Republic of Pakistan, 1973, as well as; they also filed application for condonation of delay as direct appeal was barred by time. The hon'ble Bench in the said case held that as the office had entertained the petition for leave to appeal without any exception, therefore, the petitioners could not be made to suffer on account of misconception of the law, confusion of the legal position in the minds of the members of the Bar for a long time. Accordingly, it was concluded that the petitioners were not guilty of negligence or recklessness in the matter of prosecuting their remedy before the Supreme Court and the case being of a bona fide error, as well as; sufficient cause was made out for exercise of discretion in favour of the petitioners for extension of time for filing direct appeal, accordingly, the petition for leave to appeal was converted into appeal and application was allowed.
It is thus abundantly clear that entertaining the petition for leave to appeal though not maintainable and incompetently filed by the office without objection was not the sole factor and reason for condoning the delay for conversion of the petition into direct appeal but simultaneously the other factors and the circumstances of each case were taken due notice of and considered for condoning the delay in entertaining the request for conversion of the petition into direct appeal which as well depended upon showing of sufficient cause, bona fide error or misconception of law and confusion; recklessness and negligent conduct, if any; as the case may be.
The learned AOR in the case is a senior counsel, who without taking due notice of the fact that vide impugned judgment the decree of the learned First Appellate Court being immediately below to the High Court was set aside, and; the value of the subject-matter of the dispute was admittedly not less than Rs. 50,000/- directly appealable to this Court under Article 185(2)(d)(e) of the Constitution but petition for leave to appeal was filed without being diligent about the above quoted provisions of the Constitution, and; always supposed to be within the notice and knowledge of the learned counsel of a long standing at the Bar, hence; it could not be said or expected that the error in filing the petition for leave to appeal on his part was not negligent or reckless, therefore, the same could not be condoned lightly merely because the Office entertained the petition for leave to appeal without objection. The sole responsibility for not availing the remedy of appeal as provided by the Constitution would not rest on the shoulders of the Office, therefore, in such circumstances of the case, sufficient cause has have to be shown for condonation of the delay, which occurred in making the request for conversion of the petition into direct appeal, completely lacking. The CMA seeking for conversion of petition for leave to appeal, into direct appeal filed on 25.4.2006 after an inordinate delay while this petition was filed on 21.10.2005, which, therefore, seems to be not a bona fide mistake, error or misconception with regard to the above quoted provisions of Article 185 of the Constitution except that due to negligent and reckless conduct instead of filing appeal, petition for leave to appeal was filed by not availing the permissible legal remedy against the impugned judgment, which conduct in our considered opinion is not condonable in view of the dictum laid down by this Court in the case of Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others (2005 SCMR 1371) nor the tenure of lapse till the date of filing of the CMA on the subject for conversion of the petition into direct appeal has been found to be condonable by enlarging the time for the purpose. The learned counsel also failed to make any submission with regard to the misconception of law which as urged in the CMA resulted in filing the petition for leave to appeal.
Thus, in view of the above reasons, CMA No. 57-Q/2006 is dismissed and consequently, CP No. 111-Q/2005 is dismissed being incompetent.
(Malik Sharif Ahmed) Order accordingly
PLJ 2007 SC 117
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ, Mian Shakirullah Jan & Syed Jamshed Ali, JJ.
NOOR MUHAMMAD--Petitioner
versus
STATE and others--Respondents
Crl. P. No. 323 of 2005, decided on 5.4.2006.
(On appeal from the Judgment dated 12.7.2005 passed by Lahore High Court, Lahore in Crl. R. No. 407/2005).
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 200, 202, 203, 204 & 439--Pakistan Penal Code (XLV of 1860), Ss. 302 & 149--Constitution of Pakistan, 1973, Art. 185(3)--Scope and criteria of the proceeding for issuance of process summons--Mere summoning of an accused by the Court to answer the charges levelled against him does not tantamount to any infringement of any right of a person but rather an opportunity afforded to him to explain his position--If a complaint is made before the Court, it is only to see the existence of a prima facie case either on the basis of averments made in the complaint and the statement of complainant on oath or on the basis of an inquiry if the Court thinks fit to hold an inquiry in order to ascertain the truth or false hood of the complaint--Order of trial Court in the instant case has fully met the requirements of law--High Court instead of correcting any illegality or irregularity committed by the Courts below, which exercising the revisional jurisdiction has rather committed illegality itself by going beyond the scope of the proceeding--It is the stage of only summoning of accused and interference in the order of trial Court while issuing process against the accused tantamount to stifling the proceedings/trial of the case, depriving the Court to adjudge the evidence to be produced by the complainant and the right of accused to cross-examine the witnesses and to explain any incriminating evidence against him and enable the Court to arrive at conclusion determining truth of matter--High Court has wrongly interfered--Case remanded to trial Court for proceeding afresh in accordance with law. [Pp. 120 & 121] A, B & C
AIR 1931 Cal. 607 considered.
Mr. Nazir Ahmed Bhutta, ASC and Ch. Muhammad Akram, AOR for Petitioner.
Ch. Inayat Ahmed, ASC for Respondents.
Date of hearing: 5.4.2006.
Judgment
Mian Shakirullah Jan, J.--This criminal petition is directed against the judgment of the Lahore High Court, Lahore, whereby while accepting the criminal revision filed by Respondent No. 2 (Sh. Khalid Masood) the order of the learned trial Court for summoning him, in a complaint case under Section 302/109 PPC filed by the petitioner, was set aside.
Petitioner/complainant reported to the police about the murder of his father Ghulam Muhammad by one Zubair, co-accused of Respondent No. 2, by firing at him with a .12 bore repeater gun at the time of barat/marriage ceremony of one Safdar Iqbal who then resorted to aerial firing in order to give an impression that the deceased sustained injuries accidentally. The motive was stated to be that the petitioner lodged a report against the brother of the complainant about the quarrel and beating of his servants, for which a case was registered. The case was pursued and prosecuted both by the petitioner and his co-accused Zubair. However, during investigation they (the complainant party) were declared innocent. The petitioner being aggrieved of the above occurrence was openly pronouncing that he would take the revenge. During the investigation, of the instant case, the police opined that the deceased was hit accidentally during an aerial firing made to celebrate the departure of barat and the case was recommended to be challaned under Section 322 PPC. The complainant, not satisfied with the investigation of the police, filed an application under Section 22-A(6) Cr.P.C. before the learned Justice of Peace for conducting of the investigation by other agency/police officer, but could not get the required results ultimately filed the complaint against the accused Respondent No. 2 and his co-accused Zubair before the Court under Section 302/109 PPC. The Court, after its satisfaction about the existence of a prima facie case, issued process against the accused/respondent, which order was challenged by the petitioner before the High Court through a revision petition, which was accepted and the order of the trial Court of issuance of summons against Respondent No. 2 was set aside and it is this order which has been challenged before this Court in the instant criminal petition.
The questions for consideration are two folds i.e., (i) what is the scope/criteria of the proceeding in a complaint case for issuance of the process (summons/warrants) against the accused and, (ii) whether the High Court, without arriving at a definite conclusion that the lower Court has deviated from the said criteria can interfere in its revisional jurisdiction.
The procedure in a complaint case has been provided in Chapter-XVI of Cr.P.C. On presentation of a complaint the Magistrate while taking cognizance under Section 200, examine the complainant upon oath and the substance of the examination is reduced to writing and to be signed by the complainant and by the Magistrate. Section 201, which is not relevant for the purpose of the question involved in the case, deals with the situation when the Court is not competent to take cognizance of the case then the same shall be returned to the complainant for its proper representation to the competent Court. According to Section 202, the Court on receipt of the complaint of an offence of which it is authorized to take cognizance, or which has been sent to it under Section 190, sub-section (3) or transfer to it under Section 191 or Section 192 may if it thinks fit for the reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against for the purpose of ascertaining the truth or falsehood of the complaint. Section 203 empowers the Court to dismiss the complaint after considering the statement on oath of the complainant and the result of an inquiry, if any, under Section 202 there is in his judgment no sufficient ground for proceeding for the reasons to be recorded for so doing. Section 204, which is in Chapter-VII Cr.P.C., deals with the issuance of process. According to this Section the Court shall issue the process if in its opinion there is sufficient ground for proceeding and an appropriate process may be issued in the form of summons or warrants to the person complained against.
The scheme of the aforesaid provisions of law envisages that after making a complaint, the Court shall examine the complainant on oath and the substance of the examination shall be reduced to writing and shall be signed by both the complainant and the Presiding Officer and if the complaint is made in writing, the Court may examine the complainant on oath. The Court, then, if found sufficient ground for proceeding then the process is issued under Section 204 and if there is no sufficient ground for proceeding the complaint, then, is dismissed under Section 203 for which reasons will have to be recorded. However, the Court if not certain about the truthfulness or otherwise of the complaint, then on postponement of the issuance of process, for which reasons will have to be recorded, it may direct investigation/inquiry to be conducted in order to ascertain the truth or falsehood of the complaint and after arriving at a conclusion in either way, the Court then, may proceed either under Section 204 for the issuance of process or under Section 203 dismiss the complaint. The proceeding under Section 204 or 203 depends upon the existence or non-existence of sufficient ground which have been taken by the Courts as the existence of prima facie case, the two expressions i.e., the existence of sufficient ground and prima facie case have been construed by the Courts interchangeably. In the case of "Sher Singh v. Jatendranath Sen" (AIR 1931 Cal. 607), it was held "a prima facie case only means that there is ground for proceeding. It is not the same thing as proof which comes later when the Court has to find whether the accused is guilty or not guilty". There is a marked distinction as to the approach of appraisal of material on record i.e., averments made in the complaint and the statement made on oath by the complainant, at the time of holding of a preliminary inquiry for determining as to whether the process to be issued against the accused or not and at the regular hearing of the criminal case leading to determining the guilt or innocence of the accused. The Court is not expected to examine the material minutely whereas at the stage of trial it appraise the evidence thoroughly and record its findings on the basis of such appraisal and that any benefit of doubt arising out of such inquiry should be given to the accused. It is not the stage where a material available on the record is assessed in depth but a prima facie case has to be made out to proceed further with the matter for issuance of the process. The burden of proof in a preliminary inquiry for the issuance of process is quite lighter on the complainant as compared to the burden of proof on prosecution at the trial of an offence as the prosecution is to prove the case beyond reasonable doubt and at the preliminary stage the complainant is not required to discharge above heavy burden of proof. The Court cannot overstretch the proceedings as to convert the preliminary inquiry or the averments made in the complaint to a stage of full-fledge trial of the case. It is quite an initial stage where after the accused is having the opportunity, apart from showing his innocence in the case at the final stage, to have a recourse of an inter-mediatory remedy by moving the Court showing the complaint to be false and frivolous one and requesting the Court for his acquittal under Section 249-A or 265-K Cr.P.C prior to further proceeding in the case to be taken. Mere summoning of an accused by the Court to answer the charges leveled against him does not tantamount to any infringement of any right of a person but rather an opportunity afforded to him to explain his position. During the investigation of a FIR case, where the police is empowered to arrest without warrant i.e., in cognizable case, such a process i.e., arrest etc. is resorted to by the police, even in a case where the person accused of the charge pleads innocence before the police and he succeeds in his efforts to some extent and the police agrees with him, yet before any recommendation by the police for his discharge an insistence is made on his surrender before the authorities/Courts. The possibility of accusation turning out to be false or frivolous at the trial should not overbear the Court from issuing the process if the material available, prima facie discloses the case against the accused. At this stage a protracted inquiry or full dress rehearsal of trial is not required. Moreover, Section 250 Cr.P.C. also provides sufficient safeguard to an accused against a false and frivolous accusation by the complainant, which envisages that the Court while acquitting an accused at the trial stage, holding the charge brought against him, was false, frivolous or vexatious has sufficient power to award adequate compensation. If a complaint is made before the Court, it is only to see the existence of a prima facie case either on the basis of averments made in the complaint and the statement of the complainant on oath or on the basis of an inquiry if the Court thinks fit to hold an inquiry in order to ascertain the truth or falsehood of the complaint. The order of the trial Court in the instant case has fully met the requirements of law by holding the existence of a prima-facie case after which the processes were issued.
After answering the first question in affirmative now we have been left with the second question relating to the power of the High Court while exercising the revisional jurisdiction in such like matters. In the present case the High Court for arriving at the impugned conclusion has taken note of the detailed reasoning advanced by the learned counsel for the parties touching the merits of the case on the basis of the appreciation of material on record very minutely, which was construed as evidence duly recorded in a trial of a case and also the reasoning advanced by the Court itself for reaching such a conclusion by discussing in detail the material in depth conveying an impression as deciding a case which is at its final stages determining the guilt or innocence of the accused on the criteria of evaluating the evidence as to whether the prosecution has been able to prove its case beyond reasonable doubt or not and while giving such a benefit the accused sought to be acquitted, which is beyond the scope of the proceedings at the stage for issuance of process after making a complaint visualizing under Sections 200, 202, 203 and 204 Cr.P.C. The High Court has scrutinized the evidence very minutely and has gone to the extent that even inference has also been drawn, about the impossibility of presence of witnesses to overhear the accused/Respondent No. 2 while hatching the conspiracy and to discredit the evidence/material on record, detailed comments have been made, which is beyond the scope of the proceedings in question necessary for the issuance of the process. The High Court instead of correcting any illegality or irregularity committed by the Courts below while exercising the revisional jurisdiction has rather committed illegality itself by going beyond the scope of the proceedings. It is the stage of only summoning of the accused and interference in the order of the trial Court while issuing process against the accused tantamount to stifling of the proceedings/trial of the case, depriving the Court to adjudge the evidence to be produced by the complainant and the right of the accused to cross-examine the witnesses and to explain any incriminating evidence against him and enable the Court to arrive at a conclusion determining truth of the matter. The order, interfered with by the High Court, was neither perverse nor arbitrary or suffers from any illegality or irregularity but quite in consonance with law and the principles laid down by the Courts.
Resultantly, we hold that the High Court has wrongly interfered with the order of the trial Court and the same is not maintainable and requires reversal, therefore, while allowing the petition, it is converted into appeal and allowed. The impugned judgment dated 12.7.2005 is set aside and case is remanded to trial Court for proceeding afresh in accordance with law.
(Malik Sharif Ahmed) Case remanded
PLJ 2007 SC 122
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. and
Saiyed Saeed Ashhad, JJ.
SOHAIL AKHTAR ABBASI--Petitioner
versus
SYED AMIR ALI SHAH--Respondent
Civil Petition No. 623 of 2006, decided on 13.9.2006.
(On appeal from the Judgment dated 11.5.2006 passed by High Court of Sindh, Karachi in C.P. No. 239 of 2006).
Sindh Local Government Election Rules, 2005--
----Rr. 30(6)(ii)--Constitution of Pakistan, 1973, Art. 185(3)--Valid ballot paper--Determination--Whether a ballot paper containing double stamp marking with the official rubber stamp would be considered to be a valid ballot paper--Held: Voting procedure u/Rule 30(6)(ii) provides that voter on receiving ballot paper shall put rubber stamp on the ballot paper at place containing the symbol of contesting candidate of his choice--It costs a duty on a voter to put the official rubber between the spaces containing the symbol of the candidate of his choice and there is no provision for putting the official rubber stamp twice--Rule 35 would be applicable when the ballot paper is marked in accordance with Rule 30(6)(ii)--Ballot paper in question which bore double stamp mark of official rubber stamp--In deciding whether double stamping of the ballot paper was an innocent and inadvertent act of voter or was done with an intention to disclose his identity reference will have to be made to the status, education and intellectual faculties etc., of the voter--All the voters who were required to cast their votes for electing Nazim--Requirement is that person should be Matriculate--A person who is matriculation would mark the ballot paper then in accordance with law very strong presumption can be had that it was done to disclose his identity thus violating the sanctity of secret ballot--High Court and Election Tribunal were justified in declaring ballot paper bearing double stamping of official rubber stamp as invalid ballot paper--Leave refused. [Pp. 126 & 128] A & B
1981 CLC 1332; 1987 CLC 708 and PLD 1986 SC 178 rel.
Mr. Wasim Sajjad, Sr. ASC and Mehr Khan Malik, AOR for Petitioner.
Mr. Abdul Hafeez Pirzada, Sr. ASC and Ch. Arshad Ali, AOR for Respondent.
Mr. Muhammad Sharif Qureshi, Senior Civil Judge, Kandiaro (the then Returning Officer) alongwith original record on Court Notice.
Date of hearing: 13.9.2006.
Order
Saiyed Saeed Ashhad, J.--This petition for leave to appeal assails the judgment dated 11.5.2006 in CP No. D-239/2006.
The facts in brief are that petitioner and Respondent No. 1 along with others contested Election for the office of Taluka Nazim, Taluka Bhiria, District Naushero Feroz. Election was held on 6.10.2005. Petitioner secured 63 out of total 128 votes while Respondent No. 1 secured 62 and, as such, petitioner was declared as Taluka Nazim. Notification to this effect was issued by Election Commission of Pakistan on 10.10.2005. On 7.10.2005 Respondent No. 1 moved an application before the Returning Officer/Senior Civil Judge Kandiaro under Rule 36(6)(1) of Sindh Local Government Election Rules, 2005 (hereinafter referred to as the "rules") for recount of votes. This application was dismissed by the Returning Officer where upon Respondent No. 1 filed an Election Petition before the Election Tribunal/District Judge, Khairpur who vide order dated 18.1.2006 ordered recount. This order of the Election Tribunal was challenged before Sindh High Court, Bench at Sukkur in CP No. 34 of 2006 which was dismissed on 3.3.2006. The order of the High Court was assailed by way of CPLA No. 96-K of 2006, which was also dismissed. Consequently, exercise of recount of votes was undertaken on 3.4.2006 as a result of which the number of votes secured by petitioner was reduced from 63 to 58 while number of votes of Respondent No. 1 were reduced from 62 to 59. Thus, Respondent No. 1 was declared successful vide notification dated 5.4.2006 issued by the Election Commission of Pakistan.
The order of Election Tribunal/District Judge, Khairpur dated 3.4.2006 was assailed by way of Constitutional Petition No. D-239 of 2006 before the High Court of Sindh. A learned Division Bench of the High Court after minutely examining the facts of the case and the law applicable on the subject came to the conclusion that the impugned order of Election Tribunal did not suffer from any illegality or infirmity. Accordingly, the Constitutional petition was dismissed and order of the Election Tribunal was upheld.
Feeling aggrieved and dissatisfied with the above judgment of the High Court the petitioner has filed this petition for leave to appeal.
We have heard the arguments of Mr. Waseem Sajjad, Sr. ASC on behalf of petitioner and Mr. Abdul Hafeez Pirzada, Sr. ASC on behalf of Respondent No. 1.
Mr. Waseem Sajjad, vigorously argued that the Election Tribunal as well as the Sindh High Court failed to consider the real controversy in issue, which was required to be decided in the present case and which if considered in its true perspective would not have warranted a decision in favour of Respondent No. 1. He further submitted that real controversy was whether the act of double marking on the ballot papers admittedly with the Marking Aid Rubber Stamp both of which were in the column of the petitioner in itself would render the ballot papers invalid or contrary to the rules but whether such double marking could be considered to be an attempt or intention on the part of the petitioner to disclose his identity so as to violate the secrecy of ballot. He further submitted that both the Election Tribunal and the High Court in deciding the issue purely on the basis of Rule 33 of the Rules and thereby committed a grave and serious illegality as the matter was to be decided only after taking into consideration Rule 35 of the Rules which was germane to decide the controversy. Elaborating his arguments drew our attention to Rule 35(4)(iii) (a, b, c) of the Rules and submitted that above Clauses provide for discarding or holding a ballot paper as invalid which bears double marking with Marking Aid Rubber Stamp. His further submission was that in view of sub-clause (d) of clause (iii) of sub-rule (4) of Rule 35 of the Rules the ballot papers on which double marking with the Marking Aid Rubber Stamp in the column of the petitioner, should have been counted as a valid vote in his favour. He further submitted that in deciding the question whether double marking of the ballot paper was an unintentional or innocent act of the voter, regard should be had to the fact that the voters are usually illiterate persons and in their enthusiasm and anxiety to express their intention and support in favour of the candidate of their choice they had fixed the Official Rubber Stamp twice. In support of his above contentions he placed reliance on the cases of (i) Irshad Ahmed vs. Shafi Muhammad and 5 others (1981 CLC 1332) (ii) Pir Bukhsh vs. Muhammad Musa and others (1987 CLC 708) and his own case titled Col. (R) Syed Mukhtar Hussain Shah vs. Waseem Sajjad and 30 others (PLD 1986 SC 178). He also referred us to paragraph 59 at page 440 of Halsbury's Laws of England, 4th Edition Reissued Volume 15 and Section 345 on pages 344 and 348 of American Jurisprudence.
Mr. Abdul Hafeez Pirzada, Sr. ASC appearing on behalf of Respondent No. 1 supported the order of the Tribunal and judgment of the High Court and submitted that both the forums had minutely examined the facts and relevant law and rules in arriving at the conclusion that ballot papers which bore double official rubber stamp were to be excluded from consideration and the same did not suffer from any illegality, irregularity or infirmity. He further submitted that double stamping of ballot papers could not be taken or considered as innocent, innocuous or careless acts of the voters due to lack of skill or understanding as all the voters who cast their votes in the election in question are members of the Taluka Council for which the requirement is matric and a matriculate cannot be expected to lack knowledge and understanding of the above provision of law.
We have considered the arguments of the learned counsel for the parties and perused the case law referred to us by Mr. Waseem Sajjad as well as the relevant provisions of Rules.
The arguments of Mr. Waseem Sajjad that the Election Tribunal and the High Court erred in holding that placing reliance on Rule 30(6)(ii) of the Rules which was not applicable to the facts and circumstances of the case and should have examined the provisions of Rule 35(4)(iii)(d & e) of Rules which were very material for deciding the dispute is totally misconceived. There is no dispute that requirement of Rule 35 (4)(iii) (d & e). For clear understanding of the point in issue it would be appropriate to reproduce Rules 30(6)(ii) and 35(4)(ii) (d & e) of the Rules are reproduced as under:--
"30. Voting procedure,--
(1) ....................
(2) ....................
(3) ....................
(4) ....................
(5) ....................
(6) The voters, on receiving the ballot papers, shall--
(i) ....................
(ii) put the marking aid rubber stamp on the ballot paper at place within the space containing the symbol of contesting candidate of his choice; and
(iii) ....................
(7) ....................."
"35. Proceedings at the close of the poll;--
(1) .....................
(2) .....................
(3) .....................
(4) The Presiding Officer shall--
(i) ....................
(ii) ....................
(iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers, which bear;--
(a) no official mark;
(b) any writing or any mark other than the official mark and the mark of "marking aid rubber stamp" or to which a piece of paper or any other object of any kind has been attached;
(c) .....................
(d) any mark from which it is not clear from whom the voter has voted; provided that a ballot paper shall be deemed to have been marked in favour of a candidate if the whole or more than half of the area of mark of "marking aid rubber stamp" appears clearly within the space containing the symbol of that candidate; and
The issue which requires determination is whether a ballot paper containing double stamp marking with the official rubber stamp would be considered to be a valid ballot paper. For this purpose, reference will have to be made to Rule 30, which provides voting procedure. Clause (ii) of sub-rule (6) of Rule 30 of the Rules provides that a voter on receiving the ballot paper shall put rubber stamp on the ballot paper at place within the space containing the symbol of contesting candidate of his choice. A bare reading of above rule reveals that it casts a duty on a voter to put the official rubber stamp between the spaces containing the symbol of the candidate of his choice and there is no provision for putting the official rubber stamp twice. Provisions of Rule 35 would be applicable only when the ballot paper is marked in accordance with Rule 30(6)(ii) of the Rules. For deciding the dispute in question the petitioner would be required to first satisfy that marking of ballot paper in accordance with Rule 30(6)(ii) of the Rules. There is no denial that the ballot papers in question which bore double stamp mark of the official rubber stamp would be valid or admissible if there is nothing to presume that the said double stamping was done with the intention on the part of the voter to disclose his identity with some pre-arrangement or manipulation with the candidate. In deciding whether double stamping of the ballot paper in dispute was an innocent and inadvertent act of the voter or was done with an intention to disclose his identity reference will have to be made to the status, education, and intellectual faculties etc., of the voters in question. It is a matter of record that all the voters who were required to cast their votes for electing Taluka Nazim, Taluka Bhiria, District Naushero Feroz, were members of Taluka Council, Bhiria and for election as a member of a council the requirement is that the person should be Matriculate. It is not imaginable that a person who is Matriculate would mark the ballot paper otherwise then in accordance with law innocently or inadvertently and a very strong presumption can be had that it was done to disclose his identity, thus violating the sanctity of secret ballot. The cases of (i) Irshad Ahmed vs. Shafi Muhammad and 5 others (1981 CLC 1332) and (ii) Pir Bukhsh vs. Muhammad Musa and others (1987 CLC 708) relied upon by Mr. Waseem Sajjad are absolutely of no assistance to resolve the dispute in question and on the contrary they do not support the case of the petitioner. In the case of Pir Bakhsh the dispute was whether the marking with the official rubber stamp was marked in a manner which did not clearly manifest the intention of the voter and from perusal of the disputed ballot paper it was found that the official rubber stamp was marked within the space containing the name and symbol of the candidate and there appeared to be no doubt that the vote had been cast in disputed ballot papers in favour of the respondent thus the vote cast in his favour were rightly declared valid and accepted. In the case of Irshad Ahmad ballot paper was marked with excessive ink and Sindh High Court held that it was not a sufficient ground to declare the ballot paper as invalid. In none of the above two cases the question of double stamping of the ballot paper was in issue.
The question of validity of the ballot paper bearing double stamping was in issue in the case of Col. (R) Syed Mukhtar Hussain Shah vs. Waseem Sajjad and 30 others (PLD 1986 SC 178). Thus Court pronounced that when the law prescribed that the intention of the voter should be expressed in a particular manner, it could be taken into account only if it is so expressed. In this case ballot papers in addition to the official stamp mark had other marks or writing and were held to be invalid unless it was established that the other mark or writing was attributable to carelessness or want of skill. Mr. Wasim Sajjad submitted that observation made in the cited case should not be taken into consideration for deciding the present case as the election in the cited case pertained to Senate held under the Senate (Election) Rules, 1975. Rule 17 whereof provided the manner of recording votes recorded in the explanation was to be given mandatory effect and breach thereof was to be dealt with accordingly. We are unable to agree with the contention of Mr. Wasim Sajjad. The underlying principle laid down in the cited case appears to be that any initials, writing or mark as distinguished from required figure or mark appearing in the ballot paper was ex-facie an attempt to disclose the identity of the voter. In the case in hand in pursuance of Rule 30(6)(ii) a voter was required to put one official rubber stamp in the space between the name and symbol of the candidate of his choice. The rule did not specifically provide that voter would not put a second stamp by the official rubber stamp or any other mark figure or initial but such would not imply that the ballot paper could be marked by a voter in a manner other than provided by Rule 30(6)(ii) of the rules. Furthermore double stamping of a ballot paper by a voter who is matriculate could not by any imagination be held to be an innocent act which was merely done on account of exuberance and eagerness of the voters for the success of the petitioner or for emphasizing or clarifying voter's choice of candidate.
In view of the above discussion reliance by Mr. Waseem Sajjad on Section 345 of the American Jurisprudence and paragraph 559 of Halsbury's laws of England, 4th Edition, volume, 15 would not be of any help in deciding the fate of the disputed ballot papers. In the circumstances question whether the second stamp was put such a manner that half or more than half of it appeared in the space between the name of the petitioner in addition to the first official stamp would be of no importance as the double stamping was not at all required and was done with a view to disclose his identity.
In view of the above the Election Tribunal and the High Court were justified in declaring the ballot papers bearing double stamping of official rubber stamp as invalid ballot papers and discarding them from count. The order/judgment does not suffer from any illegality or infirmity calling for interference by this Court. This for the forgoing facts, reasons and discussion this petition is found to be without any substance and is accordingly dismissed. Leave to appeal is refused.
(Malik Sharif Ahmed) Leave refused
PLJ 2007 SC 128
[Appellate Jurisdiction]
Present: Javed Iqbal, Muhammad Nawaz Abbasi & Hamid Ali Mirza, JJ.
ALI IMRAN--Appellant
versus
STATE--Respondent
Crl. A. No. 483 of 2002, decided on 25.5.2006.
(On appeal from the Judgment dated 3.4.2002 passed by Lahore High Court Lahore in Criminal Appeal No. 650/99 and Murder Ref. No. 288/T/99).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 392/324/34--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by Anti-Terrorism Court--Assailed--Appeal was dismissed--Leave to appeal--Joint liability--In light of factual position explained by the two eye witnesses, the joint liability of the appellant was clearly established and he being equally responsible for the murder was rightly convicted u/S 302(b) PPC--Acquittal of accused from charges u/Ss. 392 and 324 PPC for deficient evidence would not reduce the value of prosecution evidence on the charge of murder of police constable--It being not known that who was individually responsible for the murder of deceased, the extreme penalty of death to the appellant u/S 302(b) PPC, convert the sentence of death awarded to him into imprisonment of life. [Pp. 131 & 132] A & C
Common Intention--
----Common intention generally involved the element of common motive, pre-plan preparation and action pursuant to such plan but sometimes, the common intention may also develop at the spur of moment or during commission of offence. [P. 132] B
Mr. Mazhar Ali Akbar Naqvi, ASC for Appellant.
Ch. Munir Sadiq, ASC for Respondent.
Date of hearing: 25.5.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal, with leave of the Court has been directed against the judgment of Lahore High Court, Lahore, whereby Murder Reference No. 288-T/99 sent by trial Court and Criminal Appeal No. 650/99 filed by the appellant, against the conviction and sentence of death awarded to him by the Special Court No. II, established under Anti Terrorism Act, 1997 on the charge of murder alongwith different other sentences of imprisonment under Section 392/324 read with 34 PPC, was dismissed to the extent of charge of murder of Azhar Imam, police constable whereas the sentences under Sections 392 and 324/34 PPC were set aside.
"Leave to appeal is sought against the judgment of the Lahore High Court, Lahore dated 3.4.2002, whereby petitioners Criminal Appeal No. 650/99 regarding his conviction and sentence of death under Section 302 PPC for the murder of Azhar Imam, was dismissed and he was ordered to pay Rs. 30,000/- as compensation to the legal heirs of the deceased or in default thereof to undergo six months S.I. and his conviction and sentences under Section 324 PPC for causing injuries to Ghazanvi and Mst. Fatima were maintained. His conviction and sentences under Section 392 PPC and under Section 324 PPC for causing injuries to Qurrat-ul-Aain were set aside and his appeal to that extent was accepted. Murder Reference was answered in affirmative.
(i) Whether the evidence of a single police official was sufficient to convict and sentence the petitioner to capital punishment when there was a counter allegation against the police party for killing one of the accused in counter firing?
(ii) Whether in the facts and circumstances of the case death penalty awarded to the petitioner was justifiable or he was entitled to lesser punishment.
Leave is accordingly granted."
Learned counsel for the appellant has contended that the occurrence had three parts. The first part related to the offence of dacoity allegedly committed in the Post Office, Satellite Town, Gujranwala but to the extent of charge under Section 392 PPC the appellant was acquitted for failure of prosecution to bring any evidence on record in proof thereof. The second part of the occurrence related to the murder of Azhar Imam, constable who alongwith Iqbal Hussain, constable (PW12) on receiving wireless message regarding the occurrence of dacoity in post office, Satellite Town, Gujranwala while chasing the accused when made an attempt to stop the rickshaw of the accused, they started firing at them from rickshaw as a result of which Azhar Imam, constable, was hit and died at the spot. The third part commenced when accused after committing the murder of police constable, ran away in another rickshaw and a police party having encircled them, exchanged firing with them as a result of which Zaigham Abbas co-accused of the appellant, was killed whereas appellant escaped from the spot.
Learned counsel vehemently contended that except the sole statement of Muhammad Iqbal, a police constable, no other evidence was brought on record to connect the appellant with the commission of offence, therefore, it was not safe to place reliance on the sole statement of the police officials to convict the appellant on capital charge and forcefully argued that as per prosecution version the accused made firing from inside the rickshaw, therefore, it was not a case of individual liability to hold the appellant responsible for the murder. In the alternative, the learned counsel argued that it being not known that who was individually responsible for firing at the deceased, the extreme penalty of death to the appellant was not justified.
Learned counsel for State on the other hand, has argued that the murder was committed in the transaction in which appellant and his co-accused after committing dacoity, escaped from place of occurrence in a rickshaw and on interruption by the police officials, they opened firing at them as result of which a police constable was hit and died at the spot. He argued that it being a case of joint liability, the appellant would equally share the responsibility of murder.
Muhammad Iqbal, complainant, who alongwith the deceased constable, on a motorcycle, chased the rickshaw in which the appellant in company of deceased accused was boarded, was most natural witness, who has identified the appellant at the spot as well as in the Court and similarly, Muhammad Arshad, rickshaw driver, also identifying the appellant in Court, stated that the accused present in Court and his deceased companion while boarded in his rickshaw, were chased by two police officials on motor cycle whereupon the accused started firing at them from rickshaw and in consequence thereto Azhar Imam a police constable, was hit and died at the spot. In the light of factual position explained by the two eye witnesses, the joint liability of the appellant was clearly established and he being equally responsible for the murder was rightly convicted under Section 302(b) PPC. The acquittal of appellant from the charges under Section 302/324 PPC for deficient evidence, would not reduce the value of prosecution evidence on the charge of murder of police constable.
The detail scrutiny of evidence with the help of learned counsel for the parties, would not suggest any misreading or non reading of evidence or any other legal or factual infirmity in the conclusion of the two Courts regarding guilt of the appellant. The learned counsel laid much stress on the question that in absence of specific evidence of sharing common intention to commit the murder, the conviction on the murder charge, on the basis of general allegation, was not justified. It may be pointed out that the intention to commit the crime can be gathered from the circumstances which may prevail at the spur of moment in re-action to the happening of some incident and except in a premeditated occurrence, it is difficult to procure direct evidence to prove intention of a person for committing crime rather the intention is to be inferred from his act and conduct. The common intention within the meaning of Section 34 PPC can be proved through direct or circumstantial evidence or may also depend upon the nature of an act done or motive possessed and a joint action of more than one person itself, is an evidence of common intention. In the present case the appellant and his co-accused armed with pistols, fired at the police constable and even if the deceased did not sustain injury at the hands of appellant, the act of firing at the police officials itself was strong evidence of sharing the intention to commit the crime. The common intention generally involves the element of common motive, pre-plan preparation and action pursuant to such plan but sometimes, the common intention may also develop at the spur of the moment or during commission of offence. In the present case appellant and his co-accused may not have the motive to kill the police constable but while making their escape in a rickshaw when realized that they were being chased by the police constables on a motorcycle, they started firing at the police officials in consequence to which, one police constable lost his life. The act of accused of direct firing at the police constable would definitely provide sufficient proof of common intention and joint liability of the murder.
The upshot of the above discussion is that since charge against the appellant stood proved beyond reasonable doubt, therefore, no exception can be taken to the finding of the trial Court as well as High Court regarding his guilt. However, it being not known that who was individually responsible for the murder of deceased, the extreme penalty of death to the appellant may not be justified. Consequently, we while maintaining the conviction of appellant under Section 302(b) PPC, convert the sentence of death awarded to him into imprisonment for life with direction to pay rupees one lac as compensation to the legal heirs of the deceased. He will also be entitled to the benefit of Section 382-B, Cr.P.C.
With the above modification in the sentence, this appeal is partly allowed.
(Malik Sharif Ahmed) Appeal allowed
PLJ 2007 SC 133
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
Haji REHMAT ULLAH and another--Petitioners
versus
COLLECTOR CENTRAL EXCISE AND LAND CUSTOMS QUETTA and others--Respondents
Civil Petition No. 17-Q of 2006, decided 14.9.2006.
(On appeal from the Judgment dated 12.12.2005 of the High Court of Balochistan, Quetta, passed in C.P. No. 331 of 2005).
Customs Act, 1969 (IV of 1969)--
----S. 201--Constitution of Pakistan, 1973, Art. 185--Question of price of goods--Determination--Constitutional jurisdiction--Held: Steps taken by the respondents for the completion of necessary formalities were not refuted--Petitioners were informed that since the case was registered against unknown persons, after affixation of notice u/S. 201 of the Customs Act, 1969 and in absence of any claim goods were disposed in favour of CSD and further showed its willingness to refund the sale proceed to petitioners--Question of price of goods--Initially determined tentatively seizing officer which cannot be considered as final--Even otherwise question of fixation of price being question of fact cannot be determined by High Court in exercise of Constitutional jurisdiction--Customs authorities who are vested with powers to assess the actual value of the goods for the purpose of custom duty--In the absence of evidence contrary--Value of customs authorities to be accepted--Sale proceeds be handed over to petitioners who would be at liberty to approach civil Court for redressal of their grievance--Petition disposal of.
[P. 136] A & B
1992 SCMR 2135; PLD 1970 SC 98; AIR 1981 SC 1473; PLD 1979 SC 835; 1984 SCMR 334; PLD 1963 SC 382; PLD 1976 SC 208; 1986 SCMR 962; PLD 1968 SC 1; 1990 SCMR 1513; 1986 SCMR 1994; PLD 1991 SC 1055; PLD 1976 SC 258 & PLD 1991 SC 729 ref.
Sheikh Ghulam Muhammad, ASC and Mr. Gohar Yakub Yousufzai, AOR for Petitioners.
Mumtaz Yousaf, Standing Counsel, Mr. Muhammad Yahya, Collector Customs, Mr. Mamtaz Ali Khosa, Dy. Collector Customs and Haji M. Azam, Law Officer for Respondents.
Date of hearing: 14.9.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 12.12.2005 whereby the Constitutional petition preferred on behalf of petitioner has been dismissed.
Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "the petitioners claim to have been in possession of assorted watches, which were taken into custody by Customs Mobile Squad, Quetta vide seizure Case No. 179-Cus/Seiz/MS-II, dated 11th December, 2004, allegedly being carried in a bus, intercepted in the way from Quetta to Taftan at 7.00 p.m. near Hazar Ganji Park; on thorough checking, wrist watches were recovered from the specially designed cavities, valuing Rs. 10,22,000/-. It was stated that no body had claimed the ownership of the recovered goods at the relevant time, and thus; seizure was prepared and reference was made to the Assistant Collector (Adjudication), who issued show-cause notice on 4th January, 2005, whereupon, one Rehmatullah and Allah Nazar claimed ownership of the watches etc. and were duly represented by their counsel. The learned Assistant Collector, vide order dated 5th April, 2005 has directed release of wrist watches. However, subject to payment of redemption fine of 30% of the CIF value of cells of seized goods, which comes to Rs. 33,600/-, has been imposed. It is stated that said amount was deposited and application for release of the said watches was submitted, whereupon; it was informed that the said watches have already been released to CSD shop for sale against amount of Rs. 1,64,500/- Rs. 98,000/- and Rs. 35,000/-, total of which comes to Rs. 2,97,000/-. The Customs authorities informed the petitioner to take the amount as received by him." Being aggrieved the petitioner preferred a writ petition which has been dismissed vide judgment impugned, hence this petition.
Sheikh Ghulam Muhammad, learned ASC entered appearance on behalf of petitioners and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective and besides that the provisions as contained in Section 201 of the Customs Act, 1969 have been misconstrued and misinterpreted. It is next contended that the judgment impugned is not in consonance with the dictum as laid down in case titled Obedullah v. Inspector-General, Frontier Corps (1997 SCMR 1833) and on this score alone is liable to be set aside. It is argued that the mandatory formalities as contemplated in Section 201 of the Customs Act, 1969 read with CGO No. 5 dated 19.4.1992 escaped the notice of learned High Court which resulted in serious miscarriage of justice. It is also pointed out that the Customs Auction Rules, 1996 have been violated while disposing of the confiscated goods by the Assistant Collector Customs, Quetta which culminated into huge loss suffered by the petitioners. It is urged with vehemence that the market value of the confiscated goods were assessed by the Customs Authorities in the tune of Rs. 20,44,000/- whereas the confiscated goods were handed over to CSD for Rs. 2,97,000/- by causing a grave loss to the petitioners.
Ch. Mumtaz Yousaf, learned Standing Counsel appeared for the respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that the formalities as contemplated in Section 201 of the Customs Act, 1969 have been completed and further more that the assessment made at the time of recovery of goods in question was tentative in nature and no assessment was ever made by the concerned appraisal officer and therefore, the tentative assessment qua the value of the goods cannot be taken into consideration. It is also pointed out that the order passed by learned adjudicating authority was never in their knowledge and the goods in question were disposed of on 10.3.2005 whereas the order passed by the adjudicating authority was received after 4.4.2005, hence no mala fide can be attributed to the Customs Authorities as pressed time and again by the learned ASC on behalf of petitioners.
We have carefully examined the respective contentions as agitated on behalf of the petitioners in the light of relevant provisions of law and record of the case. We have also examined the judgment impugned with care and caution. It is an admitted feature of the case that during the pendency of Constitutional petition the goods in question had been auctioned by the Customs Authorities and proceed thereafter deposited in the Government treasury and therefore, it was not possible for the learned High Court to restore the original goods to the petitioners. There is no denying to the fact that the said goods were recovered from concealed cavities of the vehicle which was on its way from Quetta to Taftan and at the time of recovery none had claimed the ownership of the goods in question. No doubt that subsequently an application was moved by the petitioners claiming ownership and the learned Assistant Collector Customs, after confiscation of goods gave an option pursuant to the provisions as contained in Section 181 of the Customs Act, 1969 to the owners of the goods for redemption against payment of fine of 30% of the CIF value of the seized goods by means of order dated 4.4.2005 but admittedly the goods had been disposed of on 10.3.2005 being unclaimed goods. Had the order passed by the adjudicating authority been passed earlier the question of disposal of the seized goods would have not arisen. It reveals from the scrutiny of record that necessary formalities as envisaged under Section 201 of the Customs Act, 1969 were completed by taking the following steps as informed by the learned Collector Customs who remained present pursuant to the notice issued by his Court:--
. "Serving a proper Notice under Section 201 of the Customs Act, 1969 by the Assistant Collector S.W.H. Quetta but no reply received from any concerned.
. The watches have got appraised by the Principal Appraiser who proposed Rs. 35/- per watch after conducting the market survey.
. Watches were sold/released to M/S CSD Quetta Cantt vide Release Memo No. 7/05 dated 10.3.05.
. The sale proceed was transferred accordingly into the account of Collector of Customs vide Challan No. 4 dated 16.4.05."
The steps taken by the respondents for the completion of necessary formalities as envisaged under Section 201 of the Customs Act, 1969 were not refuted. It has also come on record that after receiving the copy of order dated 4.4.2005 the petitioners were informed that since the case was registered against unknown persons therefore, after affixation of notice pursuant to the provisions as contained in Section 201 of the Customs Act, 1969 and in absence of any claim the goods in question were disposed in favour of CSD Quetta Cantt. by means of release memo. No. 7/05 dated 10.3.2005 and further showed its willingness to refund the sale proceed to the petitioners.
We have also adverted to the question of the price of the goods in question which initially was determined tentatively by the seizing officer which cannot be considered as final. Even otherwise the question of fixation of price being a question of fact cannot be determined by the High Court in exercise of its Constitutional Jurisdiction. The customs authorities who are vested with the powers to assess the actual value of the goods for the purpose of customs duty and in absence of any evidence contrary to the determination of such value by the customs authorities it is to be accepted. The Collector Customs had informed that the value of the goods in question was assessed on the basis of invoices and bill of entry which could not be rebutted by the petitioners. The dictum as laid down in Obedullah's case (supra) cannot be made applicable to this case in view of its chequered history. It, however, needs hardly any elaboration that the Customs Authorities are required to adopt adequate measures for obtaining better results qua caution of seized goods so that consequential legal rights or benefit accruing from such auction proceedings to either party are not jeopardized. We have also examined the dictum laid down in case Raza Muhammad vs. Inspector General, Frontier Corps (1999 MLD 3414) which being distinguishable hardly renders any assistance to the case of petitioners.
Be as it may, the sale proceed be handed over to the petitioners who would be at liberty to approach the Civil Court for the redressal of their grievances subject to all legal exceptions. The petition is disposed of in above terms.
(Malik Sharif Ahmed) Petition disposed of
PLJ 2007 SC 137
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
SARDAR NASEER AHMED MOOSIANI--Petitioner
versus
CHIEF EXECUTIVE/CHIEF SECRETARY, GOVT. OF BALOCHISTAN QUETTA and others--Respondents
C.P. No. 92-Q of 2006 & C.A. No. 1453 of 2006, decided on 18.8.2006.
(On appeal from the judgment dated 25.7.2006 of the High Court of Balochistan, Quetta, passed in C.P. No. 223 of 2006).
Balochistan Local Government Ordinance, 2001--
----S. 21--Constitution of Pakistan, 1973, Art. 185(3)--Leave granted inter alia on the points whether the Chief Minister had acted with diligent application of mind while exercising powers as conferred upon him u/S. 21 of the Balochistan Local Government Ordinance, 2001 and accepted the alleged resignation tendered by the petitioner--Whether the judgment impugned is in consonance with law laid down by Supreme Court in case Muhammad Munir-ul-Haq vs. Muhammad Latif Chaudhry (1992 SCMR 2135)--Appeal was ordered to be fixed at some early date and till its disposal operation of notification shall remain suspended. [P. 138] A
Syed Ayaz Zahoor, ASC and Mr. M.W.N. Kohli, AOR for Petitioner.
Mr. Salahuddin Mengal, A.G. for Official Respondent.
Mr. Kamran Murtaza, ASC and Mir Aurangzeb, AOR for Intervener.
Date of hearing: 18.8.2006.
Order
Javed Iqbal, J.--Heard Syed Ayaz Zahoor, learned ASC on behalf of petitioner, Mr. Salahuddin Mengal, learned Advocate General, Balochistan for official respondents and Mr. Kamran Murtaza, learned ASC for officiating Nazim namely Mr. Abdul Raheem Kurd, scanned the entire record with their eminent assistance and perused the judgment impugned carefully. We are inclined to grant leave, interalia, on the following points:--
(i) Whether the legal and factual aspects of the controversy have been appreciated in its true perspective by the learned High Court while dismissing the writ petition preferred on behalf of Sardar Naseer Ahmed Mossiani (petitioner)?
(ii) Whether the genuineness and authenticity of the resignation allegedly tendered by the petitioner is above board or otherwise?
(iii) Whether the Chief Minister had acted with diligent application of mind while exercising powers as conferred upon him under Section 21 of the Balochistan Local Government Ordinance, 2001 and accepted the alleged resignation tendered by the petitioner?
(iv) Whether the acceptance of resignation smacks of mala fides specially when a categoric denial was made for tendering such resignation on behalf of petitioner and published in different newspapers?
(v) Whether the petitioner had performed his functions as Nazim after tendering the alleged resignation and it was in the knowledge of Provincial Government?
(vi) Whether Sardar Naseer Ahmed Mossiani (petitioner) has any legal right to claim the seat of Nazim on the basis of Notification Bearing No. 5-41/2004 (BLCEA) Vol. VIII/26 92-2700 dated 12th May 2006 whereby officiating charge of Nazim was given to him?
(vii) Whether the judgment impugned is in consonance with law laid down by this Court in case Muhammad Munir-ul-Haq v. Muhammad Latif Chaudhry (1992 SCMR 2135) based on case law enunciated in the following authorities:--
Farzand Ali v. Province of West Pakistan through Secy. Dett. of Agriculture, Govt. of West Pakistan, Lahore (PLD 1970 SC 98), Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473), Secy. Govt. of Punjab Food & Co-operation Deptt. v. Shamoon Bahadur (PLD 1979 SC 835), Province of Punjab thr. Dy. Dir. Food Rawalpindi Region v. Muhammad Iqbal (1984 SCMR 334), Kuchwar Line & Stone Co. Ltd. v. Secy. of State (AIR 1937 Pat. 65), Abraham Reuben v. The Karachi Municipality (AIR 1929 Sindh 69), Union of India v. Gopal Chandra Misra (AIR 1978 SC 694), Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382), Khuda Bukhsh v. Khushi Muhammad (PLD 1976 SC 208), Mst. Rehmat Bibi v. Punnu Khan (1986 SCMR 962), Muhammad Ibrahim Munshey v. Province of West Pakistan (PLD 1968 SC 1), WAPDA v. Abdul Rashid Dar (1990 SCMR 1513), Province of Punjab v. Ikramul Haq (1986 SCMR 1994), Mazhar Ali v. Federation of Pakistan (1992 SCMR 435), M/s. Macdonald Layton Constrain Ltd. v. Punjab Employees Social Security Institution (PLD 1991 SC 1055), Chairman Distt. Screening Committee, Lahore v. Sharif Ahmad Hashmi (PLD 1976 SC 258), M/s. Mumtaz Industries v. IDBP (PLD 1991 SC 729).
The appeal be fixed at some early date and till its disposal the operation of Notifications Bearing No. 5-41/2004 (BLCEA)/Vol-VIII/2636-46 dated 21st April, 2006 and No. 5-41/2004 (BLCEA)/Vol-VIII/2692-2700 dated 12th May 2006 shall remain suspended.
(Malik Sharif Ahmed) Order accordingly
PLJ 2007 SC 139
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
M/s. AL-MAHMUDIA (PVT.) LTD.--Petitioner
versus
PAKISTAN through Secretary M/O Housing and Works, Islamabad and others--Respondents
Civil Petition No. 788 of 2006, decided on 14.9.2006.
Constitution of Pakistan, 1973--
----Arts. 185 & 32--Entitlement of hearing before competent authority--High Court had rightly declined to interfere in impugned order following the law laid down in the judgment delivered by a larger Bench of Supreme Court. [P. 140] A
2006 SCMR 382 & 1999 SCMR 2744 rel.
Mr. Hafiz, S.A. Rehman, Sr. ASC and Mr. Mehr Khan Malik, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 14.9.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed against the judgment dated 5.6.2006 passed by Lahore High Court, Rawalpindi Bench.
Learned counsel stated that in view of the judgment in the case of Federation of Pakistan through Secretary Education vs. Pr. Dr. Anwar and two others (2006 SCMR 382) the petitioner is entitled for hearing before the competent authority by way of submitting his reply. In this behalf it may be noted that a larger Bench of this Court earlier delivered a judgment in the case of Federation of Pakistan vs. Muhammad Tariq Pirzada and two others (1999 SCMR 2744) and settled that hearing before Section Officer is sufficient. Relying upon the same judgment, learned High Court had observed that hearing before Section Officer will meet the requirements of Article 32 Order PO(1) 1983.
We are inclined to agree with the judgment delivered by a larger Bench comparing the judgment which has been relied upon by the learned counsel, therefore, the earlier view taken in Tariq Pirzada's case (ibid) is approved and petition is dismissed holding that the High Court had rightly declined to interfere in the impugned order following the law laid down in the judgment delivered by a larger Bench of this Court.
Petition is dismissed and leave declined.
(Malik Sharif Ahmed) Leave declined
PLJ 2007 SC 140
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.
MUHAMMAD TUFAIL and 2 others--Appellants
versus
GHAUS MUHAMMAD (deceased) through his Legal Representatives and others--Respondents
Civil Appeals Nos. 69 and 70 of 2001, decided on 12.9.2006.
(On appeal from the judgment dated 21.11.2000 passed by the Lahore High Court, Lahore in Regular Second Appeals Nos. 148 and 149 of 1985).
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 100 & 101--Constitution of Pakistan, 1973, Art. 185(3)--Punjab Pre-emption Act, 1991, S. 15--Respondents filed suits for possession through pre-emption were decreed--First Appellate Court non-suited the pre-emptors holding that they had waived such right--Pre-emptors filed R.S.A. in High Court--Appeals allowed and decrees granted by trial Court restored--Held: Court of second appeal ought to have made a comparative assessment of reasons undertaken by two Courts flowing from the evidence on record--High Court is justified in appreciating the evidence in second appeal in order to determine as to which of the decisions of the Courts below is in accord with evidence on record--Participation in a transaction consists of numerous positive acts like playing an intermediary between the vendor and vendees--Mere presence of somebody during transaction is not at all inferable of positive participation in such transaction and positive relinquishment of right of pre-emption. [Pp. 142 & 143] A, B, C & D
Ch. Imdad Ali Khan, ASC for Appellants.
Mr. Gul Zarin Kiani, ASC with Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 12.9.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Muhammad Tufail, Muhammad Hassan, Jehan Khan and Ali Hassan, appellants purchased 150 Kanals 10 marlas of land in Mauza Chandoor Tehsil Depalpur District Okara vide Mutation # 112 attested on 30.10.1972. Through another transaction they purchased 117 Kanals 18 Marlas of land in the same mauza vide Mutation # 113 attested on 24.1.1973. The amount of consideration in the first sale was Rs. 76,000/- while in the second sale it was Rs. 59,000/-.
Ghaus Muhammad Khan, Abbas Ali Khan, Ghulam Dastgir Khan and Ghulam Mohi-ud-Din Khan filed two separate suits for possession through pre-emption against the aforesaid transactions, on the ground of being co-sharers as well as owners in the estate which rights did not vest in the vendees.
Learned Senior Civil Judge Okara vide his judgment dated 17.3.1983 granted decrees in both the suits on payment of the respective amounts, holding that the pre-emptors had a superior right of pre-emption. The learned District Judge Okara vide his judgment dated 27.3.1985 accepted the appeals and non-suited the pre-emptors holding that though they had superior right of pre-emption yet Ghaus Muhammad Khan pre-emptor had waived such right.
The pre-emptors went in regular second appeals before the High Court where a learned Judge in Chambers vide judgment dated 21.11.2000 accepted the appeals, set aside the judgments of the learned First Appellate Court and restored the decrees granted by the learned trial Court, holding that the only point of waiver raised by the vendees against Ghaus Muhammad Khan, pre-emptor was not proved through evidence. Muhammad Tufail etcetera, the vendees have filed these two appeals, which are taken up together.
The main stance taken by the learned counsel for the appellant/vendees was that the question of waiver is a question of fact which was determined against the pre-emptor Ghaus Muhammad Khan by the learned District Judge, being the last Court of facts, and hence his appreciation of evidence should not have been interfered with by the learned High Court exercising jurisdiction under Sections 100-101 CPC. That the learned High Court should have confined itself only to the questions of law as described by Section 100 CPC and should not have resorted to deep appreciation of evidence.
Learned counsel for the respondents while agreeing the waiver is a question of fact, controverted the point raised, saying, that the two Courts below were at variance regarding a question of fact and the same could not have been decided in the second appeal unless the learned High Court resorted to detailed appreciation of evidence, more particularly, when the learned District Judge had fallen into serious errors of misreading and non-reading of evidence.
A larger Bench of this Court in Allah Din v. Habib (PLD 1982 SC 645) has held that in case of conflicting judgments, the Court of second appeal ought to have made a comparitive assessment of reasons undertaken by the two Courts flowing from the evidence on record. A similar view was taken by a full Bench of this Court in Alloo v. Sher Khan (PLD 1985 SC 382). In this case the trial Court and the appellate Court were at variance with regard to a question of fact while the High Court without comparing the reasoning adopted by the Courts below, agreed with the First Appellate Court. This Court held the view that the finding by the lower appellate Court would be immune from interference in second appeal only if it was found to be substantiated by evidence on record and was supported by logical reasons. This exercise cannot be completed unless the High Court makes a comparison of the reasoning of two Courts, which again, is not possible unless evidence is appreciated. While following the principle of law maintained by this Court, we hold that the learned High Court is justified in appreciating the evidence in second appeal in order to determine as to which of the two decisions of the Courts below is in accord with the evidence on record.
Coming to the evidence on record, we have minutely gone through the same with the assistance of learned counsel on either side. The witnesses of vendees with regard to the assertion of waiver by Ghaus Muhammad Khan, have not gone beyond a bald allegation through a repeated single sentence that the bargains were struck through the plaintiffs. The vernacular reproduction being " " and " ", such solitary sentence cannot at all be considered sufficient to hold that some one had participated in a transaction in such a manner that it gave strong indication of relinquishment of right of pre-emption. Some positive and overt acts by the pre-emptor towards the completion of transaction must be brought on record in material particulars. Participation in a transaction consists of numerous positive acts like playing an intermediary between the vendor and the vendee; like contacting the vendor to persuade him to sell the land; like negotiating between the parties regarding the amount of transaction, so on and so forth. Not a single incident of such a nature was ever brought on record and hence the learned District Judge was not competent to hold such bald allegations as sufficient evidence towards the act of waiver. The learned High Court was fully justified in holding, by appreciation of evidence, that the learned First Appellate Court had fallen into an error of misreading of evidence rather, it was a case where a large set of actions varying with different situations have been assumed by accepting as correct all the consequences of the aforesaid single and bald assertions.
Statement of Patwari Halqa is considered another piece of evidence qua waiver, when he stated in the witness-box that the report in his daily diary qua the transaction was got entered by Muhammad Tufail and Ali Hassan etcetera alongwith Ghaus Muhammad, the pre-emptor. When confronted with the roznamcha he admitted that he had not entered the name of any one in the daily diary except the lumberdar. His evidence regarding Ghaus Muhammad is, therefore, not worthy of credence. Even if it is proved that Ghaus Muhammad or, for that matter, any of the pre-emptors was present at the time of transaction, it does not by itself constitute waiver. Mere presence of somebody during transaction is not at all inferable of positive participation in such transaction and positive relinquishment of the right of pre-emption. In the circumstances, the learned High Court was justified in setting aside the judgment of the learned First Appellate Court.
Last but not the least, even if Ghaus Muhammad is labeled with the act of waiver, he is most likely to loose his individual right. It would never damage the right of Abbas Ali Khan Ghulam Dastgir Khan and Ghulam Mohi-uddin Khan, co-pre-emptors. They will succeed in pre-empting the entire land to the exclusion of Ghaus Muhammad. It is quite interesting to note that they have jointly filed both the appeals before the High Court and are prepared to share the property inter se. Under no circumstances, the three co-pre-emptors could be non-suited for the act of waiver of Ghaus Muhammad, which too, was never proved at all.
Consequent upon what has been discussed above, we are of the view that the learned High Court, in the circumstances, was justified in interfering with the judgment of the First Appellate Court. There being no force in the appeals, both are hereby dismissed.
(Malik Sharif Ahmed) Appeals dismissed
PLJ 2007 SC 143
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
ABDUL AZIZ--Appellant
versus
Sheikh FATEH MUHAMMAD--Respondent
Civil Appeal No. 314 of 2003, decided on 1.11.2006.
(On appeal from the judgment of Lahore High Court, Lahore, dated 19.6.2002 passed in CR 3236/96).
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--First talab--Knowledge of transaction--Pre-emptor had no knowledge of transaction before a particular date, need not to be proved by him but if the pleading is silent about the source of information, the pre-emptor may not be successful in proving the performance of the first talab in accordance with law and in present case--Held: Source of information was not disclosed in the plaint rather subsequently a witness was produced to prove the knowledge of plaintiff regarding sale on the date on which he claimed to have made announcement for filing the suit.
[Pp. 148 & 149] A
PLD 1982 SC 159.
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Concurrent findings--Mixed question of law and facts--Revisional jurisdiction--Interference in the concurrent findings on the controversial question of facts or mixed question of law and facts in revisional jurisdiction for mere reason that another view of evidence would also be possible is not proper. [P. 149] B
(iii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Performance of Talabs--Prove of the facts through evidence--Without pleadings the basic facts, it is not possible to lead evidence on such facts and for exercise of right of pre-emption, performance of talabs is the basic fact and not merely a formality, therefore, the pre-emptor must specifically plead and prove the performance of talabs strictly in accordance with law to maintain the suit--Talab-i-Muwathibat is the foundation for exercise of right of pre-emption. [P. 149] C
2000 SCMR 329, PLD 1994 SC 1.
(iv) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 2-A--Properties located in Urban Area--Subjectto pre-emption--Expression--Immovable property--Determination of--Expression "immovable property" used in S. 2(a) in general terms includes agriculture land situated within municipal limits or cantonment areas stand exempted from law of pre-emption under Punjab Pre-emption Act, 1991 whereas the agriculture land from very inception despite being located in the municipal or cantonment area may not be exempted from law of pre-emption as it after becoming part of town may not necessarily loose its agricultural character--True test to determine the question of character of land, is the use of land located within the boundaries of municipal area and cantonment to bring or exclude it from the purview of pre-emption law, therefore, the contention of counsel for the respondent that the land having been sold with reference to Khasra Numbers through mutation would be treated as agricultural land and no other evidence would be required to prove its agriculture character has no substance. [Pp. 150 & 151] D, E & F
PLD 1982 SC 159.
(v) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 2-A--Charcter of property--Located in Cantonment or Municipal Committee--Law of Pre-emption applies--There is no cavil to the proposition that the land subject to its use and character located in an urban area may not be exempted from operation of law of pre-emption and presumption that all immovable properties including agricultural land, situated in urban area of municipal committee or cantonment would be exempted from operation of law of pre-emption, is reputable as the location of land by itself may not be a conclusive proof of its character.
[P. 151] G
(vi) Interpretation of Statute--
----Validity--Right of pre-emption is predatory in nature and grant or refusal of such right may not depend on compliance or non compliance of technicalities of procedural law but at the same time it being a piratical right, the pre-emptor must establish the existence of right of pre-emption on the date of sale. [P. 152] H
Mr. Gulzarin Kiani, ASC and Mr. M.S. Khattak, AOR for Appellant.
Malik Noor Muhammad Awan, ASC for Respondent.
Date of hearing: 2.2.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 19.6.2002 passed by a learned Judge in chamber in the Lahore High Court, Lahore, in a Civil Revision arising out of a pre-emption suit. Leave was granted vide order dated 4.3.2003 as under:--
"Through this petition under Section 185(3) of the Constitution leave to appeal has been sought against the judgment and decree dated 19.6.2002 passed by a learned Judge in Chamber of the Lahore High Court in Civil Revision No. 3236 of 1996 whereby the judgment and decree dated 4.1.1996 of the learned District Judge Bhakkar affirming the judgment and decree of the learned trial Court dated 30.1.1995 dismissing the respondents pre-emption suit were set aside and the suit was decreed.
The pre-emption suit brought by the respondent pertained to a sale transaction through which the petitioner had purchased land measuring 8 kanals 9 marlas, comprised in Khasra No. 2256 and situated in Bhakkar Municipality, for an ostensible price of Rs. 3,00,000/-. After a hot contest, the suit was dismissed with costs by the learned trial Court mainly on the grounds that the requisite Talabs were not duly made by the pre-emption and the suit land being immovable property situated in the urban area within the limits of the Bhakkar City was not pre-emptible under Section 2(a) of the Punjab Pre-emption Act, 1991. The appeal preferred by the pre-emptor was dismissed by the learned District Judge Bhakkar. However, the ensuing civil revision was accepted by a learned judge in chambers of the Lahore High Court, the judgments and decrees passed by the two Courts below were set aside and the suit was decreed with the observations that talb-i-Muwathibat as well as Talb-i-Ishhad were made by the pre-emptor in accordance with the prescribed procedure and law and the suit land was not exempt from pre-emption under Section 2(a) of the Punjab Pre-emption Act, 1991.
After hearing the learned counsel for the petitioner at length we are inclined to grant leave to consider the following contentions:--
(i) Concurrent findings of fact recorded by the learned trial Court and the learned appellate Court on the fulfilment of Talbs were interfered with by the High Court in revisional jurisdiction without pointing out any misreading or non-reading of evidence.
(ii) The suit land being situated within the Municipal limits of Bhakkar City was "immovable property" as defined in Section 2(a) of Punjab Pre-emption Act, 1991 and as such was immune from pre-emption at the time of its sale on 29.3.1992 and the said provision was declared repugnant to the injunctions of Islam by the Shariat Appellate Bench of this Court with effect from 31.12.1993.
Status quo shall be maintained till the disposal of the appeal."
The land measuring 8 kanals 9 marlas was sold to Abdul Aziz, appellant in the present appeal vide Mutation No. 947 dated 29.1.1992 and the sale was pre-empted by the respondent herein, on the ground of common right of passage and irrigation. The suit was contested by the appellant mainly on the ground that the land falling within the limits of Municipal Committee, Bhakkar was not pre-emptible and that the requirement of talabs for exercise of right of pre-emption was also not fulfilled in accordance with law. The learned Senior Civil Judge, Bhakkar having come to the conclusion that neither suit land was pre-emptible nor plaintiff fulfilled the essential conditions of Talab-i-Muwathibat and Talab-i-Ishhad for exercise of right of pre-emption, dismissed the suit vide judgment dated 30.1.1995 and appeal filed by the pre-emptor was also dismissed by the learned District Judge vide judgment dated 4.11.1996. However, the learned Judge in chamber in the High Court reversed the concurrent findings of the two Courts on the above question in the Civil revision filed by the pre-emptor with the observation that the land subject matter of sale, being an agricultural land, was not exempted from law of pre-emption and that the requirement of talabs for exercise of right of pre-emption was also fulfilled by the pre-emptor in accordance with law and accordingly allowed the civil revision.
Learned counsel for the appellant has contended that notwithstanding the provision of Punjab Alienation of Lands Act, 1900 or any other law for the time being in force, the suit land being falling within the municipal area was exempted from the law of pre-emption in terms of Section 2(a) of Punjab Pre-emption Act, 1991 read with General Clauses Act, 1887, wherein it has been provided that immovable property means immovable property which is situated in any area other than an urban area or within cantonments limits as declared by any law relating to the local bodies or cantonment as the case, may be for the time being and the High Court was misdirected in holding that the suit land being of agricultural character, was subject to the law of pre-emption. The learned counsel has submitted that discrepancies regarding the date of performance of talab-i-Muwathibat and omission of the name of informer in the plaint or in the notice of talab-i-ishhad, would be of no consequence.
Learned counsel for the respondent on the other hand placing reliance on the observations made by the learned Judge in the High Court submitted that in the light of definition of land in the Punjab Alienation Act, 1900, the location of agricultural land in the municipal area would not change its character and by mere reason of its territorial location in the town, it would not be immune from law of pre-emption. The learned counsel placing reliance on Hassan Muhammad Vs Abdul Hameed (PLD 1982 Supreme Court 159) wherein this Court while interpreting the provisions of Section 7 of Punjab Pre-emption Act, 1913 held that agricultural land would not be excluded from the purview of Punjab Pre-emption Act, 1913 merely on account of its inclusion in urban area," submitted that no exception can be taken to the judgment of the High Court.
The learned counsel for the appellant on the question of performance of talabs, has contended that the Court of first instance as well as the appellate Court have concurrently held that pre-emptor having not been able to fulfill the essential requirements of talab-i-Muwathibat and talab-i-ishhad in accordance with law could not exercise the right of pre-emption and maintain the suit whereas, the learned Judge in the High Court reversed the concurrent findings of the two Courts on the above issue with the observation that the contradiction or discrepancy regarding the date of performance of talab-i-Muwathibat would have no material effect as the performance of this talab could be proved on the basis of sole statement of pre-emptor and he was not obliged to produce any other evidence to prove talab-i-Muwathibat. It was also observed that the date and place of making this talab or mentioning of the name of informer in the plaint was not necessary.
The learned counsel for the appellant placing reliance on the judgments of this Court on the subject, contended that without proof of date of performance of talab-i-Muwathibat, the performance of talab-i-Ishhad cannot be proved in accordance with law, therefore, non-disclosure of name of the informer in the plaint or in the notice of talab-i-Ishhad, would negate the claim of pre-emptor regarding performance of the talabs in terms of Section 13 of Punjab Pre-emption Act, 1991 and consequently the right of pre-emption would be defeated.
The essential questions in terms of leave granting order requiring determination would be firstly, whether the High Court without pointing out misreading or non-reading of evidence could interfere in the concurrent findings of the two Courts on the question of non-performance of requirement of talabs in its revisional jurisdiction, secondly whether the suit land being situated within the Municipal limits of Bhakkar, would not acquire the status of urban immovable property and would remain subject to law of pre-emption and thirdly, what would be the effect of the judgment of the Shariat Appellant Bench of this Court by virtue of which Section 2(a) ibid was declared repugnant to the Injunctions of Islam to the extent of restriction on the pre-emptibility of urban immovable property w.e.f 1.12.1993.
The plaintiff pre-emptor in Para 4 of the plaint pleaded as under:--
The vendee/defendant in the written statement controverted the averments of the above para with the assertion that pre-emptor having knowledge of the transaction refused to purchase the land and was thus estopped by his conduct to file the suit and further pre-emptor has not been able to prove the performance of talabs in accordance with law to exercise the right of pre-emption. This may be seen that if the pre-emptor does not disclose the name of person who informed him about the sale, in the plaint, he may not be successful in proving performance of talab-i-Muwathibat on the basis of his oral assertion in his statement before the Court regarding knowledge of sale on the date on which he claimed performance of the first talab may not satisfy the requirement of law. The,'' fact that pre-emptor had no knowledge of transaction before a particular date, need not to be proved by him but if the pleading is silent about the source of information, the pre-emptor may not be successful in proving the performance of the first talab in accordance with law and in the present case, we find that source of information was not disclosed in the plaint rather subsequently a witness was produced to prove the knowledge of plaintiff regarding sale on the date on which he claimed to have made announcement for filing the suit. The law is that without fulfillment of the performance of talabs, the right of pre-emption is defeated and without proving the performance of talab-i-Muwathibat in strict compliance of the law, the right of pre-emption cannot be activated, whereas in the present case, we find that two Courts after detail scrutiny of the evidence of the parties concurrently held that the pre-emptor failed to prove the fulfillment of the requirement of talabs to the entire satisfaction of the law but the learned Judge in the High Court having re-appraised the whole evidence in civil revision, substituted the concurrent findings of two Courts on the issue in complete departure to the settled principle of law that concurrent findings on a question of fact or mixed question of law and fact, cannot be disturbed in civil revision unless the same are found based on conjectures, presumptions, misreading or non-reading of material evidence or erroneous assumption of facts, patent error of law, arbitrary exercise of power or perverse view of the evidence. The interference in the concurrent findings on the controversial question of facts or mixed question of law and facts in the revisional jurisdiction for mere reason that another view of the evidence would also be possible is not proper. In pre-emption suit without pleading the source of information and performance of talabs in the plaint, the pre-emptor may not be in a position to prove the knowledge of sale on the date on which he claimed to have made talab-i-Muwathabat. This Court, not doubt in Noor Muhammad Vs. Abdul Ghani (2000 SCMR 329) has observed that the pre-emptor is not required to give name of the witness in the plaint as the facts required to prove through evidence need not to be specifically mentioned in the pleadings but without pleadings the basic facts, it is not possible to lead evidence on such facts and for exercise of right of pre-emption, performance of talabs is the basic fact and not merely a formality, therefore, the pre-emptor must specifically plead and prove the performance of talabs strictly in accordance with law to maintain the suit. Talab-i-Muwathibat is the foundation for exercise of right of pre-emption and without proving its performance strictly in accordance with the spirit of law, the performance of second talab i.e. talab-i-Ishhad cannot be successfully establish to succeed in the suit.
The provision of Punjab Pre-emption Act, 1991 relating to law of pre-emption in respect of the exemption of urban immovable property was challenged to be repugnant to the Injunctions of Islam before the Federal Shariat Court and ultimately Shariat Appellate Bench of this Court in Muhammad Shabbir Ahmad Khan Vs Government of Punjab Province (PLD 1994 SC 1) held "that exemption of all immovable properties situated in urban areas does not fulfil the requirement of Zaroorat on the basis of which in Shariah a particular property is exempted from the application of law of pre-emption and Section 2(a) of Punjab Pre-emption Act, 1991 is repugnant to Injunctions of Islam to the extent, to which it excludes all urban immovable properties situated in the Municipal and Cantonment limits". The judgment had to take effect from 31.12.1993 and after the target date the sale in respect of all immovable property situated in urban area, would no longer be exempted from the right of pre-emption. However, the sale of land in the present case took place in 1992 and suit was also filed in the same year, therefore, notwithstanding the passing of the decree after the target date, the pre-emptor having no right of pre-emption on the date of sale and on the date of filing the suit could not maintain the suit and therefore, the judgment referred above having no retrospective effect would have no application to the transaction in the present case.
There is no cavil to the proposition raised by the learned counsel that notwithstanding the bar contained in Section 2(a) of Punjab Pre-emption Act, 1913, the sale in the present case, in the light of definition of immovable property under Punjab Alienation of Lands Act, 1900, the agricultural land situated in the municipal area may not be covered by the expression immovable property situated within municipal limits or cantonment area for the purpose of Punjab Pre-emption Act, 1991 but the question whether land is agricultural or urban immovable property being a question of fact, must be proved through evidence in the light of law laid down by this Court in Hassan Muhammad Vs Abdul Hameed (PLD 1982 SC 159) wherein it was held that agricultural land merely on account of being located in an urban area would not be excluded from the purview of law of pre-emption the sale of such land may not be exempted from law of pre-emption.
The expression `immovable property' used in Section 2(a) of Punjab Pre-emption Act, 1991 in general terms includes agricultural land situated in urban area within the limits of municipal committee or cantonment. This Section provides as under:
""immovable property" means immovable property situated in any area other than an urban area or within cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force,"
In the plain words, all immovable properties including agriculture land situated within municipal limits or cantonment areas stand exempted from law of pre-emption under Punjab Pre-emption Act, 1991 whereas the agriculture land from very inception despite being located in the municipal or cantonment area may not be exempted from law of pre-emption as it after becoming part of town may not necessarily loose its agricultural character. However unless it is otherwise proved, the presumption would be that land after becoming the part of municipal area or cantonment has acquired the status of urban immovable property and was no more subject to the law of pre-emption therefore, the pre-emptor would be under heavy burden to prove that land even after becoming part of town was retaining its agricultural character for the purpose of law of pre-emption.
The agriculture land located in urban area may or may not acquire the status of urban immovable property and change its character to claim exemption from law of pre-emption but mere fact that before the inclusion of agriculture land in the cantonment area/municipal limits the land was subject to law of pre-emption would not ipso facto be an evidence of its retaining the agricultural character rather it is to be specifically proved through the evidence that notwithstanding the inclusion of land in the town, it has not changed its character from agriculture land to that of urban immovable property and was subject to the law of pre-emption. The true test to determine the question of character of land, is the use of land located within the boundaries of municipal area and cantonment to bring or exclude it from the purview of pre-emption law therefore, the contention of the learned counsel for the respondent that the land having been sold with reference to Khasra Numbers through mutation would be treated as agricultural land and no other evidence would be required to prove its agriculture character has no substance. The sale of land with reference to Khasra Number through mutation or it being assessed to land revenue would not be sufficient to hold that the land notwithstanding located in the municipal area or cantonment was still holding its agricultural character. The retention of khasra numbers of the agricultural land after its conversion into urban immovable property, in the revenue record for collateral purposes may not be a conclusive evidence to hold that land was agricultural and was subject to law of pre-emption.
There is no cavil to the proposition that the land subject to its use and character located in an urban area may not be exempted from operation of law of pre-emption and presumption that all immovable properties including agricultural land, situated in urban area of municipal committee or cantonment would be exempted from operation of law of pre-emption, is reputable as the location of land by itself may not be a conclusive proof of its character.
The suit land is certainly located within the municipal limits and vendee in addition to the placing on record the notification by virtue of which the revenue estate in which land is situated, was included in the municipal area has also produced evidence in support of the fact that land was being used for residential purpose and has lost the agriculture character whereas pre-emptor on the basis of mutation of sale and Khasra No. of the land mentioned therein has pleaded that it was agricultural land. The conclusion of the two Courts on the above controversial question of fact was that at the time of sale, land had changed its character and it was no more an agriculture land, but the High Court taking a contrary view, held that notwithstanding the location of land within the municipal limits, it was being recognized as agriculture character and would not be exempted from the law of pre-emption.
This is not disputed that agricultural land despite becoming part of town, may not change its character but the question whether a particular land having become part of town, has not changed its character is a pure question of fact and burden of proving this fact, would be on the pre-emptor who claimed right of pre-emption. The presumption regarding the agricultural character of land cannot be raised for mere reason that before becoming part of town it was agriculture land rather the presumption would be that after becoming part of municipal or cantonment area, it has acquire the status of urban immovable property.
This is correct that the right of pre-emption is predatory in nature and grant or refusal of such right may not depend on compliance or non compliance of technicalities of procedural law but at the same time it being a piratical right, the pre-emptor must establish the existence of right of pre-emption on the date of sale, on the date of institution of suit and on the date of passing the decree and must also fulfil the essential condition of talabs for exercise of right of pre-emption.
After hearing the learned counsel for the parties and perused the record with their assistance we have not been able to find out any factual or legal defect or infirmity in the concurrent findings of two Courts subordinate to the High Court, calling for interference of the High Court in its revisional jurisdiction.
In the light of forgoing reasons we set aside the judgment of the High Court and allow this appeal with no order as to the costs.
(Malik Sharif Ahmed) Appeal allowed
PLJ 2007 SC 152
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. & Muhammad Nawaz Abbasi, J.
ZULFIQAR and others--Petitioners
versus
Mst. NIAZ BIBI (deced) and others--Respondents
Civil Petitions Nos. 1590 to 1595 of 2005, decided on 10.10.2006.
(On appeal from the judgment of Lahore High Court, Multan Bench, dated 2.2.2005 passed in Civil Revisions Nos. 106 to 109, 173 and 340 of 1996).
Punjab Law Act, 1872--
----S. 5--Muhammadan Law--Question of restriction--Fundamental right--Law of Shariah--Justified--The question whether restriction on the alienation would be justified and would not be in conflict to the fundamental right of a person and law of Shariah, would also require examination. Leave to appeal is accordingly granted. [P. 154] A
1974 SCMR 341.
Mr. Gulzarin Kiyani, ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 10.10.2006.
Order
Iftikhar Muhammad Chaudhry, C.J.--These petitions have been filed for leave to appeal against the judgment dated 2.2.2005 passed by Lahore High Court, Multan Bench.
"Needless to state that he alienated the property as a Muslim owner. The custom having been declared to be void by a competent authority even within the meaning of un-amended Section 5 of the Punjab Laws Act, 1872 and the derogatory provision having already been removed by the competent legislature, there can possibly be no restriction on the powers of Ghulam Mustafa to alienate the land which could be enforceable under the Hindu Customary Law, as is being sought to be done by the petitioners in these cases."
Learned counsel for the petitioners contended that the findings recorded by the High Court were contrary to the law declared by this Court in Mst. Khatun Vs. Malla and 5 others (1974 SCMR 341) wherein it has been held that notwithstanding the enforcement of West Pakistan Muslim Personal Law (Shariat) Act, 1948 and 1951 the ancestral property obtained by a person being governed by custom would remain subject to the agricultural custom.
After hearing the learned counsel and having gone through the judgments dated 7.11.2002 passed by this Court in Civil Appeals Nos. 744 to 749 of 1999 in the same matter, we are inclined to grant leave to appeal inter alia to examine the question whether the property owned by a Muslim which was being governed by the agriculture custom before enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 and 1951 would continue to be governed by the customary law as was observed by this Court in the judgment referred above Mst. Khatun Vs. Malla and 5 others (1974 SCMR 341) or the view taken in Abdul Ghafoor Vs. Muhammad Shafi (PLD 1985 SC 407) would prevail and the limited owner would not acquire the status of full owner under the law. The question whether restriction on the alienation would be justified and would not be in conflict to the fundamental right of a person and law of Shariah, would also require examination. Leave to appeal is accordingly granted in all these cases.
(Khalid Awan) Leave granted
PLJ 2007 SC 155
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ch. Ijaz Ahmad, JJ.
SHAFI MUHAMMAD & Others--Petitioners
versus
KHANZADA GUL and others--Respondents
C.P. No. 341-P of 2003, decided on 14.9.2006.
(Against the judgment dated 2.5.2003 passed by the Peshawar High Court, Peshawar passed in Civil Revision No. 127 of 2003).
(i) Administrative of Law--
----Trial Court had decreed the suit after proper appreciation of evidence on record in favour of respondent--As trial Court had consolidated suits on account of plaintiff or defendant Inter-se which did not change effect of appreciation of evidence by trial Court--Therefore, contention of learned counsel for the petitioner had no force in eyes of law. [P. 158] B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973--Arts. 199 & 185(3)--Leave to appeal--Jurisdiction of High Court--High Court had very limited jurisdiction to disturb the concurrent findings of fact recorded by Courts below while exercising power u/S. 115 CPC unless and until the Courts below had given concurrent findings of fact by misreading or non-reading of the record or in violation of any principle laid down by superior Courts. [P. 157] A
(iii) Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Opinion of Courts--Supreme Court does not normally interfere in concurrent conclusions arrived at by Courts below while exercising power under Art. 185(3) of Constitution--Supreme Court as rule, should give due weight and consideration to opinions of Courts below and in particular to opinion of Courts of first instance which had advantage of hearing the parties witnesses and watching their demeanour as law laid down by Supreme Court--Leave was refused.
[P. 158] D
(iv) Memorandum--
----Parties are bound by pleadings as law laid down by Supreme Court in (PLD 1974 SC 322)--Memorandum of revision petition as well in memorandum of petitioner before Supreme Court. [P. 158] C
PLD 1977 SC 109, PLD 1973 SC 469 and PLD 1976 SC 767.
Mr. M. Kowkab Iqbal, ASC for Petitioners.
Nemo for the Respondents.
Date of hearing: 14.9.2006.
Order
Ch. Ijaz Ahmad, J.--The petitioners have sought leave to appeal against the judgment dated 2.5.2003 of the Peshawar High Court wherein civil revision was dismissed while upholding the concurrent judgments of Courts below.
Brief facts out of which the present petition arises are that petitioners filed Civil Suit No. 19/1 of 1992 against respondent Khan Zad Gul etc. seeking the possession through redemption of mortgage of the property in question measuring 9 kanals, 5 marlas on payment of Rs. 800/- as mortgaged money of the property in the Court of Civil Judge Karak whereas Respondent No. 1 Khan Zad Gul and another filed Suit No. 26/1 of 1995 against Gul Sarwar, Shafi Muhammad etc. for declaration in the Court of Senior Civil Judge Karak. The contents of the plaint of Khan Zad Gul and another reveal that Defendant No. 1 Gul Sarwar is not mortgagee of the suit property as the Respondent No. 1/plaintiff Khan Zad Gul is mortgagee as such in possession of the property in question, Khan Zad Gul etc. solicits for correction of their names in the revenue record to that effect. Both the suits were consolidated vide order dated 24.6.1998. Petitioners as well as respondents had filed written statement controverted the allegations levelled in the aforesaid suits by the respondent parties. Out of the pleadings of the parties, the trial Court framed the consolidated issues which are at page 29 of the paper book. Proceedings were recorded in Civil Suit No. 19/1 of 1992. The learned trial Court vide consolidated judgment decreed the suit of Respondent No. 1 and dismissed the suit of the petitioners vide judgment and decree dated 12.1.2000. Petitioner being aggrieved filed appeal before the District Judge Karak on 2.3.2000 who dismissed the same vide judgment and decree dated 23.1.2003. Petitioners being aggrieved filed civil revision which was also dismissed by the learned High Court vide impugned judgment dated 18.4.2003.
The learned counsel for the petitioners submits that all the Courts below had decreed the suit of Respondent No. 1 plaintiff by misreading and non-reading of the record specially the plaint filed by the respondent/plaintiff in Suit No. 226/1 of 1995 read with finding of the trial Court on Issue No. 8 wherein learned trial Court had decided the Issue No. 8 against respondent and inspite of the findings on Issue No. 8 against the respondent. Trial Court had erred in law to decree the suit in his favour. He further maintains that the same mistake was committed by the First Appellate Court and the learned High Court. He further urges that all the Courts below had erred in law to dismiss the suit of the petitioners on the point of limitation inspite of the fact that Section 28 had already been declared un-islamic.
We have considered the submissions of learned counsel for the petitioners and have perused the record. The learned High Court after re-appraisal of the evidence and case law on the subject dismissed the revision petition in the following term:--
"Therefore keeping in view the dicta laid down by the August Supreme Court of Pakistan in the above quoted judgments I am of the firm view that the sub-mortgages created in favour of other persons and their redemption would not give fresh start of limitation unless acknowledge by the mortgagers in writing and signed by the person making it. The provisions of Section 19 of the Limitation Act 1908 would not, therefore, in absence of the above mentioned condition be attracted. The Courts below have rightly dismissed the suit as well as the appeal filed by the petitioner.
I have not been able to find out any mis-reading/non-reading of evidence, or any material irregularity or any jurisdictional error or defect in the impugned concurrent findings of the Courts of competent jurisdiction".
"This section empowers the High Court to satisfy itself upon three matters; (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law".
Issue No. 8.
"Whether the defendant/plaintiff Khan Zad Gul etc. have purchased the suit property from the predecessor of present plaintiffs? OPP
SENTENCE AFTER DISCUSSING OF EVIDENCE.
"Issue No. 8 is decided in negative".
(i) Malik Muhammad Ishaque's case (PLD 1977 SC 109).
(ii) Noor's case (PLD 1973 SC 469).
(iii) Shah Nawaz's case (PLD 1976 SC 767).
(Rafaqat Ali Sohal) Leave declined
PLJ 2007 SC 159
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
Miss SHAZIA BATOOL--Appellant
versus
GOVERNMENT OF BALOCHISTAN, etc.--Respondents
Civil Appeal No. 436 of 2004, decided on 6.5.2005.
(On appeal from the judgment dated 2.10.2002 of the High Court of Balochistan, Quetta passed in C.P. No. 137 of 2002).
(i) Constitution of Pakistan--
----Arts. 2-A, 22, 25 & 37-C--Bolan Medical College--Equal right of education--Underdeveloped regions would be deemed to have been done with a view to provide better and equal opportunities to the students of backward and underdeveloped areas of Districts/Agencies and regions--Paragraph 4 did not deprive any deserving student from being admitted to Bolan Medical College--Thus, Paragraph 3 and 4 in no way can be said to be repugnant/violative of Articles 2A, 22, 25 and 37-C of the Constitution of Pakistan. [P. 167] A
(ii) Constitution of Pakistan--
----Art. 2-A--PMDC regulations--Quota system--Scope--Government of Balochistan has provided access to the students of backward, less developed and down trodden areas of the Province of Balochistan to higher education to enable them to compete with the students, persons or class of persons/students who were enjoying better social or economic status or position or were having access to higher education on the basis of such better status which opportunity or advantage would not be available to them. [P. 167] B
(iii) Constitution of Pakistan, 1973--
----Arts. 25 & 37-C--Direction to Government--Merit System--Policy Matters--Public interest--Contention that the Government be directed to frame or formulate admission policy for medical Colleges by allocating the seats on all provincial merit basis without making any allocation or distribution of seats to various districts or other agencies of the Province has no force as this Court will not issue or give directions relating to a policy matter if the existing policy as framed or formulated on an issue, whether it related to admission of students in professional colleges or any other issue of public importance provided that such policy is not found to be arbitrary, aristocratic, against any provisions of law or principles of natural justice and also not violative of the Constitutional provisions relating to the various fundamental rights guaranteed to the citizens.
[P. 170] C
Appellant in person.
Mr. Amanullah Tareen, Addl. A.G. Balochistan-Quetta Mr. Kamran Murtaza, ASC, Raja Abdul Ghafoor, AOR, Mr. Manzoor Hussain, Addl. Secretary, Mr. Abdul Malik, Principal Bolan Medical College for Respondents.
Date of hearing: 6.5.2005.
Judgment
Saiyed Saeed Ashhad, J.--This appeal by leave of the Court is directed against the judgment of the Balochistan High Court dated 2.10.2002 whereby appellant's petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was dismissed.
(a) That the provisions 3, 4, 7 and 10 of the Prospectus of BMC, Quetta for the session 2000-2001 are liable to be struck down being un-reasonable and discriminatory and un-lslamic and un-constitutional.
(b) That the bifurcation of MBBS seats allocated to Quetta District into Quetta Urban and Quetta Rural is unreasonable and illegal and prayed to be declared as such.
(c) That the Respondents 5, 6 and 7 are admitted illegally and without entitlement by the unlawful authority.
(d) That the petitioner is entitled for admission to First Year MBBS class of BMC Quetta for the Session 2000-2001 under every circumstances on open merit seats or District merit seats or on compensatory grounds as an exceptional case.
(e) That the clauses 3, 4, 7 and 10 of the Prospectus may be reviewed as the inter-alia laid down by the decisions and judgments of superior Courts and provisions of the constitution.
(f) That PMDC Regulations may be followed by the BMC in order to maintain the standard of medical education at par with the other medical institutions.
(g) That the petitioner may be granted interim relief by allowing her provisional admission in First year MBBS class pending disposal of this amended petition on merits.
(h) That officials respondents may be directed that in future they must start the process of MBBS admission just within the three months after the announcement of F.Sc. result by Balochistan Board.
(i) Any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case may be granted in the interest of justice and equity and fair play".
(j) Whether the incorporation of clauses 3, 4, 7, 10, 23 and introduction of classification between the candidates of Quetta Urban and Quetta Rural of the impugned Prospectus of the Bolan Medical College, Quetta are discriminatory, violative of the provisions of Articles 2-A, 22, 25 and 37-C of the Constitution of Islamic Republic of Pakistan and the law laid down by this Court in the cases of Mst. Attiya Bibi Khan versus Federation of Pakistan through Secretary Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161), Shireen Raza and others versus Federation of Pakistan through Secretary, Ministry of Education Islamabad and others (2002 SCMR 1218) and Abdul Baqi and others versus Muhammad Akram and others (PLD 2003 SC 163).
(k) Whether it was necessary for the petitioner to implead, in the writ petition, all other candidates who had secured lessor marks than him and were admitted to M.B.B.S. First Professional Examination course on quota basis".
We have heard the arguments of the appellant who was represented by his attorney/father Dr. Imdad Hussain, Mr. Amanullah Tareen, Addl. A.G. on behalf of Government of Balochistan, and Mr. Kamran Murtaza, ASC on behalf of the Principal of Bolan Medical College.
Dr. Imdad Hussain, attorney of the appellant at the very out set submitted that allocation or distribution of seats in Bolan Medical College on the basis of Districts and Agencies or on any other basis and further that reservation of seats under various quotas was against the provisions of the Constitution and natural justice as it amounted to deprive a citizen of his right to acquire education as per his or her choice which was the duty of the Government to guarantee such right to every citizen by formulating or providing an admission policy according to which admissions to Medical Colleges ought to be given solely on the basis of merit list to be provided on provincial basis without allocation/distribution of seats to the districts or agencies or classification on the basis of students in different categories which would result in depriving meritorious and good students from admission and enable average or below average students to obtain admissions, consequently resulting in deterioration and diminishing the standard and quality of the Doctors and medical profession. According to him, this would be harmful, damaging and cause immense hardships and problems to the public at large. In view of his above arguments, he submitted that the provisions of paragraphs 3, 4, 7 and 10 of the Prospectus of Bolan Medical College, Quetta for admission for the session 2000-2001 were liable to be struck down being unreasonable, discriminatory, un-Islamic and un-constitutional as they were in clear violation of Articles 2-A, 22, 25 and 37-C of the Constitution of Islamic Republic of Pakistan and the laid down by this Court.
Learned Addl. A.G. Balochistan fully supported the judgment of the Balochistan High Court and submitted that paragraphs 3, 4, 7, 10 and 23 of the Prospectus for the session 2000-2001 were neither violative or contrary to the provisions of Articles 2-A., 22, 25 and 37-C of the Constitution nor offended the pronouncements or the principles laid down by this Court in the case of Mst. Attiyya Bibi Khan versus Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161), (ii) Shireen Raza and others Vs. Federation of Pakistan (2002 SCMR 1218); and (iii) Abdul Baqi Vs. Muhammad Akram and others (PLD 2003 SC 163).
Mr. Kamran Murtaza, ASC appearing on behalf of Bolan Medical College adopted the arguments of the learned Additional Advocate General and specifically drawn our attention to the case of Abdul Baqi and others versus Muhammad Akram and others (PLD 2003 SC 163) wherein distribution/allocation of seats in the Medical Colleges for various districts/agencies and classification or categorization of candidates made with a view to provide better opportunity to the under developed or backward areas of a Province with a view to enable them to have access to higher education was held to be in no way contrary or in conflict with the provisions of Articles 2-A, 22, 25 and 37-C of the Constitution and further that a reasonable classification as well as allocation or distribution of seats on Districts/Agencies basis would be permissible.
In order to fully appreciate the arguments of the attorney of the appellant and to find out whether the paragraphs of the Prospectus referred to above violate the afore-stated Articles of the Constitution as well as the pronouncements made by this Court in afore-stated cases, it will be appropriate to re-produce paragraphs 3, 4, 7, 10 and 23 of the Prospectus as well as Articles 2-A, 22, 25 and 37-C of the Constitution as under:--
PARAGRAPHS OF THE PROSPECTUS
(a) District Merit Seats 103
(b) Provincial Merit Seats 10
(c) Reserved seats for:-
(1) Disabled persons of Balochistan 01 seats
(2) Foreign National (Nomination Are placed on the Discretion of Economic Affairs Division Islamabad Irrespective of any nationality)...... 18 seats
(3) FATA......... 07 seats
(4) Azad Kashmir...... 06 seats
(5) Northern Area... 01 seats
Total 146 seats
The allocation of Seats to various Districts/Agencies is as under:
S.No. Name of the Population Allocation of seats
Quetta District 7,59,245 8.81 =10 seats
Pishin 3,67,183 =05 seats
Killa Abdullah 3,70,280 =04 seats
Chagai 2,02,564 2.78 =03 seats
Loralai 4,95,156 8.91 =10 seats
Zhob 3.75,142 4.94 =05 seats
Killa Saifullah 1,93,553 3.05 =03 seats
Naseer Abad 6,78,711 8.93 =09 seats
Kachhi 3,67,997 8.44 =07 seats
Sibi 2,10,398 2,27 =02 seats
Ziarat 73,340 .71 =02 seats
Kohlu 99,845 2.45 =02 seats
Dera Bugti 1,81,310 1.67 =02 seats
Kalat 2,37,834 4.90 =05 seats
Mastung 1,99,645 3.09 =03 seats
Khuzadar 4,17,466 5.62 =06 seats
Awaran 1,18,173 2.37 =02 seats
Lesbella 3,12,995 4.33 =04 seats
Kharan 2,06,909 2.99 =03 seats
Kech 4,13,294 8.76 =09 seats
Punjgur 2,34,051 =04 seats
Gwadur 1,85,498 =03 seats
Total 65,65,189 103 seats
(a) 70% seats shall be allocated to those candidates who got their education (metric and F.Sc ) from outside their native district, (b) 30% seats shall be allocated to those candidates who got their education (metric and F.Sc) from their native district, (c) Where ever the reserved seats are only 2, these seats shall be allocated on 50% basis.
(d) If the distribution of seats are not in whole figures, but fractions, the benefit of fraction .0 to .5 would go to the students who have acquired education within the district and conversely benefit of fraction .5 to .9 would go to students who have education outside their native district.
(e) In case a candidate has acquired his/her education from two different districts, his/her case shall he decided by the Selection Committee.
(f) Whereby the candidates from Quetta District shall be allocated only on merit basis.
(a) Quetta, Pishin, Killa Abdullah, Chagai, Sibi, Ziarat, Kohlu, Dera Bugti, Zhob, Killa Saifullah, Loralai (excluding the Provincially Administered Tribal Areas)-one seat.
(b) Kalat, Mustung, Khuzadar, Lasbella, Kharan, Awaran, Kech, Punjgur, Gwadur, Naseerabad, Kechhi-One seat.
(c) Provincially Administered Tribal Areas of Balochistan namely (1) Dallbandin Tehsil of Chagai District (2) Zhob, Killa Saifullah, Loralai District (excluding Dukki Tehsil (3) Kohlu Agency Dera Bugti Agency-One seat).
ARTICLES OF THE CONSTITUTION
Article 2-A: The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly].
Article 22: (1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.
(2) In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.
(3) Subject to law,--
(a) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination; and
(b) No citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.
(3) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens.
Article 25: (1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(4) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
Article 37(c): Make technical and professional education generally available and higher education equally accessible to all on the basis of merit;
From a bare reading of Paragraphs 3, 4, 7, 10 and 23 of the Prospectus for admission to Bolan Medical College for the academic session 2000-2001, it is difficult to comprehend or visualize as to how the said paragraphs can be said to be violative or contrary to the provisions of any of the aforesaid Articles of the Constitution. Paragraph 3 provides for break up of the total 146 seats available in the Bolan Medical College for admission in the session 2000-2001. According to this break up 103 seats were allocated to all the districts of the Province of Balochistan; 10 seats were allocated for merit; one seat was reserved for disabled persons, 18 seats were reserved for foreign nationals, 7 seats were reserved for FATA; 6 seats were reserved for Azad Kashmir and one seat was reserved for Northern Areas. In view of the pronouncement of this Court in Mst. Attiyya Bibi Khan's case (supra) reproduced hereinafter no exception can be taken to allocation/distribution of seats on the basis of districts, agencies and regions as well as reservation for certain classes of students. Paragraph 4 of the prospectus provided for distribution of merit seats of Bolan Medical College among 22 districts/agencies of Balochistan on population basis. As has already been observed above, as well as the observations in the case of Mst. Attiyya Bibi Khan (supra) distribution of merit seats amongst districts/agencies and classification on the basis of disability, reciprocal basis, reservation for foreign nationals and for backward and underdeveloped regions would be deemed to have been done with a view to provide better and equal opportunities to the students of backward and underdeveloped areas of Districts/agencies and regions. Paragraph 4 did not deprive any deserving student from being admitted to Bolan Medical College. Thus, paragraph 3 and 4 in no way can be said to be repugnant/violative of Articles 2A, 22, 25 and 37-C of the Constitution of Islamic Republic of Pakistan.
The above allocation or distribution of seats to Districts/Agencies or seats reserved on quota basis, such as, disabled persons, foreign nationals, reciprocal basis as provided in Clauses 1 to 5 of sub-paragraph (c) of paragraph-3 of the Prospectus also can not by any stretch of imagination be said to be arbitrary, whimsical or in violation of rights of the appellant as guaranteed by the Constitution. Similarly, Paragraphs 4 and 7 of the Prospectus also provided equal opportunity to the students belonging to backward or undeveloped Districts/Areas/Agencies of Balochistan by reserving seats of every District and Agency on the basis of population of each District and Agency. By doing so, the Government of Balochistan has provided access to the students of backward, less developed and down trodden areas of the Province of Balochistan to higher education to enable them to compete with the students, persons or class of persons/students who were enjoying better social or economic status or position or were having access to higher education on the basis of such better status which opportunity or advantage would not be available to them but for the above Paragraphs 3, 4, 7, 10 and 23 of the Prospectus.
Legality of Paragraph-7 of the Prospectus of Bolan Medical College for session 2000-2001 was examined by this Court in the case of Abdul Baqi and others versus Muhammad Akram and others (PLD 2003 SC 163) in the light of Articles 2-A, 22, 25 and 37-C of the Constitution and it was observed that the rationale behind distribution of seat for admission being present and classification on intelligible differentia was struck, Para 7 of the Prospectus of Bolan Medical College 2000-2001 was not ultra vires the provisions of the above said Articles of the Constitution. It will be appropriate to reproduce the relevant passage from this judgment as under:-
"9. It is to be observed that prior to present paragraph 7 incorporated in the Prospectus of Bolan Medical College for the year 2000-2001 candidates used to get admission on the basis of reserved quota district-wise except few seats which were earmarked for provincial merit basis but on the pronouncement of judgment in Mst. Attiyya Bibi Khan (ibid) and also taking into consideration admission of review petition referred to hereinabove the Government of Balochistan allocated seats for admission in Bolan Medical College by creating two different classes under the different circumstances namely 70% seats were earmarked for those candidates who got the education from outside their native districts and 30% seats were allocated to those candidates who got their education (Matriculation and F.Sc) from their native districts. There is a rational behind the distribution of seats viz 30% and 70% namely majority of the students do manage their education including Matriculation and F.Sc. from outside their native districts like Quetta etc. where more congenial educational atmosphere is available on account of which they receive education in altogether different circumstances comparing to the students who for lack of sufficient financial means receive their education including Matriculation and F.Sc., within their native districts under less congenial educational atmosphere and facilities like far-flung areas of Dera Bugti etc. It is an admitted fact that the students for whom 30% seats have been allocated fall in that class/category who are left with no option but to receive education in their native districts on account of financial compulsion or some other social reasons, therefore, the allocation of the seats at the rate of 70% and 30% was made keeping in view the intelligible differentia because it was all the more necessary to accommodate those students who had received education in less congenial educational atmosphere and for such reason they cannot compete with the students who had received education of Matriculation and F.Sc. in a better and renowned educational institutions situated in urban areas like Quetta etc. It may be noted that majority of students for whom 30% seats have been allocated belong to rural areas, therefore, there were sufficient basis or reasons to create two classes for admission in Bolan Medical College one for those students who have passed their Matriculation and F.Sc. Examination from outside their native districts for the reasons mentioned hereinabove and the other for those who have received such education within their native districts. Thus we are of the opinion that the classification on intelligible differentia was struck in accordance with the pronouncement made by this Court in the cases of Mst. Attiyya Bibi Khan (ibid) and Shireen Raza and others (ibid). Therefore the learned Division Bench of Baluchistan High Court had wrongly declared paragraph 7 of the Prospectus as ultra vires the provisions of Articles 22(4), 25, 37 and 38 of the Constitution."
"......Article 25 of the Constitution unambiguously guarantees that all citizens are equal before law and are entitled to equal protection and that they shall not be discriminated on the basis of sex alone. Inter alia, Articles 2-A, 18 and 25 of the Constitution are designed, intended and directed to bring about an egalitarian society based on Islamic concept of social justice. Needless to reiterate, there is no difference between individuals of mankind on the basis of race, colour and territory and that all human beings are equal I the eyes of Allah as He created all from a quintessence of clay ....................
8................Article 25 apart from stipulating equality and equal protection of law to all citizens expressly prohibits discrimination on the basis of sex and provides that the State may make special provision is for protection of women and children. Article 22 of the Constitution forbids discrimination on the grounds of race, religion, caste or place of birth in educational institutions, receiving aid from public revenue but enables a public authority to make provisions for the advancement of any socially or educationally backward class of citizens. Article 37(c) inter alia requires that the State shall make technical and professional education generally available and higher educational equally accessible to all on the basis of merit."
................Thus, reading Article 25 alongwith Articles 2A, 22 and 37(c) of the Constitution would show that only such classification could be deemed reasonable which fosters the objects of the Constitution i.e. to make higher education available on merit and at the same time to accommodate the interest of the socially or economically disadvantages sections of the people for the purpose of fostering genuine rather than nominal equality.
Applying the above test special reservation in favour of doctors' sons and daughters cannot pass the test of reasonable classification. Such classification has nothing to do with the merit of a child and there is no justification to give preferential treatment to a student who happens to have been born in a doctor's family. Likewise, there is no justification for reserving seats for children of armed forces Personnel more particularly when Army Medical College Rawalpindi should suffice to cater their needs overwhelmingly. Furthermore, such students are eligible for admission in all other Colleges on the basis of their permanent residence and on the criteria of merit. Learned counsel for the Adjutant-General, Pakistan Army, General Headquarters, having been heard by this Court at sufficient length, the grievance that this appellant had no opportunity of hearing before the High Court should come to an end.
However, with respect of disabled persons and candidates from the backward and underdeveloped districts and FATA, position is altogether different. It must be remembered that the concept of a reasonable classification is premised on the principle that the object is not to secure nominal or formal equality but genuine equality amongst different classes or groups of citizens. .................. In the same sprit Articles 22 and 25 of the Constitution permit special provision to be made for women and children or socially or educationally backward and underdeveloped classes. Therefore, reservation of seats of such category may be justified........"
From a bare reading of the above passages reproduced from the case of Mst. Attiyya Bibi Khan (supra) it is to be noted that this Court has categorically held that a reasonable classification/categorization with a view to provide better facilities to the students of underdeveloped and backward areas and to have right to be treated alike with students who were placed on better footings, were provided better facilities in obtaining education, and enjoyed a better and higher social and economical standard of living so as to bring them at par with elite/advanced class of a particular province.
The above pronouncement completely demolish the arguments of the attorney of the appellant that distribution/allocation of seats for the districts and agencies on the basis of merit as well as Provincial merit basis and reservation of seats for disabled persons, foreign nationals and for students of other Provinces on reciprocal basis was ultra vires of the Constitutional provisions as well as the principle of natural justice. His contention that the Government be directed to frame or formulate admission policy for Medical Colleges by allocating the seats on all provincial merit basis without making any allocation or distribution of seats to various districts or other agencies of the Province has no force as this Court will not issue or give directions relating to a policy matter if the existing policy as framed or formulated on an issue whether it related to admission of students in professional colleges or any other issue of public importance provided that such policy is not found to be arbitrary, aristocratic, against any provisions of law or principles of natural justice and also not violative of the Constitutional provisions relating to the various fundamental rights guaranteed to the citizens. From perusal of Paragraph 10 it transpires that it provides for selection of candidates against three seats in Fatima Jinnah Girls Medical Colleges, Lahore to be made, from among the eligible girl candidates of the Province in the manner provided in sub-paragraphs a, b and c. It is difficult to conceive as to how the manner in which selection of the girl candidates for admission to Fatima Jinnah Girls Medical College is made can be said to be violative to the provisions of Articles 2-A, 22, 25 and 37(c) of the Constitution on the principle of natural justice. As a matter of fact, it provides opportunity to all the girl students of the province to compete with each other on district basis. This paragraph also cannot be said to be repugnant to the provisions of any of the above Articles. Paragraph 23 of the Prospectus lays down the minimum qualification for a candidate's admission to MBBS/BDS class to be Intermediate Science (pre-medical) examination from the Board of Intermediate and Secondary Education, Balochistan, Quetta or any recognized Board or University. It is beyond comprehension how this paragraph can be said to be repugnant to or violative of any of the afore-stated Articles 2A, 22,25 or 37(c) of the Constitution.
The contention of the appellant's attorney relating to the illegality or violation of Constitutional provisions in bifurcating/dividing District Quetta into urban and rural area does not carry weight requiring consideration as even by treating the whole of District Quetta as urban area the appellant would not stand to gain anything as being placed at Sr. No. 34 in the merit list of the students for Quetta District would not succeed in getting admission against one of the ten seats allocated to Quetta District irrespective of the fact whether they are treated as 10 seats of the urban Quetta District or divided into 7 and 3 seats on the basis of Quetta Urban and Quetta Rural. However, Quetta having been declared as urban area it could not perhaps be divided into urban and rural areas by declaring the slums or the less developed areas of District Quetta as rural areas.
The next contention advanced by the attorney of the appellant was that about 75 students who had secured lesser marks than the appellant, who on account of their lesser percentage did not qualify were allowed to appear in the entry test and failed to qualify the entry test were provided admission in Bolan Medical College solely on the basis of allocation/distribution of seats to the Districts/Agencies of the Province. He further submitted that had the Government framed or provided a policy for admission to Bolan Medical College solely on Provincial merit without distribution/allocation of seats to the Districts and Agencies, then the appellant who is students at Sr. No. 74 of all Provincial merit list would have succeeded in getting admission as there were about 116 seats available in the session for the year 2000-2001. In this context, it is to be seen that neither the names of those 75 students have been mentioned nor there is any material on record to substantiate the contention that they had obtained lesser percentage of marks in the entry test, or they were not legible to appear in the entry test or that they failed to qualify the entry test. Secondly such students were neither joined in the Constitutional petition filed by the appellant before the Balochistan High Court nor they have been arrayed in this appeal as such in the absence of such persons, no adverse action or order can be passed as held by this Court in the case of Shireen Raza and others Vs. Federation of Pakistan (2002 SCMR 1218). In a large number of cases this Court has held that no adverse order can be passed against any person in violation of the principle of natural justice without affording an opportunity of hearing and such an order would be a void order rendering all subsequent proceedings illegal.
The next contention advanced by the attorney of the appellant was that seeking education of one's choice was a fundamental right guaranteed to every citizen by the Constitution of Pakistan and this Court as guardian of the fundamental rights would not allow violation of such right on account of any arbitrary, illegal or unconstitutional action of the Government or any public functionary. He further submitted that the admission policy framed or provided by the Government of Balochistan being arbitrary, whimsical and against the provisions of Articles 2-A, 22, 25 and 37(c) of the Constitution had illegally and wrongly deprived the appellant from obtaining admission in Bolan Medical College as a result of which she was deprived of her Constitutional right of seeking medical education and had resulted in great injustice and inconvenience to her for the redress of which this Court can order creation of a special seat in Bolan Medical College to provide admission to the appellant. The contention advanced by the appellant is devoid of force. The above course was adopted by Lahore High Court in a Constitutional petition filed by a student who had failed to obtain admission in a medical college and on the orders of Lahore High Court, admission was given to him by providing/creating a special seat in the First Year MBBS Class by the Government of Punjab. The Principal of the concerned Medical College had assailed the order of the Government before this Court in the case of The Chairman, Selection Committee, Bolan Medical College, Quetta etc. Vs. Miss Safia Hameed etc. (1979 SCMR 529) and this Court disapproved the action of the Lahore High Court in ordering creation of seat for absorbing the affected student and set aside the order holding that such cause was not within lawful authority of the High Court.
For the foregoing facts, discussions and reasons, this civil appeal is found to be without any substance. The learned Division Bench of the Balochistan High Court had rightly dismissed the constitutional petition of the appellant and no ground has been made out for interference with the said judgment. Accordingly, this appeal is dismissed with no order as to costs.
Muhammad Nawaz Abbasi, J.--I have the privilege to go through the judgment authored by learned brother Saiyed Saeed Ashhad, J. and being of the different view on the question of allocation of district-wise quota, would like to add my separate note.
The controversy involved in the present appeal relates to the policy of admission in MBBS course in the 1st year in Bolan Medical College, Quetta (hereinafter called `the college') on the basis of allocation of seats for each district in the Province. The appellant herein applied for admission in the 1st year MBBS Course for the Session 2001-2002 against the reserved seats of district Quetta and having obtained 61.90% marks, secured 34th position in the merit list of district Quetta whereas in the general merit list, she was at Serial No. 74 and her grievance was that as per her merits in the general list, she was entitled to admission as 75 candidates, below to her in overall merit position, have been given admission due to the district-wise allocation of seats. The selection process on the basis of district-wise quota in consequence to which the appellant despite having secured highest position on the combined merit list, failed to get admission in the Bolan Medical College, Quetta, was challenged by her in a Constitutional petition in the High Court of Balochistan at Quetta seeking a declaration that certain provisions in the prospectus containing admission policy for the Session 2001-2002 being unreasonable and discriminatory were unconstitutional. She also asserted that the Scheme of District Quetta and bifurcation of quota of district Quetta into urban and rural was in utter disregard to the law laid down by this Court in Attiya Bibi Khan Vs. Federation of Pakistan and others (2001 SCMR 1161) and pleaded that she has been deprived other legitimate right of admission in the medical college as per her entitlement on the basis of open merit and in complete departure to the mandate of the Constitution of equal protection and fair treatment. The learned Division Bench of the High Court, seized of the matter, dismissed the writ petition with the observation that the policy of district wise allocation of seats for admission in the medical college was upheld by the Supreme Court of Pakistan in the case of Abdul Baqi Vs. Muhammad Akram (PLD 2003 SC 163) and even if the reserved quota of district Quetta was to be abolished, the appellant would not be able to get admission on merits.
The Government of Balochistan in pursuance of the judgment of this Court in Attiya Bibi Khan's Vs. Federation of Pakistan (2001 SCMR 1161), changed the policy of admission in the prospectus of the Bolan Medical College with the ratio of 70% and 30% as under:--
Old Policy New Policy
"7 (A) 70% seats shall be allocated to those local and domicile candidates who got their education (Matric and F.Sc) from within and outside their native district."
7 (B) 30% seats shall be allocated to those local and domicile candidates who got their education (Matric and F.Sc) from their native district.
"(i) Whether the incorporation of Clauses 3, 4, 7, 10, 23 and introduction of classification between the candidates of Quetta urban and Quetta rural of the impugned prospectus of the Bolan Medical College, Quetta, are discriminatory, violative of the provisions of Articles 2-A, 22, 25 and 37-C of the Constitution of Islamic Republic of Pakistan and the law laid down by this Court in the cases of Mst. Attiya Bibi Khan versus Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161), Shireen Raza and others versus Federation of Pakistan through Secretary, Ministry of Education Islamabad and others (2002 SCMR 1218) and Abdul Baqi and others versus Muhammad Akram and others (PLD 2003 SC 163).
(ii) Whether it was necessary for the petitioner to implead, in the writ petition, all other candidates who had secured lessor marks than him and were admitted to MBBS First Professional Examination course on quota basis."
It may be noted that in Attiya Bibi Khan's case, supra, the admission policy on the basis of quota system, except in certain cases mentioned therein, was held unconstitutional whereas in the subsequent judgment in Abdul Baqi's case, this Court without taking a different view, reversed the judgment of High Court of Balochistan in which the admission on the basis of quota system was held not legal.
This Court in Attiya Bibi Khan case by majority view, held that "disabled persons within the meaning of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (Ordinance XL of 1981), students domiciled in FATA, the standard of under developed districts as well as Azad Kashmir and Northern Areas, Afghan Refugees who have taken school and intermediate education in educational institutions situated within those areas, and students of foreign countries on reciprocal basis for a period of seven years for the time being, the standard of reservation of seats in the medical colleges for all other categories was illegal and without lawful authority. It was observed that Articles 22(A) and 25 of the Constitution undoubtedly permit for making special provisions for women, children or socially and educationally backward and under developed classes and areas, therefore, the policy of admission in medical colleges by reserving certain percentage of seats for such categories of persons may be justified. It was also observed that benefit of such reservation must be confined to the genuine candidates and students belonging to backward and under developed areas duly notified by the Government. In view thereof, except the special categories pointed out therein, the reservation of quota for any other category would be unreasonable, unfair and in disregard to the principle of equality and equal protection of law as envisaged in Articles 22(4) and 25 of the Constitution that all person facing similar circumstances in similar situation, must be dealt with in the same manner. However, the principle of equality is subject to the reasonable classification which means that it should be based (a) on an intelligible differentia which distinguishes persons or things that are grouped together form those who have been left out and (b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
The concept of equal protection of law envisages that a person or class of persons shall not be denied the rights, which are enjoyed by other persons in the same situation. In Abdul Baqi Vs. Muhammad Akram (PLD 2003 SC 163) it was held that under Articles 22(4) & 25 of the Constitution, public authority may make provisions for advancement of backward classes of citizens without any discrimination on account of race, cost, sex, social or official status, economic condition, place of birth or residence. In this judgment it was also held that allocation of seats in Bolan Medical College on the basis of classification of intelligible differentia made in Para 7 of the prospectus for the session 2000-2001 was not ultra vires to the provisions of Articles 22(4), 25, 37 and 38 of the Constitution. The relevant portion of the judgment is reproduced as under:--
"It is to be observed that prior to present Paragraph 7 incorporated in the Prospectus of Bolan Medical College for the year 2000-2001 candidates used to get admission on the basis of reserved quota district wise except few sets which were earmarked for provincial merits basis but on the pronouncement of judgment in Mst. Attiya Bibi Khan (ibid) and also taking into consideration admission of review petition referred to hereinabove the Government of Balochistan allocated seats for admission in Bolan Medical College by creating two different classes under the different circumstances namely 70% seats were earmarked for those candidates who got their education from outside their native districts and 30% seats were allocated to those candidates who got their education (Matriculation and F.Sc) from their native districts. There is a rational behind the distribution of sets viz 30% and 70% namely majority of the students do manage their education including matriculation and F.Sc. for outside their native districts like Quetta etc. where more congenial educational atmosphere is available on account of which they receive education in altogether different circumstances comparing to the students who for lack of sufficient financial means receive their education including matriculation and F.Sc. within their native districts under less congenial educational atmosphere and facilities like flung areas of Dera Bugti etc. it is an admitted fact that the students for whom 30% seats have been allocated fall in that class/category who are left with no opinion but to receive or some other social reasons, therefore, the allocation of the seats at the rate of 70% and 30% was made keeping in view the intelligible differential because it was all the more necessary to accommodate those students who had received education in less congenial educational atmosphere and for such reason they cannot compete with the students who had received education of matriculation and F.Sc. in a better and renowned education institutions situated in urban areas like Quetta etc. it may be noted that majority of students for whom 30% seats have been allocated belong to rural areas, therefore, there were sufficient basis or reasons to create two classes for admission in Bolan Medical College one for those students who have passed their matriculation and F.Sc. examination from outside their native districts for the reasons mentioned hereinabove and the other for those who have received such education within their native districts. Thus we are of the opinion that the classification on intelligible differentia was struck in accordance with the pronouncement made by this Court in the cases of Mst. Attiya Bibi Khan (ibid) and Shireen Raza and others (ibid). Therefore, the learned Division Bench of Balochistan High Court had wrongly declared Paragraph 7 of the prospectus as ultra vires the provisions of Articles 22(4), 25, 37 and 38 of the Constitution."
The ratio of the judgments of this Court in Attiya Bibi Khan Vs Federation of Pakistan (2001 SCMR 1161) and Abdul Baqi Vs. Muhammad Akram (PLD 2003 SC 163) is that except in the certain cases mentioned therein, the reservation of seats separately for each district in the Province is not in consonance with the concept of reasonable classification. This Court in I.A Sherwani Vs. Government of Pakistan (1991 SCMR 1041) has laid down the certain principles as to the reasonableness of the classification. This is settled proposition of law that reasonable classification must be based on an intelligible differentia, which distinguishes the individuals or one group of persons from other group in a particular set of circumstances. The reasonable classification must be found on reasonable basis and must have rational nexus to the object sought to be achieved by such classification. There is general presumption of constitutionality of the principle regarding reasonable classification but no such presumption can be carried if there is nothing on the face of the law and the surrounding circumstances on the basis of which reasonableness of classification can be regarded.
The Court has to see the validity of a rule in context to the justness of classification and reasonable classification in the present case, would be justified in respect of the quota to the extent of backward areas and the classes of persons identified by law based on intelligible differentia and the object of law laid down by this Court in the judgments referred above but reservation of separate seats for each district in departure to the concept of open merits and free competition was unjust and unreasonable. The principle that all persons in similar circumstances, should be treated and dealt with in the alike manner may be defeated if the particular legislation tends to create an arbitrary discretion or unreasonable discrimination. In the light of well-settled law that classification on the basis of intelligible differentia must be reasonable and must have nexus with the object sought to be achieved, the reservation of seat in the Medical Colleges for every district without any justification in law is in disregard to the merit policy which is neither in consonance with the natural justice as ordained by the Holy Quran and Sunnah nor in the spirit of Article 25 of the Constitution of Islamic Republic of Pakistan. In the prospectus of Bolan Medical College for admission in the first year MBBS course for the session 2001-2002, a specific quota has been allocated for each district in preference to the open competition of the seats of the ratio of 70% and 30% without any distinction and district wise distribution. The district wise allocation of seats would only be justified if every district of the Province of Balochistan would have been declared and notified by the Government as backward area and similarly the division of district Quetta into rural and urban and separate allocation of seats for Quetta rural and Quetta urban was without any justification. The allocation of seats for each district of Balochistan may have some political or other reason behind, but it is not based on the principle of reasonable classification as the fixation of district wise quota in the prospectus had neither any nexus with the actual state of affairs nor was in the spirit of Articles 22(4) and 25 of the Constitution. The general policy of allocating seats for each district of the province was against the law laid down by the Court in Attiya Bibi Khan's case and also being not base on intelligible differentia, is in conflict to the principle of equality and as well as the rule of open merit in consequence to which the legitimate right of students who having secured highest marks competed the open merit have been deprived. In principle the judgment in Abdul Baqi's case was not as such distinguishable to the judgment in Attiya Bibi Khan's case nor the district wise allocation of seats and bifurcation of district Quetta into urban and rural was as such declared constitutional. The rational behind the allocation of separate seats for two different classes, i.e. 70% seats for the candidates who got their education from outside their native districts and 30% for those who got their premedical education from their native districts is understandable but further district wise distribution of seats was not justified in law and similarly the allocation of separate seats for Quetta rural and Quetta urban was even in violation of clause `f' of para 7 of the prospectus.
In the light of forgoing reasons, I am of the considered view that the reservation of separate seats for each district and bifurcation of Quetta district in rural and urban was in violation of Articles 22(4) and 25 of the Constitution and was not in consonance with the law laid down by this Court in Attiya Bibi Khan Vs. Federation of Pakistan (2001 SCMR 1161) and Abdul Baqi Vs. Muhammad Akram (PLD 2003 SC 163) and consequently Paragraph 4 read with clauses (d) and (e) of paragraph 7 are unreasonable and unconstitutional. In consequence thereto, I hold that the appellant was wrongly deprived of her legitimate right of admission in 1st year MBBS course in Bolan Medical College, Quetta for the session 2001-2002. It may be noted that the students who were given admission in first year MBBS Professional Course on the basis of district quota were neither party in the writ petition nor they were responsible for the wrong done by the respondents, therefore, the respondents could conveniently accommodate the petitioner who has been vigilantly pursuing the concerned forum for her right without disturbing any other student, by allocating an extra seat instead of justifying their action at the cost of career of a poor student.
In the light of foregoing discussion, I allow this appeal to the extent of right of admission of appellant in the first year MBBS course in the Session 2001-2002 in the Bolan Medical College, Quetta on the basis of open merit. There is no order as to costs.
(Khalid Awan) Appeal allowed.
PLJ 2007 SC 178
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
SHAFQAT ABBAS and another--Appellants
versus
STATE--Respondent
Crl. A. No. 291 of 2003, decided on 8.8.2006.
(On appeal from the judgment dated 16.5.2002 of the Lahore High Court, Multan Bench passed in Crl. Appeal No. 54/1999(ATA)).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused--Appeal was dismissed--Assailed--Leave to appeal--Appreciation of evidence--Held: No implicit reliance on the testimony of PWs could be placed--In absence of corroboration from any other source wanting in the case in view of the well settled principles of safe administration of criminal justice in asmuch as, non of the police officers who appeared as PWs stated that PW disclosed about the names of appellants and their identification mere abscontion in absence of any other incriminating piece of evidence could not entail penal consequences against them--Medical evidence, the eye witnesses account furnished by PW, evidence of injured witness which merely related to occurrence would not provide any corroboration incriminating in nature--Recovery of Kalashnikov empties, bullet leads and the blood stained pieces of mat secured from place of wardat by investigating officer--Appeal accepted.
[P. 187] A & B
Mr. M. Ibrahim Satti, ASC for Appellants.
Mr. Dil Muhammad Tarrar, ASC for State.
Date of hearing : 8.8.2006.
Judgment
Raja Fayyaz Ahmed, J.--This Criminal Appeal has been directed against the judgment dated 16.5.2002 passed by the learned Single Judge in Chambers of the Lahore High Court, Multan Bench, whereby Criminal Appeal No. 54/1999(ATA) preferred by Shafqat Abbas and Mujahid Hussain against their convictions and sentences awarded to them each under Sections 302(b)/324/34 PPC vide judgment dated 25.10.1999 of the learned Judge, Special Court No. II (Anti Terrorism) Multan (Special Case No. 14/1998) in case FIR No. 54/1995 registered with Police Station Mailsi on 12.2.1995 has been dismissed.
Out of these convicts, Nazar Abbas (brother of Shafqat Abbas convict) was on bail. He was taken into custody and sent to the jail to undergo the sentences awarded to him by the learned trial Court.
The above said convicts filed Criminal Appeal No. 54/1999(ATA) before the learned Lahore High Court, Multan Bench, which as above said was dismissed to the extent of the present appellants, whereas; the same to the extent of convict Nazar Abbas was accepted and he was acquitted of the charges by extending benefit of doubt in his favour vide judgment impugned herein.
The relevant facts of the case are that the occurrence took place on 12.2.1995 at about 8:30 p.m. inside the Madrassa Islah-e-Muslimeen within the jurisdiction of Police Station Saddar Mailsi. On receipt of information about the occurrence, Muhammad Akram SI (PW-22) reached to the place of occurrence where Qari Muhammad Anwar complainant (PW-5) reported to the said police officer about the incident who recorded his statement and sent murasila Exh-PA/1 to the police station for registration of the case, on the basis whereof FIR No. 54/1995 Exh-PA under Sections-302/324/34 PPC was registered with the above said police station.
It was stated in the complaint/report that PW Qari Muhammad Nawaz (Imam Masjid) of the Madrassa that at about 8:30 p.m. on the above said date his pupil Hafiz Fayyaz Ahmed was leading Namaz-e-Taravih when during 9th Rakat a Kalashnikov burst hit the Namazis in the courtyard of the mosque from their behind, as a result whereof; Hafiz Fayyaz Ahmed, Muhammad Ramzan, Kaley Khan, Faiz Bukhsh, Muhammad Aslam, Zawar Ahmed, Muhammad Rafiq, Ghulam Rasool and Ashiq Hussain suffered fire-arm injuries, out of whom Muhammad Ramzan, Kaley Khan and Hafiz Fayyaz Ahmed were found to be in critical condition, on which Sh. Maqbool Ahmed and Haji Allah Bukhsh (PW-10) took the injured persons on a bus to the hospital at Vehari, while injured Muhammad Ramzan was taken to the hospital at Mailsi in a car. It was, however, stated that subsequent thereto the sweet-merchant adjoining to the mosque namely; Iltaf informed that three persons, whose descriptions were disclosed to the complainant by the said person came from towards Mailsi in a white coloured Toyota car. Out of whom two persons came out of the car, while the third person remained present on the driving seat of the car. The beard person remained standing at the main gate of the mosque while the other one entered into the mosque and fired Kalashnikov bursts at the Namazis. The complainant further stated in his report that Hafiz Fayyaz Ahmed and Kaley Khan succumbed to the injuries on their way to the hospital. The complainant disclosed that they belonged to Fiqah-e-Hanfi (Devband, Ahle-e-Sunnat) and strongly suspected that their Jawans belonging to Sipah-e-Sahaba have been intentionally done to death and others were injured.
On the same date, Muhammad Akram SI (PW-22) took into possession pieces of blood stained mats from the place of occurrence where Muhammad Ramzan, Hafiz Fayyaz Ahmed and Kaley Khan had fallen down through memos Exhs.PB, PC and PD, 11 empties of Kalashnikov were also recovered from the spot and taken into possession vide memo Exh-PG. Four leads of bullets P-1/1-4 were also secured from the place of occurrence and taken into possession vide memo Exh-PG.
Shafqat Abbas appellant was arrested on 26.1.1997, while Mujahid Hussain appellant was arrested on 28.4.1997 by Rab Nawaz Inspector Police (PW-23). He also arrested Nazar Abbas on 9.10.1995 (acquitted by the learned High Court), whereas; co-accused Zahid Abbas remained as proclaimed offender and thus could not be tried.
The accused persons facing trial did not plead guilty to the charge. The prosecution in order to substantiate the accusation produced 23 witnesses. Qari Muhammad Nawaz-complainant (PW-5) has supported to his version as contained in his complaint about the occurrence but as regards the involvement of the actual culprits, he was not an eye-witness. Faiz Bukhsh (PW-6), Ghulam Rasool (PW-8) and Ashiq Hussain (PW-12) appeared as injured witnesses but they did not identify the appellants during the trial as the accused persons. PW Faiz Bukhsh (Injured) though stated at the trial that he had seen the assailants but stated that none of the assailants was present in the trial Court.
Dr. Gulzar Ahmed Nadeem (PW-4) M.O. DHQ Vehari had examined injureds Faiz Bukhsh (PW-6), Muhammad Aslam, Rab Nawaz, Muhammad Rafique, Ghulam Rasool (PW-8), Ashiq Hussain (PW-12) and issued MLRs as Exhs-PN, PO, PP, PQ and PR respectively. Their MLRs showed that they had suffered fire-arm, injuries on their persons, out of whom injured Muhammad Aslam also suffered injuries caused by blunt weapon as well.
Dr. Abdul Razzaq (PW-9) Deputy District Health Officer, Vehari was posted as M.O. THQ Hospital Mailsi on 13.2.1995 conducted the post-mortem examinations of the dead bodies of Hafiz Fayyaz Hussain, Kaley Khan and Muhammad Ramzan. He produced their P.M. reports respectively as Exhs. PS, PV and PW, whereas; skia-grams showing seats of fire-arm injuries were respectively produced as Exhs-PS/1, PV/1, PW/1. As per his medical opinion, the fire-arm injuries suffered as noted in their P.M. reports were sufficient in the ordinary course of nature to cause their death.
The P.M. reports showed that dead body of Fayyaz Ahmed and Kaley Khan deceased were brought to the hospital for post-mortem examination by the police and nothing was mentioned in post-mortem report of Muhammad Ramzan deceased as to by whom his dead body was brought to the hospital.
The ocular account of the occurrence in respect of accused Shafqat Abbas and Mujahid Hussain was furnished by Haji Allah Bukhsh (PW-10) and Muhammad Sharif (PW-11), whereas; Sh. Bashir Ahmed (PW-15) deposed about the involvement of Nazar Abbas accused (acquitted by the learned High Court). Muhammad Yar (PW-7) appeared as witness of the occurrence. Muhammad Akram SI (PW-22) and Mehr Rab Nawaz Inspector Police (PW-23) appeared as Investigating Officers. Lateef ullah HC/Moharrer (PW-21) stated about the recording of formal FIR and the rest of the PWs are the formal witnesses.
The accused facing trial in their statements recorded under Section-342 Cr.P.C. by the learned trial Court denied and disputed the accusation and the incriminating pieces of evidence and claimed their innocence, as well as; false involvement in the case on account of their being Shias by faith. None of them opted to record statement on oath in disproof of the charge under Section-340(2) Cr.P.C.
The learned ASC for the appellants contended that the fate of the prosecution case primarily hinges upon the evidence of PW Haji Allah Bukhsh, which if be capable of reliance could warrant into the conviction of the appellants coupled with the other circumstantial pieces of evidence, such as; medical evidence, pieces of blood stained mats taken into possession from the spot by PW-22/I.O., Kalashnikov empties and bullet leads recovered from the spot and the evidence of injured PWs Faiz Bukhsh, Ghulam Rasool and Ashiq Hussain, as well as; of Muhammad Yar (PW-7), who deposed about the occurrence but did not implicate the appellants in the instant case. The evidence of Haji Allah Bukhsh (PW-10) was not worthy of any credence on account of inherent doubts, discrepancies and factual infirmities appearing in his evidence, which could not be in absence of independent corroboration as to the involvement of the appellants, wanting in the case, could be relied upon for the purpose of the conviction of the appellants. The evidence of these witnesses according to the learned counsel, is highly unconvincing, unreliable and incredible and could not be made basis for conviction of the appellants and; for safe administration of criminal justice no implicit reliance on the testimony of said PW believed by the learned trial Court, as well as; by the learned Division Bench of the High Court for maintaining their convictions, could be placed. PW Haji Allah Bukhsh implicated the appellants in the commission of the alleged crime for the first time after four months of the occurrence without furnishing any plausible explanation about the inordinate delay in stating about the alleged involvement of the appellants in the case, hence; on this score alone the evidence of this eye-witness was liable to be kept out of consideration. Moreover, PW Allah Bukhsh did not previously know the appellants nor was aware about their names which statedly were disclosed to him by some son of one Anwar Shah resident of the area and such fact indicated that since no clue about the culprits could be found during the investigation of the case, subsequently, the appellants being Shias by faith were implicated in the case after deliberations and consultations and apparently the said PW appears to have been planted as a witness by the prosecution. According to the learned counsel without any sound and valid basis merely on surmises, conjectures and oblivious of the principles of criminal administration of justice the conviction of the appellants was maintained by the learned Single Judge in the High Court, which could not be sustained.
On the other hand, the learned State counsel controverted the submissions put forth on behalf of the appellants and submitted that the statement of PW Haji Allah Bukhsh was recorded on the same date at 11:30 p.m. under Section-161 Cr.P.C, who provided reasonable explanation about his presence very close to the place of occurrence and having seen the appellants which could not be doubted in the circumstances of the case as fake particularly being the local resident of the area, hence; appropriately his evidence was believed by both the learned Courts. The learned counsel for the State submitted that in the circumstances of the case, the evidence of PW Allah Bukhsh has rightly been believed and acted upon leaving no room for discarding or doubting the same on any ground which finds support from the other pieces of evidence produced at the trial, hence; conviction of the appellants and the punishment awarded to them each by the trial Court and maintained by the learned Bench of the High Court was unexceptionable.
Heard the learned ASC for the appellants and Mr. Dil Muhammad Tarrar, the learned ASC for the State at length. The entire evidence available on record has been carefully and minutely perused and considered including the impugned judgment and the one passed by the learned trial Court in the light of the contentions raised by the learned counsel for the parties.
Admittedly, conviction of the appellants has been based on the evidence of PW Haji Allah Bukhsh, which if found be credible and capable of reliance would necessarily result into the conviction of the appellants on the charges coupled with the evidence of other PWs mentioned above, which relate to the occurrence, medical evidence etc., hence; the evidence of Haji Allah Bukhsh (PW-10) Muhammad Sharif (PW-11) and Muhammad Yar (PW-7) which related to the occurrence and the evidence of the injured PWs, Faiz Bukhsh and Ghulam Rasool need to be scrutinized with great care and caution.
According to the evidence of PW Haji Allah Bukhsh, he alongwith one Muhammad Yar (not examined) were on their way to Masjid/Madrassa Islah-e-Muslimeen for offering prayers at about 8:15/8:30 p.m. 4 years back for Namaz-e-Taravih but they were a bit late and when they reached near to the mosque they noticed a white coloured car without a number plate parked adjacent to the mosque. Shafqat Abbas accused present in Court, to whom he identified, was allegedly found sitting on the driving seat of said car and in the meanwhile they heard fire reports from within the mosque on which they heard hue and cry in the mosque and soon thereafter, he saw Mujahid Hussain accused present in Court coming out of the mosque armed with a rifle followed by Zahid Hussain accused, not present in the Court being an absconder, who made firing at the gate of the mosque, whereafter, Mujahid Hussain and Zahid Hussain boarded in the car. The witness stated that he and Muhammad Yar raised alarm and when they entered into the mosque found Hafiz Fayyaz, Kaley Khan, Ramzan, Faiz Bukhsh, Ghulam Rasool, Aslam and Ashiq Ali lying in injured condition on account of the firing. He stated that Zawar and Rafique students in the above said Madrassa were also found having suffered fire-arm injuries and that injured persons were removed for the hospital but on their way Fayyaz, Kala and Ramzan expired.
Muhammad Sharif (PW-11) deposed at the trial that on the day of occurrence at about 8.15 p.m. he was sitting on the roadside at Karampur Palace Chowk alongwith Bashir Ahmed Sheikh (PW-15) when a white coloured car stopped at a short distance ahead of them. Out of the said two persons namely, Nazar Abbas was identified by the said witness and the other was not known to him, who had covered himself with a chaddar de-boarded from the car. Nazar Abbas, according to the witness was empty handed, while his above said companion was having Kalashnikov with him. He, however, stated that three more persons sitting in the car moved ahead and within 4/5 minutes they heard firing, whereupon; there was a hue and cry and alarm, while people were running towards the mosque and coming out of the mosque situated at a distance of 60 yards from the point where he was sitting with his companion Bashir Ahmed Sheikh and; simultaneously the same car alongwith three persons came back in which Nazar Abbas accused was boarded. The witness stated that as they moved towards the car, one of the occupants of the car made firing so being scared none dared to step forward. The witness added that he rushed to the mosque. He found his son Hafiz Fayyaz Ahmed alongwith many others lying injured, so he managed a car and took his injured son to the hospital but he succumbed to the injuries on the way to the hospital. According to the witness after the burial of his son and Khatam, he alongwith Sh. Bashir Ahmed (PW-15) out of fear of their lives left for Karachi and came back to Karampur after four months, made statements to the police and added in his examination-in-chief that he was called on by the police and was told that accused in the case had been arrested so he should come to identify the culprits. The witness went to the police station and identified Nazar Abbas kept in the lock-up of the police as one of the accused, who allegedly had got down from the car alongwith another accused carrying Kalashnikov with him. The witness further stated that in his presence, the I.O. interrogated Nazar Abbas, who disclosed that five persons namely, Zahid Hussain, Shafqat Abbas, Mujahid Hussain and one Sherazi besides himself had committed the wardat and further that pursuant to the disclosure made by Nazar Abbas, Mujahid Hussain and Sherazi were taken along by the I.O. to the place where the above said accused pointed out the spot where he had de-boarded from the car before the occurrence in his presence. He produced pointation memo of the said spot as Exh-PY.
The evidence of Sh. Bashir Ahmed (PW-15) in substance is identical to the evidence of PW Muhammad Sharif. PWs Muhammad Sharif and Sh. Bashir Ahmed had deposed only about accused Nazar Abbas and they even did not identify the appellants namely, Shafqat Abbas and Mujahid Hussain before the trial Court as the culprits involved in the commission of the occurrence. Nazar Abbas as above mentioned had been acquitted by the learned High Court vide judgment impugned herein.
The injured PWs namely Faiz Bukhsh, Ghulam Rasool and Ashiq, who appeared respectively as PW-4, PW-8 and PW-12 though briefly deposed about the occurrence but did not nominate the appellants nor identified them as the accused persons before the learned trial Court.
Haji Allah Bukhsh in cross-examination admitted that his statement was recorded by the police during investigation of the case after four months the occurrence. He is resident of Karampur, Tehsil Mailsi, District Vehari and stated that he could not recollect the name of mohallah where he resided. He further stated in cross-examination that he alongwith his companion Muhammad Yar (not produced) and the complainant Qari Muhammad Nawaz took the injured persons in a bus to the hospital at Vehari and admitted that he and Muhammad Yar did not disclose to the complainant about the accused persons having been identified by them. He admitted that he and Muhammad Yar remained in the hospital with the injured persons for about half an hour and reached back to the place of occurrence at about 10:15/10:30 p.m. He, however, stated that the complainant and the police took the dead bodies to Civil Hospital, Vehari from Karampur and after that the police and the complainant came back to the place of occurrence.
From the above answers given by the said PW, it is abundantly clear that the witness had ample opportunities to disclose about the identity or the names of the appellants to the police or at least to the complainant but he did not opt to make any such disclosure about the involvement of the appellants in the occurrence. He further stated in cross-examination that in his presence many persons remained present in the said mosque. He also admitted that he did not disclose to any other person nor after the occurrence about the accused persons as having been identified or known to him. He further stated that his statement was recorded at 11:30 p.m. As regards Shafqat Abbas convict/appellant, he stated that Shafqat Abbas was already known to him because the said accused used to visit the Shia residents of his mohallah. He admitted that Shafqat Abbas was resident of Vehari and that he had no connection with Shafqat nor ever visited the house of Shafqat Abbas. The said PW stated that Zawar Shah, Iqbal Shah and Anwar Shah are interse brothers and Shias by faith and Shafqat used to come to the house of Zawar Shah. In response to a defence question, the witness stated that he had asked about Shafqat from the son of Iqbal Shah aged about 12/13 years whose name he did not know. The witness while resiling from his above said deposed fact stated, that he had not mentioned about the son of Iqbal Shah rather; had stated about the son of Anwar Shah. At this juncture, a Note was recorded by the learned trial Court that the said PW had changed his version about the said fact.
It is very interesting to note that PW Allah Bukhsh in the cross-examination part of his statement admitted the defence suggestion that as and when he wants to speak truth, he so speaks and tell lies. He further explained that he did not know the name of the son of Iqbal Shah 12/13 years old from whom he had inquired about appellant Shafqat and again said that he had inquired from the young son of Anwar Shah because he suspected appellant Shafqat in his estimation. He also admitted that despite being member of Sipah-e-Sahaba he did not inform the police about the involvement of Shafqat Abbas in the occurrence. The witness admitted that except the name of Shafqat he knows nothing about Shafqat and stated that he had seen Shafqat about 2 months prior the occurrence. The witness further stated that he only had a glance at Shafqat nor had seen Mujahid Hussain and Zahid Hussain prior to the occurrence. He also admitted that except mentioning the names of Mujahid and Zahid Hussain to the police and their descriptions, nothing was stated by him about the said accused persons to the police and even their names were told to him by some son of Anwar Shah. He stated that said car was of blue colour and he had seen the above said two persons while boarding in the said car when he passed from near to the car. He admitted that in his statement before the police he did not mention about the identifying features of the accused persons nor gave their descriptions.
Although, PW Haji Allah Bukhsh stated in his cross-examination that his statement was recorded after four months of the occurrence but it has been established from the evidence of Rana Muhammad Afzal SI (PW-20) who was posted as SHO P.S. Saddar Mailsi; stated before the trial Court that on receipt of information about the occurrence, he went to the said site at 11:30 p.m. and there he recorded the statement of PW Allah Bukhsh under Section-161 Cr.P.C. Such a deposed fact was not challenged by the defence, hence; the fact stands proved that the statement of the said PW was recorded on the same night and not after four months of the occurrence, however; the fact remains that the evidence of the said witness referred to above as to the identification of the appellants by their names including their descriptions etc. and the role attributed to them by the said witness in view of the answers given by him in his cross-examination undoubtedly suffered from substantial discrepancies, inconsistencies and material doubts, who categorically stated that he did not disclose about the names of the appellants etc. to the complainant or to the police or to any other person in the hospital where he was present with the injured persons or even thereafter at the place of occurrence to the police who remained present there throughout the night and even later on to any other person and even to the police, hence; in our considered opinion no implicit reliance on the testimony of PW Haji Allah Bukhsh could be placed for the purpose of the conviction of the appellants in absence of corroboration from any other source wanting in the case in view of the well settled principles of safe administration of criminal justice, inasmuch as; none of the police officers who appeared as PWs 20, 22 and 23 stated that PW Haji Allah Bukhsh disclosed about the names of the appellants or their identification. Appellants Shafqat Abbas and Mujahid Abbas were respectively arrested on 26.1.1997 and 28.4.1997 and were declared as POs in respect whereof although; no explanation has been given by the said convicts, yet, independently mere abscontion in absence of any other incriminating piece of evidence could not entail penal consequences against them or to expose them to the criminal liability on which they had been charged. The medical evidence, the eye witness account furnished by PW Haji Allah Bukhsh dealt with hereinabove, evidence of the injured witnesses and Muhammad Yar (PW-7), which merely related to the occurrence would not provide any corroboration incriminating in nature as against the appellants coupled with recovery of Kalashnikov empties, bullet leads and the blood stained pieces of mat secured from the place of wardat by the investigating officer.
The attributed disclosure made by accused Nazar Abbas before the I.O. in presence of PW Muhammad Sharif during interrogation, involving appellants Shafqat Abbas, Mujahid Hussain and others in the commission of the offence, not leading to the discovery of a particular relevant fact or incriminating material is inconsequential and inadmissible, therefore, in view of the above discussion and reasons by extending benefit of doubt in favour of the appellants in the given facts and circumstances of the case, they have been found entitled to earn acquittal. Resultantly, their convictions and sentences awarded by the learned trial Court under Sections-302/324/34 PPC and maintained by the learned High Court in appeal filed by the appellants were set aside vide our short order. Accordingly, they have been acquitted of the charges and their appeal accepted.
(Malik Sharif Ahmed) Appeal accepted.
PLJ 2007 SC 188
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
HAQ NAWAZ--Appellant
versus
STATE--Respondent
Crl. A. No. 138 of 2004, decided 11.8.2006.
(On appeal from the judgment dated 1.11.2002 of the Lahore High Court, Lahore passed in Criminal Appeal No. 974-2001).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, Art. 185(3)--Conviction and sentence of imprisonment for life awarded to appellant, assailed--Leave to appeal--Appreciation of evidence--Held: Conviction of the accused was based on the ocular account of the occurrence furnished by PWs who had deposed the motive--Entire evidence in present case scrutinized and appraised with care and caution by both the Courts in its true perspective--No material part of evidence on the point was mis-appraised or omitted from consideration--Testimony of eye-witnesses having withstood the test of cross examination could not have been discarded or disbelived--Question of subsequent preparation of site plan and the recovery memos pertaining to the crime empties on account of the destruction of police file and judicial portion of the file did not carry any adverse effect on the prosecution case produced at the trial, for the reason that appellant was not convicted and sentenced in view of documents lost/destroyed by the processionists but was found guilty in view of evidence of eye witnesses, medical evidence, coupled with motive part of the prosecution story--Appeal dismissed. [Pp. 194 & 195] A, B & C
Mr. Hasnat Ahmed Khan, ASC for Appellant.
Malik Abdul Haq, ASC (On behalf of A.G. Punjab) for State.
Date of hearing: 11.8.2006.
Judgment
Raja Fayyaz Ahmed, J.--This Criminal Appeal has been directed against the judgment dated 1.11.2002 passed by the learned Single Judge in Chambers of the Lahore High Court, Lahore, whereby Criminal Appeal No. 974/2001 filed by the appellant against his conviction and sentence of imprisonment for life under Section-302(b) PPC awarded by the learned Additional Sessions Judge, Bhakkar vide judgment dated 12.6.2001, has been dismissed.
Vide above mentioned judgment of the learned trial Court, Haq Nawaz appellant and Muhammad Khan co-convict both sons of Ghulam Sarwar were found guilty for causing, the death of Muhammad Ashraf and sentenced to imprisonment for life each under Section-302(b) PPC, as well as; found liable to pay Rs. 50,000/- each as compensation to the legal heirs of the deceased or in default whereof to further undergo SI for one year. Benefit of Section-382-B Cr.P.C., however, was extended in their favour. Their co-accused Riaz Hussain alias Raza, Niaz Hussain and Fida Hussain were acquitted of the charge by extending benefit of doubt in their favour, whereas; Muhammad Ashraf absconder accused was declared as proclaimed offender, and his perpetual non-bailable arrest warrant was issued by the learned trial Court vide above mentioned judgment.
The Criminal Appeal filed by both the above said convicts to the extent of appellant Haq Nawaz was dismissed and accepted to the extent of Muhammad Khan by the learned Single Judge in the High Court in view of his plea of alibi supported by documentary evidence, accordingly he was acquitted of the charge vide judgment impugned herein by the appellant against the dismissal of his appeal.
Leave to appeal has been granted by this Court vide order dated 5.7.2004 to re-appraise the entire evidence.
The relevant facts of the prosecution case are that on the written complaint of Muhammad Hayat (PW-8), case FIR No. 365 dated 27.8.1997 (Exh-P.9) was registered at Police Station Bhakkar under Sections-324/34 PPC. It was alleged by the complainant that at about 12 noon on the above said date his nephew (sister's son) namely, Muhammad Ashraf was to irrigate his lands from the tube well, while the complainant alongwith his brother Khizer Hayat and Sarfraz s/o Allah Dad had come to the site to help Muhammad Ashraf who in order to irrigate sugarcane fields erected/made nakka, while the complainant alongwith the above said two persons were present near to the khal, when all of a sudden from towards south Muhammad Ashraf, Muhammad Khan alias Manda respectively armed with .30 bore pistol and Kalashnikov both sons of Ghulam Sarwar and Muhammad Riaz alias Raza armed with .30 bore pistol emerged from the sugarcane crops. Muhammad Khan raised lalkara that they have come to take revenge of the murder of his sons Mumtaz and Shah Jahan and simultaneously Muhammad Ashraf (PO) fired with his pistol at Muhammad Ashraf s/o Abdul Rehman, which landed on the back of his left shoulder. The second fire made by Muhammad Riaz hit Muhammad Ashraf at his right wrist and after that Muhammad Khan fired with his Kalashnikov, which hit on the right shoulder of Muhammad Ashraf, thereafter, Haq Nawaz fired at Muhammad Ashraf, which landed at the back of his right shoulder. On receiving fire-arm injuries Muhammad Ashraf fell down and all the accused thereafter made indiscriminate firing and fled away. Muhammad Ashraf in injured condition was shifted to the DHQ Hospital Bhakkar where the complainant made statement before Rohtas Khan ASI (PW-7) who had reached to the hospital on receipt of information about the occurrence. The injured expired in the hospital on the same date after five hours and the offence was altered to that of under Section-302 PPC read with Section 34 PPC.
The motive behind the occurrence was that 10/11 months prior to the present occurrence, Mumtaz and Shah Jahan sons of Muhammad Khan co-convict (acquitted on appeal by the learned High Court) were murdered. Abdul Rehman father of deceased Muhammad Ashraf and Muhammad Bakhsh grandfather of the deceased alongwith others were accused in the said double murder case.
Muhammad Rohtas, ASI (PW-7) brought the original police file from the police record room of the office of the SP Bhakkar. On receipt of information of the incident, he proceeded to the Civil Hospital where the complainant produced to him MLR of Muhammad Ashraf injured Bearing No. 371/1997. The complaint submitted to him by PW Muhammad Hayat was sent to the Police Station Saddar Bhakkar for registration of the case through Muhammad Muzaffar Khan. He also submitted application to the medical officer for permission to record the statement of Muhammad Ashraf injured but as the said injured was unconscious, therefore, his statement could not be recorded. After that PW visited to the place of occurrence and when he reached near to the Adda Razai Shah was informed by Amjad Hussain SI about the injured having been succumbed to the injuries. He entrusted the investigation of the case to Amjad Hussain SI (since dead).
Muhammad Hayat-complainant (PW-8) and Sarfraz (PW-9) are the eye-witnesses of the occurrence. Muhammad Anwar (PW-10) deposed that he over heard, while sitting in the hotel of Ghulam Hasan Pawali, that Muhammad Khan, Niaz, Riaz, Haq Nawaz, Fida Hussain having asked Muhammad Ashraf absconder accused to take revenge of the murder of his nephews to which Muhammad Khan, Niaz, Riaz, Fida Hussain agreed. Muhammad Ashraf FC (PW-11), delivered the sealed parcels containing blood-stained earth and the sealed parcels of crime empties in the office of Chemical Examiner, Lahore and Forensic Science Laboratory Lahore, which were handed over to him by PW Fakhar Zaman Moharrar/HC of Police Station Saddar Bhakkar.
The cited PWs Khizer Hayat, Muhammad Aslam Khan, Muhammad Ali Inspector (Legal), Tariq Masood Yaseen SP and Muhammad Anwar SI were given-up by the learned ADA. Amjad Hussain SI/I.O. of the case could not be produced as he was murdered in a police encounter in Sargodha district.
After close of prosecution evidence, the accused facing trial were examined by the learned trial Court under Section-342 Cr.P.C. in view of the incriminating pieces of evidence, which they denied and disputed.
Haq Nawaz appellant produced only one witness in defence namely, Allah Bukhsh s/o Faqir Muhammad as DW-1. The present appellant in his statement under Section-342 Cr.P.C. in answer to Question No. 4 took the plea of alibi by stating that on the day of alleged occurrence he was at Dariya Khan in connection with the treatment of the fracture of the arm of his son from Jarah for the whole day and in support of his plea stated to have produced sufficient evidence before the police, which was verified and he was found to have not participated in the occurrence. He further stated that the PWs were interested, related interse and inimical towards him, deposed against him and his brother Muhammad Khan co-accused, as well as; the complainant party had involved them in different false criminal cases previously due to enmity.
DW Allah Bukhsh s/o Faqir Muhammad deposed that he had gone to Dariya Khan to collect his medicines from Ghulam Nabi Jarah, where at 11.30 a.m. he met with Haq Nawaz who remained present with him till 2.30 p.m. on 27.8.1997.
The impugned judgment reflects that mother and father respectively of Muhammad Ashraf deceased during pendency of the trial compromised with the co-accused Riaz Hussain and Niaz Hussain sons of Allah Bukhsh by forgiving them in the name of Almighty Allah, who also made statement to such effect before the learned trial Court. The compromise affected between the parties was accepted by the learned trial Court, which accorded permission to compound the offence. Accordingly, they were acquitted of the charge by the learned trial Court.
The learned ASC for the appellant contended that the recovery memos, particularly pertaining to the alleged crime empties, site-plan stated to have been prepared by the I.O. during investigation of the place of occurrence and got prepared through draftsman by the I.O. of the case admitted in evidence are fake and manipulated documents on which no reliance can be placed, besides all other documents subsequently prepared after destruction of police case file alongwith the judicial portion of the said file (submitted with the duplicate challan) and such facts stand proved through the testimony of Muhammad Mumtaz ASI (PW-6). The eye witness account furnished by PW-8 Muhammad Hayat and PW-9 Sarfraz was in conflict with the medical evidence and it could not be proved through the prosecution evidence that the fire-arm injuries attributed to appellant Haq Nawaz and Muhammad Khan (acquitted by the learned High Court) independently were sufficient to cause death of the deceased in the ordinary course of nature, hence; no implicit reliance could have been placed for the purpose of conviction of the appellant on the evidence of the eye-witnesses. The learned counsel for the appellant, while referring to the medical evidence during the course of arguments submitted that in fact medical evidence contradicts the ocular account of the incident as given by the above said PWs. The learned counsel next contended that on the plea of alibi, co-convict Muhammad Khan was acquitted by the learned High Court, whereas; on the similar defence plea duly substantiated, conviction of the appellant was maintained. According to the learned ASC, in the over all facts and circumstances of the case, as it emerged from the evidence available on record, the prosecution story suffers from substantial doubts, therefore, the impugned judgment deserves to be reversed to the extent of the appellant. In support of his contention with regard to the motive part of the prosecution story, conflict between the medical evidence and the ocular evidence reliance has been placed on the judgment of this Court reported as Abdullah Jan and others v. Tila Muhammad and others (1985 SCMR 95).
The learned counsel for the State vehemently argued that both the learned Courts i.e. the learned trial Court and the Hon'ble High Court have concurrently found the appellant as guilty on the charge in view of the unimpeached and unrebutted prosecution evidence comprising of ocular account of the incident furnished by PWs 8 and 9, motive and medical evidence which was duly appraised by both the learned trial Courts in juxta position with the defence plea of alibi to which no exception could be taken. He further submitted that even be believed that the memos: relating to the recovery of crime empties etc. including site-plan, after destruction of the above said file, submitted with report under Section-173 Cr.P.C. before the learned trial Court, as per evidence of PW-6 were not worthy of any credence would not carry any adverse effect on the guilt or innocence of the appellant for the simple reason that the conviction of the appellant was based on the above said pieces of evidence and not on the recovery memos and site-plans etc. prepared subsequently on account of the destruction of the record, hence; the impugned judgment is unexceptionable.
We have heard the learned counsel for the parties at length in the light of the evidence available on record gone through carefully with the assistance of both the learned counsel' including the impugned judgment. The prosecution and the defence plea has been reappraised, scanned and scrutinized in depth. Undisputedly conviction of the appellant was based on the ocular account of the occurrence furnished by Muhammad Hayat complainant (PW-8) and Sarfraz (PW-9), who have also deposed about the motive as set-up in the report made by PW Muhammad Hayat. The motive part of the prosecution story mentioned hereinabove as given in the FIR was not disputed or controverted during the course of arguments being advanced by the learned ASC for the appellant. It was contended that the same being a double edged weapon operated on both sides. This principle obviously has always been applied in criminal cases, where motive of the like nature or enmity existed between the parties, hence; the entire evidence in the instant case particularly the, eye-witness account furnished by the PWs had to be scrutinized and appraised with care and caution before placing reliance on the testimony of the eye-witnesses, which in our considered opinion as regards the appellant has been made by both the learned Courts in its true perspective and; while doing so no material part of the evidence on the point was mis-appraised or omitted from consideration. The venue and time of the occurrence was not disputed including the motive part of the prosecution story with regard to the enmity between the complainant and the accused party. Nothing was brought on record by the defence to reasonably convince that on account of enmity between the parties, it would not be safe to place reliance on the evidence of the above said eye-witnesses, which otherwise fits in the circumstances of the case, as well as; worthy of credence, hence; testimony of the eye-witnesses having withstood the test of cross-examination could not have been discarded or disbelieved.
We have carefully and minutely gone through the medical evidence and postmortem report in view of the attributed fire-arm injuries caused to the deceased by co-convict Muhammad Khan (acquitted by the learned High Court) and appellant Haq Nawaz in view of the above noted contentions of his learned counsel. It was alleged that appellant Haq Nawaz fired with Kalashnikov at the deceased which landed on the right shoulder of the deceased. The medical evidence which rests on the post mortem report Exhs.P-2 to P-4 showed that besides the other noted fire-arm injuries, the deceased had suffered a fire-arm entrance wound of x cm, 4 cm below the tip of right shoulder joint. On dissection of the seat of above said wound i.e. right shoulder joint, it was found by the medical officer that the right lung of the deceased was smashed, thorac cavity was full of blood with fracture of 2nd thorac rib of right side. According to the opinion of the medical officer, the multiple fire-arm ante-mortem wounds were sufficient in the ordinary course of nature to cause the death of the deceased. The fire-arm wound suffered by the deceased below the tip of his right shoulder joint admittedly smashed the right lung of the deceased and their being only one external seat of injury below right shoulder joint would not exclude the possibility of the second fire, if believed, made by the other accused as having not hit on the same seat of injury as a co-incident of two fires particularly when the evidence of the eye-witnesses to be believed, but in the instant case, eye-witness account was believed only to the extent of the appellant by the learned Division Bench of the High Court and was disbelieved as regards his co-convict Muhammad Khan in view of his defence plea. A fire-arm injury on right shoulder of the deceased, which was also attributed to co-accused Muhammad Khan, who has been acquitted by the learned Division Bench of the High Court on reappraisal of prosecution and defence evidence, therefore, in view of eye-witness account of the above said PWs it cannot be said that the fire made by the appellant did not land at the right shoulder of the deceased which was confirmed through the medical evidence as well. We are not convinced that the medical evidence was in conflict or contradicted the eye-witness account of the above said PWs, therefore, no benefit was accruable to the appellant on the point.
As regards the question of subsequent preparation of the site-plan and the recovery memos: pertaining to the crime empties by Muhammad Mumtaz ASI (PW-6) on account of the destruction of the police file and judicial portion of the file, did not carry any adverse effect on the prosecution case/evidence produced at the trial mentioned above for the reason that the appellant was not convicted and sentenced in view of the above said documents lost/destroyed by the processionists but was found guilty on the charge mainly in view of evidence of the eye-witnesses, medical evidence coupled with the motive part of the prosecution story. The case law relied upon by the learned counsel for the appellant is distinguishable to the facts and circumstances of the instant case.
Both the learned Courts i.e. the learned trial Court and the Hon'ble High Court in our considered opinion have appraised the entire evidence including the defence version in its true perspective to which no exception could be taken, hence; the findings of guilt arrived at by both the learned Courts are not open to any interference by this Court. Thus; for the foregoing reasons, this Criminal Appeal being without any substance is dismissed.
(Malik Sharif Ahmed) Appeal dismissed
PLJ 2007 SC 196
[Appellate Jurisdiction]
Present: Javed Iqbal, Nasir-ul-Mulk & Hamid Ali Mirza, JJ.
Chaudhary MUNIR--Petitioner
versus
Mst. SURRIYA etc.--Respondents
Crl. P. No. 338 of 2005, decided on 18.5.2006.
(On appeal from the order dated 25.7.2005 of the High Court of Sindh, Karachi, passed in Crl. M. No. 94 of 2001).
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 561-A, 439 & 439-A--Object of inherent--Powers of High Court--Being aggrieved an application filed u/S 561-A Cr.P.C. in the High Court--Dismissed--Assailed--Determination--Whether the jurisdiction of High Court u/S 561-A Cr.P.C. could have been invoked--When the Revisional Court had already exercised powers u/Ss. 439 and 439-A Cr.P.C.--Object of S. 561-A Cr.P.C. conferred on High Court is to do real and substantial justice and to prevent abuses of process of Court--To secure ends of Justice, powers of High Court are very wide and unlimited but such powers cannot be exercised as to interrupt or divert ordinary course of criminal procedure--Inherent powers of High Court can be invoked where it is established that proceedings against a person seeking quashment of his case are either malafide, coram non judice or clear violation of the procedure or such proceedings amount to abuse of process of Court--Inherent powers of High Court are not impinged, curtailed or limited by the powers possessed by the Courts u/S 435/439 Cr.P.C.--But jurisdiction u/S 561-A Cr.P.C. is not available to a party by way of additional or alternative jurisdiction after exhausting revisional jurisdiction--Powers u/S 561-A Cr.P.C. are independent of powers u/S. 439-A Cr.P.C.--After decision of revision an application u/S 561-A Cr.P.C. is not maintainable--Powers u/S 561-A Cr.P.C. are to be exercised in exceptional cases--Power conferred on High Court being extraordinary must be exercised sparingly with utmost care and caution, should not be used to obstruct or divert ordinary course of criminal procedure.
[Pp. 199, 201 & 203] A, B & C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 145--Essentials--Object of proceedings--Breach of peace and to maintain status quo--Purpose is to meet an emergent situation in order to maintain peace and to enable the parties to set the controversy at naught through civil Court--Mandatory requirement of S. 145 Cr.P.C. is that there must not only be dispute, but likely to cause breach of peace--In present case there was no apprehension of breach of peace--Question of title was involved--Deviation from procedure can at the most be declared as an irregularity, but would not vitiates the entire proceedings as the nature of controversy--Evidence on record examined by High Court with diligent application of mind--Petition dismissed.
[Pp. 203, 204 & 206] D, E & F
1990 SCMR 1309, PLD 1999 Kar. 121, PLD 2001 Kar. 279, PLD 1963 SC 237, PLD 1967 SC 317, 1997 P.Cr.L.J. 1588, 1996 SCMR 1476, NLR 2002 Cr. 371, PLD 1990 Kar. 236, PLD 1988 Kar. 85, 1987 P.Cr.L.J. 2434, 2002 SCMR 1076, 1996 SCMR 839, 1986 SCMR 483, PLD 1976 SC 461, PLD 1961 SC 426, 1996 MLD 92, PLD 1985 SC 294, AIR 1927 Lah. 805 and AIR 1930 Lah. 895 ref.
Mr. Wasim Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR for Petitioner.
Mr. M.A. Zafar, Sr. ASC for Respondents Nos. 1-6.
Ch. Muhammad Akram, AOR for Complainant.
Date of hearing: 18.5.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the order dated 25.7.2005 whereby an application preferred under Section 561-A Cr.P.C. has been rejected and the order dated 13.3.2001 passed by learned Additional Sessions Judge in Criminal Revision Application Bearing No. 69 of 2002 whereby the order of learned SDM, Preedy Street, Karachi dated 26.8.2000 was set aside, has been kept intact.
Precisely stated the facts of the case are that "in January 2000 the Respondents Nos. 2 to 7, who are related to the applicant handed over possession of Shops Nos. 8, 8-A and 8-B on Plot No. 265 A.M. Iqbal Road, Saddar, Karachi, upon receiving adequate compensation and undertook to get the tenancy transferred in the name of the applicant. The applicant started running his business in the name of Prince Electronics. According to the applicant he was forcibly dispossessed on 3.5.2000 by the Respondent No. 2, who came to the shop with 10 to 15 armed persons. The applicant approached Artillery Maidan Police Station but with no success. Thereupon he moved the SDM who issued orders in terms of Section 145(1) Cr.P.C, on the same day and the property was subsequently sealed in terms of Section 145(4). Eventually by order dated 26.8.2000 it was held that the applicant had been in possession within two months of the order under Section 145(1) and directed that he be put in possession until evicted in due course of law. The aforesaid order was questioned by the Respondents Nos. 2 to 7 in revision and the learned Additional Sessions Judge allowed the revision application directing that possession be handed over to the Respondents Nos. 2 to 7."
Being aggrieved an application under Section 561-A Cr.P.C. assailing the judgment of learned Additional Sessions Judge, dated 13.3.2001 which met the same fate and dismissed, hence this petition.
Mr. Wasim Sajjad, learned Sr. ASC appeared on behalf of petitioner and contended strenuously that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice and the learned High Court while upholding the order of learned Additional Sessions Judge dated 13.3.2001 has misinterpreted and misconstrued the provisions as contained in Section 145 Cr.P.C. causing serious prejudice against the petitioner. It is next contended that the learned Additional Sessions Judge had no jurisdiction to set aside the well based order of learned Magistrate passed on 26.8.2000 by ignoring the agreement dated 14.1.2000 on the extraneous consideration that it was not got signed by Mst. Surriya Parveen and the factum of possession at the relevant time was never considered properly. It is also argued that the non-signing of the agreement by Mst. Surriya Parveen having 1/8th share in the property would have no substantial bearing on merits of the case and as such the physical possession of the shop in question could not have been handed over to the respondent. It is also contended emphatically that once the revisional Court had exercised its powers, the application under Section
561-A Cr.P.C. in the same case would have not been maintainable which aspect of the matter has been ignored by the learned High Court causing serious miscarriage of justice. In order to substantiate his esteemed views Mr. Wasim Sajjad, learned Sr. ASC on behalf of petitioner has referred the following authorities:--
"Mahadeo Prasad v. Ram Saran (AIR [32] 1945 Oudh 12), Muhammad Arif v. Satramdas Sakhimal (AIR 1936 Sind 143), Wazir Chand v. Rawel Chand (AIR [34] 1947 Lahore 227), Gurditta v. Taja (AIR 1939 Lahore 108), Saudi Mahto v. Sukhlal Mahto (AIR 1934 Pat. 33)"
"It is, therefore, prayed that this Honourable Court may be pleased to pass a Judgment and Decree in favour of the plaintiff and against the defendants above-named as under:--
(i) A decree of Rs. 54,00,000/- (Rupees Fifty Four Lacs only) with interest at the rate of 14 % per annum from the institution of above suit till the realization of decretal amount against the defendants above named to pay jointly and severally the decretal amount to the plaintiff, as agreed by them.
(ii) Or in the alternative to pass order for the possession of Shop No. 8 `Nayyar Electronics', Saddar, Karachi to the plaintiff as per agreement dated 23.5.1998.
(iii) To grant injunction against the defendants above-named, their persons, assignees and nominees whosoever restraining them from giving and passing on illegally the possession of Shop
No. 8 `Nayyar Electronics' Saddar, Karachi or its portion to any other person/persons or body in any manner whatsoever.
(iv) Any other relief/reliefs this Honourable Court deem fit, just and proper may be allowed in favour of the plaintiff in the special circumstances of the case.
(v) Cost of the suit."
The learned ASC on behalf of respondents while referring the above reproduced prayer in the suit preferred on behalf of respondents has contended that the question of possession was involved and the date of possession was 26.11.1998 and subsequently fake proceedings were got initiated under Section 145 Cr.P.C. It is also pointed out that the learned trial Court had not appreciated the controversy in its true perspective and ignored the evidence led on behalf of respondents and derived a wrong conclusion which was subsequently rectified by the learned Additional Sessions Judge by examining the evidence in depth and determination whereof has been upheld by the learned High Court and hence the controversy being factual does not warrant interference by this Court. In order to substantiate his view point Mr. S. M. Zafar, learned Sr. ASC has referred case Jawaid Iqbal v. Muhammad Din (1990 SCMR 1309).
We have carefully examined the respective contentions as agitated on behalf of the parties, scanned the entire evidence with their eminent assistance and perused the judgment impugned as well as the judgment of learned Additional Sessions Judge dated 13.3.2001 and the judgment of learned SDM dated 26.8.2000. The basic question which needs determination would be as to whether the jurisdiction as conferred upon the High Court under Section 561-A Cr.P.C. could have been invoked in view of the prevalent circumstances of the case when the revisional Court had already exercised its powers under Sections 439 and 439-A Cr.P.C. There is no hesitation in our mind that "the object of S. 561-A, Cr.P.C. whereby inherent powers are conferred on High Court, is to do real and substantial justice and to prevent abuse of process of Court. To secure ends of justice, powers of High Court are very wide. Power of High Court to prevent abuse of the process of any Court or to secure the ends of justice is undoubtedly very wide, and unlimited, but such power certainly cannot be exercised as to interrupt or divert the ordinary course of criminal procedure. Inherent power of High Court can be invoked where it is established that the proceedings against a person seeking quashment of his case are either malafide, coram non judice or a clear violation of the procedure or such proceedings amount to abuse of process of Court." (Muhammad Hanif Pathan, v. State PLD 1999 Kar. 121, Shoaib Ahmed Bokhari v. The State PLD 2001 Kar. 279).
The above proposition remained the subject of deliberation in various cases and judicial consensus seems to be that irrespective of the fact whether the revisional Court has exercised its authority or otherwise, the powers as conferred upon the High Court under Section 561-A Cr. P.C. can be exercised. The above proposition was discussed in case Muhammad Samiullah Khan v. State (PLD 1963 SC 237), relevant portion whereof is reproduced herein below for ready reference:--
"The jurisdiction under Section 561-A of the Criminal Procedure Code is, in our opinion, of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available. It is of a limited scope and cannot be utilized where there is other express remedy provided by the Code of Criminal Procedure. In the exercise of the inherent jurisdiction under this section the High Court can neither exercise the powers of a Court of appeal nor can it enhance a sentence nor can it even re-consider the question of sentence. It is designed to prevent an abuse of the process of Court and cannot be regarded as being wide enough to give to the High Court the same power that it has under Section 435 read with Section 439 of the Code of Criminal Procedure to examine the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. Such wide powers can only be exercised under Section 439 of the said Code. We think, therefore, that there is a great deal of force in this contention. The scope of the jurisdictions exercised under these two provisions is not similar. The revisional jurisdiction of the High Court under Section 439 is indeed wide and is not confined merely to errors of law. In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases, disturb findings of fact, as, for example, where there subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important place of evidence has been ignored. These things the High Court cannot do under Section 561-A. The two jurisdictions are thus fundamentally different. Indeed, as a rule, the inherent jurisdiction of the Court to correct an abuse of process of Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with."
The provisions as contained in Section 561-A Cr.P.C. were also examined in case Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) wherein it was observed that "it is generally accepted that the inherent jurisdiction, should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a Lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice. These powers are as much controlled by principles and precedents, as are its express statutory powers. " It was further observed that "the inherent jurisdiction given by Section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute."
The provisions as enumerated in Section 561-A Cr. P.C. were also examined in case Javaid Iqbal v. Muhammad Din (1990 SCMR 1309) and it was observed as follows:--
"A learned Magistrate held in favour of the petitioner that he had been dispossessed within two months of the relevant date. The learned Sessions Court reversed this finding in its revisional jurisdiction. The petitioner then finding no other remedy sought interference under Section 561-A Cr.P.C. by the High Court. In such case where a matter stands concluded by the exercise of criminal revisional jurisdiction at the Sessions Court level, it would he very difficult to make out a case for further interference by the High Court under Section 561-A Cr.P.C. The strict conditions laid down therein are not satisfied in this case. Accordingly on this ground alone this petition merits to be dismissed. However, as the High Court did not dismiss the petitioner's application under Section 561-A Cr.P.C. on the said ground and dealt with the merits, we heard the learned counsel on that aspect of the case. It has been found as a fact by the learned Judge in the High Court that the decision on factual aspects rendered by the Sessions Court was unexceptionable. It was also held that the dispute between the parties in reality was the subject-matter of civil litigation and that the same was pending before the Civil Court. Further it was held that important condition; namely, that there should be likelihood of breach of peace which should pre-exist for taking action under the said provision, did not exist in this case."
It is well settled by now that "'inherent powers of High Court under S. 561-A, Cr.P.C. are not impinged, curtailed or limited by the powers possessed by the Courts under S. 435/439, Cr.P.C. But jurisdiction under S. 561-A, Cr.P.C. is not available to a party by way of additional or alternative jurisdiction after exhausting revisional jurisdiction. Powers exercisable by the High Court under Section 561-A of Cr.P.C. are independent of the fact whether any inferior Court has exercised the revisional powers under Section 439-A Cr.P.C. Therefore it cannot be said that after decision of a revision application, an application under Section 561-A of Cr.P.C. is not maintainable." (Niaz Ahmad v. Nisar Ahmad 1997 P.Cr.L.J. 1588, Habibullah Qureshi v. Farooque 1996 MLD 92, Sher Hassan Khan v. Hidayatullah 1996 SCMR 1476)
There is no cavil with the proposition that "High Court in exercise of its inherent jurisdiction under S. 561-A can strike down revisional order of Additional Sessions Judge passed under S. 439-A. Inherent powers under S. 561-A, Cr.P.C. are as much available qua a revisional order passed under Section 439-A Cr.P.C. as against any other order. High Court, in view of facts and circumstances of each case would determine whether petition under Section 561-A seeking quashment of revisional jurisdiction order called for exercise of its inherent powers. The fact that a petition under Section 561-A, Cr.P.C. was directed against a revisional order, by itself, was not a valid ground for dismissing it. High Court has very wide and indefinable powers enabling it to pass any order to do real and substantial justice and to rectify error committed in revisional proceeding. Where High Court feels that a glaring miscarriage of justice has been committed by trial Court which revisional Court failed to rectify, it could invoke S. 561-A Cr.P.C. which empowered High Court inter alia to prevent abuse of process of Court or otherwise to secure ends of justice." (Muhammad Anwar v. Addl. Sessions Judge Okara NLR 2002 Cr. 371, Atta Muhammad v. Aziz Gul PLD 1990 Kar. 236, Khalida Rehman v. Muhammad Aqil PLD 1988 Kar. 85, Muhammad Ahsan v. State l987 P.Cr.LJ. 2434)
It may, however, not be out of place to mention here that no yardstick can be fixed that in what circumstances the High Court can exercise its powers as conferred upon it in Section 561-A Cr.P.C. where the revisional Court had dealt with the same issue while exercising revisional jurisdiction but there is no cavil with the proposition that "the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is an inseparable incident of a thing or an institution in which it inheres. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Courts are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that statute. Every Court, whether civil or criminal must, in the absence of express provision in the Code be deemed to possess, as inherent in its very constitution, all such powers as are necessary to do right and to undo a wrong in the course of the administration of justice. This is based on the principle, "when the law gives a person anything, it gives him that, without which, it cannot exist". The above principle will apply to all Courts in respect of proceedings before them. The High Court has, in view of its general jurisdiction over all the criminal Courts subordinate to it, inherent power to give effect to any order of any such Court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice. The powers possessed by High Court under S. 561-A, Cr.P.C. cannot be curtailed or limited in any manner by any jurisdictional requirement as the jurisdictional requirements of the exercise of such powers are to give effect to any order under the Code of Criminal Procedure, to prevent abuse of process of any Court and to secure the ends of justice, or where the order of the Sessions Judge is contrary to the law laid down by the Superior Courts or where the Court erroneously fails to exercise jurisdiction vested in it under S. 439-A." (Sardar Ali v. State PLD 1987 Lah. 633, Maqbool Rehman v. State 2002 SCMR 1076, Din Mohammad v. Mohammad Sharif PLD 1979 B.J. 12, Raju v. Emperor AIR 1928 Lah. 462, Emperor v. Sukh Dev AIR 1930 Lah. 465, Liaquat Ali v. Muhammad Aslam 1996 P.Cr.LJ 2036, Shamsul Qamar alias Sepoy v. State 1984 P.Cr.LJ 504).
We are, however, of the considered view formed after having gone through almost the entire case law on the subject that the power as conferred upon the High Court under Section 561-A Cr. P.C. are required to be exercised in exceptional cases where it is satisfied that continuation of proceedings complained of would amount to gross abuse of process of Court or that it is absolutely necessary to exercise inherent powers to secure the ends of justice. The powers as conferred upon High Court in Section 561-A Cr.P.C. being extraordinary in nature must be exercised sparingly with utmost care and caution and it should not be exercised in a casual and cursory manner because inherent jurisdiction as conferred upon the High Court pursuant to the provisions as enumerated in Section 561-A Cr. P.C. are neither "alternative" nor "additional" in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available and that the provisions should not be used to obstruct or divert the ordinary course of criminal procedure." (Maqbool Rehman v. State 2002 SCMR 1076, Mahmood Saeed v. Amir Nawaz Khan 1996 SCMR 839, Fazal Karim v. State 1986 SCMR 483, Muhammad Sharif v. Muhammad Javed PLD 1976 SC 461.
In the light of what has been discussed herein above the learned High Court has rightly exercised the powers conferred upon it under Section 561-A Cr.P.C. and no illegality has been done.
We have also adverted to the proceedings got initiated under Section 145 Cr.P.C. by the petitioner. There is no cavil with the proposition that the prime object of the proceedings under Section 145 Cr.P.C. is to prevent a breach of peace and to maintain status quo till the controversy is decided by the Civil Court of competent jurisdiction. The purpose of proceedings under Section 145 Cr.P.C. is to meet an emergent situation in order to maintain peace and further to enable the parties to set the controversy at naught through Civil Court qua the title or claim of the property in dispute. It is mandatory requirement of Section 145 Cr.P.C. that there must not only a dispute but it is essential that a dispute is likely to cause breach of peace (Fazal Haq v. Muhammad Latif PLD 1985 SC 294), and in case the dispossession of property is not coupled with apprehension of breach of peace then the parties concerned should approach the Civil Court for the redressal of their grievances.
This petition has been examined in the light of criterion as mentioned hereinabove and we are of the considered view that there was no immediate apprehension of breach of peace. Had it been so no civil suit would have been filed a decade ago which is indicative of the fact that the question of title was involved and there was no possibility of apprehension of breach of peace as no untoward incidents had taken place between the parties. We are, therefore, of the view that proceedings got initiated under Section 145 Cr.P.C. were to pressurize the respondents to hand over the possession of the premises in question to the petitioner.
We have also dilated upon the question whether non-passing of preliminary order under Section 145(1) Cr.P.C. would vitiate the entire proceedings or otherwise? Ordinarily the provisions as contained in Section 145 Cr.P.C. must be followed in letter and spirit, (Dhaniram v. Kaliram AIR 1927 Lah. 805, Emperor v. Hira Lal AIR 1933 All. 96, Emperor v. Sis Ram AIR 1930 Lah. 895), but the entire proceedings cannot be vitiated merely on the ground that there was some deviation from the procedure. While discussing a similar preposition it was observed by this Court in case Muhammad Ishaq v. Nur Mahal Begum (PLD 1961 SC 426) as follows:--
"It is necessary, according to the tenor of the section, that before an order thereunder can be issued the Magistrate must first be satisfied with regard to the matters therein specified and then after being so satisfied he shall make an order in writing "stating the grounds of his being so satisfied." This statutory provision, therefore, does prescribe the mode for the exercise of the jurisdiction conferred by it and there can be no doubt that Magistrates exercising the said jurisdiction are expected to comply strictly with the said provisions of law. But to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is, in our opinion, too wide a proposition. In our view, there is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to be exercised. The elements necessary for the foundation of jurisdiction under Section 145 of the Criminal Procedure Code are that the Magistrate must be satisfied--
(a) that a dispute likely to cause a breach of the peace exists, (b) that the dispute refers to land or water or the boundaries thereof, and
(c) that such land or water is situated within the limits of his territorial jurisdiction.
If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. We are unable, therefore, to hold that the mere omission to state the grounds, upon which the Court is so satisfied, in the initial order under Section 145 of the Criminal Procedure Code necessarily, makes the order also without jurisdiction. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and mere non-compliance with a rule of procedure generally is not an illegality vitiating the entire proceedings.
In our opinion, when a Court exercises a jurisdiction not strictly in accordance with the mode prescribed by the statute, the question must necessarily arise as to whether the defect amounts merely to an irregularity or an illegality and the answer to this question must necessarily depend upon the character and the object of the rule which has been contravened. In a case falling under this section it is patent that the object of the rule requiring the Court to state the grounds of its satisfaction in the initial order is merely to inform the parties against whom proceedings are sought to be initiated of the reasons which have induced the Court to take action and thus to enable them to put up a proper defence. If the initial order recorded does not state these reasons and the party against whom it is directed finds it difficult to prepare his defence by reason of the vagueness of the order, he can always apply to the Court for the statement of the grounds. On the other hand, if the parties do not feel any difficulty owing to the omission of the grounds and adduce evidence in support of their respective cases, it is difficult to appreciate upon what principle it can be said that the defect in the order amounts to an illegality vitiating the entire proceedings.
In our opinion, in such cases the important thing is to see whether there were materials on the record upon which the satisfaction of the Magistrate could be at all grounded. If there exist such materials, then the mere omission to state the grounds of satisfaction will not vitiate the order. In such a case it must be held that there has been substantial compliance with the requirements of the said sub-section and that the defect is merely a technical defect.
This view also finds support from the Full Bench decision of the Calcutta High Court in the case of Khosh Muhammad Sarkar v. Nasir Muhammad (ILR 33 Cal. 352), upon which reliance was sought to be placed by the learned counsel appearing for the appellants to show that this principle is applicable only in cases where proceedings have in fact been taken and concluded by a final order. According to him when a party challenges such a defective order at the initial stage the considerations which normally deter a superior Court from setting aside the entire proceedings should not be given the same weight. We are, however, unable to see any distinction in principle. There is no valid reason as to why the legal consequence of such a defect should be different at different stages of the same proceeding."
"8. Indeed some witnesses produced by the applicant deposed that they saw him doing business at the disputed shop between January to May 2000, apart from doing his independent business in the adjacent shop, called Prince Electronics, but none of them has deposed in what capacity the applicant was doing such business or whether the shop was in his possession to the exclusion of the Respondents Nos. 2 to 7. It could not be overlooked that the parties were closely related to each other, the applicant being the son-in-law of the Respondent No. 2 and brother-in-law of Respondents Nos. 3 to 7. It is also relevant to mention that apart from the fact that transfer of tenancy rights had not formally taken place, the applicant had filed Suit No. 33 of 1999 in this Court for recovery of
Rs. 5,400,000/- or in the alternative possession of the disputed shop. According to the plaint the applicant had paid off certain debts of the respondents and the respondents had agreed to pay off the debts of Rs. 2,700,000/- within three months of the agreement dated 23.5.1998, It was further stipulated that in the event of their inability they would either pay the applicant an amount of
Rs. 5,400,000/- or transfer tenancy rights and put the applicant in possession upon receiving a further amount of Rs. 5,600,000/-. Incidentally the suit is still pending and it is a little difficult to believe that the applicant was put in possession without a settlement in the above suit and without transfer of tenancy rights. Therefore, the conclusion arrived at by the revisional Court cannot be deemed to be perverse. The applicant may indeed be entitled to possession of the disputed shop in law or equity but that is not a question with which this Court is concerned in the present proceedings. Al that has to seen his a factum of physical possession at the relevant date and once a finding of fact has been recorded by a revisional Court the principle laid down in Jawaid Iqbal's case cited above, become squarely applicable."
We have also examined the case law cited by Mr. Wasim Sajjad, learned Sr. ASC on behalf of petitioner which being distinguishable is not applicable.
As mentioned in the preceding paragraphs, the civil litigation is also pending and the dispute relates to title of the property in question as such the conclusion arrived at by the learned High Court being well based does not warrant interference. The petition being merit less is dismissed and leave refused.
(Malik Sharif Ahmed) Leave refused
PLJ 2007 SC 207
[Appellate Jurisdiction]
Present: Javed Iqbal, Muhammad Nawaz Abbasi & Hamid Ali Mirza, JJ.
IFTIKHAR-UL-HASSAN--Appellant
versus
ISRAR BASHIR and another--Respondents
Crl. A. No. 130 of 2002, decided on 24.5.2006.
(On appeal from the judgment dated 19.11.2001 passed by Lahore High Court, Lahore in Criminal Appeal No. 138/97 & M. Ref. No. 80/97).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 308--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--High Court converted the sentence awarded as Tazir into the payment of diyat with rigorous imprisonment--Sole question for determination in the present appeal, relates to the scope of Section 308 PPC--S. 308 PPC is attracted only in cases liable to Qisas in which by virtue of provisions of Ss. 306 & 307 PPC, punishment of Qisas cannot be imposed or enforced and not in the cases in which punishment is awarded as Tazir--S. 308 PPC is not attracted for the reasons that respondent has not been able to bring on record any legal evidence at the time of occurrence, accused was minor and in the absence of evidence in terms of S. 304 PPC to bring the case within the ambit of S. 302(a) PPC for the purpose of punishment of Qisas respondent was awarded sentence of death by trial Court u/S 302(b) PPC as Tazir--Provision of S. 308 P.P.C. is also applicable in the cases in which punishment of death is awarded as tazir whereas correct legal position is that this special provision is invokable only in the cases in which either offender is not liable to Qisas or Qisas is not enforceable--This is against the spirit of law that in all cases of Qatl-e-amd in which sentence of death is awarded either as Qisas u/S 302 (a) or as tazir u/S 302(b) PPC, an offender who at the time of committing the offence, was less than 18 years of age shall liable to the punishment provided u/S. 308 PPC rather the true concept is that S. 308 PPC will operate only in the cases which fall within the ambit of Ss. 306 and 307 PPC in which either offender is not liable to Qisas or Qisas is not enforceable. [P. 214] A
2004 SCMR 4; 1999 SCMR 2203; 2003 SCMR 855 and 2000 SCMR 338, ref.
Syed Ehtesham Qadir Shah, ASC for Appellant.
Rana Mahmood Arif, ASC for Respondent No. 1.
Ch. Munir Sadiq, ASC for Respondent No. 2.
Date of hearing: 24.5.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This criminal appeal by leave of the Court has been directed against the judgment dated 19.11.2001 passed by the Lahore High Court, whereby criminal appeal filed by Israr Bashir, respondent herein, against the conviction and sentence of death awarded to him by learned Sessions Judge, Sheikhupura, under Section 302(b) PPC with direction to pay Rs. 20,000/- as compensation to the legal heirs of Sohail Ahsan, deceased, under Section 544-A, Cr.P.C. vide judgment dated 22.3.1997 was disposed of with conversion of the sentence of death into rigorous imprisonment for 14 years with direction to pay diyat to the legal heirs of the deceased under Section 308 PPC.
"Respondent Israr Bashir was tried by Sessions Judge, Sheikhupura for having committed the murder of Sohail Ahsan and vide judgment dated 22.3.1997 was convicted and sentenced to death. While hearing the appeal of the respondent the learned Judges of the High Court determined the question of adulthood of the respondent and held that at the time of the commission of offence, he was a minor and therefore the extreme penalty of death was withheld. Learned counsel for the petitioner-complainant has seriously disputed this aspect of the case and contends that learned Judges of the High Court have fallen into grave error while relying on the assertion of the respondent in his statement under Section 342 Criminal Procedure coupled with "Saza Slip" prepared by the Investigating Officer to determine the age of the respondent. Relying on 1995 SCMR 1668 and 1993 SCMR 219, learned counsel argued that provisions of Sections 308 read with Section 299 Pakistan Penal Code have been misconstrued by learned Judges to reduce the sentence of death to 14 years RI.
After hearing the learned counsel for the petitioner and considering the case from all angles, we are of the view that the points raised need consideration and to determine the limited question as to the quantum of sentence in this case, we are inclined to grant leave to appeal. Order accordingly. Let liable warrants in the sum of Rs. 1,00,000/- with one surety in the like amount returnable to the District and Sessions Judge. Sheikhupura be issued against respondent Israr Bashir. "
In consequence to a quarrel taken place between the appellant and deceased while playing badminton in the evening of 16.8.1995 in the playground of Government High School, Kot Nazim Din, situated within the area of Police Station, Sialkot, the respondent Israr Bashir being annoyed on the fateful day, by way of firing with .30 bore pistol at Sohail Ahsan (deceased), caused him injuries on various parts of his body which proved fatal to his life. Learned trial Judge in the light of evidence produced by the prosecution, having found the respondent guilty of the charge of murder, convicted and sentenced him to death under Section 302(b) PPC whereas the High Court in appeal filed by him, converted the sentence of death awarded to him under Section 302(b) PPC as tazir into the payment of diyat with rigorous imprisonment for 14 years under Section 308 PPC on the ground that the respondent at the time of occurrence, being minor, was not liable to the punishment of qisas. In support thereof, the reliance was placed on Sarfraz Vs. State (2000 SCMR 1758) wherein it was held that a minor offender of qatl-i-amd is not liable to the punishment of qisas under Section 302(a) PPC.
The learned counsel for the appellant having challenged the correctness of the finding of the High Court regarding the age of the respondent has contended that there was no cogent and convincing evidence available on the record in proof of the fact that at the time of occurrence, respondent was below the age of 18 years and vehemently argued that in a case of qatl-i-amd in which the punishment of death is awarded as tazir under Section 302(b) PPC, Section 308 PPC is not attracted. The learned counsel submitted that the statement under Section 342 Cr.P.C. or saza-slip prepared by the police is not a legal evidence to prove the age and in absence of any documentary evidence in the form of birth certificate or school leaving certificate, the assertion of the respondent that he was below the age of 18 years at the time of occurrence, was without any substance. Learned counsel argued that the plea of minority raised by the respondent for the first time before the High Court in appeal on the basis of saza-slip and his own statement under Section 342 Cr.P.C. in absence of any other evidence, was without any foundation, therefore, the finding of the High Court in this behalf would be of no significance and even otherwise, the minority factor of the offender in the present case at the most, would be relevant to determine the question relating to the quantum of sentence under Section 302(b) PPC and would not bring the case within the ambit of Section 308 PPC for the purpose of punishment.
Learned counsel for the respondent on the other hand, in the light of observation made by the learned Judges in the High Court, submitted that in the police record the age of respondent was shown as 17 years whereas the trial Court has recorded his age as 18 years in his statement under Section 342 Cr.P.C therefore, notwithstanding the failure of respondent to bring on record any other evidence oral or documentary, the prosecution having noted the age of respondent below 18 years at the time of occurrence, has conceded his plea of minority, therefore, the High Court has rightly given him the benefit of Section 308 PPC.
The sole question for determination in the present appeal, relates to the scope of
Section 308 PPC and for better appreciation of the proposition, we deem it proper to examine the relevant provisions in Chapter XVI of PPC, alongwith the definition of "Adult", "qatl-e-Amd", qisas' andtazir' to ascertain correct legal position regarding the application of Sections 306 and 307 PPC in respect of the punishment of qisas and tazir for qatl-i-amd under
Section 302 PPC.
"299. (a) "Adult" means a person who has attained the age of eighteen years;
......................................
(k) "Qisas" means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali.
(l) "Tazir" means punishment other than qisas diyat, arsh or daman ."
Qatl-i-amd has been defined in Section 300 PPC as under :--
"300. Qatl-i-amd.-Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd."
The punishment of qatl-i-amd liable to qisas is provided in Section 302 (a) PPC whereas tazir under Section 302(b) and (c ) PPC as under :--
"302. Punishment of Qatl-i-amd.--Whoever commits Qatl-i-amd shall subject to the provisions of this chapter, be--
(a) Punished with death as qisas;
(b) Punished with death or imprisonment for life as tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or
(c) Punished with imprisonment of either description for a term which may extend to twenty five years, where according to the injunctions of Islam the punishment of qisas is not applicable."
"306. Qatl-i-amd not liable to qisas.--Qatl-i-amd shall not be liable to qisas in the following cases, namely:--
(a) When an offender is a minor or insane:
Provided that, where a person liable to qisas associates himself in the commission of the offence with a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas;
(b) When an offender causes death of his child or grandchild, howlowsoever; and
(c) When any wali of the victim is a direct descendant, howlowsoever, of the offender.
(a) When the offender dies before the enforcement of qisas;
(b) When any wali voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas under Section 309 or compounds under Section 310; and
(c) When the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on the person who has no right of qisas against the offender.
Provided that, where the offender is minor or insane, diyat shall be payable either from his property or, by such person a may be determined by the Court;
Provided further that, where at the time of committing Qatl-i-amd the offender being minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as tazir:
Provided further that, where the qisas is not enforceable under clause (c) of Section 307, the offender shall be liable to diyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as tazir.
(2) Notwithstanding anything contained in sub-section (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punished the offender with imprisonment of either description for a term which may extend to fourteen years, as tazir."
Section 338-F PPC provides that in the matter of interpretation and application of previsions of the Chapter XVI PPC of the offences relating to the human body and qisas and diyat, the Court shall be guided by the Injunctions of Islam as laid down in the holy Quran and Sunnah of Holy Prophet (PBUH).
"304. Proof of qatl-i-amd liable to qisas, etc. (1) Proof of qatl-i-amd liable to qisas shall be in any of the following forms, namely--
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No, 10 of 1984).
The provisions of sub-section (1) shall, mutatis mutandis, apply to a hurt liable to qisas."
The ambiguity regarding the application of Section 308 PPC in all cases of qatl-i-amd in which the offender cannot be awarded the punishment under Section 302 (a) PPC is removed in the light of above discussion as careful examination of the different provisions of law referred hereinbefore, would clearly show that in the cases in which the offender is not liable to qisas for the reasons given in Section 306 PPC or the punishment of qisas cannot be enforced under Section 307(c) PPC Section 308 PPC is attracted but in the cases in which the punishment of death is awarded under Section 302(b) PPC as tazir this Section is not applicable. The right of qisas means the right of causing similar heart on the same part of body and in case of death, the offender will be done to death in the manner he committed death of his fellow person and thus the punishment of death as qisas provided under Section 302(a) PPC cannot be awarded unless the evidence in terms of Section 304 PPC is available and in a case of qatl-i-amd in which the punishment of qisas cannot be awarded, the Court may on proving charge against the offender, having regard to the facts and circumstances of the case, award him the punishment of death or life imprisonment as tazir under Section 302(b) PPC. In view of the above distinction, a minor offender of qatl-i-amd may in case of punishment of tazir, avail the benefit of minority in the matter of sentence under Section 302(b) PPC but can not claim the benefit of Section 308 PPC.
This Court in Sarfraz Vs. State, referred hereinbefore, has held that a minor accused who has committed an offence of qatl-i-amd under influence of others cannot be awarded sentence of death as qisas under Section 302(a) PPC. This is settled law that provisions of Sections 306 to 308 PPC attract only in the cases of qatl-i-amd liable to qisas under Section 302(a) PPC and not in the cases in which sentence for qatl-i-amd has been awarded as tazir under Section 302(b) PPC. The difference of punishment for qatl-i-amd as qisas and tazir provided under Section 302(a) and 302(b) PPC respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the sentence provided under Section 302(b) PPC and exercise of this discretion in the case of sentence of tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved form sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of qatl-i-amd, keeping in view the circumstances of the case, may award the offender the punishment of death or imprisonment of life by way of tazir. The proposition has also been discussed in Ghulam Murtaza Vs. State (2004 SCMR 4), Faqir Ulah Vs. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram Vs. State (2003 SCMR 855) and Abdus Salam Vs. State (2000 SCMR 338).
The careful examination of the provisions referred above, would clearly show that Section 308 PPC is attracted only in the cases liable to qisas in which by virtue of the provisions of Sections 306 and 307 PPC, the punishment of qisas cannot be imposed or enforced and not in the cases in which punishment is awarded as tazir. In the light of law laid down by this Court in the judgments referred above, we are of the considered view that in the facts of the present case. Section 308 PPC is not attracted for the reasons firstly that respondent has not been able to bring on record any legal evidence to the satisfaction of the law that at the time of occurrence, he was minor and secondly, in absence of the evidence in terms of Section 304 PPC to bring the case within the ambit of Section 302(a) PPC for the purpose of punishment of qisas, the respondent was awarded sentence of death by the trial Court under Section 302(b) PPC as tazir. There is misconception of law that the provision of Section 308 PPC is also applicable in the cases in which punishment of death is awarded as tazir whereas the correct legal position is that this special provision is invokeable only in the cases in which either offender is not liable to qisas or qisas is not enforceable. This is against the spirit of law that in all cases of qatl-i-amd in which sentence of death is awarded either as qisas under Section 302(a) or as tazir under Section 302(b) PPC, an offender who at the time of committing the offence, was less than 18 years of age shall be liable to the punishment provided under Section 308 PPC rather the true concept is that Section 308 PPC will operate only in the cases which fall within the ambit of Sections 306 and 307 PPC in which either offender is not liable to qisas or Qisas is not enforceable.
In the light of foregoing reasons, we while maintaining the conviction of respondent awarded to him by the learned trial Judge under Section 302(b) PPC and setting aside the judgment of the High Court award him sentence of life imprisonment u/S. 302(b) PPC and also grant him the benefit of Section 382-B, Cr.P.C. Learned counsel for the respondent has informed us that amount of diyat has already been deposited whereas learned counsel for the appellant states that this amount has not been withdrawn by the appellant. Be that as it may, with the deduction of amount of compensation of Rs. 20,000/-, the amount of diyat deposited by the respondent will be refunded to him. With the above modification in the judgment of High Court and sentenced awarded to the respondent, we partly allow this appeal. The respondent who is on bail, shall be taken into custody and shall be sent to jail to serve out remaining sentence.
(Malik Sharif Ahmed) Order accordingly
PLJ 2007 SC 215
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
ZAIGHAM-UR-REHMAN @ ZAIGI--Appellant
versus
STATE--Respondent
Crl. A. No. 147 of 2001, decided on 13.9.2006.
(On appeal against the judgment dated 18.10.2000 passed by Lahore High Court, Lahore in M.R. No. 219/1994 and Crl. A. No. 462/1994).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(a)(b)--Conviction and sentence recorded against accused by trial Court--Conviction was altered by High Court--After due appraisal of evidence, Courts below came to the concurrent conclusion as to the guilt of the appellant--Supreme Court was not expected to substitute concurrent finding of fact of two Courts in the proceedings--Only plea for mitigation is confinement of the appellant in death cell for about 6 years--This by itself, does not constitute a sufficient mitigating circumstance to over turn the normal penalty of death--It will be highly erroneous to lay down as principle in law--Death sentence is improper in cases where accused persons were in custody for 3 years or more, even though the facts of the case otherwise call for a death sentence--Practically in no murder case death sentence can be awarded, since in this country normally a murder trial and confirmation of death sentence takes more than three years. [Pp. 219 & 220] A, B, C & D
Mian Aftab Farrukh, Sr. ASC for Appellant(s).
Sardar M. Latif Khan Khosa, AOR for Complainant.
Mr. Dil M. Tarar, ASC for State.
Date of hearing: 13.9.2006.
Judgement
Syed Jamshed Ali J.--This appeal, with the leave of this Court, is directed against the judgement dated 18.10.2000 of the learned Lahore High Court, whereby conviction of the appellant under Section 302(a) P.P.C., sentence of death and a fine of Rs, 30,000/-, vide trial Court judgment dated 11.8.1994 for the murder of Tariq Sharif in case FIR No. 107/1991 registered on 22.7.1991 at Police Station Kotwali, District, Gujranawala, was maintained with the alteration of the conviction under clause (b), instead of clause (a) of Section 302 P.P.C.
The prosecution case, as per the FIR was, that the appellant had borrowed a sum of Rs. 2000/- from the deceased. 3/4 days prior to the occurrence, on the demand of the deceased return of his money, the two had a scuffle, the appellant took it as an insult and had threatened to take a revenge. Accordingly, on 21.7.1999, at about 10:30 P.M., while the deceased was sitting alongwith Muhammad Younas, (PW-12) and Muhammad Saeed (not produced) in the "Bazar Churigaran" on a "Phatta" the appellant appeared from the "Gali" Ghulam Ghous with a Khanjar and gave repeated blows to Tariq Sharif who was rushed to the hospital by Khalid Sharif the complainant, his brother, Muhammad Saeed, and Ghulam Sarwar but he succumbed to his injuries.
On trial, the prosecution relied on the ocular testimony, recovery of blood stained Churri, and the motive. The defence plea was total denial. The appellant, however, stated that he had asked the deceased not to sit in front of the girls school at the corner of the street prior to the occurrence, it was only on account of suspicion that he was involved in this case and the PWs had deposed against him on account of relationship with the deceased. He did not produce any defence evidence. On consideration of the evidence produced in the case, the learned trial Court convicted and sentenced the appellant as stated above which was maintained by the High Court.
The appellant approached this Court in Criminal Petition No. 610-L/2000 in which leave was granted on 16.4.2001, in the following terms:-
"We have heard the learned counsel for the petitioner at length as well as learned counsel for the complainant. The points raised by learned counsel for the petitioner are that F.I.R. was lodged by Khalid Sharif real brother of the deceased but he had not mentioned any where that he was present at the spot or had witnessed the occurrence. Learned counsel further pointed out that this fact coupled with the circumstance that occurrence had taken place at 10:30 p.m. whereas F.I.R was got registered on the following day at 3:30 p.m. This also indicates that first informant Khalid Sharif, real brother of the deceased, was not present at the spot. If he was present at the spot, he should have got the case registered immediately thereafter. It is further stated by learned counsel for the petitioner that Doctor Jameel Ahmed Mirza PW-1 in his statement before the Court stated that it was one Ghulam Sarwar who brought the injured to the hospital for treatment. It was argued that if the first informant was present at the spot at the time of occurrence, it is natural that he would take the injured to the hospital.
Apart from the points noted in the leave granting order, Mian Aftab Farrukh, Sr. ASC the learned counsel for the appellant, contends that according to FIR, it was one Muhammad Sarwar who had taken the deceased to the hospital but he was not produced. According to him, he would have been able to depose the place of occurrence from which the deceased was removed to the hospital. Muhammad Saeed also went to the hospital with Muhammad Sarwar but even he was not produced. He contended that the allegation, according to FIR, was that the appellant gave multiple `Khanjar' blows while a "Churri" was recovered allegedly at the pointation of the appellant, the Police Station was at a distance of 2 furlong, the medical officer examined the deceased (then injured) at 10:45 P.M. but the complainant party did not inform the police and according to the investigating officer he had received information on wireless on which he had reached the hospital, in the FIR, the complainant did not assert to be an eye-witness although the Courts below had so erroneously assumed. By referring to the site-plan, he contended that deceased and the three others referred to above were sitting so close to each other, that it was not possible for the appellant to inflict injuries on the person of the deceased where these were found. He next contended that the conduct of Muhammad Younas, Muhammad Saeed and the complainant, (if at all he was present there) not to intercept the appellant and save the deceased was unnatural and therefore, their testimony ought to have been rejected. Muhammad Younas and Muhammad Saeed claimed to have lifted the deceased from the place of occurrence for being taken to the hospital and their clothes were stained with blood. Muhammad Younas (PW-12), had stated that he had shown his clothes to the police. By referring to the inspection note, Exh. D.C., and the site-plan Exh. P.C. he contended that although a tube was shown in the site-plan it was missing from Exh. D.C. He further contended that in fact, it was an unwitnessed occurrence, Muhammad Sarwar had taken the deceased to the hospital from some other place. Thereafter, the complainant was informed and he alongwith Muhammad Saeed and Muhammad Younas had reached the hospital.
He lastly contended that according to the medical evidence, the deceased had received two injuries but the possibility that the second injury was the result of the first, could not be ruled out. Therefore, not only it was a case of single injury but also that since his arrest, the appellant is in the judicial lockup for about last 16 years including 6 years in the death cell and according to observation of the trial Court, the motive remained shrouded in mystery. He, accordingly, pleads clemency for the appellant in the matter of sentence if, according to him, this Court is not persuaded, to interfere with the conviction. In support of this plea, he placed reliance on Mehmood Rashid and others Vs. The State (2003 SCMR 581), Muhammad Ahsan alias Aksan Vs. The State, (PLD 2006 SC 163).
Sardar Muhammad Latif Khan Khosa, ASC, appearing on behalf of complainant, contends that the submissions made by the learned counsel for the appellant are only conjectural. It is a case of a single accused and Muhammad Younas (PW-12) a Mohallahdar, was a natural witness and had no motive to falsely depose against the appellant. Explaining the delay in lodging the FIR, he referred to the statement of Doctor Abdul Malik Sheikh, (PW-6) to contend that 12 pints of blood were required for the operation of the injured/deceased, during the operation seven pints were actually given to the deceased and he has been arranging it. In the circumstance the medical officer marked Muhammad Sarwar as the person bringing the patient. It was only a formality not affecting the merits of the case. He submits that arrangement of blood and operation of the injured was considered more important than lodging a complaint with the police. As to the place of occurrence he submits that investigating officer had collected the blood stained earth from the place of occurrence as alleged in the FIR and it was not challenged. As far as Ghulam Sarwar is concerned, according to him, since he was not an eye-witness, his production was not necessary. As far as description of the weapon is concerned, he maintained that it was not a material discrepancy. In any case, the weapon recovered from the appellant was stained with human blood. As far as the blood stained clothes of Muhammad Yunas and Muhammad Saeed are concerned, his submission was that it was for the investigating officer to take into possession their clothes and any lapse or omission on his part can not have the effect of ablating the credibility of the prosecution case.
As far as quantum of sentence is concerned, he maintained that it was a brutal murder and a young man was done to death by repeated blows. The motive' being clear the normal penalty of death, which is the rule, was rightly handed down to the appellant and no mitigating circumstance exists for lesser penalty. Reliance was placed on Jawed Malik Vs. The State (2005 SCMR 49), Iftikhar Ahmad Vs. The State, (2005 SCMR 272), Syed Hamid Mukhtar Shah Vs. Muhammad Azam and 2 others, (2005 SCMR 427).
Mr. Dil Muhammad Tarar, Advocate, represented the State. He submits that the ocular account is duly corroborated by the medical evidence, recovery of blood stained Churri and the motive which was proved by PW-9, and therefore, no case for interference is made out.
We have considered the submissions made by the learned counsel for the parties. The learned two Courts, after due appraisal of the evidence, came to the concurrent conclusion as to the guilt of the appellant. This Court is not expected to substitute concurrent findings of fact of the two Courts in these proceedings. In this case all submissions made pertain to the domain of appreciation of the evidence. And, we find no error of approach. However, we have examined the record in the light of the submissions of the learned counsel for the parties. The lodging of FIR at 3:30 a.m. cannot, in the circumstances, be said to be delayed because attempt to save the life of a person was rightly considered to be more important than to rush to the Police Station, particularly in this case the real brother of the deceased (the complainant) had to arrange 12 pints of blood. This must have consumed time and effort.
The place of occurrence was not disputed by the defence during the trial, and even if presence of the complainant at the spot at the time of occurrence was' excluded, Muhammad Younas (PW-12), a natural and independent witness, fully supported the prosecution case in all material particulars and we, see no reason to disbelieve him. The "Churri" recovered at the pointation of the appellant was stained with human blood and the medical evidence fully supported the prosecution case. We see no reason to take a view different than the one taken by the learned two Courts. The discrepancies in the description of weapon of offence (a Khanjar or "Churri"), the inspection note and the site-plan, conduct of PWs, are not material to discredit the prosecution version.
As far as the quantum of sentence is concerned, we see no mitigating circumstance. It is not a case of single injury or the motive remaining shrouded in mystery because it was proved by PW-9. Therefore, the only plea for mitigation is confinement of the appellant in the death cell for about 6 years. This by itself, in our view, does not constitute a sufficient mitigating circumstance to over turn the normal penalty of death, 13. The judgements relied upon by the learned counsel for the appellant have been examined. In the case of Muhammad Rashid, supra this Court converted the death penalty into life on two considerations. Firstly, that the convict had been in the death cell for ten years and secondly he had acted on the instigation of his father. There is no such factor in the case in hand. In the case of Muhammad Ahsan supra, death by "Churri" blow was visited with imprisonment for life which was upheld by this Court, This too is not relevant to the controversy.
In Muhammad Yar alias Kukoo Vs. The State (2004 SCMR 937), the plea of mitigation of sentence from death into life was raised before this Court on the ground that since the conviction the appellant therein was in the jail as condemned prisoner. The period involved in the said precedent case was about nine years. The plea was repelled with the following observations:--
"The detention of the petitioner as under trial prisoner during the trial and as convict in the jail pending disposal of the appeal before the High Court and this petition before this Court, would not be an extenuating and mitigating circumstance,"
In making the above observation reliance was placed on Maqbool Ahmad and others Vs. The State (1987 SCMR 1059), in which it was observed "that the detention of convicts in jail by itself to be no mitigating circumstance entitling persons convicted for murder to lesser penalty or reduction of sentence. In Sultan and others Vs. The State (1987 SCMR 1177), the plea for mitigation based on confinement of the condemned prisoners in the death cell for a number of years was not accepted although on other considerations the death sentence of the convicts was altered. Reference may also usefully be made to State of U.P, Vs. Dharmendra Singh and another etc. (AIR 1999 SC 3789). In the said case the Allahbad High Court had refused to confirm the death sentence only on the ground that convicts had been in the death cell for more than three years. The Indian Supreme Court interfered with the following observations:--
"The High Court has erred in coming to this conclusion both factually as well as inferentially. First of all these respondents were not in death cell for 3 years nor is there a law which says that a person in death cell for 3 years ipso facto is entitled for commutation of death sentence. While it is true that prolonged trial or execution of the death sentence beyond all reasonable period may be a ground for commuting the death sentence in a given case, it will be highly erroneous to lay down as a principle in law or draw an inference on fact that awarding of death sentence is improper in cases where accused persons are in custody for 3 years or more, even though the facts of the case otherwise call for a death sentence. If the view taken by the High Court in this case is to be accepted as a correct principle then practically in no murder case death sentence can be awarded, since in this country normally a murder trial and confirmation of death sentence takes more than 3 years. This Court speaking through a Constitution Bench in Smt. Triveni Ben V. State of Gujarat (1988) 4 SCC 574: (AIR 1989 SC 142: 1989 Cri. LJ 870) has held: "No fixed period of delay could be held to make the sentence of death inexecutable".
(Malik Sharif Ahmed) Appeal dismissed
PLJ 2007 SC 221
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
MURAD ALI--Petitioner
versus
STATE--Respondent
Crl. P. No. 23-Q of 2006, decided on 3.8.2006.
(On appeal from the judgment dated 5.6.2006 of the High Court of Balochistan, Quetta passed in Crl. J.A. No. 1/2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused--Appeal was dismissed--Appreciation of evidence--No hard and fast line as to conduct of a person at a given time, situation and thereafter depending upon various factors, mental capacity and capability could be drawn, foreseen or meticulously calculated, which differs and varies from time, to time person to person and remain fluctuating or consistent and firm, therefore, one cannot conclude definitely or assess a man's behaviour before hand nor any definite opinion with regard thereto could be formed--So it could not be safely assumed that since the accused had surrendered in the police station and had produced pistol alongwith live rounds admitting to have murdered the deceased would not essentially motivate the accused to have had volunteered to make confession of his guilt before the Judicial Magistrate on the same day or on the following day and; as per evidence a couple of days thereafter during course of investigation of the case he voluntarily had offered to make confession--Contention raised on the point to be devoid of substance--No tampering with respect to sealed parcel of crime empty secured from the place of occurrence--Mere delay in dispatching the articles to the expert was inconsequential--Motive part of prosecution story with regard to old enmity also stand proved through the confession of accused which has been found true and voluntary--confession though retracted; stands corroborated from circumstantial piece of evidence i.e. production of pistol--Recovery of crime empty and positive report of fire-arm expert, medical evidence, blood stained earth last worn clothes of deceased were found stained with human blood--Petition dismissed. [Pp. 224 & 225] A, B & C
Mr. Muhammad Riaz Ahmed, AOR for Petitioner.
Nemo for Respondent.
Date of hearing: 3.8.2006.
Judgment
Raja Fayyaz Ahmed. J.--This Criminal Petition for leave to appeal has been directed against the judgment dated 5.6.2006 passed by the learned Division Bench of High Court of Balochistan, Quetta, whereby Criminal Jail Appeal No. 1/2004 filed by the petitioner against his conviction under Section-302(b) PPC, sentenced to imprisonment for life vide judgment dated 21.11.2003 of the learned Sessions Judge Lesbella at Hub, has been dismissed.
The motive behind the occurrence was disclosed to be old enmity.
After registration of the case, Abdul Jaleel SI P.S. Bela (PW-13) reached to the place of occurrence, prepared site map and the inquest report, as well as; secured blood stained earth and arrested one of the nominated accused namely", Ahmed. His co-accused Murad Ali s/o Ahmed on 23.12.2002 surrendered at police station Bela, who produced an unlicensed .30 bore T.T Pistol by disclosing that he had committed the murder of the deceased. The pistol so produced alongwith the magazine and two live cartridges were taken into possession. Also against the petitioner case under Section-13(e) of the Arms Ordinance, 1965 was separately registered as he failed to produce arms licence. He was arrested by PW-13 in connection with the murder case and under Section-13 of the Arms Ordinance. During course of investigation of the case, the said accused offered to record confessional statement. Accordingly, he was produced before the learned Judicial Magistrate Bela on 28.12.2002 who recorded his confessional statement Exh-P-8/A thereafter was sent to judicial lock up. Durmg inspection of the place of wardat, crime empty of T.T pistol was taken into possession vide memo Exh-P-2/B and sealed into the parcel. The dead body of deceased Sabago was taken into possession and sent to M.O. RHC Bela for postmortem examination. He also took into possession the blood stained clothes of the deceased through memo Exh-P/5-A and sealed into the parcel. The blood stained earth, crime empty of T.T pistol secured from the place of occurrence and the pistol taken into possession alongwith live rounds produced by the petitioner were sent to the Chemical Expert and the Firearm Expert. As per report Exh-P-13/F the clothes of the deceased and the earth were stained with human blood. The positive report Exh-P-13-K of the Firearm Expert was to the effect that the crime empty on examination was found to have been fired from the said pistol. He also obtained MLR of the deceased Exh-P/9-A issued by Dr. Khalid Baloch M.O. RHC Bela. Co-accused of the petitioner namely Ahmed (father of the convict) was discharged under Section 169 Cr.P.C. for want of his involvement in the case. After completion of the investigation, report under Section-173 Cr.P.C. was submitted in the Court of learned Sessions Judge Lasbella at Hub.
The accused was indicted in view of the accusation and the incriminating material produced with the report by the learned trial Court to which he did not plead guilty. The prosecution in order to substantiate the accusation produced 13 witnesses namely Mst. Sher Bano-complainant (PW-1), Abdul Rehman (PW-2), Abdul Qayyum (PW-3), Abdul Hakeem (PW-4), Muhammad Hassan (PW-5) Habibullah (PW-6), Nisar Ahmed (PW-7), Muhammad Anwar (PW-8), Dr. Khalid Baloch (PW-9), Muhammad Rafiq (PW-10), Mst. Safia wife of the deceased (declared hostile) (PW-11), Abdul Rauf Patwari (PW-12) and Abdul Jalil SI/IO. (PW-13).
After close of prosecution evidence, the petitioner/convict was examined by the learned trial Court under Section-342 Cr.P.C. in view of the incriminating evidence brought on record at the trial which he denied and disputed. He recorded his statement on oath in disproof of the charge under Section-340(2) Cr.P.C. wherein he took the plea of alibi and claimed his innocence. He produced five witnesses in defence namely Muhammad Khan (DW-1), Somar (DW-2), Muhammad Hasan (DW-3), Ismail (DW-5) and Imam Bukhsh (DW-5) respectively marked as DW-1,2 and 3.
After close of the parties evidence, the learned trial Court vide judgment above mentioned found the petitioner guilty under Section-302(b) PPC and was sentenced to imprisonment for life, as well as; directed to pay compensation of Rs. 1,00,000/- to the legal heirs of the deceased Sabago, excluding Mst. Safia wd/o the deceased as she had compromised with the convict, or in default of payment of amount of the compensation to further undergo SI for six months. Benefit of Section-382-B Cr.P.C. was extended in his favour by the learned trial Court.
The learned AOR for the petitioner has been heard at some length. The learned counsel mainly contended that the confession of the petitioner in the given circumstances of the case appeared to be not voluntary as the motive pertaining to the old enmity stood already compromised/settled between the parties which finds support from the evidence of PW Mst. Safia wd/o the deceased nor it seemed to be reasonable and convincing that the deceased himself on his own, as a voluntary act had surrendered in the police station alongwith weapon of alleged offence i.e. 30 bore TT Pistol etc. He further submitted that the crime empty and the pistol were sent to the Forensic Science Laboratory on 30.1.2003 after a considerable delay, therefore, the possibility of manipulation could not be excluded, which therefore; rendered the fire-arm expert report as not worthy of any credence. The learned counsel argued that had the petitioner surrendered to the police and produced the pistol on 23.12.2002 there seemed to be no reason on his part to have not volunteered to make confession of the guilt on the same day or on the following but his confession was recorded by the learned Judicial Magistrate on 28.12.2002, hence; the delay in the given circumstances of the case rendered the confession as not voluntary and true, which was also retracted. According to the learned counsel, the prosecution evidence suffers from inherent material lapses and doubts, and not appraised in its true perspective by both the learned Courts.
The contentions noted above put forth on behalf of the petitioner have been considered in the light of the record of the case gone through carefully and minutely with the assistance of the learned counsel including the impugned judgment. The prosecution case comprises of motive, medical evidence, recoveries, confession, expert reports. The confession made by the petitioner before Muhammad Anwar Judicial Magistrate (PW-8) has been believed by both the learned Courts as voluntary and true. The learned Judicial Magistrate was subjected to cross-examination by the defence as to the voluntary character of the same besides other aspects relating thereto. Both the learned Courts have concurrently held that the same was voluntary on the part of the accused hence; merely because the same has retracted, his confession could not be discarded. The accused in his confession stated that the deceased had murdered his grand-father. On the day of incident at about 3:00/4:00 p.m., in the evening, he saw deceased Sabago in Bazar and came to the stream at the path which leads to his house and when Sabago entered in the stream he made fire at him from back and when he came opposite to him, repeated fires were made at the deceased on which the deceased fell down and two more shots were fired by him. Thereafter, he went to jungle and after one or two days he came to the police station. The old enmity set up as a motive in the complaint made by Mst. Sher Bano was not described but in the confessional statement, the petitioner has explained about the same by making clean breast of the offence committed by him.
No hard and fast line as to the conduct of a person at a given time, situation and thereafter depending upon various factors, mental capacity and capability could be drawn, foreseen or meticulously calculated, which differs and varies from time to time, person to person and remain fluctuating or consistent and firm, therefore, one cannot conclude definitely or assess a man's behaviour before hand nor any definite opinion with regard thereto could be formed. So it could not be safely assumed that since the accused had surrendered in the police station and had produced pistol alongwith live rounds admitting to have murdered the deceased would not essentially motivate the accused to have had volunteered to make confession of his guilt before the Judicial Magistrate on the same day or on the following day and; as per evidence a couple of days thereafter during he course of investigation of the case he voluntarily had offered to make confession before the Magistrate, hence; the contention so raised on the point by the learned counsel appears to be devoid of substance in view of the evidence that the accused when offered to make confession of his guilt was produced before the Judicial Magistrate. The learned Judicial Magistrate after his due and necessary satisfaction recorded his confessional statement.
No manipulation tampering or any kind of fabrication with respect to the sealed parcel of crime empty of T.T. pistol secured from the place of occurrence, sealed parcel of the pistol alongwith live rounds could be shown or suggested to the concerned PWs, therefore, mere delay in dispatching the articles to the Expert was inconsequential and thus in our considered opinion the positive Firearm Expert report was correctly believed by both the learned Courts to which no exception could be taken.
As regards the motive part of the prosecution story with regard to the old enmity also stands proved through the confession of the accused, which has been found not only to be voluntary but true as well in the given circumstances of the case by both the learned Courts, though retracted; stands corroborated from the circumstantial piece of evidence i.e. production of pistol in the police station to the police officer, recovery of the crime empty, positive report of the fire-arm expert, medical evidence, blood stained earth and the last worn clothes of the deceased which as per expert reports were found stained with human blood. According to PW Mst. Safia Bibi widow of the deceased (declared hostile, understandably having compromised the offence) deposed that as per mutual understanding she was sent to the house of her son while her deceased husband left for Makran. She having not supported to the prosecution story was not fatal to the prosecution case and the voluntary answer given by the said witness in her cross-examination that dispute relating to the murder of Muhammad Hashim committed by the deceased had ended; would not per se be sufficient to discard the motive part of the prosecution story particularly in view of the confession made by the accused before the learned Magistrate believed as voluntary and true by both the learned Courts.
The defence evidence and the prosecution evidence has been appraised in juxta position by both the learned Courts, which found the petitioner guilty on the charge to which no exception could be taken. No material part of the evidence appears to have been misread, misconstrued or omitted from consideration nor the impugned judgment could be shown to have suffered from any legal or factual infirmity.
Consequently, for the foregoing reasons, this petition being without any substance is dismissed. Leave refused.
(Malik Sharif Ahmed) Leave refused
PLJ 2007 SC 226
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Hamid Ali Mirza, JJ.
KHAIR MUHAMMAD and another--Petitioners
versus
STATE--Respondent
Jail Petition No. 265 of 2005, decided on 26.6.2006.
(On appeal from the judgment of High Court of Balochistan, Quetta, dated 20.7.2005 passed in Crl. J. Appeal No. 31/2001 and MR 5/2001).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Appeal against conviction dismissed--Assailed--Appreciation of evidence--In consequence to the verdict given by the High Court, fresh evidence was not required to be recorded in the re-trial and the petitioners having accepted the remand order in toto, did not earlier raise any objection at any stage to the admissibility of evidence recorded by the special Court--Presiding officer of which was an Additional Sessions Judge, who having fulfilled all requirements of law, provided full opportunity to accused to cross examine the witnesses--Courts established under Suppression of Anti-Terrorist Activities Act, 1975 were competent to try the offences committed with use of the automatic and semi-automatic weapons and in the present case, the cognizance was taken by the Special Court as T.T. Pistols were used in the crime, therefore, notwithstanding the jurisdictional defect in the trial, the technical objection regarding the admissibility of the evidence recorded by the Special Court, has no legal fore--Petition dismissed. [P. 228] A & B
Related Witnesses--
----False implication--Mere relationship is not sufficient to hold a witness interested or discard his evidence as the accused were also related to the witnesses--As the accused were also related to witness, therefore, there would be no chance of false implication or substitution. [P. 229] C
Ocular Witness--
----Ocular witness--Conflicting opinion of High Court regarding the admissibility and reliability of the evidence of recovery which has only corroborative value could not effect the credibility of the ocular account.
[P. 229] D
Evidence--
----Exclusion of recovery of weapon would have neither any material effect on culpability of accused nor evidentiary value of direct evidence of unimpeachable character would be reduced and consequently Court need not to go into the question regarding admissibility or reliability of evidence of recovery of weapon of offence. [P. 229] E
Mr. Javed Aziz Sindhu, ASC for Petitioners.
Raja Abdul Ghafoor, ASC for State.
Date of hearing: 26.6.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition seeking leave to appeal has been directed against the judgment dated 20.7.2005 passed by a Division Bench of High Court of Balochistan, at Sibi, whereby appeal filed by the petitioners against their conviction and sentence of death awarded to them by the learned Sessions Judge, Jaffarabad, vide judgment dated 31.5.2001 was dismissed and murder reference sent by the trial Court was disposed of accordingly.
"I am waterman in Police Department and reside alongwith my family at Dera Allah Yar. My daughter Mst. Hanifa, who was married with Muhammad Shaban about 14/15 years age, was also residing with me. Today I, alongwith my wife Sultana, daughter Mst. Hanifa, son-in-law Muhammad Shaban, and my relatives Sakhi Dina and Hazar Khan while sitting in a room of the house with the door open, were watching T.V, when at about 4.00 pm, Khair Muhammad son of Saindad, Safdar son of Arbab Lashari residents of Panch Gandhawah armed with T.T. pistols entered into the room. Subhan was fired at by Safdar whereas Khair Muhammad fired at Mst. Hanifan and both died at the spot. Sakhi Dina and Hazar Khan made an attempt to apprehend the accused but they on threats of life, ran away. The motive for the offence was family dispute between Muhammad Shaban and accused persons."
Muhammad Qasim, SI/ SHO (PW 6) initiating the investigation, secured eight crime empties of TT pistol and blood stained earth form two points at the place of occurrence, prepared the inquest report and injury statement of deceased and sent the dead bodies for postmortem examination. The crime empties as per report of ballistic expert, were found matched with TT pistols which were used by Khair Muhammad and Muhammad Safar, petitioners herein, and were recovered on their arrest. The prosecution, in addition to the ocular account furnished by Mir Muhammad (PW 2) and Sakhi Dina (PW 3) also paced reliance on the statement of Dr. Muhammad Siddique, Medical Officer, District Headquarter Hospital Dera Allahyar who conducted postmortem examination of dead bodies, Ghulam Nabi, constable a witness of the recovery of TT pistols form the accused, Muhabat Khan, constable, (PW 5) and Muhammad Qasim, SI/ SHO (PW 6) the investigating officer. The petitioners in their statements under Section 342 Cr.P.C. denying the allegation in general terms pleaded innocence and neither made a statement on oath nor produce any evidence in defence. Initially, the petitioners having been tried by the Special Court established under Suppression of Terrorist Activities Act, 1975 at Jaffarabad, were convicted and sentenced but in appeal filed by them, the High Court while setting aside the conviction and sentence awarded to them, sent their case to the Sessions Judge, Dera Allahyar for re-trial without recording the fresh evidence. Learned trial Judge, in the post remand proceedings, having found the petitioners guilty of the charge, convicted and sentenced them as aforesaid which was maintained by the High Court in appeal.
The learned counsel for the petitioners at the first instance, contended that since the Special Court had no justification to take cognizance of the matter and try the petitioner, therefore, evidence recorded by the said Court was not admissible as the proceeding before the special Court, as a whole, stood vitiated therefore, the conviction and sentence awarded to them in the subsequent trial on the basis of evidence recorded by the Special Court, was nullity in law. Learned counsel for the State, without disputing the fact that re-trial was ordered by the High Court due to the jurisdictional defect in the trial, submitted that neither the use of the evidence recorded by the Special Court was illegal nor any prejudice was caused to the petitioners on merits, therefore, the objection was unfounded in law.
In consequence to the verdict given by the High Court, fresh evidence was not required to be recorded in the re-trial and the petitioners having accepted the remand order in toto, did not earlier raise any objection at any stage to the admissibility of evidence recorded by the Special Court, the Presiding Officer of which was an Additional Sessions Judge, who having fulfilled all requirements of law, provided full opportunity to the petitioners to cross examine the witnesses and learned counsel has not been able to point out any procedural defect in recording the evidence by the Special Court, causing any prejudice to the petitioners on the merits or on the ultimate result. This may be pointed out that the Courts established under Suppression of Anti-terrorist Activities Act, 1975, were competent to try the offence committed with the use of the automatic and semi-automatic weapon and in the present case, the cognizance was taken by the Special Court as TT pistols were used in the crime, therefore, notwithstanding the jurisdictional defect in the trial, the technical objection regarding the admissibility of the evidence recorded by the Special Court, has no legal force.
Learned counsel for the petitioners, except the minor discrepancies and contradictions, has not been able to point out any material defect or lacuna in the evidence suggesting even a slight doubt regarding the correctness of the prosecution case. The complainant party and the petitioners are closely related inter se and the occurrence took place at the time when the inmates of the house were watching TV therefore, there was no question of mistaken identity. The petitioners armed with TT pistols suddenly entering into the house opened firing as a result of which Mst. Hanifan Bibi and her husband Subhan were hit and died at the spot. There was no serious enmity between the parties and the eye-witnesses have consistently supported prosecution case without any material contradiction or discrepancy and their testimony was also supported by the medical evidence as well as attending circumstances on each material point. Learned counsel for the petitioners has not been able to satisfy us that either the witnesses were not present at the spot or assailants were not identifiable, and petitioners were substituted for unknown culprits. The contention of the learned counsel that witnesses being closely related to the deceased, were interested and not reliable, was without any substance as mere relationship is not sufficient to hold a witness interested or discard his evidence and in the present case, the accused were also closely related to the witnesses therefore, there would be no chance of false implication or substitution. The conflicting opinion of learned Judges in the High Court regarding the admissibility and reliability of the evidence of recovery which has only corroborative value could not effect the credibility of the ocular account and we having perused the record with the assistance of learned counsel for the parties, have not been able to find out any legal or factual infirmity in the ocular account furnished by the most natural witnesses and their testimony duly supported by the medical evidence, would alone be sufficient to establish charge against the petitioners beyond reasonable doubt. The exclusion of recovery of TT pistol form consideration would have neither any material effect on the culpability of the petitioners nor the evidentiary value of direct evidence of unimpeachable character, would be reduced and consequently, we need not to go into the question regarding the admissibility or reliability of the evidence of recovery of weapon of offence.
In the light of foregoing discussion, we have not been able to find out any substance in this petition for interference of this Court and learned counsel of the petitioners also has not been able to point out any mitigating circumstance for lesser punishment. This petition is accordingly dismissed. Leave is refused.
(Malik Sharif Ahmed) Leave refused
PLJ 2007 SC 230
[Appellate Jurisdiction]
Present: Javed Iqbal & Muhammad Nawaz Abbasi, JJ.
COLLECTOR OF CENTRAL EXCISE & SALES TAX--Appellant
versus
PAKISTAN FERTILIZER COMPANY LTD.--Respondent
C.A. No. 2079 of 2004, decided on 10.10.2006.
(On appeal from the judgment dated 11.5.2005 of the High Court of the Sindh at Karachi, passed in J.M. No. 24/1982 in CMA No. 198/2004).
Civil Procedure Code, 1908 (V of 1908)--
----S. 151--Constitution of Pakistan, 1973, Art. 185(3)--Inherent power--Jurisdiction of a Court is expressly limited to the decision of particular questions, the decision of other questions, must be regarded as impliedly removed from its jurisdiction--Power u/S 151 C.P.C. can only be exercised with respect to procedural matters--It must not affect the substantive rights of parties--Held: Inherent powers could not have been exercised--High Court was not concerned with subsequent dispute which has arisen between auction purchaser and subsequent purchaser from him--First Appellate Court having no jurisdiction at all being "functus officio"--Conclusion would be that land could not have been used for any other purpose except installation of fertilizer plant and it could not have been mortgaged for obtaining loan--Indenture of lease executed in between President of Pakistan through Ministry of Finance which was never impleaded party--Single Judge in chamber had no authority to make any amendment in indenture of base without impleading necessary party i.e. the President of Pakistan.
[Pp. 236, 237, 238, 239 & 240] A, B, C, D, E & F
(AIR 1961 SC 218); PLJ 1986 SC (AJK) 67; PLD 1998 Lah. 474; PLD 1989 Kar 635; PLJ 1985 Pesh 22; PLJ 1977 Kar. 200; PLD 1976 Lah. 15; PLD 1976 Kar. 973; 1975 Law Notes Lah. 725; PLD 1974 Kar. 339; PLD 1971 Pesh 157; PLD 1967 Lah. 171; PLD 1963 Lah. 408; PLD 1961 Lah. 579; PLD 1957 Lah. 583; AIR 1958 Mad. 284; PLJ 1978 Lah. 177 & 1993 CLC 489, ref.
Constitution of Pakistan, 1973--
----Arts. 23 & 24--Where a person is deprived of his property under the authority of law, he has no ground for complaint under the Constitution.
[P. 241] G
Contract Act, 1872 (IX of 1872)--
----Ss. 7 & 57--Land in question should have been reverted to Government of Pakistan as the purpose establishing a plant of fertilizer could not be achieved--Held: High Court had no authority to pass any order in violation of the terms and conditions of indenture of base--Learned Judge in Chamber had no authority to declare Clause (4) of lease as redundant as same was executed by President of Pakistan. [Pp. 241 & 242] H, I & J
PLD 1958 Lah. 706, AIR 1963 SC 864, AIR 1952, Mad. 203, AIR 1952 Cal. 184, AIR 1952 Cal. 273, PLD 1966 Dacca 472, ref.
Raja Muhammad Irshad, DAG and Mr. M. Zafar Iqbal, AOR for Appellant.
Mr. Sharifuddin Prizada, Sr. ASC and Raja Qureshi, ASC for Respondent.
Date of hearing: 6.4.2006.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the order dated 11.5.2005 whereby CMA No. 198 of 2004 has been allowed.
"Petitioner seeks leave to appeal against the judgment dated 11th May 2004 passed by the High Court of Sindh, Karachi in J.M. No. 24 of 1982 in C.M.A. No. 198 of 2004.
"4. The lessee shall use the demised land only for the purpose of installing a plant or complex for producing Phosphatic Fertilizers and related by-products, and shall establish a plant or complex within a period not exceeding three years from the date of the execution of this deed, failing which the lease shall stand terminated.
The lessee will not assign or underlet the demised premises or any part thereof or the rights and privileges hereby granted or any of them to any person nor create a charge on this land in respect of the lessees rights thereto in favour of Pakistan Industrial Credit & Investment Corporation Limited for securing any loans granted by or through that agency without the previous consent in writing of the Government of Pakistan (herein after called the "Government") or the Government Officer for the time being incharge (Collector, Central Excise and Land Customs, Karachi)."
It so happened that the Company was liquidated by a Company Judge of the High Court of Sindh, Karachi, as a result whereof its assets including 70 acres lease land was taken over by the Nazir of the High Court of Sindh who was appointed as official liquidator. Assets of the Company alongwith said 70 acres lands was purchased in auction by Abdul Rehman Jinnah S/o A.S. Jinnah being highest bidder. Sale in his favour was confirmed by the High Court of Sindh on 19th February 1989 which was duly registered with the Sub-Registrar. The auction purchaser later on mortgaged the land with National Bank of Pakistan, Nadir Branch Karachi, liability whereof accrued subsequent thereto was finally settled in execution proceedings filed in pursuance of the decree passed in two different suits Bearing Nos. 432/97 and 662/94 before the Banking Court No. III, Karachi respectively.
Meanwhile auction purchaser Mr. Abdul Rehman Jinnah vide agreement dated 25th October 2003 agreed to sell lease hold rights in respect of 60 acres out of 70 acres of the disputed land to M/s Khawaja Amir Ishaque S/o Khawaja Muhammad Raza and Syed Rizwan Ahmed S/o Syed Furqan Ahmed. And thereafter auction purchaser approached on 12th January 2004 to the Collector Central Excise and Sales Tax to ascertain the outstanding dues in respect of the property towards annual ground tax for the completion of sale transaction and ultimately deposited an amount of Rs. 13,10,991/- through a pay order with the Collector Central Excise and Sales Tax Karachi on 19th January, 2004. However, the petitioner declined to issue NOC as the execution of the sale-deed of lease hold rights was in violation of Clauses 4 & 5 of the lease deed which have already been reproduced herein above. As such the purchaser submitted an Application No. 198 of 2004 before the Company Judge seeking direction to the Excise Department and Mukhtiarkar Revenue Keamari Town to issue Deh Form II as well as NOC duly countersigned by DDO (Revenue) or alternatively direct the Registrar T Division-X Karachi to register the document which could be entitled the purchaser to acquire, hold, dispose of or enjoy the property etc.
The petitioner contested the application, inter alia, on the ground that the land in dispute can only be used for the purpose of installing a plant or complex for producing Phosphetic Fertilizer and related by-products within a period of three years from the date of execution of lease deed failing which the lease shall stand terminated. It was also alleged that the purchaser had no right under the lease deed to bifurcate 70 acres into two portions i.e. 60 and 10 acres, which he did so without the written consent of the Central Excise and Land Customs Department Karachi.
However, other functionaries namely Sub-Registrar and Mukhtiarkar (Revenue) agreed to register the sale-deed subject to supply of certain documents. Details whereof are not necessary to be mentioned here.
The learned Company Judge allowed the application vide order dated 11th May, 2004. As such instant petition has been filed.
Learned counsel for petitioner contended that in terms of Conditions Nos. 4 & 5 of indenture of lease, the auction purchaser Abdul Rehman Jinnah had no right to sell the lease hold rights to the intended purchaser i.e. Khawaja Amir Ishaque and others because the Company had obtained the land only for the purpose of installing a plant or complex for producing Phosphatic Fertilizer and related by-products, therefore this land cannot be used for any other purpose. He further stated that the Company Judge had also erred in law in auctioning 70 acres land considering it to be one of the Company's component without noticing that the Company had got only lease hold right for utilizing the same for a limited purpose. Besides it the Company had failed to utilize the same within a period of three years, therefore, as per the lease agreement the lease was liable to be determined. According to him since the petitioner had objected to the issuance of NOC by the learned Company Judge, therefore same can be treated notice on behalf of petitioners to the auction purchaser to determine the lease hold rights. It was also contended by him that the company Judge had no jurisdiction under the law to issue direction on accepting an application for issuance of NOC because after having disposed of petition for winding up, it has become functus officio. Besides it the auction purchaser had divided 70 acres plot into two portions i.e. 60 & 10 acres without the consent of the petitioner which is entirely against the provisions of rules and regulation, therefore learned Company Judge of the High Court of Sindh should not have granted any relief to respondent.
Learned counsel on caveat opposed the petition and stated that auction purchaser had purchased the lease hold rights in open auction as far back as on 31st' March 1989 and he had been enjoying the proprietary rights in respect of this land as the same was mortgaged by him and no objection was raised by the petitioner in this behalf. No notice for determining the lease hold rights which has been purchased by Abdul Rehman Jinnah was ever issued. The Condition Nos. 4 & 5 being relied upon by the petitioner of the indenture of the lease dated 15th July 1969 were never pressed into service by the owner, therefore, at this belated stage when the property had already changed different hands the lease hold rights cannot be determined. The petitioner department after having received arrears of the rent amounting to Rs. 13,10,991/- is legally and morally bound to issue NOC. Present proceedings are not competent because the matter is already pending on the file of Company Judge of the High Court of Sindh, therefore, petition be dismissed.
After hearing both the sides and having gone through the record available on record leave to appeal is granted, inter alia to examine respective contentions put forward by the learned counsel for the parties.
Leave to appeal is accordingly granted."
Raja Muhammad Irshad, learned Deputy Attorney General appeared on behalf of appellant and urged with vehemence that the winding up process qua Pakistan Fertilizer Company Limited was finalized on 19.2.1989 and thereafter no further application could have been moved in a past, closed and finalized transaction as such the Misc. Application No. 189 of 2004 in J.M. No. 24 of 1982 moved in the year 2004 after about 14 years should have not been entertained by the learned single Judge of the High Court of Sindh as the Court had become functus officio after final adjudication i.e. winding up of the company. It is next contended that by virtue of indenture of lease executed on 15.7.1969 whereby 70 acres of land situated at Mauripur Road Karachi was leased for a period of 99 years to M/s. Pakistan Fertilizer Company Limited could not have been sold by Abdul Rehman Jinnah, auction purchaser as it was allotted for a specific purpose to M/s. Pakistan Fertilizer Company Limited and exclusively meant for establishing a fertilizer plant. It is also contended that 70 acres of land could not have been bifurcated into two pieces of sixty and ten acres of land in violation of the indenture of lease and therefore, NOC for execution of sale-deed could not be issued as it would be in violation of clauses (4) and (5) of the indenture of lease which aspect of the matter went unnoticed by the learned single Judge in chambers causing serious prejudice against the appellant. It is further argued that the comments furnished by the appellant and arguments made to substantiate the claim have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is contended emphatically that the learned single Judge in chambers had assumed jurisdiction in the company's matter without taking into consideration that the main J.M. 24 of 1982 was disposed of on 19.2.1989 and without having gone through the relevant record of the main J.M. No. 24 of 1982 and allowed the Misc. application filed by the purchaser namely Abdul Rehman Jinnah. It is also argued that no reliance could have been placed in case Province of Punjab v. Muhammad Yaqoob (1992 CLC 2065) being distinguishable. It is lastly argued that the order impugned being illegal may be set aside.
Mr. Sharifuddin Pirzada, learned Sr. ASC duly assisted by Raja Qureshi, learned ASC entered appearance on behalf of respondent and controverted the view point as canvassed at bar by the learned Deputy Attorney General. Mr. Sharifuddin Pirzada, learned Sr. ASC on behalf of respondent highlighted the background and mainly contended that the leasehold rights of the land in question have been sold by Abdul Rehman Jinnah who was competent to do so by virtue of the sale auction certificate duly issued by the Court being the highest and successful bidder. It is also contended that the process of winding up was initiated and finalized at the behest and consent of the Government hence the question of any objection from any quarter does not arise. In order to substantiate his esteemed view it is pointed out by Mr. Sharifuddin Pirzada, learned Sr. ASC on behalf of respondent that the winding up of the company was finalized with the consent of Ministry of Petroleum. It is also pointed out that sale was free from all liabilities and encumbrances pursuant to the order dated 19.12.1989 passed by the learned Court and the lawful rights conferred upon the respondent could have been used in any manner as may be deemed fit and proper. It is stressed time and again that leasehold rights could have been sold by the respondent and no legal restriction can be imposed and therefore, the agreement to sell with Khawaja Amir Ishaque and Syed Rizwan Ahmed (interveners) cannot be questioned as it was being executed pursuant to the title which Abdul Rehman Jinnah had on 25.10.2003 initially conferred upon him vide order dated 19.12.1989 of the Court, Mr. Sharifuddin Pirzada, learned Sr. ASC also referred the Economic Reforms Order, 1972 (President's Order No. 1 of 1972) and pointed out that various powers have been conferred upon the Federal Government by virtue of clause (5) and Article 7F of the Economic Reforms Order, 1972. The Board of Directors entered upon office on 9th September, 1979. It is also contended that the project for which the company was formed was not considered viable economically and finally it was decided by the Ministry of Production, Government of Pakistan in consultation with the Ministry of Finance that the company be liquidated and the letter dated 23.5.1982 containing direction for initiating measure for dissolving the company was issued by the Ministry of Production, Government of Pakistan. It is lastly argued that a line of distinction is to be made between the ownership and leasehold lights which are being sold by Abdul Rehman Jinnah in favour of Khawaja Amir Ishaque and Syed Rizwan Ahmed and no legal bar whatsoever could be imposed in this regard.
We have carefully examined the rival contentions as agitated on behalf of the parties, scanned the entire record with the eminent assistance of learned counsel and perused the order impugned. It is an admitted feature of the case that winding up process qua Pakistan Fertilizer Company Limited was finalized on 19.2.1989 and sale certificate to that effect was also issued. It is not understandable that how an application (CMA No. 198 of 2004) could have been moved after 15 years and that too under Section 151 CPC which by no stretch of imagination can be invoked in view of the peculiar circumstances of the case in hand. How and under which provision of law the learned single Judge in chambers has reopened a final and closed transaction without examining the previous orders and more so, exercised the powers of the Company Judge which in this case were not specifically conferred upon him. No separate Bench was constituted to deal with such matters and obviously for the reason that nothing was pending since winding up process qua Pakistan Fertilizer Company Limited was finalized. It is unconceivable that how the learned Judge without having examined the entire previous record set the dispute at naught which could not have been done on an application moved under Section 151 CPC. The learned single Judge heard the application (CMA No. 198 of 2004) in J.M. No. 24 of 1982 on 10.2.2004, 16.2.2004, 19.2.2004, 20.2.2004, 9.3.2004, 16.3.2004, 24.3.2004, 25.3.2004 and final hearing was held on 11.5.2004 whereby the misc. application (198 of 2004) was allowed. It is worth mentioning that the learned High Court has passed the order dated 11.5.2004 on misc. application of the purchaser whereas the order dated 19.2.1989 was passed on J.M. No. 24 of 1982 whereby the matter was finally decided and it became a past and closed transaction. In so far as the provisions as contained in Section 151 CPC are concerned the same could not have been pressed into service for the simple reason that where the jurisdiction of a Court is expressly limited to the decision of particular questions, the decision of other questions must be regarded as impliedly removed from its jurisdiction. The powers as conferred upon a Court under Section 151 CPC can only be exercised with respect to procedural matters and the exercise of such inherent powers must not affect the substantive rights of the parties. In this regard we are fortified by the dictum, as laid down in case Padam Sen v. State of U.P. (AIR 1961 SC 218) wherein it was held that "the inherent powers saved by S. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possess. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure." It may not be out of place to mention here that such inherent powers cannot be used when some other remedy is available and more so, it cannot be exercised as appellate powers. The inherent powers as conferred upon a Court under Section 151 CPC applies only to the exercise of jurisdiction where some lis is pending before the Court and does not confer jurisdiction to entertain a matter which was not pending for adjudication. In this regard reference can be made to case Rasab Khan v. Abdul Ghani (PLJ 1986 SC (AJK) 67), Sajjad Ahmad v. Abdul Hameed (PLD 1998 Lah. 474), Nazar Muhammad v. Ali Akbar (PLD 1989 Karachi 635), Muhammad Ayub Khan v. Riyazul Hasan (PLJ 1985 Peshawar 22), Commerce Bank Limited v. Sarfraz Autos (PLJ 1977 K 200), Muhammad Ashfaq v. Shaukat Ali (PLD 1976 Lahore 15), Commerce Bank Limited v. Sarfraz Autos (PLD 1976 Karachi 973), Mian Muhammad Ashfaq v. Lt. Col. Shaukat Ali (1975 Law Notes Lahore 725), Ganisons Indus. Ltd. v. Akhlaque Ahmed (PLD 1974 Karachi 339), Lal Muhammad v. Niaz Parwara (PLD 1971 Peshwar 157), Karamatullah v. Govt. of West Pakistan (PLD 1967 Lah. 171), Bashir Begum v. Abdul Rehman (PLD 1963 Lah. 408), Sher Muhammad v. Khuda Bux PLD 1961 Lahore 579), Inayatullah Butt. v. Cantonment Board Rawalpindi (PLD 1957 Lah. 583), In re. Subramania Desika (AIR 1958 Madras 284), Muhammad Usman Khan v. Miraj Din (PLJ 1978 Lahore 177). There is no cavil with the proposition that pursuant to the provisions as contained in Section 151 CPC the inherent powers can only be exercised to secure the ends of justice or for the purpose of preventing abuse of the process of the Court and the words "ends of justice" and "abuse of the process of the Court" should be construed with due regard to rest of the provisions of the Code because the main object of Section 151 CPC is to prevent the Court from being rendered powerless on account of any omission in the Code and empowers the Court to make necessary orders and no other orders. If any authority is needed reference can be made to case Emirates Bank International Ltd. v. Adamjee Industries Limited (1993 CLC 489). The case in hand has been examined on the touchstone of the criterion as mentioning herein above and we are of the considered opinion that inherent powers could not have been exercised in this case. For the sake of argument if it is admitted that the matter could have been reopened or reconsidered but even then it could have been done only to solve any dispute between Abdul Rehman Jinnah and that of Pakistan Fertilizer Company Limited being relevant parties during the winding up proceedings. The learned High Court was not at all concerned with any subsequent dispute which has arisen between Abdul Rehman Jinnah and new buyers to whom the land in question was sold by Abdul Rehman Jinnah and any other department of the Government? How learned single Judge in chambers could have interfered, dilated upon and decided the dispute having no jurisdiction at all being functus officio. Any new dispute between Abdul Rehman Jinnah and new buyers namely Khawaja Amir Ishaque and Syed Rizwan Ahmed and any of the department on any point could have been resolved by invoking the jurisdiction of Civil Court or by writ jurisdiction subject to all legal exceptions. There was no moral or legal justification whatsoever available for the learned single Judge to have interfered with in the matter which was already decided in J. M. No. 24 of 1982 filed by Pakistan Fertilizer Company Limited under Section 166 of the Companies Act, 1913 for the winding up of the company i.e Pakistan Fertilizer Company Limited which was done fifteen years back. A notable and alarming feature of the case is that the learned Judge did not bother to see as to whether the Federal Government was impleaded as party or otherwise? and no reason whatsoever was given for such omission having substantial bearing on merits of the case which smacks of mala fides on the part of Abdul Rehman Jinnah as well as the interveners. It escaped from the notice of learned single Judge in chambers that initial agreement was executed between the President of Pakistan and that of Pakistan Fertilizer Company Limited and as such it was necessary to implead the Federal Government as a party.
We have also adverted to the Indenture of Lease which was executed between the parties on the terms and conditions as enumerated therein. The relevant clauses of Indenture of Lease are reproduced herein below for ready reference:--
"4. The lessee shall use the demised land only for the purpose of installing a plant or complex for producing Phosphetic Fertilizer and related by-products and shall establish such a plant or complex within a period not exceeding three years from the date of the execution of this deed, failing which the lease shall stand terminated.
The lessee will not assign or underlet the demised premises or any part thereof or the rights and privileges hereby granted or any of them to any person nor create a charge on this land in respect of the lessees rights thereto in favour of Pakistan Industrial Credit & Investment Corporation Limited for securing any loans granted by or through that agency without the previous consent in writing of the Government of Pakistan (herein after called the "Government") or the Government Officer for the time being incharge (Collector, Central Excise and Land Customs, Karachi)."
A bare perusal of the Indenture of Lease would reveal that:
(i) the Indenture of Lease was executed between the President of Pakistan and Pakistan Fertilizer Company Limited;
(ii) the lease was executed for the establishment of a fertilizer plant based on phosphate and mixtures of phosphate cold with all ancillary and supporting or needed facilities;
(iii) the lease was granted for a term of 99 years commencing from the 15th day of July, 1969. It was agreed between the parties that the land shall be used only for the purpose of installation of a plant or complex for producing fertilizer etc. within a period not exceeding three years from the date of execution of the deed;
(iv) it was also agreed that in case of failure the lease shall stand terminated;
(v) it was binding upon the lessee that he will not assign or underlet the demised premises or any part thereof;
(vi) it was also agreed that the lessee will not create a charge on this land in respect of the lease rights thereto in favour of the Pakistan Industrial Credit & Investment Corporation Limited for securing any loan granted by or through that agency without having the prior consent of the Government of Pakistan in black and white;
(vii) it was agreed that the Government of Pakistan could resume whole or any portion of the demised premises if so required by the Government for any purpose and lessee shall be bound to deliver the possession forthwith;
(viii) the entire dealing qua payment etc. could have been made to the Officer appointed by the Central Government.
It is worth mentioning that no other Ministry including the Ministry of Petroleum was ever mentioned at any place.
After having gone through the Indenture of Lease the only unescapable conclusion would be that the land in question could not have been used for any other purpose except installation of fertilizer plant and more so, it could not have been mortgaged for obtaining any loan. It may not be out of place to mention here that the Indenture of Lease was executed in between the President of Pakistan through Ministry of Finance which was never impleaded being a necessary party which has resulted in a huge loss to the Government exchequer. Pursuant to the terms and conditions as enumerated in the Indenture of Lease the Pakistan Fertilizer Company Limited obtained the status of lessee for 99 years but the leasehold rights were not absolute but conditional as pointed out herein above. The lessee was bound that in case of failure of the installation of plant the lease shall be terminated. The leasehold rights were conferred upon the lessee pursuant to the Indenture of Lease which could not have been violated and hence the further transfer of leasehold rights or its sale would be in violative of Indenture of Lease and would have no legal sanctity as well. The Pakistan Fertilizer Company Limited had obtained loan in violative of the terms and conditions as enumerated in the Indenture of Lease and more so, no permission from the Government of Pakistan was obtained in this regard. A careful perusal of the Indenture of Lease would reveal that a conditional title qua the land in question was conferred upon the lessee i.e. Pakistan Fertilizer Company Limited and no superior title could have been conferred upon Abdul Rehman Jinnah the auction purchaser of the land in question. The learned single Judge in chambers had absolutely no authority to make any amendment, deletion, insertion or addition in the Indenture of Lease. We are conscious of the fact that sale certificate was issued on behalf of the Court but it cannot violate or change the terms and conditions of the indenture of Lease without impleading the necessary party i.e. the President of Pakistan through Ministry of Finance by whom the Indenture of Lease was executed. How could the sale certificate bring such a drastic changes in the Indenture of Lease which aspect of the matter went unnoticed by the learned single Judge in chambers? It appears that the sale certificate was neither perused nor examined before its issuance. The Nazir of the Court has absolutely no authority to mention in the sale certificate that the land in question could have been used for industrial purposes as it was never so stipulated in the Indenture of Lease which was immediately accepted by Abdul Rehman Jinnah and the interveners being beneficial to their interest. There is no denying the fact that Pakistan Fertilizer Company Limited was liquidated but it does not mean that the Federal Government be deprived of the land pertaining to it. How Abdul Rehman Jinnah and the interveners could take benefit of huge amount worth whereof runs into billions by depriving the Government of Pakistan without any legal or moral justification. The auction purchaser and the interveners had no legal right whatsoever to distribute the land between them as it was not an ancestral property and the same was subject to the terms and conditions enumerated in the Indenture of Lease. We are of the considered view that the legal provisions have been exploited as there was no justification whatsoever to get the matter reopened by invoking the provisions as contained in Section 151 CPC. At this juncture we have also examined the provisions as contained in Article 23 of the Constitution of the Islamic Republic of Pakistan. The word "property" used in the Article means "the property in respect of which a right of proprietorship may be asserted." (Raza Kazim v. District Magistrate Lahore PLD 1958 Lahore 706). "It includes every possible interest which a party may have in property, including abstract and concrete rights." (S. M. Transports (Pvt.) Ltd. v. Sankaraswamigal Mutt AIR 1963 S.C. 864). A careful analysis of Article 23 of the Constitution would reveal that property which is illegal to hold is not property "unless there is a transfer of property from one person to another or vesting and divesting of property, there cannot be said to be any "acquisition" or property." (Rajah of Bobbili v. State of Madras AIR 1952 Mad. 203). We are conscious of the fact that "the right to hold property includes the right to hold it in any manner that the owner chooses, and also the right to enjoy it. When the right of an individual proprietor of a property is restricted with regard to free user, it amounts to putting restriction on his right to hold that property. The right to free exercise of possession is a right which is pertinent to, or flows from, the right of ownership." (AIR 1952 Cal. 184, Iswari Prosad v. N. R. Sen AIR 1952 Cal. 273, Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472). We have no hesitation in our mind to hold that Abdul Rehman Jinnah had no legal right to dispose of the land in question as has been done and he was not in a position to confer a better title in favour of the interveners which was never conferred upon him. The provisions as contained in Article 24 of the Constitution of Islamic Republic of Pakistan makes the position crystal clear and it is well settled by now that where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution as mentioned herein above any action can be taken by the lessor as may be deemed fit and proper qua the land in question. In this regard we are fortified by the dictum laid down in cases Amar Singh v. Custodian. E.P. AIR 1957 SC 599, Tika Ramji v. State of U.P. AIR 1956 SC 676).
We may point out that even Section 7 of the Contract Act, 1872 hardly renders any assistance to the case of interveners as the title of Abdul Rehman Jinnah (auction purchaser) is disputed as after three years the land in question should have been reverted to the Government of Pakistan as the initial purpose i.e. establishing a plant of fertilizer could not be achieved. Abdul Rehman Jinnah (auction purchaser) by no stretch of imagination can sell leasehold rights in violation of the Indenture of Lease as mentioned hereinabove. We have also adverted to the provisions as contained in Section 57 of the Contract Act, 1872 and in our considered view the learned single Judge in chambers had no authority whatsoever to pass any order in violation of the terms and conditions as enumerated in the Indenture of Lease having no legal authority to get it changed.
In the same wake of events it has been observed that the learned single Judge in chambers was conscious of the fact that he had become functus officio and therefore he observed that "as a matter of principle, I would agree with the learned counsel that once the company had been wound up, its assets sold and the money received therefrom distributed amongst its creditors, the proceedings initiated under the Companies Ordinance for winding up of the company as in the present case would come to an end. Thereafter any further dispute with regard to the property would give a fresh cause of action to the auction purchaser which could only be agitated through a separate proceeding." and after concluding so the assumption of jurisdiction appears to be without any legal base wherein Khawaja Amir Ishaque and Syed Rizwan Ahmed (the interveners) or Abdul Rehman Jinnah (auction purchaser) are involved would give them a new cause of action, cognizance whereof could not have been taken on an application simplicitor moved under Section 151 CPC and its disposal in a casual and cursory manner by ignoring the nature of dispute. It must not be lost sight of that the learned single Judge in chambers has held that the property in question continues to be vested with the Federal Government but ignored the fact that the Federal Government was never impleaded as a party. The learned single Judge in chambers could have examined the Indenture of Lease to find out the necessary parties, impleadment whereof was essential to set the controversy at naught. It is not known what prevailed upon the learned single Judge in chambers to resolve the dispute without impleading of the Federal Government. Besides that the learned single Judge in chambers has absolutely no legal authority whatsoever to declare clause (4) of the Indenture of Lease as redundant which has been declared in oblivion of the fact that lease deed was executed by the President of Pakistan through Ministry of Finance and the Pakistan Fertilizer Company Limited, how it could have been done without affording proper opportunity of hearing to the Federal Government. The fact that land in question could not be got redeemed by the Federal Government within a period of three years would not confer the right of ownership or leasehold rights to Abdul Rehman Jinnah and its subsequent sale to Khawaja Amir Ishaque and Syed Rizwan Ahmed (the interveners). For the sake of argument if it is conceded as held by the learned single Judge in chambers that clause (4) of the Indenture of Lease became redundant how clause (5) of the Indenture of Lease can be kept intact? The reasoning given by the learned single Judge in chambers that "while bifurcation of the property and sale of such portions does not come within the meaning of assigning or under letting the same to any person or for that matter creating a charge thereon as postulated in Clause 5 of the lease deed the fact remains that where such transactions which fall short of an outright sale have been prohibited without the sanction of the Federal Government by necessary analogy sale of the property or any of its bifurcated areas should also have the sanction of the Federal Government. Consequently I would hold that the auction purchaser would have to obtain such sanction both for the bifurcation of the property and its sale to the purchaser. However having said as much I would also direct the Government of Pakistan that once it is approached by the auction purchaser for the necessary bifurcation/permission to sell it shall act reasonably in the matter in accordance with past precedents and where such permission is refused cogent reasons should be given for the same," seems to be fallacious, arbitrary and non-convincing. On one hand all the rights have been conferred upon the auction purchaser and interveners and on the other they have been directed to approach the Government of Pakistan which appears to be contradictory as the learned single Judge in chambers could have very conveniently impleaded the Government of Pakistan to know its point of view instead of making the above observations.
We have also examined CMA No. 198 of 2004 which inter alia enumerates that pursuant to the title conveyed to the purchaser (Abdul Rehman Jinnah) on 25th October, 2003 entered into an agreement with Khawaja Amir Ishaque and Syed Rizwan Ahmed (interveners) to sell 60 acres of land out of 70 acres and retained 10 acres for himself which is not a correct picture of the events as no title could have been conferred upon Abdul Rehman Jinnah on 25.10.2003 as mentioned in CMA No. 198, of 2004. In fact everything has been done which was not provided under the Indenture of Lease. We are of the considered view that Abdul Rehman Jinnah (auction purchaser) was not legally entitled to sell sixty acres of land pertaining to Government of Pakistan and retained 10 acres of land for his own use. It was neither the ancestral property nor inherited by Abdul Rehman Jinnah and as such its disposal in such a manner cannot be declared lawful. We have also adverted to the prayer clause of CMA No. 198 of 2004 which is reproduced herein below for ready reference:--
"In view of the aforesaid it is respectfully prayed that the Collector Sales Tax and Excise, Karachi/Mukhtiarkar Kuamari Town, Karachi be directed to issue Form II as well as N.O.C. duly counter-signed by D.D.O. (Rev.) or alternatively direct the Registrar T Division-X Karachi, to register the document which could entitle the present purchaser to acquire, hold and dispose of and enjoy the property, Conveying the spirit of the Order of Sale made by this Hon'ble Court in favour of the titled purchaser in the aforementioned proceedings."
In sequel to above mentioned discussion we "are of the considered opinion that the learned single Judge in chambers had no authority to resolve such a controversial issue by exercising his jurisdiction under Section 151 CPC and without impleading the Government of Pakistan as necessary party. In such view of the matter the appeal is accepted and the order impugned being unlawful is set aside. The parties concerned may approach to the forum concerned for the redressal of their grievances, if so desired.
(Malik Sharif Ahmed) Appeal accepted
PLJ 2007 SC 244
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
INAYAT ALI--Appellant
versus
IFTIKHAR AHMAD alias KALI & another--Respondents
Crl. A. No. 581 of 2000, decided on 26.9.2006.
(On appeal from order of Lahore High Court, Lahore dated 7.12.1999 passed in Criminal Appeal No. 272 & Murder Reference No. 113 of 1993).
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 337-F--Criminal Procedure Code (V of 1898), S. 342--Constitution of Pakistan, 1973, Art. 185(3)--Motive--Alteration of sentence--Compromise--Ground of conviction--Motive set up in the F.I.R. and established at the trial is not the sole ground for conviction of the respondent as well as his companions, nor has it been considered as a factor relevant to the alteration and mitigation of sentence from death to life imprisonment--At any rate, respondent has not assailed his conviction and sentence in present appeal, therefore, the submission is totally uncalled for. [P. 248] A
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 342 & 404--Constitution of Pakistan, 1973, Art. 185(3)--Mitigation of sentence--Not supported by record--Held: Reasons assigned for mitigation of sentence are not supported by the material on record and are based on conjectures and surmises and mere speculations which can hardly be upheld in the facts and circumstances of the case--Supreme Court was therefore, legally entitled to interfere with the exercise of discretion by High Court, which was otherwise sparingly disturbed--In the facts and ground realties of the case, Supreme Court was constrained to upset the view taken by the High Court in the larger interest of justice and supremacy of law and restore the capital punishment as awarded by the trial Court. [P. 248] B
Mr. Munir Ahmad Bhatti, ASC for Appellant.
Rana Muhammad Arshad, ASC for Respondent No. 1.
Mr. G.N. Gohar, ASC for State.
Date of hearing: 26.9.2006.
Judgment
Rana Bhagwandas, J.--Leave to appeal against Lahore High Court order dated 7.12.1999 was granted subject to condonation of delay of 149 days. According to the learned counsel for the appellant there was some misconception on the part of the Copying Branch of the High Court, who had wrongly recorded the date of application for copy as 20.4.2000 instead of 20.12.1999, which has now been clarified vide letter issued by Assistant Registrar (Copy), Lahore High Court on behalf of the Registrar. We are satisfied that the criminal petition for leave to appeal was filed within time as such the question of enlargement of time would hardly arise. We, therefore, proceed to decide the appeal on merits.
Leave to appeal against High Court order upholding the conviction of Respondent No. 1 Iftikhar Ahmad was granted to consider the question whether the High Court was justified in altering the death sentence of the respondent to imprisonment for life on the premise that possibility of respondent-Iftikhar Ahmad and co-accused Abdul Qayyum having caused injuries to the deceased, after sudden flare-up could not be ruled out and the order was based on conjectures rather than any substantial evidence on the record.
The respondent alongwith co-accused Abdul Qayyum, Abdul Ghaffar and Manzoor Ahmad was tried on the charge of committing qatl-i-amd of maternal nephew of appellant Muhammad Inayat, wrongly described as Inayat Alt in the memo of appeal, in furtherance of a common intention by causing him chhurri blows.
As per the averments of the F.I.R. Ex.PJ, lodged by the appellant on 14.5.1992 at about 9.30 p.m., he alongwith deceased-Akbar Ali, Muhammad Alam and Muhammad Ashraf was present at the tea shop of Muhammad Saleem-PW-11. At the close of T.V. programme `Neelam Ghar' Muhammad Akbar went out when he came across the respondent as well as his aforesaid companions, all armed with chhuries. First of all, Abdul Ghaffar raised a lalkara proclaiming to teach a lesson to deceased-Akbar Ali for opposition in the election. Appellant alongwith Muhammad Saleem, Muhammad Alam, Muhammad Ashraf and Shaukat Ali went out of the shop and noticed Akbar Ali fleeing towards the lane. After he had covered a little distance, he was surrounded by all the assailants. First of all Abdul Qayyum inflicted a chhurri blow at the left hip of Akbar Ali where after respondent-Iftikhar Ahmad inflicted three successive blows by means of his chhurri at his chest. Abdul Ghaffar struck two chhurri blows one at the forehead and other on left side chest of the deceased. Thereafter Manzoor Ahmad dealt three chhurri blows, two on his left side chest and third on left side flank. Meanwhile, Muhammad Saleem-PW-11 approached Akbar Ali in order to rescue him when Abdul Qayyum dealt chhurri blow on left hip of Muhammad Saleem. On receipt of successive stab wounds, Akbar Ali fell on the ground while the appellant alongwith his companions made their escape good. Akbar Ali while injured was removed to Civil Hospital Kasur but he succumbed to injuries on the way.
Motive for the occurrence, as given out in the F.I.R., appears to be that co-accused Abdul Ghaffar had contested last local council elections against Akhtar Ali, brother of deceased-Akbar Ali and lost. Akbar Ali had taken active part in the election campaign of his brother whereupon Abdul Ghaffar and his party men had-issued threats of dire consequences to Akhtar Ali as well as Akbar Ali. Two reports were accordingly lodged at the Police Station. As per the F.I.R., it was on account of defeat in the election that the assailants committed qatl-i-amd of deceased-Akbar Ali.
After registration of F.I.R, Ziaul Islam Hashmi-SHO, Police Station `A' Division Kasur arrested respondent-Iftikhar Ahmad and Abdul Ghaffar on 23.5.1999 and secured blood stained clothes from the person of co-accused Abdul Qayyum. On 26.5.1992 Abdul Ghaffar as well as Iftikhar Ahmad voluntarily led to the production of blood stained chhuries from their respective houses, which were sealed and secured. On conclusion of investigation, respondent alongwith co-accused persons, was brought, to trial. It may be observed that co-accused Abdul Qayyum and Manzoor Ahmad were charged by the prosecution for abetting the commission of qatl-i-amd and murderous assault on Muhammad Saleem-PW-11.
In their respective statements under Section 342 Cr.P.C, the respondent as well as his co-accused, denied the allegations and alleged false implication at the behest of Ghulam Sabir-MPA. Upon conclusion of the trial, trial Court convicted all the accused under Section 302 PPC and sentenced respondents-Iftikhar Ahmad and Abdul Ghaffar to death and fine of Rs. 5,000/- and compensation of Rs. 50,000/- each. Co-accused Manzoor Ahmad was sentenced to life imprisonment with fine of Rs. 5,000/- and compensation of Rs. 50,000/- while co-accused Abdul Ghaffar was sentenced to imprisonment for life, fine of Rs. 1,000/- and compensation of Rs. 5,000/-. Abdul Ghaffar was. also convicted under Section 337-F, PPC and sentenced to imprisonment for six months S.I. and to pay a sum of Rs. 1,000/- to the injured victim by way of Daman.
Convicts appealed against their conviction and sentence before the Lahore High Court whereas appellant also filed a criminal revision for enhancement of sentence of convicts-Manzoor Ahmad and Abdul Qayyum. During the pendency of the appeal before the High Court, Abdul Ghaffar died a natural death whereas Manzoor Ahmad secured acquittal as a result of compromise with the legal heirs of the deceased. Appellant in this appeal has assailed the reduction of sentence from death to life imprisonment as against respondent-Iftikhar Ahmad whereas it is not clear from the record whether Abdul Ghaffar further challenged his conviction and sentence after dismissal of his appeal by High Court.
We have heard Mr. Munir Ahmad Bhatti, learned ASC on behalf of the appellant, Rana Muhammad Arshad, learned ASC on behalf of respondent-Iftikhar Ahmad and Mr. G. N. Gohar, learned ASC on behalf of the State at great length and with their assistance examined the record with utmost care and caution.
Ocular evidence directly connecting the respondent with the act of inflicting three vital chhurri blows resulting in Injuries Nos. 9, 10 & 11 on the person of the deceased is furnished by appellant-Muhammad Inayat PW-10 and injured-Muhammad Saleem-PW-11. Their evidence on the issue of active role in the commission of the crime leading to fatal injuries on vital parts of the body of the deceased being natural, straight forward and consistent with the medical evidence as well as in accord with the facts and circumstances of the case has been rightly believed by the trial Court and endorsed by the High Court in appeal with justification. In view of limited question, on which leave to appeal was granted, we are not called upon to examine the merits of the evidence, more particularly, when the conviction and sentence has not been challenged by respondent-Iftikhar Ahmad himself. We have endeavoured our level best to discern from the evidence and even to read between the lines whether this was a case of sudden flare-up at the spur of moment culminating in the death of deceased-Akbar Ali but have been unable to find out any circumstance to arrive at such conclusion. Learned counsel for respondent-Iftikhar Ahmad, when called upon to point out the circumstances leading to the conclusion that this was not a case of pre-meditated and pre-planned intentional act of killing on the part of the respondent, was unable to point out any piece of evidence. On the contrary, he attempted to identify minor deviations in the evidence of the two witnesses whose evidence has been justifiably and legitimately believed by two Courts below, including the High Court.
Learned counsel attempted to urge that the motive alleged in the F.I.R. was not directed against respondent-Iftikhar Ahmad and it was directly attributed to Abdul Ghaffar, therefore, the respondent could not be held guilty for the commission of the offence of qatl-i-amd. We are afraid, we cannot subscribe to this submission of the learned counsel. Motive set up in the F.I.R. and established at the trial is not the sole ground for conviction of the respondent as well as his companions nor has it been considered as a factor relevant to the alteration and mitigation of sentence from death to life imprisonment. At any rate, respondent has not assailed his conviction and sentence in this appeal, therefore, the submission is totally uncalled for.
In our considered view, evidence on record clearly proves beyond doubt the act of participation of the respondent in the commission of the crime and strong basis for finding of guilty against him without there being any mitigating circumstance for the alteration of sentence as done by the High Court in the present case. On deeper examination of the evidence and analysis of the impugned judgment, we are inclined to observe that the reasons assigned for mitigation of sentence are not supported by the material on record and are based on conjectures and surmises and mere speculations which can hardly be upheld in the facts and circumstances of the case. We are, therefore, legally entitled to interfere with the exercise of discretion by High Court, which is otherwise sparingly disturbed. In the facts and ground realities of the case, we are constrained to upset the view taken by the High Court in the larger interest of justice and supremacy of law and restore the capital punishment as awarded by the trial Court.
For the aforesaid facts, circumstances and reasons, this appeal is allowed, judgment of the High Court is set aside and that of the trial Court restored to the extent of respondent-Iftikhar Ahmad. Non-bailable warrants of arrest shall be issued for his arrest, who has since been released after serving out the sentence of life imprisonment, including the remissions granted by jail authorities. Compliance shall be reported to this Court as quickly as possible and monthly report submitted for our perusal in chambers.
(Khalid Awan) Appeal allowed
PLJ 2007 SC 249
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ and
Saiyed Saeed Ashhad, J.
Ch. MUHAMMAD ASHRAF--Appellant
versus
RANA TARIQ JAVED and others--Respondents
C.P. No. 1843 of 2005, decided on 20.9.2006.
(On appeal from the judgment dated 18.11.2005 passed by Election Tribunal, Lahore in Civil Misc. No. 1 of 2003 in Election Petition No. 133/2002).
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 55(3), 63 & 109--Civil Procedure Code (V of 1908), O.VI, R. 15--Constitution of Pakistan, 1973, Art. 185--Election Petition--Non Filing of affidavit--Effect--Election petition not having been filed in compliance with the provisions of S. 55(3) of the Act, 1976 not accompanied by an affidavit would be liable to be dismissed under Section 63 of the Act as the requirement of both the Sections were held by Supreme Court as mandatory. [P. 251] A
PLD 2004 SC 570; PLD 2005 SC 600 & 2005 SCMR 250.
Ch. Muhammad Ashraf, ASC for Appellant.
Nemo for Respondents.
Date of hearing: 20.9.2006.
Judgment
Saiyed Saeed Ashhad, J.--This appeal has been filed against the order dated 8,11.2005 of Lahore High Court, Lahore in Civil. Misc. No. 1 of 2003 in Election Petition No. 133 of 2002.
The brief facts are that the appellant and Respondent No. 1 Rana Tariq Javed alongwith others filed nomination papers for contesting elections from Constituency NA-161 Sahiwal-II. Inspite of objections filed by the appellant before the Returning Officer against acceptance of nomination papers of respondent, Rana Tariq Javed, he was allowed to contest the elections. Ultimately, in the voting held for the election of the said Constituency respondent Tariq Javed was declared as returned candidate and notification to this effect was issued by the Election Commission on 20.10.2002. Appellant filed Election Petition bearing No. 133 of 2002 before the Chief Election Commissioner, which was entrusted to the Election Tribunal. Before the Election Tribunal Respondent No. 1 filed an application under Section 63 of the Representations of the Peoples Act, 1976 (hereinafter referred to as the "Act") for dismissal of election petition on the ground that the same was not filed in compliance with the provisions of Sections 54 and 55 of the Act as it was not verified on oath as required by Order VI, Rule 15 of the Civil Procedure Code, therefore, was liable to be dismissed on this ground alone. The Election Tribunal after considering the arguments of the counsel for the parties, perusal of provision of Sections 54, 55 and 63 of the Act and the case law referred to before it, came to the conclusion that the election petition was not verified as per requirements of the law and relying on the pronouncements made by this Court in the cases of Engineer Zafar Iqbal Jhagra and others Vs. Khalil-ur-Rehman and others (2000 SCMR 250) and Sardar Zada Zafar Abbas and others Vs. Syed Hasan Murtaza and others (PLD 2005 SC 600) allowed the miscellaneous application and dismissed the election petition. Hence this appeal.
We have heard the arguments of appellant in person who is an Advocate of this Court and have perused the material on record, relevant provisions of law and the case law referred to by the appellant.
The appellant vehemently assailed the order of the Election Tribunal and submitted that the same was in clear disregard of the facts and material on record inasmuch as though the election petition was not verified on oath as there was no attestation and swear of such verification on oath an Oath Commissioner but the said shortcoming or defect would be deemed to have been rectified and the provisions of Sections 54 and 55 complied with in view of the fact that the appellant had annexed alongwith the petition an affidavit verifying the contents of the election petition on oath before an oath commissioner who attested the same. He further submitted that in view of the above factual position the election petition would be deemed to have been validly filed in accordance with law and in support of his above contention he placed reliance on the pronouncement of this Court in the case of Bashir Ahmed Bhanbhan and another Vs. Shaukat Ali Rajpur and others (PLD 2004 SC 570). According to him the election tribunal had wrongly held that the appellant had not filed any affidavit verifying the contents of the election petition duly attested by and sworn before an Oath Commissioner. His further submission was that reliance by the Election Tribunal on the cases of Engineer Zafar Iqbal Jhagra and others Vs. Khalil-ur-Rehman and others (2000 SCMR 250) and Sardarzada Zafar Abbas and others Vs. Syed Hasan Murtaza and others (PLD 2005 SC 600) was wrongly placed by the tribunal as the facts of those cases were different inasmuch as besides the fact that the election petition was not verified in accordance with law but no affidavit was attested and sworn before the Oath Commissioner duly annexed alongwith the petition.
We have considered the arguments of the appellant and perused the material on record, the law applicable to the facts and circumstances of the case and the case of referred to by the appellant.
The election tribunal had categorically held that no affidavit was filed by the appellant verifying the contents of the election petition attested by the Oath Commissioner. However, our attention was drawn by the appellant to page 46 of the paper book in support of his contention that he had filed an affidavit duly sworn before the Oath Commissioner. This affidavit was filed alongwith the reply filed by the appellant to the miscellaneous application under Section 63 of the Act submitted by Respondent No. 1 for dismissal of the election petition for non-compliance of Section 55 of the Act. From perusal of this affidavit, it transpires that the same is purported to have been signed and sworn by the appellant on 2nd day of December 2002 whereas the stamp of the Oath Commissioner states that it was sworn by appellant before him on 3.12.2002. The election petition was filed on 6.12.2002 as per presentation receipt/stamp of the Election Commission appearing on the last page of the election petition. According to the presentation receipt/stamp of the Election Commission the petition consisted of 19 pages and the last page i.e. page No. 19 is part of election petition containing the signatures and verification of the appellant. This fact clearly reflects that the affidavit appearing at page 46 said to have been annexed alongwith the election petition was not filed with the petition. Had it been so the total pages of the election petition would have been 20 and such acknowledgment would have appeared in the presentation receipt/stamp of the Election Commission. This leads to an irresistible inference that the appellant on having coming to know of non-compliance of the provisions of Sections 54 and 55 of the Act procured an affidavit purported to have been sworn by him before the Oath Commissioner on 3.12.2002 to overcome the defect shortcoming/non-compliance by claiming that the said affidavit was part of the election petition filed by him little realizing that such attempt would be exposed by means of the entries relating to the number of pages of election petition in the presentation receipt/stamp of the Election Commission, The Election Tribunal, was thus, justified in holding that no affidavit was annexed to the election petition which admittedly was not verified in accordance with law. As such refusal of the election tribunal to place reliance on the pronouncement of this Court in the case of Bashir Ahmed Bhanbhan and another Vs. Shaukat Ali Rajpur and others (PLD 2004 SC 570) and relying on the pronouncement made by this Court in the cases of Engineer Zafar Iqbal Jhagra and others Vs. Khalil-ur-Rehman and others (2000 SCMR 250) and Sardarzada Zafar Abbas and others Vs. Syed Hasan Murtaza and others (PLD 2005 SC 600) (supra) that an election petition not having been filed in compliance with the provisions of Section 55(3) of the Act, not accompanied by an affidavit would be liable to be dismissed under Section 63 of the Act as the requirement of both the sections were held by this Court as mandatory.
For the foregoing facts, reasons and discussion this appeal is found without any merit and is accordingly dismissed with no order as to costs.
(Khalid Awan) Appeal dismissed
PLJ 2007 SC 252
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ, Mian Shakirullah Jan & Syed Jamshed Ali, JJ.
Mirza MUHAMMAD TUFAIL--Petitioner
versus
DISTRICT RETURNING OFFICER and others--Respondents
Civil Petition No. 1534-L of 2005, decided 12.4.2006.
(On appeal from the judgment dated 5.8.2005 passed by the Lahore High Court, Lahore in Writ Petition No. 14233 of 2005).
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 109--Punjab Local Government Ordinance, (XIII of 2001), S. 152(1)(g)--Public interest--Government Servant can not hold public office--It would neither be in the interest of elected body and the public-at-large to have an elected representative, who would be under the influence of the Government, and at the same time, nor it would be in the interest of the Government as it would be having no effective control in superintendence over the employees in its department, so elected for an elected body.
[P. 259] D
(ii) Constitution of Pakistan, 1973--
----Art. 63--Real import and meaning of the expression service, one has to look into the scheme of the law and the purposes sought to be achieved, by debarring the persons in service of the Government or of the statutory body or other body owned and controlled by the Government, from being elected as member of any local body. [P. 255] A
(iii) Interpretation of Statute--
----A person being in service of the Government, statutory body or body which is controlled by the Government or in which the Government has a controlling share of interest, cannot be elected as a member of an elected body--True representation of the people is the essence of the democracy--Elected representative should not be opened to any influence or temptation, which may not be stumbling block in their way to serve the people of their constitutency truly and freely--Possibility of the existence of such influence or interest or temptation is sufficient disqualification unless law provides otherwise. [P. 255] B
(iv) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 152--Interpretation of Statute--Service mean and test--Determination--Service means being employed to serve another, it implies the submission to the will of another as to direction and control, to do work for another--A person to be in the service of a body or authority implies sub-ordination to that body--There are five tests for such sub-ordination, namely, (i) power of the authority of the appointment to the office, (ii) power of removal or dismissal of the holder from the office, (iii) payment of remuneration (iv) nature of functions of the holder of the office, he performs, (v) nature and strength of control and supervision of the authority. [P. 257] C
Mr. Muhammad Ramzan Chaudhry, ASC and Mr. Mehmood A. Qureshi, AOR for Petitioner.
Nemo for Respondents.
Date of hearing 10.4.2006.
Judgment
Mian Shakirullah Jan, J.--The petitioner is seeking leave to appeal against the judgment of the Lahore High Court, Lahore whereby while maintaining the order of two forums below i.e. the Returning Officer and District Returning Officer rejecting the nomination papers of the petitioner for the election of the seat of Nazim from Union Council No. 100 Manawala, his writ petition was dismissed.
The facts of the case briefly stated are that the petitioner alongwith one Muhammad Arshad filed nomination papers for the seat of Nazim and Naib-Nazim, respectively from Union Council No. 100, Manawala for the election to be held under the Punjab Local Government Ordinance, 2001 (hereinafter may be referred to as the Ordinance, 2001). The rival candidates raised objection to the nomination papers of the petitioner on the ground that he was Administrator Market Committee, Manawala being appointed by the Government under Agricultural Produce Markets Committee Ordinance, 1978 (hereinafter may be referred to as the Ordinance, 1978) and is disqualified to contest the election. The objection was accepted by the Returning Officer and the petitioner's nomination papers were rejected. His appeal before the District Returning Officer, Sheikhupura also failed who then filed a writ petition before the Lahore High Court, Lahore which also met the same fate, now the present petition.
The question involved in the case is as to whether petitioner holding the office of Administrator of Market Committee appointed under Section 33 of the Punjab Agricultural Produce Markets Committee Ordinance, 1978 was debarred to contest the Election of Local Councils in view of the provisions of Section 152(l)(g) of the Punjab Local Government Ordinance.
A notification regarding the appointment and authorization of the petitioner as Administrator of the Market Committee was issued by the Punjab Government, which is reproduced herein below:--
"NOTIFICATION.
NO. SO(E)302/2005. WHEREAS the members and Chairman of the Market Committees mentioned below have completed their tenure of three years.
AND WHEREAS it is expedient that such Chairman and members should not continue to hold their office any longer.
NOW, THEREFORE, in pursuance of the provisions of Section 10 of the Punjab Agricultural Produce Markets Ordinance, 1978, the Governor Punjab is pleased to direct that the said Chairman and members shall cease to hold their office with immediate effect.
AND CONSEQUENTLY, in exercise of the provisions of Section 33 of the Punjab Agricultural Produce Market Ordinance, 1978, the Governor Punjab is pleased to declare that pending the constitution of the Market Committees mentioned at Column 3, the persons mentioned in column 4 of the Schedule given below are authorized to exercise the functions of the said Market Committees, under the said Enactment, Rules, and Bye-laws framed thereunder with immediate effect till further orders.
In consideration of the interim nature of appointment, the Governor Punjab, is further pleased to direct that the funds of the Market Committee shall stand frozen except pay/allowances and recurring establishment expenditures, with immediate effect till further orders. In case of special circumstances, however, funds may be released with the prior approval of the Government."
(underlining is ours to supply emphasis).
"Category of Market Committee. Amount of Monthly Honorarium
(i) Chairman of `A' Class Market Rupees two thousand only
Committees with an average
Annual income of rupees
Sixty lacks or more.
(ii) Chairman of other `A' Class
Market Committees. Rupees fifteen hundred only.
(iii) Chairman of `B' Class
Market Committees. Rupees one thousand only.
(iv) Chairman of `C' Class
Market Committees. Rupees five hundred only.
(v) Administrators, Market
Committees. Rupees two hundred and only."
"152. Qualification for candidates and elected members.--
(I) A person shall qualify to be elected or to hold an elective office or membership of a local Government, if he-
(a) ----
(b) ----
(c) ----
(d) ----
(e) ----
(f) ----
(g) is not in the service of the Federal, a provincial or a local Government or, any statutory body or a body which is controlled by any such Government or, in which any of such Government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee."
The provisions relating to disqualification of candidate to contest the election, with little variation, are found in different election laws and also in the Constitution vide Article 63.
In order to find out the real import and meaning of the expression service, one has to look into the scheme of the law and the purposes sought to be achieved, by debarring the persons in service of the Government or of the statutory body or other body owned and controlled by the Government, from being elected as the member of any local body.
Time and again the Courts have elucidated the reasons for such disqualification i.e., a person being in service of the Government, statutory body or body which is controlled by the Government or in which the Government has a controlling share of interest, cannot be elected as a member of an elected body. The true representation of the people is the essence of the democracy. The elected representative should not be opened to any influence or temptation, which may not be stumbling block in their way to serve the people of their constituency truly and freely. Possibility of the existence of such influence or interest or temptation is sufficient disqualification unless law provides otherwise. That is the ruling concept. Conflict of duty and interest in the elected representative should be avoided. All the possible traces of influence and temptation be removed which may stand in their way from discharging their duties to the people. If such persons were allowed to participate in the election process, then there is danger that the elected bodies would loose their independence, objectivity, capacity to execute the duties and functions entrusted to them by law or the Constitution. The idea to keep the democracy free from and independent of the executive control and influence. The executive through introduction, in the elected institution of its Officer or on whom it can exert its influence or control will be able to check the freedom and independence of the elected institution. The inclusion of these Officers in the elected institution may result in lessening the control and superintendence of the executive berefting of its authority holding over its employees, in the public interest office smooth running of its functions.
In Section 152 (g) the expression "in the service" is of significance. Herein the service would not be taken in the strict, restricted and narrow technical sense as defined in the Civil Servant Act or in other service laws or in the Constitution but would be construed in the general, plain, and liberal sense. This Court in the case of "Muhammad Naseem Turyali vs. Ghulam Sarwar Khan and others" (unreported Civil Appeal No. 1374 of 2003 and other connected appeals) held that the service of a statutory body etc should not be confused with the civil service or civil servant. In the cited case the appellant was in the service of Sui Southern Gas Company as Management Trainee at the time of filing nomination papers and also at the time of poll, whose election, after he being declared as returned candidate, was challenged by the other contesting candidates on the ground that he being in the service of a Company which was owned and controlled by the Federal Government was disqualified to contest the election in view of Article 63 (1) clauses (e) & (k) of the Constitution. The petitions filed by the respondents were allowed and the petitioner was held being an employee of the company controlled by the Government, was disqualified to contest the election. His writ petition before the High Court failed who then filed an appeal before this Court and while dismissing his appeal, it was observed in para-9 which reads:--
"The expressions service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest: should not be confused with "Civil Service" or a "Civil Servant". It is not circumscribed by any concept of salary or fee,"
"Service or services. The word 'service' has a multiplicity and a variety of meanings and different significations. It is not a simple word with the simple meaning, leaving no room for construction, but rather it is broad term of description, which varies in meaning according to the sense in which it is used and the context in which it is found, and the sense in which it is used must be determined from the context. Thus, the Courts have found it impracticable to attempt a definition by which to test very case that may arise.
As a noun. As lexically defined, the word 'service' means the act of serving, the act or instance of helping or benefiting; the act of helping another; the deed of one who serves.
The word 'service' is further defined as meaning aid or assistance rendered, a benefit, advantage, or obligations conferred; that which promotes interest or happiness; useful office, avail.
`service' indicates a master-servant relationship, or it implies a submission to the will of another as to direction and control, and when employed to indicate these concepts it is defined as meaning the performance of labour for the benefit of another or at another's command; labour performed in the interest under the direction of others; any work done for the benefit of another; employment in the interest of a person or of a cause.
The word `service' is also defined as meaning the being employed to serve another; the position of a servant; the state of being a servant; the occupation, condition, or status of a servant; the work of a servant; the work of a slave, hired man, or employee; the attendance of any inferior, hired helper, slave, etc, Now according to the definition described above, service means being employed to serve another, it implies the submission to the will of another as to direction and control, to do work for another. The determining factor to hold a person to be in the service of a body or authority, implies sub-ordination to that body. There are five tests for such sub-ordination, namely, the power of the authority of the appointment to the office (ii) the power of removal or dismissal of the holder from the office (iii) the payment of remuneration (iv) the nature of functions of the holder of the office, he performs (v) the nature and strength of control and supervision of the authority. The decisive test is that of appointment and removal from service while the remuneration is neutral factor and not decisive. All the aforesaid tests need not be cumulated and not necessarily must co-exist and what has to be considered is the substance of the matter which must be determined by a consideration of all the factors present in a case and whether stress will be laid on one factor or the other will depend on each particular case.
"In common understanding, the word means a voluntary reward for that for which no remuneration could be collected by law, hence a voluntary payment for a service rendered, an expression of gratitude for which an action cannot be maintained, a voluntary donation, in consideration of services which admit of no compensation in money. While it has been said to denote a compensatory payment, it may, be context, be construed as a gift."
The term honorarium, the other condition of remuneration, also exist in the instant case, which according to the aforesaid definition is a voluntary payment for the services rendered for which no remuneration under the law has been provided.
Regarding the other test i.e. the supervision by and control of the body/Government over the person in its service can best be explained from the various provisions of the Ordinance with the following resume. The object of the Ordinance as given in the preamble is to provide for the better regulation of purchase and sale of agricultural produce and for that purpose to establish markets and make rules for their proper administration, the ordinance was promulgated. Sections 3 & 4 relate to the establishment of markets with a control over the sale and purchase of agricultural produce by the Government. Sections 7 & 8 deal with the establishment and Constitution of the Market Committee. According to Section 9, the duties to be performed by the Market Committee are;- (i) to establish a market (ii) to enforce the provisions of the Ordinance, (iii) to issue licenses to the brokers etc for carrying on their occupation in the market area. The committee shall elect the Chairman and Vice-Chairman vide Section 12. The status of the Committee provided under Section 14, is that it should be body corporate, the perpetual succession and a common seal, and may sue and be sued in its corporate name. The committee is having its own staff consisting of Officers and other servants. The employees and the members of the committee are to be public servant within the meaning of Section 21 PPC. The committee is having the power to enter into contract vide Section 18 and can also levy fee under Section 19. The committee is having its own fund which may be expended for different purposes vide Section 21. It can also levy surcharge on loss. The market committee may, with the sanction of the Government has power to borrow the money as provided under Section 26. The Government is having the power to annul all the proceedings of the committee under Section 27 of the Ordinance. The Government under Section 28 can supersede the committee if it is incompetent to perform the duty etc. According to Section 28-A, the Government is having the power to dissolve the Market Committees on the announcement of the general elections to the National and Provincial Assemblies if the Government is satisfied that it is in the public interest to prevent the Market Committees from using their funds or influence for political purposes. According to Section 33, under its emergency powers, the Government may exercise/perform the functions of the Market Committee or to be exercised by a person as it may direct. These are the important provisions relating to the establishment, duties, functions of the committee and the powers of the Government to control and supervise the same with power of annulment of the proceedings of the Committee now the Administrator.
In view of what has been discussed above, it is the Government having the power to hire and fire an Administrator and to pay compensation to him for the services rendered by him, may be described as honorarium, and having over all control and supervision of the functions performed by him. Thus it can safely be held that for all intents and purposes, the petitioner is in the service of the statutory body under the control/supervision and with power of appointment and removal with the payment of remuneration/compensation by the Government.
The consequence of what has been stated above, it would neither be in the interest of elected body and the public at large to have an elected representative, who would be under the influence of the Government, and at the same time, nor it would be in the interest of the Government as it would be having no effective control in superintendence over the employees in its department, so elected for an elected body. A third factor has been added by the Ordinance, 1978 vide Section 28-A, that when the general election to the National or the Provincial Assembly or both is announced and the Government is satisfied that it is in the public interest to prevent the Market Committee from using their funds and influence for political purpose, the Government may dissolve the market committee, and this testify the fact that the market committee, at present represented by the administrator who is petitioner, that it (the Committee) or he (the Administrator) can influence even the general elections, so necessarily he may influence the local bodies election and particularly when he is a candidate himself.
Resultantly, what has been discussed above, we are of the view that the petitioner is disqualified to be elected on account of he being appointed as Administrator of the Market Committee with the resultant consequence that this petition is dismissed.
(Khalid Awan) Petition dismissed
PLJ 2007 SC 260
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ch. Ijaz Ahmed, JJ.
FEDERATION OF PAKISTAN etc.--Appellants
versus
TAHIR LATIF--Respondent
Civil Appeal No. 765 of 2002 in C.P. No. 2838 of 2001, decided on 11.9.2006.
(Against the judgment dated 28.6.2001 passed by the Federal Service Tribunal Lahore Branch, Lahore, in Appeal No. 9(L)/99).
Constitution of Pakistan, 1973--
----Art. 212(3)--Competent authority--Supreme Court is not Court of appeal to reappraise evidence while exercising power under Art. 212(3) of the Constitution of Pakistan--Held: Service Tribunal had given finding of fact against civil servants which could not be disturbed in Constitutional jurisdiction. [P. 264] C
Government Servant Act (Efficiency and Discipline) Rule, 1973--
----R. 5--Civil Procedure Code (V of 1908), S. 109--Constitution of Pakistan, 1973, Art. 212(3)--Regular inquiry--Necessary--Matter could not be decided without holding regular inquiry--Competent authority had not passed by the speaking order against the respondent without holding regular inquiry in terms of Rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973--Such action of the appellants is not in consonance with the law laid down by Supreme Court.
[Pp. 262 & 263] A
1996 SCMR 802 and NLR 1954 Serv. 54.
Reason--
----General Clauses Act (X of 1897)--It is duty of & obligation of the competent authority to award the minor/ ?????? to the respondent after application of mind with reasons after addition of Section 24-A of the General Clauses Act. [P. 263] B
1968 SCMR 2268.
Miss Naheeda Mehboob Elahi, DAG with Ch. Akhtar Ali, AOR for Appellants.
Rai Muhammad Nawaz, ASC for Respondent.
Date of hearing: 11.9.2006.
Order
Ch. Ijaz Ahmed, J.--The appellants sought leave to appeal against the judgment dated 28.6.2001 passed by the Federal Service Tribunal Lahore Branch, Lahore, in Appeal No. 9 (L)/99 by filing CP. No. 2838/2001 before this Court in which leave was granted on 22.5.2002 in the following term:--
"Petitioners seek leave to appeal against the Federal Service Tribunal Judgment dated 28.6.2001, allowing service appeal of the respondent against the award of minor penalty for his unauthorized absence from duty.
Respondent was selected for Post Graduate Course in USA for a period of two years commencing from 15.8.1995 to 14.8.1997. The course of study, according to the respondent, was not completed, therefore, he applied for extension of leave for six months and leave Ex-Pakistan for three months. Three months Ex-Pakistan leave was sanctioned in his favour whereas extension of leave for six months was refused by the competent authority and he was directed to report for duty on or before 11.11.1997. Again through an application dated 15.2.1998 he requested for further extension of leave for the reasons that he had not yet completed the course of his studies. This request was not acceded to and the respondent was issued a Show Cause Notice dated 12.5.1998 to explain his over stayal. Respondent responded to the notice claiming that his over stayal abroad was beyond his control. He actually reported for duty on 21.5.1998.
After initiating disciplinary proceedings the competent authority vide order dated 31.7.1998 imposed the minor penalty of withholding of increment for one year. His period of absence from 11.11.1997 to 20.5.1998 was regularized by debiting twice the period of absence to be credited to his leave account as extraordinary leave (without pay). Through another letter dated 10.10.1998 the petitioners called upon the respondent for depositing Rs. 78,660/- in the public exchequer, being the cost of air ticket from USA to Pakistan, as it was beyond his entitlement as per Rule 552 of Passage Regulations, 1980. Respondent challenged the award of minor penalty, treatment of his period of absence as leave without pay and the direction for recovery of amount, before the Tribunal, who after hearing the parties allowed the appeal and set aside the action taken against the respondent.
We have heard Sardar Muhammad Aslam, learned Deputy Attorney General for petitioners and respondent Tahir Latif in person. It is admitted that the respondent was sanctioned two years ex-Pakistan Leave for study purpose and he undertook in writing before availing of the leave and proceeding to USA that he would complete his course of study within the sanctioned period of leave and would not claim any extension of leave or any other facility from the employer. However, looking to his genuine difficulty the competent authority had sanctioned further extension of ex-Pakistan Leave on full pay for three months to enable the respondent to complete his course of study. It is the case of the respondent that it was beyond his power and control to resume his duty on expiry of the sanctioned leave, therefore, he had asked for further extension of leave, which was wrongly refused and rightly rectified by the Tribunal.
On perusal of the judgment of the learned Tribunal we tentatively find that the findings of fact are recorded on extraneous and compassionate reasons, rather than on valid grounds. We, therefore, grant leave to appeal to re-examine the submissions made before the Tribunal, and to consider whether the impugned judgment can be sustained in law. We would also like to call upon the learned D.A.G. to come prepared at the time of hearing of the appeal to satisfy the Court whether under the Government Servants (Efficiency and Discipline) Rules, 1973, more than one minor penalties could be imposed on an employee as a result of disciplinary proceedings".
The learned Deputy Attorney submits that competent authority was justified to award more than one minor penalties to the respondent in view of Rule 3(d) the Government Servants (Efficiency and Discipline) Rules, 1973. He further urges that competent authority had not granted leave to the respondent for six months as desired by him, therefore, respondent was found guilty by the competent authority and passed the order against him on 31.7.1998 on the ground that he did not satisfactorily explain his willful absence from 11.11.97 to 20.5.98 and also did not report within the prescribed period after availing the extended leave. The learned Service Tribunal had set aside the order of the appellants in violation of the rules and regulation of the appellants on humanitarian and sympathetic grounds as depicted from para 4 of the impugned judgment of the Service Tribunal.
The learned counsel for the respondent has vehemently supported the impugned judgment. He further maintains that appellants had passed the impugned order against the respondent without any justification without regular inquiry inspite of the fact that matter could not be decided without regular inquiry as evident from the reply of the show cause notice submitted by the respondent.
We have considered the submissions of learned counsel for the parties and perused the record. It is an admitted fact that appellants had passed the impugned order on 31.7.1998 against the respondent without holding regular inquiry. In case the contents of show cause notice and reply of the show cause notice be put in a juxta position, then it is crystal clear that matter could not be decided without holding regular inquiry. It is pertinent to mention here that competent authority had not passed the speaking order against the respondent without holding regular inquiry in terms of Rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973. Such action of the appellants is not in consonance with the law laid down by this Court in the following judgments:--
(i) Ghulam Muhammad Khan's case (1996 SCMR 802).
(ii) Nawab Khan's case (NLR 1954 Service 54).
"5. a to b...........................
c. My tuition fee and subsistence allowance was terminated after 4th Semester and payment for medical insurance was not made after 2nd Semester.
It is worth mentioning that tuition fee for the last two Semesters i.e. 5th and 6th Semester is still to be paid to the University. In case if it is not paid University will not issue degree. Moreover, it is obligation of the department to pay tuition fee. absence of which will bring bad name to Country", (under lines is ours)
The competent authority did not take into consideration the aforesaid stand of the respondent in the impugned order dated 31.7.1998. The competent authority had given finding of fact that respondent could not come well in time in the country on account of unavoidable circumstances and unseen problems peculiar to the nature of his research in view of letter dated 10.3.1998 from Mr. A.K. Burns, Assistant Professor of Planning Kansas State University read with certificate issued by the First Secretary Education Embassy of Pakistan Washington D.C. according to which respondent had been delayed in USA because of his Convocation on 15.5.1998. Subsequently he returned to Pakistan and reported for duty on 21.5.1998. These facts show that he had saved the foreign exchange otherwise he would have again visit U.S.A. to obtain his degree. Thus he had taken a lenient view while awarding minor punishment to the respondent as the respondent had secured higher qualification/knowledge relevant to his job requirement and it would be in the interest of the State if he has afforded an opportunity to serve in the MES and contribute in his field. The impugned order itself contradictory in nature. It is the duty and obligation of the competent authority to award the minor punishment to the respondent after application of mind with reasons after addition of Section 24-A of General Clauses Act as the law laid down by this Court in Messrs Airport Support Service's case (1998 SCMR 2268). The contention of the learned counsel for the appellants that competent authority had lawful authority to award two punishments to the respondent in view of the Rule 3 clause 'D' has no force as is depicted from the mere perusal of the said Rule which is reproduced hereunder:--
"3. Grounds for penalty.--Where a Government servant in the opinion of the authority:- ......a, b, c ..................................
(d) is engaged, or is reasonably suspected of being engaged in subversive activities, or is reasonably suspected of being associated with others engaged in subversive activities or is guilty of disclosure of official secrets to any unauthorised person, and his retention in service is, therefore, prejudicial to national security, the authority may impose on him one or more penalties.
(a) when he is engaged in subversive activities;
(b) when he is reasonably suspected of being associated with others engaged in subversive activities; and
(c) when he is guilty of disclosure of official secrets to any unauthorised person.
It is pertinent to mention here that clause D' is an independent clause which is code in itself. To take action under this section, the aforesaid pre-conditions must be existed meaning thereby that it shall also be necessary to hold that for this account his retention in service is for that reason prejudicial to national security. Mere remaining outside the country during his stay period after submitting his application for extension of leave to the competent authority does not fall within the aforesaid parameters prescribed in the aforementioned clauseD'. It is settled law that this Court is not Court of appeal to reappraise evidence while exercising power under Article 212(3) of the
Constitution. The learned Service Tribunal had given finding of fact against the appellants which could not be disturbed in constitutional jurisdiction.
In view of what has been discussed above, this appeal has no merit. Even otherwise the appellants have failed to raise any substantial question of law of public importance as contemplated in Article 212 (3) of the Constitution. The appeal being devoid of any force is dismissed.
(Khalid Awan) Appeal dismissed.
PLJ 2007 SC 265
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Nasir-Ul-Mulk, JJ.
INSPECTOR GENERAL (PRISONS) NWFP, PESHAWAR and another--Appellants
versus
SYED JAFFAR SHAH, EX-ASSTT. SUPDT. JAIL and others--Respondents
C.A Nos. 113 to 116 of 2005 and Civil Petitions Nos. 665-P & 682-P and 1802 of 2003, decided on 21.11.2005
(On appeal from the judgement of Service Tribunal, N.W.F.P, Peshawar, dated 7-6-2003 passed in Appeal Nos. 62, 118, 79 and 124/2002)
(i) Pakistan Prision Rules--
----R. 341--Constitution of Pakistan, 1973, Art. 185(3)--Jail manual--Duty of Warder and Head Warder--It is the duty of warder to personally watch the cell of prisoner but door must be opened in his presence and similarly Head Warder is bound to visit the cell occupied by a condemned prisoner and in case of any suspicion, he shall report the matter to Deputy Superintendent jail. [P. 270] A
(ii) NWFP Service Tribunal Act, 1974--
----S. 7--Jurisdiction of Service Tribunal--Modifications and variation of an order--Tribunal may in its discretion in a suitable cases which the quantum of punishment does not commensurate with the charge, modify the penalty in the light of nature of charge but in the cases of extreme negligence and gross misconduct, the alteration of punishment of dismissal from service into reduction in time scale may not be justified as the retention of an irresponsible person in the sensitive service of jail department, would be against the policy of administrative law. [P. 272] B
Mr. Muhammad Saeed, AAG, NWFP, Peshawar for Appellants (In C.As. 113-116/2005).
Mr. Khushkhadil Khan, ASC for Respondents (in C.As. 113-116/2005).
Mr. Khalid Khan, ASC for Respondent (in C.As. 114-116/2005).
Shah Abdur Rashid, Sr. ASC with Mehr Khan Malik, AOR for Respondents (in C. As. 115/2005).
Mr. Khalid Khan, ASC for Petitioner (in C.P. 665-P & 682-P/2003).
Shah Abdul Rashid, ASC with Mr. Mehr Khan Malik, AOR for Petitioner (in CP 1803/03).
Nemo for Respondents.
Date of hearing: 21.11.2005.
Judgment
Muhammad Nawaz Abbasi, J.--These connected appeals by leave of the Court have been directed against the judgments dated 7.6.2003 passed by NWFP Service Tribunal Peshawar, in the separate appeals filed by the respondents challenging the legality of the penalty of dismissal from service imposed upon them by the competent authority. These appeals, alongwith the connected petitions filed by the respondents, against the same judgments are proposed to be disposed of through this single judgment.
"Syed Jaffar Shah, Maqsood Ahmad, Taj Gohar and Muhammad Sardar, respondents while serving as Assistant Superintendent, Head Warder, Deputy Superintendent acting as Superintendent and Warder of Abbottabad Jail, respectively were subjected to disciplinary proceeding under the NWFP Removal from Service(Special Powers) Ordinance, 2000 for facilitating escape of three condemned prisoners and one dangerous under-trial prisoner inter alia catering for an abandoned ladder and a smuggled pistol, culminating into imposition of major of major penalty of dismissal from service on 4-10-2001; however, granting their appeals N.W.F.P. Service Tribunal, Peshawar reduced Syed Jaffar Shah and Maqsood Ahmad's penalty to reduction of their present scales by three stages and Taj Gohar's to compulsory retirement exonerating Muhammad Sardar of the charges reinstated him in service with back benefits vide impugned judgment dated 7.6.2003.
Against which leave to appeal is being sought primarily contending that the reduction in the quantum of penalty and exoneration of the charges of the respondents respectively, has the potential tendency of encouraging perpetuation of further indiscipline in the members of the disciplined force contributing to the ever deteriorating law and order situation contrary to the deterrent aspect of punitive administration of justice, which substantially being a question of public importance within the contemplation of Article 212(3) of the 1973 Constitution, leave to appeal is granted in C.P. 576-P to 579-P/2003, In view whereof CP 665-682-P and 1803 of 2003 preferred by the respondents are ordered to be heard along therewith."
The facts in the back ground giving rise to these appeals are that Syed Jafar Shah, Assistant Superintendent Jail, Maqsood Ahmad, Head Warder, Taj Gohar, Superintendent Jail and Muhammad Sarwar, Gate Keeper, respondents in Civil Appeals Nos. 113 to 116/05 while posted at District jail Abbottabad were on duty on 31.5.2005 when at 1.35. p.m. three condemned and one under trial prisoners escaped from the District Jail. The respondents were charge sheeted with the statements of allegations as under:--
Syed Jaffar Shah, Assistant Jail Superintendent.
While attached to Distt; Jail Abbottabad as Asstt; Supdt; Jail(BPS-14) Syed Jaffar Shah, performing his duties as in charge condemned prisoners cells, failed to enforce the provisions of Rule 340(i) and (v) of the Pakistan Prison Rules, according to which only one condemned prisoner is permitted to occupy county ad for half in hour each morning and evening, duly handcuffed. As a consequence of this, three condemned prisoners and a dangerous under trial prisoner named below escaped from the jail by overpowering the warder on duty:--
Condemned prisoner Asif S/o Hassan Din.
Condemned prisoner Rab Nawaz S/o Muzaffar Khan.
Condemned prisoner Sajjad S/o Ayub.
Undertrial prisoner Haroon S/o Gohar Rehman.
He failed to conduct proper searches of condemned prisoners as required under Rule 342 of the Pakistan Prison rules, as a consequence of which, a pistol could not be recovered from the possession of one of the condemned prisoners.
He failed to do all lawful acts and exercised the utmost vigilance for the purpose-se of preventing any prisoner from breaking out of prison or escaping as required under Rule 1072(1) of the Pakistan Prison Rules, As a consequence of this, a ladder taken inside the jail for white washing was not taken out of the jail. By taking advance of it, the prisoners made good their escape with the help of the ladder, by scaling over the main wall of the jail."
Maqsood Ahmed, Head Warder
While attached to District Jail Abbottabad as in charge condemned prisoners calls, head warder (BPS-7) Maqsood Ahmad failed to enforce the provisions of Rule 340(1) and (v) of the Pakistan Prison rules, according to which only one condemned prisoner is permitted to occupy Courtyard for half an hour each morning and evening, duly handcuffed. As a consequence of this, three condemned prisoners and a dangerous undertrial prisoner named below escaped from the jail by overpowering the warder on duty:--
Condemned prisoner Asif S/o Hassan Din.
Condemned prisoner Rab Nawaz S/o Muzaffar Khan.
Condemned prisoner Sajjad S/o Ayub.
Undertrial prisoner Haroon S/o Gohar Rehman.
He failed to visit cells occupied by condemned prisoners frequently at uncertain hours during the day and night and satisfy himself that the warders were alert on duty, the prisoners were present and the cells were secure as required under the prevision of Rule 341 of the Pakistan Prison rules. As a consequence of this the above named prisoners managed to escape from the jail.
He failed to recover the pistol from the possession of one of the prisoners confined in the condemned prisoners cells."
Taj Gohar, Superintendent Jail.
(i) Condemned prisoner Asif S/o Hassan Din.
(ii) Condemned prisoner Rab Nawaz S/o Muzaffar Khan.
(iii) Condemned prisoner Sajjad S/o Ayub.
(iv) Undertrial prisoner Haroon S/o Gohar Rehman.
He failed to exercise proper control over officers subordinate to him and failed to ensure that they were efficient in the discharge of their duties, as required under Para 1024 of the Pakistan Prison Rules, as a consequence of which, a pistol was smuggled inside the jail.
He failed to take proper precautions about the ladder inside the jail. By taking advantage of it, the above mentioned prisoners managed to escape, by scaling over the main wall of the jail."
Muhammad Sardar, Gate Keeper
"While attached to Dist; Jail Abbottabad as Gate Keeper warder (BPS-5) Muhammad Sardar failed to conduct proper searches of unauthorized/prohibited articles, as required under Rule 1168 of the PPR, as a consequence of which, a pistol found its way inside the jail."
3A. In consequence to the regular inquiry conducted by an inquiry committee appointed by the competent authority, all the four respondents having been found guilty of the charges, were awarded major penalty of dismissal from service. The respondents, having exhausted departmental remedy, filed separate appeal before the Service Tribunal which were partly allowed with reduction in the penalties as under.
The dismissal of Syed Jaffar Shah, Assistant Superintendent Jail and Maqsood Ahmed, Head Warder, was converted into reduction in time scale by 3 stages. The appeal of Ali Ghafoor, Superintendent Jail, was disposed of with conversion of penalty of dismissal form service awarded to him into compulsory retirement with observation that although he was not directly involved in the incident but the same was the result of his loose administration. The appeal of Muhammad Safdar, Gate Keeper was allowed with observation that he was not exclusively responsible for search at the gate and thus was reinstated in service with all back benefits.
The learned Additional Advocate General, Government of NWFP has contended that the punishment awarded to the respondents by competent authority was quite in accordance with law and the interference of the Tribunal in the matter was not at all justified. He submitted that the Service Tribunal in exceptional circumstances and suitable cases determine the question relating to the quantum of punishment, in exercise of its power under Section 7 of NWFP Service Tribunal Act, 1973 but this power is not supposed to be exercised in an arbitrary manner. The learned Addl. AG has argued that the respondents, without giving satisfactory explanation of the circumstances under which the prisoners escaped from jail, tried to shift the responsibility of the incident to each other and consequently, the interference in the matter of punishment at the cost of jail administration was against the mandate of law. The Addl. AG pointed out that the incident happened as the result of breach of Rules 340(1), (4) and 342 of Pakistan Prison Rules by the jail staff, therefore, notwithstanding the plea of respondents of lack of knowledge of the scheme of prisoners of escape from jail, the omission on their part not to strictly follow the rules and take proper care to avoid such incident, would constitute gross misconduct. In nutshell the contention of learned Addl. AG was that the failure of the respondents not to take proper care and discharged their duty strictly in accordance with the Pakistan Prison Rules was a serious matter and the interference of the Tribunal in the matter of punishment would amount to encourage the indiscipline in the jail.
Learned counsel for the respondents, on the other hand, has contended that none of the respondent in his individual capacity was responsible for the incident which happened by chance and he taking us to the report of inquiry officer and the evidence on record, argued that the respondents were held guilty of the charge on the basis of presumption that they facilitated the condemned prisoners to escape form the jail. Learned counsel appearing for Syed Jaffar Shah, Assistant Superintendent of Jail has argued that one of the condemned prisoner while running after escaping from the jail was apprehended by the Assistant Superintendent at a reasonable distance, therefore, his action would be suggestive of his extra vigilance and proof of the fact that he was neither negligent nor directly or indirectly involved in the matter. Learned counsel for Maqsood Ahmed, Head Warder and Muhammad Sardar, Warder, have made an attempt to convince us that Head Warder at the time of incident was not on duty whereas Warder while performing duty of gate keeper, was not responsible for the search of the visitors. The learned counsel for Taj Gohar, Superintendent Jail argued that his client was held responsible for loose administration but the actual position was that jail was over crowded and it was not possible for him to personally check the prisoners and visitors. He submitted that the members of the subordinate staff were individually responsible for their act and lapse on the part of any one of them, was not due to the week administration.
Having perused the record with the assistance of learned counsel for the parties and examined the relevant provisions of Pakistan Prison Rules (jail manual) deem it proper to reproduce the relevant rules to appreciate the respective contentions raised by the learned counsel for the parties. Rule 340 (i) and (iv) of the ibid rules, are as under:--
(i) A condemned prisoner should (unless disallowed for special reasons by the Superintendent in writing), be permitted to occupy the Courtyard for half an hour, each morning and evening. Only one such prisoner out of eight prisoners at a time should be allowed to do so.
(iv) A prisoner sweeper or other prisoner allowed to enter the cell of a condemned prisoner to perform any duty, shall first be carefully searched and while carrying out his work, shall be kept under close supervision by the warder on duty.
"The head warder on duty shall visit the cells occupied by condemned prisoners frequently at uncertain hours during the day and night and cells secure and the light are burning brightly. He shall report forthwith to the Deputy Superintendent any neglect on the part of the sentry or any unusual or suspicious conduct on the part of a prisoner."
Rule 342 of ibid Rules relates to the duty of Assistant Superintendent Jail, as under:--
"The Assistant Superintendent in charge shall have every condemned prisoner carefully searched at morning and evening. He shall have the cells carefully examined in his presence and shall satisfy himself that the prisoner has no forbidden articles in his possession and that the cell is sound and secure. He shall also examine the prisoner's food and be present when it is issued. He shall report in his report book that he has carried out these duties."
The Superintendent Jail has to keep close watch on his subordinate regarding performance of their duties strictly in accordance with rules and must be vigilant about all affairs of the jail. The Superintendent Jail being responsible for the administrate of jail, has collective responsibility of the lapses on the part of his subordinates, therefore, he must suitably adopt preventive measures to avoid any unpleasant incident.
The perusal of record would show that none of the respondents performed his duty strictly in accordance with the rules referred above and in consequence thereto, the condemned prisoners availed the opportunity of escaping from jail. It is not understandable that a ladder which was being used for white wash why was being kept within the reach of condemned prisoner and similarly there was no justification to permit the prisoners to keep pistol in his possession in the Jail. In view thereof it could be visualized that without the connivance of the jail staff, the prisoners could not possibly implement the scheme of escape from jail and notwithstanding the direct involvement of the respondents, the incident was definitely result of their gross negligence. Taj Gohar, being Superintendent Jail was overall responsible for administration of the jail and Syed Jaffar Shah, the Assistant Superintendent Jail was on supervisory duty at the relevant time whereas Maqsood, Head Warder was deputed for search of the cell and Muhammad Sarwar, Warder in the Courtyard was responsible for the search of condemned prisoners and the visitors. The respondents having been found grossly negligent in performing their duty were rightly held guilty of the charge and we take no exception to the finding on the question of their guilt.
The pivotal question for determination in the present cases, as noted in the leave granting order, would be whether Tribunal in exercise of powers under Section 7 of NWFP Service Tribunal Act 1974, was justified to interfere in the question of punishment. Section 7 of the ibid Act provides as under:--
"7. Powers of Tribunals: (1) A Tribunal may, on appeal, confirm, set aside. Vary or modify the order appealed against.
(2) A Tribunal or a Bench constituted under Section 5 shall, for the purpose of deciding any appeal be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of--
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) issuing commission for the examination of witnesses and documents.
(3) No Court-Fee shall be payable for preferring an appeal, to, or filing, exhibiting or recording any document in, or obtaining any document for a Tribunal.
The Service Tribunal in exercise of its power under the above provision may vary or modify an order challenged before it in an appeal but this discretionary power must be exercised in a judicious manner and in the spirit of policy of law. The power under Section 7 of the NWFP Service Tribunal Act, 1974 envisages that Tribunal may in its discretion in a suitable case in which the quantum of punishment does not commensurate with the charge, modify the penalty in the light of nature of charge but in the cases of extreme negligence and gross misconduct, the alteration of punishment of dismissal from service into reduction in time scale may not be justified as the retention of an irresponsible person in the sensitive service of jail department, would be against the policy of administrative law. There is no cavil to the preposition that Tribunal is empowered under the law to vary or modify the order of Departmental authority in suitable manner but interference in the quantum of punishment without showing reasonable ground that penalty awarded by the competent authority was harsh as compared to the nature of charge the exercise of discretion under Section 7 of NWFP Service Tribunal Act, 1974 not proper. The quantum of punishment is not as such a question of law but the exercise of discretion in an improper manner is definitely a legal question of immense importance as the wrong exercise of discretion or misuse of discretionary jurisdiction may defeat the purpose of law. The jail department is a very sensitive department and a slight negligence on the part of its employees, may bring a serious result, therefore, unnecessary laxity and leniency in the matter of punishment in such a case of gross negligence may offend the wisdom of law. We having analyzed the matter in the light of record and the facts and circumstances of the case, have found that all respondents being equally responsible for the incident of escape of prisoners from jail, would deserve equal treatment in the matter of punishment. The observation of the Tribunal that Muhammad Safdar, Gate Keeper, was not responsible for checking of visitors at the gate, was absolutely contrary to the law and facts of the case. The duty of a gate keeper is not only to maintain entry register rather he is also responsible for the body search of the visitors, therefore, his reinstatement in service was not justified.
In the light of foregoing discussion, we hold that the case of Ex-Assistant Superintendent Jail and two others (Head Warder and Warder) is not distinguishable to that of Taj Gohar, Ex-Superintendent Jail for the purpose of quantum of punishment and consequently we modify the judgment of the Tribunal and convert the penalty of reduction into three stages in time scale awarded to these respondent by the Tribunal into compulsory retirement. The order of reinstatement of Muhammad Sardar, Warder in service is set aside and he is also imposed the penalty of compulsory retirement. In consequence thereto, Civil Appeals Nos. 113 to 116 of 2005 filed by Government of NWFP are partly allowed with no order as to costs. The connected Civil Petitions Bearing No. 665-P/03, 682-P/03 and 1803/03 filed by Maqsood Ahmed, Ex-Head Warder, Syed Jaffar Shah, ex-Assistant Superintendent Jail and Taj Gohar, ex-Superintendent Jail respectably stand dismissed.
(Waseem Iqbal Butt) Order accordingly.
PLJ 2007 SC 273
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Sardar Muhammad Raza Khan & Falak Sher, JJ.
MALIK ATTIQUE--Petitioner
versus
SHOAIB alias LABBA and another--Respondents
Crl. P. No. 460-L of 2005, decided on 11.12.2006.
(On appeal from the judgment dated 11.7.2005 passed by the Labour Lahore High Court, Lahore in Criminal Miscellaneous No. 2 of 2005 in Criminal Appeal No. 435 of 2004).
Constitution of Pakistan, 1973--
----Art. 185(3)--Qatl-i-Amd--Conviction and sentence was awarded to the accused by trial Court--Appellate Court suspended death sentence of accused--Assailed--Jurisdiction--Validity--No ground for interference with exercise of discretion by High Court was made out, as it did not suffer from any illegality, Legal infirmity or error of jurisdiction--High Court was seized with appeal of the accused and co-convicts--Held: It could not be said that by suspending the sentence it acted without jurisdiction--Petition was dismissed--Leave refused.
[Pp. 274 & 275] A & B
Mr. Muhammad Afzaal Siddiqui, ASC with Mian Atta-ur-Rehman, AOR for Petitioner.
Mr. Khurram Latif Khosa, ASC with Mr. Faiz-ur-Rehman, AOR for Respondent No. 1.
Chaudhry M. Sadiq, Additional Advocate General Punjab for State.
Date of hearing : 11.12.2006.
Judgment
Rana Bhagwandas, J.--Petitioner is aggrieved by High Court order dated 11.7.2005 suspending death sentence of respondent-Shoaib alias Labba in an appeal against conviction and death sentence for committing act of qatl-i-amd.
Apart from the respondent, Shafqat Hussain, Muhammad Sarwar, Muhammad Anwar, Zulfiqar Ahmad, Saiful Malook and Bashiran Bibi were tried for the commission of qatl-i-amd. Of them, death sentence was awarded to respondents-Shoaib and Muhammad Anwar while Muhammad Sarwar was sentenced to life imprisonment. Co-accused-Zulfiqar Ahmad, to whom active part in the commission of the crime was attributed and co-accused-Shafqat Hussain who allegedly fired in air were acquitted by trial Court.
Muhammad Anwar, Shoaib and Muhammad Sarwar have appealed against their conviction and sentence, which is sub-judice before a Division Bench of High Court.
Learned counsel for the petitioner is unable to state whether acquittal of Zulfiqar Ahmad and Shoaib has been challenged by the petitioner before the High Court.
We have heard Mr. Muhammad Afzaal Siddiqui, learned ASC for the petitioner and Mr. Khurram Latif Khosa, learned ASC who has appeared for the respondent as well as Chaudhry Muhammad Sadiq, Additional Advocate General Punjab for the State. The grounds which weighed with the learned Division Bench of the High Court for suspension of sentence of the respondent appear to be that as per ocular account respondent was attributed only ineffective firing in air and that hearing of the appeal would consume a great deal of time.
After hearing learned counsel, we are satisfied that no ground for interference with the exercise of discretion by the High Court is made out, as it does not suffer from any serious illegality, legal infirmity or error of jurisdiction. Since the High Court is seized with the appeal of the respondent and co-convicts, it cannot be said that by suspending the sentence it acted without jurisdiction.
No ground is, thus, made out for the grant of leave. Petition is, therefore, dismissed. As the respondent was taken into custody after suspending the impugned order, he shall be released forthwith.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2007 SC 275
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Muhammad Nawaz Abbasi, JJ.
AFZAL and another--Petitioners
versus
STATE--Respondent
Jail Petition No. 347 of 2005, decided 5.5.2006.
(On Appeal from the judgment dated 20.7.2005 passed by High Court of Balochistan, Quetta in Crl. Jail Appeal No. (S) 9/2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 337-A (ii), 337-F(i), 337-L, 148 & 149--Constitution of Pakistan, 1973--Art. 185(3)--Conviction and sentence recorded against accused by trial Court--First Appellate Court converted the sentence of death into life imprisonment--Assailed--Leave to appeal--Statement of injured witnesses--Corroboration of evidence--Three eye-witnesses without any omission or addition had consistently supported the prosecution and their deposition sought ample corroboration from medical evidence and recovery of crime empties as well as attending circumstances--Held: Accused could not be saddled with responsibility of committing murder of deceased, has no substance.
[P. 277] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 337-A (ii), 337-F(i), 337-L, 148 & 149--Conviction and sentence recorded against accused by trial Court--Sentence was converted into life imprisonment--Assailed--Leave to appeal--Vicarious liability--Virtue of--Petitioners and their co-accused having formed unlawful assembly caused fire-arm injuries to the deceased and witnesses--It was a case of vicarious liability and the individual role was not ascertainable--By virtue of vicarious liability, accused would be equally responsible for the murder and causing injuries to the witnesses--Leave was refused.
[P. 277] C
Witness--
----Injured witness--Value of--Presence of injured witnesses at spot was not questionable and only question requiring determination would relate to truthfulness of their testimony. [P. 277] A
Mr. Tariq Bilal, ASC for Petitioners.
Raja Abdul Ghafoor, ASC for State/Respondent.
Date of hearing : 5.5.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 20.7.2005 passed by a Division Bench of High Court of Balochistan at Sibbi, whereby the appeal filed by the petitioners against the conviction and sentence of death for murder of Ghulam Nabi awarded to them under Section 302(b) PPC as tazir alongwith the different sentences of imprisonment under Section 324 read with Section 337-A (ii), 337-F (i), 337-L, Sections 148 and 149 PPC for causing injuries to the witnesses, by Additional Sessions Judge Nasirabad at Daira Murad Jamali was dismissed, with conversion of sentence of death into life imprisonment.
The short facts of the prosecution case in the background are that on 28.2.2003 at 12 noon, Allah Dino, the first informant alongwith his brothers namely Ghulam Nabi (deceased), Hubdar Ali, Murad Ali and minor girl Khatija (daughter of Murad Ali), were proceeding towards their field when the present petitioners alongwith their co-accused (since absconding), at 12.00 noon equipped with fire arm suddenly appeared at the scene and opened firing at the deceased and his companions as a result of which they all sustained injuries and Ghulam Nabi succumbed to the injuries at the spot. The report of the occurrence was lodged by Allah Dino (complainant) at 12.45 a.m. at levies thana, Tamboo whereupon Liaquat Ali, Naib Tehsildar, Tamboo, (PW 7) on reaching at the spot, prepared injuries statement and inquest report of the deceased, dispatched the dead body for postmortem examination, took into possession blood-stained earth and 10 crime empties of .12 bore gun from the place of occurrence with certain other articles and having completed the investigation submitted the final report for the trial of accused. The learned trial Judge after completion of formalities, declared co-accused of the petitioner as proclaimed offenders whereas having framed the charge against him for the commission of offence as stated above proceeded with the trial. The prosecution mainly relied upon the statement of the injured witnesses, the medical evidence and postmortem report of Ghulam Nabi. The petitioners in their statement under Section 342 Cr.P.C. denied the charge and pleaded false implication.
Learned counsel for the petitioners with reference to minor discrepancies and the contradiction in the statements of eye-witnesses contended that the prosecution without proving the participation of the petitioners in the occurrence satisfactorily assigned them the general role of firing as member of unlawful assembly, therefore, their conviction on the basis of sole evidence of interested and partisan witnesses without independent corroboration was not safe as the circumstances leading to the occurrence would suggest strong possibility of false implication due to the enmity. Learned counsel forcefully argued that motive setup by the prosecution was also not proved beyond doubt and active participation of the petitioner in the occurrence was not proved beyond reasonable doubt, therefore the finding qua their guilt was result of mis-appreciation of evidence.
The perusal of record, with the assistance of learned counsel, would reveal that presence of the injured witnesses at the spot was not questionable and only question requiring determination would relate to truthfulness of their testimony. The occurrence in the present case took place at 12 noon, report of which was lodged within one hour wherein the petitioners, alongwith others were nominated and were assigned the role of firing at the complainant party as a result of which Ghulam Nabi died and the witnesses sustained injuries. The three eye-witnesses, including a minor girl Mst. Khatija, without any omission or addition have consistently supported the prosecution and their deposition sought ample corroboration from medical evidence and the recovery of crime empties of .12 bore gun from the spot as well as the attending circumstances. The contention of learned counsel that in the given facts and the circumstances of the case it was not possible to ascertain the individual liability and held the petitioners responsible for causing injuries to the deceased and witnesses, therefore, the petitioners could not be saddled with the responsibility of committing the murder of deceased, has no substance. The petitioners and their co-accused having formed unlawful assembly armed with lethal weapons attacked at the complainant party and caused fire arm injuries to the deceased and witnesses, therefore, notwithstanding the fact that who was individually responsible for causing specific injuries to the deceased and witnesses, the petitioners by virtue of vicarious liability, would be equally responsible for the murder of deceased and causing injuries to the witnesses. However, the High Court having come to the conclusion that it was a case of vicarious liability and the individual role was not ascertainable, converted the sentence of death awarded to the petitioners into life imprisonment and we would not take any exception to the view of the matter taken by the High Court. It was a broad day light occurrence and eye-witnesses, including a minor girl, have consistently stated about the active participation of all the petitioners in the occurrence and nothing was brought on record to suggest even a slight doubt qua their guilt. Learned counsel for the petitioners has not been able to convince us that either the testimony of injured eye-witnesses was not reliable or the participation of the petitioners in the occurrence was doubtful and, we have not been able to find out any misreading or non reading of the evidence either by the trial Court or High Court in coming to the conclusion regarding guilt of the petitioners or any other legal or factual infirmity in the judgment of the High Court calling for interference of this Court.
In the light of foregoing discussion we do not find any substance in this petition, which is accordingly dismissed. Leave is refused.
(Fouzia Fazal) Leave refused.
PLJ 2007 SC 278
[Appellate Jurisdiction]
Present: Rana Bhagwandas & Syed Jamshed Ali, JJ.
MINISTRY OF INTERIOR & NARCOTICS CONTROL, INTERIOR DIVISION, GOVT. OF PAKISTAN, ISLAMABAD
and another--Petitioners
versus
OSMAN ALI SAAD ELDIN--Respondent
Civil Petition No. 2430 of 2004, decided on 1.11.2006.
(Against the judgment dated 28.7.2004 passed by Lahore High Court, Rawalpindi Bench Rawalpindi in I.C.A. No. 164/2004).
Foreigners Act, 1946--
----S. 3--Foreigners Order, 1951, Art. 3(3)--Constitution of Pakistan, 1973--Art. 185(3)--Privileges and rights of the foreigners--Question of law--It is a privilege and not the right of a foreigner to be enforced through a Constitutional petition and it lay in the absolute domain and discretion of the Federal Government to permit entry or refuse it within the parameters of the law fit case for the grant of leave--Order accordingly.
[P. 279] A
Mr. Nasir Saeed Sheikh, DAG for Petitioners.
Dr. Babar Awan, ASC for Respondent No. 1.
Date of hearing : 1.11.2006.
PLJ 1997 Lah. 1782; PLD 1980 Pesh. 275 and 1986 CLC 1123 ref.
Order
Rana Bhagwandas, J.--Petitioners are aggrieved by a Division Bench judgement of the Lahore High Court, Rawalpindi Bench dated 28.7.2004, passed in I.C.A. against the order dated 6.7.2004, passed by a learned Judge in chambers of the High Court.
While the learned single Judge dismissed the Constitutional petition of the respondent, as being incompetent Division Bench allowed the appeal, set aside the order of the learned single Judge and declared the order dated 24.6.2004 passed by Petitioner No. 1, as illegal and void, directing the petitioners to extend visa of the respondent for a further period of four years. Respondent, a Sudani national, has been managing and rendering the affairs of Qatar Charitable Society, an N.G.O. at Islamabad and staying in Pakistan under a valid permit/visa. On expiry of the period of his visa, he pleaded for extention thereof which was declined and the permission already granted cancelled on the basis of certain allegations and adverse reports against him. He challenged the action of the petitioners through a Constitutional petition which was dismissed as aforesaid. He, however, succeeded in appeal before a bench of the High Court, hence this petition for leave to appeal.
We have heard Mr. Nasir Saeed Sheikh, learned DAG for Pakistan and Dr. Babar Awan, learned ASC for the respondent.
With reference to Section 3 of the Foreigners Act, 1946 and Article 3(3) of Foreigners Order, 1951, learned DAG contended with vehemence that it is the prerogative of the Federal Government to permit or refuse any Foreign national to enter into Pakistan and to deport him on expiry of the visa granted to him. Under the law Government is competent even to cancel visa already granted which is not a justiciable issue before the superior Courts under the provisions of Article 199 of the Constitution. Precisely, the thrust of the argument appears to be that it is a privilege and not the right of a foreigner to be enforced through a Constitutional petition and it lay in the absolute domain and discretion of the Federal Government to permit entry or refuse it within the parameters of the law. Learned DAG pointed out that while single Judge rightly held that Constitutional petition of the respondent was not maintainable at law, Division Bench of the High Court without adverting to this important question of law set aside the action of the Federal Government and arbitrarily directed the grant of visa to the respondent for a period of four years.
Reference has been made to the decided cases from Peshawar, Sindh and Lahore jurisdiction reported as Wanq Lilly V. Ministry of Interior Islamabad etc. (PLJ 1997 Lahore 1782), Jean Charles Groosen V. State of Pakistan through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad (PLD 1980 Peshawar 275) and Muhammad Ali and another v. Government of Sind through Chief Secretary and 2 others (1986 CLC 1123).
Having heard learned counsel for the parties, we are of the view that the questions of law raised at the bar being of first impression an authoritative judgement by this Court would be called for. Indeed a fit case for the grant of leave is made out. We order accordingly.
Appeal be listed for hearing at an early date.
(Fouzia Fazal) Order accordingly.
PLJ 2007 SC 280
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud &
Dr. Rashid Ahmed Jullundhari, JJ.
MUSHTAQ AHMED and another--Petitioners
versus
STATE--Respondent
Jail Petition No. 34(S) of 2004, decided on 6.11.2006.
(On appeal from the order judgment dated 2.12.2003 passed by the Federal Shariat Court, Islamabad, in Jail Criminal Appeal No. 157/I of 2002 and Criminal Appeal No. 176/I of 2002).
Administration of Justice--
----Trial was justified to disbelieved the defence version--Unbelievable--One sane person would ever like to put at stake his or her family honour as well as career of young un-married daughter for such petty disputes as alleged by the defence. [P. 283] C
Offence of Zina (Enforcement of Hadood) Ordinance, 1979--
----Ss. 10(3), 12 & 16--Pakistan Penal Code, (XLV of 1860), S. 363 & 377--Constitution of Pakistan 1973--Art. 203-F--Leave to appeal--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed--Assailed--Appreciation of evidence--Corroborative evidence--Statement of the victim was duly corroborated by medical evidence of Doctor who had categorically stated that her hymen was absent and she was pregnant--Statement of victim was also corroborated by the statement of Radiologist who had examined the victim and also performed her ultra-sound according to which she was pregnant of about 18 weeks--Courts below were justified to believe the statement of witnesses after re-appraisal of evidence. [P. 283] B
Opinion of Court--
----Consideration of opinion--Validity--As a rule should give due weight and consideration to the opinion of the Courts below and in particular to the opinion of Court of the first instance which had advantage of hearing the parties, witnesses and watching their demeanour--Normally Supreme Court did not interfer with findings of fact arrived at by primary Courts or Federal Shariat Court, when it was satisfied that findings of Courts below were on the whole reasonable and were not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence--Petition has no merit. [P. 283] D
1985 SCMR 128; 1986 SCMR 35; 1984 SCMR 54 and PLD 1973 SC 469 ref.
Appreciation of Evidence--
----Concurrent findings of the Courts below were justified--In rape cases mere statement of victim is sufficient to connect the accused with commission of offence in case the statement of the victim inspired confidence--Held: Courts below had given concurrent conclusions that Statements of victims inspired confidence and connected accused with commission of offence. [P. 283] A
Sardar Abdul Majeed, ASC for Petitioners.
Nemo for State.
Date of hearing : 6.11.2006.
Order
Ch. Ijaz Ahmed, J.--The petitioners have sought leave to appeal against the judgment of the Federal Shariat Court dated 2.12.2003 wherein their appeals against their conviction were dismissed vide impugned judgment dated 2-12-2003. Detailed facts have already been mentioned in the impugned judgment. However necessary facts out of which the aforesaid petition arises are that petitioners are involved in case FIR No. 110/99 which was registered on 20-2-1999 under Section 363/377 PPC and Section 16-10(3)/12 of the Offence of Zina (EOH) Ordinance, 1979 at Police Station Saddar, Rahim Yar Khan on the complaint of Safia Bibi PW-7 mother of the victims. According to the contents of the FIR the case of the prosecution is as follows:--
"The occurrence took place some five months before 20.2.1999 when Mst. Safia Bibi appeared before the police and lodged FIR Ex. PD at Police Station. Saddar, Rahimyar Khan to the effect that her son Akhtar Ali, aged 12/13 years and daughter Mst. Shahnaz aged 11/12 years left the house for bringing grass from the land of Muhammad Tufail but did not return for about 2/3 hours. Thereupon she got worried and went in their search. She alleged that when she reached near Kundi Peer she met Muhammad Arshad and Rashid Ahmad who on her inquiry informed her that sometime prior they had seen a white colour car being driven by Manzoor Ahmad Gopang. Therefrom Mushtaq Ahmad, Muhammad Sharif, Bashif Ahmad and Najo deboarded at Same-Nala. Mushtaq Ahmad and Manzoor Ahmad caught hold of the two children and, taking them along, in the car drove it away towards Rahimyar Khan. Thereafter, immediately, she alongwith her son Muhammad Aslam and Rashid Ahmad went to Manzoor Ahmad Gopang who told her that Mushtaq Ahmad whom he had dropped them at the Airport had taken them away. She further stated that despite lot of search she failed to find out her children. Then she went to Dera of Irfa Gojar where Manzoor Ahmad accused, while admitting that he had taken the two children alongwith Mushtaq Ahmad, Muhammad Sharif, Bashir Ahmad and Najo, will try to search them out and return them accordingly. However, he applied delaying tactics and then flatly refused to do so. She requested that her children who had been abducted by aforementioned accused may be recovered."
Name of accused Under Section Sentence
Mushtaq Ahmed (1) 337 PPC 10 years R.I. with a fine of
Saeed Ahmed Rs. 40,000/-, in case of default to
further undergo 3 months S.I.
(2) 10(3) of Offence 12 years R.I. each. Both the
of Zina (EOH) punishments were ordered to
Ordinance, 1979. run concurrently. Benefit of
Section 382 Cr.P.C. was also
extended to them.
It is pertinent to mention here that the trial Court had acquitted the other six co-accused. Petitioners being aggrieved filed Jail Criminal Appeal No. 157/I of 2002 and Criminal Appeal No. 176/I of 2002 before the Federal Shariat Court which were dismissed vide impugned judgment as mentioned above. Hence the present petition.
The learned counsel for the petitioners submits that FIR was lodged by the complainant after considerable delay without explaining the delay and this fact was not considered by both the Courts below in its true perspective. He further submits that both the Courts below had convicted the petitioners on the solitary statements of PW-9 Mst. Shehnaz Kausar and PW-10 Akbar Ali. He further submits that prosecution had failed to establish the charges of sodomy or Zina-bil-jabr beyond any shadow of doubt. He further submits that there was no corroboration available on record qua the statements of victims and also not supported by any medico legal report and this aspect of the case was also not examined by the Courts below. He further submits that petitioners were involved in a case on account of family dispute between the parties but this fact was not appreciated and considered by the Courts below in its true perspective. Petitioners were not convicted by the trial Court under Section 363 PPC. This factum belies the contents of the FIR but both the Courts below had not considered this aspect of the case. He sums up his arguments that several other accused nominated by the complainant had been acquitted by the trial Court, therefore, petitioners could not be convicted on the basis of the same evidence.
We have considered the submissions made by counsel for the petitioners and have perused the record. The trial Court had acquitted their co-accused who were only charged for taking the victims away and this piece of evidence was disbelieved by the trial Court as the statement of both the victims PW-9 Mst. Shehnaz Kausar and PW-10 Akbar Ali lacked
corroboration to that extent PW-6 Rashid Ahmad in his statement as he did not named any one of them and mentioned only present petitioners for the commission of offence. Therefore, last contention of the learned counsel for the petitioners has no force as the case of their acquitted co-accused were distinguished on facts and law which was duly noted by both the Courts below. We have also examined the record and found that findings of the Courts below were justified as the same was result of proper appreciation of evidence. It is consistent view of this Court, that in rape cases mere statement of the victim is sufficient to connect the petitioners with the commission of offence in case the statement of the victim inspires confidence. In the present case both the Courts below have given concurrent conclusions that statements of both the victims (PW-9 and PW-10), inspire confidence and connected the petitioners with the commission of offence. They had faced lengthy cross-examination by the defence but defence has failed to shake their veracity. The statement of PW-9 was duly corroborated by the medical evidence of Dr. Tahira Afzal Durrani who had categorically stated that her hymen was absent and she was pregnant. Her statement was also corroborated by the statement of Dr. Malik Saeed Akhtar Radiologist PW-1 who had examined PW-9 and also performed her ultra-sound according to which she was pregnant of about 18 weeks. Both the Courts below were justified to believe the statements of the aforesaid witnesses after re-appraisal of evidence. The trial Court was justified to dis-believe the defence version and upheld by the learned Federal Shariat Court. It is not believed or appealed to reason to observe that one sane person would ever like to put at stake his or her family honour as well as career of young un-married daughter for such petty disputes as alleged by the defence. Both the Courts below after proper appreciation of evidence have concurrently convicted the petitioners with cogent reasons keeping in view all the principles laid down by this Court in the safe administration of justice. This Court, as a rule, should give due weight and consideration to the opinion of the Courts below and in particular to the opinion of the Court of the first instance which. had advantage of hearing the parties, witnesses and watching their demeanour. Normally this Court, does not, interfere with the findings of fact arrived at by the primary Courts or a Federal Shariat Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible as law laid down by this Court in various pronouncements. Reference can be made to the following judgments:--
Fazle Razaq v. Jan Sadiq and others (1985 SCMR 128)
Abdul Khaliq v. The Stale (1986 SCMR. 35)
Mujahid Hussain v. The State (1984 SCMR 54)
Noora and another v. The State (PLD 1973 S.C. 469)
For what has been discussed above, this petition has no merit and the same is dismissed. Leave refused.
(Fouzia Fazal) Leave refused.
PLJ 2007 SC 284
[Appellate Jurisdiction]
Present: Abdul Hamid Dogar, Muhammad Nawaz Abbasi &
Saiyed Saeed Ashhad, JJ.
MUHAMMAD SULEMAN and others--Petitioners
versus
STATE--Respondent
Jail Petitions Nos. 48 & 85 of 2004, decided on 1.11.2006.
(On appeal from the judgment of Lahore High Court, Lahore dated 18.10.2002 passed in Criminal Appeal No. 1030 of 1998).
Administration of Justice--
----Rule of independent corroboration is a rule of abundant caution which is followed in the interest of safe criminal administration of justice and is not mandatory rule of law to be necessarily applied in each case. [P. 290] C
Hostile Witness--
----Testimony of witnesses--Appreciation of evidence--Validity--Testimony of hostile witness or a witness, who was not examined being won over was either produced by defence or was examined as Court witness must not be left out of consideration for mere reason that had not support the prosecution rather evidence of such witness must be considered with utmost care and caution--Testimony of a witness who speaks in different tune at different times is certainly not reliable unless strong confirmatory evidence of independent character is available on record. [P. 289 & 290] A
Interested Witness--
----Independent corroboration--Safe testimony of interested witness without independent corroboration may not be confidence inspiring to be relied upon for conviction. [P. 290] B
Ocular Account--
----Appreciation of evidence--Ocular account furnished by natural witnesses of occurrence held the accused guilty--Held: Concurrent findings of guilt of accused was not suffering from any legal or factual infirmity. [P. 290] D
Injured Witness--
----An injured witness who has not supported the prosecution, there was no other reliable evidence on record to establish the charge, has no substance. [P. 290] E
Natural Witnesses--
----Credibility of evidence--Appreciation of evidence--Deposition of natural witnesses, seeking ample support from crime recovery from the spot--Medical evidence--The motive for the occurrence found reliable & confidence inspiring--Minor discrepancies and infirmities in evidence pointed out by counsel would have no material effect on credibility of evidence. [P. 290] F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 161--Pakistan Penal Code (XLV of 1860), Ss. 302(b), 324, 109, 392, 34 & 148--Constitution of Pakistan, 1973, Arts. 185(3)--Dying declaration--Statement of deceased u/S. 161 Cr.P.C. at the time when he was facing struggle for life and even such statement of deceased is not treated as dying declaration would certainly provide a strong corroborative circumstances to ocular account. [P. 291] G
Administration of Justice--
----Principles of criminal administration of justice--Minor discrepancies and contradictions in statements of witness--Appreciation of evidence--Reliability of ocular account furnished by quite natural and truthful witnesses seeking corroboration from independent source was above board--Held: Lacuna in prosecution evidence to create a slight doubt qua the guilt of accused--Minor discrepancies and contradictions in statements of the witnesses have no important to because the guilt or innocence of a person is judged on the basis of overall circumstances of the case and conclusion of evidence. [P. 291] H
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 382-B, 324, 109, 392, 34 & 148--Conviction and sentence recorded against accused by trial Court--Entitlement of benefit of doubt--Accused who had been attributed specific role of causing fire-arm injuries to deceased which proved fatal to their lives and sentence of death awarded to co-accused on two counts was maintained as such u/S. 302(b) PPC whereas sentence of death awarded to other accused was reduced to life imprisonment on each counts and they would be entitled to benefit of
S. 382-B Cr.P.C.--Sentences awarded to all accused on all charges were converted into appeal and modification of their sentences were partly allowed--Leave refused. [P. 291] I
Sardar M. Latif Khan Khosa, ASC Sh. Muhammad Siddique Khan, ASC and Mr. Tanvir Ahmed, AOR (absent) for Petitioners (in both cases).
Mr. Aftab Farrukh, Sr. ASC for Complainant (in both cases).
Mr. Dil Muhammad Tarar, ASC for State (in both cases).
Date of hearing : 16.2.2006.
Judgment
Muhammad Nawaz Abbasi, J.--These connected jail petitions have been directed against the judgment dated 18.10.2002 passed by a Division Bench of Lahore High Court, Lahore whereby the appeals filed by the petitioners against their conviction and sentence of death under Sections 302(b) PPC and sentence of imprisonment for different terms under Sections 324/109 and 392/34 PPC and also under Section 148 PPC awarded to them by the Special Court established under Suppression of Terrorist Activities Act, 1975, at Sheikhupura, were dismissed.
(PW-14) having conducted post-mortem examination of the deceased on 23.7.1996 observed the following injuries on his person:--
"1. A lacerated punctured wound through and through 3 x 2 c.m. on the left eye.
A wound of entry size 1/2 x 1/2 c.m. on the left side on the front of lower abdomen.
A wound of exit 2x2 c.m. on the back of waist, 6 c.m. lateral to the mid-line of back bone."
In the opinion of doctor, the injuries were caused with fire-arm and injury number 2 was fatal to the life.
"A fire-arm wound of entry with blackly stained inverted margin 1/2 x 1/2 c.m. on the upper part of the inner side of the right thigh with a grazing lacerated wound of size 1/2 x 1/2, cm. On dorsum of penus, with the fire-arm would of exit of size 5x3 c.m. with everted margin on the upper part of posteriolteral side of the right thigh, bleeding profusely. Corresponding holes were present on shalwar and condition of the patient was serious.
Muhammad Asghar, driver of the complainant, an injured witness, who was medically examined by the same doctor on the same day, sustained five injuries of the following description:--
A fire-arm wound of entry 1/2 x 1/2 c.m. on the left eyebrow.
A fire-arm wound 1/2 x 1/2 c.m on front of right side of chest 4 cm from right nipple with inverted margin.
A fire-arm wound 1/2 x 1/2 c.m. with inverted margins of left side of chest 4 c.m. from the left nipple.
A fire-arm wound 1/2 x 1/2 cm on the left side of front of abdomen with inverted margins, corresponding holes were found on kameez.
A fire-arm wound 1/2 x 1/2 cm on inner side of left leg with inverted margin. Fair less."
The Investigating Officer, after seeking permission of Dr. Khalid, resident Registrar of Allied Hospital, Faisalabad (PW-18), recorded statement of Muhammad Ashraf (deceased) under Section 161 Cr.P.C and this statement of Muhammad Ashraf on his death on the next day in the hospital, was treated his dying declaration. The post-mortem examination of the dead body of Muhammad Ashraf was conducted by Dr. Khadim Hussain (PW-14) and following injury was traced on his person:--
"A wound of entry 1x1 c.m. size on the dorsum of the penis of left side and exit wound 1/2 x 1/2 c.m. on the basis on the right side of tarsum of the penis and entry wound 1/2 x 1/2 c.m. on the medial and entrails part of the right thigh. On upper part at the level of 4 c.m. below the inguinal ligament in mid line."
The petitioners in their statements under Section 342 Cr.P.C. denied the charge and pleaded false implication but did not prefer to make statement under Section 340(2) Cr.P.C.
"Death on two counts as tazir Section 302 read with Section 149 PPC with a fine of Rs. 1,00,000/- each on each count and in default of payment of fine to undergo R.I. for two years each.
(a) Under Section 148 PPC RI for 3 years each with a fine of
Rs. 20,000/- each and in default of payment of fine to undergo R.I for six month each.
(b) Under Section 324/109 PPC RI for 10 years each with a fine of Rs. 10,000/- each and in default of payment of fine to undergo R.I for one year each.
(c) Under Section 392 read with Section 34 PPC RI for 10 years each with a fine of Rs. 20,000/- each and in default of payment of fine to undergo R.I for one year each.
The High Court while dismissing their appeals maintained the conviction and sentence on the above charge awarded to them by the trial Court.
The learned counsel for the petitioners has contended that Muhammad Asghar, driver of the complainant, an injured and a star witness of the occurrence, was not produced by the prosecution rather was examined as Court witness and he having denied the correctness of the prosecution version firmly stated that he as well as two deceased were caused injuries by unknown culprits and none of the petitioner participated in the occurrence. The learned counsel argued that the trial Court as well as the High Court has neither properly attended the evidence of this most important and natural witness nor appreciated that motive for the occurrence set up by the prosecution was not proved beyond reasonable doubt and petitioners had no other reason to commit the crime, therefore, the failure of the prosecution to prove the motive would reflect upon the correctness of the allegation against the petitioners. Learned counsel vehemently contended that concurrent findings of the two Courts regarding guilt of the petitioner being in utter disregard to the principle of appraisal of evidence was badly suffering from serious factual and legal infirmity and in support thereof, argued, that presence of two eye-witnesses namely Muhammad Aslam and Irfan Aslam was highly doubtful as none of them sustained a single injury as a result of firing of the accused and further Muhammad Riaz and Muhammad Shafi, who were closely related to the complainant, were not examined and their non-production would strongly suggest that they were not prepared to support the prosecution. Learned counsel lastly argued that in view of the findings of two Courts that fatal injuries were caused to the deceased by Muhammad Suleman and Mansha, the sentence of death awarded to all the petitioners was not justified.
The essential questions requiring determination in the present case would be (a) The petitioners did or did not participate in the occurrence and the two deceased as well as Muhammad Asghar, an injured witness, sustained injuries at the hands of unknown culprits, (b) What was the effect of non-production of Riaz and Shafi, the two eye-witnesses of the occurrence, and whether evidence of Muhammad Asghar, an injured witness, who was given up by the prosecution as won over and was examined as Court witness on the request of the accused was reliable (d) whether the statement of Muhammad Ashraf, deceased, recorded by Sub-Inspector in the hospital in injured condition with permission of the doctor, who had also declared him fit to make statement, would acquire the status of dying declaration (e) The motive set up by the prosecution was or was not proved and whether occurrence did not take place in the manner as stated by the prosecution.
Learned counsel for the complainant, assisted by the learned State counsel, has contended that since Muhammad Riaz, injured witness, was not produced by the prosecution having been won over by the defence, therefore, his evidence was unworthy of any credence to be relied upon and must have been brushed aside. The second contention of learned counsel was that prosecution was not bound to produce all witnesses cited in the calendar of witness, therefore, non-production of two eye-witnesses, named in the FIR, would not be fatal to the prosecution to draw an adverse inference. The third contention of learned counsel was that the two eye-witnesses despite being real brother and nephew of the deceased had no enmity or malice against the petitioners to falsely implicate them in the case of capital punishment and were quite independent and reliable witnesses. The mere relationship of the witnesses with deceased without any background of any enmity with the accused may not be sufficient to discard the evidence of the natural witnesses. The third contention was that except the motive of Jagga tax there was no other reason for the accused to commit the crime and witnesses have also no enmity or malice against them for their false implication in the murder case. Lastly learned counsel argued that notwithstanding the role assigned to the individual accused, they having participated in the occurrence have committed the crime in furtherance of their common object, therefore, they having shared vicarious liability were equally responsible for the murder of two deceased therefore, the sentence of death awarded to them was quite in accordance with law.
There is no cavil to the proposition that the testimony of a hostile witness or a witness, who was not examined being won over was either produced by the defence or was examined as Court witness, must not be left out of consideration for mere reason that he did not support the prosecution rather the evidence of such a witness must be considered with utmost care and caution. The testimony of a witness who speaks in the different tune at different times is certainly not reliable unless strong confirmatory evidence of independent character is available on record. Similarly, the sole testimony of an interested witness without independent corroboration may not be confidence inspiring to be relied upon for conviction. The rule of independent corroboration is a rule of abundant caution which is followed in the interest of safe criminal administration of justice and is not a mandatory rule of law to be necessarily applied in each case. In the present case the defence having challenged the presence of the eye-witnesses namely Muhammad Aslam and Irfan Aslam at the scene of occurrence has questioned truthfulness of their evidence mainly on the ground that none of them sustained a single injury in the occurrence despite direct and indiscriminate firing made by the accused. The incident took place at the Sheller of the complainant and the presence of the complainant and his son at their Sheller was not questionable and their testimony was also not suffering from any inherent defect.
The perusal of record would show that the learned trial Judge as well as the learned Judges of the High Court having made detail scrutiny of the evidence in the light of principles relating to appreciation of evidence, have concluded that the petitioners were guilty of the charge and both the Courts placing reliance on the ocular account furnished by the natural witnesses of the occurrence held the petitioners guilty and we have found that concurrent findings of guilt of petitioners was not suffering from any legal or factual infirmity. The contention of the learned counsel for the petitioners that except Muhammad Asghar, an injured witness, who has not supported the prosecution, there was no other reliable evidence on record to establish the charge, has no substance. The presence of Muhammad Aslam and his son Irfan Aslam at their sheller from where the blood stained earth and empties were recovered, was quite natural and mere fact that they did not sustain injury in the occurrence, would not be a valid reason to discard or exclude their evidence from consideration. The deposition of these natural witnesses seeking ample support from recovery of crime empties of .12 bore gun and 7 MM rifle from the spot, the medical evidence and the motive for the occurrence was found reliable and confidence inspiring, therefore, the minor discrepancies and infirmities in their evidence pointed out by the learned counsel would have no material effect on the credibility of their evidence. In addition to the ocular account of unimpeachable character, the prosecution was also equipped with the statement of Muhammad Ashraf (deceased) which was recorded by the Investigating Officer on the day of occurrence with permission of doctor, who had declared the injured fit to make statement. The Investigating Officer has stated that he recorded the statement of deceased under Section 161 Cr.P.C at the time when he was facing struggle for life and even if this statement of deceased is not treated as his dying declaration the same would certainly provide a strong corroborative circumstance to the ocular account. However, even with the exclusion of this statement of the deceased from consideration, the charge against the accused stood proved beyond reasonable doubt on the basis of direct evidence of the natural eye-witnesses duly supported by the medical evidence and motive for the crime. We having examined the record with the assistance of learned counsel for the parties, have not been able to find out any substance in the contention of the learned counsel for the petitioners that the concurrent findings regarding guilt of petitioners arrived at by the two Courts were not based on sound principles of criminal administration of justice. The reliability of ocular account furnished by the quite natural and truthful witnesses seeking corroboration from independent source was above board and we have not been able to find out any lacuna in the prosecution evidence to create a slight doubt qua the guilt of the petitioners. The minor discrepancies and the contradictions in the statements of the witnesses have no importance because the guilt or innocence of a person is judged on the basis of overall circumstances of the case and conclusion of the evidence. In the light of the prosecution evidence, facts in the background and circumstances leading to the happening of the occurrence we do not find any legal or factual defect in the conclusion regarding guilt of the petitioner. However, while keeping in view the role assigned to the individual accused we deem it proper to consider the question of sentence.
This is established on record that all the petitioners in furtherance of their common object armed with deadly weapons participated in the occurrence and committed the crime but we find that in the FIR Khadim Hussain alias Saddi and Muhammad Ashiq were attributed the role of firing one shot each with their respective weapons to Muhammad Ashraf, deceased and Irfan Aslam (PW-17) also deposed on the same lines, whereas Muhammad Aslam (PW-16), the lodger of First Information Report has simply assigned them the general role of indiscriminate firing at the scene of occurrence.
The medical evidence also revealed that Muhammad Ashraf, deceased sustained only one injury on thigh which punctured the main vessel and caused extensive bleeding as a result of which he lost his life. Similarly Naik Muhammad and Nazir Ahmed alias Jeera are attributed general role of firing at the scene of occurrence. In view thereof the case of above named four accused is distinguishable to that of the petitioners namely, Muhammad Mansha and Muhammad Suleman who have been attributed specific role of causing fire-arm injuries to the two deceased which proved fatal to their lives and consequently the sentence of death awarded to Muhammad Suleman and Muhammad Mansha on two counts is maintained as such under 302(b) PPC, whereas the sentence of death awarded to Khadim Hussain, Muhammad Ashiq, Naik Muhammad and Nazir Ahmed alias Jeera on two counts is reduced to life imprisonment on each counts and they shall also be entitled to benefit of Section 382-B Cr.P.C. The different sentences awarded to all the petitioners on all other charges are maintained. These jail petitions to the extent of Khadim Hussain, Muhammad Ashiq, Naik Muhammad and Nazir Ahmed alias Jeera are converted into appeals and with the above modification of their sentences, are partly allowed whereas the jail petition of Muhammad Mansha and Muhammad Suleman is dismissed and leave is refused.
(Fouzia Fazal) Order accordingly.
PLJ 2007 SC 292
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, Chairman, Muhammad Nawaz Abbasi, Raja Fayyaz Ahmed, Allama Khalid Mehmood &
Dr. Rashid Ahmed Jullundhari, JJ.
MUHAMMAD JAVAID--Petitioner
versus
STATE--Respondent
Jail Petition No. 40(S) of 2004, decided on 4.1.2006.
(On appeal from the judgment dated 26.1.2004 of the Federal Shariat Court, Islamabad passed in Jail Crl. Appeal No. 89/1-2000, Crl. Appeal No. 86/1-2000, Crl. Ref. No. 2/1-2002).
Offence of Zina (Enforcement of Hudood), Ordinance, 1979 (VII of 1979)--
----S. 7--Pakistan Penal Code, (XLV of 1860), S. 302(b)--Constitution of Pakistan, 1973, Art. 203-F--Conviction and sentence recorded against accused--Assailed--Appreciation of evidence--Interse relationship some independent witnesses--Public for certain obvious reasons did not cooperate with the police and nobody came forward to get his statement recorded in order to avoid the complicated and time consuming process of the Courts--Interested witness was one who had a motive for falsely implicating an accused--Brutal murder of an elderly woman who had attempted to safe her daughter from the clutches of petitioner had been committed and hence question of leniency did not arise--Petition dismissed. [Pp. 294, 295 & 296] A, B & C
2001 SCMR 2144; PLD 2000 SC 121; 1992 SCMR 983 ref.
Mr. S. M. Abdul Wahab, ASC for Petitioner.
Nemo for the Respondent.
Date of hearing: 4.1.2006.
Judgment
Javed Iqbal, J.--Muhammad Javaid (petitioner) has preferred this petition from jail assailing the judgment dated 26.1.2004 passed by the learned Federal Shariat Court whereby the judgment of learned Additional Sessions Judge, Rawalpindi dated 18,4.2000 whereby the petitioner has been convicted under Section 302(b) PPC and sentenced to death with fine of
Rs. 100,000/- and in case of default further to suffer six months R.I. has been kept intact, however the conviction under Section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 whereby petitioner was sentenced to life imprisonment with fine of Rs. 20,000/- and in case of default to suffer further one year imprisonment has been set aside.
Precisely stated facts of the case as enumerated in the judgment impugned are based on "Fard Biyan (Ex.PH) recorded on the statement of Mst. Robina Kausar, on 25.5.1997 at 5.30 p.m., is to the effect that on the same day at about 3.00 p.m., she was present alongwith her sister Mst. Pukhraj and Mst. Shahnaz Bibi in her house. In the meanwhile the accused Muhammad Javed who was carrying a rifle on his left shoulder and was holding a carbine in his right hand entered there. The Court-yard of her house as well as of the house of her maternal grand mother, Jannat Bibi, is one and the same. Soon after his arrival in the house, Muhammad Javed accused threatened to kill all of them and fired shot from his Carbine whereupon the complainant and her sisters got scared, ran inside the house and closed the door. She alongwith her sisters saw through the window of their house that accused Javaid entered the house of Mst. Jannat Bibi and caught hold of her maternal aunt Shahnaz, aged 25/26 years, and dragged her out of the house towards the street. Thereupon the complainant and her sister went out and raised hue and cry which attracted many persons but nobody could come forward as the accused Javaid was armed with Carbine and also considered a rogue in the village. However her grand maternal mother Jannat Bibi arrived from the Court-yard of house of Muhammad Azram side and tried to rescue her said daughter. Thereupon Javed accused threatened to kill her in case she advanced any further. Mst. Jannat Bibi, however, stepped forward whereupon said Muhammad Javed fired from his carbine which hit Jannat Bibi in front of her shoulder and, after felling down, she died on the spot. Muhammad Javed accused caught hold of Mst. Shahnaz and forcibly abducted her at weapon point for commission of zina and marriage. She alleged that the reason for his grievance was the fact that earlier, about 2 years before, accused Javed had abducted her younger sister Mst. Shahnaz Bibi, and a case in that respect had been registered against him. Accused Javed, who was facing trial, had been granted bail, 5/6 months before and had therefore, come to his house. She alleged that they had left aforementioned Muhammad Azram with the dead body and had come with her maternal uncle Iftikhar Mehmood, who had reached there, to report the matter to police. Ex.PH was thereafter sent and incorporated into formal FIR at police station, Kallar Saidan, District Rawalpindi." The petitioner was arrested and after completion of investigation he was sent up for trial alongwith co-accused and on conclusion whereof he was convicted and sentenced as per details mentioned in the preceding paragraph.
Mr. S. M. Abdul Wahab, ASC entered appearance of behalf of petitioner and urged with vehemence that the prosecution has failed to substantiate accusation by producing cogent and concrete evidence as no reliance could have been placed on the statements of Mst. Robina Kosar (PW-9), Mst. Shahnaz (PW-10/abductee) & Mst. Shahnaz Bibi (PW-11) being interested witnesses in absence of any corroboration which is lacking in this case. It is contended that no crime empty could be recovered from the place of occurrence and moreso no burning signs were deducted on the dead body, which belies the prosecution story that fire was made from a distance of about 2 1/2 feet. It is also pointed out that a dead body was found lying on cot which creates doubt as according to the prosecution, firing was made when Mst. Jannat Bibi attempted to rescue her daughter and hence the question of her lying on the cot does not arise.
We have carefully examined the contentions as agitated on behalf of petitioner, thrashed the entire evidence with eminent assistance of learned ASC on behalf of petitioner and perused the judgment of learned trial Court as well as the judgment impugned. After having gone through the entire evidence by keeping the defence version in juxtaposition we are of the view that prosecution has substantiated the accusation by producing worthy of credence and confidence inspiring evidence. In this regard the statements of Mst. Robina Kosar (PW-9), Mst. Shahnaz (PW-10/abductee) & Mst. Shahnaz Bibi (PW-11) can be referred. The eye account furnished by above named witnesses has rightly been appreciated by learned trial Court determination whereof has been upheld by the learned Federal Shariat Court by giving cogent and convincing reasoning. The statement of Mst. Robina Kosar (PW-9), Mst. Shahnaz PW-10/abductee) & Mst. Shahnaz Bibi (PW-11) are consistent, worthy of credence and straightforward. It is to be noted that they all stood firm to the test of cross-examination and nothing advantageous or beneficial could be extracted rendering any assistance to the case of petitioner. It is worth mentioning that being inmates of the house they were natural witnesses and cannot be termed as interested witnesses having no animus and rancour about the petitioner. Be as it may it is not a relationship and friendship but intrinsic value of the statements of witnesses which is required to be taken into consideration. The learned ASC was pointedly asked that as to why the eye account furnished by Mst. Robina Kosar (PW-9), Mst. Shahnaz (PW-10/abductee) & Mst. Shahnaz Bibi (PW-11) should be disbelieved, but no answer could be given except that in view of their interse relationship some independent witnesses should have been produced before the Court to substantiate the accusation which could not be done and benefit whereof may be given to the petitioner. We may mention here at this juncture that reluctance of general public to become witness by now has become judiciously recognized fact and it is an admitted fact that the public for certain obvious reasons does not cooperate with the police and nobody comes forward to get his statement recorded in order to avoid the complicated and time consuming process of the Courts. This aspect of the matter was discussed in case Mirza Shah v. State (1992 SCMR 1475) as under :--
"there is growing tendency, as has been observed in several judgments of the superior Courts, that public neither volunteers to become witness nor the eye-witnesses come forward to help the investigation. Such reluctance on the part of the general public may be due to various reasons including the fear from persons of impeachable character who are dangerous, desperate and revengeful. The other reasons are that generally the moral values have declined and also due to the faulty attitude of the police against which complaints have been made and the delays which occur in investigation and the trial of the cases. These facts are so prominent that it is difficult to ignore them. If one takes note of the non-cooperative attitude of the public witnesses for drawing certain inferences in favour of prosecution, then one cannot ignore the lapses in investigation and growing tendency to involve a large number of persons sometimes, by the complainants or the police. Therefore, it is not only the public but the officials as well who are to be blamed for such a situation. It has become a common feature which can be noticed that in cases of dacoity, kidnapping for ransom, recovery of big hauls of heroine drugs, and prohibited arms, the eye-witnesses prefer either to avoid or refuse to testify anything out of fear and risk to personal safety. These are some of the explainable factors and circumstances which may justify acceptance of testimony of police officer which otherwise does not suffer from infirmity. (Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607; Sultan and others v. The State 1987 SCMR 1177: Muhammad Afzal v. The State 1987 SCMR 1; Zardad v. The State 1991 SCMR 458; Muhammad Shah v. The State PLD 1984 SC 278; Malik Aman v. The State 1986 SCMR 17; Khair Gul v. The State 1989 SCMR 491: Rehman Ali v. The State 1984 SCMR 109; Ballia and others v. The State 1985 SCMR 854; Yar Muhammad and 3 others v. The State 1992 SCMR 96; Yamin Kumhar v. The State PLD 1990 Kar. 275; Mumtazuddin v. The State PLD 1978 SC 114; Muhammad v. The State PLD 1981 SC 635 and Muhammad Shafi and others v. The State PLD 1967 SC 167 ref."
As mentioned herein above the eye-witnesses being inmates of the family were natural witnesses and their statements cannot be discarded. It is well-settled by now "that an interested witness is one who have a motive for falsely implicating an accused. The concept of "interested witness" was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State (PLD 1962 SC 269). In Khalil Ahmed v. The State (1976 SCMR 161) the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses. In Allah Ditto and others v. The State (1970 SCMR 734) the testimony of four PWs. out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses, injuries sustained by two P.Ws proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others (PLD 1988 SC 274) and Shehruddin v. Allah Rakhia (1989 SCMR 1461 at 1465) where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not"
On the touch stone of the criterion as laid down in the above mentioned cases the statements of Mst. Robina Kosar (PW-9), Mst. Shahnaz (PW-10/abductee) & Mst. Shahnaz Bibi (PW-11) have been examined and we are of the view that they were not interested witnesses and their versions has rightly been considered and believed by the Courts below. We have also examined the defence version, which appears to be after thought and could not be substantiated by leading any convincing evidence. In view of the overwhelming evidence which has been produced by the prosecution the defence version has rightly been rejected by the Courts below.
We have also adverted to the contention of learned ASC that Mst. Jannat Bibi was found dead at her cot in oblivion of the fact that after she sustained serious injuries on her vital part she was brought to the cot and it was not something unusual which can cause any doubt. It is an admitted fact that crime empty could not be recovered but in view of the eye account furnished by Mst. Robina Kosar (PW-9), Mst. Shahnaz (PW-10/abductee) & Mst. Shahnaz Bibi (PW-11) duly corroborated by medical evidence it would have make no substantial bearing on merits of the case being supporting, corroboratory evidence. The prosecution has established the guilt to the hilt. The brutal murder of an elderly woman who had attempted to safe her daughter from the clutches of petitioner has been committed and hence question of any leniency does not arise. It would not be out of place to mention here that normal sentence of Qatl-e-Amad is death and in the absence of any mitigating or extenuating circumstances the sentence of death cannot be converted into life imprisonment as stressed time and again by the learned ASC on behalf of petitioner. In this regard we are fortified by the dictum laid down in Sakhawat v. The State (2001 SCMR 244), Muhammad Afzal v. Ghulam Asghar (PLD 2000 SC 12), Muhammad Nazir v. Tariq (1992 SCMR 983), Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452.) In the light of what has been stated above the petition being devoid of merit is dismissed and leave refused.
(Fouzia Fazal) Leave refused.
PLJ 2007 SC 297
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Muhammad Nawaz Abbasi, JJ.
RANJHA--Petitioner
versus
STATE--Respondent
Jail Petition No. 190 of 2005, decided on 4.5.2006.
(On appeal from the judgment of High Court of Balochistan, Sibi Bench, dated 15.6.2005 passed in ATA Appeal No. (S) 07/04).
Appreciation of Evidence--
----Identity of accused in daylight occurrence was free from any doubt--Ocular testimony of quite independent witnesses duly supported by medical evidence, recovery of empties from spot, post-mortem reports of two deceased and prompt lodging of FIR without any deliberation and exaggeration as well as attending circumstances was found turthful and confidence inspiring--Held: Minor discrepancy and contradiction pointed out in statement of witnesses being immaterial would be no significance.
[P. 300] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 34--Anti-Terrorism Act, (XXVII of 1997), S. 7(a)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused--Appeal was dismissed--Assailed--Leave to appeal--Appreciation of evidence--Day light occurrence--Occurrence took place in broad day light outside premises of District Courts and presence of witnesses at public place being not unnatural, they could not held as chance witnesses--Defence has neither been able to dislodge truthfulness of ocular account nor despite lengthy cross-examination to witnesses has been able to detect anything favourable to accused. [P. 299] A
Charge--
----Charge against petitioner stood proved beyond any reasonable doubt through direct evidence furnished by quite natural and independent witnesses--Impugned judgment would not warrant interference either on merits or on question of sentence--Leave refused. [P. 300] C
Mr. Amanullah Khan, ASC for Petitioner.
Raja Abdul Ghafoor, ASC for State.
Date of hearing: 4.5.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 15.6.2005 passed by a learned Division Bench of High Court of Balochistan, Sibi Bench, whereby criminal appeal filed by petitioner against the conviction and sentence of death awarded to him by learned Judge, Anti-Terrorism Court, Sibi, vide judgment dated 11.6.2004, under Section 302(b)/34 PPC read with Section 7(a) Anti-Terrorism Act, 1997, was dismissed and murder reference was answered in the affirmative.
The facts giving rise to this petition, in small compass, are that on 17.3.2003 at about 11.55 a.m., Muhammad Murad, complainant, lodged report with police station, Usta Muhammad, District Jafferabad to the effect that on the same date the complainant alongwith Pehalwan (PW 2) and Mian Dad (given up) at 11.30 met his uncle, Ghulam Hussain and nephew, Fateh Ali together with Muhammad Hassan his relative and Manzoor Ahmed, his tenant outside the Sessions Courts at Usta Muhammad. Fateh Ali who had an Alto Car, on asking of complainant to take them with him in car apologized because Ghulam Hussain, Muhammad Hussain and Manzoor Ahmed also had to go with him in the car and the moment Fateh Ali and his companions occupied their seats in the car, the petitioner (Ranjhan) and Shakal (absconding accused) armed with Kalashnikov, suddenly appeared at the scene of occurrence on a motorcycle and opened firing at the car as a result of which all the persons sitting in the car having sustained injuries died at the spot. The accused after firing at the deceased escaped from the place of occurrence. The motive for the occurrence was the suspicion of the petitioner regarding the murder of his brother, Andan, by Ghulam Hussain, nephew of the complainant, and his companions. The investigation of the case was carried out by Mushtaq Ahmed, S.I. (PW 9) who on completion of the formalities, submitted challan in Special Court established under Anti Terrorism Act, 1997, Naseerabad Division at Sibi and petitioner was accordingly charged under Section 302 (b)/34 PPC read with Section 7 (a) of Anti Terrorism Act, 1997. The prosecution in order to prove the charge, examined nine witnesses whereas the accused in his statement under Section 342 Cr.P.C pleaded innocence but did not prefer to make a statement on oath under Section 340 (2) Cr.P.C. or produce the defence evidence. The learned trial Judge, having found the petitioner guilty of the charge, convicted and sentenced him to death under Section 302 (b)/34 PPC read with Section 7(a) of Anti-Terrorism Act, 1997 and on dismissal of appeal preferred by the petitioner against his conviction and sentence by the High Court of Balochistan, he has filed the instant petition
Mr. Amanullah Khan, learned ASC, appearing on behalf of petitioner has contended that prosecution has not been able to prove the case against the petitioner beyond reasonable doubt and as such the conviction and sentence of death awarded to him is not sustainable being against the facts and law of the case. The learned counsel submitted that case against the petitioner was at par to that of Jaind Khan and Mehrulla, his co-accused, who have been acquitted from the charge of murder whereas he was held guilty and was awarded capital punishment despite the fact that sufficient material was available on record to suggest reasonable doubt regarding his involvement in the case. The learned counsel submitted that the trial Court as well as the learned Division Bench in the High Court without independent application of mind to the facts of the case having placed reliance on the testimony of the eye-witnesses who were certainly chance witnesses and were not only closely related to the complainant side, but were also interested, held the petitioner responsible for the murder. The learned counsel forcefully argued that the eye-witnesses were neither independent nor truthful and their deposition being suffering from material contradiction, was not at all reliable without independent corroboration which was not forthcoming and with the exclusion of their statements from consideration, there was no other evidence, direct or circumstantial to connect the petitioner with the commission of offence.
Raja Abdul Ghafoor, learned ASC, appearing on behalf of Advocate General, Balochistan, on the other hand while supporting the impugned judgment, has submitted that in view of the plausible explanation given by the witnesses regarding their presence at the spot coupled with the fact that FIR was lodged without any loss of time, there was not even a remote possibility of deliberation and false implication. The learned counsel submitted that minor contradictions and discrepancies in the evidence, pointed out by the learned counsel for the petitioner being natural, would be of no significance.
Having heard the learned counsel for the parties and perused the record with their assistance, we have found that the charge against the petitioner stood proved beyond any reasonable doubt through the direct evidence furnished by the quite natural and independent witnesses and have not been able to find out any legal and factual infirmity in the findings of the two Courts regarding guilt of the petitioner calling for our interference.
In the light of foregoing reasons, we do not find any substance in this petition and the same is accordingly dismissed. Leave is refused.
(Anwar Saeed) Leave refused.
PLJ 2007 SC 300
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Faqir Muhammad Khokhar & Mian Shakirullah Jan, JJ.
FEDERATION OF PAKISTAN through Secretary Ministry of Finance
& others--Appellants
versus
HAJI MUHAMMAD SADIQ & others--Respondents
Civil Appeals Nos. 2296 to 2412 of 2001, alongwith 2707 to 2717 of 2001, 516 of 2002, 934 of 2002, 1087 to 1091 of 2004, 2254 to 2403 of 2005, 2410 to 2423 of 2005 and 2433 to 2436 of 2005, decided on 22.2.2006.
(On appeal from the judgment & order of Lahore High Court, Lahore dated 4.4.2002 in W.Ps. No. 151/94, 1082/93, 3895/92, 12059/97, 743/93, 744/93, 795/93, 742/93, 918/96, 2512/97, 10691/95, 5686/96, 4915/95, 4919/95, 4917/95, 4918/95, 776/93, 4916/95, 12010/92, 12011/92, 685/93, 22007/92, 12139/92, 101/93, 11060/92, 102/93, 12091/92, 12014/92, 12092/92, 11059/92, 12013/92, 11061/92, 12008/92, 12012/92, 3730/96, 2063/96, 12143/92, 12141/02, 12142/02, 4599/94, 16565/96, 4599/94, 2293/97, 16567/96, 12768/96, 11238/97, 1267/96, 12120/01, 20059/96, 20060/96, 2901/93, 3309/93, 3513/97, 4073/97, 7039 to 7041/93, 2454/93, 2523/93, 2526-2530/93, 3995/93, 14284/93, 14285/93, 243/93, 436/93, 492/93, 2525/93, 2531/93, 5317/93, 11294/95, 1407/92, 13775/96, 3543/93, 509/93, 1083/93, 2524/93, 322/94, 989/93, 3000/94, 3001/94, 3004-3005/94, 13894/94, 8113/95, 8115/95, 8116/95, 8117/95, 987/93, 17214/96, 17215/96, 17218/96, 10057/97, 10045/97, 10061/97, 10063/97, 13179/96, 613/96, 12333/92, 10054/97, 2593/96, 611/96, 2594/96, 2592/96, 609/96, 2595/96, 606/96, 610/96, 605/96, 607/96, 4099/93, 10055/97, 12334/92, 10056/97, 612/97, 608/96, dated 20.8.2002 in W.Ps. No 3896/1992, dated 4.4.2002 in W.Ps Nos. 2596/96, 1408/93, 5412/93, dated 24.9.02 in W.Ps No. 18702/2001 dated 4.4.2002 in W.Ps No. 1884/96, 20753/96, dated 18.6.02 in W.Ps No. 319/93 and dated 4.4.2002 in W.P. No. 7078/1993)
(i) Central Excise & Salt Act, 1944--
----S. 7(1) r.w. Item 14.14. Column II--Word, "Advances"--Connotation of--Held: Ordinarily the meanings of `advances' also includes a "loan" and an "action to recover it", S. 7(i) defines the forms of business in which banking company may engage including borrowing, or taking up of money, lending or advancing of money either upon or without security.
[P. 318] D
(ii) Central Excise and Salt Act, 1944--
----S. 3 r.w. Item 14.14 of Schedule Part-II--Held: S. 3 being a charging section, deals in respect of duties specified in the first Schedule to be levied--Under Column III of Item 14.14 the legislation has provided a device to calculate the duty at the rates in acceptable manner to fulfill requirements of S. 3. No. ambiguity or vagueness can be attached to contents of Column II for the purpose of declaring the provision as vague or unspecified--There is no inconsistency between the Act and Item 14.14 and this Item of the schedule for all intends and purposes shall be deemed to be a part of S. 3. [Pp. 322, 323 & 324] H, I, J & K
(iii) Central Excise and Salt Act, 1944--
----S. 3 r.w. Item 14.14.--Levy of excise duty--Held: Levy of excise duty is dependent upon the services which are being paid/offered in respect of the advances to a person but no sooner when there is no advance it would be deemed that bank is neither providing nor rendering any service because the transaction has come to an end between a bank and the customers. [P. 328] L
(iv) Constitution of Pakistan, 1973--
----Arts. 199 & 25--Constitutional Petitions by companies--Maintainability--Held: The companies have got fundamental rights to carry on business through their representatives who are the citizens of Pakistan but for the purposes of challenging the Constitutionality of a statute, it would be a condition precedent to satisfy that challenge is made by a citizen--An incorporated company does not fall within the definition of citizen, however Constitutionality of a statute can be examined for violation of Art. 25, if the vires has been questioned by a share-holder or director alongwith the company itself. [Pp. 329 & 332] M & N
(v) Interpretation of Statutes--
----The words facilities, utilities, loans and advances are to be used in popular sense in view of the cardinal principle that a law should be interpreted in such a manner that it should be saved rather than destroyed. [Pp. 318 & 319] E
(vi) Interpretation of Statutes--
----Schedule appended to a statute--Legal status of--Held: A schedule placed/appended with enactment is an extension of the section for the purpose of which it has been inserted--In case of irreconcilable inconsistency between the charging section and a schedule, former is to prevail and schedule is to yield to the Act. [P. 321] F & G
(vii) Interpretation of Law--
----In absence of clear intention of the legislature to apply a provision of statute with retrospective effect it would be deemed that it would be applicable prospectively. [P. 332] O
(viii) Words and Phrases--
----Word `facility'--Connotation of--According to dictionary facility means in banking is referred as an arrangement between bankers and customers for the use of a banking service e.g. deposit, collection, documentary credits--Overdraft and the loans are available if required upto a given amount. [P. 314] A
(ix) Words and Phrases--
----Word "Service"--Connotation of--Held: Service means the service of any description which is made available to potentional users and includes the provisions of facilities in connection with banking financing, insurance, medical assistance, legal assistance or something provided usually for a fee, that may not be classified as a manufacturing or production in any form as such legal advice procrage agency services and financial advice.
[P. 314] B
(x) Words and Phrases--
----Word Services'--Expression--Judgment in case of
Abdul Rahim vs. UBL (PLD 1997 Kar. 62) for the purpose of defining the expressionservices' is not applicable and the expressions/words used in S.
2(20) of the Act 1944 and Item 14.14 are to be interpreted independently keeping in view their popular meanings. [P.
318] C
PLD 1983 Kar. 214; PLD 1990 SC 68; 1992 SCMR 1652; PLD 1988 SC 370; PLD 1997 Kar. 62; 1992 SCMR 663; PLD 1991 SC 329; PLD 1997 SC 582; 2003 PTD 1017; 1989 176 ITR 481; AIR 1968; SC 22; PLD 1966 SC 738; PLD 1995 SC 423; PLD 2000 SC 111; AIR 1989 SC 2015; [1985] 155 ITR 144; 1999 PTD 1135; PLD 2005 SC 873; 1999 SCMR 526; PLD 1998 SC 1445; 1993 MLD 1571; 2001 MLD 1351; 1973 SCMR 445; 1892 AC 150; 1992 PTD 726; 2001 SCMR 1208; PLD 1991 SC 329; PLD 1997 Kar. 604; PLD 2001 SC 340; AIR 1981 SC 1368; AIR 1979 SC 25; AIR 1979 SC 65; PLD 1958 Lah. 887; AIR 1970 SC 564; AIR 1975 SC 32; AIR 1983 SC 937; 2002 CLC 1714; 2003 PTD 1017; 1993 SCMR 1232; 1991 SCMR 1041; 1992 SCMR 563; PLD 1996 SC 324; PLD 1987 SC 304; PLD 1984 SC 38; 1993 SCMR 1905 & PLD 1993 SC 176, ref.
Mr. Imtiaz Rasheed Siddiqui, ASC with Sh. Salahuddin, AOR for Appellants (in C.As. 2254-2256, 2260-2261, 2262, 227, 2287, 2290-2292, 2297-2300, 2301, 2303, 2318, 2322, 2327, 2329, 2349, 2350, 2395/2005).
Syed Ali Zafar, ASC with Ch. Arshad Ali, AOR for Appellants (in C.As. 2257, 2288, 2289, 2304-2308/2005).
Syed Najmul Hassan Kazmi, ASC (in 2258-2259/2005).
Mr. Shahid Hamid, Sr. ASC for Appellants (in C.As. 2263-2265/2005).
Khawaja Muhammad Akram, ASC for Appellants (in C.As. 2293-2296, 2323/2005).
Mr. Muhammad Akram Sheikh, Sr. ASC for Appellants (in C.As. 2310-2317,2325-2326/2005).
Raja Muhammad Akram, Sr. ASC for Appellants (in C.As. 2259, 2311, 2330-2338, 2340-2347, 2349, 2352, 2353, 2365, 2367-2369, 2375, 2376, 2385-2388/2005).
Sh. Shahid Waheed, ASC for Appellants (in C.As. 2337-2339/2005).
Mian Abdul Rauf, ASC for Appellants (in C.As. 2344 & 2352/2005).
Ch. Muhammad Anwar, ASC for Appellants (in C.As. 2348, 2354 & 2364/2005).
Mr. Tariq Mehmood Khokhar, ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent for Appellants (in C.A. 2332/2005).
Mr. Waseem Sajjad, Sr. ASC Mr. Muhammad Sheikh, Member (Legal) CBR for Appellants (in C.As. No. 2410-2412 of 2005).
Mr. Khalid Anwar, Sr. ASC with Mr. M.S. Khattak, AOR for Respondent (in C.As. No. 2410-2412 of 2005).
Mr. Muhammad Azeem Malik, ASC for Appellants (in C.As. 2433 & 2434/2005).
Ch. Muhammad Anwar Khan, AOR for Appellants (in C.As. 2435-2436/2005).
Mr. M.S. Khattak, AOR for for Respondents (in C.A. 2433/2005).
Date of hearing: 20, 21, 22.2.2006.
Judgment
Iftikhar Muhammad Chaudhry, C.J.--These appeals are by the leave of the Court against judgments passed by High Court of Sindh dated 22.12.2000 & 23.10.2001 and Lahore High Court dated 4th April 2002 and 27th
May, 2004 respectively whereby divergent opinions were expressed respectively about the Constitutionality of the item 14.14 incorporated in the 1st Schedule of the Central Excise and Salt Act, 1944 (herein after referred to asthe
Act, 1944'). Concluding paras from both the judgment are reproduced thus:--
Impugned judgment of the High Court of Sindh at Karachi: "The learned counsel for the parties relied on the following case laws in support of their contentions, Pakistan through Secretary, Ministry of Commerce and two others Vs. Salahuddin and three others (PLD 1991 SC 546), Ram Nawaz Guppy and others Vs. State of Haryana through Secretary Local Self Government, Federation of Pakistan and others Vs Ch. Muhammad Aslam and others 1986 SCMR 916, Al-Samreze Enterprises Vs. Federation of Pakistan (1986 SCMR 1917, 1918), Government of Pakistan and another vs. Messes Mardan Industries Ltd (1988 SCMR 410), Colony Sarhad Textile Mills Ltd, Nowshera Vs. Superintendent Central Excise and Land Customs, Muhammad Younas Vs. Central Board of Revenue Government of Pakistan and others (PLD 1964 SC 113), Government of Pakistan and others Vs. Muhammad Ashraf & others (PLD 1993 SC 176), Government of Pakistan & other Vs. Messes Hashwani Hotel Ltd. (PLD 1990 SC 68), Mondi's Refreshment Room & Bar Karachi Vs. Islamic Republic of Pakistan and others (PLD 1986 Karachi 214), M/S Abdul Wahid. Abdul Majeed Vs. Government of Pakistan & others (1993 SCMR 18) Central Insurance Co. Ltd Vs. CBR (1993 SCMR 1232), CIT Vs. Noor Hussain (PLD 1964 SC 657), State of Madras Vs. Garrission (1958 SC 560), Zaman Textile Mills Ltd. Vs. CBR (PLD 1993 SC 305) Madrass Trading Vs. Federation of Pakistan (1993 SCMR 1905), CIT Vs. Olympia (1987 PTD 739), South Biohar Sugar Mills Ltds. Vs. Union of India (AIR 1968 SC 922) Abdul Rahim Vs. UBL (PLD 1997 Karachi 62), Shamres Khan Vs. Muhammad Amin (PLD 1978 SC 89). Hirjina Vs. Islamic Republic of Pakistan (1993 SCMR 1342), PIDC Vs. Federation of Pakistan (1992 SCMR 891), CIT Vs. SK & F (PTCL 1993 CL 89), Tola Ram Vs. State of Bombay (AIR 1954 SC 496), State of Madras Vs. Chittuni (AIR 1957 AP 675) Berger Vs. Industry (1900) 20 B 348, Brett Vs. Rajers (1897) IQB 525, Lord Ghanely Vs. Winghtman (1933) AC 618.
In a result the petitions are allowed, however, there shall be no order as to costs "
Impugned judgment of Lahore High Court: We, therefore, dismissed all the writ petitions mentioned in part-I of the Schedule. The petitions enumerated in Part-II thereof do not have nexus with the questions heard and decided in these cases and same shall be re-heard and decided in these cases and same shall be re-heard by the learned Single Bench of this Court. Office to take orders from the Hon'ble Justice in this regard."
Learned Lahore High Court Lahore vide impugned judgments dated 4.4.2002 and 27.5.2004 declared Item No. 14.14 intra vires to the Constitution of the Islamic Republic of Pakistan whereas the learned High Court of Sindh, vide impugned judgment dated 22.12.2000 & 23.10.2001, held to the ultra-vires to the Constitution.
As both the judgments passed by learned High Courts, are under challenge therefore, we intended to dispose them of by instant judgment.
The legislative history of the impugned item 14.14 is like this levy was on, Excisable Goods' but in 1970, levy onexcisable services' was made chargeable by virtue of following amendment of the Act 1944:-
S.2 (20) `excisable services' means services, facilities and utilities specified in the First Schedule read with Chapter 98 thereof, including the services, facilities and utilities originating from Pakistan or its tariff area or terminating in Pakistan or its tariff area".
"In view of the above amendment original Section 3-C was renumbered as sub-section (1) of section 3-C by the Act 1991. For convenience same is reproduced herein below:--
S. 3-C Determination of tariff value and rate of duty:
(1) The value, retail price, tariff value of and the rate of duty applicable to, excisable goods or services shall be the value, retail prices, tariff value and the rate of duty in force:--
(a) In the case of goods, on the date on which the goods are cleared for export or for kind consumption;
(b) in the case of services, on the date on which the services are provided or rendered; and
(c) ..........
(d) ..........
In Part-II of the First Schedule of the Act 1944 following item was added by the Finance Act 1991:
14.14 Services provided or rendered by banking companies, financial institutions, insurance companies other lending banks or institutions and other persons dealing in advancing of loans, in respect of advances made to any person.
1/12th of 1% of the amount each advance outstanding on the last working day of each calendar month."
The Federal Government through SRO No. 706(1)/91 dated 4th August 91 added Rule 96 `ZZI' to the Rules of 1944. Sub Rule-1 which being relevant is reproduced herein below:--
96 ZZI(1) "All banking companies, financial institutions, insurance companies, cooperative financing societies, other lending banks or institutions and other persons dealing in advancing of loans hereinafter called company, shall pay the central excise duty leviable on the advances made by the company to any person. "
"(13) In our considered opinion the key questions which revolve round these petitions are the following two connected issues:--
(a) while imposing central excise duty on goods or services under the 1944 Act, can the legislature bring within the tax net any transaction or event which otherwise on a plain, ordinary and grammatical meaning of the terms may be no stretch of imagination be construed as goods' orservices';
(b) only if the answer to the first issue is in the negative, whether in fact the grant of advances or loans, especially their quantum in its ordinary signification be construed as services`;
Learned High Court to find out meanings of excisable service' relied upon judgment in the case of South Behar Susar Mills Ltd. v.
Union of India (AIR 1968 SC 922) wherein it was held that as the Act does not define the termgoods, the Legislature must be taken to have used that word in its ordinary dictionary meaning and concluded that as this expression
(services) has also not been defined, therefore, "the Court will have to look at the pith and substance of the subject-matter of tax, to ascertain whether in ordinary signification the same can be construed asservice. It was further held that Entry 44 of the Fourth Schedule of the Constitution of
Pakistan, 1973 empowers the Federal Legislature to impose duty of excise.
Originally in Pakistan, Central Excise duty was levied only on manufacturing of goods and not on services. However, through the Finance Ordinance, 1970 services were brought within the tax net. This amendment was challenged and this Court in the case of
Hirjina & Co. Vs. Islamic Republic of Pakistan (1993 SCMR 1342) held that the levy i.e excise duty on services had been saved by Article 278 of the
Constitution. If this is so then the termservices" has to be read as part of Entry 44 of the Fourth Schedule of the Constitution which prescribes the levy of central excise duty, as has already stated above. Once the term
`services' is read into Entry 44, it is the fundamental principle of interpretation of Constitutional entries that Courts have to look whether in pith and substance the subject-matter of the levy in question comes within the ambit of Constitutional Entry. No doubt the Courts have to give a very liberal and stretch connotation to Constitutional entries, however, at the end of the day in pith and substance, the ordinary grammatical and literal meanings of the terms will have to be seen. To support the arguments help was sought from Elahi
Cotton Mills Ltd. Vs. Federation of Pakistan (PLD 1997 SC 582), Pakistan
Industrial Development Corporation Vs. Pakistan (1992 SCMR 891, United
Provinces VS. Atiqa Begum (AIR 1941 FC 16) and Navinchaandra Mafatlal Vs.
Commissioner of Income Tax ([1954] (XVI) ITR 758) as a result whereof Issue (a) was decided in negative.
As far as Issue (b) is concerned, it was decided that in the case of Abdul Rahim V. UBL (PLD 1997 Karachi 62) mere advancement of loans or finances by the Banks to customers would not amount to rendering of services. This would be more so when the advancement of loans was structured on the Islamic mode of financing. It may be noted that the High Court also interpreted the expression "in respect of" in item No. 14.14 and held that it is relatable to which on a plain reading implies that what has been taxed is not mere advancement of loan but rather services which may have been rendered in relation to give all such loans. The observation in Abdul Rahims case(ibid) do not apply because it is altogether in different fields/areas of law. The observations therein were made in the context of banking laws and in these petitions the fact that the grant of loans/advancement constitutes services can only be answered by recourse to banking concepts and laws. The definition of "banking" as appearing in Section 5 read with Section 7 of Banking Companies Ordinance, 1962 confirms that banking is business and notservices`. The fact that Item 14.14, Column two imposes the charge on
"services" in respect of loans and not on loans/advances per se is obvious from a plain reading of the statute. In fiscal statutes the Court cannot supply any omission or extra words or cannot change the expression used in the statute on grounds that the Legislature would have used a different word had it thought about it i.e there is no scope for any intendment. Reliance in this behalf was placed on Bisvil Spinners v. Superintended Central Excise (PLD 1988 SC 370). As a result of this discussion the Court held as follows:
(a) mere advancement of loans or financial facilities, or quantum thereof, does not constitute rendering of services and hence the same cannot be subjected to central excise duty;
(b) on a plain and grammatical reading of Item 14.14 Column two, the charge or levy is not on the mere advances or loans but any services which may be rendered with regard thereto, in relation thereto or in respect thereof.
It is further held that Column III of Item 14.14 has provided a fatal blow to the validity of the levy. According to it a yardstick of measure the levy is the outstanding balance of the loan/advance at the end of every month, whereas the charge is on services "in respect of loans or advances. The two had no correlation. The amount may be greater and services rendered very meager, or vice versa. Both in Pakistan and India now it is an established principle of taxing law that the yardstick to measure the tax, must have nexus with the nature and the character of the subject-matter of the tax. In this case this nexus is missing and the levy also fails.
It was also held that even if the levy had been sustained as lawful it could not have been given any retrospective operation to affect contracts of loans already concluded between the parties before introduction of the levy. This is so since no retrospectivity has been found to be expressed or implicit. Also if the impugned levy was found to be retrospective, it could not have affected transaction past and closed as held by a Division Bench of this Court in Ghulam
Hyder Shah v. Chief Land Commissioner (1983 CLC 1585) that even where law is given a retrospective expression it can not effect transactions past and closed. Also it appears relevant to mention that in Item 14.14 the law has intended a one-time levy by use of expression "provided" and
"rendered", in other words the calculation of the levy on a continuing basis i.e. according to the balance of outstanding loans every month, as mentioned in the third columns of Item 14.14 conflicts the charge mentioned in the second column of item No. 14.14. In Elahi Cotton Mills (PLD 1997 SC 582) the Supreme Court found the levies to be intra vires on the ground that in pith and substances taxes on sales and purchases were covered by the
Constitutional entries listed out in the fourth Schedule of the Constitution. A true interpretation of Elahi Cotton would be that since Entry 49 of the 4th
Schedule of the Constitution had prescribed taxes on sales and purchases, to challenge that the taxes introduced through Sections 80-C, 80-CC and 80-D fell outside the scope of Entry 47 was rather immaterial, since the same could fall under Entry No. 49.
It was further observed that the Court should lean in favour of finding possible explanations to uphold rather than destroy legislation but that is only the first principle. The second principle as held in Sabir Shah vs. Shad Muhammad Khan (PLD 1995 SC 66) is that where on a plain reading of statute and the Constitution, the legislation is so ultra vires that it cannot be saved despite a very liberal connotation, it is the duty of the Court to strike the same down since the principle regarding presumption of Constitutionality of laws is only rebuttable presumption.
In Elahi Cotton Mills case it has also been held that question as to whether laws are intra vires or ultra vires do not depend upon the consideration of the jurisprudence or policy but depend simply on examining the language of Constitution and of comparing the legislative authority conferred on the parliament with the provisions of the sub-Constitutional law by which the parliament purports to exercise that authority.
Elahi Cotton Mills case says that a very liberal interpretation is to be given to fiscal legislation.
(1) Section 3 of the Act 1944 provides for levy and collection of duty of excise on all excisable services provided or rendered in Pakistan while Section 3-C(1)(b) of the said Act classifies the said charge with reference to the date on which services are provided or rendered.
(2) Section 3-C(1)(b) provides that value of the services as also rate of duty applicable them to shall be one enforced on the said date i.e. on which the services are provided or rendered.
(3) Item No. 14.14 (now 9813.0000) of the schedule is not in harmony with the said provision of Sections 3 and 3-C(1)(b) of the said Act. There is no nexus between the said item of the first schedule on the one hand and the said charging and computing provisions on the other.
(4) The services which have been made chargeable to the said duty have not been specified in the said schedule and as such the rule applicable for the interpretation of the said term would be itself clear dictionary meanings i.e. definition of terms loans in other statutes are not to be imported into the said Act 1944.
(5) The transaction based on mark up would not be falling within the meaning of term
loan.
(6) That services sought to be charges have not been defined. Item 14.14 provides for levy of the duty in respect of services provided or rendered in respect of leasing and these have no relation to the amount of lease.
(7) That only charge for services rendered or provided by Leasing Company being the said one-time services, there cannot be imposition of continuous charge as provided in column No. 3 of the said item. The law is violative of the Item 14.14 of the Federal Legislative list inasmuch as Government has proceeded to tax loans or lease itself and not the services rendered by the bank or the leasing company. In view of provision of Section 3 and Section 3-C(1)(b) of the Act 1944 the duty could not have been levied with retrospective effect inasmuch as services already rendered before imposition of the duty are sought to be charged.
(8) In the matter of Musharka there is a sale arrangement and not concept of loan or advance, also insist that banking loans are not to be referred to in the matter of ascertaining the meanings of terms `loans and advances' and ordinary dictionary meaning would be applicable.
(9) Levy is to be on the person providing services and borrower/customers/lessees are not to be burdened. The term `advance' has not been defined and whereas loan may be subject to the said duty Modarba cannot be also charged.
(10) Act of 1944 provides for levy of duty on services rendered or provided on services one time and there is no concept of recurring imposition and there is no co-relation interse the services and manners in which the duty has been imposed. The duty has in fact been imposed on the services rendered by the bank and leasing company. The mode and quantum of charge, same cannot be challenged. Maintenance of accounts and book-keeping by the said companies are continues services being provided and as such there is no violation of Section 3-C of the said Act. Section 4(3) of the Act 1944 does not prohibit imposition of duty on the basis other than charges for the services.
(11) Schedule is part of the Act and in case of inconsistency it is the schedule which is to prevail.
(12) Duty is payable by the banks and companies who passed on the burden to the customers and borrowers under the agreements between the said parties. Thus said customers, borrowers and lessees have no locus standi to file the petitions to challenge the said levy.
The Conclusion drawn by the High Court in respect of above questions is as under:--
A plain reading of Item 14.14 (presently 9831) leaves one in no manner of doubt as per column 2 of the said Item it is not advances, loans, lease or Musharka finance which has been subject to the levy of the duty of excise rather it is services provided or rendered in respect thereof which have been subject to the said duty.
U/S. 3 what has been made subject to levy of the duty of excise are not goods or services but excisable goods and services. The said Statute defines excisable services to mean services, facilities and utilities in First Schedule read with chapter 98 thereof including services facilities and utilities originated. As per the judgment in Hirjina & Co. (1993 SCMR 1342) Section 3 has been declared Constitutionally valid. The judgment relied upon by the Sindh High Court reported in AIR 1968 SC 922 and PLD 1997 Karachi 62 are distinguishable. The latter judgment has been delivered with reference to banking laws which cannot be merged into the cases of Act 1944.
In the case of A&B Food Industries Ltd vs. Commissioner of Income/Sales Tax Karachi (1992 SCMR 663) the tax payer sought refund of sales tax on the ground that the payment of sales tax has been exempted on the goods in question but they were made to pay the same on the basis that legislature had merged the sales tax into enhanced rate of excise duty payable on the same. The precise plea was that the real character of the said levy of excise at the enhanced rate be determined and veil be lifted so as to expose the component of the said rate. The Supreme Court observed that no doubt the Court is competent to determine the real nature of particular revenue with reference to the relevant statute but observed that the above rule does not empower a Court to read something into a clear provision of a taxing statute. Similar observations were made by Mr. Justice Cornelius in the case of Commissioner of Agricultural Income Tax East Bengal vs. B. W.M. Abdul Rehman (1973 SC 445) (Para has been reproduced at page 30). Similar reference from the judgment of Lord Halsburry in the case of Tanant Vs. Smith (1892 AC 150) was made, "reproduction is at page 30). On the basis of these two judgment the High Court concluded that levy has been imposed on services being provided by the said financial institution instead of loans, advances, lease and Musharka finances and not on the loan, advances, lease and Musharka itself.
It is the banking company, financial institution, insurance company, cooperative financing society and lending bank or any other company or association of persons dealing in advancing of loans or providing services of leasing or Musharka finances who are to pay said excise duty. As to the mechanism of arranging the payment the matter is between the said companies and their clients, borrowers, customers, lessees.
In view of the judgment in the case of Excise and Taxation Officer Karachi Vs. Burma shell Storage and Distributation Company of Pakistan (1993 SCMR 338) if there is inconsistency between the schedule and Section 3-C(1)(b) of the Act 1944 the substantive portion of the Act will prevail. However, on having examined the provisions of Section 3-C(1)(b) and Section 4(3) of the Act there is no consistency between them.
As far as reasonability of the rate of duty is concerned, in view of the commentary reproduced in PLD 2001 SC 340 from NS Bindra`s "interpretation of statutes" (7th Edition at Pg P 771) and PK Kutty Haji (1989) 176 ITR 481 that "Judicial approach throughout has been to allow the legislature flexibility at the joint, particularly when a taxing statute is under attack". This principle has also been reiterated in the case of M/s. Elahi Cotton Mills vs. Federation of Pakistan (PLD 1997 SC 582) therefore, rate of the tax cannot be questioned.
Mr. Waseem Sajjad, learned senior ASC contended that as per the definition of excisable services u/S. 2(20) of the Act 1944, the Federal Government has been empowered under Part-II Schedule 1 of the Act 1944 to recover duty for providing service of banking which includes processing of application for loan, maintaining ledger/account and undertaking of other acts necessary to keep the borrower updated. He further explained that the word loan, facility, utility and advance has been used in its popular meanings in Item 14.14.
Mr. Abdul Karim Malik, Sr. ASC and Mr. Ahmar Bilal Sufi, ASC, supported his contention and to elaborate their arguments preferred to dictionary meaning of the term ' services and advances'.
Mr. Khalid Anwar, learned Sr. ASC who has advanced leading arguments contended that duty of excisable services on loan facilities, utilities and advances under Section 3 read with Section 3-C(l)(b) of the Act 1944 and Item No. 14.14 of part-II of the First Schedule, cannot be recovered as with effect from 1st July 1984, the banking system in Pakistan has shifted over to Islamic modes of financing and according to the spirit of this system instead of loaning the amount, the banks enter into a trade agreement with the borrower with latest commitment to pay extra amount other than the amount which has been obtained by a purchaser for running the business or trade. Learned counsel placed on record BCD-13 which find mentioned in respect of elimination of RIBA from the banking system. Reliance in this behalf has been placed by him on the case of Abdul Rahim (ibid). He further stressed with vehemence that a banking or financial institution does not render any extra service to the customer/borrower as it is their duty to provide them service for completion and maintaining of the bank accounts for which at the end of each transaction, charges for the service are separately recovered, therefore, extra burden cannot be placed upon the borrower by compelling them to pay duty on the services provided/rendered by the bankers.
We have heard learned counsel for both the sides and have gone through the relevant documents placed on record. It would be appropriate to note briefly legislative history of Section 3 of the Act 1944 for purpose of understanding the concept of excisable services on which for the first time excise duty was imposed. Prior to 29th
June 1970, there was no concept of charging duty on excisable services and for the first time by means of Finance Ordinance 1970 (Ordinance XI of 1970) its definition was provided by which in clause dd' was incorporated in Section 2 of the Act 1944, which defines the "excisable services". According to which "excisable services" means services, facilities and utilities specified in part II of the First Schedule as being subject to a duty of excise. By means of same Ordinance, sub-section (1) of the original sub-section 3 was substituted which provides "there shall be levied and collected in such a manner as may be prescribed duties of excise onexcisable goods' produced or manufactured and on all `excisable services' provided or rendered in Pakistan, as and at the rates set forth in the first schedule". Later on definition clause (dd) of Section 2 of the Act, 1944 was substituted with
Section 2(20) by means of Finance Act, 1995, which has already been reproduced herein above. It is equally important to note that subsequent thereto, Section 3-C was also inserted by the Finance Ordinance 1983. Relevant provision there from i.e 3-C (1)(b) dealing with the' case. of services has already been reproduced above.
The Constitutionality of Section 2(dd) and Section 3 of the Act 1944 came for consideration in the case of Mondis Refreshment Room
& Bar, Karachi Vs. Islamic Republic of Pakistan (PLD 1983 Karachi 214) wherein it has been held that if the legislature is competent to levy a tax or duty it could do so by providing for the same either-in existing Act or by passing independent Act. The judgment in Mondis Refreshment Room(ibid) came up for consideration before this Court in the case of Hirjina & Co. (ibid).
After examining the Constitutionality of Section 3(1) this Court declared it to be valid law for all intents and purposes taking into consideration the provisions of the Constitutional documents applicable at that time. Thus question of validity of charging duties on excisable services is not open for further discussion.
Now turning towards the arguments of Mr. Waseem Sajjad, learned counsel for the appellants who filed appeals on behalf of the Federation against the impugned judgments passed by High Court of Sindh. It is to be observed that the duty is being charged as per item 14.14 on the services provided or rendered not only by banking companies, financial institutions, insurance companies, other lending banks or institutions and also persons dealing in advancing of loans in respect of advances made to any person. He emphasized that facilitating the processing, completion and handling all the accounts of borrowers/customers to whom loan has been provided, tantamounts rendering `excisable services' and in lieu of the same the legislature is empowered u/S. 3 of the Act 1944 to recover duties as per the rate set forth in the First Schedule. To support his arguments he quoted following part from the case of Hirjina (ibid):
The appellants in Civil Appeals Nos. 101-K to 107-K were selling alcoholic liquor for consumption on their premises. It was urged on their behalf that they did not provide any services to the consumers and as such they did not render any excisable services and for that reason the demand of excise duty from them was illegal. There is no merit in this contention. The appellants did provide services to their clients by affording them the facility of consumption of liquor in their premises and as such they cannot avoid the liability to pay excise duty."
In this behalf it would be appropriate to attend to the contention raised by learned counsel for respondents, Mr. Khalid Anwar, learned
Sr. ASC whose arguments have been adopted by majority of the counsel appearing for different respondents. It is true that from 1st July 1984, the banks had adopted Islamic modes of financing and the expression loans, interest' etc.
is alien to such system as learned counsel has explained in his arguments, referred to above. The proposition can be attended from two different angles, keeping in view the definition of excisable services u/S. 2(20) wherein for the purpose of defining excisable services expression facilities and utilities has been used. According to the dictionary, facility meansin banking this is referred as an arrangement between bankers and customers for the use of a banking service e.g. deposit, collection, documentary credits etc.
Alternatively it is an understanding that over draft and the loans are available if required upto a given amount, [Klein, judicial dictionary, 13th addition, pg 393.] At this juncture definition of the word service as per dictionary meaning may not be out of context, As per advanced Law Lexicon 3rd Edition volume 4
(2005), it means service of any description which is made available to potentional users and includes the provisions of facilities in connection with banking financing, insurance, medical assistance, legal assistance or something provided usually for a fee, that may not be classified as a manufacturing or production in any form as such legal advice, procrage, agency services and financial advice (international account; business; insurance).
It is the case of the respondents that in terms of Sections 5 and 7 of the Banking Companies Ordinance, 1962 it is the duty of the bank to facilitate its customers for the purposes of handling their accounts which include depositing, processing of the applications, encashing of cheques etc., therefore, the bank is not providing an extra service entitling it to charge duties.
Learned counsel for the respondents contended that Hirjinas case (ibid) is distinguishable on this point, because it pertains to supply of eatable etc. in the hotel for which a service is provided, whereas bank does not provide any service. The argument so raised by him has no force in view of the definition of the wordfacility of the service' noted herein above. We are inclined to agree that the bank is bound to handle the cases of their customers/borrowers as it has been prescribed under the Banking Companies Ordinance, 1962 but we have to keep in mind that a duty of excisable service is not charged only by the banking companies but by other financial institutions, insurance companies and other persons dealing in advancing of loans as per the language of item 14.14 as well. He stated that language implied in fiscal statute is required to be interpreted in its literal and ordinary meanings, in favour of tax payers, as it has been held in the case of Government of Pakistan Vs. M/s. Hashwani
Hotel Ltd. (PLD 1990 SC 68), M/s. Army Welfare Sugar Mills Ltd. Vs. Federation of Pakistan (1992 SCMR 1652), M/s. Bisvil Spinners Ltd. Vs. Superintendent
Central Excise & Land Customs (PLD 1988 SC 370), Abdul Rahim Vs. United
Bank Ltd. (PLD 1997 K 62).
As far as the question of interpreting fiscal statute is concerned, it has been discussed time and again by this Court in the judgments which have been relied upon on behalf of the respondents and in number of other cases. However, the proposition in the case in hand is some what different. Here we have to ascertain as to whether excise duty can be recovered on the services in terms of Section 2(dd) read with 3 of the Act 1944, on the services provided or rendered by the bank, therefore, it is obligatory to examine the characteristics of the duty as discussed by this Court in the case of A & B Food Industries Ltd. Vs. Commissioner of Income/sales tax Karachi (1992 SCMR 663), Sohail Jute Mills Ltd. and others Vs. Federation of Pakistan (PLD 1991 SC 329). However, a larger Bench comprising five learned Judges of this Court on having surveyed the judgments from our own jurisdiction and across the border finally laid down principles in the case of M/s. Elahi Cotton Mills Ltd. Vs. Federation of Pakistan (PLD 1997 SC 582) and ICC Textiles Ltd. VS. Federation of Pakistan (2003 PTD 1017) Relevant extracts are reproduced from page 1031, paragraph 26 (i,ii,iii) as follows:
(i) That in view of wide variety of diverse economic criteria, which are to be considered for the formulation of a fiscal policy, Legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc. for taxation. But with all this latitude certain irreducible desiderata of equality shall govern classification for differential a treatment in taxation law as well.
(ii) That Court while interpreting laws relating to economic activities view the same with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc., keeping in view the complexity of economic problems which do not admit of solution through any doctrinaire or strait jacket formula as pointed out by Holms, J. in one of his judgments, (iii) That Frankfurter, J., in Morey v. Doud (1957) U.S 457 has remarked that in the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to the legislative judgment."
Keeping in view the above principle as well as following the observations in the case of P. Kunhammed Kutty Hafi Vs. Union of India
([1989] 176 ITR 481) i.e. Judicial approach throughout has to allow the legislature flexibility at the joints, particularly when a taxing statute is under attack, we have to interpret the words services, loans' andadvances. It may be noted that the learned High Court of Sindh at Karachi had relied upon the principle discussed in the case of South Bihar Sugar Mills Ltd, Vs. Tata
Chemicals Ltd. (AIR 1968 SC 922). The principle enunciated in this judgment has not been applied correctly. According to its ratio decidendi if a word like goods has not been defined by the law, therefore, it is to be construed that such a word has been used in its ordinary dictionary meaning. There is yet another aspect of the case namely that Indian Supreme Court was not interpreting the expression excisable services, therefore, instead of taking the support from this judgment the learned High Court of Sindh may have relied upon the case of Hirjina (ibid). Relevant para therefrom has already been reproduced hereinabove. Particularly in view of he fact that this Court had declared Section 3 of the Act 1944 intravires to the Constitution. Similarly the judgment in the case of Abdul Rahim (ibid) was distinguishable because in this case as well the wordloan' has been defined in view of the definition of the finance under the Banking Tribunal Ordinance, 1984. As per its meaning u/S.
2 (e) it includes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in providing a loan, markup/markdown in price, higher purchase, lease, licensing, common charge or fee of any count, purchase/sale including commodities, patent, business, trademarks and copy rights etc. Whereas in item 14.14 the word loans has been used in its popular meanings. In this context it is to be noted that in the case of Ocean Industries Ltd Vs. Industrial Development Bank (PLD 1966
SC 738) proposition came into consideration whether under Section, 39 of
Industrial Development Bank of Pakistan Ordinance, 1961 the bank could only exercise its powers for enforcing claim of bank against industrial concerned where the bank had granted a loan, because a case of the appellant was that recourse of Section 39 could not have been made as the bank had not granted any loan at all to the appellant company but had merely granted the payment of certain installments payable to the Foreign Ship Builder. While examining this proposition it was observed that it is true that under sub-section 1 of Section 39 where an industrial concern fails to repay such loan by the due date or in compliance with the notice u/S. 38, an officer of the Bank, generally or specially authorized by the Board in this behalf may apply to the District
Judge.
The term "loan" has, of course, not been defined in the Ordinance of 1961 as it originally stood. What meaning is then to be given to it? Should it be read in a technical sense or in its ordinary or popular sense. Reading the provisions of the Ordinance as a whole it appears to us that the term has been used in its popular sense, for it is difficult to imagine that the framers of the Ordinance only wished the special procedure prescribed by Section 39 to protect "loans " in the strict sense and to leave out other debts due to the respondent bank from industrial concerns. The obvious intention of these provisions appears to us to have been to give the respondent bank a special remedy to recover its claim and dues from defaulting industrial concerns assisted by it. We would, therefore, read the term. "loan" in this section as meaning a contract by which a person receives upon his own credit advances of money from another on specified conditions of repayment,"
Mr. Waseem Sajjad learned counsel for the appellants in this behalf placed reliance on a letter dated 27th September 1994, copy of which was issued by Faisal Islamic Bank of Bahrain, Relevant lines therefrom are reproduced below:
"Further to our discussion, we hereby confirm to you that we agree to appoint you as our agent to acquire for our account and benefit goods under the following terms and conditions:
2........
3........
In view of the above admitted document factual assistance can also be availed for the purposes of interpreting a fiscal statute provided that no one amongst parties has reservation about its existence. Since this document has been relied upon by the respondents themselves, therefore, no objection from their side can be entertained. In addition to this the definition of finance in the Banking Tribunal Ordinance, 1984 cannot be imported in Act 1944 in view of the principle that it is unsaved to compare the language in one statute with that employed in another, even though the subject covered by the two may involve similarities. Such comparison otherwise may also not be conclusive on the point agitated in the case of Abdul Rahim (ibid).
Thus it is held that judgment in the case of Abdul Rahim (ibid) for the purpose of defining the expression `services' is not applicable and the expressions/words used in Section 2(20) of the Act 1944 and item 14.14 of the second Schedule are to be interpreted independently keeping in view their popular meanings.
In items 14.14 column II another important expression namely advances' has been employed.
This expression with reference to context is equally important as according to
Words and Phrases Vol. 2-A (Pg 117) ordinarily its meanings also include aloan' and an `action to recover it. Reference at this juncture of Section 7(1) may also be made which defines forms of business in which banking company may engage including borrowing, or taking up of money, lending or advancing of money either upon or without security.
Similarly in Corpus Juris Secundum Vol. 2 page 496-97 the word `advances' has been defined as under:
"in legal parlance the word used to indicate advances of a pecuniary nature and includes money or chattels or both, although it may be employed as referring only to money."
Thus it is held that word facilities, utilities, loans and advances are to be used in popular sense for the purpose of interpreting the same in view of the cardinal principle of interpretation of statutes that a law should be
interpreted in such a manner that it should be saved rather than destroyed. Multiline Associates Vs. Ardeshir Cowasgee (PLD 1995 SC 423) and Elahi Cotton Mill (ibid). Relevant para therefrom is reproduced here in below:--
(ix) That the law should be saved rather than be destroyed and the Court must lean in favour of upholding the Constitutionality of a legislation keeping in view that the rule of Constitutional interpretation is that there is a presumption in favour of the Constitutionality of the legislative enactments unless ex facie it is violative of a Constitutional provision."
Secondly in view of the above conclusion that the terms employed in the legislative provisions under discussion are to be considered in popular sense. It is to be noted that in Act 1944 First Schedule was again amended and the duty on excisable services was made chargeable under heading 9813.000 wherein it was held applicable on services provided or rendered by Banking Companies, Insurance Companies, Cooperative Financing Societies, Modaraba, Musharka, Leasing Companies, non banking Financial Institutions and other persons dealing in such services. So in view of the amendment, although this amendment was not specifically called in question either of the parties but a perusal of the amended schedule indicates that excise duty has also been made applicable on the transaction covered by Islamic modes of financing. In this context it is to be borne in mind that factually in these transactions as well cess is passed on to the borrower as it is evident from a letter of Faisal Islamic Bank of Bahrain dated 27th September 1994, contents whereof have been reproduced herein above.
Learned counsel for the respondents contended that item 14.14 of First Schedule has no nexus with the provisions of main Act i.e Section 3 of the Act 1944, because it does not provide for any specific service namely that on which type of the services, excise duty is recoverable, therefore, being vague is liable to be struck down. Reliance has been placed on Jamat-i-Islami Pakistan Vs. Federation of Pakistan (PLD 2.000 SC 111), Buxa Dooars Tea Company Ltd. Vs. State of West Benea AIR 1989 SC 2015), Govind Saran Ganga Saran Vs. Commissioner of the Sales Tax [1985] 155 ITR 144, Commissioner of Sales Tax Vs. Hunza Central Asian Textile & Woolen Mills Ltd. (1999 PTD 1135). Reference No. 2 of 2005 (PLD 2005 SC 873). He has also referred to Hirjina`s case (ibid) to explain that in this judgment an excise duty was imposed in respect of services rendered by hotels in providing room, liquor and other refreshment to their clients, whereas in respect of excisable services item 14.14 of the Schedule does not describe any service which will be provided or rendered, therefore, on account of it being an unspecific in nature cannot be made liable to the respondents to pay excise duty on the services.
On the other hand learned counsel for the appellants including Mr. A. Karim Malik and Mr. Ahmer Bilal Sufi, who appeared on behalf of Central Board of Revenue argued that item 14.14 of the Schedule has to be read alongwith the provision of Section 3(1), 3-C(1)(b) and Section 4(3) of the Act 1944 for the purpose of substantiating that there is nexus between item 14.14 of the Schedule as well as substantive provisions of law.
In the judgments relied upon by the learned counsel different provisions of law were declared void and invalid on account of their being vague. In Jamat-e-Islami`s case (ibid) this Court tested provision of Section 7-A of the Anti Terrorism Act 1997 at the touch stone of Articles 4, 9, 14, 16, 19, 27 of the Constitution and held that due to vague definition of the word "internal disturbance", illegal strike, lockout and go-slow is unConstitutional and requires suitably amended. In the case of Pakistan Tobacco Company Ltd (ibid) it was held that rate of levy of the excise duty should have nexus with the value of the goods which are produced or manufactured and that the same cannot be fixed arbitrarily. It was held in the case of Buxa Dooars (ibid) that if the levy was regarded as one in respect of tea estate and the measure of the liability was defined in terms of the weight of tea dispatched from the tea estate there must be a nexus between the levy on the tea estate and the criteria for determining the measure of liability. In the case of Govind Saran, Ghang Saran (ibid) the learned Court discussed essential components for a concept of the tax namely: first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third is the rate at which the tax is imposed and the fourth is the measure or value to which the rate will be applied for computing the tax liability. If those components are not clearly and definitely ascertainable, it is difficult to say that levy exists in point of law. Any uncertainty or vagueness in the legislative scheme defining any of those components of the levy will be fatal to its validity. In the case of Commissioner of Sales Tax and others Vs. Hunza Central Asian Textile and Woolen Mills Ltd. (1999 SCMR 526) it was held that "use or consumption of intermediary goods, in restricted sense could be treated as sales by legal fiction, so as to bring such goods under the levy of sales tax where final product was not subject to sales tax when sold and used or consumed by intermediary goods. In such circumstances have a rational nexus with sales tax. In the case of Mehram Ali Vs. Federation of Pakistan (PLD 1998 SC 1445) while taking into consideration the provisions of Sections 6, 7 and 8 of the Anti-Terrorism Act 1997 alongwith Schedule attached thereto it was held that offences mentioned in the schedule should have nexus with the objects mentioned in Sections 6, 7 and 8 of the Act 1997. In the case of Excise Taxation Officer Vs. Barmashel and distribution this Court held that one of the Rules of construction of statute is that in case of irreconcilable inconsistency between a charging section and the Schedule, the former is to prevail and the schedule is to yield to the Act. Some of the provisions in Reference No. 2 of 2005 (Hisba Bill, 2005) were declared ultravires to the Constitution being vague and over broad.
First of all it would be appropriate to ascertain the status of item 14.14 of first Schedule Part-II. Reference in this behalf may be made that under First Schedule Part II of the Excise Act 1944, item 14.14 of the First Schedule part II was inserted in pursuance of Section 5 of the Finance Act 1991, meaning thereby that the item has been made part of the Act 1944 for the purposes of charging excise duty on services in respect of advances made to any person. The rate of the duty has been prescribed in Column No. 3 which will be leviable on the amount of advances outstanding on the last day of each calendar month. According to the legal status a schedule placed/appended with an enactment is an extension of the Section for the purpose of which it has been inserted. In the instant case Section 3 is a charging section, therefore, to cater its requirement it has been appended. At this stage reference may be made to the following two principles discussed in Craies on Statute Law Seventh Edition. 1971 Pg 225 and N.S. Bindra`s The Interpretation of Statutes Seventh Edition at Pg. 92.
Craies on Statute Law Seventh Edition, 1971 p. 225.---"If the enacting part of the Statute cannot be made to correspond with the Schedule, the latter must yield to the former".
N.S. Bindra`s The Interpretation of Statutes Seventh Edition at pg 92): In case of conflict between the body of the Act and its Schedule, the former prevails.
Reference of book "Understanding Statutes" by S.M. Zafar is equally important wherein it has been observed that:
"The schedule is an extension of the section which induces it. Material is put into a schedule because it is too lengthy or detailed to conveniently accommodated in a section or because it forms a separate document(such as a treaty).
With respect to calling it a schedule; a schedule is an act of parliament is a mere question of drafting; a mere question of words; a schedule is as much a part of the statute and is as much an equipment as any other part."
The above principles are sufficient to conclude that a schedule is an enjoinder equal status of an enactment. There could be cases wherein a conflict between the Act and the Schedule could be visible and in such a situation principle noted in the Craies on Statute Law (Seventh Edition 1971 at pg 225) and N.S Bindra`s The Interpretation of Statutes (Seventh Edition pg 92) shall be pressed into service. Keeping in view the above principles, this Court in the case of Excise and Taxation officer Vs. Burmah Shell Storage (ibid) held that in case of irreconcilable inconsistency between the charging section and a schedule, former is to prevail and schedule is to yield to the Act.
It may be noted that as per Sections 8 & 10 of the Act the third Schedule were to provide scale as to the amount of the tax which was to be levied and recovered on the value of the goods imported or exported. The third Schedule instead of providing scale in terms of the above sections purported to levy tax on the value of the licenses. This Court held that the third Schedule is not in terms of Section 3, therefore, cannot be enforced. To resolve the controversy it is to be observed that as per the dictum laid down in the case of Hirjinas (ibid)
Constitutionality of Section 3 has been upheld and now as per the grievance of the respondents item 14.14 of the first Schedule Part-II has no nexus with
Section 3. Before examining the proposition it is to be noted that item 14.14 as per its status is a part of the main enactment. Under the Constitution its
Constitutionality cannot be testified at the touch stone of Section 3 unless it violates any of the provisions of the Constitution or inconsistency as it has been alleged irreconcilable therefore, instead of declaring it to be ultravires of the Constitution, it would be yield to Section 3 of the Act. Section 3 being a charging Section deals in respect of duties specified in the First Schedule to be levied. Thus a legal nexus between item 14.14 of the Schedule Part-II and
Section 3 do exist as both of them are the parts of a statute. Section 3 being charging section provides that excisable service provided or rendered in Pakistan, as and at the rates set forth in the first Schedule shall be chargeable. Wordas' according to Chambers Concise Dictionary (pg. 53) means in what decree, proportioned manner, to what extent; in that decree; to that extent clearly demonstrates that duty can be recovered on excisable service at the rates set forth in the Schedule. It means that under the Schedule a rate has to be specified for charging duty on the excisable service. The provision being a comprehensive in its nature has not placed restriction to fix the rates of the duty and the manner in which it will be recovered as per the contents of the
Schedule. As such it is necessary to see whether the Schedule fulfills the requirements namely proportioned manner and extent to recover the excise duty or not. A perusal of Column-II of the Schedule speaks about the services provided or rendered by banking companies etc in respect of advances made to any person. It is to be kept in mind that above discussion as it has already been held that institutions named in Column-II of Item 14.14 provides service in respect of advances made to any person. It is also to be observed that the word services' used in this column, represents to more than one services. Thus the arguments put forwarded on behalf of the respondents' counsel that as in the case of Hirjina (ibid) services were specified, therefore, to that extent the item of the schedule discussed therein is valid and in the item under discussion this expression has not been defined therefore, on account of vagueness the provision has no substance. The wordservices' in plural sense is sufficient to conclude that it covers all the services provided by the institutions named in Column-II to its customers, therefore, the legislation instead of spelling out each kind of the service comparing to the item of the schedule which were discussed in Hirjinas case, a comprehensive expressionServices' has been employed. Thus it is held that no ambiguity or vagueness can be attached to the contents of Column-II of the item 14.14 for the purpose of declaring the provision vague or unspecified. Since the legislature had demanded duty on excisable services in respect of the advances made to any person (customers), therefore, it would be seen that as to what manner has been adapted to calculate the duty and it has got nexus with the provision of Section 3 of the Act 1944. Reference in this context may be made to Column II of the item 14.14 of First Schedule Part-II, according to which 1/12th of 1% of amount of each advance, outstanding on the last working day of each calendar month. Its plain reading indicates that excise duty is being charged on excisable services depending on the volume of the amount outstanding on the last working day of each calendar month. Thus the criteria or measure to calculate the duty has been provided in this column. Meaning thereby that if loan is higher the services are more and if the loan is less the services are less. The measure to calculate the excise duty, therefore, seems to be just and proper because, prima facie, by adapting such yardstick there would be no discrimination in the recovery of the excise duty. Thus it is held that in view of the manner prescribed in Column III of item 14.14 first
Schedule Part-II the legislation had provided a device to calculate the duty at the rates in acceptable manner to fulfill requirements of Section 3 of the Act 1944. Now at this stage another important arguments raised by the learned counsel is required to be attended namely in Column III of the item 14.14 rate of excise duty has been levied on volume of loans and advances as outstanding on the last working day of each calendar month which is inconsistent to the provision of Section 3-C(l)(b) and Section 4(3) of the Act. It may be observed that this provision, excise duty (CED) is to be calculated on the amount which is to be charged for such services, facilities or utilities whereas according to the learned counsel the schedule as prescribed charging of the duty on the volume of the advances/loans. It is to be observed that as far as Section 4(3) is concerned it was also added as back as in the year 1970 by means of the
Finance Ordinance 1970 when the services were also subjected to excise duty.
Section 4(3)(b) deals that the amount with reference to which the duty shall be levied, shall be the total amount charged for all services, facilities and utilities provided or rendered including charging for supply or merchandise therewith. So the argument is that on the volume of amount excise duty cannot be charged and if it is to "be calculated it should be amount chargeable for providing/rendering facilities, services and utilities. The argument has no force because sub-section (3) of Section 4 has widened the scope of levying the excise duty by using the expression where under this Act any services, facilities or utilities are subject to duty at a rate dependent upon the charges thereof. The word `dependent' has created a distinction in respect of different kind of services on which excise duty is recoverable. In this behalf reference may be made to the case of Hirgina (ibid) where calculation of the duty on each item provided to the customers where as in the financial institutions to quantify the excise duty item-wise is not possible in view of multifarious services rendered or provided by the banks, therefore, depending upon this particular aspect of the case for the purpose of quantifying the excise duty, it is to be calculated on the volume of loan.
Therefore, we are persuaded to hold that there is no inconsistency between the
Act of 1944 and item 14.14 first Schedule Part-II and this item of the Schedule for all intends and purposes shall be deemed to be a part of Section 3 of the
Act, 1944. As such the judgment in the case of Excise & Taxation Officer
Karachi (ibid) is not applicable and further it is not in conflict with Section 3-C(1)(b) of the Act 1944 which relates to the determination of tariff value and rate of duty on the date on which the services are provided or rendered.
Admittedly so long a person continuously enjoys services provided or rendered by banking companies etc. in respect of advances made to it/him shall be obliged to pay excise duty at the rate mentioned in Column-III of item 14.14.
In other words it would be a recurring cause of action to the banking institutions and others for the purpose of effecting the recovery of excise duty on the services being provided on monthly basis on the volume of advances which shall be calculated on the last working day of each calendar month as it has been held in M/s. Army Welfare Sugar Mills Ltd. Vs. Federation of Pakistan
(ibid). Thus the arguments raised in this context by Mr. Imtiaz Rashid Siddiqui and Mr. Ali Zafar, learned ASC namely services on advances is provided only once at the time of giving loan, and duty cannot be charged on monthly basis, has no substance.
Mr. Khalid Anwar, Learned counsel for respondents emphasized that this Court while examining the vires of item 14.14 of first Schedule Part-II required to consider its pith and substance to ascertain whether it is violative of the Constitution of the Islamic Republic of Pakistan and also to determine whether it is in violation of the powers of the Federal or Provincial Government under Article 163 of the Constitution. Mr. Ali Zafar, learned ASC has also adopted his arguments and to substantiate his plea he has referred to Article 141 of the Constitution and contended that charging of CED on excisable services is not permissible by the Federal Government. The argument put forwarded by both the sides have no force because it is nobody`s case that Federal Legislature is not empowered to enact item 14.14 of the Schedule Part-II for the purpose of levying excise duty on the excisable services. In this behalf reference may be made to Entry 44 of the Fourth Schedule Part-I of the Constitution.
Mr. Khalid Anwar, learned counsel for the respondents actually wanted to canvass that in view of banking system based on Islamic modes of financing excise duty cannot be recovered on the loans or advances as according to him there is no loan or advance but it is trading i.e sale and purchase of goods, which regulates the financial liabilities of the parties upon each others. Reliance in this behalf has been placed on Habib Bank Limited Vs. M/s. Farooq Compost Fertilizer Corporation Ltd. (1993 MLD 1571) and Habib Bank Limited Vs. M/s. Qayyum Spinning Ltd. (2001 MLD 1351). Whereas the arguments of learned counsel Mr. Ali Zafar is that the Constitution has not authorized to recover excise duty on advances and it does not fall within the pith and substance of the Article 141 of the Constitution of the Islamic Republic of Pakistan. As such Item 14.14 being unConstitutional deserves to be struck down.
Mr. Shahid Hamid one of the learned counsel for the respondents contended that without prejudice to his arguments namely Advances even if are treated Loan, it would not cover the transaction of Lease, Modaraba etc. therefore, the loan amount is the capital assets of the bank advanced to the customers on which no excise duty could be recovered as according to the pith and substance of item 14.14 actually it is duty on capital assets of the bank.
On having taken into consideration the arguments of the learned counsel with reference to
Article 141 and Article 163 of the Constitution which deals with the jurisdiction of Majlis-e-Shoora (Parliament) and Provincial Assembly to make laws in respect of profession etc. As far as Entry 44 of the Fourth Schedule
Part-1 is concerned it confers powers upon the legislature to promulgate laws relating to duties of excise including duty on Salt but not including on alcoholic liquor, opium and other narcotics. It is nobodys case that the law givers are not empowered to promulgate the law within their sphere, however, the arguments of the learned counsel for respondents seem to be that as Modaraba, Musharka etc. are concerned, the excise duty cannot be recovered on such loans.
It may be noted that they have taken exception to the definition of the wordadvances' as it has been noted herein above but on having taken into consideration the different aspect of the case it has been held that word
advance' orloan' has been used in its popular sense. It is equally important to note that as far as item No. 14.14 of the First Schedule part-II is concerned it does not speak in respect of the Modaraba or Musharka etc. It so happened that in the year of 1994 the First Schedule was once again substituted by means of Finance Act 1994 and item 14.14 was replaced with item No.
9813.0000, according to which excise duty was chargeable on services provided or rendered by Banking Companies, Insurance Companies, Cooperative Financing
Society, Modaraba, Musharka, Licensing Companies, Non-Banking Companies and other persons dealing in such services.
Firstly it may be noted that as far as this amendment is concerned it was never challenged before the High Court nor in this behalf any argument was raised obviously for the reasons that this amendment was brought in the year 1994 when the petitions have already been filed by them.
Secondly if we have to consider the arguments in the light of this amended item even than keeping in view the material available on record particularly a letter dated 27th September 1994 issued by the Faisal Islamic Bank of Bahrain, reference of which has also been made hereinabove wherein instead of entering into the trade of sales and purchase, cash amount was given to the loanee. Relevant conditions have already been reproduced hereinabove. Besides, the Court is bound while examining whether particular matter becomes within a fiscal statute is required to examine the letter of the law and if comes to the conclusion that all the expressions used by the legislature are to be taken into consideration in its popular meaning then there should not be hesitation in maintaining the Constitutionality of a particular law. Reference in this behalf be made to the following passage from Corpus Juris Secundum Vol. 84 page 246:
"Determination of character of tax .... In determining whether or not a particular statute impose an excise or privilege tax, the Courts look to the real nature of the tax, which is determined by its operation rather than by any particular descriptive language which may have been applied to it, so that the mere fact that the statute characterizes the tax as an excise or privilege tax does not constitute it such a tax. Although legislative declaration that a tax thereby imposed is an excise tax is not conclusive, such designation is entitled to considerable weight in ascertaining the nature the tax, and will be accepted unless the declaration is incompatible with the effect of the statute."
Similarly the above principle has been approved in the case of the Commissioner of Agricultural Income Tax East Bengal Vs. B.W.M, Abdul Rehman (1973 S.C.M.R. 445).
It is equally important to note that Lord Halsbury in the case of Tenant Vs. Smith (1892 AC 150) observed as follows:
"In a Taxing Act it is impossible, I believe to assume any intention, any governing purpose in the Act to do more than take such tax as the statute imposes ............Cases, therefore, under the Taxing Acts always resolve themselves into a question whether or not the words of the Act have reached the alleged subject of taxation."
Similarly in the case of Elahi Cotton Mills (ibid) it has been held that Court while interpreting laws relating to economical activities view the same with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc. keeping in view the complexity of economic problems which do not admit of solution through any doctrinaire or strait jacket formula.
Secondly, the arguments for declaring item 14.14 of the First Schedule part-II unConstitutional as by its pith and substance it is not covered under Article 163 of the Constitution is not acceptable in view of the fact that this Article in its original form covers item 14.14 of the Schedule and so far as the Islamic mode of financing, wherein the money is given to a second party by Banking Institutions by using the expression Modaraba etc. is concerned such transactions would also be taken into consideration in the popular sense.
Thirdly as far as Article 163 is concerned it deals in respect of the provision of tax etc. The excise duty on the excisable services is altogether different. If for the sake of arguments it is considered that excise duty on the excisable services is being charged in lieu of providing professional skills to maintain the action of the customers, still the Federal Legislation would not be debarred to legislate the tax on such profession because worse to worse the case of the respondents could be of a double taxation i.e. (i) it could be charged/claimed by the Provincial Government in terms of Article 163 and under Article 144 of the Constitution read with item 14.14 of the schedule and double taxation under the law promulgated by the Majlis-e-Shoora or Provincial Assembly is permissible as it has been held by this Court in number of case. Reference may be made to Muhammad Shafi Vs. Wealth Tax Officer ((1992 PTD 726). This judgment has been followed in the case of M/s. ICC Textile Ltd. and others Vs. Federation of Pakistan and others (2001 SCMR 1208).
Fourthly a test has been laid down to declare a law unConstitutional by N.S Bindra in his book on Interpretation of Statutes fourth edition at page 977 as follows:
"To determine the Constitutional validity of an Act, its pith and substance should be considered. In other words, where a law is impugned as ultra vires, it is the true character of the legislation that has to be ascertained. That is, it must be ascertained whether the impugned legislation is directly in respect of the subject covered by any particular Article of the Constitution or touches the said Article only incidentally or directly. If it be found that the legislation is in substance one on a matter which has been assigned to the Legislature, there can be no question of its validity even though it might incidentally infringe on matters beyond its competence."
The above principle has also been relied upon by this Court in the case of Sohail Jute Mills Ltd. Vs. Federation of Pakistan (PLD 1991 SC 329) and in the case of Mian Ejaz Shafi Vs. Federation of Pakistan and others (PLD 1997 Karachi 604). Applying the above test which has been approved by this Court in the case of Sohail Jute Mills (ibid), we are persuaded to hold that legislation was competent to levy excise duty on excisable services by inserting item 14.14 in First Schedule Part-11, in view of the provision of Fourth Schedule of the Constitution. Thus the judgment relied upon by the respondents' counsel being of no help to them are kept out of consideration.
Next it was contended by them that levy of excise duty on excisable services is unreasonable because if there is no outstanding amount on the last working day of each calendar month but excise duty will be charged as services being provided by maintaining the accounts etc.
Learned counsel for the appellant Mr. Waseem Sajjad stated that excise duty is recoverable only when there is a service provided or rendered in respect of advances made to any person but no sooner the outstanding amount of advances has reimbursed it shall be deemed that no services is being provided by the banking or financial or other institutions to the customers. He also contended that reasonableness of a law is not to be examined by this Court for the purpose of declaring the same unconstitutional. In our considered opinion the levy of excise duty under item 14.14 is dependent upon the services which are being paid offered in respect of the advances to a person but no sooner when there is no advance it would be deemed that bank is neither providing nor rendering any service because the transaction has come to an end between a bank and the customers. Therefore, it is in the interest of customers that he is being obliviated from further levy of excise duty. In addition to it while construing a taxing measure for determining its Constitutional validity at the touch stone of reasonableness cannot be entertained as per settled judicial norms. The only consideration is whether the legislation under challenge is permissible by the Constitution. The reasonableness or otherwise of such state is a matter of legislative policy and it is not for the Courts for adjudication. (Interpretation of Statute by N.S. Bindra Seventh Edition pg 771 relied upon by this Court in the case of Anoud Power Generation Ltd. Vs. Federation of Pakistan (PLD 2001 SC 340). Thus it is concluded that for both the reasons mentioned hereinbefore item 14.14 of the First Schedule part-II of the Act 1944 cannot be declared ultravires of the Constitution.
31 Learned counsel contended that item 14.14 of First Schedule is unConstitutional being contrary to the provision of law as it has created unreasonable classification for the purpose of providing/rendering excisable services of identical nature to all of them.
part-II and stated that companies being incorporate bodies are entitled to question the Constitutionality of the law if it is against the fundamental rights or any one of the provision of the Constitution. Reference in this context has been be made to Divisional Forest Officer Vs. Bishwanath Tea Co. Ltd. (AIR 1981 SC 1368), Excell Wear Vs. Union of India (AIR 1979 SC 25), U.P.S.E. Board Vs. Hari Shanker (AIR 1979 SC 65).
"14. By a petition praying for a writ against infringement of fundamental rights, except in a case where the petition is for a writ of habeas corpus and probably for infringement of the guarantees under Articles 17,23 and 24, the petitioner may seek relief in respect of his own rights and not of others. The share-holder of a Company, it is true, is not the owner of its assets; he has merely a right to participate in the profits the Company subject to the contract contained in the Articles of Association. But on that account the petitions will not fail. A measure executive or legislative may impair the rights of the Company alone, and not of its share-holders; it may impair the rights of the shareholders and not of the Company: it may impair the rights of the shareholders as well as of the Company. Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired, if pany as well. The test in determining whether the shareholder`s right is impaired is not formal; it is essentially qualitative; if the State action impairs the right of the shareholders as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief.
The petitioner claims that by the Act and by the Ordinance the rights guaranteed to him under Articles 14,19 and 31 of the Constitution are impaired. He says that the Act and the Ordinance are without legislative competence in that they interfere with the guarantee of freedom of trade and are not made in the public interest; that the Parliament had no legislative competence to enact the Act and the President had no power to promulgate the Ordinance, because the subject-matter of the Act and the Ordinance is (partially at least) within the State List: and that the Act and Ordinance are invalid because they vest the undertaking of the named banks in the new corporations without a public purpose and without setting out principles and the basis for determination and payment of a just equivalent for the property expropriated. He says that in consequence of the hostile discrimination practiced by the State the value of his investment in the shares in substantially reduced, his right to receive dividend from his investment has ceased, and he has suffered great financial loss, he is deprived of the rights as a shareholder to carry on business through the agency of the Company, and that in respect of deposits the obligations of the corresponding new banks not of his choice are substituted without his consent"
Admittedly a company incorporated under the Companies Act, 1913 or the Companies Ordinance, 1984 does not fall within the definition of a citizen. However, Constitutionality of legislation which has impaired the rights of a company can be challenged through a shareholder who fulfills the following test laid down in the case of Godhra Electric Company Vs. State of Gujarat (AIR 1975 SC 32 ):--
"30. In R.C. Cooper v. Union of India (1970) 3 SCR 530 at p. 556= (AIR 1970 SC 564 at p.585) this Court said:
"Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired, if that action impairs the rights of the Company as well. The test in determining whether the shareholder`s right is impaired is not formal; it is essentially qualitative: if the State action impairs the right of the shareholders as well as to the Company, the Court will not, concentrating merely upon the technical, operation of the action, deny itself jurisdiction to grant relief."
"As a result of the Bank Nationalization case (1970) 3 SCR 530 = (AIR 1970 SC 564) (supra) it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Art. 19. That individual right is not lost by reason of the fact that he iss a shareholder of the company. The Bank Nationalization case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders' rights are equally and necessarily affected if the rights of the company are affected.
The Indian Supreme Court in the case of DC&GM Company Vs. Union of India (AIR 1983 SC 937) examined maintainability of a writ petition by an incorporated company qua denial of freedom guaranteed under Article 90 and observed as follows:
"12. The Attorney General raised a preliminary objection to the maintainability of the writ petitions filed in this Court under Art. 32 and those filed in the High Court under Art. 226 of the Constitution. The submission was founded on the ground that an incorporated company being not a citizen for the purposes of Art. 19 and therefore it cannot complain of the denial or deprivation of fundamental freedom guaranteed by Art. 19(1)(g) of the Constitution and the situation is not improved by joining either a shareholder or a Director as co-petitioner. It was said that the company has a juristic personality independent of the Director or a shareholder and the business or trade carried on by the company is not that of either the shareholder or the Director. As the corollary, it was urged that even if the impugned Rule 3-A imposes an unreasonable restriction on the fundamental freedom to carry on trade or business, this Court cannot entertain a petition under Art. 32 not the High Court can entertain one under Art. 226 of the Constitution. Frankly speaking, this is an of repeated contention whenever the petitioner is an incorporated company but the law in this behalf is in a nebulous state and therefore, it is not possible to throw out the petition at the threshold. More so because a petition under Art. 226 of the Constitution can be filed by the company for any other purpose and also the petitioners complain of violation of Art. 14 of the Constitution. The reasons for stating that the law is in a nebulous state may briefly be mentioned. In State Trading Corporation of India Ltd. V. Commercial Tax Officer, Visakhapatnam (1964) 4 SCR 99: (AIR 1963 SC 1811) and Tata Engineering and Locomotive Co. v. State of Bihar, (1964) 6 SCR 885: (AIR 1965 SC 40), this Court held that a Corporation was not a citizen within the comprehension of Art. 19 and therefore, could no complain of denial of fundamental freedom granted by Art. 19 to a citizen of this country. These two decisions are an authority for the proposition that an incorporated company being not a citizen could not complain of violation of fundamental freedom granted to citizen under Art. 19. But a different note was struck in R. C. Cooper v. Union of India, (1970) 3 SCR 530, (AIR 1970 SC 564), when it was held that a measure executive or legislative may impair the rights of the company alone, and not of its shareholder; it may impair the rights of the shareholders as well as the company. It was further held that jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired, if that action impairs the rights of the company as well. In that case, the Court entertained the petition under Art. 32 of the Constitution at the instance of a Director and shareholder of a company and granted relief. The two conflicting trends in this behalf were noticed by this Court in Bennett Coleman and Co. v. Union of India (1973) 2 SCR 757: (AIR 1973 SC 106) where after review of the aforementioned decisions and several others, it was held as under (at P. 115 of AIR):--
"As a result of the Bank Nationalization case (supra) it follows that the Court finds out whether the legislative measures directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Art. 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalization case (supra) has established the view that fundamental rights of shareholders as citizens are not lost when they associate to form a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders' rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Art. 19(1)(a) are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the corporation."
......Thus apart from the law being in a nebulous state, the trend is in the direction of holding that in the matter of fundamental freedoms guaranteed by Art. 19 the rights of a shareholder and the company which the shareholders have formed are rather co-extensive and the denial to one of the fundamental freedom would be denial to the others. It is time to put an end to this controversy ........"
(xxv) That a direct tax is one which is demanded from the very person, who it is intended or desired should pay it, whereas indirect taxes are those, which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another, lie custom duties, excise taxes and sales tax, which are borne by the consumers."
The consensus of opinion as per these observations leaves no room to form contrary view, therefore, excise duty on excisable services is required to. be indirect tax, recoverable from a person, to whom excisable service has been provided or rendered, therefore, the CBR rightly considered the excise levy on excisable service to be indirect tax and vide circular dated Islamabad, the . 26th September 1991 issued clarification to the effect that all Banks, Financial Institutions, Insurance Companies, Co-operative Financial Societies, other Lending Banks or Institutions and other persons dealing in advancing of loans were/are required to realize the excise duty at the aforesaid rate from the amount of advances outstanding against each borrower.
Learned counsel had also objected upon the validity of this circular on the strength of the judgment of this Court in the case M/s. Central Insurance Co. Vs. The Central Board of Revenue (1993 SCMR 1232). We examined the facts of this case according to which CBR issued circular No. 4 of 1988 to interpret the expression "definite information" as it has been implied in Section 65 of the Income Tax Ordinance, 1979. This Court held that re-opening of the assessment by Income Tax Officer on the basis of Circular No. 4 of 1988 by the CBR was not justified. The observations made in this judgment are not applicable as the circular under discussion has not incorporated any provision of law but had made clarification in respect of the recovery of excise levy of excisable services from the amount of advances outstanding against each borrower. Fully comprehending that the excise levy is an indirect tax, the legitimate burden of which has to be borne by a person to whom services have been provided or rendered by the Banks and Financial Institutions etc. at the rate mentioned in Column No. III of Item 14.14, therefore, objection raised in this behalf has no substance.
Mr. Ali Zafar learned counsel contended that under Item 14.14 no mechanism (criteria) has been laid down to levy the tax on different kinds of services as according to him the rate of excise levy as per column-II the impugned item of First Schedule part-II in respect of long term and short term loans is the same, although alleged services rendered or provided would be different, therefore, it being vague in nature deserves to be declared unConstitutional.
Mr. Khalid Anwar learned counsel also contended that the impugned item of First Schedule Part-II is operating in a discriminatory manner and in absence of any reasonable classification and intelligible differentia, between the person who have obtained advances for a longer or shorter term, negates their fundamental rights under Article 25 of the Constitution which envisages that all citizens are equal before law and are entitled for equal protection of law. Reliance in this behalf has been placed by him on I.A Sherwani Vs. Government of Pakistan (1991 SCMR 1041) and Inaam-ur-Rehman Vs. Federation of Pakistan (1992 SCMR 563).
Learned counsel for the Federation, Mr. Waseem Sajjad, contradicting their contentions stated that there is no discrimination because the persons having less loan have been charged with lesser amount and persons having greater loan have been charged with higher amount. In our considered opinion the arguments raised on behalf of the respondent need not be examined in view of the observations made hereinabove regarding non-availability of such arguments to a person, in terms of Article 25 of the Constitution because no one amongst the affected persons i.e share/accounts holders had approached the learned High Courts by invoking its jurisdiction under Article 199 of the Constitution nor a citizen of the same category is respondent before us. As far as respondent companies being Incorporated Bodies are concerned they do not fall within the jurisdiction of `citizen' as has been discussed hereinabove, therefore, the argument so raised is turned down.
Learned counsel for the private parties vigorously agitated that excise levy on excisable service as per Item 14.14 shall be applicable on advances which were granted prior to the promulgation of Finance Act, 1991 in pursuance whereof Item 14.14 of the first Schedule part-II was inserted. He also added that excise levy is distinguishable only once at the time of the giving of loan, therefore, the duty cannot be charged on monthly bases. It was also argued by them that even if it is assumed that any excisable service is provided or rendered by Banking Companies or Financial Institutions it would be once at the time when the loan was extended and not afterward. He further contended on behalf of CBR that Item 14.14 of First Schedule part-II is not being implemented/enforced with retrospective effect from the date when it was promulgated i.e. 27th June 1991 and excise levy is being charged on excisable services in respect of advances made to any person which were outstanding and excisable service was being provided/rendered in respect whereof as the banking companies have recurring cause of action against the respondents.
We have considered the arguments put forwarded by the learned counsel for the parties in this behalf. It is well settled principle of law that in absence of clear intention of the legislature to apply a provision of statute with retrospective effect it would be deemed that it would be applicable prospectively. This principle has been highlighted in the judgment relied upon by the learned counsel for the respondents. However, keeping in view the principles highlighted therein while proceeding ahead we have to examine as to whether services, facilities and utilities extended by the banking institutions and other persons shall be limited to the extent of the date when the loan was granted or excisable services shall continue till the final adjustment of the loan/advances. Learned counsel appearing for the respondents had not produced the copies of the loan agreement to ascertain the exact factual position in this behalf but from the pleading of the parties it is inferred that after the promulgation of Finance Act, 1991 in pursuance whereof Item 14.14 First Schedule part-II was inserted and respondents were called upon to pay excise duty on excisable services, therefore, being aggrieved from such demand they instituted writ petitions before the High Court of Sindh and Lahore High Court, Lahore which have been disposed of vide impugned judgments expressing opinion against each other. Thus it is held that when the Banking Institutions are continuously providing/ rendering excisable services including facilities, accommodation and utilities to the person who have obtained the loan and same have not been adjusted so far, and cause of action continues in favour of Banking Institutions etc. till such loan/advance is not finally adjudicated or it has not been recovered through judicial process by invoking jurisdiction of a Court of law, the Bank shall continue extending excisable services and shall be liable to recover CED.
At this juncture it is important to point out that the excisable service is covered under Section 3-C(l)(b) according to which in the case of services on the day on which services are provided or rendered. As per Column No. II Item 14.14 of the First Schedule part-II of the Act 1944 has laid down conditions for excise levy whereas Column No. III provides the rate of duty as it has been noted hereinabove that the person who has obtained less loan, shall be charged with less amount of excise levy and person having obtained greater loan has to be charged with higher amount of levy. Column-III in fact is the transformation of Section 3-C(1)(b) which deals in respect of rate of levy on the date on which services are rendered/provided. As we are of the opinion that until the adjustment of the loans the financing companies enjoys recurring cause of action therefore, the day on which the excisable service is rendered/provided that would be the date for the determination of excise levy. Column III had fixed on the last working day of each calendar month. Meaning thereby that during the month`s period whatever services had been provided or rendered the excise duty will be levied upon the same on the last day of month keeping in view the amount of advances against the petitioner. It may be noted that unless such a measure is not adopted the provision of Section 3-C(1)(b) read with Item 14.14 of the Act 1944 would be rendered unworkable. It may be noted that the rate of levy i.e. 1/12th of 1% of the amount as per Column-III was enhanced to 1/12th of 2% of the amount as per Finance Act, 1992. Question arises that what is the criteria for fixation of levy of excise at different rates as per column-III. In this behalf it may be noted that the lawgivers before imposing the tax ordinarily undertake an exercise during the process whereof the tax payers are also examined and keeping in view their acceptable consensus the rate of tax is fixed. Besides at the same time it becomes very difficult to quantify the excise tax, therefore, a reasonable/moderate rate of tax is fixed keeping in view the suggestion of the tax payers and other person who matters in this behalf. This Court faced identical situation while dealing with the presumptive tax u/S. 80-CC and minimum tax u/S. 80-D of the Income Tax Ordinance, 1979 in the case of Elahi Cotton Mills Ltd. wherein it was observed:
"The rate of half percent of minimum tax adopted u/S. 80-D seems to be on the basis of minimum rate of tax suggested by Export Enhancement Committee."
Therefore, we are of the opinion that the rate of excise levy, as it stood finally incorporated, is just and proper thus free from any arbitrariness. As far as the respondents are concerned in fact they are not being burdened by the excise levy at the rates whatever mentioned in Column-III because it being an indirect tax has to be passed on by the respondent companies to their clients. In this behalf circular dated 26th September 1991 which has already been discussed hereinabove, is a clear demonstration of the factum of passing on the tax to the borrowers etc.
Raja Muhammad Akram, learned Sr. ASC for some of the respondents contended that in majority of the cases, Banking Institutions forwarded advances to the respondents before the promulgation of Item 14.14 in the First Schedule Part-II of the Act 1944, therefore, the customers/loanees have attached legal expectancy that they will not be suffered with any other tax. To elaborate his arguments he relied upon the case of Al-Jehad Trust Vs. Federation of Pakistan (PLD 1996 SC 324) therefore, according to the Act of the Parliament no further tax can be levied and according to him such excise levy by the Government is contrary to Islamic Injunctions. Reference was made by him to Ayah No. 1 of Sora' Almaida and Ayah No. 34 of Sora' Bani Israel. He emphasized that as far as the banks are concerned they are bound to follow the contract (agreement) executed between the parties prior to insertion of Item 14.14. In this behalf he also relied upon in the judgment reported in Pakistan Vs. Public at large (PLD 1987 SC 304) and Mrs. Zehra Begum Vs. Pakistan Brmah-shell Ltd. (PLD 1984 SC 38).
In this context it may be noted that neither the Banking Companies nor CBR has imposed excise levy on excisable services as it is evident from the contents of Finance Act 1991. Similarly the Federation of Pakistan who had legislated Item 14.14 of First Schedule part-II is not a party to the agreement between the persons dealing in advances of loans and the banks. Therefore, the legislature cannot be stopped to promulgate a law for the purpose of imposing of the tax with a view to generate revenue keeping in view its growing requirement to generate funds to address burning problems of the day and the complex issues facing the people which the legislature in its wisdom through legislation seeks to solve Elahi Cotton Mills (ibid)), therefore, there is no estoppel against the Federation to levy excise on the excisable services notwithstanding the fact that what are contents of the agreement. In this context it may be noted that the powers of the legislature to promulgate the law, imposing excise duty or other duties cannot be curtailed as it has been held in the case of Molasses Trading and Export (Pvt) Ltd. V. Federation of Pakistan 1993 SCMR 1905) and Government of Pakistan Vs. Muhammad Ashraf (PLD 1993 SC 176). Relevant para is reproduced herein below:
"However, the question whether the ratio of Al-Samrez Enterprises would be attracted in the case of regulatory duty under Section 18(2) of the Act is a separate matter. The case of Al-Samrez Enterprise dealt with the question of the effect of withdrawal of an exemption notification under Section 19 of the Act. As discussed in Civil Appeal No. 9l5-K of 1990 and others in Al-Samrez Enterprise the concept of exemption as applied to taxation, which presupposes a liability and constitutes grant of immunity from the liability created by the charging section, was the essential principle on which the decision proceeded. So far as the power of the Government to impose a regulatory duty is concerned, the case falls within the domain of delegated legislation, whereby duty or tax is imposed under the law as authorized by Article 77 of the Constitution, under the authority of the Act of Parliament. Therefore, on no principle or rule of law, it can be urged that merely because at one time no regulatory duty was imposed and was in force, when the contract was entered into, any embargo is thereby created upon the delegate of the legislature to impose the tax at any time irrespective of any transaction entered into on the basis when no such tax was in force. We have not been shown any authority for the proposition that abstention of the Government or non-exercise of delegated authority to impose that tax at a given time under delegated authority, gives a vested right to any one to be exempted from the payment of such tax ipso facto subsequently when such tax is imposed.
Mr. Rahimtoola, learned counsel for some of the respondents besides arguing that duty could not be imposed so as to destroy vested rights created in favour of the importer after a contract of sale was concluded and L. C. opened, further urged that the policy announced by the Government imposing no regulatory duty on Soyabean Oil in the first instance constituted promissory estoppel as in the meantime his clients had acted on the initial declaration of policy providing no regulatory duty on the commodity in question, Mr. Fakhruddin G. Ebrahim and Mr. Khalid Anwar also advanced a similar argument in urging that, once the Government takes a conscious decision on what articles regulatory duty should be imposed, if subsequently within the same financial year duty is imposed on one of the items free from such duty, a question of vested right and promissory estoppel does arise and the Government cannot be allowed to go back upon such representation. However, as already discussed abstentation from subjecting a particular item of goods from regulatory duty at a given time, or for that matter at the commencement of the financial year, does not create any vested right in favour of any party who may have entered into contracts on that basis, because the authority to levy the duty is the sovereign power of the State by the device of delegated legislation for imposing a tax. So far as the argument on promissory estoppel is concerned, there is no question of a representation on the part of the Government, which is an essential element of the principle of promissory estoppel, when particular item is not subjected to duty at the initial stage."
So far the principle high lighted in the Quranic Injunctions relied upon by the learned counsel is concerned, there is no denial of the same at all but same would be applicable between the parties who have signed the agreement. The Federation of Pakistan is not signatory to the loan agreement, therefore, it is not bound with the condition of the same. It is equally important to note that even the copies of the agreement have not been placed before us for the purpose of reading the condition noted therein. We may observe here that the respondent can also not claim a right for not paying a duty on excisable services in view of the fact that legislature under the Constitution is competent to levy excise according to the Section 3 of the Act, 1944 which has already been declared a valid piece of legislature in the Hijina`s case (ibid).
Thus for the foregoing reasons appeals filed against the judgments of High Court of Sindh at Karachi dated 22.12.2000 and 23.10.2001 are accepted whereas the appeals filed against the judgment of the Lahore High Court, Lahore dated 4.4.2002 and 27.5.2004, are rejected with costs throughout.
(Javed Rasool) Order accordingly.
PLJ 2007 SC 340
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
IFTIKHAR AHMAD--Petitioner
versus
Mst. JEHAN ARA & 3 others--Respondents
Civil Petition No. 359-P of 2006, decided on 14.11.2006.
(On appeal from the judgment dated 8.3.2006 of the Peshawar High Court, in Writ Petition No. 227 of 2006).
Ex-parte decree--
----Respondent filed a suit for maintenance and recovery of dowery--Trial Court summoned the petitioner through registered A.D, same returned unserved--Court published a notice against petitioner in newspaper but in vain--Ex-parte decree was passed--After 1 year petitioner moved an application for setting aside ex-parte decree--Without mentioning valid and cogent ground and without an application for condonation of delay--Address given by the petitioner was the same as mentioned in plaint--Trial Court adopted all legal modes for affecting the service on petitioner--Trial Court was justified to pass ex-parte order against the petitioner who was supposed to file application for setting aside ex-parte decree within the stipulated period of limitation--Being the family member had the full knowledge of the case--There was no reason to believe that the petitioner did not know about the suit--No legal infirmity in the judgment of the High Court, which was neither slip shot nor arbitrary--Leave to appeal refused. [Pp. 341 & 342] A
Haji Muhammad Zahir Shah, AOR for Petitioner.
Respondents not represented.
Date of hearing : 14.11.2006.
Order
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 8.3.2006 of a learned Division Bench of the Peshawar High Court, Peshawar, whereby Writ Petition No. 227 of 2006 filed by him was dismissed.
Briefly, stated the facts giving rise to the filing of instant petition are that Mst. Jehan Ara respondent brought a suit against petitioner Iftikhar Ahmad Khan for recovery of maintenance as well as dowry amount and other expenses. It was alleged in the plaint that marriage of Jehan Ara respondent was solemnized with petitioner on 26.11.1998 and out of this wedlock two children were born. Later on relations between the spouses got strained and petitioner divorced Respondent No. 1. The trial Court summoned the petitioner but when his service could not be affected through ordinary means, even publication was made in the daily "Pakistan", Lahore, but he did not turn up. On 13.4.2005 when the matter was fixed for hearing, petitioner did not appear, therefore, ex-parte proceedings were ordered. In proof of ex-parte proceedings, Respondent No. 1 adduced her evidence and got examined herself as PW-1. On relying the version of Respondent No. 1, an ex-parte decree for recovery of dower, maintenance and medical expenses was passed against the petitioner vide judgment and decree dated 9.9.2003.
It was for the first time that on 2.2.2005 an application for setting aside the ex-parte decree was filed by petitioner wherein he stated that he came to the knowledge of above decree a few days ago, as such application was within time. However, it was not at all accompanied by application for condonation of delay. The trial Court summoned the opposite party who appeared and raised several legal and factual objections by filing written statement. On 13.4.2005 after hearing both the parties, the trial Court accepted the application and set aside the ex-parte decree on payment of cost of Rs. 2,000/-. Feeling aggrieved, Respondent No. 1 challenged the same by filing appeal before the learned Additional District Judge-VII, Peshawar which was allowed and the order dated 9.9.2003 passed by the trial Court was set aside vide judgment dated 13.10.2005. The petitioner approached the learned High Court by filing Writ Petition No. 227 of 2006 which too was dismissed vide impugned order.
We have heard Haji Muhammad Zahir Shah, learned ASC for the petitioner and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel for the petitioner contended that the order of the learned High Court is not sustainable in law as the same is based on non-appraisal of record. He contented that petitioner was not properly served. He further contended that the suit for restitution of conjugal rights filed by petitioner has been decreed ex-parte in his favour at Karachi. According to him no opportunity was given to the petitioner to produce his evidence in support of his application for setting aside ex-parte decree and was condemned unheard. He contended that respondent has miserably failed to prove that the petitioner had got any knowledge of the suit, proceedings or ex-parte decree. He further contended that the learned High Court as well as the learned appellate Court have wrongly held that the petitioner was served in accordance with law as he had not received any summon or any news paper particularly when the address of the petitioner was wrongly given by the respondents.
The record shows that on 2.5.2003 respondents filed a suit for maintenance and recovery of dower amount before the trial Court. The trial Court summoned the petitioner through registered A.D. cover but the same was returned unserved with the report that the petitioner was not available on the given address. Thereafter, the trial Court published a notice against the petitioner in Daily "Pakistan", Lahore, but in vain. On 9.9.2003 an ex-parte decree was passed in favour of respondents against the petitioner by the trial Court on merits after examining Respondent No. 1 as PW-1. It was after one and a half year, petitioner filed application for setting aside ex-parte decree before the trial Court on 2.2.2005 without mentioning any valid and cogent ground for not filing the same well in time. Even application for condonation of delay was not filed. In the aforesaid application, the address given by the petitioner was the same as mentioned in the plaint on which initially the lower Court sent summon through Registered/A.D. It shows that the trial Court adopted all legal modes for effecting the service on petitioner but neither petitioner nor anyone else on his behalf attended the Court. After publication in the daily "Pakistan", Lahore, the trial Court was justified to pass ex-parte order against the petitioner. Even otherwise under the law, the petitioner was supposed to file the application for setting aside ex-parte decree within the stipulated period of limitation but he did not file the same within time and rather he filed the same after the delay of one and half year. It is also an admitted fact that petitioner is the first cousin of Respondent No. 1, therefore, being the family member had the full knowledge of the case. There is no reason to believe that the petitioner did not know about the suit. We do not find any legal infirmity in the judgment of the High Court, which is neither slip shot nor arbitrary.
Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(Malik Sharif Ahmed) Leave refused.
PLJ 2007 SC 342
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
MUHAMMAD SAMI--Appellant
versus
ADDITIONAL DISTRICT JUDGE, SARGODHA & 2 others--Respondents
Civil Appeal No. 577 of 2002, decided on 3.10.2006.
(On appeal from the order dated 22.6.2001 of the Lahore High Court, Multan Bench, passed in Writ Petition No. 11398 of 2001).
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Jurisdiction--Validity--Learned Judge in Chamber while exercising revisional jurisdiction has reappraised and re-evaluated the entire evidence which could have been done when finding is based on insufficient evidence, misreading of evidence, erroneous assumption of facts and patent errors of law--Case was remanded to High Court.
[P. 346] B
Limitation Act, 1908 (IX of 1908)--
----S. 5--Constitution of pakistan, 1973, Art. 185(3)--Question of limitation--Determination--Bounden duty of Court--Order passed by trial, appellate or revisional Courts should be indicative of the fact that the Courts concerned were not only aware but conscious regarding the question of limitation dealt with the same with diligent application of mind prior to dilating upon and deciding the controversy on merit because disposal on merit alone would not be sufficient to presume that the delay was condoned. [P. 346] A
PLD 1969 SC 167 and PLD 1985 SC 153 ref.
Ch. Muhammad Ashraf, ASC for Appellant.
Nemo for Respondents No. 1 & 2.
Muhammad Munir Paracha, ASC for Respondent No. 3.
Ch. Muhammad Akram, AOR for Respondent No. 4.
Date of hearing : 3.10.2006.
Judgment
Abdul Hameed Dogar, J.--This appeal with leave of the Court is directed against the judgment dated 22.6.2001 of a learned Judge in Chambers of Lahore High Court, Multan Bench, Multan, whereby Civil Revision No. 352 of 1998 filed by appellants was dismissed.
Briefly, stated the facts of the case are that the property in dispute measuring 2-kanals was admittedly owned by Khan Bahadur Sheikh Munir Hussain, predecessor-in-interest of the parties. In the year 1933, before the present appellant was born, deceased wrote a letter to the revenue authorities to mutate the said property in favour of his son-Respondent No. 3 and daughter. The present appellant was, however, born in the year 1940. According to appellant, the mother, Respondent No. 3 and his sister decided that appellant should not be deprived of his right, therefore, a family settlement was agreed in the year 1960 according to which he was also given share in the property equal to the share of Respondent No. 3. It was decided with a view to give effect to the said family settlement which was got settled by the mother as a sign of respect to her by the parties to file a suit to get the said family settlement incorporated in a consent decree to give it legal form, a suit was filed and the same was got decreed on 1.4.1960. On the basis of this consent decree, Mutation No. 1628 was also sanctioned. In the year 1967, Mst. Suriya Begum the sister filed a suit for partition of the said property in which both the brothers namely the present appellant and Respondent No. 3 appeared and consented to the passing of such a decree according to the shares given to them in family settlement as a consequence of which, on 26.10.1967 the said suit was decreed and the property partitioned. Since then, the two brothers and the sister had been enjoying the fruits of the shares allocated to them after partition.
Subsequently, Respondent No. 3 in 1982 filed a suit for declaration that consent decree based on family settlement dated 1.4.1960 was not binding on him having been obtained through misrepresentation etc. Thus suit was dismissed on 10.12.1983. The appeal filed by Respondent No. 3 against the said judgment and decree was dismissed by the First Appellate Court on 12.6.1984 against which revision petition filed by him before the High Court was dismissed as withdrawn on 9.12.1984.
On 27.1.1986, Respondent No. 3 filed an application under Section 12(2) CPC praying that decree dated 1.4.1960 based on family settlement may be set aside as the same had been procured through concealment of facts and fraud as he had not participated in the proceedings of the suit on the basis of which consent decree had been passed. This application was contested by the appellant on the ground of limitation apart from the other grounds on merits by controverting the plea of fraud, etc. raised by Respondent No. 3. It was, however, accepted through order dated 2.3.1993 by the trial Court against which revision petition filed by the appellant was dismissed through judgment dated 6.7.1995 by the learned Additional District Judge. Constitutional Petition to challenge these orders was filed by the appellant which too has been dismissed vide impugned judgment.
Leave to appeal was granted by this Court on 19.3.2002 to consider the contentions raised by the learned counsel for the appellant.
We have heard Ch. Muhammad Ashraf, learned ASC for appellant and Mr. Muhammad Munir Peracha, learned ASC for Respondent No. 3 and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel for the appellant contended that alongwith the findings on merits in the constitutional petition, findings of the Courts below on the question of limitation had also been challenged which question the High Court was bound to attend and decide, for in case the appellant had succeeded in establishing that the application made by Respondent No. 3 under Section 12(2) CPC was barred by time and there was no legal justification for giving him benefit of the period spent by him in prosecution of the civil suit up to the High Court or even if benefit of the said period was also given, the said application was still barred by time. The trial Court was bound to dismiss the same under Section 3 of the Limitation Act, as no jurisdiction was vested to entertain it and decide the same on merits which question being substantial question relating to assumption of jurisdiction by the trial Court, therefore, was within the scope of Article 199 of the Constitution. The erroneous view taken by the High Court has resulted not only in miscarriage of justice but also failure to exercise jurisdiction vested in the said Court to entertain the writ petition. He further argued that the Courts below have also failed to notice another very substantial question that the respondent did not challenge the aforementioned consent partition decree passed in the year 1967 based on the family settlement according to which the parties had been enjoying their shares since then, therefore, it was a case of non-consideration of this material circumstantial evidence on account of which the judgments passed by the two Courts below were rendered without lawful authority which question fell within the ambit of Article 199 of the Constitution as such on this account too, the learned Judge of the High Court has failed to exercise jurisdiction vested in him under the law. According to him the mere fact that decree dated 1.4.1960 based on family settlement had been obtained in one day when the suit was filed, was not a matter between two stranger persons but between the brothers and sister and the suit was filed with previous settlement that the family settlement effected by the mother as agreed between the parties should be honoured, acknowledged and given legal form, therefore, the impugned judgments passed by the two Courts below suffer from acute non-consideration of this material aspect of the case. He contended that the transfer of the property which was situated within the Municipal Limits of Sargodha on the basis of unregistered document in favour of the respondent and the sister did not have the effect of transferring any title in the property in their favour on the one hand and the same also did not have the effect of extinguishing the rights of ownership of Khan Bahadur Sheikh Munir Hussain the original owner on the other hand, therefore, the family settlement brought about with the agreement of all the parties and good office of the mother did not in any manner offend against the law and also had the effect of doing justice to sons and daughter of Khan Bahadur Sheikh Munir Hussain deceased. He further contended that Mst. Suriya Begum did not support the application of the respondent, for in case of its acceptance, he was also to get benefit as his share would have been enhanced which circumstantial evidence has also not been taken into consideration by the Courts below, as such, it was a case of misreading of evidence which was within the scope of Article 199 of the Constitution, for any/judgment based on misreading of evidence was without lawful authority and of no legal effect.
On the other hand Mr. Muhammad Munir Peracha, learned ASC for respondent vehemently controverted the view-point as canvassed by learned counsel for appellant and supported the impugned judgment being free from any illegality or serious irregularity.
It is worth mentioning that the question of limitation was neither dilated upon nor decided by the learned High Court. In our considered view the question of limitation should have not been left unattended to having a substantial bearing on the fate of the case. It is bounden duty of the Court to notice the question of limitation irrespective of the fact whether it was agitated or not. In this regard we are fortified by the dictum laid down in case titled Muhammad Buta v. Habib Ahmad (PLD 1985 SC 153). There is no cavil with the proposition that any order or judgment passed by trial, appellate or revisional Courts should be indicative of the fact that the Courts concerned were not only aware but conscious regarding the question of limitation dealt with the same with diligent application of mind prior to dilating upon and deciding the controversy on merit because disposal on merit alone would not be sufficient to presume that the delay was condoned. In this regard reference can be made to case titled Ahsan Ali v. District Judge (PLD 1969 SC 167), which still holds the field and relevant portion whereof is reproduced herein below for ready reference:--
"It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits.
It is an admitted feature of the case that learned Judge in Chambers while exercising revisional jurisdiction has reappraised and revaluated the entire evidence which could have been done when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts and patent errors of law. It has, however, been observed in the same wake of event that the evidence led by the appellant has not been scrutinized vigilantly and no reason has been given for discarding the same.
In the light of foregoing discussion we are inclined to accept this appeal by setting aside the impugned order and case is remanded back to the High Court with direction to decide the question of limitation, including any other question as may be deemed fit and proper for just decision of the case after affording proper opportunity of hearing to both the parties. The appeal is accordingly accepted with no order as to costs.
(Malik Sharif Ahmed) Case remanded.
PLJ 2007 SC 346
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
DURRANAI and 35 others--Petitioners.
versus
HAMIDULLAH KHAN and 15 others--Respondents
C.P. No. 378-P of 2003, decided on 20.10.2006.
(On appeal from the judgment dated 6.5.2003 of the Peshawar High Court, Peshawar passed in Civil Revision No. 306 of 1996).
Limitation Act, 1908 (IX of 1908)--
----S. 28, Art. 148--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Right of title--Petitioners were the mortgagees of suit land which was not redeemed--Limitation of 60 years--Mortgagees brought a suit for declaration that they have prescribed title--A suit for prescription of title could be fruitful only if mortgagee is fortunate to obtain a decree before 31.8.1991--After target date, the right on title of the mortgagor shall not be deemed extinguished--Held: If mortgagee makes an option to bring a suit for prescription of title, it must be brought so as to obtain a decree before 31.8.1991--Leave refused. [P. 348] A
1991 SCMR 2063 and 2004 SCMR 1137 ref.
Mr. Abdul Samad Khan, AOR for Petitioners.
Mr. Javed A. Khan, ASC with Mr. Mir Adam Khan, AOR. for Respondents.
Date of hearing : 9.10.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Admittedly Durranai and others, the petitioners were the mortgagees of the suit land which was not redeemed by the respondents/mortgagors within a period of 60 years as provided by Article 148 of the Limitation Act. The mortgagees brought a suit for declaration that they had prescribed title to the suit land. The learned trial Court decreed the suit but the learned First Appellate Court and the learned High Court non-suited the plaintiffs. Durranai etcetera the mortgagees seek leave to appeal from the judgment dated 6.5.2003 of the Peshawar High Court, Peshawar.
The learned High Court was of the view that in Maqbool Ahmad's case (1991 SCMR 2063)-incorrectly mentioned in the impugned judgment as Karamat Hussain's case (1991 SCMR 2061), the provisions of Section 28 of the Limitation Act were declared repugnant to the Injunctions of Islam with effect from 31.8.1991, and as, the mortgagees had failed to obtain a decree in their favour before 31.8.1991, the title of mortgagors in the property shall not be extinguished. The decree, in fact, was obtained on 2.6.1994.
Learned counsel for the respondents supported the aforesaid view but the learned counsel for the petitioners differed, contending that, for a mortgagee to prescribe title, it is sufficient that a period of 60 years has expired prior to 31.8.1991 and it is not necessary that he should also have obtained a decree prior to the target date. Article 148 of the Limitation Act runs against a mortgagor and contemplates a suit to be brought by him and not the mortgagee. If a suit is not brought by a mortgagor within 60 years for possession of such property, his right to such property was bound to be extinguished, as provided by Section 28 of the Limitation Act. Neither Section 28 nor the relevant Article 148 of the Act anywhere provide that, in case of extinguishment of right of the mortgagor, the mortgagee shall automatically become owner. It seems that mortgagees used to bring suits for declaration of title for the only ostensible reason that once the right of mortgagor to such property stands extinguished, the mortgagee, as compared to any other person, has a better right to own the property and claim title thereto. This idea cannot be materialized unless, mortgagee brings a suit and succeeds in getting a declaration in his favour.
In Maqbool Ahmad's case, when Section 28 of the Limitation Act 1908 was declared repugnant to the Injunctions of Islam, a specific date (31.8.1991) was fixed for repugnancy to take such effect. When no Section of Limitation Act declares a mortgagee to become the owner automatically and when he has to prove his better alternative and preferential right, it is incumbent upon him to bring a suit and seek declaration. It is only then that he would be vested with title thereafter.
A suit for prescription of title could be fruitful only if mortgagee is fortunate to obtain a decree before 31.8.1991 because, after the aforesaid target date, the right or title of the mortgagor shall not be deemed extinguished. We, therefore, hold that if a mortgagee makes an option to bring a suit for prescription of title, it must be brought so as to obtain a decree before 31.8.1991. A similar view has been taken by this Court in Muhammad Hussain's case (2004 SCMR 1137).
It is not denied that in the instant case the mortgagees had obtained decree only on 2.6.1994 when Section 28 of the Limitation Act was no more a part of the statute. The learned appellate Court and the learned High Court have, therefore, rightly non-suited the petitioners/mortgagees. There being no force in the petition, it is hereby dismissed and leave to appeal refused.
(Malik Sharif Ahmed) Leave refused.
PLJ 2007 SC 348
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
EHSAN AKBAR--Petitioner
versus
STATE and 2 others--Respondents
Crl. P. No. 185 of 2006, decided on 26.9.2006.
(On appeal from the order dated 28.4.2006 of the Lahore High Court, Rawalpindi Bench, passed in Crl. M. No. 320-B of 2006).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Pakistan Penal Code (XLV of 1860), Ss. 302, 34 & 109--Constitution of Pakistan, 1973, Art. 185(3)--Appreciation of evidence--Entitlement for grant of bail--Validity--Concession of granted bail was recalled--While granting bail only tentative assessment of evidence is to be made whereas deeper appreciation of evidence is to be avoided.
[P. 351] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Pakistan Penal Code (XLV of 1860), Ss. 302, 34 & 109--Constitution of Pakistan, 1973, Art. 185(3)--Appreciation of evidence--Entitlement for grant of bail--Validity--Concession of bail granted was recalled--A deeper appreciation of evidence is not called for and the Court seized of the matter in terms of 497(1) Cr.P.C. is required to make tentative assessment of evidence available on record--Respondent was failed to make out a case for cancellation of his bail--Petition to his extent dismissed--Bail granted to accused recalled.
[P. 351] B & C
Dr. Babar Awan, ASC for Petitioner.
Mr. Khadim Hussain Qaiser, Addl. AG Pb. for Respondent No. 1.
Sardar Muhammad Ishaque, Sr. ASC with Respondent Nos. 2 and 3.
Date of hearing: 27.9.2006.
Judgment
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the order dated 28.4.2006 of a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Misc. No. 320/B/2006 filed by Respondent No. 2 Qadeer Ahmad and Respondent No. 3 Abdul Ghaffar was allowed and they were granted bail in a case registered vide FIR No. 482 dated 18.12.2005 at Police Station Shahzad Town, Islamabad for offences under Sections 302/34 and 109 PPC read with Sections 6 and 7 of Anti Terrorism Act, 1997.
Precisely stating facts of the case according to the complainant/petitioner are that on the night between 17/18.12.2005 at about 3.15 a.m. he heard noise of abuses from roof top and his son Zamir went there. Thereafter he, his son Shafique, wife of Zamir and son in law of Shabbir saw Qadeer Ahmad Respondent No. 2 armed with Kalashnikov and Respondent No. 3 Abdul Ghaffar armed with churri alongwith other co-accused namely Zahoor and Naseer who were also armed with deadly weapons. Respondent No. 3 Abdul Ghaffar raised lalkara that Zameer would not be let alive. Whereupon Respondent No. 2 Qadeer Ahmad and other co-accused started firing with their respective weapons which hit on the different parts of Zameer. When he tried to rise from the ground, respondent Abdul Ghaffar gave him a churri blow on his neck who succumbed to the injuries at the spot.
We have heard Dr. Babar Awan, learned ASC for petitioner/complainant, Mr. Khadim Hussain Qaiser, Addl. Advocate-General Punjab for the State and Sardar Muhammad Ishaque, learned Sr. ASC for Respondents No. 2 and 3 at length and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel for the petitioner vehemently contended that learned High Court while granting bail to respondent Nos. 2 and 3 had not appreciated the facts of the case in depth and the same is contrary to settled principles of law governing the grant of bail under Section 497(1) Cr.P.C. According to him, specific roles have been attributed to both respondents in commission of offence. Thus the finding of learned High Court that there is a case of further inquiry is not sustainable in law. It is also settled principle of law that opinion of investigating officer is not binding on the Courts. He further contended since charge has been framed and trial is to commence as such grant of bail at this stage will prejudice the case of the petitioner. In support of his contentions he referred to the cases of Nazir Ahmed Vs. Muhammad Ismail and another (2004 SCMR 1160) and Raja Muhammad Irshad Vs. Muhammad Bashir Goraya (2006 SCMR 1292).
Learned Additional Advocate-General Punjab supported the counsel for petitioner and added that in given facts and circumstances of the case, Respondents No. 2 and 3 were not entitled for grant of bail.
On the other hand learned counsel for respondents contended that case of Respondent No. 3 Abdul Ghaffar is of further inquiry as according to FIR he was armed with Churri and caused churri, blow on the neck of deceased but the same is not corroborated by post mortem report wherein not even a single injury caused by sharp edge weapon has been shown. As regards to Respondent No. 2 Qadeer Ahmed he contended that his case is also of further inquiry as he has been declared innocent by police during investigation. He further contended that there is consistent practice of this Court that once bail is granted to a person, then it is not to be cancelled without any cogent reasons.
It is well-settled principles of law that this Court ordinarily does not interfere with the order of the High Court relating to bail particularly in case of murder when the trial is to commence so as to avoid discussion and remarks on the merits of the case. But it is also fact that for cancellation of bail, strong and exceptional grounds are required. It is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. Considering the case of respondents for grant of bail on the above touchstone, we are of the considered opinion that the learned High Court was not at all justified in extending benefit of grant of bail to Respondent No. 2 Qadeer Ahmed. He was not only attributed specific role of firing at the deceased but his participation is corroborated by presence of firearm injuries on the person of deceased. The main ground which weighed with the learned High Court for grant of bail to Respondent No. 2 Abdul Qadeer was that the recovery of klashankov was not made from him is not at all a valid ground. Accordingly, his case is not of further inquiry as contemplated under Section 497(2) Cr.P.C. and the grant of bail has prejudiced the case of complainant/petitioner as it amounts to deeper appreciation of evidence. It is well settled principle of law that while granting bail only tentative assessment of evidence is to be made whereas deeper appreciation of evidence is to be avoided, this principle has been ignored by learned High Court while granting bail to Respondent No. 2. Reference can be made to the case of Nazir Ahmed (supra) wherein this Court cancelled the bail allowed to accused by High Court on the ground that specific role of firing at deceased was attributed to accused. In the case of Raja Muhammad Irshad referred (supra) bail granted to respondent was cancelled though he was charged for the offence under Section 109 PPC in murder case and it was held that while considering the request of the accused on bail, a deeper appreciation of evidence is not called for and the Court seized of the matter in terms of S. 497(1) Cr.P.C. is required to make tentative assessment of evidence available on record.
As far as the case of Respondent No. 3 Abdul Ghaffar is concerned, there is a conflict between the prosecution version and the medical evidence. As per prosecution case, he gave churri blow on the neck of the deceased whereas according to MLR as well as the diagram all the injuries were caused with firearm weapon. As such his case is on different footing.
For the foregoing reasons impugned judgment dated 28.4.2006 to the extent of Respondent No. 2 Qadeer Ahmed is set aside and the concession of bail granted to him is recalled. He is directed to surrender before the learned trial Court. The petition to his extent is converted into appeal and allowed. As far as Respondent No. 3 Abdul Ghaffar is concerned, learned counsel has failed to make out a case for cancellation of his bail, as such the petition to his extent is dismissed.
(Malik Sharif Ahmed) Order accordingly.
PLJ 2007 SC 352
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry C.J., Javed Iqbal, Abdul Hameed Dogar, Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Saiyed Saeed Ashhad, Nasir-ul-Mulk, Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
MUNIR A. MALIK--Petitioner
versus
MALIK MUHAMMAD QAYYUM and others--Respondents
Civil Petition No. 1003 of 2006, decided on 21.11.2006.
(On appeal from the order dated 8.11.2006 passed by Lahore High Court, Rawalpindi Bench Rawalpindi in C.M.A. No. 1 of 2006 in W.P. No. 2801 of 2006).
Constitution of Pakistan, 1973--
----Art. 185(3)--Election dispute arose between rival candidates contesting for the office of President of Supreme Court Bar Association--Returning Officer issued two notifications--Challenged before Executive Committee of Pakistan Bar Council--Interim relief was granted--Validity--Both the sides have raised a number of disputed questions of fact and law which were required adjudication in the first instance by a Tribunal of plenary jurisdiction--Held: Orders passed by Executive Committee of Pakistan Bar Council and by High Court were passed ex-parte--Issuance of notice was necessary--No reasons tenable in law have been given while passing these orders--Relief claimed before Pakistan Bar Council and before High Court--Violative of the consistent law laid down by Supreme Court regarding grant of interim injunctions--Order passed by the Executive Committee of Pakistan Bar Council and order passed by High Court were set aside--Pakistan Bar Council was directed to dispose of appeal filed by petitioner within a period of two weeks--Petition was converted into appeal and allowed. [Pp. 354 & 355] A, B, C & D
Mr. Abdul Hafeez Pirzada, Sr. ASC assisted by M/s. Muhammad Afzal Siddiqui, Miangul Hassan Aurangzeb, Sikandar Bashir Muhammad and Hamid Ahmad, Advocates & Mr. Mehr Khan Malik, AOR for Petitioner.
Raja Muhammad Ibrahim Satti, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondent No. 1.
Mr. Muhammad Akram Sheikh, Sr. ASC assisted by M/s. Raheel Kamran Sheikh; Raza Muqsit Nawaz Khan, Advocates, Mr. A. Karim Malik, Sr. ASC; Mr. Hashmat Ali Habib, ASC; Ch. Afrasiab Khan, ASC and Ch. Akhtar Ali, AOR for Respondent No. 4.
Ch. Iitezaz Ahsan, Sr. ASC assisted by Barrister Gohar Ali Khan, Advocate and Mr. M.S. Khattak, AOR for Respondents No. 6 & 7.
Sahibzada Anwar Hameed, ASC; Mr. Ahmad Awais, ASC and Mr. Faiz-ur-Rehman, AOR. (Absent) for Respondent No. 8.
Nemo for Respondents No. 2, 3, 5 & 9.
Dates of hearing: 20, 21.11.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed for leave to appeal against the order dated 8th November 2006 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Misc. Application No. 1 of 2006 in Writ Petition No. 2801 of 2006. Operative para therefrom is reproduced herein below:
"4. In the meanwhile, operation of the impugned order dated 7.11.2006 passed in Appeal No. 1 of 2006 by the Respondent No. 2 Executive Committee of Pakistan Bar Council suspending the Election result declared by the Returning Officer of the Supreme Court Bar Association Election/Respondent No. 7 dated 6.11.2006. Notification dated 2.11.2006 with regard to the Election result of the Office Bearers of Supreme Court Bar Association issued by the Ex-Secretary and Vice President, shall remain suspended and the proceedings of the appeal before Respondent No. 2 shall also remain stayed subject to notices for an early date. "
"We have heard Mr. Tariq Mahmood, Counsel for the Appellant and have perused documents filed with the appeal and submitted during hearing. We are of considered view that the above contentions need serious consideration therefore this appeal is admitted to regular hearing. Let the notice of the appeal be sent to the Respondents for 11.11.2006 at Islamabad. Notice may also be issued for the said date to the outgoing and incoming Secretaries SCBAP and Presiding Officers of the Polling Station at Karachi. The Secretary, Supreme Court Bar Association of Pakistan, Syed Zulfiqar Ali Bokhari is hereby directed to take into possession the entire election record and produce it before this Committee on aforesaid date.
The appellant is also seeking interim relief by way of suspension of the impugned Notification dated 6.11.2006. This Committee feels that the earlier Notification dated 2.11.2006/31.10.2006 signed by the outgoing Secretary has prima facie validity attached to it. Therefore in the meantime it is ordered that the operation of impugned Notification dated 6.11.2006 is suspended and the notification dated 2.11.2006 particularly keeping in view the Notification of 2.11.2006/31.10.2006 signed by the outgoing Secretary declaring the appellant Muneer A. Malik elected as President, Supreme Court Bar Association of Pakistan is hereby revived and the appellant is allowed to work as President, Supreme Court Bar Association till the next date.
The Secretary, Pakistan Bar Council is directed to intimate the above order to the concerned Banks wherein the Supreme Court Bar Association is maintaining its accounts."
Against this order Respondent No. 4 Raja Haq Nawaz Khan preferred writ petition alongwith application for interim relief which has been granted vide impugned order. Relevant para therefrom has already been reproduced hereinabove.
We have heard the learned counsel for the parties at considerable length and have also taken into consideration the material available on record. Both the sides have raised a number of disputed questions of fact and law which require adjudication in the first instance by a Tribunal of plenary jurisdiction. We are therefore persuaded to hold, declare and direct as under:--
(i) That both the orders i.e. order passed by the Executive Committee of the Pakistan Bar Council dated 7th November, 2006 and the order passed by the learned Single Judge of the Lahore High Court at Rawalpindi in CMA No. 1 of 2006 in W.P. No. 2801 of 2006 were passed ex-parte whereas under the circumstances issuance of the notice was necessary;
AND
No reasons tenable in law have been given which persuaded the two forums to pass these orders;
AND
The reliefs claimed in the appeal (before Pakistan Bar Council) and in the main petition (before the High Court) were granted vide interim orders referred to above which is violative of the consistent law laid down by this Court regarding the grant of interim injunctions.
(ii) That Mr. Abdul Hafeez Pirzada, learned counsel for petitioner has candidly conceded that he has no objection if the order passed by the Executive Committee of the Pakistan Bar Council dated 7th November, 2006 is set aside, provided the order passed by the High Court impugned in this petition is also annulled.
Petition is converted into appeal and allowed in terms noted above.
(Malik Sharif Ahmad) Petition allowed.
PLJ 2007 SC 355
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry C.J., and
Muhammad Nawaz Abbasi, J.
Mst. KHARIA BIBI--Appellant
versus
Mst. ZAKIA BEGUM and 2 others--Respondents
Civil Appeal No. 1618 of 2003, decided on 11.10.2006.
(On appeal from the Judgment dated 8.10.2003 passed by Lahore High Court, Rawalpindi Bench in C.R. No. 145/D/1998).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973, Art. 185(3)--Talab-e-Muathibat--Place, time and date of performance of talab-e-muatibath are required to be mentioned in the pleadings with the object of such observation in the judgment that in order to determine the question of Limitation it is necessary to know exact date and time when talab-e-muatibath was performed and it is also necessary to perform talab-e-muatibath because according to law after performing talab-e-muatibath within 14 days notice of talab-e-ishhad has to be issued--Admittedly in the instant case no such details were mentioned in the pleadings, therefore following the law on the subject reported in different cases--Held: First Appellate Court rightly directed dismissal of suit filed by the respondent/petitioner--Appeal allowed. [P. 357] A
PLD 2003 SC 315, 2005 SCMR 1231, 2005 SCMR 431; PLD 2006 SC 309 and CP No. 822/2006, followed.
Mr. Gul Zarin Kiani, ASC and Mr. M.S. Khattak, AOR for Appellant.
Mr. Muhammad Younis Bhatti, ASC for Respondents.
Date of hearing: 11.10.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This appeal has been filed against the judgment dated 8.10.2003 of the High Court whereby revision filed by the respondent against the judgment of the Additional District Judge dated 12.2.1998 has been accepted as a result whereof the judgment of Civil Judge, Attock dated 11.1.1997 has been restored as a consequence whereof their suit for pre-emption also stood restored.
It is an admitted fact that on 29th December, 1992 petitioner purchased agricultural land measuring 10-K situated in Mozah Baryal, District Attock against consideration of Rs. 4,10,000/- from Muhammad Akbar and Khushnood, s/o Noor Elahi. The respondents Mst. Zakia, Mst. Dilshad and Mst. Tahira Naz statedly performed Talb-e-Muatibath to enforce the right of their pre-emption through their attorney Malik Ajaib Khan and after seven days issued a notice dated 8.2.1993, having signatures of two persons namely Muhammad Iqbal and Sajid Mehmood. Thereafter, the suit was filed by them for possession through right of pre-emption on 28.3.1993. It was vehemently contested by vendor/appellant inter alia on the ground that Talb-e-Muatibath has not been proved. Similarly the admissibility or otherwise of notice, sent by them to perform Talb-e-Ishhad was also objected to.
Learned trial Court, settled the issues arising out of the pleadings of the parties, including Issue No. 4, which is reproduced herein below:
If above Issue No. 4 is proved what was actual consideration amount paid by the vendee to the vendor or what was the market value at the time of sale transaction of the disputed land.
It may be noted that Mst. Zakia, Respondent No. 1 was examined through local commissioner appointed by the Court on 12th June, 1996 and her statement was treated to be as PW-5. In rebuttal appellant got herself examined. Learned trial Court decreed the suit on 11.1.1997. Appellant preferred appeal which came on the file of Additional District Judge, who accepted the same on 12th February, 1998, whereby the judgment/decree of the trial Court was set aside and suit was dismissed. The respondent preferred revision before the High Court on 1st April, 1998 which has been accepted on 8th October, 2003. As such instant direct appeal has been filed.
It is important to note that principle question for consideration before the High Court remained in respect of the performance of Talb-e-Muatibath. The claim put up on behalf of the pre-emptors was that on acquiring the knowledge about the sale of the property, they expressed their intention immediately to claim pre-emption, as such they performed Talb-e-Muatibath. Learned Additional District Judge, in its judgment dated 12.2.1998 had not accepted the contention but the High Court agreeing with the finding of the trial Court, accepted that Talb-e-Muatibath was performed according to law. Here the question is whether the Talb-e-Muatibath was performed indicating the place, time and date for performing the Talb-e-Muatibath.
Learned counsel for the appellant vehemently contended that no such assertion was made in pleadings. To substantiate his plea he has read relevant para from the plaint dated 28.3.1993.
On the other hand, learned counsel for the respondents/pre-emptors stated that although in the pleadings the date, place and time of performance of Talb-e-Muatibath is not mentioned but this fact got clarified through statement of PW-4 Ajaib Khan who appeared as their attorney. In this behalf it may be noted that by the time it is well settled that the particulars regarding the place, time and date of the performance of Talb-e-Muatibath are required to be mentioned in the pleadings with the object of such observation in the judgment that in order to determine the question of limitation it is necessary to know exact date and time when Talb-e-Muatibath was performed and it is also necessary to perform Talb-e-Muatibath because according to law after performing Talb-e-Muatibath within 14 days notice of Talb-e-Ishhad has to be issued. Admittedly in the instant case no such details were mentioned in the pleadings, therefore, following the law on the subject reported in different cases including Haji Muhammad Saleem Vs. Khuda Bukhsh (PLD 2003 SC 315), Muhammad Siddique Vs. Muhammad Sharif (2005 SCMR 1231), Akbar Ali Khan Vs. Mukammal Shah and others (2005 SCMR 431), (Atiqur Reham and others thr. their real father Vs. Muhammad Amin (PLD 2006 SC 309) and a recent judgment in CP 822/2006 dated 20th September, 2006 pronounced by the Bench, of which one of us (Iftikhar Muhammad Chaudhry, Chief Justice) is a Member, we are of the opinion that learned Additional District Judge had rightly directed for dismissal of the suit filed by the respondent/pre-emptor.
It is to be noted that High Court, while making interference in the judgment of the Appellate Court in fact had not discussed the judgments which have been referred to herein before. Therefore, we are of the opinion that on account of this reason, the impugned judgment admits interference by this Court and being not sustainable is liable to be set aside, therefore, appeal is allowed.
9 Thus, Judgment of the High Court is set aside and the judgment of the appellate Court dated 12.2.98 is restored. Parties are to bear their own costs.
(Malik Sharif Ahmed) Appeal allowed.
PLJ 2007 SC 358
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. and
Muhammad Nawaz Abbasi, J.
HUMAN RIGHTS CASE
By
(Fazal Hussain Complainant)
Human Rights Case No. 5091 of 2006, decided 20.10.2006.
Bonded Labour System (Abolition) Act, 1992--
----S. 5--Recovery of illegally detained persons--Fundamental right--Brick kiln owners had illegally confined 18 persons including the minors--Detenues were, prima facie, kept in illegal custody denying their fundamental rights as held in case PLD 1990 SC 513--Culprits made an attempt to save their skin-on different pretexts--Detenues had entered into an agreement to work at Brick kiln--Held: Bonded Labour System (Abolition) Act of 1992 was not sufficient to cater the requirement--To ensure the application of fundamental rights--Guarnateed by the constitution, the law must be more stringent--It was recommended that law givers might review the said provisions of law--Copy of the order sent to Chief Secretaries of all the Provincial Governments for adopting mechanism through labour department and Brick kilns in their provinces be registered alongwith particulars of the proprietors who would keep the regular record of the labours and would furnish a list of same to labour officer who will be visiting Brick kiln from time to time and will be submitting report to department--If any violation reported it would be brought into notice of DPO, DCO and Nazim of District for necessary action against violator and to ensure full application of Act, 1992.--Petition disposed of. [Pp. 361 & 362] A, B, C & D
Complainant: In person.
Ch. Muhammad Hussain, Addl. AG(Pb). Mr. Muhammad Tahir Ray, DPO Muzaffargarh. Eighteen abducted person on Court Notice.
Mr. Abdul Sadiq, ASC for Respondent.
Date of hearing: 20.10.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--Instant complaint was received through post wherein applicant has submitted details of the forcible detention of his family by Brick kiln owner in the area of Rajanpur.
A perusal of the complaint indicates that petitioner thrice approached to the High Court for recovery of whole of his family which has allegedly been detained by the Brick kiln owner, but he could not succeed in getting the relief firstly despite filing two writ petition, which were disposed of in view of the report of the bailiff that the detenues are not confined in the Brick kiln and secondly ICA filed by him was also dismissed. Thereafter, petition for leave to appeal was also filed by him but it was not entertained as he could not produce his NIC to identify himself.
On receipt of complaint DPO Muzaffargarh was directed to effect the recovery from the owner of Brick kiln. In pursuance where of efforts were made by the police and it came to know that the detenues are confined in the area of Rajanpur. Accordingly a Police Raid was arranged and ultimately 11 persons were recovered from the Brick kiln of Rahim Bakhsh S/o Khan Muhammad whereas 7 person were found confined on the Brick kiln of Mehmood Khan S/o Ghulam Muhammad. In this manner 18 persons have been recovered. Details of which has been mentioned in the report submitted by the DPO Muzaffargarh. Contents whereof are reproduced herein below :--
"....It is submitted in compliance with the order dated 16-10-2006, passed by Hon'ble Supreme of Pakistan, Islamabad, directions were issued to DSP/SDPO Alipur as well as SHO, PS Sadar Alipur for the recovery of the abductees from the owners of Brick kiln, who reported that on the pointation of the writ petitioner namely Fazal Hussain local Police conducted the raids at Brick kiln owned by Rahim Bakhsh S/o Khan Muhammad caste Burara R/o Kotla Gamoon. The following abductees were recovered:--
Allah Bakhsh S/o Qadir Bakhsh 35 yrs
Rab Nawaz S/o Shahro. 32 yrs
Kaleemullah S/o Allah Bakhsh. 13 yrs
Hafeezullah S/o Allah Baksh. 3/4 yrs
Saeedullah S/o Allah Bakhsh 5/6 yrs
Mst. Saima D/o Allah Bakhsh 5/6 yrs
Mst. Naziran w/o Rab Nawaz 27 yrs
Mst. Rukhsana D/o Rab Nawaz 10/11 yrs
Mst. Farhana D/o Rab Nawaz 2 yrs
Mst. Shaheena w/o Allah Bakhsh 21 yrs
Muhammad Ashraf S/o Karam 12 yrs
The local Police also conducted the raids on the pointation of writ petitioner namely Fazal Hussain at the brick kiln of Mehmood Khan S/o Ghulam Muhammad caste Rind R/o Hafizabad P.S Kot Mithan and the following abductees were recovered :--
Abdul Majeed S/o Qadir Bakhsh 50 yrs
Ashiq S/o Abdul Majeed 30 yrs
Nazim Hussain S/o Abdul Majeed 29 yrs
Mst. Shamshad w/o Ashiq Hussain 17 yrs
Mst. Nasreen w/o Nazim Hussain 19 yrs
Mst. Nehal Mat D/o Nazim Hussain 1 yrs
Mst. Sassi w/o Abdul Majeed 42 yrs.
In view of the above submissions, abductees have been recovered, who will be produced before the Hon'ble Supreme Court of Pakistan, Islamabad, on 20-10-2006"
A perusal of above report indicates that the Brick kiln owners allegedly had illegally confined 18 person of different ages including the minors.
Petitioner stated that there are few more persons who are still in custody of Brick kiln owner, whereas the version of the DPO is that some of them have already escaped from the custody of Brick kiln owner, however, further efforts shall be made to recover them, if they are detained.
Learned counsel appearing on behalf of Rahim Bakhsh Brick kiln owner, stated that the detenues were not forcibly detained on Brick kiln and fact is that they were working voluntarily in pursuance of agreement, therefore, the allegation has no substance. According to him, even prior to instant proceedings the bailiff of the High Court recovered all the persons and handed over them to the petitioner, as such, it is sufficient to prove that they where not detained forcibly.
Prima facie, the statement, made by the learned counsel does not seems to be correct because admittedly these detenues were never produced by the bailiff before the Court and petitioner's version throughout had been that they were confined on Brick kiln of Rahim Bakhsh. As a result whereof two writ petitions were filed for their recovery, which were dismissed thereafter ICA was filed which was also dismissed on technical ground.
Despite notice Rahim Bakhsh is not present and being represented by a counsel who had also no power of attorney but on acceptance of his representation he was allowed to argue the case. However, prima facie, we are of the opinion that detenues were never produced before the Court. Similarly in view of the provisions of Section 5 of the Bonded Labour System (Abolition) Act 1992 [herein after referred to as "the Act, 1992"] the stand of the learned counsel appearing on his behalf is not acceptable.
Be that as it may, it seems that detenues were, prima facie, kept in illegal custody denying their fundamental rights as held by this Court in the case of Darshan Masih alias Rehmatay and others vs. The State (PLD 1990 SC 513).
It may be noted that on account of this very judgment, the Act of 1992 was promulgated for the purpose of taking care of such class of labour who are detained some time alongwith their families for forcible labour particularly at Brick kilns. We have noticed while hearing the case that culprits makes an attempt to save their skin from criminal liability on different pretext including the one that labours were working voluntarily at Brick kiln. But in instant case it seems to be its own nature for the reasons that a breakthrough has been made to effect the recovery of such class of labours, who were detained by the Brick kiln owners on the pretext that they had entered into an agreement to work at Brick kiln.
It may be noted that notice was issued on 16th October 2006 and was received to DPO on 17th October and recovery was effected on the same night and they have been produced in Court. Such efficiency by the Police Officer under the leadership of Muhammad Tahir Ray, DPO Muzaffargarh deserve to be appreciated as they within a shortest period had effected the recovery of 18 persons. We hope that in future they would also be working with same zeal and efforts.
As recovery of 18 persons has been effected and statedly they have been allowed to live with the petitioner and Police protection has also been provided to them, therefore, they are ordered to be set free to live according to their wishes and DPO Muzaffargarh is directed to proceed against the delinquent strictly in accordance with law and submit report to the Registrar for our perusal in Chambers.
Previously we have held that although the Act of 1992 has been promulgated but in its terms it is not sufficient to cater the requirement because to ensure the application of fundamental rights of such class of labours guaranteed by the Constitution, the law must be more stringent, otherwise it would become very difficult for the law enforcing agencies as well as the Courts to effect the recovery of the detained persons and to punish the delinquents adequately. Thus it is recommended that law givers may review the said provisions of law by incorporating the provisions to cater requirements, as the prevailing presently.
It is to be noted that we had been receiving complaints from different quarters alleging illegal detention of labour by Brick Kiln owners but whenever probe is started breakthrough is not made for one or the other reason. Therefore, we consider it appropriate to send copy of this order to the Chief Secretaries of all the Provincial Governments for the purpose of adopting mechanism through Labour Department in pursuance whereof the Brick kilns in their respective Provinces are registered alongwith particulars of the proprietors with direction that they should keep the regular record of the labours engaged by them and shall furnish a list of the same to the concerned labour officer and when ever there is a change in the labour and the labour officer shall be visiting the Brick kiln as per their registered numbers from time to time and shall be submitting report to the department and if any matter of violation is reported by them of bonded labour it shall be brought into the notice of DPO, DCO and Nazim of the District for the purpose of necessary action against the violator and ensure a full implication of the Act 1992.
In this behalf if need be the Provincial Governments can seek assistant from the Free Aid Legal Committees functioning in all the Provinces under the control of Provincial Bar Councils and if need be a member of such Committee shall provide legal aid to the labours who have been subjected to bonded labour.
We are conscious of the fact that as far as Police is concerned it has to perform multifarious duties but they are also not observing their duties from this angle as well, therefore, respective DPOs shall be issuing standing instructions to the respective SHOs to have an eye on Brick kilns in their areas and if any case is noticed of bonded labour they may proceed against the Brick kiln owner for the purpose of ensuring fundamental rights which have been guaranteed to the citizens under the Constitution of the Islamic Republic of Pakistan. Similarly the Provincial Governments henceforth shall adhere strictly to the provisions of Section 5 of the Act 1992.
On receipt of copy of this order the Provincial Chief Secretaries shall lodge a campaign throughout the Province through agencies mentioned in Section 9 of the Act, 1992 keeping in view of the observations noted herein above, and shall ensure the implementation of law on the subject in letter and spirit to control the bonded labour in their respective Provinces.
Petition stands disposed of in view of above observations.
(Malik Sharif Ahmed) Petition disposed of.
PLJ 2007 SC 363 (DB)
[Appellate Jurisdiction]
Present: Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmad, Dr. Allama Khalid Mehmud &
Rashid Ahmad Jullundhari, JJ.
HIKMATULLAH and others--Petitioners
versus
STATE--Respondent
Crl. A. No. 8(S) of 2001 & Crl. P. No. 11(S) of 2001, decided on 27.11.2006.
(On appeal from the Judgment dated 9.10.1998 passed by Federal Shariat, Court, Islamabad in Criminal Appeal No. 48/Q of 1996 with Criminal Murder Reference No. 2/Q of 1996).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 392, 394 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused--Offences involved were of dacoity and robbery, accused could have entered into compromise and the compromise could be given effect to with reference to Section 302(b) PPC--Held: Nature of the offence committed and the number of persons killed--Principle of fasad fil-arz the offenders are most likely to be a potential danger to the community--In Criminal Appeal No. 8(5) of 2001, conviction of three accused u/S. 392/34 PPC was maintained--On acceptance of compromise sentence of death u/S 302(b) PPC set aside but within the contemplation of Section 311 PPC, the accused the sentenced each to imprisonment for life alongwith fine already improved--In Criminal Appeal No. 11(3) of 2001, conviction of accused u/S. 394 PPC maintained--However on acceptance of compromise u/S 302 (a) PPC the conviction and sentence was set aside but within the contemplation of Section 311 PPC, the accused is sentenced to imprisonment for life alongwith fine already imposed--Petition converted into appeal--Order accordingly. [P. 365] A
Raja Muhammad Ibrahim Satti, ASC with Mr. M.A. Zaidi, AOR for Appellants (in Cr.A. 8(S) of 2001).
Mr. Muhammad Raza, Additional Advocate General, Balochistan for State (in Cr.A. 8(S) of 2001).
Rai Muhammad Nawaz Kheral, ASC for Petitioner (in Cr.P. 11(S)/2001).
Mr. Dil Muhammad Tarar, ASC for State (in Cr.P. 11(S)/2001).
Date of hearing: 6.11.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Involving common question of law, the two cases in hand are proposed to be taken up together. Criminal Appeal # 8(S) of 2001 is filed against the judgment dated 9.10.1998 of the learned Federal Shariat Court while Criminal Petition # 11(S) of 2001 is filed against the judgment dated 14.2.2001 of the said Court.
In Criminal Appeal # 8(S) of 2001, Hikmatullah, Abdul Rehman and Nazar Muhammad, for the present, stand convicted and sentenced to death under Sections 302(b)/34 PPC for causing the murder of Jalal Khan. They also stand convicted under Sections 392/34 PPC and sentenced to imprisonment for 10 years each alongwith a fine of Rs. 50,000/-. Initially, they were charged for the offence of haraba under Section 17(4) of Ordinance VI of 1979 but as the required ingredients of the offence of haraba were not available, they, in the light of Section 20 of the Ordinance were convicted and sentenced under Sections 392/34 PPC.
In Criminal Petition # 11(S) of 2001, Shahid Jabbar, petitioner stands convicted under Section 302(b) PPC and sentenced to death for committing the murder of Haji Muhammad Rahim during robbery. As certain injuries were caused during robbery, he stood also convicted under Section 394 PPC and sentenced to imprisonment for 10 years alongwith a fine of Rs. 10,000/-.
In view of the latest development having taken place during the pendency of instant cases, we need not to dilate upon the detailed facts and merits of the cases because, in both the cases, the appellants/petitioner have entered into compromise with the legal heirs of the deceased. Statement of the legal representatives as well as the elders of the localities have duly been recorded which tell of the genuineness of the compromise. In the given circumstances, the learned counsel for both the appellants/petitioner do not press on merits against their convictions under Section 392 PPC and Section 394 PPC, respectively. Acquittal of all the appellants/petitioner is sought under Section 302(b)PPC on the basis of compromise. The short point involved is as to whether, in the circumstances of the case, when the offences involved are of dacoity and robbery, the appellants/petitioner could have entered into compromise and the said compromise could be given effect to with reference to Section 302(b) PPC.
It is but sufficiently known that an offence under Section 302 PPC is compoundable in Islam and so has it been made in the prevailing law of the land. The murder can be compromised with reference to Sections 309/310/338-E PPC read with Section 345 Cr.P.C. So far as the offences under Sections 392 PPC (robbery) and 394 PPC (robbery with causing hurt) are concerned, those are certainly not compoundable. But, the learned counsel for the appellants/petitioner do not press against the conviction and sentence under Sections 392 and 394 of the PPC. The conviction under both these Sections against the appellants/petitioner concerned are hereby maintained.
Coming to compromise in cases of murders during robbery, we have been referred to our judgment in Ghulam Farid's case (PLD 2006 SC 53) where the Court had declined to accept compromise but in that case the offences involved and the one under which accused in that case was charged, had fallen under Section 396 PPC. It was a dacoity with murder defined as a single offence not compoundable in law. The position in the instant case does not seem to be identical to the case aforesaid. In the instant cases, the murder is independently punished under Section 302(b) PPC, which stands compounded. We find no reason in law to disallow the compromise when the legal heirs have already pardoned the appellants/petitioner.
Anyhow, keeping in view the circumstances of the case, the nature of the offence committed and the number of persons killed, we cannot be oblivious of the fact that it seriously attracts the principle of fasad-fil-arz and the offenders are most likely to be a potential danger to the community. We are, therefore, constrained to observe that the present two cases are fit cases where this Court should pass an order under Section 311 PPC.
In Criminal Appeal # 8(S) of 2001, the conviction of Hikmatullah, Abdul Rehman and Nazar Muhammad, under Sections 392/34 PPC each is maintained. However, on acceptance of the compromise their sentence of death under Section 302(b)PPC is set aside but, within the contemplation of Section 311 PPC, they are sentenced each to imprisonment for life alongwith fine already imposed.
In Criminal Petition # 11(S) of 2001, the conviction and sentence of Shahid Jabbar under Section 394 PPC is maintained. However, on acceptance of the compromise under Section 302(b) PPC, the conviction and sentence of death thereunder is set aside but within the contemplation of Section 311 PPC, Shahid Jabbar is hereby sentenced to imprisonment for life alongwith fine already imposed. Petition is also converted into appeal.
(Malik Sharif Ahmed) Order accordingly.
PLJ 2007 SC 365 (FB)
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud and
Dr. Rashid Ahmed Jullundhari, JJ.
BASHIR AHMED and another--Appellants
versus
FAYYAZ AHMED and others--Respondent
Crl. A. No. 10(S) of 2004 A/W Jail Petition No. 94(S) of 2004, decided on 7.11.2006.
(On appeal from the Judgment dated 19.1.2004 passed by the Federal Shariat Court, in Jail Criminal Appeal No. 286/I of 2003).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979--
----Ss. 10(2)(3)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Sentence was converted--Assailed--Leave to appeal--Provision of Cr.P.C. are applicable mutatus mutandi--Provision of Offence of Zina (E.O.H) Ordinance 1979, in view of S. 20 of the Ordinance--Federal Shariat Court could examine the question of fact and law and could quash, confirm and modify or enhance sentence--Held: Powers of Appellate Court to alter conviction are very wide u/S. 423 of the Cr.P.C.--Altered conviction should not be such which could have not been recorded by trial Court. [P. 368] A
Malik Abdul Haq, ASC for Appellant (in Cr. A. No. 10(S)/2004).
Mr. Arshad Ali Chaudhry, ASC for Petitioner (in J.p. No. 94(S)/2004).
Mr. Arshad Ali Chaudhry, ASC for Respondent No. 1 (in Cr. No. 10(S)/2004).
Ch. Munir Sadiq, ASC for State.
Date of hearing: 7.11.2006.
Order
Ch. Ijaz Ahmed, J.--We intend to decide captioned appeal and Jail Petition by one consolidated judgment arising out of the same common impugned judgment of the Federal Shariat Court dated 19.1.2004. Appellant Bashir Ahmed (complainant) had filed Criminal Petition No. 5(S) of 2004 seeking leave to appeal against the aforesaid judgment of the Federal Shariat Court dated 19.1.2004 for enhancement of the sentence of the respondent. Leave was granted vide order dated 22-10-2004 to examine the legality of the sentence reduced by the Federal Shariat Court. Convict/respondent has also filed Jail Petition No. 94(S) of 2004 against the aforesaid impugned judgment of the Federal Shariat Court with the prayer that conviction and sentence awarded by the Federal Shariat Court to him be set aside. Brief facts out of which the aforesaid appeal and petition arises are as follows:--
"The case of the prosecution as stated by Bashir Ahmad (PW. 1), father of Mst. Shahida Parveen (victim and prosecutrix) that his daughter Mst. Shahida Parveen was coming back home after attending school on 28.8.2002. On the way the appellant Fayyaz Ahmad who is a street urchin accompanied by his sister-in-law intercepted her. They enticed her to their village. Fayyaz Ahmad committed zina-bil-jabr with Mst. Shahida Parveen and his sister-in-law kept on guarding him by closing the door of the room. She released later in the evening at about 8.00/9.00 p.m. Fayyaz Ahmad was armed with a pistol. She was subjected to rape under its threat. She was also cautioned that in case she informed any of the inmates of the house she would not be spared."
The investigating agency after investigation the case submitted challan against the convict Fayyaz Ahmed before the competent Court. The learned Additional Sessions Judge Mandi Bahauddin vide its judgment dated 18-11-2003 convicted Fayyaz Ahmed convict respondent in Criminal Appeal under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 25 years R.I. The benefit of Section 382 Cr.P.C. was also extended. Fayyaz Ahmed convict being aggrieved filed Jail Criminal Appeal No. 286/1/2003 before the Federal Shariat Court which was dismissed but his sentence was reduced from 25 years R.I. to sentence of 5 years R.I. on the ground that commission of zina-bil-jabr was not established beyond doubt therefore conviction awarded to him under Section 10(3) of the Ordinance was not sustainable and the offence was committed by the convict/respondent under Section 10(2) of the Ordinance on the basis of evidence on record. Hence the aforesaid appeal and petition.
The learned counsel for the appellant submits that there was sufficient material on record to connect the convict/respondent that he had committed zina-bil-jabr with the victim. The trial Court was justified to award conviction under Section 10(3) of the Hudood Ordinance, 1979 whereas the Federal Shariat Court had converted the same under Section 10(2) of the Zina Ordinance 1979 without any justification and without proper application of mind. He further submits that learned Federal Shariat Court had come to the conclusion that respondent had committed offence under Section 10(2) by misreading and non reading of the record. He further urges that learned Federal Shariat Court while reducing the sentence has not dealt with the case of the prosecution in its true perspective. According to him victim Shahida Parveen whose age was about 13 years and has been subjected to zina-bil-jabr by respondent Fayyaz Ahmed, which fact has been supported by medical evidence. Therefore Federal Shariat Court was not justify to reduce his sentence.
Learned counsel of the respondent/petitioner in Jail Petition submits that prosecution had failed to prove that convict had committed offence under Section 10(3) of the Hudood Ordinance as observed by the learned Federal Shariat Court after application of mind. He further submits that learned Federal Shariat Court was justified to come to the conclusion that victim was adult after perusing the medical report as all the ingredients of adult are born out from the medical examination and the statement of the doctor in terms of Section 2(a) of Offence of Zina Ordinance, 1979. The learned Federal Shariat Court had given cogent reasons after reappraisal of the evidence while deciding the appeal of the petition that he had not committed offence under Section 10(3) as the prosecution had failed to bring on record sufficient material to establish that he had committed offence. The learned Federal Shariat Court had rightly observed after appreciation of evidence on record that convict had committed offence under Section 10(2) of the Ordinance, 1979. He further submits that learned Federal Shariat Court had erred in law to maintain conviction to the extent of offence committed by the petitioner under Section 10(2) without adverting to the circumstances that the prosecution story was belied as the prosecution had concocted story against the respondent that he committed zina-bil-jabr.
We have given our anxious consideration to the contents of the learned counsel of the parties and perused the record. It is proper and appropriate to reproduce the operative part of the impugned judgment of the Federal Shariat Court to resolve the controversy between the parties:--
"So all these facts and circumstances taken together led us consider that the commission of zila-bil-jabr is not established beyond doubt, it will therefore be unsafe to sustain the appellant's conviction under Section 10(3) of the Ordinance. The same is therefore converted to one under Section 10(2) of the Ordinance. He has been sentenced to 25 years R.I., but keeping in view that the case turned out of Zina-bil-raza in stead of Zina-bil-jabr, the sentence of five years R.I. will be just and appropriate. The appellant is accordingly sentenced under Section 10(2) of the Ordinance to undergo five years R.I. and also to pay a fine of Rs. 5000/- or in default of payment of the fine to further suffer six months S.I. Benefit of Section 382-B Cr.P.C. shall remain available to the appellant."
"She had mansturation before but she was not sure when she manstrutated last time. She was subjected to sexual intercourse for more than one time. The hymen was torned approximately before 6 weeks before the examination as there was no fresh injury".
The learned Federal Shariat after reappraisal of the evidence had come to the conclusion that victim attained puberty as mentioned above and also after reappraisal of the evidence on record had come to the conclusion that victim could not raise hue and cry coupled with the statement of the doctor, who had examined the victim which clearly showed that her hymen was found to be old raptured, therefore the trial Court was justified to convict the respondent/convict under Section 10(2) of the said Ordinance. In the interest of justice and fairplay we have also examined the evidence on record with the assistance of the learned counsel for the parties. We do not find any illegality or material irregularity in the conclusions arrived at by the Federal Shariat Court in paragraphs 6 and 7 of the impugned judgment.
In view of what has been discussed above Criminal Appeal and Jail Petition have no merits and the same are dismissed.
(Malik Sharif Ahmad) Appeals dismissed.
PLJ 2007 SC 369
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
HABIBULLAH--Appellant
versus
AZMAT ULLAH--Respondent
C.A.No. 58 of 2000 and C.P. No. 167-L of 2000, decided on 8.11.2006.
(On appeal from the judgment dated 11.11.1999 passed by Lahore High Court, Lahore in R.F.A. Nos. 188 and 562/1999).
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, Rr. 23 & 23-A--Constitution of Pakistan, 1973, Art. 185(3)--Suit for cancellation of agreement and suit for specific performance of agreement were filed--Appellant's suit was dismissed whereas respondent's suit was decreed--Suit for specific performance was remanded--Assailed--Matter in the suit for specific performance remanded for decision of the suit afresh--Validity--Held: Remand of the case would not be lightly ordered and if evidence on record is sufficient then the appellate Court should decide the case itself--Order of remand reopened another chain of litigation which entails wastage of public time--Disposal of the cases, involved unnecessary expense of the parties and these vices were seriously deterimental to justice system--Further held: If in pursuance of an order of remand the subordinate Court decides the case, on appeal against order of remand does not become infructuous which has to be decided on its own merits and the post remand decision will be subject to final decision in the pre-remand decision.
[P. 373] A & B
PLD 1962 Dacca 564 and 1997 SCMR 524 ref.
Civil Procedure Code, 1908 (V of 1908)--
----Judgment of a Court, is to be in accord with the findings and in case of conflict, the same Court or the appellate Court has jurisdiction u/S 152 CPC, and even, under inherent powers to bring the operative directions of the judgment in accordance with the findings therein--Appeal allowed.
[Pp. 373 & 374] C
Syed Iftikhar Hussain Gilani, Sr. ASC and Mr. M.A. Zaidi, AOR for Appellant (in C.A. No. 58/2000).
Syed Iftikhar Hussain Gilani, Sr. ASC and Mr. M.A. Zaidi, AOR for Petitioner (in C.P. No. 167-L of 2000).
Nemo for Respondent (in both cases).
Date of hearing: 8.11.2006.
Judgment
Syed Jamshed Ali, J.--Civil Appeal No. 58/2000 has been filed against the judgment and decree dated 11.11.1999 whereby the suit of the respondent, subject-matter of R.F.A. No. 188/1999, was remanded to the learned trial Court with a direction to determine Issues Nos. 10, 11 and 13. The facts of the case are, briefly, noted hereunder.
Rs. 1,50,000/- while the balance had to be paid till 7.4.1995 which was also the date for completion of the transaction. On 29.1.1995, the appellant filed a suit seeking cancellation of the agreement dated 8.4.1994 on the ground that he had forcibly been given Rs. 1,50,000/- and the aforesaid agreement was the result of undue inference, coercion and threats to his life. On 29.3.1995, Azmat Ullah, the respondent herein filed a suit for specific performance. Both the suits were consolidated and the following consolidated issues were framed:--
"1. Whether the plaintiff Habib Ullah has not approached this Court with clean hands?
Whether the plaintiff Habib Ullah is estopped by his own fact and conduct to file the suit ?
Whether the defendant Azmat Ullah is entitled to Special costs, if so to what extent?
Whether the agreement dated 8.4.1994 is the result of pressure, undue influence, coercion and has not been executed by the plaintiff with his free consent?
Whether the said document is liable to be cancelled?
Whether Habib Ullah plaintiff is entitled to the injunction restraining the defendant from using the said documents for any purposes or from interfering in the physical possession of the plaintiff?
Whether Azmat Ullah is entitled to Specific performance of agreement dated 8.4.1994?
Whether Azmat Ullah has not come to the Court with clean hands?
Whether Azmat has not paid the Court fee on the plaint according to the value of the suit?
Whether the suit of Azmat Ullah is counter blast to the suit of Habib Ullah?
Relief."
The parties led evidence in support of their respective pleas. Vide judgment and decree dated 9.3.1999. The suit filed by the appellant for cancellation of the aforesaid agreement was dismissed while the suit filed by the respondent for specific performance was decreed solely on the basis of the failure of the appellant to prove Issues Nos. 4, 5 & 6. R.F.As. No. 188/1999, arising out of the suit for specific performance, and 562/1999 arising out of the suit for cancellation of the agreement, were filed by the appellant before the learned Lahore High Court. The findings of the learned trial Court that respondent was not able to establish any undue influence and coercion in the matter of execution of the agreement dated 8.4.1994 was affirmed. Accordingly, R.F.A. No. 562/1999, was dismissed. Through C.P. No. 167 of 2000, the petitioner seeks leave to appeal in this matter, against the judgment dated 11.11.1999. As far as suit for specific performance is concerned, the learned High Court, in paragraph 17, of the impugned judgment, found:--
"Since in this case, neither evidence was discussed nor independent reasons were recorded to decide Issues Nos. 9 and 10, therefore, the matter in the suit for specific performance will have to be remanded for decision of the suit afresh, on merit in accordance with law after considering the evidence on record".
Accordingly, R.F.A. No. 188/1999 was allowed and the suit for specific performance was remanded to the learned trial Court for decision of Issues Nos. 10, 11 and 13 afresh.
Despite notice, no body appears for the respondent. Mr. Iftikhar Hussain Gillani, Sr. ASC for the appellant in support of this appeal, has been heard. At the out set, he brought to our notice that in pursuance of the direction in the impugned judgment the suit was again decided by the learned trial Court against the appellant but on first appeal the judgment and decree of the learned trial Court have been reversed and the suit remanded to the learned trial Court where it is pending.
In support of the appeal, he contends that Issue No. 9, inter alia, was required to be decided afresh according to the findings in Para 17 of the impugned judgment but it is not reflected in the operative part of the judgment which appears to be and accidental slip and, therefore, the operative direction in the remand order is required to be brought in-conformity to the findings in paragraph 17. His next submission is that remand order did not fall under Rule 23 or 23-A (Lahore amendment) of Order XLI of the Code of Civil Procedure and, therefore, the learned High Court acted illegally and unlawfully by directing a remand only to obtain findings on certain issues. The course open to the High Court was to act under Rule 25 of the said order, to ask for the findings of the learned trial Court on the disputed issues and retain file on its own record. He also vehemently contended that order of remand is not to be lightly ordered and the issues ought to have been determined by the learned High Court itself under Rule 24 of Order XLI of the Code of Civil Procedure. His next grievance is that dismissal of appellant's suit for cancellation of agreement could not automatically result in the decree in the suit for specific performance because not only a plaintiff in a suit for specific performance has to establish his willingness and readiness to perform his part of the contract but also that grant of relief of specific performance, even when execution of an agreement to sell is proved, remains discretionary with the Court.
We have considered the submissions of the learned counsel for the appellant. From perusal of the judgment of the trial Court, we find that Issue No. 9, was not independently decided on the basis of the evidence recorded in the suit. The basis to decree the suit of the respondent was failure of the appellant to prove Issues No. 4 and 5. As far as second contention is concerned, we find merit in it because remand of a case under Rule 23 could only be ordered when the Court from whose decree an appeal was preferred had disposed of the suit upon a preliminary point and the decree was reversed. Under Rule 23-a, a remand would be justified when the Court considers re-trial of the suit necessary. Under Rule 25, the appellate Court retains the file on its record and remits the case to the trial Court for the decision of the issues not determined and return the findings to the appellate Court. Therefore, none of the aforesaid provisions was attracted to remand the case to the learned trial Court for recording findings on the issues which were not determined by the said Court. We will like to observe that there are some judgments of the superior Courts which recognize inherent powers of an appellate Court to remand a case. We will, however, like to observe that in the first instance, it is doubtful where in view of express provisions for remand of a case the inherent powers could at all be exercised and secondly, we do not find any unusual feature in this case to warrant a remand under inherent powers. This Court, has, in a number of
judgments, reiterated that a remand of the case should not be lightly ordered and if evidence on record is sufficient then the appellate Court should decide the case itself. The Courts administering justice have to bear in mind that an order of remand re-opens another chain of litigation which not only entails wastage of public time but also delays disposal of the cases, involves unnecessary expense of the parties and these vices are seriously detrimental to the justice system. Reference may be made to Muhammad Dervaish Ali Gilani and 14 others V. Muhammad Sharif and others (1997 SCMR 524). In the said case the learned High Court had remanded the case to the Rent Controller for re-writing the judgment. It was interfered with by this Court by referring to a number of judgments and the rule which was emphasized in the following words:--
"The principles for remand of the case to the lower Court for deciding on merits or retrial are well-settled. This power should not be exercised lightly but sufficient care should be taken in remanding the case. The Court should examine the evidence and if it comes to the conclusion that it is not sufficient to pronounce the judgment or decide the issues between the parties, it can remand the case or may itself record the evidence and decide it. But if on record there is adequate and sufficient evidence on which decision can be made, the remand would not be justified. Reference can be made to Paramatha Nath Chowdhry and 17 others v. Kamir Mondal and others (PLD 1965 SC 434), Fateh Ali v. Pir Muhammad and another (1975 SCMR 221), Sher Muhammad and others v. Jamadar Ghulam Ghaus (1983 SCMR 133), Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCMR 216) and Syed Abdul Hakim and others v. Ghulam Mohiuddin (PLD 1994 SC 52)".
We will not like to encumber this judgment with the precedent cases because the above said rule does not admit of any controversy.
We will like to observe, for the purpose of guidance only, that if in pursuance of an order of remand the subordinate Court decides the case, an appeal against order of remand does not become infructuous which has to be decided on its own merits and the post remand decision will be subject to the final decision in the pre-remand proceedings. Although in this case the decision rendered in the post remand proceedings by the learned trial Court has been set aside and the suit is pending yet this appeal is being decided on its own merit. For the above said preposition, we will like to refer to Radha Charan Sardar V. Haribar Mondal and others (PLD 1962 Dacca 564).
We have reproduced the issues in this judgment to demonstrate that, in fact, these were wrongly numbered in as much as that after Issue No. 6 instead of Issues No. 7 and onwards, the figure 9 appears. It was only a typographical error. The contention has merit that the judgment of a Court, is to be in accord with the findings and in case of conflict, the same Court or the appellate Court has jurisdiction under Section 152 of the CPC and, even, under inherent powers to bring the operative directions of the judgment in accordance with the findings therein.
For what has been stated above, Civil Appeal No. 58/2000 is allowed, the impugned judgment of the learned High Court is set aside and the case is remanded to the learned High Court for recording findings on Issues Nos. 9, 10 and 13 (as numbered in this judgment).
Civil Petition No. 167-L/2000.
The learned counsel does not press this petition which is dismissed.
(Malik Sharif Ahmed) Order accordingly.
PLJ 2007 SC 374
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmad, Dr. Allama Khalid Mahmud and
Dr. Rashid Ahmad Jullundhari, JJ.
AMIR MUHAMMAD--Petitioner
versus
STATE--Respondent
J.P. No. 62(S) of 2003, decided on 10.11.2006.
(On appeal from the judgment dated 25.11.2003 of the Federal Shariat Court, Islamabad passed in Crl. Appeal No. 7/L of 2002).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 10(3) & 11--Constitution of Pakistan, 1973, Art. 203-F--Conviction and sentence recorded against accused by trial Court--Purpose of intercourse--Determination of age--Cock and bull story--Real age of the girl, seems to have been sixteen or above--All these state of affairs indicated that she was consenting party to the act of sexual intercourse--Offence committed did not fall under S. 10(3) of Ordinance (VII of 1979) but fell it u/S. 10(2)--Accused had taken away a woman with intent that he might have illicit intercourse with her--Petition was converted into appeal and sentence modified. [P. 376] A
Mr. Tariq Bilal, ASC for Petitioner.
Mr. Inayatullah Niazi, Additional Prosecutor General, Punjab for State.
Date of hearing: 10.11.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Amir Muhammad through this jail petition seeks leave to appeal from the judgment dated 25.11.2003 of Federal Shariat Court, whereby, he stood convicted under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to imprisonment for life with fine of Rs. 20,000/-. He was also convicted under Section 10(3) of the Ordinance and sentenced to ten years rigorous imprisonment with a fine of Rs. 20,000/-. Both the sentences were to run concurrently. Benefit of Section 382-B Cr.P.C was also extended.
On the night between 1st and 2nd of April, 1999 the complainant, Muhammad Akhtar alongwith his family members was asleep in his house. In the morning when he got up he found his minor daughter aged 13 years missing. He searched here and there and it was informed by Sardar Muhammad and Wali Muhammad PWs that on the fateful night at about 11.00 p.m. they saw Amir Muhammad appellant taking away Mst. Sumera in a car towards Nawan Kot. On hue and cry of the victim they tried to stop the car but the accused sped away alongwith Mst. Sumera.
The occurrence seems to have taken place on the night between 1st and 2nd of April, 1999. On the very night at 11.00 p.m. Sardar Muhammad and Wali Muhammad had seen the accused forcibly taking away Mst. Sumera. The criminal intent is sufficiently apparent from the above said narration yet the father did not lodge a report till 6th of April. While in the witness-box Mst. Sumera gave a detailed story about the arrival of Amir Muhammad accused (taxi driver) to their house when all the family members were present in the house. She added that she prepared tea on the request of the accused and while she had gone out to fetch milk, the accused put some intoxicant whereby all family members became unconscious except the girl who retained all the details of occurrence in her memory. According to witnesses, Mst. Sumera was seen in the company of the accused at 11.00 p.m. in the night but according to her, she had gone to fetch milk when it was morning. Had it been a true story, the father would have lodged the report immediately the next morning and to that effect.
The girl was taken first to Mianwali then to Faisalabad and also to various other cities where the accused had been committing Zina with her. According to her she was recovered from Mianwali but in the second breath she stated to have been recovered from Chak No. 47 which was only 3/4 Chaks away from their own Chak. All this journey to which the couple resorted, has been a long way to go. They must have lived at different places and must have come across hundred of people but Mst. Sumera did not raise hue and cry. This is a strong indication of the fact that the accused never abducted her. The whole cock and bull story seems to have been concocted in order only to bring the offence within the mischief of Section 11 of Ordinance-VI of 1979. From her medico legal report it becomes abundantly clear that she was not at all innocent as the prosecution claimed. Her age on the medico legal report seems to have been tampered with because while in the witness-box the lady doctor failed to make an absolute conclusion. It shows the attempt of prosecution to conceal the real age of the girl, which seems to have been sixteen or above. All these state of affairs clearly indicate that she was a consenting party to the act of sexual intercourse. We therefore, are fully convinced, in the light of evidence on record, that the offence committed in the instant case did not fall under Section 10(3) of Ordinance-VII of 1979 but it fell under Section 10(2) thereof.
Furthermore, the accused has taken away a woman with intent that he may have illicit intercourse with her. He had concealed and detained her for the purposes of intercourse, which is sufficiently proved. The offence in that behalf falls under Section 16 and not under Section 11 of the Ordinance. She was kept by petitioner for more than thirty days during which he exploited his flesh.
As a result of aforesaid discussion, the instant petition is converted into appeal and partially accepted with modification as under:--
(a) Offence under Section 11 is modified to Section 16 of Ordinance-VII, 1979 and his imprisonment for life is converted into rigorous imprisonment for seven years.
(b) The conviction under Section 10(3) is converted into one under Section 10(2) of Ordinance-VII, 1979 with rigorous imprisonment that shall extends to ten years alongwith fine of Rs. 20,000/-. The sentences shall run concurrently with benefit of Section 382-B Cr.P.C.
(Malik Sharif Ahmed) Order accordingly.
PLJ 2007 SC 376 (FB)
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud &
Dr. Rashid Ahmed Jullundhari, JJ.
MUHAMMAD ZUBAIR--Petitioner
versus
STATE--Respondent
J.P. No. 8(S) of 2005, decided on 14.11.2006.
(On appeal from the judgment dated 29.1.2005 passed by the Federal Shariat Court, Lahore, in Jail Criminal Appeal No. 224/I of 2003, Cr. Suo Moto No. 4/I/2004).
Adverse Inference--
----There was no report of chemical examiner regarding swabs of victim inspite of the fact according to prosecution the parcel was sent to chemical examiner--Piece of evidence was withheld prosecution, therefore, adverse inference could be taken against prosecution. [P. 380] D
Delay--
----Delay in lodging FIR cannot in all cases lead to inference that the case set up in FIR is necessarily true or false--Held: Piece of evidence qua delay of recording FIR without explanation creates doubt uqa the prosecution story meaning thereby un-explained delay of absent 26 days makes investigation of the case doubtful. [P. 379] B
Offence of Zina (Enforcement of Hudood)) Ordinance, 1979 (VII of 1979)--
----Ss. 10 & 11--Constitution of Pakistan, 1973, Art. 203(F)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed--Assailed--Leave to appeal--Appreciation of evidence--Jurisdiction--Supreme Court did not interfere with the findings of fact arrived at by Courts below--Findings are on the whole reasonable and are not arrived at by dis-regarding any provision of law or any accepted principle concerning the appreciation of evidence meaning thereby in case the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence, or finally, if the findings could be demonstrated to be physically impossible, then it is the duty and obligation of Supreme Court to interfere in the concurrent conclusions arrived at by the Courts below--Appeal allowed. [P. 379] A
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 10 & 11--Appreciation of evidence--No direct evidence--There was no direct evidence of zina-bil-jabr against accused except sole statement of the victim--Even evidence of the victim be read as a whole then ingredients of zina-bil-jabr were not attracted. [P. 380] C
Mr. F.K. But, ASC for Petitioner.
Ch. Munir Sadiq, ASC for State on Court call.
Date of hearing: 14.11.2006.
Order
Ch. Ijaz Ahmed, J.--The petitioner has sought leave to appeal against the judgment of the learned Federal Shariat Court dated 19.1.2005 wherein the appeal filed by the petitioner against his conviction was dismissed. The brief facts out of which the present petition arises are that petitioner alongwith his acquitted co-accused were involved in a case FIR No. 39 which was registered at Police Station Naushera, District Khushab on 20.6.2002 under Sections 11/10 of Offence of Zina (EOH) Ordinance, 1979 on the complaint of Sher Muhammad PW10. The contents of the FIR reveal that Sher Muhammad alleged that his daughter Mst. Kausar Naheed aged 16/17 years has been abducted by the petitioner who was once his neighbour. The contents of the FIR further reveal that Mst. Nasreen sister of the petitioner and one Muhammad Ramzan facilitated the commission of the offence. It is further alleged that during the night between 24-25/5/2002 Mst. Kausar Naheed daughter of Sher Muhammad was found missing and in the morning he came to know through PW-8 about abduction of his daughter Mst. Kausar Naheed by the petitioner and his acquitted co-accused with the intention to seduce her to illicit intercourse and the complainant after his failure to get back his daughter from the petitioner, lodged report on 20-6-2002 against the petitioner and his acquitted co-accused. The police investigated the case and sent the accused to face trial before the competent Court. The trial Court completing legal formalities such as recording of evidence and statement of the accused. Consequently learned Additional Sessions Judge vide its judgment dated 27-8-2003 convicted and sentenced the petitioner as under:
Name of accused Under Section Sentence
Muhammad 16 of Offence of 7 year' R.I. with fine of
Zubair Zina (EOH) - Rs. 10,000/- in case of default of
Ordinance, 1979. payment of fine to further suffer
3 months' S.I. Sentence of fine of
Rs. 40,000/- as compensation
under Section 544-A Cr.P.C. to
Mst. Kauser Naheed victim and
in default to further suffer six
months S.I. Benefit of Section
382-B Cr.P.C. was also extended.
It is pertinent to mention here that trial Court had acquitted his
co-accused namely Mst. Nasreen and Muhammad Ramzan by giving benefit of doubt. Petitioner being aggrieved filed Jail Criminal Appeal No. 224/I of 2003 before the learned Federal Shariat Court. The learned Federal Shariat Court issued suo moto notice to the victim Naheed Kausar. The Federal Shariat Court vide impugned judgment dismissed the appeal of the petitioner and also had withdrawn notice issued to Mst. Naheed Kausar vide impugned judgment dated 19.1.2005 Hence the present petition.
The learned counsel of the petitioner submits that prosecution had failed to prove the case against the petitioner beyond shadow of doubt. He further submits that Prosecution witnesses had improved their statements and contradicted each other on material points which were not considered by the both the Courts below. Therefore judgments of both the Courts below qua guilt of the petitioner were not sustainable in the eye of law. He further maintains that the petitioner is involved in this case on account of enmity and this fact was not considered by the both the Courts below in its true perspective. He further urges that on the basis of the same evidence his 2 co-accused were acquitted but both the Courts below erred in law not to give benefit of this fact to the petitioner and convicted the petitioner on the same evidence which was not believed by the both the Courts below against his acquitted co-accused.
The learned State counsel has supported the impugned judgment. He further submits that the statement of the victim was duly supported by the medical evidence and both the Courts below after proper appreciation of evidence have come to the concurrent conclusions qua the guilt of the petitioner, therefore the petition is liable to be dismissed.
We have considered the submissions made by learned counsel for the parties and have perused the record. Normally this Court, does not, interfere with the findings of fact arrived at by the Courts below while exercising Constitutional jurisdiction after its satisfaction that the findings of the Courts below are on the whole reasonable and are not arrived at by dis-regarding any provision of law or any accepted principle concerning the appreciation of evidence meaning thereby in case the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any mis-application of principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible, then it is the duty and obligation of this Court to interfere in the concurrent conclusions arrived at by the Courts below. In present case, however, it is difficult to avoid the impression that the conclusions reached by the Federal Shariat Court and the trial Court suffered from serious errors of law and fact, which unless set right are likely to result in miscarriage of justice. The petitioner had taken a specific plea in reply of Question No. 7 in his statement u/S. 342 of Cr.P.C. that the petitioner was involved in a case on account of enmity and both the Courts below had not scrutinized properly defence version in the impugned judgment. It is an admitted fact that the occurrence took place according to the prosecution on the night between 24/25 May, 2002 at 2:30 a.m. whereas the FIR was lodged on 20.6.2002 after a considerable delay without explanation. Generally delay in lodging FIR cannot in all cases lead to the inference that the case set up in the FIR is necessarily true or false, however, it is relevant circumstance to be considered. In the present case this piece of evidence qua delay of recording the FIR without explanation creates doubt qua the prosecution story meaning thereby such un-explained delay of almost 26 days makes the investigation of the case doubtful and this fact was not considered by both the Courts in its true perspective. According to the statement of the victim petitioner had abducted her alongwith Mst. Nasreen Akhtar real sister of the petitioner and Muhammad Ramzan. This fact alone is sufficient to discard the statement of victim to the extent that petitioner had abducted her by force by closing her mouth with her dupatta and he threatened her that he would kill her if she raised alarm. She remained with the petitioner for a considerable time more than a month as evident from the statement of the abductee. She could not tried to get rid of from the clutches of the petitioner inspite of the fact she had got various opportunities to raise hue and cry at a public places when the petitioner had taken her from one place to another specially when her age was 16/17 years. It also does not appeal to common sense that the petitioner had abducted the victim alongwith her sister to illicit intercourse. The contents of the FIR clearly show that complainant found the victim in the morning from his house, therefore, Sher Muhammad complainant was himself not a witness of abduction whereas Zahoor Ahmad PW-8 had failed to show his presence at the Adda Ucchali at the time of alleged abduction. It is pertinent to mention here that there is no direct evidence of Zina-bil-jabr against the petitioner except the sole statement of the victim. Even otherwise in case the evidence of the victim be read as a whole then ingredients of Zina-bil-jabr are not attracted. It is pertinent to mention here that there was no report of chemical examiner regarding the swabs of victim inspite of the fact according to the prosecution the parcel was sent to the chemical examiner. This piece of evidence was with held by the prosecution, therefore, adverse inference could be taken against the prosecution. See Abdul Khaliq v. The State (1995 SCMR 1412) and Abdul Waheed v. The State (1995 SCMR 1498).
It is pertinent to mention here that in case the contents of FIR, the statement of complainant, statement of Zahoor Ahmad, statement of victim are put in a juxta position then their statements are not in consistent with each other on material points coupled with the fact trial Court had disbelieved the statement of prosecution including victim while acquitting two co-accused of the petitioner, therefore it was necessary to re-examine the evidence by the learned Federal Shariat Court with due care and caution to maintain the conviction of the petitioner but the learned Federal Shariat Court failed to examine the evidence keeping in view this principle. See Aminullah's case (PLJ 1982 SC 592). It is a settled principle of law that person making contradictory statement cannot be held worthy of credence as law laid down by this Court in Muhammad Shafique Ahmad's case (PLJ 1981 SC 835). The petitioner was convicted under the provisions of enforcement of Hudood Ordinance wherein it is the duty and obligation of the Courts to give reasons for awarding conviction in view of Section 338-F. Reasons as mentioned above are fancy and result of mis reading and non-reading of record.
For what has been discussed above, this petition is converted into appeal and same is allowed as a result whereof the petitioner is ordered to be released forthwith if not required or involved in any other criminal case.
(Malik Sharif Ahmed) Appeal allowed.
PLJ 2007 SC 381
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
TEHSIL MUNICIPAL OFFICER, MUNICIPAL ADMINISTRATION ABBOTTABAD--Petitioner
versus
GOVT. OF PAKISTAN MINISTRY OF DEFENSE and others--Respondents
C.P. No. 631-P of 2003, decided on 15.11.2006.
(On appeal from the judgment dated 5.3.2003 of the Peshawar High Court, Abbottabad Bench in W.P. No. 4/03).
Cantonment Act, 1924 (II of 1924)--
----S. 4(1)--Notification was issued by Federal Government--Assailed--Objections to the rpoposed inclusion of the area in the contenments limits were invited--It was after requisite period of six months the notification in question was issued under Section 4(3) of the Cantonment Act well within law--Leave to appeal refused. [P. 382] A
Mr. Javed A. Khan, ASC and Mr. Mir Adam Khan, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 15.11.2006.
Order
Abdul Hameed Dogar, J.--This petition is directed against the judgment dated 5.3.2003 of a learned Division Bench of the Peshawar High Court, Abbottabad Bench, Abbottabad passed in Writ Petition No. 4 of 2003 whereby legality of Notification No. F.134/1/G/SO(c)/ML&C/66/1804/D-6(A-VI)2002 dated 2.12.2002 issued by the Federal Government was called in question but the same was turned down on the ground that it was issued by the lawful authority and the areas were included in the limit of Abbottabad Cantonment Board rightly.
Briefly, stated, facts giving rise to the filing of instant petition are that Respondent No. 4 Cantonment Board, Abbottabad through its Executive Officer vide advertisement published in Daily 'Mashriq" Peshawar dated 27.11.2002 informed the public-at-large that certain areas of municipal limits have been included in Cantonment Board Abbottabad. The moment he got the knowledge of such publication he obtained its copy. The said notification was challenged in writ petition on the ground of being illegal and without lawful authority as the provisions of Section 4(1) of the Cantonment Act, 1924 (II of 1924) (hereinafter referred to as `the Act') has not been complied with whereby Federal Government may by notification in the official gazette declare its intention to include within the Cantonment limits any local area and then on expiry of six weeks from the date of notification and after considering the objections, if any, can issue the notification under Section 4(3) of the Act.
We have gone through the impugned judgment and perused the record in minute particulars. The Federal Government issued notification under Section 4(1) of the Act, 1924 on 22.4.2002 and invited objections to the proposed inclusion of the area in the cantonment limits. It was after requisite period of six months the notification in question was issued under Section 4(3) of the Act well within law. Though argued yet learned counsel for the petitioner failed to point out any illegality, misreading or non-reading in the impugned judgment warranting interference by this Court. Accordingly, the petition being devoid of any substance stands dismissed and leave to appeal refused.
(Malik Sharif Ahmed) Leave refused.
PLJ 2007 SC 382 (FB)
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud and
Dr. Rashid Ahmed Jullundhari, JJ.
IBRAR HUSSAIN and others--Appellant
versus
STATE & another--Respondents
Crl. A. No. 14(S) and 15(S) of 2005, decided on 15.11.2006.
(On appeal from the Judgment dated 2.5.2005 passed by the Federal Shariat Court, Islamabad, in Criminal Appeals No. 196-I & 199-I of 2003, Murder Reference No. 17-I of 2003).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 10(4) & 11--Constitution of Pakistan, 1973, Art. 203(F)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed--Assailed--Appreciation of evidence--Validity--Held: Person making contradictory statements cannot be held worthy of credence as laid down in PLJ 1981 SC 835--Witness making improvements and changing version as and when suited according to the situation then such type of improvement were found deliberate and dishonest--Cause serious doubt on the veracity of such witness. [P. 385] A
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 10(4) & 11--Appreciation of evidence--Sole testimony of victim--In rape/Hadood cases conviction can be awarded on the sole testimony of the victim subject to the condition that the statement of victim must inspire confidence. [P. 385] B
Benefit of Doubt--
----In criminal cases when two explanations are equally possible the one in favour of accused should normally be accepted--Benefit of doubt is always given to accused but in present case, the benefit of doubt was given to prosecution--Appeals were allowed. [P. 386] C
1995 SCMR 1345 and PLJ 1986 SC 497, ref.
Syed Zulfiqar Abbas, ASC and Mr. M. A. Zaidi, AOR for Appellants (in Cr. A. No. 14(S)/2005).
Sardar Manzoor Ahmed SC and Mian Bashir Ahmed Bhatti, ASC for Appellant (in Cr. A. No. 15(S)/2005).
Mr. Muhammad Masood Chishti, ASC for Respondent No. 2.
Ch. Mushtaq Ahmed Khan, Prosecutor General, Punjab and Ch. Munir Sadiq, Deputy Prosecutor General, Punjab for State.
Date of hearing: 15.11.2006.
Order
Ch. Ijaz Ahmed, J.--We intend to decide the captioned appeals by one consolidated judgment arising out of the common impugned judgment of the Federal Shariat Court dated 2.5.2005.
Appellants/petitioners sought leave to appeal against the judgment of the Federal Shariat Court wherein the appeals filed by them before the Federal Shariat Court against their conviction were dismissed qua their sentences under Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. However, their sentences under Section 10(4) of the said Ordinance were set aside. The petitions filed by the appellants/petitioners before this Court were fixed before this Court on 23.11.2005 and leave was granted.
Brief facts giving rise to this petition are that appellants/ petitioners were involved in a case FIR No. 299 dated 15.7.2002 registered at Police Station Qureshi under Sections 11/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the complaint of Mst. Rashidan/ the victim and thereafter committed Zina-bil-Jabr. The investigating agency after investigating the matter submitted challan against them for trial the complainant party was not satisfied with the police investigation and filed private complaint in the Court of Additional Sessions Judge, Muzaffargarh on 2.11.2002. The trial Court proceeded with the direct complaint and framed charges against the appellants. The learned Additional Sessions Judge vide its judgment dated 30.8.2003 convicted and sentenced the appellants as under:--
Name of accused/ Under Sections. Sentence.
appellants.
Ibrar Hussain 11 of Offence of Zina, Life imprisonment
Rashid (EOH) Ordinance, 1979. each.
Haqnawaz Muhammad 10(4) of Offence of Zina, Sentenced to death
Siddique. (EOH) Ordinance, 1979. each.
The appellants being aggrieved filed Criminal Appeals No. 196-I/2003 and 199-I/2003 before the Federal Shariat Court which was partly allowed and partly dismissed as mentioned above.
The learned counsel for the appellants submit that initial FIR was lodged by victim Mst. Rashidan on 15.7.2002 under Sections 10/11 of the said Ordinance whereas her brother Ijaz Ahmad filed private complaint on 2.11.2002 wherein the version has been changed and improved. They further submit that victim Mst. Rashidan had implicated all the appellants to have committed Zina with her during the whole night. They further submit that victim had changed versions four times and this fact was not considered by the Courts below in its true perspective. The learned Courts below had failed to take into consideration defence version at all. The statement of the victim was not corroborated by any other strong piece of evidence.
The learned counsel for the complainant submits that both the Courts below had concurrently come to the conclusion after proper appreciation of evidence that appellants had committed the offence under Section 11 of said Ordinance. He further maintains that learned Federal Shariat Court erred in law to set aside the conviction under Section 10(4) of the said ordinance without justification as evident from the para 22 of the impugned judgment of the Federal Shariat Court. He further submits that victim had specifically admitted that she had not given any statement before the police, therefore, her statement inspires confidence.
The learned State counsel has supported the impugned judgment.
We have considered the submissions made by learned counsel for the parties and perused the record. It is an admitted fact that in case the contents of the FIR, statement of the victim dated 5.9.2002, contents of the complaint and her statement before the Court are put in a juxta position then it is crystal clear that her statements are not in consonance with each other coupled with the fact that there were contradictions, discrepancies, improvements and omissions on material points. It is a settled law that person making contradictory statements cannot be held worthy and credence as law laid down by this Court in Muhammad Shafique Ahmad's case (PLJ 1981 SC 835). It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dis-honest, therefore, cause serious doubt on the veracity of such witness. It is pertinent to mention here that victim initially reported the matter to the police on 15.7.2002 which reveals that she was abducted by Muhammad Siddique appellant on pistol point and took her on bicycle to Godar chowk and thereafter she was taken by force in a car in which three unknown persons were also present. They committed Zina-bl-jabr with her turn by turn. It is pertinent to mention here that this statement also show that her brother Muhammad Ijaz had seen the occurrence when they had taken her in a car but he had not reported the matter to the police or to any other authority. Her statement under Section 161 Cr.P.C. before the police on 5.9.2002 reveals that she was abducted by Ibrar Hussain, Rashid and Haqnawaz whereas Muhammad Siddique was exonerated by her. The police had submitted the challan before the Court against the accused mentioned in the FIR. The Court had also taken cognizance of the matter. It appears that complainant party was not satisfied with the police investigation in the case and brother of victim filed a private complaint against the present appellants including Muhammad Siddique who was exonerated by the victim in her statement under Section 161 Cr.P.C recorded by the police on 5.9.2002. She appeared before the Court in a complaint case as PW-3 but her statement as mentioned above was not in consonance with her earlier statement and was not in consonance with her earlier stand. Even otherwise in case her examination in chief and cross examination are put in juxta position then it is crystal clear that she is not truthfulness witness. It is a settled law that in rape/hudood cases conviction can be awarded on the sole testimony of the victim subject to the condition that the statement of victim must inspire confidence. In the present case as mentioned above the statement of the victim is not inspiring confidence at all and this fact was not considered by both the Courts below in its true perspective and the principle laid down by this Court in various pronouncements. We are pained to note that both Courts below had given benefit of doubt to the prosecution in violation of principle laid down by this Court in various pronouncements. It is a settled law that benefit of doubt always be given to the accused and this principle was violative by the Courts below. In the contents of the complaint the prosecution had taken a stand that victim was abducted in a car from her house. According to the site-plan there was no way to reach in the house of victim on car as evident from site-plan and the statement of the Investigating Officer. The site-plan was prepared by the draftsman on the pointation of the prosecution witnesses. It could, therefore, well referred to for determining the respective positions of the assailants and victim to the extent that appellants were in a position to abduct on car from her house. It is pertinent to mention here that the statement of the victim was not corroborated with the medical report as evident from the cross-examination of the doctor which is to the following effect:--
"It is correct in case of forcible rape/Zina, the victim receives marks of violence on different parts of body including breast, elbows and other private parts. I cannot say that the victim was habitual of inter-course.
It is a settled law that in a criminal case when two explanations are equally possible in a given situation the one in favour of the accused should normally be accepted meaning thereby benefit of doubt is always given to the accused but in the present case as mentioned above benefit of doubt was given to the prosecution. See Tariq Pervez's case (1995 SCMR 1345) and Ghulam Ali's case (PLJ 1986 SC 497).
We have also re-examined the evidence on record with the assistance of the learned counsel for the parties. We are of the view that the findings of the Courts below qua the conviction of the appellants is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice. Therefore, it is difficult to avoid the impression that the conclusions reached at by the Federal Shariat Court and the trial Court suffer from serious errors of law and fact which unless set right or likely to result in miscarriage of justice and liberty of the appellants are involved coupled with the fact that Federal Shariat Court had set aside their conviction under Section 10(4) of the said Ordinance, 1979. The learned Federal Shariat Court had maintained their conviction under Section 11 of the said ordinance without application of mind, therefore, same is not sustainable in law. See Khudadad's case (2004 SCMR 425).
For what has been discussed above, these appeals are allowed. Appellants be released immediately if not involved in other criminal case.
(Malik Sharif Ahmed) Appeals allowed.
PLJ 2007 SC 386 (FB)
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
G.R. SYED--Petitioner
versus
MUHAMMAD AFZAL--Respondent
C.P. No. 982 of 2006, decided 10.11.2006.
(On appeal from the judgment/order dated 7.9.2006 passed by Lahore High Court, Lahore in RFA No. 269/2006).
Civil Procedure Code, 1908 (V of 1908)--
----O.XII, R. 6--Requisite adjustment--Court is empowered to pass a judgment on the basis of admission of facts made by the parties to their pleadings, at any stage of proceeding--In the case in hand admission of the petitioner was specific, clear, unambiguous categorical and definite--Trial Court rightly granted decree under Order XII Rule 6 CPC--Petition dismissed. [P. 390] A
2003 SCMR 1261.
Mr. Gulzarin Kiani, ASC and Mr. M. S. Khattak, AOR for Petitioner.
Nemo for Respondent.
Date of hearing: 10.11.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition for leave to appeal has been filed against the judgment dated 7th September 2006 passed by Lahore High Court, Lahore whereby RFA filed by petitioner has been dismissed.
Rs. 11,000,000/-. Out of the total sale consideration, a sum of Rs. 1,000,000/- was paid by the respondent/plaintiff as earnest money at the time of execution of the agreement. As the suit land came under the scheme known as M.A. Johar Town, Lahore, as such it was agreed between the parties that the petitioner/defendant would obtain adjustment etc. of the land in question from the Lahore Development Authority and thereafter transfer the same to the respondent/plaintiff and receive the balance agreed consideration. Subsequently, on 27th May 2003 an additional agreement was executed between the parties and petitioner/defendant received further Rs. 1,700,000/- from the respondent/plaintiff. The remaining amount of Rs. 8,300,000/- was to be paid by the respondent/plaintiff on completion of document and transfer of the suit land. The petitioner/defendant also handed over the possession of the land in dispute to the plaintiff as per the agreement. Later, on the failure of the petitioner/defendant to execute the sale-deed and to inform the respondent/plaintiff about adjustment of the land in question by the Lahore Development Authority, the respondent/plaintiff filed a suit for specific performance against the petitioner/defendant on the ground that petitioner/plaintiff is intentionally avoiding to get adjustment etc. of the land to avoid execution of the agreement whereas the respondent/plaintiff has always been ready and willing to perform his part of the agreement. The suit was contested by the petitioner/defendant by way of filing written statement admitting the ownership of the land in dispute. Furthermore, he did not specifically deny the execution of the two agreements and payment of consideration. However, preliminary objections as to the maintainability of the suit and absence of cause of action were, inter alia, raised. It was also contended by him that the requisite adjustment etc. had not been granted by the Lahore Development Authority. He also stated that the respondent/plaintiff had failed to make payment of the balance consideration within the due date. On the divergent pleadings of the parties, issues were framed.
Subsequently, the petitioner/defendant filed an application under Order VII Rule 11 of the CPC seeking rejection of the plaint on the ground that as the requisite adjustment had not been granted by the Lahore Development Authority, hence the suit for specific performance is devoid of any cause of action and the respondent/plaintiff is only entitled to receive an amount equal to double of the earnest money advance paid by him by way of compensation. This application was resisted by the respondent/plaintiff, who also filed an application under Order XII Rule 6 CPC, seeking that the suit be decreed as prayed for as the issues raised could be decided without recording of evidence on the basis of law applicable as the essential facts were admitted between the parties.
Learned Trial Court, after hearing both the sides, dismissed the application filed by the petitioner/defendant and accepted the application of respondent/plaintiff and decreed the suit as prayed for vide judgment/decree dated 5th May 2006. Feeling aggrieved by the judgment/decree of the trial Court, the petitioner/defendant preferred RFA before the Lahore High Court, Lahore but without any success, as the same has been dismissed by means of impugned judgment. As such instant petition for leave to appeal has been filed.
Learned counsel contended that once the trial Court had framed the issues and started recording evidence, it had no jurisdiction to reject the plaint merely on the basis of admission of the petitioner/defendant in terms of Order XII Rule 6 of CPC. According to him the judgment relied upon by the learned counsel was not applicable in view of the nature of the controversy involved in the case.
A perusal of the written statement demonstrates that the petitioner had admitted the execution of the agreement to sell dated 4th February, 2003 in respect of the land in question. It may be noted that on receipt of Rs. 27,00,000/- an earnest money possession of a part of the suit property has been delivered to the respondent. Learned Civil Judge in view of such admissions framed an issue whether the plaintiff was entitled to get a decree as prayed for. We inquired from learned counsel for the petitioner that in view of the provision of Order XII Rule 6 CPC was there any impediment for the trial Court to decree the suit? His contention was that agreement could only to be put into operation subject to obtaining adjustment etc. papers by the petitioner and as LDA had not granted the requisite adjustment which was due to the reason that the petitioner could not make payments to LDA which required to be paid before adjustment could be granted and such failure of the petitioner who due to the failure of the respondent to make the payment of the balance consideration within the stipulated period, therefore, it would not be executable. In this behalf it may be noted that initially in pursuance of agreement dated 4.2.2003 plaintiff(respondent) and defendant (petitioner) entered into agreement for a sale for total consideration of Rs. 11,000,00/- out of which respondent paid earnest money of Rs. 10,00,000/- at the time of execution of the agreement. As the land, subject-matter of the agreement, had fallen under the scheme known as M.A. Johar Town, Lahore, therefore, the petitioner (defendant) agreed to obtain adjustment of the land from LDA and thereafter transfer the same to the respondent/plaintiff and receive the balance consideration. Subsequently on 27th May, 2003 an additional agreement was executed between the parties in pursuance whereof the petitioner received further
Rs. 17,00,000/- from the respondent/plaintiff and remaining balance of
Rs. 83,00,000/- was to be paid by respondents on completion of documents and transfer of the suit land. As it has been noted herein above that admittedly petitioner handed over the possession of the land in dispute to the plaintiff as per the agreement, therefore, in the meantime it was obligatory for the petitioner to have obtained adjustment from LDA which he failed to do. As such respondent filed suit for specific performance alleging therein that the petitioner is intentionally avoiding to get adjustment etc. of land from LDA whereas the respondent had always been willing to perform his part. Under the circumstances, everything was admitted therefore, arguments of the learned counsel that without obtaining adjustment from LDA the agreement was not capable of implementation has no force because after the execution of the same the petitioner executed another document dated 24th September, 2003 in which the period of performance of contract was extended upto 31st December, 2003 with further stipulation that in the meantime he would get adjustment etc. from LDA. This document is also admitted by the petitioner, therefore, the petitioner would have obtained adjustment certificate from LDA before the expiry of the stipulated period because facts available on record reveal that respondent was always ready and willing to perform his part of obligation.
It is a settled proposition of law that under Order XII Rule 6 of CPC the Court is empowered to pass a judgment on the basis of admissions of facts by the addressee made by the parties to their pleadings, at any stage of the proceedings. The learned High Court to adjudge the controversy between the parties placed reliance upon the judgment of this Court in case of Amir Bibi Vs. Muhammad Khurshid and others (2003 SCMR 1261) and applying the rules laid down therein concluded that as the admission of the petitioner was specific, clear, unambiguous, categorical and definite, therefore, the trial Court had rightly granted decree under Order XII Rule 6 of CPC. As such, under the circumstances, reiterating the principle laid down in the reported judgment we are of the opinion that the impugned judgment admits of no interference.
As a result of the above discussion petition is dismissed and leave declined.
(Malik Sharif Ahmed) Petition dismissed.
PLJ 2007 SC 390
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
ROSHAN KHAN, S.E.T. GOVERNMENT HIGH SCHOOL KUZ PAO, DISTRICT SHANGLA--Petitioner
versus
DIRECTOR SCHOOLS & LITERACY, NWFP, PESHAWAR
and 4 others--Respondents
C.P. No. 747-P of 2004, decided on 3.10.2006.
(On appeal from the judgment dated 10.8.2004 passed by the NWFP Service Tribunal, Peshawar in Appeal No. 205 of 2004).
(i) NWFP Civil Servants Act, 1973--
----S. 10--Rules of Business, 1974, R. 21(2)--Constitution of Pakistan, 1973, Art. 212--Transfer was void being politically motivated--Violation--Plea of Petitioner that his transfer was void being politically motivated was not taken into consideration. [P. 391] A
(ii) Rules of Business, 1974--
----R. 21(2) r/w Sch. v--NWFP Civil Servants Act, 1973, S. 10--Transfer of Civil servant under the orders of even a Minister--Violative of Rule--Condemning the role of Minister and need for an upright, honest and strong bureaucracy was emphasized--Some of the peoples representatives, whose sacred and scholarly job it was to legislate while honourably confining themselves to the dignified mansions of the assemblies, have started undesirable, dishonest and corrupt interference into the purely executive/administrative domain of appointments, promotions and transfers of civil servants--By now it had turned into a mafia that does not care about law, Rules, Regulations, Rules of Business and repeated deprecations by Supreme Court and High Courts--Black-mail by some people whose weight, and not legislation, matters--This is bound to destroy the institutions, if not already destroyed. [P. 394] B & C
PLD 1995 SC 530; 1993 SCMR 1287; PLJ 2000 Tr.C. (Service) 473 and
2002 SCMR 1124.
Executive and Administrative Domain--
----Extent of recommendation and proposals--Deprecated and condemned--Rules of Business are utterly to contrary despite the fact that such practice is highly deprecated and condemned by Supreme Court on numerous occasions. [P. 394] D
Malik Shahzad Ahmed, ASC for the Petitioner.
Mr. Khushdil Khan, Additional Advocate General, NWFP alongwith Respondents # 2 & 5.
Mr. Mir Adam Khan, AOR alongwith Pir Muhammad Khan, MPA & Mr. Hamid Iqbal, MPA. on Court's call.
Date of hearing: 3.10.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Roshan Khan, a Senior English Teacher of District Shangla seeks leave to appeal against the judgment dated 10.8.2004 of learned NWFP Service Tribunal Peshawar, whereby, his appeal was dismissed and his transfer order dated 8.3.2003 from Shangla to Government High School Kuz Pao was considered valid, within the contemplation of Section 10 of NWFP Civil Servants Act, 1973. The plea of the petitioner that his transfer was void being politically motivated, was not taken into consideration.
The petitioner alleges and claims to have served Education Department for 30 years and currently belonged to the senior class of teachers. He was holding the post of Assistant District Officer (M) Inspection, since 12.3.2002. Due to his honest and bold action against the teachers, absent from duty, eight teachers who were proceeded against accordingly, nursed grudge and departmental rivalry against the petitioner. They approached Mr. Pir Muhammad Khan MPA whom they had allegedly favoured in elections and thus with the active role of the MPA aforesaid, petitioner was transferred vide order dated 8.3.2003.
He preferred departmental appeal, giving the aforesaid background, whereupon, on acceptance of such appeal on 28.2.2004, his transfer order dated 8.3.2003 was withdrawn. The political influence once again got spurred and, to the utter disappointment of the petitioner, the above-mentioned order dated 28.2.2004 was cancelled on 11.3.2004. He knocked unsuccessfully at the door of Service Tribunal and hence this petition.
As, gross violation of repeated verdicts of this Court was prima facie noticed, a full bench of this Court issued notice to the respondents. Again, this Court on 23.5.2006, in view of the allegations leveled by the petitioner, issued notice to Pir Muhammad Khan MPA to appear before the Court. On appearance he furnished written reply which forms paper book-III of this record.
At page 26 of the file there is a memo on the letter head pad of Pir Muhammad Khan MPA where he has given different directions for the postings and transfers of different civil servants. In his comments he stated that the endorsements on the letter head pad (p-26) are undated, un-numbered, unsigned by Pir Muhammad Khan and not addressed to any one. He never denied, in so many words, the endorsement having been made by him but still he said that "the same can only amount to proposals which were to be considered by the concerned authorities and such proposals do not amount to any order or directions or recommendations."
From the aforesaid remarks, the MPA who professes to be an Advocate as well, tried to interpret his endorsements at page-26 as mere proposals of recommendatory nature. This is factually incorrect because, the language used is indicative of direction and not proposals. A letter # 3131/F.No.72/ADO(M)/Shangla dated 22.1.2003 written by Directorate of Schools and Literacy to the Section Officer (Primary) Government of NWFP Schools and Literacy Department Peshawar proves how Mr. Pir Muhammad MPA was involved in the transfer of the petitioner. A para reproduced therefrom would be self-explanatory :--
"2. On 8.3.2003 Mr. Pir Muhammad Khan, MPA District Shangla visited this office and submitted a proposal for making transfer of some SET/ADOs of Distt. Shangla and thus his recommendation was honoured and transfer order was issued (copy attached) wherein the appellant concerned was victimized/suffered having immature tenure against the ADO(M) post at Shangla."
"2. However it is further clarified that his transfer order was made on the request of Mr. Pir Muhammad Khan MPA in March 2003 and since this Directorate has issued his transfer order hence this Directorate is not in a position to cancel it rather the worthy Secretary, (S&L) NWFP is the competent/appellate authority to consider his appeal regarding cancellation of his transfer order."
"3. As regard obtaining of recommendation/ consent from Pir Muhammad Khan MPA Shangla as per your directions contained in your letter referred to the above, so it is not possible for him as he has been victimized through the said MPA, however he has been got favourable/strong recommendation of Mr. Hamid Iqbal, MPA also belongs to District Shangla (Annexure-B)."
"DIRECTORATE OF SCHOOLS AND LITERACY NWFP PESHAWAR
No. 11408/Dated: 2.12.2003.
The Section Officer (Primary)
Govt. of NWFP, Peshawar.
Sub: TRANSFER CANCELLATION.
Memo.
Kindly refer to your office letter No. SO(PE)(S&L)EDO dated Peshawar the 10.11.2003 the following comments are hereby submitted for clarification of situation:--
The letter issued vide reference No. 3131/F No. 72/ ADO(M)Shangla dated 27.10.2003 by Director (S&L) Shangla, it is requested that the said proposal/view was submitted by the worthy MPA Mr. Peer Muhammad Khan. This officer has neither forwarded for said proposal nor is involved in this matter.
The ADO Mr. Roshan Khan is an efficient and hard working officer.
The ADO concerned Mr. Roshan Khan had not completed his normal tenure on the said post.
Keeping in view the above facts if the transfer order of the officer concerned is cancelled this office will have no objection.
EXECUTIVE DISTRICT OFFICE
SCHOOLS AND LITERACY"
All documentary evidence has gone a long way to prove that Pir Muhammad Khan was persistently involved in getting the petitioner transferred. He dubbed it as mere proposal but, under the prevailing conditions, one can well contemplate as to what is meant by the proposal of an elected representative who carries a weight to throw.
As early as in 1993, this Court had sensed the malady. In Munawar Khan v. Niaz Muhammad (1993 SCMR 1287), a larger bench had taken serious notice of allocation of appointment quota to the Ministers. MNAs and MPAs though with the blessings of the executive, and had declared them void ab initio, calling upon all Courts, Tribunals and Authorities to so declare. A healthy example of such compliance was Parwez Yunas Uppal's case (PLJ 2000 (Tr.C.) Service 473) where the learned Federal Service Tribunal declared a transfer order void and mala fide because it was motivated by a privilege motion moved in the assembly and because the competent authority had passed it without the application of its own and independent mind.
Transfer of civil servant under the orders of even a Minister was held by this Court to be void and unlawful, being violative of Rule 21(2) read with Schedule V of Rules of Business 1974. While condemning the role of Minister, that of tamed and subservient bureaucracy was also condemned and need for an upright, honest and strong bureaucracy was emphasized. Zahid Akhter's case (PLD 1995 SC 530) is the relevant reference.
Lately, in Sayyad Sikandar Ali Shah's case (2002 SCMR 1124), the role of competent/administrative authorities was once again condemned when they yield and surrender to the dishonestly intruding political influence.
It is for quite a long time, that some of the peoples representatives, whose sacred and scholarly job it was to legislate while honourably confining themselves to the dignified mansions of the assemblies, have started undesirable, dishonest and corrupt interference into the purely Executive/Administrative domain of appointments, promotions and transfers of civil servants. By now it has turned into a mafia that does not care about Law, Rules, Regulations, Rules of Business and repeated deprecations by the Supreme Court of Pakistan and High Courts. All forces seem to have whittled down before the exploitation and blackmail by some people whose weight, and not legislation, matters. This is bound to destroy the institutions, if not already destroyed.
Despite the fact that there is no law in the country giving authority to MPAs or MNAs to interfere into the Executive and Administrative domain, even to the extent of recommendations and proposals; despite the fact that the Rules of Business are utterly to the contrary; despite the fact that such practice is highly deprecated and condemned by this Court on numerous occasions, Mr. Pir Muhammad Khan, on whose letter head pad word Advocate appears below his name, has flouted all Law, Rules and Regulations. As an Advocate he ought to have been aware of the verdicts of the superior Courts and if not, at least, he ought to have known the Rules of Business and above all, the nature of his own obligations towards legislation in the Assembly and not beyond.
Before this Court he appeared personally and held the rostrum to address. It was a short but eloquent speech where, instead of clarifying his position, he argued the case against the petitioner saying that he was beaten by the teachers, that law and order situation had arisen and that his transfer was, therefore, necessary, again not realizing, that law and order also was not his headache. It is quite interesting that he still kept venom against the petitioner. At the end he requested the Court, not that he be absolved but that the instant petition be dismissed. In view of the background of political influence, the background of the case in hand and the repeated verdicts of this Court, we are constrained to observe that Mr. Pir Muhammad Khan MPA has been guilty of misconduct, unfair exploitation and malpractice that maligns the legislature and disrupts the administration.
It was for the reasons above that we had accepted the petitioner's claim after conversion into appeal through our short order dated 3.10.2006 that runs as follows:--
"For detailed reasons to be given later on, the impugned judgment dated 10.8.2004 of the learned NWFP Service Tribunal is set aside, the transfer order # 1201-1206/F.No.72/DS&L/ADO(M)/Shangla, dated 8.3.2003 passed by Director Primary Education NWFP, Peshawar is hereby set aside as withdrawn and that Endst. No. 1077-82/ F. No. 13/Vol:1/DIE/ADO(M) Shangla, dated 12.3.2002 of the Director Primary Education, NWFP Peshawar is restored.
(Malik Sharif Ahmad) Petition accepted.
PLJ 2007 SC 395
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Ch. Ijaz Ahmad, JJ.
Mst. GHAUSIA HASSAN--Petitioner
versus
Mst. MUNAWAR JAHAN & others--Respondents
C.P. No. 1650-L of 2002, decided on 23.2.2006.
(On appeal from the order dated 30.1.2002 passed by the Lahore High Court Lahore in WP No. 20152/2000).
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973, Art. 185(3)--Application was dismissed--Appeal was converted into revision petition by First Appellate Court--Case was remanded--High Court accepted writ petition--Assailed--Maintainability--Contentions--Interest of justice--Held: Constitutional petition was not maintainable against the remand order as law laid down by Supreme Court in 1986 SCMR 251--In the interest of justice, appeal was converted into revision petition and accepted--Application u/S. 12(2) CPC was remanded to trial Court for its fresh decision after recording of evidence of parties--Appeal allowed. [P. 398] A & B
Mr. S.M. Tayyab, Sr. ASC for Petitioner.
M. Ozair Chaughtai, AOR Mian Khalid Habib Elahi, ASC for Respondents.
Date of hearing: 23.2.2006.
Order
Ch. Ijaz Ahmad, J.--The detailed facts have already been mentioned in the impugned judgment. However, the necessary facts out of which this petition arises are that Syed Aal-e-Hassan died on 29.12.1999 leaving behind following legal heirs:--
(a) Mst. Munawar Jehan widow.
(b) Mst. Zahida Bano daughter.
(c) Mst. Ghausai Hassan daughter.
Amount Account# Bank
Rs. 2,11,372.31 PLS A # 6058 National Bank of Pakistan Township Branch, Lahore.
U.S Dollars Standard Chartered Bank, 3759.22 Shahrah-e-Quaid-e-Azam, Lahore.
The learned trial Court granted succession certificate vide order dated 20.10.94. The certificate was also issued to her vide order dated 23.10.94, the petitioner and her mother filed application before the trial Court through their special attorney (Abdul Waheed) for the cancellation of the certificate on the ground that petitioner and her mother were not impleaded as party to the succession certificate. During the pendency of the application, allegedly compromise arrived between the parties. Compromise deed was filed in Court. The learned Court accepted the same vide order, dated 2.4.1995. Petitioner being aggrieved filed an application u/S. 12(2) CPC before the trial Court on 15.7.1996 against the aforesaid order. The learned trial Court dismissed the application vide order dated 30.1.99. Petitioner being aggrieved filed an appeal in the Court of Addl. District Judge Lahore who converted the same into revision petition and accepted the same vide judgment dated 12.7.2000 and remanded the case to learned trial Court for its fresh decision after recording evidence of parties after giving them reasonable opportunity on merit.
Respondent No. 1 being aggrieved filed W.P. No. 20152 in the learned High Court. The learned High Court accepted the same vide impugned judgment dated 30.1.2002 and upheld the order of the trial Court wherein the application filed by the petitioner was dismissed. Hence, the present petition.
Learned counsel for the petitioner submits, that the revisional Court had passed the judgment in favour of the respondent with cogent reasons after judicial application of mind. He further urges that contents of the compromise deed itself reveal that respondent and her mother had given their legal, inherited right according to the injunctions of Islam in the property of her father. He further urges that constitution petition was not maintainable before the learned High Court against the remand order. He further urges that Addl. District Judge had converted the appeal of the petitioner into revision petition and constitution petition could not be maintainable against the order passed by the Addl. District Judge in Civil Revision in civil matter. He further urges that keeping in view the controversy between the parties, the revisional Court was justified to remand the case with the direction to the trial Court to decide the application afresh after recording of evidence of parties after giving them reasonable opportunity on merit whereas the learned High Court had reversed the same without adverting to the reasoning of the revisional Court.
Learned counsel of the respondent submits that Respondent No. 1 and her mother had themselves forgiven their right in the property of the late Syed Aal-e-Hassan. He further urges that compromise deed was executed between the parties on 27.3.95 which was admitted by the parties before the Court as evident from order dated 28.3.95 and the case was adjourned for 2.4.95. On 2.4.95 application of the respondents was dismissed in terms of the compromise arrived between the parties after recording the statement of the parties, therefore, revisional Court was not justified to reverse the order of the trial Court. He further urges that respondents had settled the matter with the petitioner outside the Court. Petitioner secured an amount of Rs. 2,00,000/- which amount was not denied by the petitioner as is evident from para 8 of the impugned judgment. He further urges that petitioner was not the daughter of the late Syed Aal-e-Hassan. Infact she was his adopted daughter. He further submits petitioner was declared as not legal daughter of Syed Aal-e-Hassan in the suit titled Mst. Ghausia Hassan versus Mst. Munawar Jahan vide judgment dated 16.10.2000 passed by Civil Judge 1st Class Lahore while rendering findings on Issue No. 5. He further urges that petitioner could not file application u/S. 12(2) CPC on account of her conduct as the petitioner and her mother had settled the dispute outside the Court on the well known principle of estoppal and waiver. He further urges that petitioner had not alleged any fraud misrepresentation in her application, therefore, learned High Court was justified to accept the constitution petition of the Respondent No. 1 through the impugned judgment.
Learned counsel for the petitioner in rebuttal submits that suit titled Mst. Ghausia Hassan v. Mst. Munawar Jahan was decided against her on the basis of succession certificate secured by Respondent No. 1 against which the petitioner had filed application u/S. 12(2) CPC. He further urges that petitioner has also filed the appeal against the said judgment and decree before the learned High Court which is still pending adjudication.
We have given our due consideration to the contentions of learned counsel of the parties and perused the record. Without adverting to the contentions of the learned counsel of the parties, we intend to decide the petition on legal questions raised before us. It is an admitted fact that Respondent No. 1 had filed a constitutional petition the learned High Court against the judgment of the revisional Court dated 12.7.2000 wherein the revisional Court accepted the petition and the application u/S. 12 (2) CPC was remanded to the learned trial Court for its fresh decision after recording of evidence of parties after giving them reasonable opportunity on merit. It is a settled principle of law that Constitutional Petition is not maintainable against the remand order as the law laid down by this Court in Muhammad Ilyas Khan's case 1986 SCMR 251. It is also an admitted fact that respondent as mentioned above had filed Constitutional Petition No. 21052 of 2000 against the judgment passed by the Addl. District Judge in revision petition in civil matter. The learned Addl. District Judge remanded the application to the learned trial Court with the following observation:--
"In the circumstances it would be in the interest of justice that appellant Ghausia Hassan be provided opportunity to establish her paternity and if she is refused to prove her case she will be deprived of her valuable right. In these circumstances, I am of the considered view that the learned trial Court committed material irregularity while ignoring the fact regarding claim of paternity by Ghausia Hassan hence the impugned order dated 30.1.99 is set aside. As there is admittable right of inheritance is involved so in the interest of justice the appeal is converted into revision petition and the same is accepted and application under Section 12(2) CPC is remanded to learned trial Court for its afresh decision after recording of evidence of parties after giving them reasonable opportunity on merit".
Mere reading of the aforesaid operative part of the judgment dated 12.7.2000 clearly shows that substantial justice was done between the parties and this fact was not considered by the learned High Court while accepting the constitutional petition vide impugned judgment as law laid down by this Court in Imtiaz Ahmad's case (PLD 1963 SC 382) and in Noor Muhammad's case (PLD 1985 SC 131).
In view of what has been discussed above, this petition is converted into an appeal which is allowed. The impugned judgment of the learned High Court is set aside and judgment of the revisional Court dated 12.7.2000 is restored.
(Rafaqat Ali Sohal) Appeal allowed.
PLJ 2007 SC 399
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani & Syed Jamshed Ali, JJ.
MUKTHIAR ALI alias MUMTAZ ALI etc.--Petitioners
versus
MUMTAZ AHMED etc.--Respondents
C.P.L.A. Nos. 3302 & 3303/L of 2003, decided on 2.3.2006.
(On appeal from the order dated 13.10.2003 of the Lahore High Court, Multan Bench passed in Civil Revision Nos. 725-D & 801-D of 1996).
Punjab Pre-emption Act 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973, Art. 185(3)--Talab-i-Ishhad--Mandated in law--Petitioners produced one out of two witnesses of talb-i-ishhad--Suit of pre-emption decreed by trial Court--First Appellate Court reversed the judgment of trial Court holding one of the two witnesses of Talab-i-Ishhad was not produced--High Court upheld the judgment of First Appellate Court--Supreme Court set aside the order of High Court--Held: Production of both the witnesses in Court was not mandatory requirement in law--Section 13 for proving Talab-i-Ishhad appearance of pre-emptor alongwith one of the witnesses of Talab-i-Ishhad is sufficient compliance and production of two marginal witnesses in Court is not a mandatory requirement under the Punjab Pre-emption Act 1991.
[P. 400] A
Mr. S.M. Tayyab, Sr. ASC for Petitioner.
Mr. A.H. Masood, AOR for Respondents.
Date of hearing: 2.3.2006.
Order
Tassaduq Hussain Jillani, J.--This order shall dispose of C.P.L.A. Nos. 3302 & 3303-L of 2203 as common questions of law and facts are involved therein.
Through these petitions, petitioners seek leave to appeal against the judgment dated 13.10.2003 vide which a learned Judge of the Lahore High Court dismissed petitioners Civil Revisions and affirmed the judgment of the Appellate Court dated 20.3.1996 vide which while reversing the judgment and decree of the learned trial Court dated 26.2.1995 petitioners' suit was dismissed.
The only ground which found favour with the learned High Court to uphold the judgment of the Appellate Court was that petitioners produced only one out of the two witnesses of "Talab-i-Ishhad."
Learned counsel for the petitioners submits that production of both the witnesses in Court is not mandatory requirement in law; that petitioner (PW.1) and one of the witnesses of Talab-i-Ishhad namely Sher Muhammad (PW.2) had fully proved the performance of "Talab-i-Ishhad" and that the judgment of the learned High Court on that score is not only against the law but also reflects the material evidence on record.
Learned counsel for the respondents, on the other hand has not been able to controvert the submissions made by petitioners' learned counsel that production of two marginal witnesses in Court is not a mandatory requirement under the Punjab Pre-emption Act, 1991 or under the Qanun-e-Shahadat Ordinance, 1984.
The contention raised by the petitioners' learned counsel has force. However, since the learned High Court has not adverted to the other issues, we are inclined to allow these petitions, convert the same into appeals and while setting aside the impugned judgment we are remanding the cases to the learned High Court to decide the matter afresh. The Civil Revision Nos. 725-D of 1996 & 801-D of 1996 shall be deemed to be pending before the said Court and shall be decided as mandated in law.
(Rafaqat Ali Sohal) Case remanded.
PLJ 2007 SC 400
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.
GULAM ZOHRA & 8 others--Petitioners
versus
NAZAR HUSSAIN (deceased) through his legal heirs.--Respondents
Civil Petition No. 3189-L of 2000, decided on 18.12.2006.
(On appeal from the judgment dated 19.10.2000 passed by the Lahore High Court, Lahore in Civil Revision No. 867 of 1984).
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 27(1)(b)--Constitution of Pakistan, 1973, Art. 185(3)--Question of filling the lacunae is not of prime importance--Additional evidence is always sought about something, which happens to have been omitted by a party during trial. [P. 402] C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 27--Constitution of Pakistan, 1973, Art. 185(3)--Additional evidence--Appellate Court would have done justice if it had come to the conclusion, that the admittance of additional evidence would promote the ends of justice and the same was required in order to do complete justice between the parties--Held: Supreme Court considered the additional evidence that Courts below have committed a bigger irregularity as compared to the admission of additional evidence for which substantial cause was available. [P. 402] D
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 27--Owners in estate having equal right--No patwari was examined by trial Court from whom the revenue record favouring the petitioners could have been demanded--Copy of Registrar Haqdaran Zamin for the specified years with application determines the petitioners to be owners in the estate--Application if not allowed, would result into passing of decree against vendee who has equal right of pre-emption with pre-emptor and pre-emptor would be having no superior right.
[P. 402] A & B
Mr. S.M. Tayyab, Sr. ASC for Petitioners.
Kh. Muhammad Akram, ASC for Respondents.
Date of hearing: 18.12.2006.
Judgment
Sardar Muhammad Raza Khan, J.--The petitioners seek leave to appeal from the judgment dated 19.10.2000 of a learned Judge in Chambers of Lahore High Court, whereby, their revision was dismissed, maintaining the decree for possession through pre-emption in favour of Nazar Hussain respondent (now dead-LRs impleaded).
The petitioners had purchased the disputed property in Mauza Dawana Kanju, Tehsil Shahpur District Sargodha vide Mutation # 222 attested on 22.8.1969. It was pre-empted by two rival pre-emptors named Syed Ghazanfar Ali Shah, the son of the vendor and another Nazar Hussain, the respondent. The learned trial Court dismissed the suit of Syed Ghazanfar Ali Shah holding it to be collusive and decreed that of Nazar Hussain holding him to be an owner in the estate, which the petitioners/vendees were not. The non-suited pre-emptor did not file an appeal while the vendees went into appeal where they filed an application under Order XLI Rule 27 CPC for the production of revenue record proving them also to be owners in the estate. The appellate Court as well as the learned High Court, through the impugned order, came to the conclusion that the application was filed to fill in the lacunae and that such plea was never taken by the vendees in their written statement.
The successful pre-emptor is held to be an owner in the estate. If the application of the petitioners had been accepted by the learned appellate Court, the vendees also would have been held to be the owners in the estate, having equal right with that of the pre-emptor. We have scanned the record wherefrom it appears that no patwari was examined by the trial Court from whom the revenue record favouring the petitioners could have been demanded. Copy of Register Haqdaran Zamin for the year 1966-67 and 1970-71 annexed with the application under Order XLI Rule 27 CPC undoubtedly determines the present petitioners also to be the owners in the estate.
The application if not allowed, would result into the passing of a decree against a vendee who has equal right of pre-emption with the pre-emptor and where the pre-emptor would be having no superior right. It would be nothing but a sheer injustice besides being an illegality. Thus the learned appellate Court under sub-rule (b) of Rule 27 of Order XLI CPC should have received the copies of revenue record as additional evidence in order to do complete justice and in order to avoid passing a decree in favour of the pre-emptor having no superior right. The question of filling in the lacunae is not of prime importance because no such word is mentioned in the rule itself. Obviously, additional evidence is always sought about something, which happens to have been omitted by a party during trial. The appellate Court would have done justice if it had come to the conclusion that the admittance of additional evidence would promote the ends of justice and the same was required in order to do complete justice between the parties. This must have prevailed as substantial cause for the appellate Court to admit evidence as mentioned in sub-rule (b) Rule 27 of Order XLI CPC. We are of the view that both the Courts, by not admitting the additional evidence have passed a decree in favour of a pre-emptor having no superior right. This was a bigger irregularity as compared to the admission of additional evidence for which substantial cause was available.
The second objection that the plea was not taken in the written statement, is also unfounded. It is sufficient for a defendant in a pre-emption suit to plead that the pre-emptor had no superior right. Such plea was, of course, taken by the present petitioners. In a pre-emption suit it is the pre-emptor who is to prove the superiority of his right not the equality and hence the plea that the pre-emptor has no superior right is sufficient to meet the requirements of the pleadings.
Consequent upon what has been discussed above, the petition, after conversion into appeal, is accepted. the impugned judgments of the High Court as well as the appellate Court are set aside and, in order to avoid prolongation of already protracted litigation, the copies of jama bandi produced by the petitioners are admitted into additional evidence. The pre-
Since I have held entire election as void therefore, office bearers who have been notified either in the notification dated 2.11.2006 or notification of Malik Muhammad Qayyum dated 4.11.2006 & 6.11.2006 shall cease to hold the offices and notifications purporting to be the results of elections are set aside.
Since all the offices of the Supreme Court Bar Association are vacant as per my judgment, therefore, the Executive Committee of Pakistan Bar Council should announce the date for fresh election within next ten days. I am sending my aforesaid views to my friends on the Appellate Bench of Executive Committee with request to either agree, disagree, modify the same, and announce the decisions.
(Nadeem Jamal) Order accordingly.
PLJ 2007 SC 403
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmud and
Dr. Rashid Ahmed Jullundhari, JJ.
NAZEER alias Wazeer--Appellant
versus
STATE--Respondent
Crl. A. No. 53(S) of 2001, decided on 18.10.2004.
(On appeal from the judgment of Federal Shariat Court, dated 8.2.2001 passed in Crl. A. 128/I/2000 with M.R. 41/I/2000).
(i) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 8 & 9--Qanun-e-Shahadat Order, (10 of 1984), Art. 17--Retracted confession, imposition of Hadd--Determination--Offence of zina or zina-bil-jabar was proved only through confession of accused--Hadd would not be imposed if the convict retracts his confession before the enforcement of Hadd or part of Hadd--Evidence in proof of offence of zina liable to Hadd or Zina bil Jabar is not available in the form provided u/S. 8 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the offence is punishable as Tazir and the standard of evidence for proof of offence punishable as Tazir would be in the form as provided under Art. 17 of Qanun-e-Shahadat Order, 1984--Proof of offence punishable as Hadd and that of Tazir--Distinction--Standard of Evidence--Evidence to prove an offence punishable as Hadd must be in terms of Injunctions of Islam and for an offence punishable as Tazir, proof can be provided in Art. 17 of Qanun-e-Shahadat Order, 1984. [P. 411] A & B
(ii) Oaths Act, 1873 (VIII of 1873)--
----S. 5--Judicial confession recorded on oath--Effect of--Prohibited under Oath Act, 1873--Validity--Rule of evidence of Islamic Law--Departure to the rule of procedure--Legality--If magistrate recorded the statement of an accused in the manner which is prohibited under the law, may have committed an illegality in exercise of jurisdiction but if the confessional statement contained true statement of facts, it may not loose the status of legal evidence merely because of adopting of the procedure for recording the confession by the magistrate which is" prohibited under the law--Accused was misled and injustice was caused to him by adopting such procedure--Held: Such procedural illegality would assume the character of irregularity which might not render the confession inadmissible--Object of procedure for conducting criminal proceeding is to enable the Court to ensure the fair trial and to do the justice and if in a particular case, despite departure to the rule of procedure, justice was done and order was found just and proper which caused no prejudice and injustice to the accused, there would be no necessity to undo it and set it aside for the mere reason that a wrong procedure was adopted--Rule of evidence of Islamic Law, envisages that the real test to believe or disbelieve a confessional statement is not the method in which the confession is recorded rather it is to be seen that what is stated in the confessional statement is true and the confession was made voluntarily--Further held: Recording of confessional statement on oath would be only a procedural mistake, which is only an irregularity.
[Pp. 411, 412 & 413] C, D & F
(iii) Administration of Justice--
----Concept of--Rule of criminal administration of justice--Confessional statement--Violation--Accused cannot be compelled to make a confession on oath or without oath but in the light of concept of truth in Islam, if an accused Muslim by faith, wants to make a confessional statement, he must speak truth and disclose the true facts and notwithstanding the procedural violation of recording the confessional statement on oath--Held: Confession is true and voluntary and is satisfied that by such a procedural defect no prejudice was caused to the accused and there was also no failure of justice, may on the basis of such retracted confession. [P. 413] E
(iv) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(a) & (b)-Judicial confession--Death Sentence on the basis of Qisas and Tazir--Validity--Accused can be awarded sentence of death u/S. 302(a) PPC as Qisas on the basis of judicial confession if it is not subsequently retracted and in case in which judicial confession is retracted if the same is found true, voluntary and confidence inspiring, can be considered sufficient evidence for conviction and accused can be awarded sentence of death for murder as Tazir under Section 302(b) PPC. [P. 413] G
(v) Principle of English Law--
----Concept of criminal administration of justice in Islam--Concept in Islam--Accused is not bound to speak the truth, concept Islamic Law of evidence--Principle of English Law that an accused while appearing before the Court is not bound to speak truth, is not in consonance with the concept of criminal administration of justice in Islam according to which a Muslim whether an accused or a witness, must speak truth and must not tell a lie in his statement recorded by a judicial officer on oath or without oath--Held: Confessional statement if is recorded on oath can be used as legal evidence subject to test of its being true and voluntary. [P. 414] H
(vi) Juvenile Justice System Ordinance, 2000 (XXII of 2000)--
----S. 7--Determination of age--Medical report regarding determination of age can be considered and in the light of school leaving certificate of the appellant and the medical evidence, according to which he was less than 18 years at the time of commission of offence, there is no hesitation to hold that at the relevant time, accused was a juvenile.
[P. 415] I
(vii) Juvenile Justice System Ordinance, 2000 (XXII of 2000)--
----Preamble--Retrospective effect--Occurrence took place and conviction and sentence awarded before enactment of the Ordinance-Effect-Where the occurrence had taken place before the enactment of Juvenile Justice System Ordinance, 2000 and accused was also convicted and sentenced before the commencement of the Ordinance and it having no retrospective effect, would not be applicable to the case of accused. [P. 415] J
PLD 1964 SC 813 (ref.)
Mr. Muhammad Munir Peracha, ASC for the Appellant.
Ms. Nahida Mehboob Ellahi, ASC and Mr. M.A. Zaidi, AOR for Complainant.
Ms. Afshan Ghazanfar, AAG Punjab for State.
Date of hearing : 18.10.2004.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court under Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment dated 8.2.2001 passed by the Federal Shariat Court, Islamabad, whereby the criminal appeal filed by the appellant against his conviction and sentence awarded to him under Section 302(b) PPC read with Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and under Section 201 PPC by the learned Additional Sessions Judge, Dera Ismail Khan, was dismissed and the murder reference sent by the trial Court was disposed of accordingly. The appellant was sentenced as under :--
(a) Under Section 302 (b) PPC death with a fine of Rs. 20,000/- and in default of payment of fine to undergo R.I. for one year.
(b) Under Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, rigorous imprisonment for a term of five years
(c) Under Section 201 PPC, rigorous imprisonment for 4 years with fine of Rs. 10,000/- and in default of payment of fine to undergo R.I. for 6 months.
The leave was granted by this Court in this appeal to consider the following questions :--
"(a) As to whether Juvenile Justice System Ordinance 2000 is applicable to this case.
(b) Whether the judicial confession made on oath can be used against the petitioner for sustaining the death sentence. and
(c) Whether such confession made on oath was admissible in evidence and could have been acted upon."
The case was initially registered against the appellant under Section 302 PPC for the allegation of committing the murder of Mst. Tasleem Bibi, a minor girl of the age of 8/9 years, daughter of Ghulam Haider on the report lodge by Ata Muhammad, brother of Ghulam Haider, on 2.4.1999 at Police Station, Kirri Khaisore, District D.I. Khan and subsequently, in the light of medical evidence. Section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was also added. It was stated in the FIR that on 1.4.1999 at 9 a.m. the deceased girl went to Chashma Right Bank Canal but did not return and the complainant during the search of the girl, came to know at about 4.30 p.m. that a dead body of a child was lying under a tree on the northern side of village Chashma. The complainant, alongwith Ameer Khan, on reaching there found that it was the dead body of Mst. Tasleem Bibi and she was tied from her neck with her doputta and blood was oozing from her mouth. The SHO of the concerned police station, on arrival at the spot prepared the inquest report, took into possession the blood stained earth from there and sent the dead body for post-mortem examination. Subsequently, he also took into possession the last worn cloths, shirt, shalwar and dopatta of the deceased. The appellant was arrested on 4.4.1999 and when produced before a judicial magistrate on 5.4.1999, he volunteered to make the confession. The magistrate on the same day, after recording his confessional statement under Section 164 Cr.P.C. on oath sent him to the judicial lock up. The prosecution in proof of the charge, examined 12 witnesses and mainly relied upon the judicial confession of the appellant, the medical evidence and the recoveries.
Lady Dr. Fozia Ambree, Women Medical Officer (PW-4) conducted autopsy of the dead body on 3.4.1999 at 8 a.m. and observed as under :--
"Ligature around neck. Pale yellow colour dopatta throid cartilage. Three turns know left side.
Due to advanced putrefaction, no marks of violence, injury could be seen.
Membranes, brain, spinal cord, congested edamatous.
THORAX: Walls, riba and cartilages normal. Cynosis over the anterior thorasic walls, ribs and cartilages normal. Larynx and trachea injured......
ABDOMEN: walls greenish dis-coluration, blisters abdomen distended, rigid....
In the opinion of doctor, cause of death was asphyxia due to strangulation and the probable time between death and postmortem was 36 hours. The gist of the evidence is as under.
Dr. Rab Nawaz (PW-10) conducted medical examination of the appellant and observed that he has developed secondary sexual characters and there was nothing to suggest that he was unable to perform sexual intercourse. Atta Muhammad complainant (PW-11) narrated the circumstances leading to the fateful occurrence and the subsequent events in detail. The appellant in his statement under Section 342 Cr.P.C. denied to have made confessional statement voluntarily before the magistrate and in answer to the Question No. 4 replied as under:
".... I am a rustic villager. That person had given me oath on Holy Quran and had tempted me to confess the guilt before him, so that I might be pardoned by Almighty God. My thumb impression was the nature obtained on the statement which was not offered me and I was handed over back to the same to who had also got the photo copy of that so called statement."
The appellant pleaded that at the time of alleged occurrence, he was minor. In answer to Question No. 6 he replied as under:
"I am not an adult and was 13 years and eight months old at the time of alleged occurrence. In this behalf, I place on record the copy of my school leaving certificate (Ex: DA), according to which my date of birth shown there is in 10.12.1985. The doctor had actually not fulfilled the required method to determine as to whether I was then potent or not because no ejaculation test was performed by him and on clinical examination he declared that I was potent."
In proof of the plea of minority, the appellant placed reliance on his school leaving certificate and examined Rab Nawaz, Head Teacher of the school and Muhammad Nadeem, LDC of Election Office in his defence.
(a) The judicial confession made on oath was not admissible in evidence and having been obtained through undue influence, inducement and coercion, was not voluntary to have any evidentiary value.
(b) The confession was subsequently, retracted and could not be made basis of conviction without independent corroboration;
(c) The capital punishment on the basis of sole evidence of retracted judicial confession was not justified;
(d) The appellant at the time of alleged occurrence was less than 18 years of age and under Juvenile Justice System Ordinance, 2000, he could not be awarded death penalty.
The learned Assistant Advocate General (AAG), on the other hand, has contended that the appellant made confession before a judicial magistrate on the next day of his arrest without any inducement or coercion, therefore, its subsequent retraction would not effect its admissibility and reduced the evidentiary value of the confession. The learned AAG submitted that a retracted judicial confession if is found true, voluntary and confidence inspiring, it alone can be made basis of conviction and that in the present case, the judicial confession made by the appellant being supported by the medical evidence, was found to be true, voluntary and confidence inspiring. The learned AAG while dealing with the plea of minority taken by the appellant, submitted that the appellant instead of bringing on record his birth certificate in proof of his age, placed reliance on his school leaving certificate which would not be considered a substantial evidence of age and that in any case the occurrence in the present case had taken place much before the promulgation of Juvenile Justice System Ordinance, 2000, therefore, the appellant would not be entitled to avail the benefit of said Ordinance.
The first and the most essential question requiring for determination in the present case would relate to the admissibility of the judicial confession made by the appellant which was recorded on oath to maintain his conviction and the second question for consideration would relate to the quantum of sentence.
The provisions of Section 164 Cr.P.C. and 364 Cr.P.C. invariably apply to all sorts of statements and a confessional statement recorded under Section 164 Cr.P.C. on oath is violative of Section 5 of the Oaths Act, 1873 which prohibits the administration of oath or affirmation to an accused person, therefore, the question for consideration would be whether a confessional statement which was recorded on oath, if caused no prejudice or injustice to the accused, is admissible in evidence or not. The rule enacted in Section 5 of Oaths Act, 1873, is based on the concept that law does not compel an accused to make a confession and he is under no obligation to speak the truth but if he willingly and voluntarily makes a judicial confession his statement is an evidence and thus in the light of this principle the administration of an oath or affirmation to an accused is considered not based on public policy and is an illegality in law. This rule of English Law, in principle, is not in conflict with the principles governing the criminal administration of justice in Islam except that a Muslim is not supposed to tell a lie before the Court and must speak truth. The old provisions in Pakistan Penal Code, relating to the offences affecting human body, were substituted with new provisions through Qisas and Diyat Ordinance, 1990 enacted in the light of Injunctions of Islam and the offences mentioned in Chapter XVI (Of Offences affecting the Human Body) were made punishable as Qisas or Tazir. The standard of evidence for proof of an offence punishable as Qisas or Tazir, is provided in Section 304 PPC as under:--
"Proof of qatl-i-amd liable to qisas, etc.--(1) Proof of qatl-i-amd liable to qisas shall be in any of the following forms, namely:
(a) the accused makes before the competent Court to try the offence voluntarily and true confession of the commission of offence;
(b) by the offence as provided under Section 17 of Qanun-e-Shahadat Order 1984, (P.O. No. 10 of 1984).
(2) The provisions of sub-section (1) shall, mutatis mutandis, apply to a hurt liable to qisas. "
"8. Proof of Zina or zina-bil-jabr liable to Hadd.--Proof of `zina or zina-bil-jabr', liable to hadd shall be in one of the following forms, namely:--
(a) The accused makes before a Court of competent jurisdiction a confession of the commission of, the offence ; or
(b) At least four Muslim adult male witnesses about whom the Court is satisfied having regard to the requirements of 'tazkiyah al-shuhood' that they are truthful persons and abstain from major sins ('kabair') give evidence as eye-witnesses of the act of penetration necessary to the offence:
Provided that if the accused is a non-Muslim the eye-witnesses may be non-Muslims.
Explanation. In the section "tazikyah al-shuhood', means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness."
"Compete and number of witnesses.--(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law--
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
There is clear distinction of the standard of evidence for proof of an offences punishable as Hadd and of an offence punishable as of tazir and the combined effect of above provisions of law is that the evidence to prove an offence punishable as Hadd, must be in terms of Injunctions of Islam and for an offence punishable as Tazir, proof can be in either form provided in Article 17 of Qanun-e-Shahadat Order 1984. Islam emphasizes that muslims must speak truth and abstain from telling lie which is a sin. Allah Almighty in His Command Says in Holy Quran "O believers! Stand stead fast with justice as a witness for Allah even if it is against you or against your parents or nearer, even if he is rich or poor, Allah is more nearer than all those both. (4/35)". The Holy Prophet said: "Tell truth even if it goes against you". The concept of English Law that an accused is not bound to speak truth, appears to be in conflict with the concept of truth in Islam that a person must speak truth and must not tell lie. Therefore, according to the rule of evidence in Islamic Law a confession made by an accused before the Court is presumed to be based on truth and the principle of English Law that a retracted judicial confession if found confidence inspiring can be made basis of conviction, is based on the rule of evidence of Islamic Law that a judicial confession if is not retracted by the maker, is sufficient evidence for punishment of an offence as Hadd and if a person after making a confession of his guilt before a competent Court, retracts from his confession at any subsequent stage, the punishment of Hadd on the basis of such confession cannot be enforced but it is a valid and legal evidence to sustain conviction of a person for such an offence as Tazir. In the light of this rule the subsequent retraction of judicial confession by an accused would neither reduce its value nor affect the truthfulness and admissibility of confession as evidence and consequently, a judicial confession recorded on oath despite being not legal under Oaths Act, 1873, if contained true statement of facts, may be admissible in evidence subject to the test of it being true and voluntary and can validly be used as an evidence in Hudood cases punishable as Tazir. We therefore, without going into the question regarding the enactment of Section 5 of Oaths Act, 1873, on the touchstone of Injunctions of Islam or not, concentrate to the question relating to the admissibility of a confession which was recorded on oath. The rule of evidence of Islamic Law, envisages that the real test to believe or disbelieve a confessional statement is not the method in which the confession is recorded rather it is to be seen that what is stated in the confessional statement is true and the confession was made voluntary. However, there is difference of opinion of Imam Abu Hanifa with Abu Yousaf and Imam Muhammad on the subject. According to Imam Abu Hanifa giving of oath to an accused as Hadd except in a case of theft, is not valid whereas Imam Abu Yousaf and Imam Muhammad held giving of oath is valid in all matters except in lian. (Al-Jami-ul-Saghir by Imam Mohammad Bin Hassan Al-Sheebani Kitabul Qada'.P 318). The recording of judicial confession on oath is certainly prohibited under Oaths Act, 1873 and a magistrate if recorded the statement of an accused in the manner which is prohibited under the law, may have committed an illegality in exercise of jurisdiction but if the confessional statement contained true statement of facts, it may not loose the status of legal evidence merely because of adopting of the procedure for recording the confession by the magistrate which is prohibited under the law unless it is shown that the accused was misled and injustice was caused to him by adopting such procedure, therefore, such procedural illegality would assume the character of an irregularity which may not render the confession inadmissible. The object of procedure for conducting criminal proceedings is to enable the Court to ensure the fair trial and to do the justice and if in a particular case, despite departure to the rule of procedure, justice was done and order was found just and proper which caused no prejudice and injustice to the accused, there would be no necessity to undo it and set it aside for the mere reason that a wrong procedure was adopted. The perusal of confessional statement of appellant, would show that the magistrate either due to lack of sufficient experience or by mistake recorded the confessional statement of the appellant on oath but adhered to the strict compliance of all necessary formalities required under the law for recording the confession. Therefore, the mere defect of recording such statement on oath and bare denial of the his statement under Section 342 Cr.P.C. that confession was not voluntary, without raising specific objection that he was not prepared to make the confessional statement on oath or he would not like to confess his guilt if his statement would not have been recorded on oath, would not make it inadmissible. There is no cavil to the rule of criminal administration of justice that an accused cannot be compelled to make a confession on oath or without oath but in the light of concept of truth in Islam if an accused Muslim by faith, wants to make a confessional statement, he must speak truth and disclose the true facts and notwithstanding the procedural violation of recording the confessional statement on oath, the Court if finds that confession is true and voluntary and is satisfied that by such a procedural defect no prejudice was caused to the accused and there was also no failure of justice, may on the basis of such retracted judicial confession, convict an accused. It was held by this Court in Anwara Chowdhury Vs. M. Majid (PLD 1964 SC 813), that "Retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration".
In the present case the Magistrate who recorded the statement of the appellant had informed him that he was not bound to make statement and if he would make such a statement it can be used against him as an evidence, and was also informed him that after recording the statement, he would be sent to the judicial lock up. The appellant despite having been told that he was under no compulsion to make the confession was volunteered to make such a statement and the magistrate, after putting all necessary questions to the appellant in the prescribed manner and completing necessary formalities of law ascertained his willingness and recorded his statement. The fact that the appellant was produced before the magistrate within 24 hours of his arrest and the magistrate after recording his statement, sent him to jail, would sufficiently show that the confession was free of inducement, outside influence or pressure and was true and voluntary. Therefore, in the given facts, the recording of confessional statement on oath would be only a procedural mistake which is merely an irregularity. In a murder case, an accused can be awarded sentence of death under Section 302(a) PPC as Qisas on the basis of judicial confession if it is not subsequently retracted and in a case in which the judicial confession is retracted if the same is found true, voluntary and confidence inspiring, can be considered sufficient evidence for conviction and sentence for a murder as Tazir and since the appellant retracted the confession, therefore, he was awarded sentence of death under Section 302(b) PPC as Tazir. In the light of above rule of evidence in Islam, it is found that the principle of English law that an accused while appearing before the Court is not bound to speak truth, is not in consonance with the concept of criminal administration of justice in Islam according to which a Muslim whether an accused or a witness, must speak truth and must not tell a lie in his statement recorded by a judicial officer on oath or without oath and we hold that a person facing the charge of an offence under Hudood Laws if confesses his guilt before a magistrate and his confessional statement even if is recorded on oath, can be used as a legal evidence, subject to the test of its being true and voluntary.
The scrutiny of evince would reveal that appellant after committing Zina bil Jabar with the deceased girl caused her death by strangulation and on arrest when he was produced before a magistrate, he confessed his guilt. The making of confession by the appellant soon after the arrest, would strongly suggest that the confession was free and voluntary and was not obtained through inducement or coercion and consequently, the analysis of the judicial confession of the appellant in the light of medical evidence, would lead to an irresistible conclusion that no other person, except the appellant was responsible for the murder of deceased and we take no exception to the concurrent finding of the trial Court and the appellate Court vis-a-vis the guilt of the appellant.
However, the question relating to the quantum of sentence would need consideration. The appellant pleaded that he was minor at the time of occurrence and in proof thereof, placed on record his school leaving certificate according to which he was of the age of less than 14 years at the time of occurrence whereas the doctor who medically examined him for the purpose of his potency test, observed that he was about the age of 17 years. The appellant examined Rah Nawaz a senior teacher of Government Primary School Shah Alam Khel in his defence who produced original register relating to the admissions of students in the school and according to the entries in this register, the appellant was admitted in the school on 10.9.1991 and his date of birth mentioned therein was 10.12.1985. The witness stated that the certificate was genuinely prepared on the basis of entries in the register and that the minimum age for admission in school is five years but some times, boys from villages at the time of admission are older in age. Be that as it may, the prosecution has not challenged the genuineness of the school leaving certificate or the correctness of the entries contained in the register with which the presumption of truth would be attached and this presumption, in absence of any evidence to the contrary, remained unrebutted. There is no cavil to the proposition that for the purpose of determination of age, the birth certificate is considered an authentic evidence and more reliable as compared to the school leaving certificate but the prosecution has not brought on record any evidence in rebuttal challenging the correctness of the date of birth of appellant given in his school certificate and the learned trial Judged on the basis of oral assertion of prosecution that appellant was major at the time of occurrence, raised presumption that appellant was adult and disbelieved the school leaving certificate on the ground that it was not a substantive evidence to determine the age. The trial Court also did not give any credence to the opinion of doctor and further the appellate Court has not properly attended the matter. It is provided in Section 7 of the Juvenile Justice System Ordinance, 2000 that for determination of age, medical report regarding the age can also be considered and we in the light of the school leaving certificate of the appellant and the medical evidence, according to which he was less man 18 years at the time of commission of offence, have no hesitation to hold that at the relevant time, he was a juvenile.
Under Section 2 of Juvenile Justice System Ordinance, 2000 child' has been defineda person who at the time of commission of offence has not attained the age of 18 years and under Section 12 of the said Ordinance, a person under the age of 18 years at the time of commission of an offence, cannot be awarded punishment of death.
The occurrence in the present case, had taken place before the enactment of
Juvenile Justice System Ordinance, 2000 and appellant was also convicted and sentenced before the commencement of the Ordinance and it having no retrospective effect, would not be applicable to the case of appellant.
However, we have been informed that the President of Pakistan, in exercise of his powers under Article 45 of the Constitution of Islamic Republic of
Pakistan, 1973 vide order dated 13.12.2001, commuted the death sentence of condemned prisoners into life imprisonment, in the cases decided prior to the enforcement of Juvenile Justice System Ordinance, 2000. The Presidential Order is read as under:
"The death sentence of those condemned prisoners who were Juvenile as defined in the Juvenile Justice System Ordinance, 2000 at the time of commission of offence stand converted to life imprisonment provided that the death sentence has been awarded under Tazir and not Qisas or under other Hudood Laws."
The appellant was sentenced to death under Section 302(b) PPC as Tazir and in view of our finding that at the time of commission of offence, he was Juvenile, would get the benefit of the Presidential Order dated 13.12.2001 and consequently, the sentence of death awarded to him under Section 302(b) PPC would be converted into life imprisonment. We find that fine of Rs. 10,000/- imposed upon the appellant by the trial Court under Section 201 PPC was directed to be paid as compensation to the legal heirs of the deceased and no separate compensation was awarded under Section 544-A, Cr.P.C. The Federal Shariat Court, in appeal, set aside the sentence under Section 201 PPC but did not consider the question relating to the payment of compensation under Section 544-A, Cr.P.C. We, therefore, after issuing notice to the appellant, through his counsel, direct him to pay rupees one lac as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. and in default of payment, the appellant shall suffer SI for six months and compensation shall be recoverable as arrears of land revenue. The sentence of the appellant under Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and under Section 302(b) PPC shall run concurrently with benefit of Section 382-B, Cr.P.C.
With the above modification in the judgment of Federal Shariat Court and the sentence of appellant under Section 302(b) PPC in terms of Presidential Order dated 13.12.2001, this appeal is dismissed.
(Rao Fareed-ul-Haq) Appeal dismissed.
PLJ 2007 SC 416
[Appellate Jurisdiction]
Present: Rana Bhagwandas & Syed Jamshed Ali, JJ.
MUHAMMAD AKHLAQ MEMON--Petitioner
versus
CAPITAL DEVELOPMENT AUTHORITY through its CHAIRMAN--Respondent
C.P.L.A. No. 737 of 2004, decided on 1.11.2006.
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal, grant of--Determination of bid amount--Contentions--Petitioner offered the highest bid for the purchasing of plots in the acution conducted by Capital Development Authority--He also deposited 25% of the bid amount but the respondent failed to issue acceptance letter to him--Respondent failed to abide by the terms and conditions for auction of plots, on this stance a summary was moved before Board of Directors and the same was conditionally approved on the ground that some inhabitants of the area were in actual and physical occupation of the plots and they had filed writ petitions before the High Court in which an interim order was passed restraining the respondent from dispossessing such persons from the land in dispute--Petition was disposed of with the direction to respondent to refund the amount deposited by the petitioner within a period of one month alongwith profit--Petitioner being dissatisfied filed ICA which was also dismissed--Contention by petitioner is, that the respondent had been lived and conscious to its obligations under the contract, it would have been able to perform its obligations arising out of auction proceedings but no concrete steps were taken for disposal of petition; vacation of the interim order or even refund of the bid money to the petitioner--Respondent resisted the grant of leave and contended that petitioner had himself made an admission in the memo of appeal before Division Bench that though the respondent was prepared to refund his amount, he had refused to accept the same--Respondent actually remitted the amount by way of two cheques to the petitioner--Leave to appeal granted.
[P. 418] A, B & C
Syed Sharifuddin Pirzada, Sr. ASC and Mr. Mehr Khan Malik, AOR for Petitioner.
Mr. Arif Chaudhry, ASC and Raja Abdul Ghafoor, AOR for Respondent.
Date of hearing : 1.11.2006.
Order
Rana Bhagwandas, J.--Petitioner seeks leave to appeal against Lahore High Court Division Bench judgment dated 16.2.2004 passed in Intra Court Appeal against order dated 16.1.2004 passed by learned Single Judge in Chambers disposing of petitioner's writ petition.
Petitioner offered the highest bid for the purchase of Plot No. 17-A and Plot No. 18 Orchard Farms Main Murree Road, Islamabad in the auction conducted by Capital Development Authority on 18.11.1999. He deposited a sum of Rs. 10,500,000/- on account of 25% of the bid amount in respect of both the plots but the Capital Development Authority failed to issue acceptance letter to him. It was the case of the petitioner that the latter failed to abide by the terms and conditions for auction of plots. At the stance of the petitioner and his demand for allotment of the plots, a Summary was moved before the Board of Directors of Capital Development Authority meeting held on 15.2.2001, which was conditionally approved as it was found on ground that some inhabitants of the area were in actual and physical occupation of the plots and they had filed writ petitions before the High Court against Capital Development Authority, in which an interim order was passed restraining the respondent from dispossessing such persons from the land in dispute. Petitioner was, therefore, obliged to file a Constitutional petition before the Lahore High Court, Rawalpindi Bench seeking a direction to the respondent to perform its duty in accordance with law and to hand over the vacant and quiet possession of the plots to him in addition to any other relief deemed fit and proper.
The writ petition was contested and disposed of with the direction to respondent-Capital Development Authority to refund the amount deposited by the petitioner within a period of one month alongwith profit at admissible rates commensurate with such rates as given by the Banks. It was held by learned Single Judge that the question of handing over possession of the plots in question was beyond the power of Capital Development Authority in near foreseeable future in view of restraint order passed by the High Court.
Petitioner being dissatisfied with and aggrieved by the disposal of his writ petition assailed it in Intera Court Appeal, which has been dismissed in limini, hence this petition.
We have heard learned counsel for the petitioner at some length and Mr. Arif Chaudhry, learned ASC who has entered caveat on behalf of the Capital Development Authority.
It has been vehemently contended that respondent-Capital Development Authority was, in law, bound to honour its commitment and abide by the terms and conditions on which the land was offered for disposal through public auction and to act fairly, justly, reasonably and equitably. Learned counsel made a grievance of the fact that Capital Development Authority remained quiet by not following the proceedings of the writ petition filed by encroachers on the land and getting the stay vacated and not pursuing the Court to expedite its disposal. According to the learned counsel, had the Capital Development Authority been live and conscious to its obligations under the contract, it would have been able to perform its obligations arising out of auction proceedings but no concrete steps were taken for disposal of the writ petition; vacation of the interim order or even refund of the bid money to the petitioner. It may be observed that even if it be accepted that the Capital Development Authority was restrained by Court order from dispossessing the encroachers, it did not bar or disable them to make immediate refund of the amount alongwith reasonable amount of mark-up thereon as was being charged by it from buyers of the property who defaulted in payment within time.
Learned counsel appearing on caveat has seriously resisted the grant of leave and contended that petitioner had himself made an admission in the memo of appeal before the Division Bench that though the Capital Development Authority was prepared to refund his amount, he had refused to accept the same. It may be clarified that Capital Development Authority actually remitted the amount by way of two cheques to the petitioner vide letter dated 16.6.2004 long after the direction by the High Court, which was too late in the day.
Leave to appeal is, therefore, granted to consider the aforesaid questions of law, which have important bearing on the issues raised.
(R.F.H) Leave to appeal granted.
PLJ 2007 SC 419
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud &
Dr. Rashid Ahmed Jullundhari, JJ.
GUL NOOR and another--Petitioners
versus
STATE--Respondent
Jail Petition No. 15(S) & 16(S) of 2003, decided on 30.10.2006.
(On appeal from the order dated 27.11.2002 passed by the Federal Shariat Court, Islamabad, in Jail Criminal Appeal Nos. 26-Q and
27-Q/2002).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979--
----S. 11--Constitution of Pakistan, 1973, Art. 203F(2B)---Leave to appeal refused--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed with modification qua reduction of sentence--Assailed--Appreciation of evidence--Federal Shariat Court had thoroughly appreciating evidence as is evident from judgment coupled with the fact that over whelming material was available on record against accused therefore the petitioners had failed to make out any justification for reappraisal of evidence-Conviction for abduction and unnatural offence based on straightforward depositions of victim, her mother and her sister as also on medical evidence coupled with the fact--Statement of the abductee was in consonance with confessional statement of accused--Petitioners failed to point out that the Courts below had not followed any principle of law while appreciating evidence on record-Held: Supreme Court does not, normally, interfere in the concurrent conclusions arrived by the Courts below while exercising powers under Art. 203-F(2B) of the Constitution of Pakistan, leave was, therefore, refused.
[Pp. 421 & 422] D & E
Administration of Justice--
----No rule or practice--There is no rule or practice that there must be corroboration in every case of the statement of prosecutrix in rape cases. [P. 421] A
Motive--
----Parties were closely related to each other and petitioners had failed to prove that the complainant had any motive to involve the petitioners in such heinous offence. [P. 421] B
FIR--
----False implication--FIR was lodged by real brother of the victim--Held: False implication by the brother involving his unmarried sister could not be believed. [P. 421] C
PLD 1960 SC (Pak.) 325, 1985 SCMR 128, 1986 SCMR 35, 1984 SCMR 54, PLD 1973 SC 469 ref.
Mr. Fazal Karim Butt, ASC for Petitioners.
Nemo for Respondent.
Date of hearing : 30.10.2006.
Order
Ch. Ijaz Ahmed, J.--We intend to decide captioned petitions by one consolidated judgment arising out of the common impugned judgment of the Federal Shariat Court dated 27.11.2002 wherein Criminal Jail Appeals filed by the petitioners against their conviction were dismissed. However, their sentence of imprisonment was reduced from life imprisonment to 10 years rigorous imprisonment. The petitioners have sought leave to appeal against the said judgment.
The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the aforesaid petitions arise are that petitioners were involved in case FIR No. 6/2001 which was registered at P.S. Toisar on 24-3-2001. The contents of the FIR reveal that Mst. Saliha Bibi alongwith her mother Mst. Nadar Bakhta and her younger sister namely Mst. Malisha went to stream for bringing water and washing clothes on 23-2-2001 at about 9-30 a.m., where accused persons namely Daud Khan alongwith co-accused forcibly abducted Saliha Bibi and injured Mst. Nadar Bakhta. The aforesaid case was registered against petitioners on the report of Baz Meer. The Investigating Agency investigated the matter and found petitioners guilty on the basis of material collected by the investigating agency and challan was submitted before the competent Court.
Sessions Judge Muskhail at Loralai vide its judgment dated 27-2-2002 convicted the petitioners as follows:-
Name of accused Under Section Sentence
Gul Noor 11 Offence of Zina Life imprisonment
Dad Khan (Enforcement of Hadood) each; fine of
Ordinance, 1979 Rs.50,000/- each;
default of payment
of fine two years
R.I. It is pertinent
to mention here that
benefit of section
382-B of Cr.P.C.
was also extended.
As mentioned above the petitioners filed Jail Criminal Appeal No. 26-Q/2002 (by Gul Noor) and Jail Criminal Appeal No. 27-Q/2002 (by Dad Khan) were dismissed with the aforesaid modification qua reduction of sentence. Hence these Jail Petitions.
The learned counsel of the petitioners submits that both the Courts below had decided the case against the petitioners without properly scrutinizing the evidence on record. He further maintains that evidence of the eye-witnesses furnished by the prosecution was not sufficient to convict the petitioners with the commission of offence as there were contradictions, improvement in their statements and this fact was not considered by the Courts below in its true prospective. Confessional statements of the petitioners were not recorded in accordance with law and this fact was also not considered by the Courts below in its true prospective. He further submits that both the Courts below had erred in law to rely upon the circumstantial evidence and circumstantial evidence was always a weak type of evidence and this fact was also not taken into consideration by the Courts below while convicting the petitioners.
We have considered the submissions of the learned counsel for the petitioners and perused the record. It is a settled principle of law that there is no rule or practice that there must be corroboration in every case of the statement of the prosecutrix in rape cases (Hadood cases) as law laid down by this Court in Muhammad Abdul Khaliq's case (PLD 1960 S.C. (Pak.) 325. In the present case the statement of victim was duly corroborated by the two eye-witnesses, namely PW-5 (Nadir Bakhta) and PW-6 (Mst. Malisha). It is also admitted fact that the parties are closely related to each other and petitioners had failed to prove that the complainant had any motive to involve the petitioners in such a heinous offence. It is also an admitted fact that FIR was lodged by the real brother of the victim. False implication by the brother involving his unmarried sister cannot be believed, as brother is not likely to jeopardise the future of his sister. It is an admitted fact that both the Courts below had convicted Gul Noor petitioner as he had facilitated his co-accused Dad Khan to commit the offence in question. It is also an admitted fact that PW-4 had faced lengthy cross-examination but defence could not shake her testimony. Both the Courts below also observed that her statement was in consonance with the confessional statement of the petitioners. The ocular account was also supported by the medical evidence. It is pertinent to mention here that Federal Shariat Court had thoroughly appreciating evidence as is evident from paragraph 4 of the impugned judgment coupled with the fact that over whelming material was available on record against the petitioners, therefore the learned counsel for the petitioners had failed to make out any justification for reappraisal of evidence. Conviction for abduction and un-natural offence based on straightforward depositions of victim, her mother and her sister as also on medical evidence coupled with the fact that the statement of the abductee was in consonance with the confessional statement of the petitioners as mentioned above. The learned counsel for the petitioners has failed to point out that the Courts below had not followed any principle of law while appreciating evidence on record. In the interest of justice and fair play we have also examined the record but could not find any infirmity or illegality committed by the Courts below. It is a settled principle of law that this Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising powers under sub-Article 2-B of Article 203-F of the Constitution of Islamic Republic of Pakistan as law laid down by this Court in the following jugments:--
Fazle Razaq v. Jan Sadiq and others (1985 SCMR 128).
Abdul Khaliq v. The State (1986 SCMR 35).
Mujahid Hussain v. The State (1984 SCMR 54).
Noora and another v. The State (PLD 1973 SC 469).
In view of what has been discussed above these petitions have no merit and the same are dismissed. Leave is refused.
(Rafaqat Ali Sohal) Leave refused
PLJ 2007 SC 422
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
UMER SAID etc.--Petitioners
versus
DISTRICT EDUCATION OFFICER (FEMALE), SECONDARY
SWAT etc.--Respondents
C.P. Nos. 563-P to 565-P of 2004, decided on 16.8.2006.
(On appeal from the judgment dated 18.5.2004 of the NWFP Service Tribunal, Peshawar passed in Appeal Nos. 2460, 2461 and 2262/1997).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Reinstatement with back benefits, termination being void ab initio--Entitlement--Validity--Appointments against land being tantamount to sale of public office for property which is not only against the Constitution but also not conducive to public interest--Termination of an employee is void ab initio, they become entitled to reinstatement with back benefits and cannot, despite such decree, be left at the mercy of the department for adjustment, which may or may not occur or which may or may not be possible--Tribunal was, therefore, unlawful and amounted for giving no relief to the successful appellants--Held: Competent authority has in flagrant disregard of the verdict of Supreme Court, had terminated the service of petitioners because they could not donate lands to procure job--Petitioners are reinstated with effect from the date of their removal, with back benefits. [P. 424] A & B
1993 SCMR 1287 (ref.)
Mr. Afridi Khan, ASC with Mr. Mir Adam Khan, AOR for Petitioners.
Mr. Khushdil Khan, Additional AG, NWFP for Respondents.
Date of hearing : 16.8.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Umer Said, Yousaf Khan and Ali Akbar having been appointed as Class-IV employees in the Education Department on 1.9.1995, 15.6.1993 and 17.4.1993 respectively, their services were terminated on 19.7.1997 on the only ground that they were not the donors of land to the department. Through the impugned judgment dated 18.5.2004, the learned NWFP Service Tribunal Peshawar accepted their appeals against such termination but directed the department to adjust the appellants against Class-IV vacancies, as and when occur.
The department has not challenged the judgment aforesaid but present appellants have come to this Court seeking leave to appeal on the simple ground that once their terminations were declared void ab initio, they were bound to be reinstated with all back benefits.
The learned Additional Advocate General informed that the petitioners have accordingly been adjusted with effect from 18.10.2004. Be that as it may, the fact remains that their readjustment was a fresh appointment for all intents and purposes, having not accounted for the period between 1997 to 2004.
This Court in 1993 SCMR, 1287 has categorially observed that the policy of making appointments against land grants is tantamount to the sale of public office for property, and further, that it was not only against the Constitution but also not conducive to public interest. We reiterate that such appointments are void ab initio Amazingly, in the instant cases, the competent authority has, in flagrant disregard of the aforesaid verdict of this Court, had terminated the services of the petitioners because they could not donate lands to procure the job.
Once it is held that the termination of an employee, is void ab initio, they become entitled to reinstatement with back benefits and cannot, despite such decree, be left at the mercy of the department lor adjustment which may or may not occur or which may or may not be possible. The conclusion arrived at by the learned Tribunal was, therefore, unlawful and amounted to giving no relief to the successful appellants. Consequently, the petitions in hand, after conversion into appeals, are hereby accepted and the petitioners are reinstated with effect from the date of their removal, with back benefits.
(Rao Farid-ul-Haque) Appeal Accepted.
PLJ 2007 SC 424
[Appellate Jurisdiction]
Present: Javed Iqbal, Muhammad Nawaz Abbasi &
Hamid Ali Mirza, JJ.
MUHAMMAD YOUNIS--Appellant
Versus
ASHIQ HUSSAIN and others--Respondents
Crl.A. No. 158/2002 & 374 of 2003, decided on 3.11.2006.
(On appeal from the judgment dated 27.2.2002 passed by Lahore High Court, Lahore in Cr.A. 155/1997 and M. Ref. 290/1997).
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 460 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Qatal-i-Shube--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed--Challenge to--Injuries were on sensitive part of body--Identification--Unseen occurrence--Occurrence was at mid night--Accused being neighbours of the deceased were identified in the electric light available in Courtyard, hence no question of mistaken identity or substitution--Motive for the occurrence was a querral between the parties about 3/4 months ago--Deceased was hit with lathis on sensitive part of body knowingly that the injuries may be fatal to life and cause death--Held: Act would squarely fall, within the ambit of S. 302(b) of PPC as tazir and contention of the accused that it was a case of qatal-i-shuba-e-amd has no substance--Intention to commit the crime can be gathered from the attending circumstances and all the essential elements of committing an intentional murder were traceable on record to bring the case within the purview of qatl-i-amd--Prosecution has been successful in proving the charge of murder against the accused and they have been rightly convicted u/S. 302(b) PPC. [P. 429] A
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Qatl-i-Amd--Collective role of injuries to deceased--Quantum of conviction--Conviction and sentence recorded against accused--Appeals were dismissed--Strong mitigation--There is a strong mitigating or extenuating circumstance, the Court is not supposed to withhold the normal penalty in its discretion--Accused have been assigned the collective role of causing injuries to the deceased with soties, which is an ordinary weapon--Deceased died in the hospital after seven days of the occurrence and this was also not ascertainable that which injury was individually fatal and who was responsible for causing such injury--There was also no serious enmity between the parties and in view of the above features of the case--Sentence of life imprisonment awarded to the accused/convicts would call no interference.
[Pp. 429 & 430] B
Sardar Muhammad Ishaq Khan, Sr. ASC and Mr. Ejaz Muhammad Khan, AOR for Appellant in Crl. Appeal No. 158/2002.
Malik Rab Nawaz Noon, ASC and Mr. Mahmood Ahmed Sheikh for Respondents in Crl. Appeal No. 158/2002.
Mr. Malik Rab Nawaz Noon, ASC Mr. Muhammad Akram, AOR for Appellants (in Cr. A. 374/2003).
Sardar Muhammad Ishaq Khan, Sr. ASC Mr. Ejaz Muhammad Khan, AOR for Respondents No. 1-2 (in Cr. A. 374/2003).
Mr. Mahmood Ahmed Sheikh, ASC for State (in Cr. A. 374/2003).
Date of hearing: 28.6.2006.
Judgment
Muhammad Nawaz Abbasi J:--This appeal by leave of the Court has been directed against the judgment dated 27.2.2002 passed by a Division Bench of the Lahore High Court, Rawalpindi Bench whereby appeal filed by the respondents against their conviction and sentence awarded to them by learned Additional Sessions Judge, Rawalpindi under section 302(b)/34 PPC read with S. 460 PPC was dismissed with reduction of sentence of death into life imprisonment The respondents were also directed to pay Rs. 50,000/- as compensation to the legal heir of the deceased under section 544-A Cr.P.C and in default of the payment of compensation to undergo SI for six months.
"Leave to appeal is sought against the judgment of the Lahore High Court, Rawalpindi dated 27.2.2002, where by death sentences of the respondents were converted into life imprisonment, Criminal Revision filed by the complainant for enhancement of the amount of compensation was dismissed and Murder Reference sent by the trial Court for confirmation of the death sentences awarded to the respondents, was answered in the negative.
Rs. 50,000/- each to the legal heirs of the deceased or in default to undergo six months imprisonment each. Benefit of Section 382-B Cr.P.C was extended to them.
The respondents challenged their conviction and sentences through Criminal Appeal No. 155/1997, the complainant filed Criminal Revision No. 106/1997 for enhancement of the compensation and the trial Court sent Murder Reference No. 290/1997 for confirmation of the death sentence awarded to the respondents.
A learned Division Bench of the Lahore High Court, Rawalpindi Bench altered the death sentences of the respondents from death into life imprisonment, dismissed the revision petitioner of the complainant and answered the murder reference in the negative vide its judgment dated 27.2.2002, impugned herein.
After hearing the learned counsel for the petitioner and going through the record of the case, we find that although the learned Division Bench of the High Court observed that the prosecution has proved its case against the respondents beyond any shadow of doubt and they were rightly convicted yet it altered the sentences of death to life imprisonment with the observation that "it appears that some important facts have been concealed by the parties and what happened immediately before the occurrence is not clear, therefore, for safer administration of criminal justice, we consider that sentence of death awarded to the accused/appellants is to be substituted to imprisonment for life which will meet the ends of justice". We grant leave, inter alia, to consider whether the High Court was justified to alter the death sentences of the respondents into imprisonment for life on the aforesaid ground when the respondents committed the preplanned murder at odd hours of night after trespassing into the house of the deceased. It may be mentioned that it has recently been held by this Court in several cases that motive shrouded in mystery or what happened immediately before the occurrence cannot be deemed to be a mitigating circumstances and in view thereof on such a ground death sentence cannot be altered into life imprisonment.
The respondents shall not be released from jail till the disposal of the appeal."
The learned counsel for the appellant (complainant of the case) in Criminal Appeal No. 158/2002, has contended that the High Court after coming to the conclusion that the respondents (convicts) armed with deadly weapon having trespassed into the house of deceased caused him injuries on the most sensitive part of the body which were found fatal to his life was not justified in reducing their sentence on the ground that it was not known that what happened immediately before the occurrence.
Learned counsel argued that the accused after having armed themselves with lathis at dead hours of night, attacked on the deceased while he was sleeping at his house and was quite helpless to make his defence and save himself from barbaric attack, therefore, the they would not deserve any leniency in the matter of sentence. Learned counsel submitted that the ground which prevailed to the High Court for reduction of sentence can not be considered a valid ground for withholding the normal penalty of death provided under law for committing an offence of qatl-I-amd and vehemently argued that in absence of a strong mitigation, there was no justification for lesser penalty.
Learned counsel for the convicts/respondents and the appellants in the connected appeal Bearing No. 374/2003 has submitted that even if the prosecution story is believed in toto as gospel truth, the accused would hardly be liable for committing an offence of qatal-I-Shuba-e-amd under Section 315. PPC the punishment of which is provided under Section 316 PPC as the accused allegedly caused injuries to the deceased with the sticks which are not commonly used as weapon of offence and a stick is also, in the ordinary course of nature not considered a weapon which may cause death, therefore, the case against the convicts would not fall within the ambit of qatl-I-amd punishable under Section 302 PPC.
The learned counsel next argued that it was an unseen occurrence which took place during the night and the prosecution witnesses being closely related to the deceased were interested and could not be relied upon without independent corroboration and in that prosecution has not been able to prove the charge beyond reasonable doubt. In the alternate, learned counsel argued that notwithstanding the reliability of the eye-witnesses account, the liability of the accused would be confined to the extent of committing an offence under Section 315 PPC or at the most, the case against them would fall within the ambit of Section 302(c) PPC for the purpose of punishment.
The leave was granted in these connected appeals to consider the question regarding the legality of the conviction and sentence awarded to the accused.
The deceased was murdered after midnight in his house and occurrence was witnessed by Muhammad Younas (complainant), Muhammad Naeem (PW-1) son of deceased and Imtiaz Bibi (PW-2) his widow, who were the inmates of the house and most natural witnesses. The accused being neighbourers of the deceased, were identified by the witnesses in the electric light available in the Courtyard of the house, therefore, there was no question of mistaken identity or substitution. The motive for the occurrence was quarrel of the accused with deceased about 3/4 months ago on a petty matter and there was no serious enmity between the parties. The deceased was caused injuries on left eye brow, left ear and on left maxilla, which caused fracture of the left fronter bone above left arpit and his upper inside tooth was also fund missing. The accused in their statement under 342 Cr.P.C pleaded false implication as under:
"Deceased Farzand Ali was having strained relations with Muhammad Younas complainant/PW on account of some rishta due to which in order to get rid of his brother in collusion with his brother's wife Imtiaz Bibi giving the family members false impression, managed damage to the deceased Farzand Ali and in order to hide his own conspiracy knowing ourselves to be the weakest possible people of the village got implicated in false and fabricated case. No independent witness of the locality has deposed against us. However, the witnesses produced by the prosecution are all interested cum false and inimical witnesses who deposed against us due to false impression given by the complainant".
The deceased was first taken to hospital for medical and then report was lodged with maximum promptitude excluding any possibility of consultation and deliberation to suggest the false implication. The eye-witnesses being the inmates of the house, were most natural witnesses of the occurrence who having deposed quite consistently have strongly supported the prosecution version in each detail without any material discrepancy or contradiction. The defence has not been able to bring any thing material on record to suggest even a slight doubt qua the guilt of the accused. The ocular account of the natural witnesses duly supported by the medical evidence and attending circumstances was found truthful and confidence inspiring and being of unimpeachable character, was alone sufficient to sustain the conviction. The learned counsel for the convicts instead of pointing out any material discrepancy in the evidence to affect the credibility of testimony of the eye-witnesses, has based his argument on the probability that the identification of the assailants may not be possible in the night. This may be seen that the deceased was attacked while he was sleeping in the Courtyard of his house whereas Muhammad Naeem (PW-1) and Imtiaz Bibi (PW-2) while sleeping in the adjoining room have claimed to have seen the occurrence and certainly the accused could conveniently be identified in the Courtyard.
In view of the factual position at the scene of occurrence, we would not take any exception to the concurrent findings of the two Courts regarding guilt of the accused and contention of the learned counsel that it was a case of qatal-I-Shuba-e-amd has no substance. The accused having trespassed in the house of deceased during the night caused him blows with lathis on sensitive part of the body knowingly that the injuries may be fatal to life and cause death, therefore, their act would squarely fall within the ambit of Section 302(b) PPC as tazir. This may be seen that the intention to commit the crime can be gathered from the attending circumstances and in the present case all the essential elements of committing an intentional murder were traceable on the record to bring the case within the purview of qatl-I-amd. In the light of the fact and circumstances of the case we are of the considered view that the prosecution has been successful in proving the charge of murder against the accused and they have been rightly convicted under Section 302(b) PPC.
The sentence of death is normal penalty in the murder case and unless there is a strong mitigating or extenuating circumstance, the Court is not supposed to withhold the normal penalty in its discretion. However, in the present case the accused, who were real brothers, have been assigned the collective role of causing injuries to the deceased with soties, which is an ordinary weapon. The deceased died in the hospital after seven days of the occurrence and this was also not ascertainable that which injury was individually fatal and who was responsible for causing such an injury. There was also no serious enmity between the parties and in view of the above features of the case, we find that sentence of life imprisonment awarded to the accused/convicts would call no interference. In the light of forgoing reasons both the appeals are dismissed.
(Rao Farid-ul-Haque) Appeals dismised.
PLJ 2007 SC 430
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, (Chairman) Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud &
Dr. Rashid Ahmed Jullundhari, JJ.
INAYATULLAH--Petitioner
versus
STATE--Respondent
Jail Petition No. 37(S) of 2002, decided on 31.10.2006.
(On appeal from the order dated 5.8.2002 passed by the Federal Shariat Court, Islamabad, in Cr.A. No. 7-Q/2001, Criminal Revision No. 3-Q/2001 and Cr. A. No. 12-Q/2001).
(i) Offences Against Property (Enforcement of Hudood) Ordinance, 1979--
----Ss. 17(4) & 20--Constitution of Pakistan, 1973, Art. 203F(2B)--Pakistan Penal Code (XLV of 1860), S. 302--Leave to appeal--Conviction and sentence awarded to accused--Assailed--Appreciation of evidence--Capital punishment cannot be awarded on the basis of the circumstantial evidence--Petitioner raised questions for reappraisement of evidence--Petitioner cannot be sentenced to death--Validity--Over-whelming circumstantial evidence has been brought against the petitioner as observed in the impugned judgment, therefore, contention of the petitioner that without direct evidence the petitioner cannot be sentenced to death is without force--Held: Circumstantial evidence brings the case in .the area wherein accused was connected with commission of offence coupled with the fact that prosecution witnesses are disinterested on the basis of such type of strong circumstantial evidence--Accused was convicted with commission of offence beyond any shadow of doubt, therefore High Court was justified to convict and sentence to death--Leave refused.
[Pp. 434 & 435] A & C
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 423--Powers of Federal Shariat Court--Provisions of--Applicable mutatis mutandus--Federal Shariat Court can examine question of fact and law and can quash, confirm, modify or enhance sentence--Powers of the appellate Court to alter a conviction are very wide u/S. 423 of the Cr.P.C. but they are subject to the condition that altered conviction should not be such which could not have been recorded by the trial Court. [P. 434] B
1925 ILR 6 Lahore 226, 1923 ILR 4 Lahore 373, 1926 ILR 7 Lahore 561, AIR 1945 P.C. 151, PLD 1950 Lahore 364 and 1998 SCMR 2669 ref.
Mr. Arshad Ali Chaudhry, ASC for Petitioner.
Mr. Mahmood Raza, Additional A.G. Balochistan for State.
Date of hearing: 31.10.2006.
Order
Ch. Ijaz Ahmed, J.--The petitioner has sought leave to appeal against the judgment of the Federal Shariat Court dated 5-8-2002 wherein the appeal of the petitioner against his conviction awarded by the trial Court vide judgment dated 23-12-2000 was dismissed and his sentence was enhanced from 10 years to death. Detailed facts have already been mentioned in the impugned judgment. However necessary facts out of which the present petition arises are that petitioner is involved in a case FIR No. 15/1999 which was registered at Police Station Saddar Khuzdar on the basis of the written complaint of Abdul Samad under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The contents of the FIR reveal that Ghulam Mustafa informed the complainant Abdul Samad that his cousin Abdul Aziz son of Din Muhammad and his wife Mst. Maryam had been fired at by the dacoits on the night of occurrence i.e. 23-6-1999. The complainant after receiving the said information rushed to the house of his cousin Abdul Aziz who was lying dead while Mst.Maryam was in injured condition, had been taken to the hospital. He rushed to the hospital where Mst.Maryam narrated the occurrence to him that they were asleep in the Courtyard at about 4.00 a.m. She noticed the presence of some strangers in the house. She got up and saw two persons, one of them was armed with Kalashanikov while the other was having a pistol and had tape recorder in his hand. Her husband also got up and caught hold of one of them who was armed with pistol and had the tape recorder in his hand. Her husband over powered him and threw him on the ground who called his companion who was armed with kalashanikov for help. His companion fired and with his firing her husband was hit, fell down and expired at the spot. She further stated that his co-accused who had been overpowered by her husband also sustained injuries and the co-accused had also opened fire and injured her. The co-accused then took his injured companion and decamped from the spot.
Name of accused Offence Sentence
Inayatullah Under Section 396 PPC 10 years R.I. with a
fine of Rs.5 lacs, in
case of default of
payment of fine to
further suffer 2 years
R.I.
It is pertinent to mention here that his co-accused Nasrullah had died and his co-accused Rahim Bakhsh was not available and was declared absconder. Therefore, challan was sent against the petitioner and his acquitted co-accused Nazir Ahmed.
Petitioner being aggrieved filed Criminal Appeal No. 7-Q/2001 in the Federal Shariat Court whereas complainant Abdul Samad filed Criminal Revision No. 3-Q/2001 for enhancement of the sentence of the petitioner. The complainant had also filed Criminal Appeal No. 12-Q/2001 against the acquittal of his co-accused Nazir Ahmed. The learned Federal Shariat Court partly accepted the appeal of the petitioner and set aside the conviction awarded by the trial Court under Section 396 PPC and convicted the petitioner under Section 302 (b) PPC read with Section 20 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 and sentenced to death as tazir on two counts for the brutal murder of Abdul Aziz and Mst. Maryam. Hence the present petition.
The learned counsel for the petitioner submits that the evidence, which has been come on record has not been appreciated in its true perspective and the conclusion as arrived at by the Federal Shariat Court has no nexus with it. He further urges that sufficient material has not come on record against the petitioner to connect him with the commission of the alleged offence which resulted in serious mis-carriage of justice. He further maintains that trial Court had acquitted his co-accused Nazir Ahmed, therefore, learned trial Court erred in law to convict and sentence the petitioner and this fact was also not considered by the Federal Shariat Court in its true perspective. He further urges that petitioner was convicted and sentenced to death by the Federal Shariat Court on circumstantial evidence, which is always to be considered a week evidence. The learned Federal Shariat Court was not justified to enhance the sentence of the petitioner and he further requests that sentence of the trial Court be restored in the interest of justice and fairplay.
We have given our anxious consideration to the contention of learned counsel for the petitioner and perused the record. It is admitted fact that there is no eye witness in the present case. The prosecution has established the case against the petitioner by producing circumstantial evidence. It is pertinent to mention here that following facts are admitted on the basis of the record and observed by the Courts below:
(i) The occurrence took place in the house of deceased Abdul Aziz at about 4.00 a.m. on 23-6-1999
(ii) One of the accused had taken up a tape recorder.
(iii) Abdul Aziz and his wife woke up.
(iv) Abdul Aziz got hold of one of the accused who cried for help to rescue him.
(v) One of the culprits fired which hit not only Abdul Aziz but also the culprit who had been over powered by him i.e. Nasarullah brother of present petitioner.
(vi) Due to the firing residents of the locality rushed to the house of deceased Abdul Aziz who found him dead and his wife in injured condition.
(vii) Tape recorder was also found at the spot.
(viii) Father of the petitioner in presence of PW11 Bashir Ahmad ASI, Ghulam Hussain PW2, Yayha Khan PW3 and Muhammad Hussain PW4 admited that present petitioner Inayat Ullah, Nasarullha and Rahim Bakhsh went for robbery wherein accused made firing due to firing Abdul Aziz and accused Nasarullah died and Mst. Maryam received injuries.
(ix) Petitioner was identified by the following dis-interested witnesses:--
(i) Ghulam Hussain PW2.
(ii) Muhammad Hussain PW4.
(iii) Yayha Khan. PW3.
(iv) Meer Muhammad PW6.
(x) The aforesaid witnesses had also stated specifically in their statements that they had noticed drop of blood outside the house of deceased Abdul Aziz while they had followed coupled with the fact that there was blood drops of the injured accused taken from the spot by his co-accused to his house. The aforesaid portion of the aforesaid witnesses was not challenged by the defence.
(xi) Weapon was recovered from the petitioner on his pointation and the fire arm report was also positive.
(i) Begu's case (1925 ILR 6 Lahore 226 (PC)
(ii) Wallu's case (1923 ILR 4 Lahore 373.
(iii) Gauns's case (1926 ILR 7 Lahore 561.
(iv) Nur Mohammad's case (AIR 1945 P.C. 151)
(v) Amanat Ali's case (PLD 1950 Lahore 364).
It is a settled law that the appellate Court has all the powers to convict the accused person not charged in the trial Court in view of sections 236, 237, 238 of Cr.P.C. read with section 423 of the Cr.P.C. See Rama Swamy Nader's case (PLD 1958 SC (India) 247.
In the interest of justice and fair play, we have also re-examined the evidence on record with the assistance of the learned counsel for the petitioner. We are satisfied that over-whelming circumstantial evidence has been brought against the petitioner as observed by the learned Federal Shariat Court in the impugned judgment in paragraphs 8 and 9, therefore, contention of the learned counsel for the petitioner that without direct evidence the petitioner cannot be sentenced to death is without force. The judgment of the Federal Shariat Court is in consonance with the law laid down by this Court in Jaffar Ali's case (1998 SCMR 2669). It is pertinent to mention here that learned trial Court had acquitted his co-accused Nazir on the basis of distinguished features and criminal appeal filed by the complainant against his acquittal was also dismissed by the Federal Shariat Court with cogent reasons, therefore, contention of learned counsel for the petitioner have also no force to that extent. As mentioned above, the petitioner was convicted with the commission of offence beyond any shadow of doubt, therefore, learned High Court was justified to convict and sentence him as to death.
In view of what has been discussed above, we do not find any illegality or infirmity in the impugned judgement, therefore, the petition has no merit and the same is dismissed. Leave refused.
(Rao Farid-ul-Haque) Leave refused.
PLJ 2007 SC 435
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar & Muhammad Nawaz Abbasi, JJ.
NATIONAL ACCOUNTABILITY BUREAU and others--Petitioners
versus
RAHEEL RASHEED and others--Respondents
Civil Petition Nos. 2361 & 2450 of 2005, decided on 21.8.2006.
(On appeal from the order dated 21.7.2005 of the Lahore High Court, Lahore passed in WP No. 11855/05).
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 17, 24(b) & 31-D--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Inquiry, investigation or proceeding by NAB in case of imprudent loans, defaulted loans or rescheduled loans--Respondent was not defaulter of the Bank rather he is beneficiary of the loan and the main Reference against other accused, who were loanees of the Bank was duly filed under authorisation of the State Bank of Pakistan--Question is whether Reference against respondent who was included in Supplementary Reference alongwith another accused, who were beneficiary of the loan so obtained by the main accused against whom Reference was competently filed by the SBP, can be tried alongwith main accused as provided u/S. 17 of the Ordinance--Held: Petitioner conspired with his co-accused at the time of obtaining loan or alleged wilful default or that he acquired assets from the money received from M/s WRSM or any of its directors--According to this provision, of law the sanction is necessary only against the loanee but petitioner is not a direct loanee, therefore, sanction of the Governor of State Bank is not required in present case and High Court has erred in holding that the Accountability Court cannot proceed against the petitioner unless a reference is made by the Governor State Bank of Pakistan--Leave to appeal declined.
[Pp. 439 & 440] A & B
Raja Muhammad Ibrahim Satti, ASC with Mr. Arshad Ali Chaudhry, AOR for Petitioner (in C.P. 2361/2005).
Mr. Aitzaz Ahsan, Sr. ASC with Mr. Mehr Khan Malik, AOR for Respondent No. 1 (in C.P. 2361/2005).
Mr. Aitzaz Ahsan, Sr. ASC with Mr. Mehr Khan Malik, AOR for Petitioner (in C.P. 2450/05).
Raja Muhammad Ibrahim Satti, ASC with Mr. Arshad Ali Chaudhry, AOR for Respondent No. 1 (in C.P. 2450/05).
Date of hearing: 21.8.2006.
Order
Abdul Hameed Dogar, J.--By this common order, we intend to dispose of Civil Petition No. 2361 of 2005 filed by National Accountability Bureau (hereinafter referred to as `NAB') and Civil Petition No. 2450 of 2005 filed by Raheel Rashid Petitioner against judgment dated 21.7.2005 whereby Writ Petition No. 11855 of 2005 filed by petitioner Raheel Rashid was partly accepted while holding that NAB or the Accountability Court has no authority or power to proceed against Raheel Rashid petitioner but relief regarding quashment of proceedings was declined.
Briefly, stated facts are that NAB initially filed Reference No. 23 of 2004 against four persons, namely, Abdul Waheed, Abdul Rashid, Abdul Saeed and Abdul Majid under Section 18(g) read with Section 24(b) of National Accountability Bureau Ordinance, 1999 (hereinafter referred to as `the Ordinance'. All the accused except. Abdul Saeed were absconder. The allegation against aforesaid accused who being Managing Directors/ Guarantors of M/s WRSM Trading Company were about Bank loan defaulters, therefore, a Reference under Section 31-D of the Ordinance was filed by Governor State Bank of Pakistan for proceeding against the aforesaid accused. During the investigation, it transpired that main assets of M/s WRSM Trading Company were found siphoned off to Pakistan in favour of M/s Rafeh (Pvt.) Limited and it further transpired that M/s Rafeh (Pvt.) Limited was initially registered in 1990 and from 10.8.1992 Raheel Rashid petitioner and his brother Sajeel Rashid sons of main accused Abdul Rashid were the Directors of the said Rafeh (Pvt) Limited, therefore, beneficiary of the defaulted loan was in fact M/S Rafeh (Pvt) Limited which was owned by petitioner Raheel Rashid and his brother Sajeel Rashid. As such supplementary Reference No.23 of 2004 was filed by NAB against the petitioner and his co-accused.
After filing of Reference, the Accountability Court took cognizance on the said reference and framed charge against petitioner Raheel Rashid and his co-accused Sajeel Rashid on 17.2.2005. Thereafter on 28.4.2005 an application under Section 265-K Cr.P.C. was filed on behalf of petitioner for his acquittal from Reference No.23 of 2004 before the said Court on the grounds that he neither obtained any loan from UBL nor any amount is due from him, the allegation of abetment against him is false and that there is no material evidence on record to connect him with the commission of offence. It was further mentioned that M/s Rafeh Private Limited Company only exported rice to M/S WRSM and received no payments other than those for rice-shipment. The Accountability Court dismissed the application on the ground that prosecution has gathered documentary as well as oral evidence against petitioner, which is yet to be brought on record. Feeling aggrieved, petitioner challenged the said order before the learned Lahore High Court, Lahore. After hearing learned counsel for the parties, the learned High Court disposed of the petition in the following manner:--
"It has been argued before us that as in case of permission under Section 196 Cr.P.C. proceedings having commenced ought to be quashed, is also not a convincing argument. Because under the present circumstances, we are to be governed by the special law itself which is Section 31-D of the National Accountability Ordinances, 1999 and are not inclined to quash proceedings on these basis and wish to only declare that the proceedings as against the petitioner being destitute of authorization of the Governor of State Bank of Pakistan, therefore, the reference does not vest jurisdiction in the National Accountability Bureau or the Accountability Courts and, therefore, until that permission is available, the National Accountability Bureau or the Accountability Courts have no authority or power to proceed against the petitioner in law."
We have heard Raja Muhammad Ibrahim Satti learned ASC for NAB and Mr. Aitzaz Ahsan, learned Sr. ASC for petitioner Raheel Rashid and have gone through the record and the proceedings of the case in minute particulars.
Mr. Aitzaz Ahsan, learned ASC for the petitioner Rahel Rashid submitted that order of Chairman, NAB dated 29.4.2005 as well as the order of the Accountability Court dated 16.5.2005 suffer from patent legal infirmities and clearly show that they were passed without application of mind by the respective authorities. He added that in cases where an authority does not apply its mind and/or its orders are in gross violation of the specific provision of law the same are not sustainable in law. According to him the petitioner has no concern with the loan/facility amount in respect of which alleged `wilful default' was committed by the Directors of M/S WRSM and mens rea on the part of petitioner to abet the same is absolutely missing in the case. He argued that petitioner is neither director, partner, shareholder nor guarantor of M/S WRSM nor did he sign any document for or on behalf of M/S WRSM in favour of UBL. He further argued that the State Bank of Pakistan never served any notice to the petitioner or M/S Rafeh Pvt. Ltd., therefore, no proceedings could be initiated against him under the Ordinance. According to him, there is nothing on record to show that the petitioner conspired with four principal accused at the time of obtaining loan or alleged wilful default or that he acquired assets from the money received from M/S WRSM or any of its directors. In fact petitioner and his company were transacting a lawful business with various foreign companies including M/S WRSM and no illegality could be found in any of the said transaction. Neither the petitioner nor his company was a party to any of loan agreements executed by and between M/S WRSM/its directors and UBL Deira Branch Dubai. He lastly contended that order of Accountability Court dated 16.5.2005 whereby relief of quashment of proceedings was declined to respondent Raheel Rashid be set aside and matter against him may be quashed.
On the other hand learned counsel for the NAB vehemently contended that the learned High Court was not justified in partly accepting the writ petition and declaring that the proceedings under reference as against Respondent No. 1, required authorization of the Governor of State Bank of Pakistan and, therefore, the Reference does not vest jurisdiction in the National Accountability Bureau or the Accountability Court, until that permission is available, National Accountability Bureau or the Accountability Court have no authority or power to proceed against Respondent No. 1 under the law. He further contended that the view taken by the learned High Court was in vilation of Section 31-D of the Ordinance as although Respondent No. 1 is not a defaulter of the Bank rather he is a beneficiary of the loan so obtained and the main Reference against other accused, who were loanees of the Bank was duly filed under authorization of the State Bank of Pakistan under the aforesaid section. According to him Reference against Respondent No. 1 who was included in Supplementary Reference alongwith another accused, who were beneficiary of the loan so obtained by the main four accused against whom Reference was competently filed by the State Bank of Pakistan, can be tried alongwith main accused as provided under Section 17 of the Ordinance.
For better appreciation it would be appropriate to reproduce Section 31-D of the NAB Ordinance, 1999:
"31-D. Inquiry, investigation or proceedings in respect of imprudent bank loans, etc.--
Notwithstanding anything contained in this Ordinance or any other law for the time being in force, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or re-scheduled loans shall be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from Governor, State Bank of Pakistan:
Provided that cases pending before any Accountability Court before coming into force of the National Accountability Bureau (Second Amendment) Ordinance, 2000, shall continue to be prosecuted and conducted without reference from the Governor, State Bank of Pakistan."
On bare perusal of Section 31-D of the Ordinance, it is implicitly clear that it only relates to imprudent loans, defaulted loans or rescheduled loans but in the instant case there is nothing on record from which it can be inferred that petitioner conspired with his co-accused at the time of obtaining loan or alleged wilful default or that he acquired assets from the money received from M/s WRSM or any of its directors. We are of the view that learned High Court has erred in law while holding that NAB or Accountability Court has no authority or power to proceed against petitioner Raheel Rashid without reference from Governor State Bank of Pakistan. According to this provision of law the sanction is necessary only against the loanee but in this case the petitioner is not a direct loanee, therefore, sanction of the Governor of State Bank is not required in this case and the learned High Court has erred in holding that the Accountability Court cannot proceed against the petitioner unless a reference is made by the Governor State Bank of Pakistan.
In view of what has been discussed above, the impugned Judgment of the learned High Court to the extent of jurisdiction is not sustainable in the eyes of law and is not in consonance with the law laid down by this Court, therefore, Civil Petition No.2361 of 2005 filed by National Accountability Bureau is converted into appeal and is allowed. The impugned judgment of the High Court to the extent of jurisdiction is set aside and Accountability Court is directed to proceed with the matter against petitioner Raheel Rashid in accordance with law. However Civil Petition No. 2450 of 2005 filed by petitioner Raheel Rashid for quashment of FIR is dismissed as he has not been able to show any ground for quashing the proceedings. Thus leave to appeal declined.
(Rao Farid-ul-Haque) Leave to appeal declined.
PLJ 2007 SC 440
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
KARAM ELLAHI--Appellant
versus
STATE--Respondent
Cr.A. No. 444 of 2001, decided on 28.9.2006.
(On appeal from judgment of Lahore High Court, Lahore dated 23.11.2000 passed in Criminal Appeal No. 712 of 1990).
(i) Constitution of Pakistan, 1973--
----Art. 185(2)--Criminal appeal against conviction of accused by High Court after setting aside acquittal order passed by Addl. Sessions Judge--Memo of appeal was returned with objection that appeal could not be entertained without surrender of accused--Criminal miscellaneous appeal, however Supreme Court directed the office to entertain memo of appeal and to fix bail application--Foot of application for bail before arrest moved--Accused neither appeared before Supreme Court nor before High Court at any time and did not pursue prayer for granting of bail--Convict being fugitive or absconding--Right of hearing of appeal--Court not bound to decide the appeal on merits, surrender of accused--Conviction of accused by High Court while setting aside the order of acquittal passed by Addl. Sessions Judge with direction that appellant would be taken into custody and sent to judicial lockup to serve out the sentence--Accused did not surrender before the law enforcing agencies and preferred direct appeal as of right--Validity--Appellant was not surrendering to the judgment of High Court--Held: Supreme Court was not bound to decide present appeal on merits--Accused must surrender before the Court unless his attendance has been dispensed with by the Court seized of the appeal--In absence of accused without any legal justification or permission of Supreme Court, the question of dispensing with his attendance would hardly arise--Further held: Appellant being a convict by a competent Court of Law becoming fugitive, even after filing the memo of appeal, through a counsel, loses a right of hearing though his appeal may be maintainable before the Court in view of express command of Art. 185(2) of the Constitution.
[P. 443] A
(ii) Constitution of Pakistan, 1973--
----Art. 185(2)--Criminal direct appeal--Absconder, cannot get benefit of his appeal being kept pending sine die till he surrenders--Appeal against acquittal it would not be illegal or even improper to hear of an acquitted accused who is on bail--Principles enunciated by Supreme Court (that a fugitive from justice looses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while, he remains fugitive, he is allowed to be represented by another person so that his plea might be heard.
[P. 443] B
(iii) Administration of Justice--
----Fugitive from justice--Inherent power cannot be invoked--Essential--Person who is fugitive from justice; the inherent power cannot be invoked in his favour--Person concerned should submit to due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, afford opportunity through some adjournments in the expectation that he might be induced to surrender; this all being accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure. [P. 444] C
(iv) Constitution of Pakistan, 1973--
----Art. 185(2)--Fugitive from justice--Appeal cannot be filed on the basis of power of attorney executed by him before his abscondence--If a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his abscodence and the same would apply to a power of attorney executed during abscodence; that a fugitive in effect is also a contemnor and further that he is not entitled to hearing. [P. 444] D
PLD 1981 SC 265, PLD 1956 F.C. 43, PLD 1969 SC 89, PLD 1982 SC 294, 1982 SCMR 818, 1985 SCMR 614, PLD 2004 Quetta 16, PLD 2005 SC 270, (Ref.)
Sheikh Zamir Hussain, ASC and Mr. Ejaz Muhammad Khan, ASC for Appellant.
Chaudhry Munir Sadiq, ASC for State.
Date of hearing: 28.9.2006.
Judgment
Rana Bhagwandas, J.--This direct appeal against judgment and conviction of the appellant by Lahore High Court dated 23.11.2000, after setting aside acquittal order passed by leanred Additional Sessions Judge, Kasur was presented in office way back on 6.1.2001. While allowing acquittal appeal to the extent of appellant, Division Bench of the High Court had ordered that the appellant shall be taken into custody and sent to judicial lock-up to serve out the sentence of life imprisonment with fine of Rs. 25,000/-. However, even after this direction, the appellant did not surrender before law enforcing agencies and preferred this appeal as of right, with the result that judgment of the High Court remains unimplemented.
Deputy Registrar of this Court returned the memo of appeal to the learned AOR for appellant with the objection that this appeal could not be entertained without the surrender of the appellant, in criminal miscellaneous Appeal No. 3 of 2001 against the order of the Deputy Registrar, however, a learned Judge of this Court directed the office to entertain the memo of appeal and to fix the bail application, filed alongwith the memo of appeal, in accordance with law at the hearing of which the appellant shall appear in person. It may be pertinent to observe that at the foot of the application for bail before arrest moved on his behalf, the appellant undertook to appear and surrender before this Court on the date fixed for hearing. Evidently the appellant neither appeared before this Court nor before the Lahore High Court at any time and did not pursue his prayer for grant of bail. Once, it was listed for hearing before the Court after due notice but it could not be reached for want of time.
Notice of listing of this appeal for today was issued to the appellant through District Police Officer, Kasur well in time, which has been returned with the endorsement of Station House Officer Mustafa Abad, District Kasur to the effect that the appellant has been absent and away from his house for the last 5/6 years and he is not in touch even with his real brother Rashid Ahmad. It may be observed, that he has neither intimated any reason for his absence nor entered appearance in person in pursuance of the undertaking furnished by him and in compliance with direction of the learned Single Judge of this Court as far back as 5.3.2002.
Sheikh Zamir Hussain, learned ASC has entered appearance on behalf of the appellant while State is represented by Chaudhry Munir Sadiq, learned ASC. Sheikh Zamir Hussain frankly states that during the last about six years, appellant has not come in contact with him though his brother Rashid Ahmed has been in touch with him. Since the appellant has not surrendered before this Court and he is a fugitive at law by not surrendering to the judgment of the Lahore High Court, we legitimately feel that we are not bound to decide this appeal on merits. Since it would be a condition precedent for hearing of an appeal by a convict against his conviction that an appellant must surrender before the Court unless his attendance has been dispensed with by the Court seized of the appeal. In the absence of the appellant, without any legal justification or permission of this Court, the question of dispensing with his attendance would hardly arise. Appellant being a convict by a competent Court of law becoming fugitive, even after filing the memo of appeal, through a counsel, in our view, looses a right of hearing though his appeal may be maintainable before the Court in view of express command of Article 185(2) of the Constitution.
In Hayat Bakhsh v. State (PLD 1981 S.C. 265) a larger Bench of this Court categorically held that if a convict after filing a petition becomes fugitive and does not surrender, he deprives himself of the relief claimed in the petition. Similarly, there would be no difference if he absconds after obtaining special leave to appeal, or after obtaining a bail order. This Court observed that it was not possible to agree with the submission of the counsel that in this situation the absconder can get the benefit of his appeal being kept pending sine die till he surrenders. The Court laid down that although in an appeal against acquittal it would not be illegal or even improper to hear the counsel of an acquitted accused who is on bail, it is not so for a fugitive. It would be the negation of the principles enunciated by this Court (that a fugitive from justice looses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while, he remains fugitive, he is allowed to be represented by another person so that his plea might be heard. In order to maintain consistency, in such a situation, although the Court would be obliged itself to examine the merits of the case for setting aside the acquittal, if need be the absconding acquitted accused would not be entitled to be heard, even through a counsel.
Referring to the principle laid down in the cases of Chan Shah v. The Crown (PLD 1956 F.C. 43) and Gul Hassan v. State (PLD 1969 S.C. 89), this Court cautioned that this Court would not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favour because it is an essential condition of the administration of justice that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, afford opportunity to him through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure. Elaborating further, this Court approved the principle laid down in Gul Hassan's case (supra): namely if a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power-of-attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in effect, in view of the principles laid down in the case of Chan Shah (supra) is also a contemner and further that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under section 374 Cr.P.C., if the convict decamps, he thereby forfeits the right of audience and the High Court would, in such a situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence. The confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave. In Mairaj Begum v. Ejaz Anwar (PLD 1982 SC 294), dealing with an appeal against acquittal after the absconsion of respondent acquitted by High Court this observed:--
"Although non-bailable warrants of arrest were issued against Ejaz Anwar respondent, now absconder, he has remained fugitive from law and Court for nearly five years and has not yet surrendered. Two learned counsel appeared in the Court from his side to state that they have been instructed to remain present to assist the Court. After noticing their presence and the circumstances about the absence of the respondent, we feel satisfied that his non-surrender is intentional and is, in the defiance of Court process. Therefore, he has lost right of hearing as was held in this Court judgment in the case of Hayat Bakhsh and others v. The State. We accordingly proceeded to hear the appeal against acquittal. The learned counsel were told that they had no right to represent the respondent and we on our part did not feel it necessary to seek their assistance in the disposal of the appeal."
Aforesaid view is further supported by Ali Ahmad Sabri v. State (1982 SCMR 818), Nazar Hussain v. State (1985 SCMR 614), Amir v. State (PLD 2004 Quetta 16) and latest precedent reported as State v. Naseemur Rehman (PLD 2005 SC 270), to which one of us (Rana Bhagwandas, J) was a party.
Respectfully following the dictum laid down by this Court, we earnestly feel, this is a fit case for the exercise of discretion, consistent with golden rule laid down hereinabove. Resultantly, this appeal is liable to dismissal on this ground and is accordingly dismissed.
Before parting with this order, we find it our solemn duty to call upon the District Police Officer Kasur as well as Inspector General Police to Punjab to take steps for arrest of the convict and to execute judgment of the High Court under intimation to this Court, within thirty days positively.
Syed Jamshed Ali, J.--I had the benefit of going through the judgement authored by my learned brother Rana Bhagwandas, J and concurred by my learned brother Nasir-ul-Mulk, J. The basis of the judgement is the case of Hayat Bakhsh supra, decided by a learned five members Bench of this Court. With greatest respect to the learned Judges and their legal acumen who decided the said case as also the learned author Judge, I have serious doubts as to correctness of the views expressed in the case of Hayat Bakhsh supra. I am of the opinion that the judgement in the case of Hayat Bakhsh supra, needs to be re-visited at an appropriate occasion by a larger Bench. My reasons are as follows:--
(a) When an acquittal is over turned by the High Court, the appeal lies as of right under Article 185 (2) of the Constitution. A plain reading of the said Article shows that it is un-qualified and absolute not conditioned with the surrender of the appellant.
(b) When an appeal lies as of right, there is a corresponding obligation for its decision and in-built therein is the right of hearing otherwise the appeal as of right will become a perfunctory ritual.
(c) Rule 8 of Order, XXIII of the Supreme Court of Pakistan Rules, 1980, provides that the petitioner-convict will have to surrender before his petition could be entertained but Order, XXII, which deals with the criminal appeals, does not contain any such provision which is an eloquent expression of the intention of the rule making authority not to insist on the surrender of the convict-appellant in case of appeal as of right. The provision of orders XXII and XXIII were not noted by the learned Bench in Hayat Bakhsh' case supra.
(d) The observation in the case of Hayat Buksh that even in case of appeal, the appellant must surrender is supported by the observation that power of the Supreme Court under Article 187 extends to passing of necessary orders for doing complete justice or orders incidental to facilitate exercise of such power. It is submitted with respect that it does not have the effect of abridging the scope of an appeal under Article 185 (2) of the Constitution. The residuary enabling article although of wide implititude, cannot be interpreted to abrade the effect of an express constitutional provision. Right of appeal in this case being creation of the constitution, substantive and valuable, could only be curtailed by an express provision of the constitution and not by exercise of an ancillary power.
(e) The other basis of the judgement in Hayat Bakhsh was that a fugitive from justice loses right of hearing an appeal filed on his behalf through a counsel. The only basis of this principle, we can find in equity, it is not rule of law laid down in case of appeal under Article 185(2) of the constitution. Again, it may be noted that a right guaranteed by the Constitution cannot possibly be diluted by any subordinate principle of equity or even of law. The right conferred by the Constitution could only be taken away by the Constitution. In case the acquitted accused is convicted, the law should have its course, he should be arrested and sent to the prison for undergoing sentence. The condition of personal attendance could, however, be imposed while hearing a bail matter because that lies in the discretion of the Court.
(f) Another basis of the judgement in the case of Hayat Bukhsh supra is that sub-Article (1) of Article 185 (2) is the controlling provision and, "The jurisdiction to hear and determine appeals in clause (1) encompasses both types of appeals whether filed under clause (2) or clause (3). Thus the constitution does not make any difference in this behalf". It is respectfully submitted that on a plain reading of the two provisions i.e. sub-Article (2) and sub-Article (3) of Article 185, the distinction is explicit. The two remedies are independent and are governed by different rules of this Court.
(Rao Farid-ul-Haque) Appeal dismissed.
PLJ 2007 SC 447
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. and
Muhammad Nawaz Abbasi, J.
MAKHDOOM JAVED HASHMI--Petitioner
versus
STATE--Respondent
Cr. P. No. 89 of 2005, decided on 9.10.2006.
(On appeal from the judgment/order dated 24.3.2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl. M. 1530-B/04
in Cr. A. 166/04).
(i) Criminal Procedure Code, 1898 (V of 1898)--
----S. 426--Pakistan Penal Code (XLV of 1860), Ss. 124-A, 131, 109, 468, 471, 469 & 505(a)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Suspension of sentence sought by the petitioner--Contention raised involved deeper appraisal of evidence--Conviction of the petitioner by trial Court under section 124-A, 131, 109, 468, 471, 469 & 505(a) PPC--Appeal is pending before High Court--Petitioner also moved an application for suspension of sentence before High Court which was dismissed, feeling aggrieved by the order of High Court the petitioner filed this petition--High Court had taken into consideration all aspects of the matter in the light of the material available on record and on the basis of tentative assessment of evidence has held that no case for suspension of sentence was made out--Supreme Court under Article 185(3) of the Constitution of the Pakistan is not obliged to interfere in the order of the High Court declining to suspend the sentence of a person under S. 426 Cr.P.C.--Held: Questions raised by the parties cannot be answered without deeper appreciation of evidence and such an exercise is unwarranted for the purpose of suspension of sentence and grant of bail after conviction--Petitioner had undergone a considerable portion of the sentence, plea taken for suspension of sentence--Validity--Accused has undergone a considerable portion of the sentence awarded to him u/S. 131 PPC and almost has completed the full term of his sentence on remaining charges has no force because such reason may not as such be considered a ground per se to suspend the sentence of accused. [P. 454] B & C
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 426--Suspension of sentence--Principle--Sentence under Section 426 Cr.P.C. cannot be suspended unless it is shown that it is based on no evidence and there is no ultimate possibility of the conviction of a person to sustain. [P. 453] A
Mr. Muhammad Akram Sheikh, Sr. ASC, Mr. M.A. Zaidi, AOR and Mr. Nasir-ud-Din Khan, Advocate for Petitioner.
Mr. Munir Ahmad Bhatti, ASC (Special Prosecutor) and Syed Zafar Abbas Naqvi, AOR for Respondent.
Date of hearing: 9.10.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan has been directed against the order dated 24th March 2005, passed by a learned Judge in chamber of the Lahore High Court, Rawalpindi Bench in a Criminal Miscellaneous Application No. 1530-B of 204 filed by the petitioner for suspension of his sentence pending decision of Criminal Appeal No. 166 of 2004, arising out of the judgment dated 12th April, 2004 passed by the Sessions Judge, Islamabad whereby the petitioner was convicted and sentenced on certain charges, has been dismissed.
(i) Convening and addressing a press conference, wherein
he read out and circulated a letter with the caption of
" " [herein after referred to as "the letter"], which was published in the newspapers of Islamabad dated 21st October 2003, as a result of which, he by spoken words, by writing and by visible representation attempted to bring into hatred, excited, disaffection towards the Central Government or the Provincial Government established by law.
(ii) Abetted mutiny and in consequence of said abetment attempted to seduce soldiers from their allegiance and duty.
(iii) By circulating the letter under caption noted herein above, and by publishing the same in the newspapers, intending to cause and incite the officers of the army to mutiny or otherwise disregard of fall in duty.
(iv) By circulating the letter and the words spoken and by writing the said letter and by visible.
(v) Prepared/got prepared a forged document i.e. the letter, noted herein above, purported to be on the pad of the Pakistan Army, which bear a forged monogram of General Headquarter Pakistan Army and pad, and circulated the said document intending that forged documented to be used for the purpose of cheating.
(vi) By circulating the forged document i.e. the letter, purporting to be on the pad of Pakistan Army, which bear a forged monogram of General Headquarter, Pakistan Army and pad, intending for the purpose of harming reputation of Pakistan Army, personnel of the Pakistan Army and personnel of the government.
(vii) By circulating the letter, which bear a forged monogram of General Headquarters Pakistan Army and pad, he fraudulently, dishonestly used it as genuine.
"(i) 3 years R.I. with fine of Rs. 1,000/- or in default to further undergo two months SI for offence under Section 124-A, PPC;
(ii) 7 years R.I. with a fine of Rs. 1,000/- or in default to further undergo two months SI for the offence under Sections 131/109 PPC;
(iii) two years RI with fine of Rs. 5,000/- or in default to further undergo one month SI for the offence under Section 505(a) PPC:
(iv) Four years RI on each count with a fine of Rs. 5,000/- on each count failing which to further undergo one month SI on each count for offences under Section 468/471 PPC;
(v) One year RI and a fine of Rs. 5,000/- for offence under Section 500 PPC two years RI with a fine of Rs. 2000/- or in default to further undergo 15 days SI for an offence under Section 469 PPC;
The petitioner preferred Criminal Appeal No. 166 of 2004 before the High Court and also moved an application under Section 426 Cr.P.C being Cr. Misc. No. 1530-B/2004 for suspension of sentence which was declined by the High Court vide impugned order dated 24 February 2005 and concluding paras whereof are reproduced hereunder :--
"The most important feature of the case is that the convict would not be placed or treated with accused on same footing while considering question of bail. It is settled principle of criminal law that after conviction the initial presumption is against innocence of convict. Therefore, a person convicted of a non-bailable offence by a competent Court would not be entitled to be enlarged on bail by the Appellate Court except in special circumstances. In this respect, reference can be made to the case of Asif Butt vs. State (2000 YLR 1145).
Since no exception material has been pointed out by the learned counsel for the petitioner to make a base for suspension of sentence of the accused-petitioner and he miserably failed to persuade this Court to suspend the conviction and sentence of accused-petitioner, therefore, I see no substance in this petition which is dismissed."
Learned counsel appearing for petitioner at the first instance, contended that the trial for the charge under Section 124-A PPC, without adhering to the provisions of Section 196 Cr.P.C, was not legal and consequently, the conviction and sentence of three years R.I. awarded to him under Section 124-A PPC is bad in the eyes of law and is not sustainable whereas the bare reading of the letter allegedly circulated by the petitioner would show that necessary ingredients of Section 131 PPC were missing and no charge could be framed under this Section, therefore, conviction and sentence under Section 131 PPC is nullity in law, whereas the sentence on the remaining charges being short, almost has been served by the petitioner, therefore, in these circumstances, pending disposal of his appeal before the High Court, he would be entitled to be released on bail by suspending his sentence under Section 426 Cr.P.C.
Learned counsel appearing for caveat contended that the objection regarding defect in the trial raised by the learned counsel is not tenable because the same objection was raised by the petitioner before the trial Court which was overruled by the trial Court vide order dated 24th January 2004 and this order was further maintained by the High Court by dismissing the criminal revision petition filed by the petitioner vide order dated 8th April 2004. Thereafter, the petitioner did not challenge the order of the High Court before this Court, which attained finality and consequently, the above objection cannot be entertained at this stage for the purpose of suspension of sentence.
The learned counsel for the petitioner has not denied that the above objection was raised before the trial Court and on its rejection, the petitioner filed a criminal revision in the matter before the High Court which was dismissed. In view thereof, the objection so raised by the learned counsel is not entertainable rather in the light of decision of the High Court dated 8th April 2004 on the subject, the learned counsel may have not urged the same in this petition before us at this stage for suspension of sentence and consequently, we agree with the learned counsel for respondent, that objection is devoid of substance to be sustained.
Learned counsel for the petitioner arguing the case on merits, has raised the following contentions in support of this petition:--
(a) The complainant having entered into the cafeteria of the National Assembly unauthorizedly, had no right to lodge complaint regarding the commission of an offence in the precincts of National Assembly, because only the Speaker being custodian of the House, could authorized the lodging of the report with the Police. In view thereof, the trial of the petitioner followed by his conviction on the basis of complaint lodged by an outsider/stranger was bad in law and being coram non-judice is not sustainable.
(b) The Petitioner being a Parliamentarian had a right to speak in the precincts of National Assembly, in exercise of his fundamental right guaranteed by the Constitution and thus neither he has committed any offence, nor a criminal case could be registered against him and in that criminal prosecution was unconstitutional.
(c) That as per prosecution own version, a few other MNAs were also present in the press conference, convened by the petitioner and they having participated in the Conference have appreciated his speech but none of them was either charged or examined as a witness in support of accusation against the petitioner.
(d) The prosecution of the petitioner militates against the Constitutional guarantees, provided to the Parliamentarians to speak in the Parliament and since the cafeteria is part of the Parliament, therefore, in terms of Article 19 of the Constitution, there could be no criminal liability for making such a speech in the cafeteria.
(e) The judgment of the trial Court suffers from serious contradictions, discrepancies and inherent defects which are not curable and consequently the conviction of the petitioner may not be sustainable but learned Judge in the High Court without attending this important aspect of the case and considering the contention raised for suspension of sentence, dismissed the application under Section 426 Cr.P.C for irrelevant consideration.
The petitioner has already undergone the almost full term of his sentence on five counts out of six counts and since the sentence for a term of RI for seven years awarded to him under Section 131 PPC is not sustainable, therefore, he cannot be kept in custody for an indefinite period, particularly in view of the fact that there is no likelihood of hearing of appeal filed by him before the High Court in the near future.
(i) Khurshid Ahmed (complainant) and Capt. Jehanzeb Zahoor Awan (PWs) visited the National Assembly on the day of the happening of the incident on valid passes, issued to them by the office of the Assembly, therefore, they were most natural witnesses.
(ii) Notwithstanding the fact that petitioner is a parliamentarian, he was tried for committing a criminal offence and was also found guilty of the charge by the trial Court, therefore, he could not claim immunity from criminal liability under the Constitution.
(iii) The question, as to whether the cafeteria is part of the House, cannot be determined on the oral assertion and no evidence has been brought on record on this behalf, therefore, the contention of learned counsel that cafeteria includes in precincts of assembly has no substance.
(iv) Learned trial Court having thoroughly scanned the evidence, available on record, concluded that the charge against the petitioner stands proved and finding of guilt being based on evidence cannot be commented upon without deep appreciation of the evidence, which is not warranted at this stage in this petition for leave to appeal filed against the order of the High Court passed in an application under Section 426 Cr.P.C which was disposed of strictly in accordance with law and as such the impugned order would call no interference of this Court.
(v) That no attempt was made on behalf of the petitioner for early fixation of the appeal before the High Court and mere on the basis of oral assertion, the argument of the learned counsel for petitioner that appeal is not likely to be heard in near future has no substance.
(vi) The petitioner was arrested on 29th October 2003 and till now he has undergone a total period of 2 years 11 months of his imprisonment with the benefit of Section 382-B Cr.P.C, whereas his period of detention after conviction on 12th April 2004 is only two and a half year and consequently, he cannot claim suspension of sentence as of right particularly in view of the fact that judgment of the trial Court being based on sound principle of criminal administration of justice is not likely to be disturbed.
Mr. Nasir Saeed Sheikh, learned Deputy Attorney General adopted the arguments advanced by the counsel for the respondent.
We have heard the learned counsel for the parties and with their assistance have also gone through the impugned order carefully. This is well settled principle that sentence under Section 426 Cr.P.C. cannot be suspended unless it is shown that it is based on no evidence and there is no ultimate possibility of the conviction of a person to sustain. In Muhammad Saleem v. State (PLD 2006 SC 483) it has been held that :--
"There is no cavil to the proposition that appellant Court in exercise of its power under Section 426 Cr.P.C may in a suitable case, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding any material difference in the principle governing for grant of bail under Sections 497 and 426, Cr.P.C. the consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, the distinction must be adhered to for exercise of power under the above provisions in proper manner. The power of appellate Court under Section 426(1) Cr.P.C is not limited and the Court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but this power of suspension of sentence and grant of bail is not wider then that of under Section 497 Cr.P.C and unless it is shown that conviction is based on no evidence or being based on an inadmissible evidence, is not ultimately sustainable, the grant of bail under Section 426(1) Cr.P.C with the consideration of ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as the bail either under Section 497 or 426(1) Cr.P.C could be allowed only on the basis of tentative assessment of evidence."
This may be noted that apparently the order of the High Court under challenge is not suffering from any infirmity, as the learned Judge in chamber in the High Court having taken into consideration all aspects of the matter in the light of the material available on record and on the basis of tentative assessment of evidence has held that no case for suspension of sentence was made out and we may point out that this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan is not obliged to interfere in the order of the High Court declining to suspend the sentence of a person under Section 426 Cr.P.C. In any case, in the present petition, most of the questions, raised by the learned counsel for the parties, cannot be answered without deep appreciation of evidence and such an exercise is unwarranted for the purpose of suspension of sentence and grant of bail after conviction.
The cursory look at the evidence produced by the prosecution, particularly the statement of Khurshid Ahmed (complainant) and Capt. Jehanzeb Zahoor Awan, (PWs) who happened to be in the cafeteria of the Assembly when the petitioner having convened the press conference, distributed the letter (Exb. PJ) amongst the participants of the press conference and others, would prima facie suggest the commission of the offences by the petitioner for which he has been charged and convicted and subject to the detail scrutiny of the evidence by the High Court in appeal in our tentative opinion, the prosecution has been able to prove all the charges.
The contention of Mr. Muhammad Akram Sheikh, Sr. ASC learned counsel that petitioner has already undergone a considerable portion of the sentence of seven years R.I awarded to him under Section 131 PPC and almost has completed the full term of his sentence on remaining charges, has no force because such reason may not as such be considered a ground per se to suspend the sentence of an accused. We may point out that this Court in the case of Fazal Muhammad v. The State (2002 SCMR 1211), in which this Court dismissed the application for suspension of sentence of seven years R.I awarded to the convict with fine of Rs. 5000/- and in default of the payment of fine to undergo SI for two months and declined to grant the leave with the following observation:--
"The arguments raised by the learned counsel for the petitioners go to the root of the case which can only be appreciated at the time of hearing of the appeal by the learned High Court when the entire evidence adduced by the parties would be thrashed out. In the circumstances of the present case no illegality has been committed by the learned Single Judge of the Lahore High Court in dismissing the application for suspension of the sentence of the petitioners."
Similarly, in the case of Ghulam Abbas v. State (2003 SCMR 911), the petition seeking suspension of sentence was dismissed with the observation that refusal of the High Court to suspend the sentence on the ground that contention raised in support thereof involved deeper appraisal of evidence which was not permissible under Section 426 Cr.P.C. was based on valid consideration.
In the light of forgoing discussion, we are of the considered opinion that the learned High Court has committed no illegality in declining bail to the petitioner by suspending his sentence and the arguments so raised by the learned counsel in support of this petition have also not persuaded us to agree with him to undertake the exercise of deeper appreciation of the evidence for suspension of sentence, consequently, we hold that impugned order being free from any legal infirmity or perversity, admits no interference.
As a result of the above discussion, this petition is dismissed and leave declined.
(Rao Farid-ul-Haque) Leave to Appeal Declined.
PLJ 2007 SC 455
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ.
Rana MUHAMMAD TAJAMMAL HUSSAIN and others--Appellants
versus
Rana SHAUKAT MAHMOOD and others--Respondents
Civil Appeals No. 1417, 1418 & 1475 of 2006, decided on 14.9.2006.
(On appeal from the judgment dated 4.8.2006 passed by Election Tribunal Punjab in EP. 28 & 221 of 2002).
(i) Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 12(1) (2) & 14(1)(2)(3)--Election of Punjab
Provincial Assembly--Scope of--Appellant securing highest votes notified as member--Election was questioned and declared void on ground that his proposer and seconder were not electors of his constituency--Assailed--S. 12(1)(2) of
Act 1976 is not mandatory but directory and due to its non-compliance election of a candidate cannot be declared void and such defect can be cured by allowing substitution of qualified proposers and seconders in exercise of powers u/S. 14
(3) proviso (ii) of Act 1976--Contention of--Elector of a constituency may propose or second any duly qualified perosn to be a member for constituency--Although law makers have used word may' in said section but it does not mean that any other person who is not elector of constituency would be qualified to propose or second a candidate for contesting election from that constituency--Key to opening of every law is reason and spirit of law, it is animus imponentis, intention of law makers expressed in law itself, taken as a whole--Object of S. 12(1) of Act, 1976 is that elector of constituency may propose or second name of any duly qualified person as a candidate for election as a member for that constituency, clearly spells out intention of legislature--Keeping in view intention of legislature word "may" used in S. 12(1) has to be read asshall'--Word may' can be interchanged with wordshall' to enhanced intention of legislature, candidate is bound and under mandatory obligation to ensure filing of nomination papers from constituency duly proposed and seconded by electors there from-There is no cavil with proposition that once it is found out that a provision of law is mandatory by its implication, same is bound to be strictly followed--Appeals dismissed.
[Pp. 461 & 463] A, E & F
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 12 & 14(1)(2)--Provision--Power of returning officer have been controlled for not rejecting nomination paper on any defect which is not of substantial nature whereas defect in any submitted nomination paper duly proposed and seconded by candidate.
[P. 464] G
AIR 1974 SC 1682, AIR 1976 SC 714, PLD 2004 SC 694 &
AIR 1983 SC 303, ref.
Interpretation of Statutes--
----`May'--Meaning of--Statutes relating to collective rights of community like electing a member of parliament or provincial Assembly to represent them on their behalf to agitate for their rights and also realizing their obligation to them are to be construed strictly.
[P. 461] B
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 12(2)(a)(c)(d)--Constitution of Pakistan, 1973, Art. 62--Thus word `may' employed in S. 12(1) of Representation of People Act, 1976 would not empower a candidate to put up himself a candidate in a constituency from where he could not procure two electors to propose and second him for contesting election from said constituency-Right to choose is available to electors to vote for a candidate, who would prove himself to be their due representative. [Pp. 461 & 462] C
Words & Phrases--
----Word may' used in S. 12(1), to achieve object of law, is to be used asshall' or `must'. [P.
462] D
Mr. Aitezaz Ahsan, Sr. ASC & Ejaz Muhammad Khan, AOR for Appellant (in C.A. 1417, 1418 of 2006).
Ch. Bashir Ahmed, ASC & Mr. M.A. Qureshi, AOR (Absent) in (C.A. 1475 of 2006).
Date of hearing: 14.9.2006.
Judgment
Iftikhar Muhammad Chaudhry, C.J.--Listed appeals have been filed under Section 67(3) of the Representation of the People Act, 1976 [herein after referred to as "the Act, 1976"] against the judgment of Election Tribunal Punjab, Lahore High Court, Lahore in Election Petition No. 28/2002, which was consolidated with E.P. No.221/2002 as in. both the petitions the election of the Provincial Assembly from constituency No.PP.157 was questioned.
Precisely stating relevant facts for the decision of the appeals are that Rana Muhammad Tajammal Hussain appellant in Civil Appeals No. 1417 & 1418 of [herein after referred to as 'the appellant'] won the election from PP-157 as 14,000 votes were polled by him. It may be noted that Rana Shaukat Mahmood [herein after referred to as 'the respondent'] stood at second position as he secured 10,000 votes. Consequently the appellant was notified as Member, Punjab Provincial Assembly. The respondent and Malik Javed Awan, respondent in Civil Appeal No.1418/2006 questioned the election of the appellant before the Election Tribunal, Lahore High Court, Lahore on various grounds including that his proposer and seconder were not electors of PP-157. Appellant contested the election petition by filing reply repudiating the contents of the election petition and specifically stated that Asif and Shafqat, proposer and seconder were lawfully competent to propose and second his candidature. The nomination papers filed by him were declared to be correct by the competent authority and in view of this situation petitioner (respondent before us) were estopped by his own conduct for raising the objection in this regard ...."
Learned Tribunal carved out as many as 13 points out of the pleading including the one whether proposer and seconder of the appellant were not electors of PP-157? If so, with what effect? OPP" Parties produced evidence for and against to supplement their respective pleas. The Election Tribunal recorded its findings in respect of the point noted herein before holding `after examining the evidence on record, as noted above it is concluded that the proposer and seconder of respondent were not electors of PP-157 at the time of filing of nomination papers by the respondent. Most importantly the respondent has himself admitted in his cross-examination, as noted that proposer and seconder of his nomination papers are the voters of the constituency No. PP-158. The issue is decided in favour of the petitioners". As a result of such finding it was further held "if a person is elector of that constituency, only in that case he can propose and second the nomination of any duly qualified person to contest a member from that constituency." As far as the plea of the respondent to declare him a returned candidate from PP-157 because of declaring the election of the appellant void is concerned it was also turned down for the reasons noted in the impugned judgment. The appellant has instituted two appeals because of the fact that two election petitions were filed against him whereas Rana Shaukat Mahmood respondent has also filed a petition seeking relief to the effect that he be declared the returned candidate in place of the appellant. As in all the appeals common question of facts and taw is involved, therefore, they are being disposed of by means of instant judgment.
Now before taking up the arguments raised on behalf of the appellant, it is to be observed that learned counsel for appellant candidly conceded that his proposer and seconder belong to PP-158 but his explanation was that on account of completion of the process of delimitation just before Election of 2002, the appellant in good faith believed that his proposer and seconder are electors of PP-157 and the contesting respondents had also no knowledge that they belong to another constituency i.e. PP-158 and due to this reason no objection was raised by them at the time of scrutiny of nomination paper, because, in case, such objection was raised it was quite convenient for the appellant to have substituted the names of his proposer and seconder. According to him as he was declared successful on securing highest votes therefore, even now permission can be accorded to him to make his nomination papers valid by substituting the names of proposer and seconder amongst the electors of PP-157.
The argument so raised by the learned counsel is not acceptable; firstly for the reason that he should have been vigilant while selecting the names of his proposer and seconder should have ensured whether they belonged to the constituency wherefrom he was contesting the election or not; secondly if at the time of the scrutiny no objection was raised by the contesting candidates on nomination papers it would not mean that by aflux of time any deficiency in the nomination papers would stand removed particularly when the same is of a permanent nature and has a reflection/adverse effect on his election; thirdly, instant plea was never put forward on behalf of the appellant at any stage i.e. at the time of filing of reply to the election petition as it is evident from its contents, reference of the relevant para therefrom has already been made herein above, wherein the appellant himself admitted during his cross-examination that his proposer and seconder belong to a different constituency and permission be accorded to him to substitute the same; and fourthly, no such plea has been raised in the memo of the appeal under examination. Learned counsel however, contended that the compliance of such provision of law i.e. Section, 12(1)(2) of the Act, 1976 is not mandatory but directory and due to its non-compliance the election to a candidate cannot be declared void and such defect can be cured by allowing substitution of qualified proposers and seconders in exercise of powers under Section 14(3) proviso (ii) of the Act, 1976. In this behalf he has referred the judgment in the case of Ishaq Dar v. The Election Tribunal Punjab (KLR 1998 Civil Cases 374 (Lahore).
It would be appropriate to reproduce herein below the provision of Section l2(1)(2) of the Act, 1976 as well as Section 14(3) proviso (ii) for convenience :--
Nomination for election:--[(1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency.]
1(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany--
(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member;
(b) a declaration about his party affiliation, if any, alongwith a certificate from the political party showing that he is a party candidate from the constituency for which nomination papers are being filed;
(c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off;
(d) a declaration that he, his spouse or any of this dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filling of nomination papers;
(e) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any, alongwith attested copies thereof; and
(f) a statement of his assets and liabilities and those of this spouse and dependents on the prescribed form as on the preceding thirtieth day of June."
13. .................................................
(1)..................................................
(2) ......................................................
(3) The Returning Officer may, either of his own motion or upon any objection, either by an elector or by any person referred to in sub-section (1) conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that :--
(a) the candidate is not qualified to be elected as member.
(b) the proposer or seconder is not qualified to subscribe to the nomination paper;
(c) any provision of Section 12 or Section 13 has not been complied with or submits any false or incorrect declaration or statement in any material particular; or
(d) the signature of the proposer or the seconder is not genuine;
Provided that:--
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
la the Returning Officer, may, for the purpose of scrutiny, require any agency or authority to produce any document or record;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any detect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll; and
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll."
The theme of providing representation to the electors of a constituency seems to be that they .may choose their representatives to voice their rights and obligations in the Parliament and Provincial Assemblies and to achieve (the object, the language employed in Section 12(1) of the Act, 1976 clearly demonstrate that any elector of a constituency may propose or second any duly qualified person to be a member for the constituency. Although the bw givers have used the word 'may' in Section 12(1) of the Act, 1976 but it does not mean that any other person who is not elector of the constituency would be qualified to propose or second a candidate for contesting election from the said constituency. To explore the intention of the law givers, it would be appropriate to examine the provisions of Section 12(1) of the Act, 1976 as a whole because as per the well recognized principles of interpretation of statute, a specific provision provided in an enactment has to be followed. It is well settled by now that when legislation is unambiguous the doctrine of telescoping and doctrine of pragmatic construction and contemporaneous construction has to be avoided, Particularly, the statutes relating to the collective rights of the community like electing a Member of Parliament or Provincial Assembly to represent them on their behalf to agitate for their rights and also realizing their obligation to them are to be construed strictly. Thus the word `may' employed in Section 12(1) of the Act, 1976 would not empower a candidate to put up himself a candidate in a constituency from where he could not procure two electors to propose and second him for contesting election from the said constituency.
"May--meaning of:--It is not always correct to say that where the word "may' has been used, the statute is only permissive or directory. The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, and the consequence which would follow it on way or the other. May is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. It is, therefore, clear that in each case it has to be determined whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power' and 'when that power is coupled with a duty of the person to whom it is given to exercise it, then it is imperative'. On the other hand, in 'cases' in which the donee of the power has only his own interests or conveniences to consult, the word 'may' is plainly permissible only and a mere privilege or licence is conferred which he may exercise or not at pleasure."
Similarly, according to "Crawford's Statutory
Construction, Interpretation of law", may' ordinarily denotes permission and not command. Where the word as used in a statute concerns the public interest or affects the rights of third persons, it will be construed to meanmust'.
It is well settled that the word may' used in the statute, in the circumstances of the particular case, can also be used asshall'. Reference in this behalf may be made to Muhammad Saleh v. The Chief Settlement Commissioner, Lahore (PLD 1972 SC 326), Fida Jan v. State
(NLR 2001 Criminal 43) and Nasiruddin and others v. Sita Ram Agarwal (AIR 2003
SC 1543). In the case of Muhammad Saleh (ibid) it has been observed that
"it is now well settled that the word "may" and
"shall" in the legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance." Similarly in
Nasiruddin's case (ibid) it is observed that "it is well settled that the real intention of the Legislation must be gathered from the language used. It may be true that use of expression 'shall or may' is not decisive for arriving at a finding as to whether a statute is directory or mandatory, but the intention of the Legislature must be found out from the scheme of the Act." Moreover, in our considered opinion, with reference to a duty cast upon a qualified elector to propose or second a candidate to represent the members of the constituency in an elected house is mandatory and not directory. Two judgments can be cited for determining the intention of the Legislature to ascertain whether Section 12(1) of the Act, 1976 is mandatory or directory. Firstly in
Re. Presidential Election, 1974 (AIR 1974 SC 1682), a principle has been laid down that where a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It has been further observed that "it is the duty of the Courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole. Secondly, in Lachmi Narain v. Union of India (AIR 1976 SC 714), the principle discussed herein above has been followed, Similarly the same principle has been highlighted in the case of Ahmed Hassan v. Government of Punjab (PLD 2004 SC 694).
It has been pointed out herein above that the object of Section 12(1) of the Act, 1976 is that elector of the constituency may propose or second the name of any duly qualified person as a candidate for election as a member for that constituency, clearly spells out the intention of the legislature. Therefore, keeping in view the intention of the legislature the word may' used in Section 12(1) has to be read asshall' and on having held that the word 'may' can be interchanged with the word `shall' to enhance the intention of the legislature, the candidate is bound and under mandatory obligation to ensure filing of nomination papers from the constituency duly proposed and seconded by the electors there from. There is no cavil with the proposition that once it is found out that; a provision of the law is mandatory by its implication, the same is bound to be strictly followed as has been held in Dalchand v. Municjpal Corporation, Bhopai (AIR 1983 SC 303).
Thus it is held that the plea of the learned counsel for appellant that permission be accorded to him to substitute the names of the proposer and seconder, at this stage, seems to be not acceptable. Therefore, opinion expressed in the case of Ishaq Dar v. Election Tribunal (K.L.R. 1998 Civil Cases 374) is not approved for the reason mentioned herein above because of the fact that this provision of law is mandatory in its nature and would have substantial effect on the election, for which schedule is to be announced and any nomination paper found invalid cannot be allowed to be validated afterwards, even in exercise of powers either by the Returning Officer or the Election Tribunal or for that matter High Court or this Court, in terms of Section 14(1) (2) of the Act, 1976. A perusal of this provision also indicates that the powers of the Returning Officer have been controlled for not rejecting the nomination papers on any defect which is not of substantial nature, whereas defect in any submitted nomination papers, duly proposed and seconded by a candidate, is of a substantial nature and provisions of Sections 12 and 14 of the Act, 1976 are mandatory in nature as held in Muhammad Abbas v. Returning Officer (1993 MLD 2509), Qaisar Iqbal v. Ch. Asad Raza (2002 YLR 2401), Asif Khan v. Returning Officer (2003 MLD 230) and Mudassar Qayyum Nahra v. Election Tribunal (2003 MLD 1089). Thus on having approved the principle discussed in these judgments, the earlier judgment in the case of Ishaq Dar (ibid) on the point is not approved.
Ch. Bashir Ahmed, learned ASC contended that the appellant Rana Shaukat Mehmood had secured the highest votes, therefore, the disqualification of appellant Rana Muhammad Tajammal Hussain being notorious would entitled him to be declared as successful candidate.
It may be noted that learned High Court rejected his such plea, keeping in view the doctrine of throwaway votes discussed in the case of Amjad Aziz v. Haroon Akhtar Khan (2004 SCMR 1484) and concluded that as through evidence it has not been established that disqualification of Rana Muhammad Tajammal Hussain was notorious in constituency, therefore, he cannot be declared successful. This very principle of throwing away votes was fallowed in Shaukat Ali v. District Returning Officer (PLD 2006 SC 78). The conclusion drawn by the Election Tribunal, in the light of the evidence available on record as well as the judgments referred to herein above seem to be un-exceptionable therefore no interference is called for.
For the foregoing reasons, appeals are dismissed.
(Saeed Anwar Sheikh) Appeal dismissed.
PLJ 2007 SC 465
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Ghulam Rabbani, JJ.
NAWAB DIN (deceased) through L.Rs--Appellants
Versus
FAQIR SAIN--Respondent
Civil Appeal No. 28 of 2003, decided on 26.9.2006.
(On appeal from the judgment dated 4.12.2002 passed by the Lahore High Court, Lahore in Civil Revision # 898 of 1998).
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Talb-i-Mowathibat--Requirement of--Held: Talb-i-Mowathibat is a personal act of prospective pre-emptor whereby his actual right is activated--It was to be exercised at a time when no suit was yet filed, no notice of talb-i-ishhad was served, no khasomat was preferred and when no defendant was in picture--Act of Talb-i-Mowathibat being pre-requisite to activate right of pre-emption and being subjective & spontaneous of the pre-emptor had little to be waived by the defendant. [P. 466] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Talb-i-Mowathibat--Proof of--Held: Proof of Talb-i-Mowathibat is necessary even if some suit for pre-emption is not contested by defendant and even if the proceedings are ex-parte--Any omission in such behalf in the written statement does not extend any benefit to the pre-emptor--Plaint did not disclose about any majlis or informer--Even notice of Talb-i-Ishhad was silent about these facts--Plaintiff was rightly non suited by lower Courts--Appeal dismissed.
[P. 466] B & C
Mr. Altaf Elahi Sheikh, ASC for Appellants.
Rai Muhammad Nawaz Kharal, ASC for Respondent.
Date of hearing: 26.9.2006.
Judgment
Sardar Muhammad Raza. J.--The legal heirs of Nawab Din, pre-emptor in the original suit, have filed this appeal after leave of Court against the judgment dated 4.12.2002, whereby, his revision against the judgment dated 13.5.1998 of the First Appellate Court, was dismissed. Nawab Din pre-emptor, granted a decree by the trial Court, was non-suited by the appellate Court as well as the High Court - holding that the pre-emptor had not performed talb-i-mowathibat, etc.
Learned counsel for the appellant submitted that in the written statement the defendant had only challenged the performance of talb-i-ishhad, whereas, the Courts have non-suited the pre-emptor for the non-performance of talb-i-mowathibat as well. That no issue was framed regarding talb-i-mowathibat. So far as the real controversy between the parties is concerned, it can better be reflected from the issues framed. Issue to that effect clearly contains a reference to both the talbs, of mowathibat and of ishhad. There seems to be no surprise sprung upon the pre-emptor.
Talb-i-mowathibat is a personal act of prospective pre-emptor whereby his actual right is activated. It is to be exercised at a time when no suit is yet filed, no notice of talb-i-ishhad is served, no khasomat is preferred and when no defendant is in picture. Thus the act of talb-i-mowathibat being prerequisite to activate the very right of pre-emption and being subjective and spontaneous, of the pre-emptor, has little to be waived by the defendant. The proof thereof is, therefore, necessary even if some suit for pre-emption is not contested by the defendant and even if the proceedings are ex-parte. Any omission in this behalf, in the written statement, does not extend any benefit to the plaintiff/pre-emptor.
To see the proof or otherwise of Talabs, we would revert to the record. The sale having taken place on 26.4.1993, the plaintiff in his plaint discloses having received knowledge thereof on 1.8.1993. As the performance of talb-i-mowathibat is restricted to a specific period of time, that is, before dispersal of a majlis, it remains a matter of limitation by itself and further limits the performance of talb-i-ishhad within 14 days therefrom. The plaintiff, therefore, has to prove also as to what majlis it was that he performed talb-i-mowathibat in.
No such majlis at all is indicated in the plaint. It is not mentioned in the plaint as to who informed the pre-emptor about sale for the first time. Talb-i-ishhad is nothing but creating evidence about the talb concerned. Quite interesting it is to note that even notice of talb-i-ishhad is totally silent about the existence or otherwise of Muhammad Din as informer. This Muhammad Din is for the first time introduced in the evidence but no benefit could be drawn from him because he is alleged to have died. Even if alive, there is evidence and strong inferences on record, that he was not present in the majlis, that he was not an informer and that no talb was performed in his presence.
The Courts have rightly concurred and non-suited the pre-emptor. There being no force in the appeal, it is hereby dismissed.
(Javed Rasool) Appeal dismissed.
PLJ 2007 SC 467
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, (Chairman), Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud &
Dr. Rashid Ahmed Jullundhari, JJ.
MUDASSAR HUSSAIN--Petitioner
versus
STATE--Respondent
J.Sh.P. No. 44 of 2005, decided on 30.11.2006.
(On appeal from the judgment dated 22.7.2004 passed by the FSC
in Crl. A. No. 141/I of 2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 377--Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979) S. 12--Constitution of Pakistan, 1973, Art. 203-F--Unnatural offence--Conviction and sentence recorded against accused--Appeal was dismissed--Assailed--Appreciation of evidence--All prosecution witnesses have made statements in line with each other--Discrepancies pointed out pertain to extraneous details of case--None of them in any manner reflects on truthfulness of prosecution version--Defence evidence neither appeals to reason nor appears to be truthful--All pieces of evidence taken together proved beyond any doubt that petitioner comitted offence--Doctor has given opinion against accused with regard to offence in question--Report of Chemical Examiner is also positive--Courts below have thoroughly considered evidence on record and finally convicted and sentenced petitioner--Held: Supreme Court does not normally interfere in concurrent conclusions arrived at by Courts below while exercising Constitutional power--Leave refused. [Pp. 470 & 471] A, B, C & D
Book Principles and Practice of Medical Jurisprudence by A. Keith Mant and PLD 1973 SC 469, rel.
Mr. Zulfiqar Khalid Maluka, ASC for Petitioner.
Complainant in person.
Ch. Munir Sadiq, DPG Punjab for State.
Date of hearing: 30.11.2006.
Judgment
Ch. Ijaz Ahmed. J.--The petitioner has sought leave to appeal against the judgment of the Federal Shariat Court dated 22.7.2004 wherein the appeal filed by the petitioner was dismissed. The brief facts out of which the present petition arises are that petitioner is involved in case FIR No. 49 which was registered on 19.4.2003 under Section 12 Offence of Zina (EOH) Ordinance, 1979 and Section 377 of PPC on the complaint of Muhammad Ijaz PW 6/father of the victim Tausef Ijaz PW5. The facts according to the contents of the FIR which were noted by the learned Federal Shariat Court are as follows:--
"Briefly stated FIR No. 49 dated 19.4.2003 P/S Basal, District Attack was registered at the instance of one Muhammad Ejaz, complainant with allegations that offence of sodomy was committed with his son Tausif Ejaz by the accused/appellant. According to the facts narrated in the FIR, victim-was a minor aged about 12 years and was proceeding to mosque for his prayers and in the way, he was taken over by the accused/appellant to his house and in the room forcibly removed his shalwar and committed the act of sodomy. "
The challan was submitted by the investigating agency after investigation. The trial Court had completed the legal formalities such as framing of charge, recording of prosecution evidence and statement of accused. The learned Addl. Sessions Judge Attock vide its judgment dated 16.6.2003 convicted under Section 377 of PPC and sentenced to ten years R.I. with fine of Rs. 20,000/-. In case of default in payment of fine to further undergo three months S.I. with benefit of Section 382-B Cr.P.C. The petitioner was acquitted under Section 12 of the Offence of Zina (EOH) Ordinance, 1979. The petitioner being aggrieved filed appeal before the learned Federal Shariat Court which was dismissed as mentioned above. Hence the present petition.
The learned counsel for the petitioner submits that three versions are borne out in case the statement of the convict be read as a whole from the following portions of examination in chief and cross examination of PW5 Tausif Ejaz victim:--
Examination in chief.
"On 19.4.03, I was proceeding towards Lari Masjid to offer my Zohar prayer."
Cross examination.
"I had mentioned in the said statement that thereafter, I did not go to mosque and returned to my house where I narrated the said occurrence to my mother (Confronted with Ex.D.A. not so recorded). It is correct that my house is situated at a distance of about 2 miles from the mosque known as Lari mosque. It is correct that my house is situated in the abadi known as `Dhoke Arr'. It is also correct that there is a mosque in that Dhok. It is correct that there is a mosque at distance of about one mile from my house which is known as the 'Mian Muhammad Masjid. At a distance of about 10 paces in front of the house of the place of occurrence there is a mosque known as 'Mian Muhammad Masjid".
----"During the days of occurrence the Zohar prayer was offered at about 2.30 p.m. I left my house at 2.30 p.m. on the said day all alone. I reached in mosque lari within 40 minutes. I remained in the said mosque for about 2 hours. On the day of occurrence there were about 75 children in the mosque. The students were relieved from the mosque at one and same time at about 4.30 p.m."
----"One Ghulam Haider who is sitting inside the Court is known to me. He has come to pursue my case. When for the first time I went to the P.S. alongwith my father the said Ghulam Haider was not with us. The said Ghulam Haider never visited the P.S. with us."
----"On the day of occurrence I have been summoned by the police in P.S. for 4/5 times. It is correct that firstly I was summoned by the police at about 12/12.30 on the day of occurrence."
He further urges that there is major contradictions in the statement of the victim as mentioned above but both the Courts below failed to give due weight to the said contradictions. He further submits that statement of the victim is not in consonance with the medical evidence. He further urges that doctor had not given his opinion as evident from the examination in chief as he had taken three swabs from anal and parianal region for securing chemical report. He had given opinion qua sodomy after receiving report from the chemical examiner against the petitioner. He further submits that petitioner was involved in a case at the instance of one Ghulam Haider with whom the petitioner was in litigation. He further maintains that chemical examiner has sent back the envelopes containing swabs to the police station which were sent back after removing the objections to the chemical examiner as evident from statement of PW 2 Mumtaz Akhtar, therefore, report of chemical examiner does not furnish any corroboration in such situation. He sums up his arguments that evidence which had come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. More so, the defence version has not been kept in juxta position which has been substantiated on the basis of documentary evidence.
The learned counsel for the complainant supported the impugned judgment.
The learned Deputy Prosecutor General Punjab submitted that both the Courts below had convicted the petitioner after proper appreciation of evidence.
We have considered the submissions made by counsel for the parties and perused the record. All the contentions raised by the learned counsel for the petitioner are exactly the same which were raised by the learned counsel for the petitioner before the learned Federal Shariat Court and were rejected with cogent reasons as evident from paragraphs 8 to 21 of the impugned judgment. However, in the interest of justice and fair play, we have also re-examined the evidence on record, we do not find any infirmity or illegality in the impugned judgment. The learned Federal Shariat Court had re-appraised the evidence and upheld the conviction awarded by the trial Court to the petitioner. All the prosecution witnesses have made statements in line with each other. The learned counsel has tried to point out some discrepancies in their statements but they are all extremely insignificant. None of the discrepancies or any variation could be pointed out regarding any material aspect of the case. The discrepancies pointed out by the learned counsel all pertain to extraneous details of the case. None of them in any manner reflects on the truthfulness of the prosecution version. The defence evidence neither appeals to reason nor appears to be truthful. All the pieces of evidence taken together proved beyond any doubt that the petitioner comitted the offence. Both the Courts below neither omitted from consideration any evidence nor mis-read any material evidence on record while recording conviction of the petitioner. The contention of the learned counsel for the petitioner that doctor has not given his opinion has no force. The relevant portion, of the statement of examination in chief and cross examination is reproduced hereunder:--
Examination in Chief:
"The anal and parianal region, there was no specific mark of violance. Any how the anus somewhat dilated. On dilating the anal sphincter the inner mucousa is ruptured. The rupture was verticle. On the upper margin of anus which was 3/4 cm in length, there was slight oozing of blood, from ruptured mucousa."
Cross examination:
"It is correct that after rupture of mucousa if bleeding starts then it came to an end within one hour. After about 10 minutes of the rupture bleeding came to an end and also the healing process starts within a period of one hour. It is correct that on dilating the rupture again that rupture starts to bleed. The victim was brought to me at about 10.15 p.m. An hour consumed in medical examination of the victim as well as other process."
(the under lines are ours)
Anal: Pertaining to the anus. (Book Medico-legal dictionary by Dr. M.H. Cheema and Pir S.A. Rashid).
Sphincter: A circular muscle, the office of which is to close certain natural orifices. (Book Medico-legal dictionary by Dr. M.H. Cheema and Pir S.A. Rashid).
Sodomy: This means action of a male person attempting to obtain sexual gratification, by means of the anus of a human being, man or woman including his wife.
..... For the purpose of law, mere penetration is enough, emission of semen is not necessary. (Book Medical Jurisprudence and Toxicology by Dr. S. Saddiq Husain).
"The offence consists of penetration by the penis into the anus, and the merest penetration suffices to establish the offence. Proof of ejaculation is not necessary for conviction".
The report of chemical examiner is also positive. Both the Courts below have thoroughly considered the evidence on record and finally convicted and sentenced the petitioner. It is a settled law that this Court does not, normally, interefere in the concurrent conclusions arrived at by the Courts below while exercising constitutional power as law laid down by this Court in Noora's case (PLD 1973 SC 469).
For what has been discussed above, this petition has no merit and the same is dismissed. Leave refused.
(Anwar Saeed Sheikh) Leave refused.
PLJ 2007 SC 472
[Shariat Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, (Chairman), Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud, Dr. Rashid Ahmed Jullundhari, JJ.
BINYAMIN @ KHARI and 2 others--Petitioners
versus
STATE--Respondent
J.Sh.P. Nos. 30, 57 & 56(s) of 2005, decided on 29.11.2006.
(On appeal from the Judgment dated 3.1.2005 passed by the Federal Shariat Court, Lahore Bench, in Crl. A. No. 317/L/2001, J.Crl. A. No. 220/L/2003 and J.Crl. A. No. 227/L/2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302/34--Constitution of Pakistan, 1973, Art.
203-F--Leave to appeal--Conviction and sentence recorded against accused--Appeal was dismissed--Assailed--Circumstantial evidence--Double presumption--Courts blow believed statement of PWs that deceased was seen lastly with accused by them--Courts below had believed prosecution story qua recovery of dead body from school and also believed medical evidence--Prosecution has heavily relied upon departure evidence' andlast seen evidence'--Such pieces of evidence are normally considered as weak evidence yet capital punishment can be awarded if an un-broken chain of circumstances from stage of last seen evidence till death of victim is established by conclusive evidence--There is a double presumption of last seen evidence consisting of departure and lastly seen which was duly corroborated with pieces of evidence on record in shape of recovery of dead body and medical evidence which were believed by Courts below in impugned judgment--Capital punishment can be awarded on basis of circumstantial evidence subject to condition that it connects accused person with offence--Since long circumstantial evidence is one of recognized mode to find out guilt or innocence of accused person--Courts below have given concurrent findings of fact after proper appreciation of evidence qua guilt of petitioners--Supreme
Court does not, normally, interfere in concurrent conclusions arrived at by
Courts below while exercising constitutional power--Leave refused.
[Pp. 474 & 475] A & B
1996 SCMR 188, 1998 SCMR 2669 and PLD 1996 SC 305, ref.
The Holy Book of Quran Sura-e-Yousif verse Nos. 26, 27 & 28, rel.
Mr. Rafaqat Hussain Shah, ASC for Petitioners (in all cases).
Nemo for State (in all cases).
Date of hearing: 29.11.2006.
Judgment
Ch. Ijaz Ahmed, J.--We intend to decide the captioned petitions by one consolidated judgment arising out of the same impugned judgment of Federal Shariat Court wherein appeals filed by the petitioners against their conviction were dismissed.
"On the preceding night (of the day of registration of the case), at about 7.00 p.m., complainant Dost Muhammad was present at his house in Chak No. 217/RB alongwith his family members when there came at the house accused Younis alias Bana, Jaggu and Binyamin alias Khari and took away his son Asif Ali (10-11) on the pretext of playing. When it was too late for Asif Ali to return home, the complainant and his brother Khadim Hussain (PW-10), getting worried, set out to search for him. During that course, they came across Muhammad Yousaf'(PW-9) at bus stop of the Chak who told them having seen Asif Ali in the company of the three accused. No clue of Asif Ali could be available. It was eventually in the following morning at about 8.00 a.m. when information was received that the dead body of Asif Ali was lying in a room of Government Boys Primary School of the Chak. Thereon the complainant, his brother Khadim Hussain and Muhammad Yousaf PWs went at the spot and found Asif Ali lying there dead. Statedly the kid was murdered by all the three accused without any justification."
After investigation, the investigating agency submitted challan before the competent Court. The learned trial Court completed the legal formalities such as framing of charge, recording of evidence and statement of accused. The learned Sessions Judge Faisalabad vide its judgment dated 17.9.2001 convicted the petitioners under Section 302(b) PPC and sentenced them imprisonment for life each with compensation of Rs. 50000/- each to the L.Rs of the deceased in accordance with their legal shares or in default of payment of compensation to further suffer six months R.I. with benefit of Section 382-B Cr.P.C. Petitioners being aggrieved filed Crl. Appeals before the Federal Shariat Court which were dismissed vide impugned judgment as mentioned above. Hence these petitions.
The learned counsel for the petitioners submits that both the Courts below have erred in law to convict the petitioners on the basis of circumstantial evidence in the shape of last seen which is always considered as a weak type of evidence. He further submits that the occurrence was unseen. He further submits that dead body was. recovered from the school which is at a distance of 40 feet from the house of the complainant. This fact was not considered by both the Courts below in its true perspective. He further submits that both the Courts below had erred in law to observe that medical evidence corroborated the evidence of the last seen. He further maintains that there is political groups in the village in question. Petitioners are involved in a case under the direction of Ahmad who is opponent of Hussain Lara as Younis alias Banna and Jaggu alias Jagga are servants of Hussain Lara. He further submits that this fact was admitted by Dost Muhammad PW-8 in his cross examination, therefore, both the Courts below were erred in law to dis-card defence plea.
We have considered the submissions made by counsel for the petitioners and have perused the record. All the contentions raised before us are exactly the same which were raised before the learned Federal Shariat Court and were rejected with cogent reasons as evident from paragraphs 15 to 17 of the impugned judgment. Both the Courts below have extensively gone through the entire evidence with a positive conclusion that the prosecution has proved its case against the petitioners and there is enough evidence to connect commission of crime with the petitioners. It is an admitted fact that father of deceased PW-8 Dost Muhammad had seen the deceased Asif Ali his son at the time of his departure from the house alongwith the petitioners. Muhammad Younis PW-9 had also seen the deceased Asif Ali alongwith the petitioners at Bus stop heading towards the school. Both these witnesses had faced lengthy cross-examination but the defence failed to shake their veracity. Both the prosecution witnesses have made statements in line with each other. It is pertinent to mention here that both the Courts below after proper appreciation of evidence on record believed the statement of departure as stated by father of the deceased PW-8 and deceased was seen lastly with the petitioners by Muhammad Yousif
PW-9 with cogent reasons. Both the Courts below had believed the prosecution story qua the recovery of the dead body from the school and also believed the medical evidence. It is pertinent to mention here that in the present case, prosecution has heavily relied upon the following pieces of evidence:--
(i) Departure evidence;
(ii) Last seen evidence;
It means in case the circumstantial evidence appeals to logic and reason then it is sufficient piece of evidence to connect the accused with the commission of offence. Both the Courts below have given concurrent findings of fact after proper appreciation of evidence qua the guilt of the petitioners. This Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising constitutional power.
(Anwar Saeed Sheikh) Leave refused.
PLJ 2007 SC 476
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal, (Chairman), Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud and
Dr. Rashid Ahmed Jullundhari, JJ.
GUL SADBAR--Appellant
versus
MALIK-UD-DIN and another--Respondents
Crl. A. No. 7(S) of 2004, decided on 17.11.2006.
(On appeal from the judgment dated 2.4.2002 of the Federal Shariat Court, Islamabad passed in Crl. A. No. 193/1 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Offence of Zina (Enforcement of Hudood) Ordinance, 1979 S. 10(3)--Murder after commission of zina--Conviction and sentence recorded against accused by trial Court--Appellate Court acquitted--Assailed--Appreciation of evidence--Circumstantial evidence--Unnatural and unbelievable facts--Complainant family has a blood feud with discharged accused persons back in village and because of such enmity complainant family had to leave their village--Gravity of situation would no doubt demand that if discharged accused alongwith his sons and companion came all way from village and succeeded in even entering house of his run-away enemies, they would certainly attack male members with whom they had enmity--It does not appeal to reason that they would kill only lady in house and would run-away depsite fact that complainant and his brother were available as unarmed easy target--What is depicted by complainant in FIR is not only unnatural and unbelievable but is utterly beyond cultural norms of enmity in area. [P. 479] A
Extra-Judicial Confession--
----Confession sounds quite natural--Validity--The accused was left with no choice but to seek refuge through amicable settlement; hence the confession before PWs sounds quite natural. [P. 479] B
Related Witnesses--
----Appreciation of evidence--PWs was closely related to complainant/respondent, being younger brother-in-law of his deceased sister and wife of PW happens to be real sister of accused--No husband would at all feel convenient in bringing about a capital charge against real brother of his own wife unless it is absolutely true. [P. 480] C
Circumstantial Evidence--
----All circumstances point towards respondent/accused alone and do not admit of any other hypothesis indicative of his innocence--Trial Court has rightly appreciated evidence on record and Federal Shariat Court has fallen into error by holding otherwise--As matter is based purely on circumstantial evidence, so normal penalty of death would not be in interest of justice. [P. 480] D
Mr. S. Zafar Ali Shah, ASC for Appellant.
Mr. Arshad Ali Chaudhry, ASC/AOR with Respondent No. 1 in person.
Mr. Munir Sadiq, Deputy Prosecutor General, Punjab for Respondent No. 2 for State.
Date of hearing: 17.11.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Malik-ud-din, alongwith his father, brothers and a sister-in-law named Mst. Hassan Zari (wife of his elder brother Nawab Din) had taken up residence in new abadi Labour Colony, satra meel, District Islamabad. On the night of occurrence (27.4.1997), the father alongwith his two sons Malik-ud-din, Ajab Din and Hassan Zari, the daughter-in-law, were present in the house. Hassan Zari after completing her chores had left the kitchen for the room where she slept. She was passing through Courtyard when a report of fire shot was heard. Malik-ud-din and his younger brother Ajab Din rushed towards the Courtyard where there was one Kata Baz armed with a .30 bore pistol alongwith his two sons Mir Baz and Mir Nawaz and another Hurmat Khan, who all belonged to village Gundhab, Tehsil and District Nowshera. The family aforesaid also originally belonged to the same village.
With the report of fire shot, Mst. Hassan Zari made a cry and fell to the ground. Seeing the two brothers, all the assailants ran away from the spot. On the uproar of the inmates of the house many people from the neighbourhood got attracted to the spot. Mst. Hassan Zari succumbed to the only injury caused on the left side of her neck. Old enmity with the family of Kata Baz aforesaid is alleged to be the motive and also that due to such enmity the victim family was forced to abandon their village. Malik-ud-din had lodged the report before the police to the above effect on the spot when the police arrived there in response to an information on telephone.
All preliminary steps towards necessary investigation were taken up by the police. The husband namely Nawab Din of the deceased was said to be at Karachi but it appears from the evidence that he too was an absconder in connection with some case back in the village. The investigation officer went to the native village of the deceased where he had extensive dialogue with the parents and brothers of Mst. Hassan Zari. The aforesaid relatives strongly suspected Malik-ud-din complainant for having committed murder of Mst. Hassan Zari after commission of rape.
The accused Kata Baz and one another were, of course, arrested in the case but subsequently discharged. Malik-ud-din complainant was considered as an accused. Various coercive measures under the law were adopted to procure his attendance but he went into hiding. During such pressure Malik-ud-din is said to have had contacted Hassan Khan (PW-13) so as to effect a compromise between him and the aggrieved family. He confessed his guilt before Hassan Khan. Hassan Khan contacted and summoned his friend Gul Sadbar, the real brother of the deceased and arranged a meeting, in which also, Malik-ud-din confessed his guilt and begged forgiveness. Both, Gul Sadbar and Hassan Khan produced accused Malik-ud-din before the investigating officer of Police Station Bhara Kahu, Islamabad.
After trial, a learned Additional Sessions Judge Islamabad vide his judgment dated 4.11.2000 convicted Malik-ud-din accused under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him. to imprisonment for ten years etc. for committing the murder of Mst. Hassan Zari, he was further convicted under Section 302(b) PPC and sentenced to death. He filed an appeal before the learned Federal Shariat Court who vide judgment dated 2.4.2002 acquitted him of all charges. Gul Sadbar, the real brother of the deceased has filed this appeal against Malik-ud-din's acquittal, where leave was granted by this Court on 13.10.2004 to reappraise the evidence in its true perspective.
It is a case exclusively based on circumstantial evidence. All the circumstances taken together point only towards Malik-ud-din, the complainant. It would be convenient to commence in the order in which things occurred.
It is admitted in the FIR as well as in the entire evidence that the complainant family has a blood feud with Kata Baz, etc. back in the village. It is also admitted that because of such enmity the complainant family had to leave their village. The gravity of the situation would no doubt demand that if Kata Baz alongwith his two sons and another companion came all the way from the village to satra meel and succeeded in even entering the house of his run-away enemies, they would certainly attack the male members with whom they had the enmity. It does not appeal to reason that they would kill Mst. Hassan Zari, the only lady in the house and would run-away despite the fact that Malik-ud-din and his brother Ajab Din were available as unarmed easy target. What is depicted by the complainant in the FIR is not only unnatural and unbelievable but is utterly beyond the cultural norms of enmity in the area. Lodging of an absolutely false FIR is a point towards the guilt of complainant Malik-ud-Din.
When during and as a result of investigation, the police got closer and closer to the respondent Malik-ud-din, he made himself scares to the police and even did not contact the police in connection with the progress of his own complaint. This is another circumstance indicative of his guilty mind.
When the net got shrunk around him, he really felt concerned about it to the extent of getting scared. It was all the more serious in the wake of his family's deep rooted blood feud with the family of Kata Baz in which connection his elder brother Nawab Din was an absconder. Feeling totally isolated, when his fears became worst confounded, he was left with the only choice to seek refuge through amicable settlement. His contacting Hassan Khan (PW-13) and through him Gul Sadbar (PW-7), the real brother of the deceased, was but most natural and the only way to survival. Though extra judicial confessions never sound natural in majority of cases yet in the instant case the extra judicial confession, in order to achieve settlement, was the only way out. We observe that such confession before Hassan Khan (PW-13) and Gul Sadbar (PW-7) sounds quite natural. It is further supported by the fact, abundantly available on record, that Hassan Khan and Gul Sadbar, as a result of such extra judicial confession, had produced Malik-ud-din before satra meel police.
One might inculcate doubt that Gul Sadbar happens to falsely implicate Malik-ud-din. This is likely to happen only when there is some enmity between the two. In the present case there is no such like possibility or even probability at all. Gul Sadbar is closely related to Malik-ud-din, being the younger brother-in-law of his deceased sister. The families have cordial relationship and above all Mst. Gul Bano, wife of Gul Sadbar happens to be the real sister of Malik-ud-din accused. No husband would at all feel convenient in bringing about a capital charge against the real brother of his own wife unless it is absolutely true. This circumstance, further lends support to the prosecution story.
The police has recovered a .30 bore pistol being a weapon of offence at the instance of accused Malik-ud-din, The trend of cross-examination and the stance taken by the accused is to the effect that such pistol was the licensed pistol of his elder brother Ala-ud-din. Even if it is so, which it is not, there is no problem in using even the licensed or unlicensed pistol of his brother. No such license has ever been produced.
Ala-ud-din was produced in defence. He has attempted to absolve the accused Malik-ud-din but he was never an eye-witness so as to be certain of his brother's innocence. He himself was in service posted at Chamman, Balochistan. Claims title to the pistol but till today he never even asked for superdari thereof despite the fact, as alleged, that it was a service license. This discussion almost attains unnecessary academic dimensions because, as observed earlier, once an offender makes up his mind to commit an offence like murder, it is altogether immaterial for him whether the weapon belongs to him or not or whether it is licensed one or not.
The husband of Mst. Hassan Zari, in the instant case, because of his being an absconder, did not come to the forefront. Anyhow he is said to have attacked accused Malik-ud-din by firing, who escaped death yet received injury. Dr. Abdul Naeem (PW-2) from Begum Jan Hospital, Lehtrar Road proves his having received treatment for such injury. The accused claimed all that to be fake but had it not been true, he could have produced his brother Nawab Din in defence like he examined Ala-ud-din and Ajab Din. To save his brother from the gallows and to appear as his witness would not have been a bargain of loss at the cost of his surrender.
We are of the firm view that all the circumstances taken together from a chain of events that point towards Malik-ud-din accused alone and do not admit of any other hypothesis indicative of his innocence. The learned Additional Sessions Judge, Islamabad has rightly appreciated evidence on record and the learned Federal Shariat Court has fallen into error by holding otherwise. As the matter is based purely on circumstantial evidence, we hold that the normal penalty of death would not be in the interest of justice.
So far as the offence under Section 10(3) of the Ordinance of 1979 is concerned, no doubt vaginal swabs of the deceased are stained with semen but as the semen can be retained for a reasonable duration, one cannot conclude that only and only the accused was responsible for it. Under this charge he is extended the benefit of doubt.
The above are the reasons on the basis of which we have acquitted the accused through our short order dated 17.11.2006 and, on acceptance of the appeal of Gul Sadbar, had convicted Malik-ud-din respondent, under Section 302(b) PPC and sentenced him to imprisonment for life with a compensation of Rs. 50,000/- for the legal heirs of the deceased, in default of payment whereof, the accused was to undergo simple imprisonment for six months in addition to the other mode of recovery mentioned in the section itself.
(Anwar Saeed Sheikh) Order accordingly.
PLJ 2007 SC 481
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Saiyed Saeed Ashhad, J.
MUHAMMAD RAFIQUE and others--Appellants
versus
MUHAMMAD RAMZAN and others--Respondents
Crl. A. Nos. 215 & 216 of 2005, decided on 17.11.2006.
(On appeal from the Judgment dated 29.11.2004 passed by Lahore High Court, Lahore in Crl. A. No. 1546/2000).
Evidence--
----Recorded statement was not signed by Presiding Officer--Conduct of Presiding Officer--Legality--Evidence was recorded by reader in absence of Presiding Officer--Validity--Evidence/statement of witness so recorded was not signed by Presiding Officer--Conduct of Presiding Officer and manner in which proceedings were conducted renders doubtful the legality of evidence. [P. 487] B
Evidence--
----Evidence was recorded by reader--Validity--Evidence was not recorded by Presiding Officer as it was recorded by reader--Held: Recording of evidence by reader would not suffer from any legal defect if same was done in Court on the dictation of Presiding Officer.
[P. 487] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 356(1)(3)(4)--Provision of--Illegality--Vitiating trial--Necessity of verifying memorandum--Failure to put signatures on statement deposition--Validity--Failure of Presiding Officer to put his signatures on statement/deposition has rendered such statement as without having any legal backing and ought to have been ruled out of consideration. [P. 488] E
Evidence--
----Facts and circumstances--If evidence was found to be meritorious and supporting prosecution case, fact remained that in absence of evidence on which FIR accused persons were challaned, prosecution case would not stand proved beyond any reasonable doubt. [P. 488] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 356--Principle--Non-signing of depositions/statements of witnesses and non-recording of same in presence of Presiding Officer--Contention--Legality of--Sheets containing deposition/statement of witnesses not bearing signature of Presiding Officer of trial Court in token of their authenticity, and cuttings, interpolation not initialled or signed by Presiding Officer would amount to rendering such statements/depositions unreliable and trial on basis of such statements/depositions would be deemed to be contrary to law and no trial at all being violative of express provisions of S. 356 Cr.P.C.
[P. 488] D
PLD 1950 Baghdad-ul-Jadeed 96 & PLD 1950 Lahore 274, ref.
Mr. Mansoor-ur-Rehman, ASC for Appellants (in Crl. A. # 215/2005).
Sardar Shakoor Ahmed, ASC for Appellants (in Crl. A. # 215/2005).
Mr. Muhammad Ilyas Siddiqui, ASC & M.A. Zaidi, AOR for Complainant.
Mr. Dil Muhammad Tarar, ASC for State.
Date of hearing: 17.11.2006.
Judgment
Saiyed Saeed Ashhad, J.--These Criminal Appeals have been filed against the judgment of Lahore High Court, Lahore dated 29.11.2004 in Criminal Appeal No. 1546 of 2000 whereby acquittal of the appellants was set aside and they were convicted under Sections 419/420/468/471 PPC and each one of them was sentenced to rigorous imprisonment for 5 years and fine of Rs. 20,000/- and Rs. 10,000/- each under each of the afore-mentioned sections.
Feeling aggrieved and dissatisfied with their conviction and sentences they filed Criminal Petitions for Leave to Appeal Nos. 6-L and 46-L of 2005. Leave to appeal was granted vide order dated 14.7.2005 to reappraise the evidence as the judgments of two Courts below were at variance.
We have heard M/s. Mansoor-ur-Rehman, ASC and Sardar Shakoor Ahmed, ASC in both the appeals on behalf of the appellants and Mr. Muhammad Ilyas Siddiqui, ASC on behalf of the complainant. Chaudhry Dil Muhammad Tarar represented the State and supported the judgment of Lahore High Court.
M/s. Mansoor-ur-Rehman and Sardar Shakoor Ahmed appearing on behalf of the appellants vehemently assailed the judgment of the High Court and submitted that it was absolutely in violation of the principles laid down by this Court relating to interference by the appellate Court in a judgment of acquittal. They submitted that after having been acquitted by the trial Court the appellants have acquired double presumption of innocence and the judgment of acquittal could be set aside only if there is some illegality, jurisdictional error, misapplication or misconstruing any provision of law or that the finding of the acquittal was absolutely perverse and contrary to the prosecution evidence brought on record. They further submitted that it is an established principle that if on the basis of prosecution evidence there is possibility of taking another view than the view taken by the trial Court then it would not be a sufficient ground for interfering with the judgment of acquittal. They strenuously submitted that the High Court completely ignored a very pertinent fact mat the evidence of complainant Barkat Ali S/o Meher Din was not recorded by the Presiding Officer nor was signed by him and it would be deemed that complainant Barkat Ali had not been examined.
Mr. Dil Muhammad Tarar, ASC appearing on behalf of the State supported the impugned judgment and stated that the same did not suffer from illegality or irregularity warranting interference by the High Court in exercise of its appellate jurisdiction.
The Judicial Magistrate after thoroughly examining the evidence adduced by the prosecution as well as by the defence came to the conclusion that the prosecution failed to prove the guilt of the appellants beyond any shadow of doubt and they were entitled to be acquitted, accordingly, he ordered acquittal of the appellants. It will be useful to reproduce the relevant paras from the judgment of learned Judicial Magistrate dealing with the evidence of the parties and other material and important aspects of the case as under:--
"(i) After close of evidence of both the parties 1 have heard the arguments respectively advanced by them and gone through the record as well as the evidence recorded. The complainant deposed that he had sold land measuring ten marla to Rafiq but incorrect khasra number was written in the registered sale-deed and thus mutation could not be entered in the revenue record and he remained owner of land measuring 23 marla in the record. He also deposed that Muhammad Rafiq filed civil suit against him that he had sold his land to some one else and the correction of khasra number was made and mutation in favour of Rafiq was entered under the orders of the Court, This own deposition of the complainant reflects his conduct. If it was more incorrect writing of khasra number in the document it would have been corrected without any litigation if the complainant would have been with clean hands. Muhammad Rafiq had to approach the Court in this matter. The complainant alleged that general power of attorney was not executed buy him in favour of Muhammad Rafiq son of Boota. It is clarified that this is some other Muhammad Rafiq and not Muhammad Rafiq to whom land measuring ten marla was sold as discussed above. The alleged forged general power of attorney from the complainant in favour of Muhammad Rafiq is Ex.PB, which was executed through Shabbir Hussain Ahl-e-Commission PW-6. This document was sent to hand writing expert for comparison of thumb-impression taking the specimen thumb-impressions of the complainant as well as of the accused Salamat Ali and Barkat Ali son of Siraj Din. The report of the hand writing expert which is supported by deposition of the Finger print Expert PW-3 Muhammad Idress SI leads to the conclusion that these thumb-impressions are affixed in the name of the complainant and are different from his specimen thumb-impression but at the same time these thumb-impressions an also different from Barkat Ali son of Siraj Din and Salamat Ali. The specimen thumb-impression of Barkat Ali son of Siraj Din and Salamat Ali have been declared identical which were fixed under their own respective names. Therefore as per report of the Expert it cannot be concluded that Barkat Ali son of Siraj Din affixed his thumb-impression as the executant of this document. Prima facie their thumb-impression appear to have been affixed as identifiers.
(ii) There is no corroboration to the deposition of the complainant that Barkat son of Siraj Din acted in his place as executant. The report of the Expert only shows that the thumb-impressions affixed on the power of attorney were not of the complainant but it does not prove that the thumb-impressions were affixed by Barkat Ali son of Siraj Din as executant appearing in place of the real person. Mureed Hussain Advocate appeared in the witness box as PW.5. He is the person who got executed the alleged registered sale deed Ex.P-2 and P.3 as Ahl-e-Commission. He deposed that the documents were executed through general power of attorney and that the actual owner Barkat son of Mehr Ali complainant was also present at the time of execution of the registered deeds. He is the prosecution witness and of course his deposition cannot be termed as false or incorrect as regards the version of the complainant. His deposition prima facie proves that the alleged disputed sale deeds were executed with the consent of the complainant Barkat Ali son of Mehr Ali and when the general power of attorney is seen in the context that the sale deeds were executed in his presence, it would be concluded that the prosecution story about the forgery of general power of attorney is doubtful.
(iii) The complainant had filed two civil suits one against the Latif and Muhammad Rafiq and the other against Labha and Muhammad Rafiq. From the evidence adduced by the parties as discussed above it has revealed that both these suits were decreed on the basis of compromise and thus decrees were consent decrees. Therefore it cannot be concluded that the decrees were passed in favour of the complainant on the ground that the documents were forged but on the other hand it appears that under some settlement the accused had got passed the said decrees in favour of the complainant but subsequently the complainant party did not fulfill the commitment. So far as Rana Talib Hussain accused is concerned, his role has been stated that he was ring leader of the group. The defence version adopted by him in quite different. His version is that he paid Rs. 94000/- to the complainant as sale price of the land measuring 23 marla. DW.2 Javed ur Rashid Advocate deposed that he paid the amount to the complainant receiving from Rana Talib Husasin and he with his own hand writing wrote the receipt in this regard. Similarly he deposed that agreement to sell as well as irrevocable power of attorney from the complainant in favour of Rana Talib Hussain were written in his chamber on the same day. Nothing from the complainant has come on record to prove that these documents are not genuine. It is also observed that when civil suits were filed by the complaint as aforesaid he did not make Rana Talib Hussain as party in the said suits. Prima facie it can be concluded from the trial that the conduct of the complainant was not straight and bonafide. He had been transacting the sale of his same land with various persons and consequently they were forced to be involved in litigation civil as well as criminal."
Learned Judicial Magistrate on consideration, perusal and appraisal of the prosecution evidence concluded that the prosecution had failed to establish that the power of attorney, purported to have been executed by complainant Barkat Ali was allegedly forged or fabricated by the accused persons by fraud and impersonation and the contention that the said power of attorney was signed or thumb-impressed in the name of Barkat Ali son of Mehr Ali by some other person is absolutely baseless and categorically held that complainant Barkat Ali son of Mehr Ali had executed a valid and proper power of attorney which was duly attested by the witnesses and the contents whereof were written by the Advocates. Learned Magistrate had also taken into consideration the statement of the advocate who had written the said power of attorney and in whose presence the executant and the witnesses signed and thumb-impressed the same and who also stated that at the time of execution of the sale deed by the attorney, the executant namely complainant Barkat Ali was present. An other circumstance which prompted learned Judicial Magistrate to conclude that the power of attorney was a properly and validly executed by complainant Barkat Ali is that complainant Barkat Ali had filed two suits against the appellants for cancellation of the sale deeds and declaration that the power of attorney was a forged and fabricated document but instead of proceedings with the suit and getting them decided on merits he settled the dispute/compromised the matter with the defendants/appellants and withdrew the suits.
The High Court after examination, perusal and appraisal of the evidence observed that learned Judicial Magistrate had misread and ignored material prosecution evidence as a result of which he erroneously concluded that complainant Barkat Ali had executed a proper and valid power of attorney in favour of appellants and referred to the statements of the prosecution witnesses on the basis of which it came to the conclusion that complainant Barkat Ali son of Mehr Ali had never executed the power of attorney in question and it was somebody else claiming and impersonating himself to be Barkat Ali s/o Mehr Ali had signed/thumb-impressed the power of attorney. High Court further observed that learned Judicial Magistrate had committed a grave error in not differentiating between complainant Barkat Ali s/o Mehr Ali and another Barkat Ali s/o Siraj Din who by cheating impersonated himself as Barkat Ali s/o Mehr Ali. For coming to the above conclusion learned Single Judge of the High Court relied emphatically on the alleged error or inadvertence of the Judicial Magistrate in referring the complainant as Barkat Ali S/o Siraj Din instead of Barkat Ali S/o Mehr Ali and he concluded that actually the trial Court while referring to complainant Barkat Ali s/o Mehr Ali was in reality referring to Barkat Ali s/o Siraj Din and on the basis of such wrongful assumption had came to the conclusion that the power of attorney was a proper, valid and legal document having been executed by Barkat Ali s/o Mehr Ali which did not in any manner disprove the allegation of complainant Barkat Ali s/o Mehr Ali that he never executed power of attorney and that it was a forged, fabricated and manipulated document executed by some person impersonating himself as Barkat Ali s/o Mehr Ali. In view of the above observations, the High Court came to the conclusion that the prosecution had succeeded in establishing its case against the appellants and convicted them as stated above.
There is no denial of the fact that evidence of complainant Barkat Ali s/o Mehr Ali was not recorded by the Presiding Officer as it was recorded by his Reader. Recording of evidence of a prosecution witness by the Reader would not suffer from any legal defect if the same was done in Court on the dictation of the Presiding Officer. However, there is no material on record to substantiate that the evidence of Barkat Ali s/o Mehr Ali was recorded by the reader on the dictation of the Presiding Officer. In the circumstances the possibility as stated by Mr. Mansoor-ur-Rehman, ASC that the evidence of complainant Barkat Ali s/o Mehr Ali was recorded by the reader in the office in the absence of the Presiding Officer cannot be brushed aside. It is also a fact, not denied by the prosecution, that the evidence/statement of the witness so recorded was not signed by the Presiding Officer. The above conduct of the Presiding Officer and the manner in which the proceedings were conducted also renders doubtful the legality of evidence of other prosecution witnesses. This aspect seems to have completely escaped the attention of the learned Judge of the High Court while deciding the appeal filed by the State notwithstanding the fact that the evidence of other prosecution witnesses especially of the two Advocates who were associated with the preparation and execution of the power of attorney in question, if read minutely would appear to be not favourable to the prosecution so as to establish the guilt of the appellants. Notwithstanding the above facts and circumstances, even if there evidence is found to be meritorious and supporting the prosecuting case, the fact remains that in the absence of evidence of complainant Barkat Ali on whose FIR the accused persons were challaned, the prosecution case would not stand proved beyond any reasonable doubt.
It was argued on behalf of the complainant that it would not be proper to hold that the complainant Barkat Ali was not examined there is no evidence of the complainant on record on the ground of non-signing of his deposition/statement by the Presiding Officer and that it should not be ignored from consideration. This contention is without any substance in view of the settled principle that sheets containing deposition/statement of witnesses not bearing signatures of Presiding Officer of trial Court in token of their authenticity, and cuttings, interpolation not initialed or signed by the Presiding Officer would amount to rendering such statements/depositions unreliable and the trial on the basis of such statements/depositions would be deemed to be contrary to law and no trial at all being violative of express provisions of Section 356 Cr.P.C. laying the mode and essential for recording of evidence, thus vitiating the same. It will be advantageous to refer to some of the decided cases on the subject of non-signing of depositions/statements of the witnesses and non-recording of the same in the presence of Presiding officer.
In the case of Abdur Rehman Vs. Allah Diwaya (PLD 1950 Baghdad-ul-Jadid 96) it was held that the evidence of the witnesses not recorded in compliance of the provisions of clauses (1), (3) and 4 of Section 356 Cr.P.C. would be an illegality vitiating the trial debarring the Presiding Officer/Judge from taking into consideration such evidence for recording guilt of the accused persons. In the case of Muhammad Sarwar Vs. Khuda Bux (PLD 1950 Lahore 274) the Lahore High Court pronounced that non-compliance of provisions of Section 356 Cr.P.C. relating to recording and signing of statements/depositions of witnesses and the case papers would not be curable warranting the proceedings to be set aside and ordering re-trial.
From the pronouncements made in the aforesaid cited cases it is to be observed that failure of the Presiding Officer/Judicial Magistrate to put his signatures on the statement/deposition of complainant Barkat Ali has rendered such statement/deposition of complainant Barkat Ali as without having any legal backing and the same ought to have been ruled out of consideration. Placing reliance thereupon by the Judicial Magistrate though not warranted by law, yet as he had acquitted the appellants it did not result in causing any injustice to the appellants and prejudice to the prosecution. However, great injustice was done to the appellants by the High Court by placing maximum reliance on the statement/deposition of complainant Barkat Ali, which in the eye of law was not warranted and would be deemed to be a non-entity. In view of the above, their conviction by the High Court was not warranted and the same cannot be sustained.
It may be pointed out that complainant Barkat Ali died during proceedings before the Judicial Magistrate and their is no possibility of retrial. It is also pointed out that in the facts and circumstances of the case the allegations of the prosecution that the appellant had intentionally avoided cross examination of complainant Barkat Ali during his lifetime as they apprehended that during the course of cross examination they would not be able to distort and rebut the version given by him in his examination in chief which would have strengthened the prosecution case, it is to be observed that there is every possibility that the appellants had intentionally and deliberately avoided to cross-examine complainant Barkat Ali not due to the fear and apprehension that they would not succeed in rebutting or shattering the evidence of the complainant but because they or their counsel was aware of the grave and serious illegality in recording of his statement/ deposition and did not want to subject him to cross-examination so as to enable the prosecution to argue that having subjected him to cross-examination they would not be permitted to raise an objection relative to the validity and legality of his statement/deposition.
For the foregoing facts, discussion and reasons there is not the least doubt that the judgment of Lahore High Court in setting the judgment of acquittal of the appellants and convicting them is not based on proper appreciation and appraisal of the evidence, these appeals are allowed and the impugned judgment of the High Court dated 29.11.2004 is set aside and that of the trial Court is restored. The appellants shall be released forthwith if not required in any other case.
These are the reasons of our short order of the even date.
(Rafaqat Ali Sohal) Appeal allowed.
PLJ 2007 SC 489
[Shariat Appellate Jurisdiction]
Present: Javed Iqbal (Chairman), Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud and
Dr. Rashid Ahmed Jullundhari, JJ.
ISRAR ALI--Appellant
versus
STATE--Respondent
Crl. A. No. 15(s) of 2003, decided on 23.11.2006.
(On appeal from the judgment dated 17.10.2002 passed by the Federal Shariat Court, Lahore Bench, in Criminal Appeal No. 63/L of 2000, Murder Reference No. 1/L of 2001).
Circumstancial Evidence--
----Punishments could be awarded on the circumstantial evidence.
[P. 493] C
Circumstancial Evidence--
----Last seen evidence--Value of--Last seen evidence is a weak type of circumstantial evidence. [P. 494] E
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 12--Pakistan Penal Code, (XLV of 1860), Ss. 377 & 302--Conviction & sentence--Appreciation of evidence--Accused failed to furnish sufficient explanation qua his innocence that the victim had disassociated from him in presence of any independent person--Both Courts believed the statements of last seen witnesses with cogent reasons--Discrepancies pointed out for appellant, all pertaining to extraneous details of the case--Conviction upheld but due to mitigating circumstances death sentence was converted into sentence of life imprisonment. [Pp. 493 & 496] A, B, D, F & G
PLD 1978 SC 21, PLD 1977 SC 515, PLD 1953 FC 214, 1980 SCMR 859, PLD 1990 SC 1172 & PLD 1976 SC 300, ref.
Dr. Muhammad Akmal Saleemi, ASC for Appellant.
Mian Shah Abbas, ASC for Complainant.
Ch. Munir Sadiq, ASC for State.
Date of hearing : 13.11.2006.
Order
Ch. Ijaz Ahmed, J.--The petitioner/appellant has sought leave to appeal against the judgment of the Federal Shariat Court dated 17.10.2002 wherein appeal filed by the appellant/convict against his conviction was dismissed. Necessary facts out of which the present appeal/petition arises are that the appellant is involved in a case FIR No. 608 which was registered at Police Station Muzaffargarh under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under Section 377/302 PPC on 10-10-1999. The facts as mentioned in the FIR are as follows--
"that complainant runs a tea stall at vegetable market Muzaffargarh. According to him, his son Muhammad Ramzan aged about 12/13 years student of 6th class went to attend a Majlis at Darbar Ghareeb Shah in the area of Mauza Talari after returning from school and taking meals. It is further narrated in the FIR that when complainant's son did not return, worried occurred and his search was conducted and on the following day at about 8:00 a.m. the complainant received the information that a dead body of a boy aged 12/13 years were lying at Chah Kotwal Wala and on this information complainant alongwith Ghulam Abbas, his brother, Ashiq Hussain s/o Ghulam Habib and one Mazha Hussain reached that place and they found that it was dead body of Adnan Shah from whose head blood was oozing and string of his shalwar was dis-entangled. Then the complainant lodged the report at the Police Station at 8.50 a.m."
After completing the investigation the challan was submitted before the competent Court. The learned trial Court after completing the legal formalities such as recording of evidence of the prosecution and recording the statement of the convict/accused and heard the arguments of the counsel of the parties. The learned Sessions Judge vide its judgment dated 13-4-2000 convicted and sentenced the petitioner/appellant as follows:--
Name of accused Under Section Sentence
Israr Ali (1) 12 of Zina (EOH) Death sentence and fine of
Ordinance, 1979. Rs. 20,000/- or in default of
payment of fine to further
under one year' R.I.
(2) 337 PPC 7 years' R.I. with a fine of
Rs. 10,000/- or in default of
payment of fine to further
undergo 6 months' R.I.
(3) 302-B PPC Death sentence as Tazeer.
The appellant/petitioner was
also ordered to pay
compensation in the sum of
Rs. 40,000/- to the LRs of
deceased Muhammad Adnan
Shah or in default to payment
of compensation to suffer six
months S.I.
The petitioner/appellant being aggrieved filed Criminal Petition No. 8(S)/2003 before this Court which was fixed before this Court on 18.4.2003. Leave was granted vide order dated 18-4-2003 to ascertain as to whether the offence in this case has been appreciated in consonance with the principles laid down for the appraisal of evidence in criminal cases. Hence the present appeal.
The learned counsel for the appellant submits that the prosecution had failed to prove its case against the appellant beyond any shadow of doubt. The occurrence was unseen and circumstantial evidence was fabricated. He further urges that the last seen evidence is a weak type of evidence and in the present case it was too weak to sustain the conviction as Sadiq Hussain PW-12 and Zafar Iqbal PW-13 were trumped up witnesses and their statements were also discrepant. He further submits that the photographs recovered from the place of occurrence not only offend provisions of Section 103 Cr.P.C. but also had no nexus with the victim and person namely Abdul Hafeez to whom the same pertains was neither associated with the case nor examined at the trial. He further urges that the recovery of the crime pistol was doubtful in view of the discrepant statements of the recovery witnesses. He further submits that Sadiq Hussain PW-12 and Zafar Iqbal PW-13 who had seen the deceased with the convict at that time they were going to city. Therefore prosecution had failed to connect the appellant with the commission of offence. Both the aforesaid witnesses had not furnished sufficient circumstances to be present at the one place and this fact was not considered by the Courts below. He further submits that prosecution had only brought on record last seen evidence which was not corroborated by any other independent piece of evidence. Therefore both the Courts below were not justified to award capital punishment merely on circumstantial evidence. He further submits that appellant was involved in a case as result of sectarian terrorism and this plea was taken specifically by the convict/appellant before the trial Court. Both the Courts below had not considered defence plea.
Learned counsel of the complainant submits that prosecution had brought on record sufficient material to connect the appellant with the commission of offence. The last seen evidence produced by the prosecution through Sadiq Hussain PW-12 and Zafar Iqbal PW-13 were duly corroborated by the following pieces of evidence:--
(1) Photographs recovered at the place of occurrence.
(2) Photographs recovered from the bag of the convict/appellant.
(3) Recovery of weapon of offence was also recovered from the convict.
(4) Medical evidence also corroborated the story of the prosecution.
The learned state counsel has also supported the impugned judgment.
We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record. It is an admitted fact that both the Courts below after proper appreciation of evidence had come to the conclusion that prosecution had proved the case against the appellant by producing two independent witnesses who had seen the victim with the convict/appellant. Appellant had failed to furnish sufficient explanation qua his innocence that the victim dis-associated from him in presence of any independent person. In fact the appellant had failed to furnish any explanation with regard to aforesaid circumstances that victim was not with him or they were dis-associated with each other. Both the Courts below had believed the statement of the last seen witnesses PW-12 and PW-13 with cogent reasons. The learned Federal Shariat Court had taken a lot of pain to re-appraise the evidence and came to the conclusion that convict was seen by PW-12 and PW-13. They were subjected to lengthy cross-examination but defence had failed to shake their veracity. The learned Federal Shariat Court has also observed that defence had failed to cross-examination on material points, therefore, that portions of the examination-in-chief of the said witnesses were admitted by the defence. The recovery of weapon of offence and photographs were believed by the Courts below. It is a settled law that punishments could be awarded on the circumstantial evidence. See Jaffar Ali's case (1998 SCMR 2669). It is pertinent to mention here that the prosecution witnesses have made statement in line with each other. The learned counsel has tried to point out some discrepancies in their statements but they are extremely insignificant. None of the discrepancies in variation could be pointed out regarding any material aspect of the case. The discrepancies pointed out by the learned counsel for the appellant/convict, all pertain to extraneous details of the case. None of them in any manner reflects truthfulness of the prosecution version. In case all the pieces of evidence are put in a juxta position, then prosecution has proved the case against the appellant beyond any shadow of doubt that the appellant/convict had committed the offence, therefore, we do not find any infirmity or illegality to the extent of conviction, therefore, conviction is maintained. However, there are circumstances which were not taken into account by the Courts while awarding capital punishments to the convict/appellant. We are conscious of the fact that this Court is not a clearing house or a corrective forum to revise the sentences passed by competent Courts in criminal cases. It is certainly not the function of this Court to interfere and tinker with legal sentences so awarded. However, if the sentence is found to have been measured fancifully in breach of recognized principles of natural justice, this Court, in the interest of justice and fair play, must intervene. It is an admitted fact that the dead body was seen by the complainant Syed Ashiq Hussain father of the deceased alongwith his brother Ghulam Abbas, Ashiq Hussain s/o Ghulam Habib and one Mazhar Hussain but they did not find any empty or bag near the dead body. The investigating officer PW-15 Muhammad Arshad S.I. had come to the spot after receiving the information from the complainant and after recording the First Information Report who had found bag and empty near the dead body. There were 40/50 persons present at the spot near the dead body before his arrival. He had taken into possession crime empty Ex.P7, a pair of Havai Chappel and photographs vide memos Ex.PH and Ex.PK respectively on 10-10-1999. The appellant was arrested on 5-12-1999 by Khalid Rauf Inspector PW-16 who also took into possession bag Ex.P/3 and in that bag photographs Ex.P4 to 45. It also does not appeal to reason and logic that appellant/convict had kept the photographs in his bag to create the evidence against him which were recovered from him after his arrest on 5.12.1999 as borne out from the statement of PW-15. Crime empty was not sent to the expert immediately after taking into possession and the weapon of offence was recovered from the convict/appellant after his arrest as borne out from the statement of PW-16. PW- 15 Muhammad Arshad had taken possession of Crime empty Ex.P/7 vide memo Ex.PH. on 10-10-1999. His statement is silent to whom he had given the said memo. PW-14 Muhammad Akhtar stated in his examination-in-chief that Muhammad Arshad S.I. handed over to him sealed parcel containing crime empty for safe custody in the Malkhana. This fact was not mentioned in his statement which was recorded by I.O. u/S. 161 Cr.P.C. thrice on 10-10-1999 and 23-10-1999 as evident from cross-examination which is to the following effect:--
"I narrated to the I.O. that parcel containing crime empty was handed over to him by I.O. confronted with Ex.DC where it is not so recorded."
It was also admitted by him in cross-examination that he did not state before the I.O. in his statement Ex.DC that the parcel containing crime empty was handed over to Khadim Hussain PW-4. He also admitted that he did not sent crime empty to expert till 1.12.1999. Khadim Hussain PW-4 stated in examination-in-chief that he received parcel containing empty bullet on 3.11.1999 from Muhammad Akhtar PW-14. He handed over to Muhammad Ramzan for onward transmission in the office of Forensic Science Laboratory. PW-16 Khalid Rauf arrested appellant on 5.12.1999. He also got recovered the pistol from him on his pointation. Thereafter he had handed over pistol to PW-4 Khadim Hussain. This type of recovery of crime empty does not provide strong corroboration qua the prosecution version. Similarly photographs do not corroborate the prosecution version. PW-9 Syed Ashiq Hussain stated in his examination-in-chief that he alongwith his companions reached at the spot and saw that bleeding was oozing from the head of his son Adnan Shah. This fact was not in consonance with the medical report even otherwise medical evidence alone cannot be corroborative evidence as the injuries cannot speak of their authorship. See Machia etc's case (PLD 1976 SC 695). It is a settled law that last seen evidence is a weak type of circumstantial evidence. See Naqibullah's case (PLD 1978 SC 21), Rehmat @ Rehman @ Waryam @ Badshaw's case (PLD 1977 SC 515) and Fazal Elahi's case (PLD 1953 F.C. 214). The appellant/convict had taken a specific plea that he was involved in a case on account of sectarian terrorism. This bring us to the question of sentence more particularly that appellant/convict to whom death has been awarded, since in criminal cases, the question of sentence demands the utmost care on the part of the Court dealing with the life and the liberties of the people and that the accused persons are also entitled to extenuating benefit of doubt on the question of sentence. We have examined this question in the light of all the circumstances surrounding the guilt. We find mitigating/extenuating circumstance in favour of the appellant for lesser penalty inasmuch as, the prosecution had failed to connect the convict with the circumstances of photographs recovered from the spot and the photographs recovered from the bag of the convict because there was no photograph of the deceased in the said photographs as mentioned above. Photograph of one Hafeez was found who was not associated by the police in the investigation. The benefit of doubt can be pressed also in matter of sentence as law laid down by this Court in Mst. Bevi's case (1980 SCMR 859).
"302. Punishment of qatl-i-amd.--Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be,--
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of qisas is not applicable:
[Provided that nothing in this clause shall apply to offence to qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.]"
(i) Punishment with death or
(ii) Imprisonment for life as Tazir.
It is pertinent to mention here that this provision does not spell out the circumstances in which either of the two punishments is to be awarded and as such it has been left for the superior Courts to lay down guidelines for awarding either of the punishments. Un-amended Section 302 PPC shows that a judge is not required to give reasons for imposing death sentence for murder as that was considered to be the proper sentence for murder but if he imposed a lesser punishment he was required to give reasons for it as law laid down by this Court in Piran Ditta's case (PLD 1976 SC 300). Now after the said amendment in Section 302 PPC will be little different as a judge while awarding either of the two sentences will have to give reasons meaning thereby the learned Judge has to award the death penalty or life imprisonment after judicial application of mind with reasons. The purpose and object of the amendment is based on the principles of Islamic Criminal Law introduced and enforced through Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) promulgated from time to time since 1990 in view of Section 338-F of PPC as in Islam except for Just cause and reason, a life cannot be taken away or in other words put to an end.
For what has been discussed above, we are of the view that imprisonment for life will be adequate sentence in the circumstances of this case. We therefore, alter the sentence of death into life imprisonment under Sections 302(b) PPC and 12 of Offence of Zina (EOH) Ordinance, 1979 on two accounts. The remaining sentences are maintained. The appeal is dismissed with the aforesaid modification qua the sentence.
(J.R.) Appeal dismissed.
PLJ 2007 SC 496
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
SUPERINTENDING ENGINEER GEPCO SIALKOT--Petitioner
versus
MUHAMMAD YOUSAF--Respondent
Civil Petition No. 1097-L of 2004, decided on 23.11.2006.
(On appeal from the judgment dated 8.1.2004 passed by Federal Service Tribunal, Lahore in Appeal No. 89(L)(CS)/2000).
Constitution of Pakistan, 1973--
----Art. 212(3)--Leave to appeal--Entitlment for financial benefit during the period of suspension--Period would be treated as leave on due basis--Question of--Civil servant being aggrieved from order of department approached Service Tribunal for releasing of salary for such period--Appeal allowed--Civil servant was imposed penalty of death--Appellate Court acquitted civil servant from the charge of murder--Civil Servant had taken back on duty and period of suspension was treated as leave on due basis instead of suspension--Validity--Held--Civil servant who statedly was acquitted by extending him benefit of doubt would be deemed to have been acquitted honourably Service Tribunal rightly directed department to treat him on duty and give him all financial benefit during period of confinement in custody on account of involvement in murder case--Leave was declined. [P. 499] A
Mr. Aurangzeb Mirza, ASC for Petitioner.
Mian Mehmood Hussain, ASC for Respondents.
Date of hearing : 23.11.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed for leave to appeal against the judgment dated 8.1.2004 passed by Federal Service Tribunal, Lahore in Appeal No.89(L)(C.S.)/2000.
"We have before us a judgment of the Apex Court. The citation is 1998 SCMR 1993. In this case the Civil Servant was also involved in a murder case. He was acquitted. The apex Court was pleased to hold that in case of acquittal the Civil Servant should be considered to have committed no offence. He was declared entitled to grant of arrears of pay and allowances in respect of period he had remained under suspension on the basis of murder case against him. In the light of this authority we hold that the appellant is entitled to arrears of pay and allowances for the disputed period. In 2002 P.S.C. 157 a similar view was expressed by the apex Court. The appellant was reinstated in service with back benefits for the period he had not been gainfully employed elsewhere. In the present case the appellant had not been gainfully employed elsewhere due to conviction in a murder case. He is, therefore, entitled to back benefits as held by the apex Court. The most recent judgment of the apex Court on the subject is reported as 2003 U.C. 809 the appellant was acquitted in the criminal case and was held entitled to back benefits."
Learned counsel for the petitioner contended that the respondent would only be entitled for the financial benefits for a period of six months during which he remained under suspension while for the remaining period he would be granted financial benefits but this period would be treated as leave on due basis.
On the other hand learned counsel for the respondent stated that as the respondent has been acquitted of the charge honourably, therefore, he is entitled for full benefits without treating the same period on the basis of leave due. He stated that exactly in such like situation this Court in the case Dr. Muhammad Islam Vs. Government of N.W.F.P. through Secretary Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others (1998 SCMR 1993) has granted the relief to the employee who after acquittal from the murder charge claimed the benefit under FR 54(1). In this behalf it is to be noted that in identical circumstances in the case which has been relied upon by the Tribunal Rashid Mahmood Vs. Additional Inspector General of Police and two others (2002 PSC 157) in which financial benefits were extended for the period during which a civil servant could not perform his duty on account of his involvement in the criminal case and as soon as he was acquitted of the charge he was held entitled for the full benefits considering him as if he has performed the duty. Learned counsel for the petitioner also contended that question for consideration would be as to whether the respondent was honourably acquitted because according to him the learned High Court while accepting his Criminal Appeal on 12th July, 1998 extended him benefit of doubt. In this behalf it may be noted that in the case of Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu Vs. Superintending Engineer, Southern Irrigation Circle, Bannu and 4 others (1999 SCMR 2870) identical question came for consideration and this Court considered that acquittal of a civil servant, even if based on benefit of doubt was honourable. Applying same principle we are of the opinion that the respondent who statedly was acquitted by extending him benefit of doubt would be deemed to have been acquitted honourably. Therefore, under the circumstances we are of the opinion that the. Service Tribunal rightly directed the petitioner to treat him on duty and give him all financial benefits during the period of his confinement in custody on account of his involvement in the murder case.
Thus for the forgoing reasons we see no force in the petition which is dismissed and leave declined.
(R.A.) Petition dismissed.
PLJ 2007 SC 499
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Hamid Ali Mirza, JJ.
REGISTRAR, LAHORE HIGH COURT, LAHORE--Appellant
versus
SYED JAVED AKBAR and another--Respondents
Civil Appeal No. 1678 of 2003, decided on 14.12.2006.
(On appeal from the judgment dated 16.1.2003 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore, in Appeal
No. 62 of 1999).
Constitution of Pakistan, 1973--
----Art. 212 (3)--Leave to appeal--Withdrawal of resignation tendered by petitioner--Absent from duty--Validity--Held: A resignation could be with drawn or recalled before its acceptance by competent authority.
[P. 500] A & B
Mr. Farooq Zaman Qureshi, ASC and Mr. Nazar Hussain, Deputy Registrar for Appellant.
Ex-parte for Respondent.
Date of hearing: 14.12.2006.
Order
Appellant/Petitioner sought leave to appeal against the judgment of the Punjab Subordinate Judiciary Service Tribunal dated 16-1-2003 which was fixed before this Court on 1-12-2003 and leave was granted in the following term:--
"After hearing the learned counsel for the petitioner, we are of the view that it is a fit case for the grant of leave to consider the effect of the withdrawal of the resignation tendered by the petitioner after lapse of a considerable time. Order accordingly. Operation of the order impugned shall remain suspended in the meanwhile."
Learned counsel for the appellant submits that Respondent No. 1 did not attend the office and perform duties after sending applications for withdrawal of resignations and remained absent for 71 days.
Be that as it may the learned Service Tribunal had accepted the appeal by Respondent No. 1 with cogent reasons after application of mind as evident from the following operative part of the impugned judgment:--
"We have given consideration to the respective contentions of the learned counsel for the parties. There is no dispute that the resignation tendered on 2.3.1998 was withdrawn on 20.4.1998 while it was accepted on 2.5.1998. To our mind having tendered his resignation it would not have been appropriate for the appellant/judicial Officer to perform judicial functions. There is no allegation that he remained absent in fact. The learned counsel for the appellant informs us that after the said event he has been practising at the bar.
That being so we will allow the service appeal. The appellant shall be reinstated in service without any financial benefit. Also the intervening period from the date of his relinquishing charge and resuming the same shall be treated as kind of the leave due."
"It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so long as he continues in service and not after it has terminated ".
(i) Shanker Dutt Shukla's case (AIR 1956 All. 70)
(ii) Reichel's case (LVI) LTR (NS) 539)
(iii) Muhammad Khan's case (PLD 1958 Kar. 75)
(iv) Ashfaq Ahmad Mir's case (1999 PLC(CS)738)
(v) Prof. Muhammad Ali Sheikh's case (2003 PLC (CS) 1535)
(vi) Muhammad Rafique's case (1991 PLC (CS) 1040)
(vii) Muhammad Salim Khan's case (1991 SCMR 440)
(viii) Abdul Jabbar Khan's case (1984 PLC (CS) 435).
(R.A.) Appeal dismissed.
PLJ 2007 SC 501
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
MUHAMMAD ASLAM--Petitioner
versus
WATER & POWER DEVELOPMENT AUTHORITY etc.--Respondents
Civil Petition No. 378-L of 2004, decided on 23.11.2006.
(On appeal from the judgment dated 12.12.2003 passed by Federal Service Tribunal, Lahore in Appeal No. 514(L) (CS)/2003).
Service Tribunal (Procedure) Rules, 1974--
----R. 6(F)--Constitution of Pakistan, 1973--Art. 212 (3)--Leave to appeal--Appeal filed before department was barred by time and secondly memo of appeal was not signed by the petitioner in terms of Rule 6 (f)--Validity--Held: Departmental appeal is not filed within statutory period, the appeal before Tribunal would not be competent--Since Civil Servant had been non suited for non-filing of appeal within time, therefore without dilating on the other grounds which prevailed upon the Tribunal, Supreme Court was not inclined to grant leave to appeal. [Pp. 502 & 503] A & B
Mr. Mehbood Azhar Sheikh, ASC for Petitioner.
Mr. Faiz-ur-Rehman, AOR for Respondents.
Date of hearing: 23.11.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed for leave to appeal against the judgment dated 12.12.2003 passed by Federal Service Tribunal, Lahore in Appeal No. 514(L)(C.S.)/2003.
It is to be noted that petitioner has been non-suited firstly for the reasons that the appeal filed before the department was barred by time and secondly the memo of appeal was not signed by the petitioner in terms of Rule 6(F) of the Service Tribunal (Procedure) Rules 1974.
Learned counsel for the petitioner while arguing the case on the point that the department appeal was not dismissed on limitation but on merits contended that the Tribunal should not have non-suited the petitioner on this score as law laid down by this Court in the case of Anwarul Haq Vs. Federation of Pakistan through Secretary, Establishment Division Islamabad and 13 others (1995 SCMR 1505) would not be attracted. It may be noted that we have gone through the decision of the departmental authority, according to which the appeal filed by him was rejected. Therefore, the presumption would be that it has been rejected both on limitation as well as on merits. Besides it is well settled in the case Anwarul Haq (supra) that if departmental appeal is not file within the statutory period the appeal before the Tribunal would not competent. Relevant para is, therefore, reproduced herein below:--
"The learned counsel for the petitioner frankly conceded before us that after redesignation of the post he has been performing his official functions as Assistant Executive Engineer. The Tribunal was, therefore, right in holding that after a lapse of 18 years the relief sought by the petitioner for correction of the seniority list was time barred. Reliance was also rightly placed by the learned Tribunal on the judgment of this Court in the case of Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951) that when an appeal before the departmental authority was time-barred, the appeal before the Tribunal was also incompetent on that account."
The above view was reiterated by this Court in the cases of (i) Dr. Anwar Ali Sahto and. others v. Federation of Pakistan and others (PLD 2002 SC 101) (ii) State Bank of Pakistan v. Khyber Zaman and others (2004 SCMR 1426) and (iii) N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah (2006 SCMR 453).
Since the petitioner has been non-suited for non-filing of the appeal within time, therefore, without dilating on other grounds which prevailed upon the Tribunal we are not inclined to grant leave to appeal in view of the above settled legal position.
Thus for the forgoing reasons we see no force in the petition, which is dismissed, and leave declined.
(R.A.) Leave refused.
PLJ 2007 SC 503
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ.
Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
ZANG ALI KHAN and others--Petitioners
versus
MUEEN KHAN and others--Respondents
Civil Petition No. 1054 of 2006, decided on 1.12.2006.
(On appeal from the judgment dated 30.6.2006 passed by Peshawar High Court, Peshawar in C.R. 112/2004).
Limitation Act, 1908 (IX of 1908)--
----S. 19--Period for redemption of mortgaged property--Period of acknowledgement--Suit for declaration was filed after expiry of the period of limitation for redemption of mortgaged property--Lost rights to redeem--Question of--Identical question was involved with regard to extension of period of acknowledgement in terms of S. 19 of Limitation Act, (IX of 1908)--Held: Period of mortgage would be extended from the date of acknowledgement for the purpose of giving fresh start in a suit for redemption. [P. 505] A
Agha Tariq Mehmood Khan, ASC and Ch. Akhtar Ali, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 1.12.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition is directed against the judgment 30.6.2006 passed by Peshawar High Court, Peshawar whereby a civil revision, relating to period for redemption of mortgaged property, was allowed setting aside the judgment of appellate Court and restoring the judgment and decree of trial Court.
"Even otherwise, the Hon'ble Supreme Court in Sama Gul v. Central Government, PLD 1986 SC 35 had observed that the transfer of mortgage rights in favour of Hindu mortgagor in 1915 who subsequently became evacuee and his mortgagee rights were transferred in favour of the Central Government through mutation attested in 1969 under the Evacuee Laws, would not destroy the rights of non-evacuees owner in land in which evacuee had any right under mortgage and the successor of the owner (mortgagor) continued to have a right to the equity of redemption in the disputed property notwithstanding the acquisition of evacuee interest therein by the Central Government as it merely stepped into the shoes of the evacuee and was vested only with the right of mortgage and nothing else". Therefore, the fresh period of limitation for the purpose of seeking redemption of mortgaged property would be counted form the date of acknowledgement of right of equity of mortgage and not form the date of original mortgage; Muhammad Hanif v. Ghulam Rasool, 2005 SCMR 1004. The petitioners' claim to have become owners of the suit property was premature as the period of limitation of sixty years would start form 30.11.1961, when predecessor of the respondents had acquired right of mortgagee and would continue till 29.11.2021 and they could not claim themselves to be owners of land by prescription according to Article 148 read with Section 28 of the Limitation Act, 1908 as the payment of mortgage money by mortgagee to the mortgagor would be considered extension in period of limitation for instituting proceedings for redemption of mortgaged property; Nawaz Ali Khan v. Nawabzada, PLD 2003 SC 425. Besides, a separate suit for the redemption of suit property as per evidence on the record, pending adjudication in the Court below, is yet to be decided. The appellate Court, in view of the above, had not properly appreciated the facts/evidence brought on the record and had incorrectly applied the law and thus had erred in law while decreeing the suit."
"Thus following the dictum laid down by this Court in the case of Abdul Haq (ibid) it is held that payment of rent or interest by a mortgagee to mortgagor cannot only be considered extension in the limitation for the recovery of said amount but simultaneously, such acknowledgment would also be considered extension in the period of limitation for instituting the proceedings for redemption of the mortgaged property."
(R.A.) Leave refused.
PLJ 2007 SC 506
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
BALOCHISTAN EMPLOYEES SOCIAL SECURITY INSTITUTION through its Commissioner & others--Petitioners
versus
GATRON INDUSTRIES LIMITED--Respondent
Civil Petition No. 3-Q of 2006, decided 16.8.2006.
(On appeal from the judgment dated 11.11.2005 of the High Court of Balochistan, Quetta passed in Civil Misc. Appeal No. 4/05).
Provincial Employees Social Security Ordinance, 1965--
----Ss. 57 & 64--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Medical expenses incurred on treatment of workers of company--Employees filed complaint praying for reimbursement incurred on treatment of workers who after performing duties were waiting for bus outside factory premises and were caused injuries by a Taxi--Employees demanded medical expenses--Company refused to make payment--Appeal filed before Commissioner which was rejected on the ground that incident had taken place outside factory premises--Labour Court accepted appeal filed by employees--Appeal was also dismissed by High Court--Assailed--Determination factory premises--Alleged accident had taken place outside of factory premises--Claim of respondent would not be permissible for simple reason that injured workers were on the way at the time of incident--Concept of notional extension has rightly been pressed into service by Labour Court--Held: No medical facilities were available to meet any emergent situation and dispensary was found without doctor and life saving drug which was shocking and institution must take appropriate and remedial steps in that regard--Workers remained hospitalized and amount in-question was incurred on treatment--Legal and factual aspects of the controversy have rightly been appreciated by Courts below--Further held: No illegality or irregularity could be pointed out in impugned judgment on behalf of company justifying interference by Supreme Court--Leave refused.
[Pp. 508 & 509] A, B & C
Mr. Kamran Murtaza, ASC and Mr. M.W.N. Kohli, AOR, for Petitioners.
Nemo for Respondent.
Date of hearing: 16.8.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 11.11.2005 whereby the appeal preferred on behalf of petitioner under Section 64 of the Provincial Employees Social Security Ordinance, 1965 has been dismissed.
Precisely stated the facts of the case "are that the respondent filed a complaint under Section 57 of the Ordinance praying for reimbursement of Rs. 3,90,351/- incurred on the treatment of nine workers of the company who after performing their duties were waiting for a Bus outside the factory premises, when a Taxi ran over them; causing injuries to them and one of them died at the spot. On 17.4.1998 the injured persons were taking to Bentwa Anees Hospital and Agha Khan Hospital Karachi for treatment. The respondent paid the said amount of Rs. 3,90,351/- as medical expenses and requested the Appellant No 1 i.e. Balochistan Employees Social Security Institution through its Commissioner Labour Complex (herein after referred to as the institution) for reimbursement of the amount. The institution was refused to make payment of the same. The respondent filed an appeal under the Ordinance before the Commissioner Balochistan Employees Social Security Institution who after hearing the parties rejected the complaint on the ground that the incident had taken place outside the factory premises vide order dated 5.7.2000. Being aggrieved from the same, the respondent filed a complaint before the Presiding Officer 3rd Labour Court Balochistan Social Security Court at Hub which was accepted vide order dated 12.9.2001. Being aggrieved from the same, the appellants filed an appeal under Section 64 of the Ordinance before this Court which was registered as Civil Miscellaneous Appeal No. 19/2001, the same was partly accepted by this Court and the matter was remanded to the Commissioner Balochistan Employees Social Security Institution with the directions that opportunity be given to both the parties to lead evidence who rejected the claim of the respondent vide order dated 31.4.2004. Thereafter the respondents filed an appeal before the 3rd Labour Court Balochistan Social Security Court at Hub and the same was accepted vide impugned judgment dated 3.2.2005." Being aggrieved an appeal was preferred which has been dismissed vide judgment impugned, hence this petition.
Heard Mr. Kamran Murtaza, learned ASC on behalf of petitioners who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective and the conclusion as arrived at by the High Court is not in consonance with the evidence which has come on record. It is next contended that Gatron Industries Limited (respondent) is not an aggrieved party and therefore, the amount in question could not have been claimed by it. It is urged emphatically that the alleged occurrence had taken place outside of the factory premises and therefore, no benefit whatsoever could have been claimed which aspect of the matter has been ignored by the learned High Court resulting in serious miscarriage of justice.
We have carefully examined the above noted contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment passed by the Labour Court on 3.2.2005 as well as the judgment impugned. We are not persuaded, to agree with the prime contention of Mr. Kamran Murtaza, learned ASC on behalf of petitioner that since the alleged accident had taken place outside of the factory premises, therefore, the claim of the respondent would not be permissible for the simple reason that the injured workers were on their way when the incident occurred which resulted in killing of one worker while the other sustained injuries. Had the workers reached their houses after completion of their work, the position would have been different. In the above portraited scenario the concept of notional extension has rightly been pressed into service by the learned Labour Court and relevant portion of the judgment dated 3.2.2005 is reproduced herein below for ready reference:--
"So far as the objection with regard to accident took place out side the factory is concerned, in my opinion the accident in question fell within the definition of accidents provided under this ordinance because the theory of Notional extension was very much available as the workers certainly were in the course of their employment by waiting for conveyance at a point though outside the Factory, definitely the workers at the relevant time were not on independent and unconnected private activity, therefore, were entitled to get their compensation received under the Workermen's Compensation Act."
"It may be mentioned here that soon after their duties the employees of the factory were waiting for a bus outside the factory premises and in the meanwhile, a taxi over ran the employees wherein one person died on the spot and nine received injuries. It may be pointed out that said question has been finally dealt with by the learned Appellate Court holding therein that at the relevant time the workers were not independent and not connected with private activities and after the working hours, they were waiting for a bus. In this regard, the theory of notional extension is very much attracted as pick and drop of the workers also falls within the service hours. Admittedly the injured persons were waiting for a bus after working hours to go their homes. Thus the theory of notional extension can be extended as soon after the company hours the injured persons waiting for transport and when they met with the said unfortunate accident. Admittedly at the time when the incident took place they were though on a public road but not standing for another purpose and it was very much during course of employment waiting for conveyance after working hours."
In sequel to above mentioned discussion the petition being devoid of merit is dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2007 SC 510
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
ABDUL KHALIQ alias Mithoo--Petitioner
versus
Moulvi SHER JAN & others--Respondents
Civil Petition No. 128-Q of 2006, decided on 26.12.2006.
(On appeal from the judgment dated 7.4.2006 passed by the High Court of Balochistan, Quetta, in C.R. No. 194/2002).
Easement Act, 1882 (V of 1882)--
----S. 15--Constitution of Pakistan, 1973--Art. 185(3)--Constitutional Petition--Leave to appeal--Acquisition right of easement by prescription--Passage in-question was in existence for last 50 years which was being utilized without any hindrance or disturbance--Legality or infirmity--Determination--An uninterrupted and continuous user for a period of more than twenty years prescribed by law forms the foundation of prescriptive right or right to be acquired by prescription which has accrued in favour of respondent/plaintiff--Supreme Court were not persuaded to agree with contention of the petitioner that the legal and factual aspects of the controversy have not been appreciated in its true perspective for the simple reason that evidence which has come on record has been appreciated with diligent application of mind--Held: No illegality or infirmity could be pointed out inferring that it was a case of non-reading or misreading of evidence--Right of easement being question of fact had been decided by trial Court--No interference could be called for by exercising jurisdiction under Art. 185(3) of Constitution of Pakistan.
[P. ] A
Ch. Mumtaz Yousaf, ASC for Petitioner.
Mr. Salahuddin Mengal, AG Balochistan for Respondents.
Date of hearing: 26.12.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 7.4.2006 whereby the revision petition preferred on behalf of Moulvi Sher Jan (respondent/plaintiff) has been accepted.
Precisely stated the facts of the case "are that a suit for declaration and injunction was filed by the petitioners in the Court of Qazi Bori Sanjavi wherein it was stated that the plaintiffs/petitioners are permanent residents of Killi Chalez Mir Haji; they are from the time of British India using a passage/way for the last 50 years which is located in Khasra No. 342 passes in between Khasra Nos. 341 and 343. It was further claimed that the other inhabitants of the Killi are also using the said passage without any interruption from any corner. It was further averred that in the year 1968 Madrasa Jameha Masdarul Uloom, Killi Chalez Mir Haji duly registered, was established and numerous students are taking their education from said institution and also, utilizing this passage. It was also case of the petitioners that there is a Jameha Masjid and a reasonable number of Namazies visit said mosque and offer prayers. The resident of Pesh Imam is also situated in the said mosque and offer prayers. The resident of Pesh Imam is also situated in the said Killi. It was also case of the petitioners that Maulvi Sher Jan had gifted a piece of land for the establishment of Madrasa and Mosque which was purchased from the father of defendant Abdul Khaliq in consideration of Rs. 15,000/-. It was also claimed that the plaintiffs are entitled to use the said passage legally. It was further claimed that the said passage is being used by the inhabitants of the Killi for the last 50 years and there is no alternate way to approach to the said Killi. Prayer for declaration was sought and it was also prayed that they should be restrained from obstructing the way in any manner and also to be restrained from putting any obstruction in order to change the width of the passage." The respondent repudiated the claim of petitioner by filing written statement raising various legal and factual objections. On the pleadings of the parties various issues of facts and law were drawn up by the learned trial Court. After recording the evidence pro and contra the suit was decreed by the Court of learned Qazi Sanjavi dated on 14.1.2000 which was assailed before learned Majlis-e-Shoora, Loralai by means of appeal which was accepted vide judgment and decree dated 17.6.2002 against which revision petition preferred on behalf of Moulvi Sher Jan (respondent/plaintiff) has been accepted vide judgment, impugned, hence this petition.
Heard Ch. Mumtaz Yousaf, learned ASC on behalf of petitioner and Mr. Salahuddin Mengal, learned Advocate General Balochistan, for the State, scrutinized the entire evidence with their eminent assistance and perused the judgment of Qazi Sanjavi, the judgment of learned Majlis-e-Shoora, Loralai as well as the judgment impugned. After having gone through the entire record we are of the view that the existence of passage for about last 50 years has been established and no restraint can be imposed now in view of the provisions as contained in Section 15 of the Easement Act, 1882. Moulvi Sher Jan (respondent/plaintiff) has adduced worthy of credence evidence to substantiate his claim. In this regard the statements of Haji Abdullah (P.W.1), Qalandar Khan (P.W.3) and Abdul Lateef (P.W.4) can be referred. Haji Abdullah (P.W.1) has stated in an unequivocal manner that the passage was in existence which was never closed by anybody in the past. His version was fully corroborated by Abdul Majeed (P.W.2), according to whom the passage was in existence since his childhood and he was never stopped to utilize the passage. Qalandar Khan (P.W.3) has also supported the above mentioned version and stated that the passage in question was in existence for the last 70/75 years and no hindrance whatsoever was created in its utilization. Abdul Lateef (P.W.4) has also supported the claim of Moulvi Sher Jan (respondent/plaintiff) by stating that the passage in question was in existence for the last 50 years which is being utilized without any hindrance or disturbance. Abdul Lateef (P.W.4) has pointed out in a categoric manner that even the grandfather of the petitioner had never attempted to place any restriction on the utilization of the passage and according to him it was a thoroughfare which could not have been closed. After having gone through the entire evidence we have also examined the necessary conditions for the acquisition of a right of easement by prescription which are as under:--
"Conditions necessary for the acquisition of a right of easement by prescription: The following conditions must be fulfilled for the acquisition of a right of easement by prescription:
(i) The right claimed must not be uncertain.
(ii) The right claimed must have been enjoyed.
(iii) It must have been enjoyed independently of any agreement with the owner or occupier of the land over which the right is claimed.
(iv) It must have been enjoyed--
(a) peaceably, (b) openly, (c) as of right, (d) as an easement, (e) without interruption, (f) for twenty years, or sixty years if the right is claimed against Government.
Of the last six sub-conditions, (b) and (c) are not necessary in the case of easement of light and air or support. With this exception all the conditions and sub-conditions must be fulfilled before a right of easement is acquired." (The Easement Act, 1983 by Mian Zahur-ud-din, pages 69, 70)
Pakistan National Oils Limited v. Sattar Muhammad
(1980 SCMR 686), Ramadhin Singh v. Jadunandan Singh
(AIR 1915 Cal. 486), Valina Rama v. Emperor (AIR 1928
Lah. 496), Abdullah v. Ahmad Khan (1988 CLC 1301), Sheo Nath v. Mughla (AIR 1938 Lah. 800), Pakistan Warranted Warehouse Ltd. v. Sindh Industrial Trading Estates Ltd. (1991 SCMR, 119).
In sequel to above mentioned discussion, the petition being merit less is dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2007 SC 514
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
SUPERINTENDENT OF POLICE D.I. KHAN and others--Petitioners
versus
IHSANULLAH--Respondent
Civil Petition No. 384-P of 2005, decided 14.11.2006.
(On appeal from the judgment dated 10.5.2005 of the NWFP Service Tribunal, Peshawar in Appeal No. 180/04).
Service Matter--
----Right of reinstatement--Dismissal from service on the allegation that Civil Servant was involved in criminal case--Departmental appeal was failed being time barred--Civil Servant has lost his right of reinstatement--Departmental representation of civil servant was barred by limitation and on the basis of such representation service tribunal could not reinstate him in Service--Petition was converted into appeal and allowed. [P. 515] A & B
Mr. Khushdil Khan, Addl. AG NWFP with Mr. Altaf, SI (Legal) for Petitioners.
Mr. Abdul Aziz Kundi, ASC for Respondent.
Date of hearing: 14.11.2006.
Order
Abdul Hameed Dogar, J.--This petition is directed against judgment dated 10.5.2005 passed by learned NWFP Service Tribunal, camp at D.I.Khan whereby Appeal No. 180 of 2004 filed by respondent was allowed and he was reinstated into service without back benefits.
Brief facts leading to the filing of instant petition are that respondent was dismissed from service on the allegation that on 12.7.2001 he was found in possession of 225 grams of charas. Case was registered against him in which he was arrested and sent up to face the trial. According to learned counsel for the respondent he made representation to the competent authority but did avail the remedy of filing appeal before the learned Tribunal challenging his dismissal. According to him after his acquittal from the criminal case which took place on 9.10.2003 he filed instant appeal before Tribunal on 18.3.2004 mainly on the ground that he was acquitted from criminal charges as such be reinstated in service. The appeal before the Tribunal was filed belatedly from date of his dismissal and after five months from the date of his acquittal from the criminal charges. This being so, respondent has lost his right and cannot agitate for reinstatement. By now it is the settled principle of law that acquittal of civil servant from criminal charges would have absolutely no bearing on the merits of the case as the disciplinary proceedings are to be initiated according to service rules independently. Reliance can be made to the cases of Executive Engineer and others Vs. Zahid Sharif (2005 SCMR 824) wherein is has been held that acquittal of civil servant from Court would not impose any bar for initiation of disciplinary proceedings as his acquittal would have no bearing on disciplinary proceedings at all. In case of Sami Ullah Vs. Inspector General of Police and others (2006 SCMR 554) it has been held that acquittal of petitioner from criminal case would have absolutely no bearing on the merits of the case and in the case of NED University of Engineering and Technology Vs. Syed Ashfaq Hussain Shah (2006 SCMR 453) it has been held that departmental representation of civil servant was barred by limitation and on the basis of such representation Service Tribunal could not reinstate him in service.
In view of what has been discussed here in above and the case law referred supra the impugned judgment reinstating the respondent in service after acquittal from the criminal charge is not sustainable in law hence the same is set aside. The petition is converted into appeal and allowed. The order of dismissal from service of respondent is maintained.
(R.A.) Petition accepted.
PLJ 2007 SC 515
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
JANG BAHADAR and others--Appellants
versus
TOTI KHAN and others--Respondents
C.As. Nos. 1942 & 1943 of 2002, decided on 19.12.2006.
(On appeal from the judgment dated 11.5.2002 of the High Court of Balochistan, Bench at Sibi passed in Regular First Appeals Nos. (S)/O4/2001 (Q) 43 & 44/1999)
(i) Qanoon-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 100--Thirty years old document--Presumption of execution--Onus to prove--Appellants since claimed to be the beneficiaries of the document of will, it was essential for them to have proved its execution through the marginal witnesses and the scribe of the instrument in case such witnesses were not alive could not be found to depose as the case be, which they failed to explain, nor the original document was proved--In the circumstances, as above discussed, no presumption of its execution can be attached within the meaning of Art. 100 of Qanoon-e-Shahadat Order--It is not essential for a Court to attach the presumption of execution of a document more than 30 years old in all the cases without attending to other relevant facts and circumstances of the case before raising such presumption and not merely because any such presumption was claimed to be attached to such document. [P. 522] A & B
Jurisdiction--
----Pecuniary jurisdiction--Each Bench of High Court, a Division Bench, Full Bench or Single Bench, represents the High Court and judgments delivered by any of the Bench shall be that of the High Court--Lapse on the part of the office for not listing these appeals in view of value of property in question before a Division Bench of the Supreme Court would not render the impugned judgment as coram non judice and of no legal effect. [P. 523] C & D
Mr. Basharatullah, Sr. ASC for Appellants (in both Civil Appeals).
Mrs. Ashraf Abbas, AOR for Respondent No. 1. (In CA No. 1942 of 2002).
Ex-parte for Respondents Nos. 2-8 (In CA No. 1942 of 2002)
Mir Aurangzeb, AOR for Respondent No. 4. (In CA No. 1943 of 2002).
Mrs. Ashraf Abbas, AOR for Respondent No. 5 (In CA No. 1943 of 2002).
Date of hearing: 9.10.2006.
Judgment
Raja Fayyaz Ahmed, J.--These two appeals are directed against the consolidated judgment passed by the learned Single Judge in Chamber of High Court of Balochistan, Bench at Sibi, whereby Regular First Appeals Nos. (S)04/2001(Q)43 & 44 of 1999 preferred by the two sets of the respondents against the judgment and decree dated 20.8.1999 decreeing the suit of the appellants was set aside, consequently the suit instituted by the said appellants was dismissed. As these appeals are the out come of a consolidated judgment mentioned above, as well as; involved common questions of facts and law, therefore, both these appeals are proposed to be decided by this single judgment.
The appellants and the Respondents Nos. 1 and 2 in these two appeals are the descendants of a common ancestor Haji Mangal Khan, who during his life contracted three marriages. Out of his first marriage only one son namely Saadullah Khan who died on 18.5.1995 was born. Respondents Nos. 1 to 2, namely, Toti Khan and Mujeeb-ur-Rehman are the sons of said Saadullah Khan. Haji Mangal Khan remained issueless from his second wife, whereas; from his third wife two sons and two daughters, plaintiffs in the suit, namely, Jang Bhadur, Dilawar Khan, Mehr Khatoon and Bakht Khatoon were born and they are the appellants now before this Court.
In the suit instituted by the appellants; Respondents Nos. 5, 6 and 7, namely, Amanullah, Usman and Bahawal were claimed to be tenants in the premises in their respective occupation. During pendency of the suit, Respondent No. 8 Muhammad Hayat filed application under Order I Rule 10 CPC to be impleaded as necessary party to the suit on the ground that one of the properties in question i.e. hotel was purchased by him on 16.2.1994 and ever since he is in the possession of the said property which was demolished by him in the year 1994 being in dilapidated condition and on the said site raised a new construction viz. three shops rented out by him to the Respondents Nos. 5, 6 and 7/defendants. This application was contested by the appellants.
The learned Additional District Judge/Sibi Division being the trial Court in the case allowed the application, accordingly Respondent No. 8 was impleaded as one of the co-defendants in the suit and an amended suit was filed.
It was further contended in the suit that for the first time in the year 1996, it came to the knowledge of the appellants that their late father (Haji Mangal Khan) left a written Will dated 28.3.1962 with the recitals that the father of Respondent Nos. 1 and 2, Saadullah Khan deceased had already received his share in the property of late Haji Mangal Khan and after receiving his due share he had no concern with the property and thus the remaining properties, immovable and movables devolved upon the appellants, as such; are the owners of the properties through inheritance; so, it was alleged that the appellants many a time approached to the said respondents and apprised them about the factual position with the request to hand over vacant possession of the properties in dispute to them but they deferred the same on one or the other pretext by disputing their legal rights. On these material averments suit for declaration, possession and perpetual injunction was instituted on or about 11.11.1997 by the appellants.
It was reiterated in the said written statement that during the life time of late Haji Mangal Khan, the appellants and the father of the said defendants namely Saadullah Khan received their respective shares and since then the said defendants are in the lawful possession of the above said properties as owners and that no Will was ever executed by late Haji Mangal Khan which now perhaps been got prepared by the plaintiffs through misrepresentation and practicing fraud.
Similar written statement was filed by Respondent No. 4, Noor Ali.
Joint written statement was filed by Respondents Nos. 5 to 8, wherein it was claimed that Shop Bardana No. 2/1/1 (previously hotel was purchased by Respondent No. 8 (Muhammad Hayat) from Saadullah Khan father of Respondents Nos. 1 and 2 against consideration of Rs. 2,36,000/- on 16.2.1994 and agreement to such effect was also executed and possession of the same was delivered to the vendee which was in dilapidated condition, therefore, after demolition of existing structure, three shops were constructed on the. said site, which were rented out by Respondent No. 8 to Respondents Nos. 5, 6 and 7.
Out of pleadings of the parties 10 issues were framed besides Issue No. 11 relating to the relief. Both the parties led evidence in support of their respective claims in the light of the issues framed by the learned trial Court which after hearing the parties vide judgment and decree dated 20.8.1999 decreed the suit in favour of the appellants/plaintiffs in respect of the property in dispute.
This decree was assailed by Respondents Nos. 1 and 2 by filing RFA No.(S)04/2001(Q)43/1999 and the Respondents Nos. 5 to 8 challenged the said decree through RFA No.(S)04/2001(Q)44/1999 before the learned Single Judge, High Court of Balochistan, Bench at Sibi which by means of the impugned judgment were allowed and the suit instituted by the present appellants was dismissed.
The learned counsel for the appellants contended that copy of the Will on which the suit of the appellants was based had been annexed with the plaint and also the same was duly described in the list of documents relied upon by the appellants in their suit, hence; the same was brought into the notice of the respondents that the Will dated 28.3.1962 was duly executed by Haji Mangal Khan in respect of the property in dispute but the contesting respondents in their written statement took the plea that the same was a fake and forged document, therefore, onus was upon the defendants to prove that the said document was a forged and fake document which they failed to discharge, therefore, presumption of truthfulness of the execution of said Will and its contents being more than 30 years old document to have been attached to such instrument, moreover; as per Issue No. 4 since the special plea with respect to the said document was taken, therefore, it was for the contesting defendants to have discharged the onus which they miserably failed to substantiate and since the said document of Will was produced from the proper custody i.e. by the appellants being the successors-in-interest of the testator, hence; presumption of the execution of the document within the meaning of Article 100 of the Qanoon-e-Shahdat Order 1984 essentially to have been attached but the learned Judge in the High Court for unsustainable reasons did not attach the required presumption to the said instrument. The learned counsel strenuously argued that the findings in such behalf recorded in the impugned judgment deserve to be reversed, however; the learned counsel in view of the record of the case admitted that the original instrument of Will was not produced at the trial and instead a photo copy of the said document was filed with the plaint, copies whereof were duly supplied to the defendants in the suit. In such behalf he further submitted that the technical lapse on the part of the counsel, who at the relevant time, appeared for the appellants/plaintiffs, would not ipso facto result into any adverse consequences of the failure to produce/exhibit the original document of the Will before the learned trial Court.
He next argued that being the Regular First Appeals were required to be heard by a Division Bench of the High Court in terms of Rule 2(l)(i)(a) of part `B' Chapter 3 of the Rules and Orders of the Lahore High Court, Lahore opted and made applicable to the business of the High Court of Balochistan but conversely the learned Single Bench of the High Court decided the appeals set down for hearing by the office of the Court, hence; without prejudice to above noted contentions, the impugned judgment being corum non judice is liable to be set aside and the appeals be remanded to a learned Division Bench of the said Court to be decided afresh after hearing the parties. The learned counsel while adverting to the merits of the case, argued that the appellants proved their case in the light of the issues framed by the learned trial Court and the judgment passed by the aforesaid Court was not open to any interference in appeal.
On the other hand, the learned counsel for the respondents argued that the presumption of execution of the document of Will heavily relied upon by the appellants in support of their case did not arise within the purview of Article 100 of Qanoon-e-Shahdat Order, 1984 and since the appellants based their claim on the instrument of Will, therefore, notwithstanding the terms of Issue No. 4, which was wrongly framed by the learned trial Court, it was obligatory for the appellants to have proved its execution and in case the presumption in respect of the said documents under Article 100 of the Qanoon-e-Shahdat Order at least was to be attached; in view of the defence taken in the written statement, essentially the original document should have been produced and tendered in evidence by the attorney of the appellants/plaintiffs which was not done, hence; no reliance in the circumstances of the case on the photo-state copy, if any, filed with the plaint could have been placed, thus; appropriately no such presumption was attached to the so called Will by the learned Judge in the High Court. According to the learned counsel, the impugned judgment is unexceptionable and the learned Single Bench of the High Court seized of the matter decided the appeals, as the High Court, under the Constitution and the law, therefore, the impugned judgment could not be said to be corum non judice, moreover; the appellants submitted to the jurisdiction of the Court and did not raise any objection in the light of the relevant rule of the High Court Rules and Orders for to be heard by a Division Bench of the said Court cannot later on object to the jurisdiction of the Court in view of the said rule, which primarily is procedural in nature and does not affect the jurisdiction of the High Court.
The contentions put forth on behalf of the parties by their learned counsel have been considered in the light of the impugned judgment gone through carefully and minutely with their assistance including the judgment passed by the learned trial Court and the evidence available on record. It is an admitted feature of the case that the original document of the Will was not placed on record nor was filed with the plaint nor even tendered in evidence by any of the witnesses of the appellants or by the attorney for the appellants during the course of his statement recorded by the trial Court. Also copy of the same has not been filed on this paper book, however, it appears from the impugned judgment that copy of the same was available on the original record of the case as some reference with respect to the contents of the said document has been mentioned in the impugned judgment. Also no explanation was furnished at any stage of the trial by the appellants as to the reason of failure for non-production of the original Will and nothing was even said about the scribe and marginal witnesses of the said document being alive, dead or not traceable at the relevant time; and more particularly for the reason that it was specifically denied by the contesting defendants in their written statement that no Will was executed by late Haji Mangal Khan with respect to the property owned by him and it was alleged that the instrument of Will relied upon by the appellants in their plaint and as claimed by them, is a fake and forged document.
The appellants since claimed to be the beneficiaries of the document of Will, therefore, notwithstanding the formulation of terms of Issue No. 4, it was essential for them to have proved its execution through the marginal witnesses and the scribe of the instrument in case such witnesses were not alive/could not be found to depose as the case be, which they failed to explain, nor even the original document was produced, therefore, in the circumstances as above discussed no presumption of its execution can be attached within the meaning of Article 100 of the Qanoon-e-Shahadat Order and the conclusions drawn by the learned Bench of the High Court with respect to the alleged Will are unexceptionable.
It is not essential for a Court to attach the presumption of execution of a document more than 30 years old in all the cases without attending to the other relevant facts and circumstances of the case before raising such presumption and not merely because any such presumption was claimed, to be attached to such document. It was essential for the appellants/plaintiffs to have produced the original document and in case of failure to so do, plausible explanation for the non-production of the document or the same having been lost, destroyed or in the possession of any other person not capable to be produced should have been provided by applying or satisfying the Court at least for production of the secondary evidence in the shape of copy thereof, which has not been done in the instant case, hence; attachment of presumption of the execution of the document was a matter of great care, caution to have been undertaken in the case involving rights of the parties to the property. The fact of presumption may be weakened which tend to raise suspicion about the genuineness of the document.
It is pertinent to note that in the earlier ejectment proceedings, as it appears from the record nothing was mentioned by the appellants at any stage of such proceedings with respect to the execution of any Will by late Haji Mangal Khan, therefore, in our considered opinion the learned High Court appropriately did not attach presumption of execution of the said document which is permissible and not imperative even if the document be a 30 years old and is produced from proper custody.
As regards the other conclusions on merits of the case drawn by the learned High Court in the impugned judgment particularly with reference to the evidence of the appellants, nothing was said on behalf of the appellants nor such conclusions claimed to have been arrived at, as a result of misreading, non reading or misappraisal of evidence, hence; the same are not open to any exception which in our considered opinion in view of the evidence appraised by the learned Judge in the High Court do not appear to be not unsustainable.
Adverting to the other contention of the appellants learned counsel, no doubt in view of the above quoted rule of the High Court Rules and Orders; the office should have listed these appeals for hearing before a Division Bench of the High Court but such was not done and the learned Single Judge in the High Court seized of the matter fixed before him, decided the appeals vide impugned consolidated judgment. On behalf of the appellants, these appeals were argued by their appointed learned counsel, who did not point out to the learned Court nor expressed any reservation for hearing of the appeals to be made by a Division Bench of the said Court but when the appeals were accepted, the appellants have come with the plea that the matter was to be heard by a Division Bench of the High Court and, therefore, the decision rendered by a Single Bench of the learned High Court was corum non judice. The appellants by their conduct are estopped to raise such plea. Secondly, the High Court Rules and Orders are the Rules of Business regulating the practice and procedure of the High Court providing manner in which such powers are exercisable which do not and cannot confer or take away any of the powers which are vested in the Judge and to have add or subtract any of the powers vesting in the Judge under the Constitution and the law which in our considered opinion are not subject to any clog or restriction unless the same having been formally entrusted to him. Each Bench of the High Court, be a Division Bench, Full Bench and a Single Bench represents the High Court and the judgments delivered by any of the Bench shall be that of the High Court. The above quoted rule relating to the hearing of the regular first appeals by a Division Bench would not divest the learned Single Judge of his jurisdiction conferred and exercisable by him under the Constitution and the law. The lapse on the part of the office for not listing these appeals in view of the value of the property in question before a Division Bench of the said Court would not in the circumstances of the case rendered the impugned judgment as corum non judice and of no legal effect. The contentions raised in such behalf are devoid of substance. The case law cited by the appellants' learned counsel i.e. Chitranjan Cotton Mills Ltd v. Staff Union (PLD 1971 SC 197), Rashid Ahmed v. The State (PLD 1972 SC 271), Moulvi Aziz-ur-Rehman v. Ahmad Khan and others (2004 SCMR 1622) and Habibullah v. Land Acquisition Collector and others (2005 SCMR 1320) are not relevant on the point raised before us nor of any assistance to the proposition in hand. Out of which PLD 1949 P.C. 45 was a wrong quoted reference as at the said page no case of Privy Council was reported.
For the foregoing reasons, these appeals being devoid of substance are dismissed with no order as to costs.
(W.I.) Appeal dismissed.
PLJ 2007 SC 524
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
KHANDAN--Petitioner
versus
Mst. QAMAR-UN-NISA and others--Respondents
Civil Petition No. 174-P of 2006, decided on 15.11.2006.
(On appeal from the judgment dated 2.2.2006 of the Peshawar High Court, D.I. Khan Bench in RFA No. 20/04).
Court Fees Act, 1870 (VII of 1870)--
----S. 7(x)(a)--Constitution of Pakistan, 1973--Art. 185(3)--Pecuniary jurisdiction to hear and dispose of regular first appeal--Preliminary objection--Leave to appeal--Maintainability--Suit for specific performance for the purposes of Court fee and jurisdiction according to sale consideration--Held: Supreme Court did not find any justification to interfere with the findings of High Court that it had got the pecuniary jurisdiction and regular first appeal was competently filed before it, preliminary objection was rightly rejected--Leave to appeal refused. [P. 525] A & B
Mr. Abdul Aziz Kundi, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 15.11.2006.
Order
Abdul Hameed Dogar, J.--This petition is directed against the order dated 2.2.2006 of the learned Judge of Peshawar High Court, D.I.Khan Bench whereby preliminary objections raised by petitioner with regard to maintainability of regular first appeal was rejected and it was held that in the instant matter the learned High Court has pecuniary jurisdiction to hear and dispose of regular first appeal directly.
(R.A.) Leave refused.
PLJ 2007 SC 526
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Ch. Ijaz Ahmed, JJ.
Mst. MUHAMMADI and others--Appellants
versus
GHULAM NABI and others--Respondents
Civil Appeal No. 2570 of 2001 alongwith Criminal Original
Petition No. 22 of 2002.
(On appeal from the judgment dated 14.9.2001 passed by the Lahore High Court, Lahore, in R.S.A. No. 49 of 1995).
(i) Contract Act, 1872 (IX of 1872)--
----S. 11--Contract by Guardian on behalf of minor condition precedent--Validity--Contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and further, if it is for the benefit of minor--But if either of these two conditions is wanting, contract cannot be specifically enforced at all.
[P. 530] A
AIR 1935 Bombay 353; AIR 1936 Mad. 564; PLD 1957 Kar. 631;
NLR 1995 AC 72 and NLR 1993 CLJ 242.
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXII, R. 12 CPC--Non-compliance of Provisions--It is settled, law that the non-compliance of the provisions of order XXXIII--R. 12 C.P.C. would be fatal only in those cases where the interest of the minor was not fully protracted and prejudice was caused to the interest of minor. [Pp. 530 & 531] B
(iii) Administration of Justice--
----It is a settled law that Courts can look into the subsequent events at the time of deciding the case. [P. 531] C
PLD 1978 SC 220.
(iv) Concurrent findings--
----This Court does not, normally, interfere with the findings of fact reached by the primary Courts or the High Court, when it is satisfied that findings of the Courts below are on the whole reasonable and are not arrived at by disregard of any provision of law or any accepted principle concerning the appreciation of evidence. [P. 531] D
PLD 1977 SC 109;
Mr. Khaleeq Ahmad Ansari, ASC for Appellants.
Mr. Amir Alam Khan, ASC for Respondent Nos. 1, 2 and 3(b).
Ex-parte for Respondent No. 3(a).
Date of hearing: 6.12.2006.
Judgment
Ch. Ijaz Ahmed, J.--Appellants/petitioners have sought leave to appeal against the judgment of the Lahore High Court dated 14.9.2001 wherein R.S.A. filed by the appellants was dismissed. Brief facts out of which the present appeal/petition arises are that predecessor-in-interest of the appellants/petitioners executed an agreements to sell on 25.12.1997 and 11-2-1978 in favour of the Respondents 2 and 3 who at that time were admittedly minors. The contents of the plaint reveal that aforesaid agreements were executed between the parties qua agricultural land in question measuring 129 kanals and 4 marlas for consideration of Rs. 64,000/- out of which
Rs. 56,000/- were paid and only Rs. 800 were left to be paid. Initially the date of execution of sale deed was fixed as 10-10-1979 which was subsequently changed to 15-5-1978. Predecessor-in-interest of the appellants/petitioners filed written statement controverting allegations leveled in the plaint. Out of the pleadings of the parties the trial Court framed 5 issues. The learned senior Civil Judge Kasur vide its judgment and decree dated 24-5-1983 decreed the suit of the respondents. Predecessor-in-interest of the appellants being aggrieved filed appeal against the respondents before Additional District Judge-Kasur who dismissed the same vide judgment and decree dated 29-6-1987. Predecessor-in-interest of the appellants being aggrieved filed R.S.A. No. 109 of 1987 before the Lahore High Court which was accepted vide judgment dated 1-12-1991 by observing that at the time of execution of said agreements to sell, the respondents were minors and the Courts below had failed to consider the effect of their minority on the validity and enforceability of the agreement to sell. Consequently the case was remanded to the first appellate Court vide aforesaid judgment dated 1.12.1991 to decide the appeal afresh including the said question. After remand the first appellate Court through judgment dated 19.2.1992 remanded the case to the trial Court with a direction to frame additional issues on the question of effect on the validity of agreement to sell and the minority of the respondents/plaintiffs on the date of execution thereof. The findings recorded on other issues including execution of the agreement to sell were affirmed and it was specifically stated in the said remand judgment that the case regarding the other findings shall not be re-opened and only the question as to the effect of the minority on the legality or otherwise on the agreement of sell would be determined. Respondents filed amended plaint whereas the appellants filed written statement. After remand the trial Court framed additional five issues pertaining to minority of respondents and its effect on the validity of the agreements to sell. After remand, during the pendency of the suit, the respondents attained majority. Respondents filed application under order XXXII CPC with the prayer for discharging of next friend and grant of leave to proceed with suit in their own name which was allowed/granted. The learned Senior Civil Judge decreed the suit vide judgment and decree dated 19-12-1992. Appellants being aggrieved filed appeal before the Additional District Judge Kasur who dismissed the same vide judgment and decree dated 24-9-1995. Thereafter appellants being aggrieved filed R.S.A. No. 49/1995 in the Lahore High Court which was also dismissed vide impugned judgment dated 14-9-2001. Appellants being aggrieved filed Civil Petition No. 2799/2001 before this Court which was fixed before this Court on 31-10-2001. Leave was granted. Hence this appeal.
Learned counsel of the appellants submits that all the Courts below had erred in law to decide the case against the appellants in violation of the parameters prescribed in the earlier round of litigation by the learned High Court vide its judgment dated 1-12-1991 passed in R.S.A. No. 109/1987. He further maintains that said order was not agitated by any of the parties before this Court, therefore the said judgment attained finality. This fact was not considered by first appellate Court while remanding the case to the trial Court. He further urges that trial Court had also erred in law to non-suit the appellants in view of the Respondent Nos. 2 & 3 have become major during the pendency of the suit. The trial Court had also erred in law to decide issue regarding minority alongwith the issue as to effect of their attaining majority during the pendency of the suit. He further maintains that all the Courts below had erred in law to decide the case against the appellants in violation of the dictum laid down by this Court in Haji Abdullah Khan's case (PLD 1965 SC 690). He further submits that Ghulam Shabir and Ghulam Rasul respondents were admittedly minors at the time of execution of agreements in question and therefore they could not seek specific performance of agreements in question. All the Courts below had decided the case against the appellants without adverting to Sec. 11 of the Contract Act and Order 32, Rule 12(4) read with Rule 13 of CPC. He further submits that the plea taken by Respondents No. 2 and 3 in the amended plaint amounted either to abandonment of the suit or repudiation thereof or that the suit filed by their next friend was unreasonable or improper, therefore, could not proceed further to their extent. He further maintains that relief for specific performance is always discretionary relief or equitable relief, therefore, both the Courts below erred in law to exercise discretion in favour of the respondents. He sums up his argument that in view of the stand of the Respondent Nos. 2 & 3, it had become a case of partial performance of the agreement of sale which was not permissible under the law and this aspect of the case was not considered by all the Courts below in its true perspective specially in the circumstances that this aspect of the case came into light on account of aforesaid developments which had taken place after remand of the suit having material bearing upon the contention and maintainability of the suit have not been considered by the Courts below in its true perspective.
Learned counsel of the respondents has supported the impugned judgment. He submits that agreements were executed for the benefit of the minors therefore Section 11 of the Contract Act is not attracted. In support of his contention he relied upon Noor Muhammad's case (2000 MLD 251) and PLD 1948 P.C. 52 Sri Kakulan Subrahmanyam's case. He further urges that Order 32 Rule 12(4) are not attracted in the present case in view of Order 32 Rule 1 of CPC.
We have given our anxious consideration to the contentions raised by the learned counsel of the appellants and perused the record. All the pleas raised before us are exactly the same which were raised before the High Court and were rejected with cogent reasons as evident from the impugned judgment. The principle laid down by this Court in Haji Abdullah Khan's case supra does not applicable in the case in hand as observed by the learned High Court in the impugned judgment. The relevant observation is as follows:
"The matter is now before this Court when all that was in the contemplation of the Hon'ble Supreme Court at the time of passing of the judgment in the said case of Abdullah has materialised and taken place."
It is a settled law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case (PLD 1994 SC 2213). The relevant observation is as follows:
"Case is only an authority for what it actually decides"
"It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council, that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further, if it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all".
It was not a case of sale by minor but the minors were prospective, buyer and beneficiary of the agreement."
The learned High Court had laid down the aforesaid principle after considering the following judgments:--
(i) Narain Das's case (ILR 38 All. 154)
(ii) Bhagat Ram's case (AIR 1927 Lah. 240)
(iii) Mst. Amanat's case (PLD 1959 Kar. 362)
(iv) Muhammad Hussain's case (PLD 1995 Pesh. 98).
It is pertinent to mention here that Noor Muhammad's case supra was upheld by this Court vide order dated 14-10-1999 passed in Noor Muhammad and others v. Muhammad Ishaq and another (C.P. No. 1308/1999).
(i) Madonlall's case (AIR 1935 Bombay 353)
(ii) Mrs. Danghar's case (AIR 1936 Mad. 564)
(iii) M.A. Faruqi's case (PLD 1957 Kar. 631)
(iv) Dr. Khalid Malik's case (NLR 1995 A.C. 72)
(v) Haji Noor Muhammad Jamote' s case (NLR 1993 CLJ 242)
It is also a settled law that the non-compliance of the provisions of Order XXXII, Rule 12 CPC would be fatal only in those cases where the interest of the minor was not fully protracted and prejudice was caused to the interest of minor as result of such non-compliance as the law laid down by this Court in Mst. Afzal Begum's case (PLD 1979 SC 30). In the present case minors are beneficiary.
In view of the dictum laid down in Mst. Afzal Begum's case supra the contention of the learned counsel for the appellants have no force qua the Order XXXII, Rule 12 CPC. It is also an admitted fact that learned High Court had remanded the case to the first appellate Court in the earlier round of litigation with certain directions. The learned first appellate Court had decided the case after hearing the parties and remanded the case to the trial Court with the direction to frame additional issues after allowing the parties to file amended plaint and written statement. In this view of the matter, the contention of the learned counsel for the appellants that Courts below had decided the case in violation of the parameters prescribed by the High Court in the earlier round of litigation have also no force. It is a settled law that Courts can look into the subsequent events at the time of deciding the cases as law laid down by this Court in Mst. Amina Begum's case (PLD 1978 SC 220). It is also an admitted fact that all the Courts below had concurrently decided the case against the appellants after proper appreciation of evidence. However, in the interest of justice and fair play, we have also re-examined the evidence on record and do not find any illegality or infirmity in the impugned judgment. The Courts below had exercised discretion in favour of respondents keeping in view the principles of equity, good conscience and justice. We have also examined this aspect of the case also. We are of the view that the learned High Court was justified to uphold the discretion concurrently exercised in favour of the respondents as the Courts below had exercised discretion on the touchstone of fairplay. The learned counsel for the appellants has failed to point out any infirmity or illegality. This Court does not, normally, interfere with the findings of fact reached by the primary Courts or the High Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregard of any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible meaning thereby this Court, as mentioned above, does not interfere in the concurrent conclusions arrived at by the Courts below while exercising constitutional power as law laid down by this Court in Muhammad Ishaque's case (PLD 1977 SC 109).
For what has been discussed above, the appeal has no merit and the same is dismissed and consequently Criminal Original Petition No. 22 of 2002 in the aforesaid appeal is also stands dismissed.
(M.S.A.) Appeal dismised.
PLJ 2007 SC 532
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ch. Ijaz Ahmed, JJ.
MUHAMMAD AKRAM and others--Appellants
versus
MEMBER, BOARD OF REVENUE and another--Respondents
Civil Appeal No. 165/2003, decided on 21.9.2006.
(On appeal from the judgment dated 21.11.2000 passed by the Lahore High Court, Lahore, in W.P. No. 2576/1987).
(i) Withdrawal of Suit--
----Withdrawal of suit was not brought into the notice of High Court, therefore, the impugned judgment was not sustainable in the eyes of the law--Mere withdrawal of a suit does not operate as res-judicata for the reason, if for nothing else, that there was no adjudication on merits. [P. 537] A
(ii) Predecessor in interest--
----The shops were in possession of the appellants through agreement executed between the predecessor in interest of the appellants and the administrator municipal committee--Mere payment of Malba could not change the status of the appellants and distinguished the case with other sitting shop-keepers. [P. 537] B
(iii) Memorandum--
----Respondent's action did not fall within the four corners of the memorandum High Court had also misconstrued by observing that original allottee was only entitled to purchase the shops--This construction of document was not borne from the contents of the memorandum coupled with the fact that municipal committee was not owner of the land--Member Board of Revenue had also directed the concerned quarters to recover the rent already received by the municipal committee from the shop-keepers. [Pp. 537 & 538] C & D
(iv) Constitution of Pakistan, 1973--
----Arts. 4 & 5(2)--It is the duty and obligation of public functionaries to act in accordance with law in view of Art. 4 of the constitution--It is also command of the constitution by virtue of Art. 5(2) that every body is bound to obey the command of the constitution--Appeal accepted. [P. 538] E
Mr. Saeedur Rehman Farrukh, ASC and Mr. Tanvir Ahmed, AOR for Appellants.
Nemo for Respondents.
Date of hearing: 21.9.2006.
Order
Ch. Ijaz Ahmed, J.--The appellants/petitioners filed CPLA No. 301-L/2001 against the judgment of Lahore High Court dated 21.11.2000 wherein the Constitution petition filed by the petitioner challenging the viries of the order of the Member Board of Revenue dated 13.5.1987 was dismissed. Leave was granted by this Court on 3.2.2003 in the following term:--
"Leave is granted inter-alia to consider that out of 44 kanals of land given to the Municipal Committee, Jhang for construction of hospital and school, 2 kanals and 3 Marlas having been resumed for deploying it beyond the scope of the object viz raising of shop (92 in Number) discrimination could be made qua the shop in question (41 and 42) only on the ground that Committee had received cost of construction (Rs. 14000/-) from the predecessor-in-interest of the petitioners.
Status-quo as to possession be maintained subject to payment of rent."
Rs. 60000/- to the Municipal Committee. Shops No. 41 and 42 were originally allotted to one Hashmat Ali S/o Faqir Muhammad by Municipal Committee Jhang on rental basis who sub-let the shops in question to Muhammad Ramzan, predecessor-in-interest of Appellants No. 2 to 7 in the year 1965. As the original allottee namely Hashmat Ali breached the terms and conditions of the lease, therefore, administrator Municipal Committee had rented the shops in question to Muhammad Ramzan and Barkhurdar at the monthly rent of Rs. 240/-. and he also cancelled the lease of the original lessee/tenant (Hashmat Ali). Thereafter agreement was also executed to this effect on 10.3.1965 between the predecessor-in-interest of the appellants and administrator Municipal Committee. Another agreement dated 9.7.65 was also executed between them wherein the rate of rent was enhanced from
Rs. 240/- to Rs. 245/- P.M. Thereafter another agreement dated 26.8.1967 was also executed between the parties wherein the rent was enhanced from Rs. 245/- to Rs. 260/- P.M. The aforesaid parties also executed another agreement qua the shops in question. Hashmat Ali being aggrieved by the action of the Administrator Municipal Committee filed constitutional petition in the Lahore High Court which had been subsequently withdrawn by him and he sold the structure to the Municipal Committee Jhang for consideration of Rs. 14000/- on 29.1.1969 as evident from the resolution of the Respondent No. 2 dated 26.2.1969 and agreement dated 29.1.1969. Predecessor-in-interest of appellants had paid the rent to the Municipal Committee up to June, 1973. All the shop-keepers(92) inclusive of the predecessor-in-interest of the appellants preferred application before District Collector Jhang on 18.1.1969 for the sale of the land in question under their occupation to them. Additional Commissioner Consolidation under the instructions of the competent authority had inspected the spot and found that 92 pacca shops had been constructed over the land in question and the occupants were paying the rent as well as tax to the Municipal Committee. He also observed that Municipal Committee could not lease out or sublet any portion of area transferred to the Government for specified purpose. He also came to the conclusion that Municipal Committee was not justified to drive income of the shops as depicted from his report dated 10.1.1970 which was submitted by him to the board of revenue through commissioner Sargodha division. The board of revenue had decided to resume the land in question measuring two kanals 3 marlas inclusive of the Shops No. 41 and 42 in possession of the appellants from the name of the Municipal Committee Jhang. The board of revenue also directed to the concerned collector to recover the rent already received by the municipal committee from the shop-keepers. The Government of Punjab had decided to sell the land in question by private treaty to the occupants/shopkeepers. This decision was conveyed to the board of revenue through commissioner vide letter dated 5.2.1970. Board of revenue also directed the Commissioner Sargodha division to make an inquiry from D.C. Jhang with regard to the prevailing market price of the land on prescribed proforma basing it on the average of the land for commercial purpose during the preceding 12 months. The D.C. was also directed to submit a list of 92 shop-keepers alongwith the report about the area in their possession. Board of revenue intimated the commissioner concerned to the extent that board of revenue is ready to sell the land in question by private treaty in favour of the sitting shop-keepers attached in the list sent to him vide office endorsement dated 4.2.1969 at the rate of 26/- per sqft plus 10% surcharge on account of sale by private treaty for commercial purposes. Name of the petitioner was also mentioned in the list of sitting shop-keepers. The board of revenue on 10.5.1982 made an inquiry from D.C. Jhang as to whether the appellants who were sitting tenants were prepared to purchase the said land at the rate of 1,50,000/- from 26/plus 10% surcharge on account of sale by private treaty. Notices were issued by the competent officer to all the sitting occupants/shop keepers. All the occupants/sitting shop keepers agreed to purchase the land at the above rate. 90 shops were sold to the sitting shop keepers but the respondent had refused to sell the shops in question to the appellants on the ground that shops in question were allotted to one Hashmat Ali in the year 1952 who handed over the same to the appellants in the year 1954. Shops in question were rented out to the predecessor-in-interest of the appellants by municipal committee @ 240/- P.M. Predecessor-in-interest of appellants being aggrieved filed suit for declaration against the respondents in the Court of Civil Judge 1st Class, Jhang which was dismissed vide order dated 10.3.1982. Predecessor-in-interest of the appellants being aggrieved by the discriminatory action of the respondents by not selling the shops in question to them filed Constitutional petition No. 465 of 1982 which was disposed of with the direction that the member board of revenue was directed to decide the case of the appellants in accordance with law expeditiously under intimation to the registrar of the Lahore High Court. The board of revenue after remand decided the case against the predecessor-in-interest of the appellants vide order dated 13.5.1987. Appellants being aggrieved filed Constitutional petition No. 2576 which was dismissed vide impugned judgment dated 21.11.2000. Hence, the present appeal.
The learned counsel for the appellants submits that learned High Court had decided the case against the appellants as the appellants were not original lessee and also that predecessor-in-interest of the appellants had filed a suit which was dismissed by the Civil Judge 1st Class Jhang vide order dated 10.3.1982. He further maintains that predecessor-in-interest of the appellants had filed appeal against the order of the Civil Judge dated 10.3.82 in the Court of District Judge Jhang. Their counsel under the instructions of the predecessor-in-interest of the appellants had given statement before the first appellate Court to allow him to withdraw the suit filed by the predecessor-in-interest of the appellants which was allowed vide order dated 14.9.1983. He further maintains that memorandum dated 29-12-1971 did not mention a single word that shops in question must be sold to the original allottees. Ex-parte order had already been passed against the Respondent No. 1. No body entered appearance on behalf of the respondents on 20.9.2006. Office was directed to inform the respondents and their counsel to appear before this Court alongwith original record for 21.9.2006. The learned law officer has supported the impugned judgment.
The representative of the Respondent No. 2 has also stated that case of the appellants did not fall within the parameters of the policy letter dated 29-12-1971 of the member board of revenue.
We have considered the contentions of learned counsel for the parties and representative of the Respondent No. 2 and perused the record. It is better and appropriate to reproduce the statement of the counsel of the predecessor-in-interest of the appellants and order of the first appellate Court qua the appeal filed against the order of the Civil Judge 1st Class dated 10.3.1982 as the suit of the predecessor-in-interest of appellant was dismissed as pre-mature and memorandum No. 5721-71-II/4206-CS, dated 29.12.1971 to resolve the controversy between the parties.
STATEMENT OF COUNSEL OF PREDECESSOR IN INTEREST OF APPELLANTS.
Order:
MEMORANDUM:
"The Board of Revenue, Punjab, is pleased to accord sanction to the sale by private treaty, of State land measuring 2 kanals and 3 marlas, under the shops situated in Rail Bazar and on Shaheed Road, Jhang, in favour of the sitting 92 shop keepers at the market price plus 10% surcharge on account of sale, by private treaty, for commercial purposes.
The Deputy Commissioner, Jhang, should please be asked to intimate within a fortnight, the present market price of the land in question in the prescribed proforma basing it on the average of land for commercial purposes fetched during the preceding 12 months in this or in the neighbouring locality. He should also be asked to forward a complete list containing the names of 92 shopkeepers alongwith the exactly area with each of one of them.
You are further requested to ensure compliance of the aforesaid orders within two week. Also kindly forward the explanation of those officers/officials responsible for delaying the implementation of the orders of the Board of Revenue already communicated".
"It is established law that a mere withdrawal of a suit does not operate as res-judicata for the reason, if for nothing else, that there was no adjudication on merits"
"2. SHOP SITE NO. 41 & 42 RAIL BAZAR SHUMALI
This plot was originally allotted to Hashmat Ali son of Faqir Muhammad by the Municipal Committee, Jhang, in the year, 1958. He sublet the site to Muhammad Ramzan in the year, 1965, due to which the Administrator, M.C. Jhang rented it out to Barkhurdar and Muhammad Ramzan, the present occupiers of the site. Mr. Hashmat Ali challenged this order in the High Court and consequently he withdrew the writ petition and sold this land in favour of M.C. Jhang against a consideration of Rs. 14,000/- on 29.1.69. Muhmmad Ramzan and Bakhurdar sons of Muhammad Musa are continuously in possession of the site since 10.3.1965. "
It is the duty and obligation of the public functionaries to act in accordance with the law in view of Article 4 of the Constitution. It is also command of the Constitution by virtue of Article 5 (2) that every body is bound to obey the command of the Constitution as law laid down by this Court in Ch. Zahoor Elahi's case (PLD 1975 SC 383).
(F.F) Appeal accepted.
PLJ 2007 SC 538
[Appellate Jurisdiction]
Present: Javed Iqbal, Muhammad Nawaz Abbasi, Raja Fayyaz Ahmed, Dr. Allama Khalid Mehmood and
Dr. Rashid Ahmed Jullundhari, JJ.
SHOUKAT ALI--Appellant
versus
STATE--Respondent
Crl. Shariat Appeal No. 23 of 2003, decided on 2.1.2006.
(On appeal from the judgment dated 1.10.2001 of the Federal Shariat Court passed in Cr. A. No. 101-L of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused--Challenge to--Leave to appeal--Common intention--Appreication legal and factual aspects of controversy--A common intention pre-supposes prior concert--It requires a pre-arranged plan because a man can be vicariously convicted for the criminal act of another the act must have been done in furtherance of common intention of them all--Appellant emerged at the scence alongwith co-accused duly armed with deadly weapons, depicted common intention and prior concert of mind--His role could not be confined to that of proverbial lalkara but it was more than that and he has rightly been convicted and sentenced by High Court to undergo life imprisonment which being well based did not warrant interference. [Pp. 546 & 547] F & G
Lalkara--
----No role except proverbial lalkara could be attributed to accused hence the question of sentence of life imprisonment as awarded to appellant did not arise. [P. 544] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 34--Object of--Main object for enactment of S. 34 is not to meet a case in which it may be difficult to distinguish between acts of individual members of a party or to prove exactly what part was taken by each of them. [P. 544] B
Principle of Law--
----Nature of the offence committed by an accused depends upon the act done by him and effect produced by it, and sole object of S. 34 PPC is to lay down what act will be deemed to be done by conspirators--S. 34 of PPC is not a punitive section and does not enact a rule of evidence but enacts a common law principle of substantive law. [P. 544] C
Criminal Act--
----Unity of criminal behaviour which results in something for which an individual would be punishable, if it were all done by himself, that is in a criminal offence. [P. 545] D
Common Intention--
----Common intention is an intention to commit crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention. [P. 545] E
Dr. Babar Awan, ASC for Appellant.
Munir Sadiq, ASC for Respondent.
Date of hearing: 2.1.2006.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 1.10.2001 whereby the appellant was convicted under Section 302/34 PPC and sentenced to undergo imprisonment for life and to pay sum of Rs. 30,000/- as compensation to legal heirs of deceased and in case of default to further undergo imprisonment for six months. Benefit of Section 382-B Cr. P. C. was given to the appellant.
"This is a petition for leave to appeal against the judgment dated 1.10.2001 of the Federal Shariat Court dismissing Criminal Appeal No. 101/L of 2000 arising from the judgment dated 24.4,2000 of the learned Additional Sessions Judge, Nankana Sahib whereby the petitioner was acquitted of the charge under Section 14 of the Offences Against Property (Enforcement of Hudood Ordinance), 1979 but was convicted for life, with benefit of Section 382-B Cr.P.C. and direction to pay a sum of Rs. 30,000/- as compensation to the legal heirs of the deceased or suffer six months S.I. in default.
One Faqir Muhammad was serving at Mian Meraj Din's Agricultural Farm in village Nonarian. On 28.6.1995 he was transferred to Haseeb Waqas Agricultural Farm at laten and had relieved the petitioner who was incharge of the Farm. He was done to death on 29.6.1995 at about 12:30 a.m. The FIR was lodged at Police Station Saddar Nankana Sahib on the same day at about 4:30 a.m. by Muhammad Rashid, brother of the deceased, wherein the petitioner, Habibullah, and Safdar Shah were nominated as the accused. It was also alleged that Safdar Shah and Habibullah had taken away a 12 bore shotgun and 222 bore rifle belonging to the Farm. The motive set up in the FIR was that the deceased was taught a lesson for taking over charge of the Farm from the petitioner.
The petitioner and his co-accused Habibullah were convicted by the learned trial Court under Section 302/34 PPC and while the petitioner was sentenced as stated above, Habibullah was sentenced to death, which was altered to imprisonment for life by the Federal Shariat Court. The third accused Safdar Shah was acquitted.
It was contended by the learned counsel for the petitioner that the petitioner had done no harm to the deceased and no overt act except the proverbial Lalkara was attributed to him in the FIR and at the trial. It was further contended that the motive was imaginary and had also not been established on record. It was also contended that the manner in which the occurrence had taken place, according to the prosecution evidence, was odd and the prosecution evidence was not only furnished by interested and related witnesses but was also self-contradictory and uncorroborated.
Leave is granted to consider the above contentions and to re-appraise the prosecution evidence in order to ascertain whether the same has been appreciated in accordance with the principles of appraisal of evidence in criminal matters laid down by this Court."
Dr. Babar Awan, learned ASC appeared on behalf of appellant and contended strenuously that legal and factual aspects of the controversy have not been appreciated in its true perspective by the Federal Shariat Court which resulted in serious miscarriage of justice. It is contended that FIR was got lodged with delay and therefore the factum of concoction and deliberation could not be ruled out which aspect of the matter has been ignored by the learned Courts below causing serious prejudice against the appellant as benefit of the delayed FIR should have been given to the appellant. It is urged emphatically that none overt act except a proverbial Lalkara has been attributed to the appellant and hence the question of awarding of the sentence of life imprisonment does not arise specially in the absence of strong motive and besides that Safdar Ali (co-accused) whose case is identical to that of appellant has been acquitted and in view of the principle of consistency the same benefit should have been extended in favour of appellant. It is argued that the appellant has been convicted on the statements of prosecution witnesses who could not account for their presence at the spot and being chance witnesses their version should have been discarded.
Ch. Munir Sadiq, learned ASC entered appearance on behalf of State and controverted strenuously the contentions as agitated on behalf of appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that prosecution has established the guilt to the hilt and more so only proverbial Lalkara was not attributed to the appellant who had facilitated and participated in an active manner in the commission of alleged offence.
We have carefully examined the respective contentions as agitated on behalf of the parties in the light of record of the case, scanned the entire evidence and perused the judgment of learned trial as well as appellate Courts. The case of prosecution hinges on the oral evidence, factum of recovery, medical evidence and motive. In order to substantiate the accusation prosecution has produced twelve prosecution witnesses whose statements were got recorded at the trial. Statement of Dr. Iqbal Hussain Wattu (PW-5) is indicative of the fact that death was occurred due to the injuries sustained by the deceased caused by blunt weapon which resulted in unnatural death of Faqir Muhammad. Muhammad Rashid (PW-2) has supported the prosecution version and stated in an unambiguous manner the events culminated into the murder of Faqir Muhammad. Muhammad Rashid (PW-2) has stated that Faqir Muhammad took over the charge of the farm which was held by Shoukat Ali (appellant) in the presence of Safdar Ali and Habibullah and during night at 2:30 the appellant armed with rifle, Safdar Shah armed with 222 rifle and Habibullah armed with gun 12 bore arrived and caught hold of Faqir Muhammad and Shoukat Ali (appellant) instigated to his companions that a lesson should be taught to Faqir Muhammad for taking charge of the farm pursuant to which Safdar Shah and Habibullah caught hold of Faqir Muhammad and dragged him into maize field and started beating with fists and kicks when once again Shoukat Ali (appellant) asked Habibullah to kill Faqir Muhammad by means of firing who made fire with his 12 bore gun which hit Faqir Muhammad on left temporal who succumbed to the injuries instantaneously. It is also stated by Muhammad Rashid (PW-2) that the murder of Faqir Muhammad was committed by all the accused including appellant with common intention. He was subjected to lengthy cross-examination but nothing beneficial could be elicited in spite of various searching questions. Muhammad Munir (PW-3) who is also an eye witness has supported Muhammad Rashid (PW-2) on all material points by stating that at the time of handing over of the charge appellant was present in the farm alongwith co-accused namely Safdar Shah and Habibullah and during the night at 12:30 a.m. the appellant armed with rifle Habibullah armed with gun and Safdar armed with rifle took Faqir Muhammad to the filed at the direction of Shoukat Ali (appellant) from whom the charge of the farm was taken by Faqir Muhammad. He made it abundant clear that Shoukat Ali raised Lalkara that a lesson be taught to Faqir Muhammad for taking the charge of the farm. He further stated that Faqir Muhammad was severely beaten with fists and kicks when Shoukat Ali (appellant) asked Habibullah to kill Faqir Muhammad and on persuasion of Shoukat Ali (appellant) Habibullah fired with his gun due to which Faqir Muhammad sustained injuries on left temporal who succumbed to the injuries at the spot. Muhammad Munir (PW-3) has stated in a categoric manner that the appellant Shoukat Ali, Habibullah and Safdar committed murder of Faqir Muhammad in furtherance of their common intentions. Muhammad Munir (PW-3) was also subjected to exhaustive cross-examination but nothing advantageous could be extracted except a few minor contradictions having no substantial bearing on the merits of the case and can be ignored safely. Muhammad Munir stood firm to the test of cross-examination and his testimony was not shattered. It is worth mentioning that the eye account furnished by Muhammad Munir (PW-3) and Muhammad Rashid (PW-2) being confidence inspiring, straightforward, free from any dishonest exaggeration and worthy of credence has rightly been considered and relied upon by the learned trial and appellate Courts. We are not impressed by the argument of Dr. Babar Awan learned ASC on behalf of the appellant that being chance and interested witnesses their statements should have been discarded. It is not out of place to mention here that Muhammad Rashid and Muhammad Munir had no enmity to get Shoukat Ali (appellant) involved in a heinous offence like murder and even otherwise no reasoning could be furnished by Dr. Babar Awan that why Muhammad Rashid and Muhammad Munir had implicated Shoukat Ali (appellant) for facilitation, abetment and instigation without having any grouse and grudge against Shoukat Ali which was even never alleged by them. The second limb of the argument is that being interested witness the statements of Muhammad Munir (PW-3) and Muhammad Rashid (PW-2) should have been discarded. "The concept of "interested witness" was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State (PLD 1962 SC 269). In Khalil Ahmed v. The State (1976 SCMR 161) the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human bloodstained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State (1970 SCMR 734) the testimony of four PWs. out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses, injuries sustained by two P.Ws proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others (PLD 1988 SC 274) and Shehruddin v. Allah Rakhia (1989 SCMR 1461 at 1465) where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not."
On the touchstone of the criterion as mentioned herein above the statements of Muhammad Rashid (PW-2) and Muhammad Munir (PW-3) have been examined. We are of the considered view that they were not interested witnesses and their version has rightly been considered and believed by the Courts below. The contention of learned ASC on behalf of appellant that Muhammad Rashid.(PW-2) and Muhmmad Munir (PW-3) were chance witnesses seems to be devoid of merits as they had furnished a plausible justification for their presence at the place of occurrence and as such they cannot be labeled as chance witnesses. In this regard reference can be made to case Riasat Ali and another v. The State (PLD 1991 SC 397).
We have also adverted to the prime contention of learned ASC on behalf of appellant that no role except proverbial lalkara could be attributed to the appellant hence the question of the sentence of life imprisonment as awarded to the appellant does not arise. The above contention seems to have been made in oblivion of the fact that Section 34 was also incorporated alongwith Section 302. We would like to discuss the import and objects of Section 34 PPC. The main object for the enactment of Section 34 is "to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support, and protection to the person actually committing the act. The nature of the offence committed by an accused depends upon the act done by him and the effect produced by it, and the sole object of this section is to lay down what act will be deemed to be done by the conspirators. This section is not a punitive section and does not enact a rule of evidence but enacts a common law principle of substantive law" (1935 Cr.L.J. 1393, 1953 All. 214).
"This section embodies the common-sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. If two or more persons combine in injuring another in such a manner that each person engaged in causing the injury must know that the result of such injury may be the death of the injured person, it is no answer on the part of any one of them to allege and perhaps prove that his individual act did not cause death, and that by his individual act he cannot be held to have intended death. Everyone must be taken to have intended the probable and natural results of the combination of acts in which he joined.
All are guilty of the principal offence, not of abetment. But a party not cognizant of the intention of his companion to commit murder, is not liable, though in his company, to do an unlawful act." In re Basappa (Vol.
51 Cr.L.J. 1950). "Common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. The leading feature of this section is the element of participation in action. It embodies a principle of joint liability in the doing of a criminal act and the essence of that liability is the existence of a common intention." (Sitaram v. State (Vol. 59 1958
Cr.L.J. 1380) Pandurang, Tukia and Bhillia v. The State of Hyderabad (1955 SCR 1083). It may not be out of place to mention here that "the section contemplates the case where more persons than one share in the doing of the act and it is necessary to bear in mind the definition of 'act' given in S. 33 and also the provisions of ss.
35, 37 and 38. The term 'act' contemplates a series of acts done by several persons, some perhaps by one of those persons and some by another, but all in pursuance of a common intention. A criminal' act means that unity of criminal behaviour which results in something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence." NGA TUN BAW AND ANOTHER V. EMPEROR (1907 UBR (P.C.) Crl.L.J.
205). "The words 'in furtherance of the common intention of all' have introduced, as an essential part of the section the element of a common intention prescribing the condition under which each might be criminally liable when there are several actors. 'Common intention' is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention. The common intention contemplated by this section is anterior in time to the commission of the crime, and does not refer to the time when the act is committed. The Privy
Council has held that it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.Common intention' within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most case it has to be inferred from his act or conduct or other relevant circumstances of the case. Same or similar intention must not be confused with common intention; the partition which divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if over-looked, will result in miscarriage of justice. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. Common intention does not mean similar intention of several persons.
To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and shared by them. The common intention ought to be determined from such known facts and circumstances which existed before the commencement of the criminal act as the criminal act itself is committed in furtherance of that common intention." (Muklesur Rahman & another v. The King (Vol. 51 1950 Cr.L.J. 945). "The question whether there was such an intention or not will have to depend in many cases on inferences to be drawn from proved facts and not on any direct evidence about a preconceived scheme or plan which may not be available at all. Mahmood, J., in Dharam Rai's case said "This section was the subject of consideration impliedly in the case of Queen v. Gorachand Gopee. At p. 456, Sir Bames Peacock clearly laid down the rule of law that mere presence of persons at the scene of an offence is not, ipso facto, sufficient to render them liable to any rule such as S. 34 enunciates, and that 'the furtherance of a common design' was an essential condition before such a rule applied to the case of an individual person. It was probably in consequence of this expression of view from such a high authority that the Legislature by S. 1 of Act XXVII of 1870, repealed the original S. 34; and in substituting another section therefore, inserted the important words 'in furtherance of the common intention of all,' as representing the condition precedent to each of such persons being held liable for the crime in the same manner as if it were committed by him alone. This change in the law is very significant, and it indicates to my mind that the original section having been found to be somewhat imperfectly worded, these additional words were introduced to draw a clear distinction that unpremeditated acts done by a particular individual, and which go beyond the object and intention of the original offence, should not implicate persons who take no part in that particular act. We have the opinion of an American jurists on the point, whom Mr. Mayne, in his Commentary on the Penal Code, quotes (Biship, S. 439) where that learned author, lying down the rule, goes on to say:--`But if the wrong done was a fresh and independent wrong, springing wholly from the mind of the doer, the other is not criminal therein, merely because when it was done he was intending to be a partaker with the doer in a different wrong.' This seems to me to be the right interpretation of the words in furtherance of the common intention of all' as they occur in S. 34 of the Penal Code" (In re Thipperudrappa [Vol.55 1954 Cr. L. J. 481). "The Supreme Court has held that it is well established that a common intention pre-supposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypotheses." (Pandurang v. State of Hyderabad (1955 Cr. L.J. 572).
"(a) It must be proved that criminal act was done by various persons.
(b) The completion of criminal act must be in furtherance of common intention as they all intended to do so.
(c) There must be a pre-arranged plan and criminal act should have been done in concert pursuant whereof.
(d) Existence of strong circumstances (for which no yardstick can be fixed and each case will have to be discussed on its own merits) to show common intention.
(e) The real and substantial distinction in between 'common intention' and 'similar intention' be kept in view
(Hidayatullah v. State 1976 P.Cr.L.J. 1067 Athar Khan v. State PLD 1972 Lah. 19 Hasan Din v. Muhammad Mushtaq (1978 SCMR 49), Chutta v. State (1995 Pakistan Criminal Law Journal 755). Shahadat Khan v. Home Secretary (PLD 1969 S.C. 158), Muhammad Nawaz v. State (PLD 1967 Lah. 952)."
In sequel to above-mentioned discussion the appeal being meritless is dismissed.
(Fouzia Fazal) Appeal dismissed.
PLJ 2007 SC 548
[Appellate Jurisdiction]
Present: Javed Iqbal & Hamid Ali Mirza, JJ.
MUHAMMAD YAQOOB, etc.--Appellants
versus
M/s UNITED BANK LIMITED, etc.--Respondents
Civil Appeal No. 592 of 2003, decided on 19.9.2006.
(On appeal from the judgment-dated 6.4.2000 of the Lahore High Court, Lahore passed in C.M. No. 47/B/1999).
Banking Companies (Recovery of Loans, Advances), Credits and Finances Act, 1997--
----S. 3--Civil Procedure Code, (V of 1908)--S. 12(2)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Provisions--Controversy as to whether an application u/S. 12 (2) of CPC is maintainable in the matter under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 has been set at naught by different High Courts in view the facts of each case--Applicability--No cavil to proposition that the provisions of CPC continue to be applicable being not ousted by provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances)--Section 12(2) CPC has been ousted or not should have been examined by judge in light of provisions as enumerated in S. 3 of Act, 1997, which could not be done--Held: Bare perusal would reveal that cogent reasoning has been given in Gold Star case (supra) for non application of S. 12(2) CPC which has not been taken into consideration by High Court--Appeal disposed of.
[Pp. 549 & 550] A, B & C
Mian Nusrat Ullah, ASC for Appellants.
Mr. Muhammad Afzal Sindhu, ASC for Respondent No. 1.
Nemo for Respondent Nos. 2-7.
Date of hearing: 19.9.2006.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the order dated 6.4.2002 passed by the learned Single Judge of Lahore High Court in Chambers whereby CMA No. 47/B/1999 has been dismissed pursuant to the dictum laid down in Gold Star v. Muslim Commercial Bank (2000 MLD 421).
"Leave is granted to resolve the contradictory views expressed by the Lahore High Court and Sindh High Court as reflected in judgment in "Gold Star v. Muslim Commercial Bank (2000 MLD 421), Mian Munir Ahmed Vs. United Bank Limited and three others (PLD 1998 Karachi 278), Messrs Tawakal Export Corporation and 5 others Vs. Muslim Commercial Bank Ltd. (CLC 1997 page 1342)".
"The appellant can seek relief under Section 12(2) of the Code of Civil Procedure. We would, therefore, leave the question of quantum of liability of the appellant to be taken up in terms of Section 12(2) CPC. That provision, needless to add, effectively provides for safeguards against a decree which may have, inter alia operated in excess of jurisdiction. The applicability of Section 12(2) CPC to the proceedings before a Special Court does not seem to be in doubt because Section 3 in the Banking Companies (Recovery of Loans) Ordinance, 1979, expressly mandates that the provisions of the Ordinance shall be in addition to, and unless otherwise provided, not in derogation of other laws. Besides, a Special Court, in all the powers of a Civil Court under the Code of Civil Procedure, which obviously includes powers under Section 12(2) CPC. What is more, procedure of such Court, relevantly, pursuant to Section 7 of the Ordinance, is the summary procedure provided for in Order 37 of the Code, in turn subject to Section 12, if attracted.
"As against this, the learned counsel for the respondent/Bank contends that the suit was entertained and tried by the learned Banking Court No.IV which had jurisdiction in the matter and that even the appellants/defendants had made on application for leave to defend before the Court and had been appearing before the Court, therefore, the objection that the learned Banking Court No.IV has proceeded without jurisdiction in the matter is merely an afterthought and has no substance whatsoever. It is contended that against the judgment and decree no appeal was filed which has thus attained finality in terms of Section 27 of the Act and no application under Section 12(2) of CPC was competent which was rightly dismissed by the learned Banking Court No-IV. It is. contended that there was no question of any misapprehension as to the date of hearing as on 5.8.1998 the date was fixed in the presence of the learned counsel who had appeared on behalf of the appellants/defendants. Her further contention was that the assertion of the appellants/defendants as to inadvertent noting of the date of hearing as 16.10.1998 is belied by the fact that application under Section 12(2) of CPC was filed on 15.10.1998."
A bare perusal would repeal that cogent reasoning has been given in the Gold Star case (supra) for non application of Section 12(2) CPC which has not been taken into consideration by the learned Single Judge in Chambers.
In sequel to above-mentioned discussion the order impugned is hereby set aside and the CMA No.47/B/1999 shall be treated as pending and decided in accordance with law and on merits of the case after affording proper opportunity of hearing to all concerned. The appeal is disposed of in above terms. These are the reasons for our short order dated 19.9.2006 which is reproduced herein below for ready reference:--
"For the reasons to be recorded separately this appeal is accepted and order impugned is set aside. The application preferred on behalf of applicant under Section 12(2) CPC shall be treated as pending and be disposed of in accordance with law and on merits by the Banking Court."
(Rafaqat Ali Sohal) Appeal accepted.
PLJ 2007 SC 551
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ch. Ijaz Ahmed, JJ.
NOOR HUSSAIN and others--Appellants
versus
Mst. HUSSAIN BIBI (widow) & others--Respondents
Civil Appeal No. 218 of 2003, decided on 20.9.2006.
(On appeal from the judgment dated 7.12.2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No. 636/1994).
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--When the appellate Court had decided the case in violation of law laid down by Supreme Court, then it is termed as material irregularity or illegality within the meaning of Section 115 of CPC--Respondent had placed on record documents relating to the year 1996-1997 through supplementary paper book--It is a settled law that record of later year is to be preferred--Held: Document having been placed on record by the appellants themselves was admissible in evidence and could be looked into by the Court for seeing through the matter--Appeal dismissed. [Pp. 554 & 555] A, B & C
1988 SCMR 851 & AIR 1927 Lah. 607, referred.
Order
Ch. Ijaz Ahmed, J.--The appellants/petitioners filed Civil Petition No. 313 of 2002 against the judgment dated 7.12.2001 of the Lahore High Court Rawalpindi Bench wherein the learned High Court had accepted the revision petition filed by the respondents against the appellants and set aside the judgment of the First Appellate Court and restored the judgment of the trial Court. Leave was granted vide order dated 6.2.2003 for reappraisal of evidence both oral and documentary placed on the file. Predecessor-in-interest of the petitioners filed a suit for permanent injunction against the respondents in the Court of Civil Judge Jhelum. The contents of plaint reveal that petitioners are owners in possession of land in question measuring 184 kanals, 11 marlas according to register Haqdaran-e-Zamin for the year 1980-81 since their forefathers and were cultivated 100 kanals out of the suit land. Rest of the land was used by them for the purpose of their cattles. Respondents/defendants intended to take illegal possession of the land in question which they had no right to do so. Respondents/defendants filed written statement controverting the allegations leveled in the plaint. The trial Court after framing the issues and recording the evidence, decreed the suit in favour of the petitioners to the extent of 56 kanals and dismissed the suit regarding 128 kanals vide judgment dated 17.1.1989. Petitioners being aggrieved filed appeal in the Court of Addl. District Judge Jhelum who decreed the suit qua whole land in question measuring 184 kanals, 11 marlas. Respondents being aggrieved filed Civil Revision No. 636 of 1994 in the Lahore High Court which was accepted vide judgment dated 7.12.2002 wherein judgment of the First Appellate Court was set aside and judgment of trial was restored.
The learned counsel for the appellants submits that learned High Court had erred in law to ignore the old entries in revenue records which attained the presumptions of truth by passage of time. The First Appellate Court had decided the cases within the parameters of the pleadings of the parties whereas the learned High Court had reversed the judgment of the First Appellate Court on the facts/evidence beyond the pleadings which could not be looked into under the law. He further maintains that revenue authorities have no jurisdiction whatsoever to change the long standing entries with regard to the rights of the parties as the parties had to approach the Civil Court for determination of their title in view of long standing entries in the revenue record. The learned First Appellate Court had reversed the finding of the trial Court with cogent reasons keeping in view the documentary evidence and had given due weight to the documentary evidence as compared to the oral evidence.
The learned counsel for the respondent has supported the impugned judgment vehemently.
We have considered the submissions made by the learned counsel for the parties and have perused the record. It is better and appropriate to reproduce the operative part of the judgment of the trial Court to the extent of its finding on Issue No. 1 after proper appreciation of evidence:--
The only independent witness available on the file is the report of the Gardawar and other proceedings conducted by the revenue authorities regarding the correction of the entries in the revenue record. According to the Ex. D-3 the report of the Girdawar the plaintiffs are only in possession of 56 kanals and their entry in the revenue record about the total suit land is incorrect. Therefore, I place my reliance on the report of the Girdawar who visited the spot conducted the inquiry there in nothing on the file which shows any special entries of the Girdawar in favour of the defendants and any ill-will spite or enmity against the plaintiffs. He is a revenue official and is independent and impartial witness. Therefore, I hold that plaintiffs are only owner in possession of 56 kanals out of 184 kanal and 11 marlas as Hissadar in Shamlat Deh and the issue is decided accordingly".
"I failed to understand, as to when, the plaintiffs/appellants were owner in Shamlat and they were in possession according to revenue record up to 1980/81 when the Girdawar has in examination in chief deposed that Sanghar Khan was in occupation of the suit land measuring 128 kanals 11 marlas. This statement of the Girdawar in view of documentary evidence discussed above has no validity", 6. The learned High Court had reversed the finding of First Appellate Court after proper appreciation of evidence as is evident from para 7 of the impugned judgment which is also reproduced hereunder:--
"The evidence of PW.1 and PW.2 is not confidence inspiring. The contention of these witnesses that they are cultivating almost 100 kanals of suit land is belied their own documents, wherein land measuring 128 kanals is shown as Ghair Mumkim Khundar. According to khasra Gardawari placed on the record only 56 kanals 11 marlas was shown to be cultivated by the respondents. On the other hand, the case of the petitioners was supported by the statement of DW-1 Muhammad Shafi Naib Office Qanungo, Muhammad Nazeer Gardawar DW-2, Allah Ditta DW.3 and Muhmmad Saddique one of the petitioner as DW-4. The Naib Office Qanungo produced the file of the proceedings conducted by the revenue deptt. on the application of Sagar Khan. Muhammad Nazir, Gardawar, conducted the investigation at the spot and found that Muhammad Hussain one of the respondent was in possession of 56 kanals, whereas Saghar Khan was in possession of 128 kanals 11 marlas. This DW further stated that only 56 kanals out of the suit land was cultivated by the respondent while the rest of the land was barren. From a perusal of the oral and the documentary evidence on the record the finding of the learned appellate Court that the respondents were in possession of the entire 148 kanals 11 marlas and were cultivating about 100 kanals of the same is not borne out from any material on the record. The petitioners Allah Ditta etc. did not challenge the finding of the trial Court recorded in its judgment and decree dated 17.1.1989 and shall be bound by the same. However this civil revision is liable to succeed in respect of the remaining 128 kanals which have been proved on the record to be not in possession of the respondents. Resultantly, this civil revision is allowed and the judgment and decree dated 3.11.1994 of the learned appellate Court is set aside and decree dated 17.1.1989 of the trial Court is restored. Parties to bear their own costs. "
"It seems clear to us that this is a case where the First Appellate Court has reversed the finding of the trial Judge regarding the status of Tulsidas without paying any heed to the reasoning given by the first Court. It has also wrongly discounted a very fundamental piece of evidence in the case, namely, the admission of Tulsidas himself in the partition suit, already referred to above. The High Court was, therefore, quite right in disagreeing with the lower appellate Court and in reversing its finding in second appeal and in restoring that of the first Court as regards the status of Tulsidas as a sub-tenant".
It is a settled proposition of law that when the appellate Court had decided the case in violation of law laid down by this Court, then it is termed as material irregularity or illegality within the meaning of Section 115 of CPC as law laid down by this Court in Shaukat Nawaz's case (1988 SCMR 851). The trial Court had decided the case in view of the report of Gardawar who had visited the spot and also after perusing the inquiry file. It is pertinent to mention here that DW2 Muhammad Nazir was a witness of the appellants/defendants and this fact was not considered in its true perspective by the First Appellate Court and infact it was totally mis read and non read the evidence of DW2 which was not properly scrutinized and re-examined in its true perspective. All the contentions which are raised before us had already been raised before the trial Court by the learned counsel for the appellants which were rejected after application of mind with cogent reasons which were reversed by the First Appellate Court without proper application of mind and without proper reasons, therefore, the judgment of the First Appellate Court was not in consonance with the law laid down by this Court in Gouranga Mohan Sikdar's case (PLD 1970 SC 158) and Mollah Ejahar Ali's case (PLD 1970 SC 173).
The respondents had placed on record documents relating to the year 1996-97 through supplementary paper book. It is a settled law that record of later year is to be preferred. See Mt. Alo and others vs. Sher and others (AIR 1927 Lah. 607). This fact alone is sufficient to discard the pleas raised by the learned counsel for the appellants. It is pertinent to mention here that learned trial Court had decided the case against the appellants on the documents which were produced by the appellants/defendants before the trial Court. It is a settled principle of law that document having been placed on record by the appellants themselves was admissible is evidence and could be looked into by the Court for seeing through the matter. The learned trial Court was justified to take into consideration report of Gardawar alongwith complete file. The judgments of the learned trial Court and the learned High Court are in accordance with the law laid down by this Court in Khuda Yar's case (PLD 1975 SC 678). This Court does not, normally, interfere in the concurrent findings of the Courts below (the High Court and the trial Court) while exercising power under Article 185(3) of the Constitution.
In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the learned High Court and this appeal has no merit which is dismissed accordingly.
(S.A.) Appeal dismised.
PLJ 2007 SC 555
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. &
Saiyed Saeed Ashhad, JJ.
MAJOR (Rtd). KHAWAJA MUHAMMAD YOUSAF
and others--Appellants
versus
ZILA COUNCIL and others--Respondents
Civil Appeals No. 1301, 1305 and 1306 of 2006 & in CPs 1586, 1529 and 1530-L of 2004, decided on 20.9.2006.
(On appeals from the judgments dated 25.3.2003, 11.3.2004 passed by Lahore High Court Lahore in W.P. No. 13510/02, W.Ps 3437 & 3438/2004).
Contract Act, 1872 (IX of 1872)--
----S. 233--Punjab Local Council's (Lease) Rules, 1990, R. 8(2)--Jurisdiction to adjudicate--Contractor was authorized to collect export tax on behalf of Zila Council--Applicant can press his claim against Zilla Council but he should file his claim within prescribed time by joining contractor as party and on having accepted the overcharged amount submitted a time barred claim--Chief Minister has no jurisdiction to adjudicate upon the matter--It was imperative upon the appellant to have joined contractor as party--When the claim is lodged beyond the period of limitation making such recovery from the contractor as per Rule 8(3) and for reason that after the termination of his contract securities have been released to him--Had appellant put up his claim according to rules, there would have been no impediment for him in getting relief--Judgment relied upon does not lay down the procedure by which liability may be enforced Section 233 Contract Act creates a joint liability so that judgment may be obtained against both principal and agent--Appeals dismissed.
[P. 559] A
AIR 1917 Bombay 268, relied upon
Mr. S. M. Masood, ASC for Appellant (in CA 1301/06).
Mian Nisar Ahmad, ASC for Appellant (in CAs 1305/1306/06).
Khawaja Muhammad Afzal, ASC for Respondents.
Date of hearing: 20.9.2006.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--Facts of the above noted cases are narrated separately:
Civil Appeal No. 1301 of 2006: This appeal is by leave of the Court against the judgment dated 25th March, 2003 passed by Lahore High Court, Lahore.
Facts relevant for disposal of the case are that petitioner paid Rs. 6,300/- per container (containing a harvester each) from 13th January, 1997 to 8th April, 1997 vide receipts dated 13.1.1997, 25.1.97, 28.1.97, 2.2.97, and 8.4.97 totaling Rs. 31,500/- to Zila Council Lahore, instead of Rs. 100/- each as per approved schedule. Subsequent thereto appellant lodged claim before Chief Minister, Punjab who referred it to the Secretary, Local Government and Rural Development.
Similarly Rs. 840/- per container was charged from appellant by the Zila Council, Sialkot while returning from Sialkot after delivery of goods. The petitioner submitted an application to the Chief Minister Punjab and ultimately Secretary Local Government and Rural Development ordered that overcharged amount be refunded to the appellant. In pursuance of such directions, the amount overcharged was refunded to appellant, but the penalty imposed upon the Zila Council was not paid to him. Therefore, he approached the office of Ombudsmen Punjab for direction to pay 11 times penalty as provided under Rule 8(2), Punjab Local Councils (Lease) Rules, 1990 (hereinafter referred to as, the Rules 1990) as amended but the request so made was not considered. As such he filed Constitutional Petition before the High Court but without any success. Learned High Court in the following para concluded that it is the contractor but not the Zila Council who is liable to pay 11 times penalty of the overcharged the tax:--
"5. The relevant rule reads as under:
"If the lessee is found over-charging any tax, rate, fee, toll, cess or any other charge he shall be liable to refund the excess amount with an amount equal to eleven times the excess amount as penalty to the person from whom overcharging had been made."
A perusal of above rule shows that it is the contractor, who in case of misconduct is penalized and is bound to pay eleven times penalty of the overcharged amount to the aggrieved person. The petitioner cannot call upon Zila Council to reimburse the overcharged amount to him as Zila Council had not received the amount from the contractor itself. The liability, if any in this context, is that of the contractor only. Petitioner may, if so advised, enforce his claim against the contractor. Zila Council is not under any obligation to pay eleven times penalty to the petitioner. The petition has been submitted under misconception of germane law on the subject and is considered to be without merit."
Civil Appeals Nos. 1305-1306/06
These appeals are by the leave of this Court against the judgment dated 11th March, 2004 passed by Lahore High Court, Lahore in Writ Petition No. 3437 of 2004.
The appellant company imported raw material for use in manufacturing plants located within the territorial limits of district Sheikhupura. The Zila Council Lahore overcharged the Zila Tax during transit of trade from the local limits of Lahore. Later on appellant filed its claim for refund of excess charged amount from the appellant but its claim remained pending, therefore, the Ombudsmen Punjab, Lahore was approached who on 31.12.2002 issued direction to DCO & EDO to refund the amount within three months. Ultimately it was found by the authorities that the amount is due against the different contractors, as such his claim was not satisfied. Under the circumstances a writ petition was filed by the appellant on the premises that after the termination of the contract it is the liability of the principal to make the payment and the principal cannot escape from his liability. Learned High Court on having examined the case of the appellant declined to grant relief.
Learned counsel for the appellants contended that under Rule 8(2) of the Rules 1990 it is the lessee who is liable to refund excess charged amount and the penalty on it but after the termination of the lease period, Zila Council, Lahore being the principal has no legal obligation to discharge the liability of its agent. Reliance in this behalf has been placed by in the case of Shivlal Motilal Vs. Birdichand Jivraj and another (AIR 1917 Bombay 268).
On the other hand learned counsel contended that appellant had not joined the lessee (contractor) as party before the High Court, therefore, in view of provision of Rule 8(2) of Rules 1990, the respondent Government is not bound to discharge the liability of the contractor. Similarly appellant should have put up his claim within the prescribed period under the rules to recover 11 times penalty on overcharged amount otherwise the claim was not liable to be entertained.
We have heard learned counsel for the parties and have gone through the relevant rule which has also been reproduced by the learned High Court in the para which has been reproduced herein above. On having gone through the said rule no second opinion can be formed except that it is the lessee who would be liable to make payment of 11 times penalty on overcharged amount. A perusal of sub-rule (3) of Rule 8 of the Rules 1990 suggests that "if, due to any miscalculation or error any amount has been charged in excess from any person such person may within two days of such payment, apply to the Taxation Officer of the Local Council for the refund of the amount charged in excess." It is admitted fact that against the overcharged exit tax, datewise detail of which has been mentioned herein above, first application was submitted much beyond the period of limitation. Secondly the applications submitted for recovery of 11 times penalty on overcharged amount was not claimed as per the provisions of rules. Statedly on the recommendations of competent authority overcharged amount was paid from securities of the contractors, available with the departments. Later on appellants re-agitated their claim for the recovery of the amount of penalty much after the period of termination of the contract obviously beyond the period of limitation i.e two days under rule 8(3), therefore their claims were rightly declined. Besides in the meantime the securities retained by the principal were released, because till then the appellants had not succeeded in getting their claim registered for recovery of the amount of penalty but despite of it, department had taken steps for effecting the recovery of this amount as land revenue for which statedly proceedings are still pending without any positive result. As far as the contention of learned counsel for the appellant (Maj. (Rtd) Khawar Muhammad Yousaf) that after the termination of the lease contract awarded by the Zila Council to the contractor, it is the principal who had to pay the amount. It may be noted that according to Section 233 of the Contract Act in cases where the agent is personally liable, a person dealing with him may hold either him or his principal, or both of them, liable. Admittedly the contractor was authorized to collect export tax on behalf of Zila Council and appellant can press his claim against Zila Council but he should file his claim within prescribed time by joining the contractor as party as well. In the instant case he himself had not demanded 11 times penalty on the overcharged amount originally and subsequently on having accepted the overcharged amount submitted a time barred claim not to the relevant quarters but to the Chief Minister who otherwise has no jurisdiction to adjudicate upon the matter. Under the circumstances of the case it was imperative upon the appellant to have joined contractor as a party as well. More particularly when he was aware that the claim is being lodged much beyond the period of limitation of two days for making such recovery from the contractor as per rule 8(3) and also for an added reason that after the termination of his contract securities have been released to him. Had appellant put up his claim strictly according to rules, then there would have been no impediment for him in getting relief. In the judgment which has been relied by the learned counsel it has also been held that Section 233 Contract Act, enacts substantive law, laying down who shall be held liable, and does not merely lay down the procedure by which the liability may be enforced. It is further observed that this section merely creates a joint liability so that judgment may be obtained against both principal and agent. Therefore, it has not advanced the case of appellants in any manner.
Thus for foregoing reasons, appeals are dismissed with no order as to costs.
(S.A.) Appeal dismissed.
PLJ 2007 SC 560
[Appellate Jurisdiction]
Present: Javed Iqbal & Hamid Ali Mirza, JJ.
ABDUL MAJID, etc.--Appellants
versus
Mst. ZUBEDA BEGUM, etc.--Respondents
Civil Appeal No. 1377 of 2001, decided on 25.9.2006.
(On appeal from the judgment dated 15.3.2001 of the Lahore High Court, Lahore, passed in C.R. No. 357 of 1989).
(i) Limitation Act, 1908 (IX of 1908)--
----Ss. 5 & 14--Constitution of Pakistan, 1973--Art. 185(2)(d)(e)--Condonation of delay--Sufficient cause--Controversy revolves around the question as to whether time spent in filing and pursuing review petition does constitute "sufficient cause" for condonation of delay in filing appeal. [P. ] A
(ii) Words and Phrases--
----The words "sufficient cause" as used in S. 5 of Limitation Act, 1908 have its own impact and significance--"Sufficient cause" neither can be defined precisely nor specific yardstick can be fixed for its determination as it varies from case to case. [P. ] B
(iii) Constitution of Pakistan, 1973--
----Art. 185(2)(d)(e)--Valuable rights cannot be snatched on the ground that a review petition was filed in good faith as appeal could have been filed conveniently--Respondents would not be deprived of the valuable rights which they have acquired due to laches and negligence of the appellants. [P. ] C
Mr. Jariullah Khan, ASC for Appellants.
Mr. M. A. Qureshi, AOR for Respondent No. 1.
Nemo or Respondents Nos. 2 & 3.
Date of hearing: 25.9.2006.
Judgment
Javed Iqbal, J.--This appeal is preferred under Article 185(2)(d) (e) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment dated 15.3.2001 passed by learned single Judge of the Lahore High Court, Lahore, whereby the civil revision preferred on behalf of respondents has been accepted.
Heard Mr. Jariullah Khan, learned ASC on behalf of appellants, scanned the entire record and perused the judgments of learned trial and appellate Courts as well as judgment impugned. The entire controversy revolves around the question as to whether the time spent in filing and pursuing the review petition does constitute "sufficient cause" for condonation of delay in filing appeal? Before the said question could be answered it must not be lost sight of that the remedy of filing review was chosen by the petitioner himself against the judgment and decree dated 4.11.1984. The review petition was accepted but subsequently on filing appeal by the respondents it was reversed. It is also an admitted feature of the case that civil revision was preferred by the appellants but not pressed on the plea that the original judgment and decree dated 4.11.1984 would be challenged by way of appeal and seeking condonation of delay for the period spent in filing appeal. Now we adverted to the question, as mentioned herein above. The words "sufficient cause" as used in Section 5 of the Limitation Act, 1908 have its own impact and significance. The existence of "sufficient cause" is sine qua non for condonation of delay. In so far as "sufficient cause" is concerned neither it can be defined precisely nor a specific yardstick can be fixed for its determination as it varies from case to case. It can, however, be said with certainty that every cause for condonation of delay cannot be equated with that of "sufficient cause" which in our view amounts to cogent reasoning, convincing justification and satisfactory explanation.
The provisions as contained in Sections 5 and 14 of the Limitation Act, 1908 were discussed in case Sherin v. Fazal Muhammad (1995 SCMR 591), relevant portion whereof is reproduced herein below:-
"5. Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed himself of all relevant factors, taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But, the epithet of "reasonable", opens wide the measure of application of this yardstick, on the factual plain, for the word "reasonable" is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently, in ultimate analysis, would depend on the circumstances of each case had cannot be determined on the foundation of any judicial syllogism.
The criterion of "due diligence" for enlargement of time is prescribed by Section 14 of the Limitation Act, which upon its terms applies only to the suits and applications and not to the appeals. On the other hand Section 5 is applicable to the appeals but it does not apply to suits. The question of condonation of delay, therefore, has to be examined on the basis of Section 5 and not Section 14 of the Limitation Act. Not unoften, while examining the question of condonation of delay, in filing the appeals, the Courts have been invoking the principles underlying Section 14 of the Act. The High Court has declined to condone the delay entirely on the touchstone of Section 14. It is, however, to be remembered that expression "due diligence" and "good faith" appearing in Section 14 do not figure in Section 5. The condition prescribed in the latter section for its applicability is "sufficient cause" but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case. We may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract Section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a "sufficient case" within the meaning of Section 5 for condonation of the delay."
The case in hand has been examined on the touchstone of the criterion as mentioned herein above and we are of the view that since valuable rights have been accrued in favour of respondents it cannot be snatched on the ground that a review petition was filed in good faith as appeal could have been filed conveniently. In other words the respondents should not be deprived of the valuable rights which they have acquired due to the laches and negligence of the appellant. In this regard we are fortified by the dictum as laid down in Rehmatullah v. Ulas Khan (1968 SCMR 975), Abdul Hamid v. Chief Settlement Commissioner Lahore (1968 SCMR 120), Rahim Bux v. Settlement Authorities (1968 SCMR 78), Ahmad Din v. Mst. Rasool Bibi (1968 SCMR 843).
The learned single Judge in chambers has examined the question of condonation of delay in a comprehensive manner in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference:--
"7. The argument of learned counsel for the respondent that time consumed in proceeding arising out of review should necessarily be deemed as "sufficient cause" within the meaning of Sections 5 and 14 of the Limitation Act and should be excluded. Suffice it to say, that such proposition if accepted would lead to ludicrous situation. This would mean that a loosing litigation as a matter of right shall have two remedies against a decree, one of seeking review and even loosing the case in the review proceedings up till the apex Court, can challenge the decree afresh by filing a time barred appeal and seek condonation of delay on the reasoning that the review matter was being bonafidely pursued, therefore, the whole period consumed in this behalf be excluded from limitation. This is exactly what is being claimed by the respondent, in the present case. The petitioner should have pursued the revision petition before this Court which was withdrawn. I am not convinced by the submission of the learned counsel for the respondent, that it was on the advice of this Court, the petitioner withdrew the revision, because this seems to be result of an after-thought, as there is nothing in the order reproduced above, that this Court had induced the petitioner to file the appeal. Possibility cannot be ruled out that this Court was about to dismiss the revision petition, when the learned counsel withdrew the matter by making statement that he would like to pursue the remedy of appeal."
No illegality or irregularity could be pointed out by the learned ASC on behalf of appellants warranting interference in the judgment impugned. In sequel to above mentioned discussion the appeal being merit less is dismissed.
(R.A.) Appeal dismised.
PLJ 2007 SC 563
[Review Jurisdiction]
Present: Sardar Muhammad Raza Khan &
Muhammad Nawaz Abbasi & Falak Sher, JJ.
MUHAMMAD ZUBAIR & others--Petitioners
versus
MUHAMMAD SHARIF--Respondent
Civil Review Petition No. 105 of 2005, decided on 15.9.2006.
(On appeal from the judgment dated 18.4.2005 passed by this Court in CA No. 987 of 2000).
(i) Supreme Cour Rules, 1980--
----O.XXVI--Constitution of Pakistan, 1973, Art. 188--Scope of Review is very limited and without pointing out a patent error of law or fact apparent on the record affecting the result to succeed in Review--Right of inheritance cannot be established by merely placing on record the pedigree table and certain documents pertaining to revenue record. [Pp. 564 & 565] A & B
(ii) West Pakistan (Shariat Application) Act, 1962--
----S. 2-A--A female owner may or may not have a limited interest under custom, therefore all female owners ipso facto would not be treated as limited owners--Review Petition dismissed. [P. 565] C
Mr. Gulzarin Kiani, ASC and Ch. Akhtar Ali, AOR for Petitioners.
Mr. Ibadur Rehman Lodhi, ASC for the Respondent.
Date of hearing: 15.9.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 188 of the Constitution read with Order XXVI of Supreme Court Rules, 1980 has been filed for review of the judgment dated 18.4.2005 passed in CA 987/2000. The main contention raised by the learned counsel in support of this petition is that parties belonged to the common ancestor and Mst. Daulan was a limited owner, therefore, on termination of her limited interest by virtue of Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the property would be distributed amongst the successors of the lost male owner in accordance with law of Shariah whereas this Court without taking notice of the material evidence of inter se relationship of the parties available on record, held that petitioners were not entitled to inherit the property in dispute. The learned counsel placing reliance on the pleading of the parties and insigned/unattested copies of the revenue record, argued with vehemence that the relationship of the petitioners with the last male owner stood established beyond doubt and submitted that these documents were true copies of the originals which were exhibited in evidence before the trial Court but on confrontation that these documents were not certified copies of the exhibits and could be considered and further the genuineness of these documents was also not ascertainable on the basis of the oral evidence of the parties, learned counsel in a sentimental manner emphasized that he was satisfied about the authenticity of these documents. We are afraid the satisfaction of the learned counsel regarding the authenticity or genuineness of a document is not sufficient to satisfy the requirement of law and the Court must determine the factual position on the basis of legal evidence. Be that as it may, the scope of review is very limited and without pointing out a patent error of law or fact apparent on the record affecting the result, it is difficult to succeed in review.
Learned counsel for the respondent, has vehemently opposed this petition with the contention that neither Mst. Daulan was proved as limited owner nor the petitioners have been able to establish their right in the succession of last male owner, therefore, no exception can be taken to the judgment under review in which all question including the issues raised in this review petition have been exhaustively discussed.
The documents, referred above, being relied upon by the learned counsel although were placed on the file of main appeal but the same were not part of the judicial record to be looked into for any purpose and this may be pointed out that right of inheritance cannot be established by merely placing on record the pedigree table and certain documents pertaining to review record, without specific proof of relationship with last male owner through the oral evidence of the person who has direct knowledge of such relationship. In the present case the existence of relationship between the parties has not been proved through any reliable evidence to establish on record that petitioners fall in the line of succession of last male owner and Mst. Daulan was holding the status of limited owner, consequently, in absence of any evidence, no presumption could be raised regarding her status as limited owner for the purpose of Section 2-A of West Pakistan (Shariat Application) Act, 1962. A female owner may or may not have a limited interest under custom, therefore all female owners ipso facto would not be treated as limited owners. Be that as it may, in view of the factual position of the present case, no exception could be taken to the verdicts given by the Civil Court that the claim of petitioners was unfounded and Mst. Daulan was a full owner. The learned counsel without pointing out any substantial error in the judgment has tried to re-open the case on merits to convince us that the concurrent findings of all the three Courts on a question of fact were suffering from inherent defects. We having heard the learned counsel for the parties at length, have not been able to find out any good reason for the review of the judgment and this petition being without any substance is dismissed.
(S.A.) Petition dismissed.
PLJ 2007 SC 565
[Appellate Jurisdiction]
Present : Javed Iqbal & Abdul Hameed Dogar, JJ.
ZONAL MANAGER U.B.L. and another--Petitioners
versus
Mst. PARVEEN AKHTAR--Respondent
C.P. No. 3216-L of 2003, decided on 8.1.2007.
(On appeal from the order dated 9.10.2003 of the Lahore High Court, Lahore passed in W.P. No. 14095 of 2003).
(i) Constitution of Pakistan, 1973--
----Arts. 185(3) & 199--Constitutional jurisdiction, attraction of--Contractual rights and obligations, enforcement of--Contractual rights and obligations have to be enforced through Courts of ordinary jurisdiction--Validity--High Court in exercising its writ jurisdiction will be loath to interfere in matters arising out of contractual obligations--Normal remedy at law being a suit for the enforcement of contractual rights and obligations, the High Court will not grant relief under Art. 199 merely for the purposes of enforcing contractual obligations notwithstanding the very extensive nature of power of High Court under Art. 199. [Pp. 567 & 568] A
(ii) Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction, Scope--Where rights are based on statute law or rules framed thereunder or when an obligation or duty vests in a public functionary or a statutory body, performing functions in relation to the affairs of the federation or a province or a local authority, Constitutional jurisdiction can be attracted--Contractual rights and obligations may be enforced in Constitutional jurisdiction. [P. 568] B
1968 SCMR 1136, PLD 1962 SC 108, PLD 1987 Lah. 262, PLD 1986 Quetta 181, PLD 1958 SC 267, AIR 1953 Punjab 239, AIR (39) 1952 Vindhya Pradesh 13 ref.
Syed Sharif-ud-Din Pirzada, Sr. ASC with Mehr Khan Malik, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 8.1.2007.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the order dated 9.10.2003 whereby writ petition preferred on behalf of Mst. Parveen Akhtar (respondent) has been accepted.
Rs. 50,000/- was invested by Mst. Parveen Akhtar (respondent) with United Bank Limited under "Uni Sona Scheme" on 18.7.1996 on the persuasion of Bank Authorities by means of a hand bill/publication whereby an undertaking was given three times return within seven years. The commitment could not be honoured by the Bank as an amount of Rs.1,000,00/- was returned on 19.9.2003 inspite of Rs.1,50,000/- which is the claim of the respondent. The petitioner got redressed her grievances by invocation of the constitutional jurisdiction. It was directed vide order impugned by the learned Single Judge in Chambers relevant portion whereof is reproduced herein below that commitment made in the "Hand Bill" issued by the United Bank Limited i.e. "you earn 26 percent per annum and triple your investment in 7 years" must be honoured:
"On the face of the circumstances, submission of the learned counsel for the petitioner has weight as the bank authorities are bound to honour their commitment as incorporated in their handbill Annex.B. Its first term reads as under:--
"You earn 26 % per annum and triple your investment in 7 years"
I accordingly direct Respondent No. 1 to look into the grievance of the petitioner on a fresh representation to be filed by the petitioner within a week's time and to redress the same within a period of one month from the date of conveyance of this order to him. Learned Additional Advocate General, present on Court's call, will ensure that these orders are complied. With this observation, this petition stands disposed of."
Heard Mr. Sharifuddin Pirzada, learned Sr. ASC on behalf of petitioners who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective, which resulted in serious miscarriage of justice. It is also contended emphatically that the contractual obligation could not have been enforced by invoking a constitutional jurisdiction under Article 199(1)(a)(i) as no writ could have been issued against United Bank Limited being a public limited company which is not controlled and managed by the Federal Government or Provincial Government and is not performing any functions in connection with the affairs of the Federation, a Province or a Local Authority. It is argued that proper opportunity of hearing was not afforded to the petitioner causing serious prejudice against it. Mst. Parveen Akhtar (respondent) remained absent in spite of service.
We have carefully examined the above-noted contentions canvassed at bar by Mr. Sharifuddin Pirzada, learned ASC on behalf of petitioners, perused the available record as well as the order impugned. A bare perusal of the order impugned would reveal that it has been passed in a casual and cursory manner without having gone through the nature of controversy and affording proper opportunity of hearing to the petitioner. It is also ignored that by now it is well settled that "contractual rights and obligations have to be enforced through Courts of ordinary jurisdiction. The High Court in exercising its writ jurisdiction will be loath to interfere in matters arising out of contractual obligations. The normal remedy at law being a suit for the enforcement of contractual rights and obligations, the High Court will not grant relief under Art. 199 merely for the purpose of enforcing contractual obligations notwithstanding the very extensive nature of the power of the High Court under that Article. (Muzafaruddin v. Chief Settlement Commissioner (1968 SCMR 1136) Momin Motor Co. v. R.T.A. Dacca (PLD 1962 SC 108), Muhammad Ramzan v. Secretary Local Government, Govt. of Punjab (PLD 1987 Lah. 262), Pakistan Mineral Development Corporation Ltd. v. Pak. WAPDA (PLD 1986 Quetta 181), Chandpur Mills Ltd. v. District Magistrate Tippera (PLD 1958 SC 267), Chattar Singh v. State of Punjab (AIR 1953 Punjab 239) Raghavendra Singh v. State of Vindhya Pradesh (AIR (39) 1952 Vindhya Pradesh 13). We are conscious of the fact that "where rights are based on statute law or rules framed thereunder or when an obligation or duty vests in a public functionary or a statutory body, performing functions in relation to the affairs of the federation or a province or a local authority, constitutional jurisdiction can be attracted. In such situations even contractual rights and obligations may be enforced in constitutional jurisdiction. This, however, is subject to the important rider of corresponding absence of an adequate remedy."
The following points ought to have been considered by the learned Single Judge to set the controversy at naught:--
(i) Whether the contractual obligation between the private parties could have been enforced by invoking the constitutional, jurisdiction as conferred upon the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan?
(ii) Whether the writ could have been issued against United Bank Limited being a public limited company which is not controlled by the Federal Government or Provincial Government and having nothing to do with the affairs of the Federation, a Province or a Local Authority?
(iii) Whether the investment was made by the respondent on loss and profit share basis or otherwise?
SC Farida Zafar Zehri v. Feroza Khanum PLJ
(Raja Fayyaz Ahmad, J.)
2007 Farida Zafar Zehri v. Feroza Khanum SC
(Raja Fayyaz Ahmad, J.)
preferred on behalf of respondent shall be treated as pending and decided afresh after affording proper opportunity of hearing to all concerned in accordance with law and on merits within a period of three months.
(R.F.K) Petition Accepted
PLJ 2007 SC 569
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmad, JJ.
FARIDA ZAFAR ZEHRI and others--Petitioners
versus
FEROZA KHANUM and others--Respondents
C.P. No. l68-Q of 2006, decided on 27.12.2006.
(On appeal from the judgment dated 6.10.2006 of the High Court of Balochistan, Quetta passed in CR No. 96/2006).
Civil Procedure Code, 1908 (V of 1908)--
----O.XIV, R. 1 & O.XVI, R. 1--S. 12(2)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Principle--Production of evidence--Dismissal of application u/s 12(2) CPC on account of non-filing of list of list of witnesses and non-production of evidence even without framing of issues--Validity--Order passed by trial Court was appropriately interfered with by High Court as no evidence could have been even produced in absence of issues which in the given circumstances of the case essentially to have been framed--Even in the absence of filing of list of witnesses and failure to produce evidence on the date fixed for that purpose; it was expected from trial court to have itself framed issues instead of non-suiting them and then to have directed the applicants/plaintiffs to produce evidence, which course admittedly being more nearer to equity, fair play and in accord with the relevant principles of O. XIV, R. 1 and Order XVI Rule 1 CPC--Leave refused. [P. 571] A
Mr. Mumtaz Yousaf, ASC for Petitioners.
Nemo for Respondents.
Date of hearing: 26.12.2006.
Order
Raja Fayyaz Ahmed, J.--Respondents No. 1, 2 & 3 being successor-in-interest of late Zafar Iqbal Zehri filed a suit through their attorney for declaration, partition, possession and consequential relief against the petitioners and the official respondents in the Court of learned Senior Civil Judge-I Quetta in respect of their claimed heritable shares in the properties left by their predecessor-in-interest. The said attorney afterwards filed a miscellaneous application before the learned trial Court for withdrawal of the suit which was allowed by the above said learned Court, accordingly suit was dismissed as withdrawn vide order dated 23.4.2005. Subsequent thereto on or about 2.6.2005 the other constituted and appointed general attorney of the above said respondents/plaintiffs namely Mir Maqbool Ahmed Lehri filed application u/S. 12(2) CPC seeking for recalling/setting aside the order dated 23.4.05 whereby the suit of the said respondents was dismissed as withdrawn on the grounds mentioned in the application including that the plaintiffs held faith in their previous attorney who was supposed to look after their interests, and; they being `Parda Nasheen' ladies were absolutely not in a position to appear before the learned Court on each and every date of hearing, but their said attorney by committing fraud and in breach of trust deprived them of their claim for due heritable shares in the property left by their predecessor-in-interest without their knowledge and notice; withdrew from the suit instead of looking after their interests and diligently prosecuting the suit.
This application was resisted by the petitioners by means of their rejoinder to the application. The learned Senior Civil Judge vide order dated 15.2.2006 directed the Respondents No. 1 to 3/plaintiffs in the suit to file list of their witnesses and adjourned the matter to 11.3.2006 for their evidence; on which date, the said learned Court dismissed the application filed u/S. 12(2) CPC for non-prosecution on account of the failure of the applicants to produce evidence and for non-filing of the list of witnesses within seven days without any sufficient cause which was assailed by the said respondents by filing Civil Revision No.96/06 before the learned High Court of Balochistan Quetta; allowed by the learned Single Judge in Chamber vide order dated 6.10.2006, accordingly the learned trial Court was directed to frame issues in the matter and then to provide reasonable opportunity to the parties for leading evidence by remanding the matter to the learned trial Court to be decided afresh in accordance with law, hence this petition for leave to appeal.
It is worth while to note that in the application filed u/S. 12(2) CPC specific plea of fraud allegedly committed by the attorney of the plaintiffs was made which was denied and disputed by the petitioners who earlier had filed their written statement as well contesting the suit on various grounds of facts etc. Inasmuch as; it was contended in the rejoinder to the application that the dispute between the parties was settled and the attorney of the plaintiffs namely, Mir Mubashar Ibrahim without any fraud committed by him filed application for withdrawal of the suit and even till date of filing of the rejoinder, the attorney power of Mir Mubashar Ibrahim has been subsisting but with a view to extort money and blackmail the said respondents (now the petitioners) application was filed seeking for recalling of the order dated 11.3.2006, thus; in our considered opinion the learned Single Judge in the High Court very appropriately in view of the respective pleadings of the parties concluded for disposal of the application after framing of the issues and then to provide reasonable opportunity to the parties to produce evidence. Viewed in this context the order passed by the learned trial Court dismissing the application was appropriately interfered with by the learned Judge in the High Court as no evidence could have been even produced in absence of issues which in the given circumstances of the case essentially to have been framed and thus the said order of the trial Court patently appeared to be oppressive. Moreover; even in absence of filing of list of witnesses and failure to produce evidence on the above said date; it was expected from the learned trial Court to have itself framed issues on the said date instead of non-suiting them and then to have directed the applicants/plaintiffs to produce evidence, which course admittedly being more nearer to equity, fair play and in accord with the relevant underlying principles of Order XIV, Rule (1) r/w Order XVI, Rule-(1) CPC to have been followed but the learned trial Court as it appears from its order dated 11.3.2006 without due application of mind to the pleadings of the parties likely to be adjudicated upon by the learned trial Court giving rise to the substantial questions of facts, dismissed the application of the plaintiffs out right for non-compliance of its order dated 15.2.2006. Order impugned herein in the above stated circumstances of the case is unexceptionable. No infirmity, legal or factual in the impugned order could be pointed out by the learned counsel for the petitioners, therefore, this petition is dismissed. Leave refused.
(R.F.K.) Leave refused
PLJ 2007 SC 572
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.
SALMAN FARUQUI--Appellant
versus
JAVED BURKI, AUTHORIZED OFFICER, SECRETARY, MINISTRY OF WATER & POWER, GOVERNMENT OF PAKISTAN, ISLAMABAD and another--Respondents
C.A. No. 501 of 2002, decided on 15.01.2007.
(On appeal from the judgment dated 30.6.1999 passed by the Federal Service Tribunal, Islamabad in Appeal No. 504(R) of 1998).
(i) Government Servants (Efficiency & Discipline) Rules, 1973--
----R. 5(1)(ii)--Constitution of Pakistan, 1973, Art. 212--Inquiry--Judicial discretion--A perusal of Rule 5(ii) of 1973 Rules would indicate that it is prior in sequence and calls upon the authorized officer to hold an inquiry if the facts of the case so demand or if it is considered necessary in the interest of justice-whether an inquiry needs to be held or not, in the given conditions, therefore, is a judicial discretion which must be exercised if the conditions given in the rule are satisfied. [P. 576] A
(ii) Government Servants (Efficiency & Discipline) Rules, 1973--
----R. 5(1)(ii) & (iii)--Constitution of Pakistan, 1973, Art. 212--Inquiry--Questions of fact--Charge sheet pertained to serious, intricate, disputed and denied questions of fact suggesting major penalty i.e. removal from service, authorised officer omitted to hold an inquiry-Validity--Prudent man could not reach to the conclusion that all such allegations of fact are true without being proved and if not proved through holding a regular inquiry, would it not violate the interest of justice-where the charges are serious, pertaining to intricate question of fact and where the penalty of dismissal from service is likely to be imposed, a regular inquiry shall be conducted to prove such disputed and denied questions of fact--Held: Provisions of Rule 5(l)(iii) of 1973 Rules, the authorised officer happened to condemn civil servant unheard--Remedy is to have a recourse to the principles of natural justice and to hold an inquiry under Rule 5(1)(ii) of the Rules of 1973, wrongly dispensed with under Rule 5(l)(iii). [P. 576] B
Mr. Fakhruddin G. Ebrahim Sr. ASC with Mr. M.S. Khattak, AOR for Appellant.
Mr. Nasir Saeed Sheikh, Deputy Attorney General with Ch. Muhammad Akram, AOR for Respondents.
Date of hearing: 15.1.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Salman Faruqui, former Secretary, Ministry of Commerce has been granted leave to appeal from the judgment dated 30.6.1999, whereby, his dismissal from service was maintained and his appeal thereagainst was dismissed.
"Whereas you, Mr. Muhammad Salman Faruqui, Officer on Special Duty (under suspension), Establishment Division, Government of Pakistan, Islamabad while posted as an officer of Custom and Excise Group/Secretariat Group, Government of Pakistan, have been accused of having committed the following acts which constitute misconduct and corruption under Rules 2(4), 3(b) and 3(c) of Government Servants (Efficiency and Discipline) Rules, 1973--
(i) abused you official position as public servant for personal gain and got a Plot No.F-16, KDA Scheme No 5, Clifton Karachi measuring 2000 sq Yds, allotted in favour of S. Saleem Ali s/o S. Abdul Ghaffar resident of 887, Gokhla Road, New Town, Karachi. The plot was allotted vide KDA/Clif/F-16/5/73/1956, dated 12.12.1973. Despite efforts of concerned authorities, the allottee Mr. S. Saleem Ali could not be traced. It is learnt that property at the address given for Mr. S. Saleem Ali belonged then to Dr. Asad Faruqui and Mr. Amjad Faruqui your maternal cousins. The plot was transferred in favour of your brother-in-law Mr. Zubair Haider S/o Late Qamaruddin Haider vide KDA Letter No. KDA/Clif/F-16/5/2215, dated 16.8.1974. The plot was again transferred in favour of your wife Mrs. Shah Taj by way of gift vide KDA Letter No. KFA/Clif/F-16/BL-5/90/298, dated 17.4.1990. The indenture of lease was made and executed on 9.7.1990 in favour of Mrs. Shah Taj.
(ii) abused your official position in collusion with the then Chief Minister Sindh Mr. Muzaffar Hussain Shah and then Director General KDA Mr. Sabahat Ali Khan to have the same plot commercialized in favour of Mrs. Shah Taj (your wife), despite the fact Sharae Saadi where the plot is located was not approved for commercialization. The plot was commercialized vide KDA Letter No. KDA/Com. Cell/F-16/B1-S/Sch 5/1025, dated 21.7.1993;
(iii) abused your official position and in collusion with the then Director General, KDA and beyond his competency got permission to pay 10% of the commercialization fee of Rs.7 million with the balance to be paid in four installments in two years. Rs.700,000 equal to 10% commercialization charges were paid by Mrs. Shah Taj vide Challan No. 50124/F-2144, Book No.0502, dated 20.7.1993. Soon after its commercialization the plot was re-transferred in favour of Mr. Zubair Haider vide KDA's Letter No. KDA/Com.Cell/1435, dated 18.10.1993;
(iv) abused your official position and in collusion with the then Director General, KDA and then Minister for Housing and Town Planning Pir Mazharul Haq got waived the sum of Rs.779,625 surcharge on account of late payment of the installments of commercialization charges. The surcharges leviable at the rate of 18% per annum was waived by the Minister for Housing and Town Planning, Government of Sindh on a Summary from the Director General, KDA;
(v) abused your official position for personal gain and in collusion with the then Director General, KDA caused loss to KDA by not paying the sum of Rs.2,689,798 on account of non-utilization fee;
(vi) abused your official position and in collusion with concerned officials evaded payment of Rs.418,380 on account of stamp duty, registration fee and capital value tax by having the deed of assignment of leasehold rights in favour of Mr. Mohammad Gulraiz on 21.5.1995 registered at a value of three million rupees. Minimum value for the open commercial plot fixed by the Collector/Chief Inspector of Stamps, Karachi at the time was Rs.2,898 per sq Yard i.e Rs.5,796,000 for a plot of 2000 sq Yds. In the above mentioned deed the plot was falsely declared as `residential'. This amounts to concealment of actual value of the plot, (vii) caused loss to the public exchequer through evasion of stamp duty, registration fee and capital value tax on the property by registering the value of the above mentioned plot substantially below prevailing market price of the plot and also below the actual charges of Rs.7 million on account of commercialization fee paid. This amounts to concealment of actual value of the plot;
(viii) abused your official position for personal gain to accumulate assets in excess of your known sources of income;
(ix) By reason of the above you appear to be guilty of misconduct and corruption within the meaning of Rules 2(4), 3(b) and 3(c) of Government Servants (Efficiency and Discipline) Rules, 1973 inasmuch as you abused your official position for personal gain to acquire a plot, conceal its ownership and have it converted against existing rules into commercial plot. You caused pecuniary loss to the KDA/Government of Pakistan by obtaining waiver of surcharge for late payment of commercialization charges and evasion of duty, fee and tax by falsely declaring the property as residential plot instead of commercial plot and by registering the value of the plot much below its market value. You have accumulated assets far in excess of your known sources of income.
AND WHEREAS I, the Authorized Officer, have decided in terms of Rules 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973 that it is not necessary to have an inquiry into the above charges conducted through an inquiry officer or inquiry committee.
NOW, THEREFORE, you Muhammad Salman Faruqui, OSD (under suspension), Establishment Division, Government of Pakistan, Islamabad are hereby called upon to Show Cause as to why a major penalty which includes the penalty of dismissal from service, may not be imposed upon you under the provision of the aforesaid Rules, on the above grounds.
Your written reply to Show Cause Notice should reach the undersigned within fourteen days of its receipt by you, failing which it would be presumed that you have no defence to offer, and ex-parte decision would be taken.
You may also state whether you want to be heard in person."
Para # 2 of the show-cause notice would indicate that the authorized officer had decided not to hold an inquiry under Rule 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules 1973. While, on the other hand, an authorized officer decides to hold an inquiry under Rule 5(1)(ii) of Government Servants (Efficiency and Discipline) Rules 1973 that reads as follows:--
"5. Inquiry procedure: (1) The following procedure shall be observed when a Government servant is proceeded against under these rules:--
(i) ............................
(ii) The authorized officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Committee. If he so decides, the procedure indicated in Rule 6 shall apply."
A perusal of the aforementioned provision of law would indicate that it is prior in sequence and calls upon the authorized to hold an inquiry if the facts of the case so demand or if it is considered necessary in the interest of justice. Whether an inquiry needs to be held or not, in the given conditions, therefore, is a judicial discretion which must be exercised if the conditions given in the rule are satisfied.
A perusal of the charge-sheet (supra) would indicate beyond doubt that it pertained to serious, intricate, disputed and denied questions of fact. How a prudent man, in the circumstances, would reach to the conclusion that all such allegations of fact are true without being proved and if not proved through holding a regular inquiry, would it not violate the interest of justice. It has been a consistent view of this Court that where the charges are serious, pertaining to intricate question of fact and where the penalty of dismissal from service is likely to be imposed, a regular inquiry shall be conducted to prove such disputed and denied questions of fact. By resorting to the provisions of Rule 5 (1)(iii) of Government Servants (Efficiency & Discipline) Rules 1973, the authorized officer happened to condemn the appellant unheard. The only remedy is to have a recourse to the principles of natural justice and to hold an inquiry under Rule 5(1)(ii) of the Rules of 1973, wrongly dispensed with under Rule 5(1)(iii).
Learned Deputy Attorney General argued that the appellant avoided to appear in compliance with the notice issued to him and that he was at liberty to contest the state of affairs so, he now happens to dispute. That he is now looking for excuses to undo the consequences of disciplinary proceedings. We are not satisfied with the arguments for two-fold reason; firstly, that the so-called excuse is provided by the authority itself and secondly, the argument aims at putting the burden on the accused officer of getting some proceedings validated by his presence when such proceedings were unlawful and against the principles of natural justice from the very inception.
In view of what is proposed, it is not in the interest of justice to discuss the merits of the case. The charges are quite serious which demand that guilt be brought home to the appellant after providing him an opportunity of being heard.
Consequently, the appeal is accepted, the impugned judgment is set aside and the case is remanded back to the competent authority to hold regular inquiry within the contemplation of Rule 5(1)(ii) of the Rules of 1973 and thereafter to proceed and pass order in accordance with law. If the appellant has not superannuated, he shall be deemed under suspension. The matter being old, it be concluded as early as possible.
(R.F.K) Appeal accepted
PLJ 2007 SC 577
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.
TANVEER HUSSAIN--Appellant
versus
RAVI RYAN LIMITED through its Managing Director
and others--Respondent
C.A. No. 1699 of 2005, decided on 17.01.2007.
(On appeal from the judgment dated 22.10.2002 of Lahore High Court, Lahore passed in Writ Petition No. 8974/2002)
Limitation Act, 1908 (IX of 1908)--
----S. 5--Industrial Relations Ordinance, (XXIII of 1969), Ss. 25(A) & 65(B)--Applicability--Delay in serving grievance notice, condonation of delay sought--Grievance notice served by the appellant to the respondent against his termination with some delay for which condonation was sought--Grievance notice being an act prior to the filing of the grievance petition and being a matter between employer and employee, the delay if caused cannot be condoned--Validity--S. 5 of the Limitation Act, is applicable to ay thing or any other thing required to be done under the Ordinance--Held: Provisions of S. 65-B of the Ordinance are applicable to any application or any thing to be done under the Ordinance--Labour Court had the jurisdiction to condone the delay in filing the grievance notice, provided if sufficient cause within the contemplation of Section 5 of the Limitation Act, is available. [P. 579] A & B
1983 PLC 554, 1985 PLC 1011 & 1990 PLC 616 ref.
Mr. Abid Hassan Manto, Sr. ASC for Appellant.
Ch. Abdul Rab, ASC with Sh. Salahuddin, AOR for Respondents.
Date of hearing: 17.1.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Tanveer Hussain has been granted leave to appeal from the judgment dated 22.10.2002 of a learned Judge in Chambers of Lahore High Court whereby, a writ petition filed by the appellant against the judgment dated 1.4.2002 of Punjab Labour-Appellate Tribunal, was dismissed.
Numerous employees of Ravi Ryan Limited (Respondent No. 1), on 12.12.1997, were transferred to Karachi. They filed a petition before National Industrial Relations Commission, which was dismissed on 15.1.1998 as also their appeal before the full bench of the Commission, on 17.2.1999. A writ petition thereagainst was disposed of on 28.6.2000 with direction to the petitioners therein to apply for benefit under the Golden Hand Shake Scheme and further that if someone, did not apply for the said benefit by or before 17.8.2000, the writ petition shall be deemed to be dismissed to his or their extent.
The aforesaid decision was further challenged before this Court. The matter was pending when Respondent No. 1 recalled the transfer order but at the same time, on 9.9.2000, terminated the services of the employees. The appellant and others served the respondent with a grievance notice dated 16.3.2001 and thereafter filed a grievance petition under Section 25-A of the Industrial Relations Ordinance, 1969 (IRO), which was dismissed on 14.4.2001 and maintained by Punjab Labour Appellate Tribunal vide judgment dated 1.4.2002. The appellant then filed writ petition which was also dismissed and hence this appeal.
The aforesaid narration of facts would prima facie indicate that the grievance notice was served upon the respondent with some delay for which condonation was sought under Section 5 of the Limitation Act. In short, all the forums were of the view that the issuance of grievance notice, being an act prior to the filing of grievance petition under Section 25-A of the IRO and being a matter between the employer and the employee, the delay if caused could not be condoned. The forums, most probably, were of the view that only that delay is or is not condonable which takes place in resorting to the judicial forum.
Mr. Abid Hassan Manto, learned counsel for the appellant assailed the view so taken, on the ground, that all forums had altogether ignored the provisions of Section 65-B of the IRO, which special law, itself provided the authority of condoning the delay to the Labour Court. Section 65-B of the IRO states:--
"65-B. Limitation.--The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply in computing the period within which an application is to be made, or any other thing is to be done, under this Ordinance."
The learned counsel further added that the provisions of Section 65-B of the IRO and its interpretation adhered to by the learned counsel, were never novel for the Labour Appellate Tribunal and that different Tribunals, on different occasions, have consistently been holding that the Labour Court as well as the Tribunal has the jurisdiction to condone the delay caused even in the issuance of grievance notice. That Labour Appellate Tribunal Punjab in United Bank Limited Vs. Jamshed Sadiq (1983 PLC 554), Labour Appellate Tribunal Sindh in Khuda Bux Lassi Vs. National Motors Limited, Karachi (1985 PLC 1011) and Labour Appellate Tribunal Punjab in Sh. Abdul Razzaq Vs. Chairman Town Committee, Kabirwala (1990 PLC 616) have taken the same view but in appellant's case it was quite the reverse.
We have given our considered thought to the legal point in issue Section 5 of the Limitation Act itself provides that the section can be made applicable by or under any enactment if such enactment so provides. So far as the Industrial Relations Ordinance is concerned, Section 65-B supra makes the provisions of Section 5 of the Limitation Act applicable to the Ordinance. There can be no doubt about such application and thus we are left with the only dispute as to whether it is applicable to the events occurring with or after the filing of grievance, petition under Section 25-A of the IRO or also to the events occurring prior thereto.
It is an undisputed fact that a grievance notice by an employee to the employer, prior to the institution of a grievance petition before the Court, is issued under Section 25-A of the IRO. The added phrase, "any other thing is to be done, under this Ordinance", laid down in unambiguous terms that Section 65-B of the Ordinance, or for that matter Section 5 of the Limitation Act, is applicable to any thing or any other thing required to be done under the Ordinance. The legislature never uses the words either superfluously or meaninglessly. Each and every word of enactment is, therefore, to be construed strictly in accordance with the ordinary use and meaning thereof. We, therefore, hold that the provisions of Section 65-B of the Ordinance are applicable to any application or any thing to be done under the Ordinance. The Courts of, the Labour hierarchy, therefore, had, the Jurisdiction, to condone the delay in filing the grievance notice, provided always, if sufficient cause within the contemplation of Section 5 of the Limitation Act, is available. Such jurisdiction has wrongly been denied to the appellant.
The forums below, on the one hand, were of the view that they had no jurisdiction to condone the delay yet, on the other, they have discussed the merits of the limitation as well. It was simply uncalled for.
Consequently, the appeal is accepted and the judgments dated 1.4.2002 of the Punjab Labour Appellate Tribunal and dated 22.10.2002 of the learned Lahore High Court are set aside, by holding, that the Labour Court as well as the Labour Appellate Tribunal had the jurisdiction to entertain an application under Section 5 of the Limitation Act read with Section 65-B of the IRO. The case is remanded to the Labour Court concerned for re-deciding the question of limitation on merits. Any other observation made by the learned Labour Appellate Tribunal, as well as the learned Court shall not affect the decision of the Labour Court, on merits.
(R.F.K.) Appeal accepted
PLJ 2007 SC 580
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.
SYED TALIB HUSSAIN--Appellant
versus
GOVT. OF PUNJAB through Secretary Agriculture Department, Lahore and others--Respondents
C.A. No. 2112 of 2004, decided on l6.01.2007.
(On appeal from the judgment dated 30.10.2002 of the Punjab Service Tribunal, Lahore passed in Appeal No. 2700/1999).
(i) Constitution of Pakistan, 1973--
----Art. 185(3)--University of Arid Agriculture Rawalpindi Act, 1995, S. 6--University of Agriculture, Faisalabad (Efficiency and Discipline) Statutes, 1975, S. 2(1)(b)--Dismissal from service--Appeal was dismissed by Courts below--Appellant being civil servant under Agriculture Department of Punjab, University of Arid Agriculture Rawalpindi had no jurisdiction to proceed against him--Validity--Appellant belonging to Agriculture Department of Punjab having initially been appointed as lecturer in Barani Agriculture College, Rawalpindi, later on his services stood transferred to the University of Arid Agriculture Rawalpindi--Held: Appellant was the employee of the University and was lawfully proceeded against by the University Authorities, which proceedings, he failed to contest on merit--Appeal dismissed. [P. 584] D
(ii) University of Arid Agriculture Rawalpindi Act, 1995--
----S. 6--Integration with the University, Announcement of Authority Transfer of the employee--Government had complete authority u/S. 6(1) of the Act of 1995 to announce the integration with the University of any educational or research institute situated anywhere in the Punjab--Such authority is exercised by the government under the Act of the legislature--All such persons belonging to such educational institution, in any capacity, shall stand transferred for service under the University on such terms and conditions as the Government, in consultation with the University, may determine.
[P. 583] A & B
(iii) University of Arid Agriculture Rawalpindi Act, 1995--
----S. 6--Civil servant on deputation, services cannot be transferred--Civil servant on deputation to the institution, his services could not be transferred to the university--Civil servant had never been a deputationist either to Barani Agriculture College Rawalpindi or to the University--His services, therefore, stood permanently transferred to the University under notification--Held: University authorities were fully competent to proceed against him under the relevant Efficiency and Discipline laws. [P. 583] C
Sh. Riaz-ul-Haq, ASC for Appellants.
Sh. Iftikhar Ahmad, ASC for Respondent No. 2.
Ch. Muhammad Hussain, Addl. A.G. for Respondents Nos. 1
to 4.
Date of hearing: 16.1.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Syed Talib Hussain, a Lecturer in University of Arid Agriculture Rawalpindi has been granted leave to appeal from the judgment dated 30.10.2002 of Punjab Service Tribunal Lahore whereby, his dismissal from service dated 12.6.1997, was maintained and his appeal thereagainst stood dismissed.
"Whereas Syed Talib Hussain was traveling on Passport No. H 407334 dated 14.3.1992 and No.C 630085 dated 3-12-1996, both issued without an N.O.C. from his employer, the University of Arid Agriculture, Rawalpindi, and both carrying wrong profession as "Labour".
Whereas Syed Talib Hussain obtained a Work Visa as Labour from the Royal Embassy of Saudi Arabia in" Islamabad on 18.3.1992 and later obtained a clearance from the Protectorate of Immigration, Rawalpindi, on 19.3.1992 for direct employment in Saudi Arabia as Labour by providing an affidavit, where he concealed his employment with the University.
Whereas Syed Talib Hussain has frequently traveled to Saudi Arabia between 18.3.1992 to 31.12.1996 in connection with his employment as Labour in Saudi Arabia and has obtained as many as eleven exit/re-entry visas and three "aquamas" of two years duration each from the concerned authorities in Saudi Arabia.
Whereas all the journeys to Saudi Arabia between 18.3.1992 to 31.12.1992 have been performed without N.O.Cs. from his employer and even without leave Ex-Pakistan."
The appellant did not file any reply to the charges or to show-cause notice dated 16.4.1997 on the plea that he originally being a civil servant under Agriculture department of Punjab Government has applied to the Government for his repatriation and that the authorities of the University of Arid Agriculture, Rawalpindi had no jurisdiction to proceed against him. The authority did not concede to his stance, proceeded against him and ultimately the appellant was dismissed from service.
As a matter of fact the appellant had filed two applications dated 23.4.1997, one to the Government of Punjab and the other to the Vice-Chancellor University of Arid Agriculture, Rawalpindi for his repatriation to his original department. His such prayer/request was rejected by the Government vide reply dated 16.5.1997. Before us, the appellant maintains that notwithstanding any reply etcetera or any stance taken by the Government, he was never an employee of University of Arid Agriculture, Rawalpindi. That he belonged to the Agriculture department of Government of Punjab having initially been appointed as Lecturer in Barani Agriculture College, Rawalpindi. That the integration of Barani Agriculture College, Rawalpindi with the University of Arid Agriculture Rawalpindi would not automatically change his status of being a civil servant.
It is an admitted fact that Barani Agriculture College Rawalpindi stood integrated with the University of Arid Agriculture Rawalpindi, which integration was announced under Section 6 of the University of Arid Agriculture Rawalpindi Act, 1995. For facility of reference, the section is reproduced:--
"6. Integration of research Institute with the University.--(1) Notwithstanding anything to the contrary contained in any other law, notification, contract, agreement or instrument, Government may, by notification in the official Gazette, integrate with the University any educational or research institution situated anywhere in the Punjab:--
(2) On the publication of a notification under sub-section (1)--
(a) all rights, properties, assets and liabilities vested in or undertaken by such educational institution shall retrospectively become the rights, properties, assets and liabilities of the University; and
(b) all persons serving in connection with the affairs of such educational institution in any capacity shall stand transferred for service under the University on such terms and conditions as the Government, in consultation with the University may determine:
Provided that such terms and conditions shall not be less favourable than those admissible to them immediately before their transfer to the University:
Provided further that if any such person is a Government servant on deputation to the institution, he shall not be transferred for service to the University without his consent in writing."
A close perusal of the section aforesaid would indicate that the Government had complete authority under Section 6(1) of Act, V of 1995 to announce the integration with the University of any educational or research institute situated anywhere in the Punjab. Such authority is exercised by the Government under an Act of the legislature. What would be the fate of the employees of such integrated educational or research institution, is clarified by sub-clause (b) sub-section 2 of Section 6. It clearly laid down in unambiguous terms that all such persons belonging to such educational institution, in any capacity, shall stand transferred for service under the University on such terms and conditions as the Government, in consultation with the University, may determine. There cannot be two opinions about the notion that the services of the appellant under Section 6(2)(b) stood transferred absolutely to the University vide notification dated 2.4.1996 issued under the authority of the Governor of Punjab.
Learned counsel for the appellant wanted to take shelter under proviso II to Section 6 supra but that relates to a servant on deputation to the institution whose services could not be transferred to the University. The appellant admittedly has never been a deputationist either to Barani Agriculture College Rawalpindi or to the University. His services, therefore, stood permanently transferred to the University under notification dated 2.4.1996. The University authorities thus were fully competent to proceed against him under the relevant Efficiency and Discipline laws. So far as the merits of the proceedings are concerned, the appellant has no case at all because he had failed even to submit a reply to the show-cause notice or statement of allegations. Learned counsel for the appellant conceded that, but for the question of jurisdiction raised by him, he had no case on merits.
The appellant stood transferred to the University through notification of integration on 2.4.1996 issued under Section 6 of Act V, 1995. He never challenged such notification of integration nor the vires of Section 6 of the Act and hence is precluded from disputing the effect and consequences thereof. He applied for his repatriation through application dated 23.4.1997 which was rejected on 16.5.1997. Till this date, he has not challenged even such refusal of the Government of Punjab to repatriate him to the Agriculture department. It is too late in the day for the appellant to wriggle out from the implications of Section 6 of the Act. The whole affair is supposed to be within his knowledge from 2.4.1996. Seen from any angle, the appellant was an employee of the University and was lawfully proceeded against by the University authorities, which proceedings, he failed to contest on merit. There being no force in the appeal, it is hereby dismissed.
(R.F.K) Appeal dismissed
PLJ 2007 SC 584
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. and
Mian Shakirullah Jan, J.
MASOOD SARWAR--Petitioner
versus
SADAQAT HUSSAIN etc.--Respondents
Crl.P. No. 287 of 2006, decided on 21.12.2006.
(On appeal from the judgment dated 5.12.2006 passed by the Lahore High Court, Rawalpindi Bench in Crl. A. No. 65 of 2001).
(i) Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to Appeal--Validity--Determination of--leave to appeal granted only to examine whether at the time of commission of crime, convict/respondent was a minor or he manipulated his date of birth to show himself minor, subsequently to take benefit of the law, according to which minor would not be awarded extreme penalty of death. [P. 585] A
(ii) Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to Appeal-Age--Validity--Benefit not to be extended--Leave to appeal granted to consider that if there is a doubt in respect of age of an accused, benefit would not be extended to him.
[P. 585] B
1993 SCMR 2377 and 2005 SCMR 1758 ref.
Mr. Shaukat Aziz Siddiqui, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 21.12.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--After hearing the learned counsel, leave to appeal is granted only to examine whether at the time of commission of crime, convict/respondent was a minor or he manipulated his date of birth to show himself minor, subsequently to take the benefit of the law, according to which the minor would not be awarded extreme penalty of death. This fact is also to be considered that if there is a doubt in respect of age of an accused, benefit would not be extended to him as it has been held in "SOHAIL IQBAL VS. THE STATE" (1993 SCMR 2377). Relevant para therefrom is reproduced hereinbelow:--
"4. From the record it appears that the date of birth of the appellant was traced to be 9.10.1964 which makes his age at the time of occurrence which took place on 12.08.1986 about 21 years 8 months. The trial Court had recorded the age of the appellant by appearance in December, 1987 when the statement under Section 340 Cr.P.C. as 16/17 years while in November, 1987 when his statement under Section 342, Cr.P.C was recorded as 16 years. The High Court Rules and Orders (Volume III) in Chapter 22-A, paragraph 8 lays down the following instructions of the High Court to the Criminal Courts:--
"the Judges are also pleased to direct that all Criminal Courts should in future enter the ages of the convicts in the body of their judgments, with a view to being directly seized with the question of age when deciding the sentence to be imposed on a juvenile or adolescent." "
The above judgment has also been relied in the case of "Sarfraz Alias Sappi and 2 Others vs. The State" (2005 SCMR 1758).
(R.F.K.) Leave granted
PLJ 2007 SC 586
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Nasir ul Mulk &
Syed Jamshed Ali, JJ.
PAKISTAN BAR COUNCIL--Petitioner
versus
FEDERAL GOVERNMENT and others--Respondents
Constitutional Petition No. 9 of 2005, decided on 10.1.2007 (at Lahore).
(i) Legal Practitioners and Bar Councils Act, 1973 (XXXV of 1973)--
----S. 13(j)--Pakistan Bar Council, Primary Functions--Power to make rules in performing such functions--Pakistan Bar Council is the apex professional elected body of lawyers established under the Legal Practitioner and Bar Councils Act, 1973--One of its primary functions under this Act is "to promote legal education and prescribe standards of such education in consultation with the Universities in Pakistan and the Provincial Bar Councils"--It has been empowered to make rules to carry out its functions which include rules to provide for, "the standards of legal education to be observed by the Universities in Pakistan and the inspection of universities for that purpose.
[P. 595] A
(ii) Legal Practitioners and Bar Councils Act, 1973 (XXXV of 1973)--
----S. 13(j)--Rules framed by the Pakistan Bar Council, overruling effect--Rules framed by the Pakistan Bar Council would be read into the rules framed by any Pakistani University and in case of conflict former rules, shall have primacy. [P. 595] B
(iii) Affiliation of Law Colleges Rules--
----Preamble--Legal Practitioners and Bar Councils Act, 1973, S. 13(j)--Provisional affiliation of Law Colleges--Rules do not envisage any concept of provisional affiliation--However, if any enactment, rules or regulation made thereunder provide for provisional affiliation, the same would not extend beyond the period of one year and thereafter the said College would stop admitting students for a law degree.
[P. 595] C
1994 SCMR 1548, PLD 1994 SC 693, PLD 1999 SC 504, PLD 2006 SC 697 (ref.)
Mr. Rasheed A. Rizvi, ASC, Mr. Muhammad Arshad, Secy. Pakistan Bar Council and Mr. M.A. Zaidi, AOR for Petitioner.
Ms. Nahida Mehboob Elahi, DAG for Respondent No. 1.
Mr. Muhammad Javed Khan, D.G. Higher Education Commission for Respondent No. 2.
Mr. Aftab Iqbal Ch., Advocate General Punjab and Ch. Muhammad Hussain, Addl. A.G., Punjab and Raja Saeed Akram, A.A.G., Punjab for Respondent No. 3.
Mr. Abbas Ali, Addl. A.G. Sindh for Respondent No. 4.
Sardar Shoukat Hayat, Addl. A.G. NWFP for Respondent No. 5.
Mr. Mehmood Raza, AAG, Balochistan for Respondent No. 6.
Mr. M. Farooq Qureshi Chishti, ASC for Respondent No. 7.
Mr. Muhammad Rafique Rajwara, ASC for Respondent No. 8.
Mr. Wasim ud Din Khattak, ASC for Respondent No. 9.
Nemo for Respondent Nos. 10, 11.
Mr. Hashmat Ali Habib, ASC for Supreme Court Bar Association.
Date of hearing: 16.11.2006.
Judgment
Tassaduq Hussain Jillani, J.--Through this petition under Article 184 (3) of the Constitution of Islamic Republic of Pakistan, the Pakistan Bar Council has sought a direction that the respondents Federal Government, the Higher Education Commission, all the Provincial Governments and the universities be directed to adopt and implement the "Affiliation of Law Colleges Rules", framed by the Pakistan Bar Council and further that no Charter or N.O.C. be issued to any institution, college or individual to establish law college without compliance of the afore-referred Rules.
The learned counsel for the petitioner, Mr. Rasheed A. Rizvi, who was the Vice Chairman of the Pakistan Bar Council when this petition was filed, in support of this petition, submitted that there has been a steady decline in the quality of legal education in Pakistan on account of mushroom growth of law colleges, lack of adequate facilities, absence of qualified faculty and absence of regulatory authority to ensure a certain qualitative standard. He contended that the goal of access to justice and its dispensation cannot be realized without a proper and organized legal education system. With a view to ensuring a quality legal education and to discourage the growth of substandard law colleges, the Pakistan Bar Council called upon its Legal Education Committee to draft Rules for granting recognition and affiliation to the law colleges by the universities. The Legal Education Committee, after thorough deliberations, submitted its recommendations which were approved by the Pakistan Bar Council in its 147th meeting held on 26.06.2004 a copy of which has been attached with this petition. Before approval by the Pakistan Bar Council, he added, the Legal Education Committee had a joint sitting with the representatives of the Provincial Bar Councils, several universities imparting, legal education and the officials of the Higher Education Commission on 19.06.2004 who unanimously approved these rules. The elaborate exercise carried-out for framing these Rules reflects a concerted effort of all the stakeholders of the legal education system to revamp the system to ensure qualitative improvement. The objective being onerous and the issue being of general public interest, he lastly submitted, warrants this Court's indulgence under Article 184(3) of the Constitution.
Mrs. Nahida Mehboob Elahi, Deputy Attorney General, submitted on behalf of learned Attorney General for Pakistan that the Federal Government has examined the Rules framed by the Pakistan Bar Council and is of the view that those are beneficial and have been framed with a view to improving the standards of legal education. In these circumstances, the Federal Government not only supports the petition but would ensure that universities and its affiliated colleges falling within the domain of the Federal Government adhere to these Rules while granting recognition to law colleges.
The learned Advocate General Punjab also supported the petition and submitted that all the universities should bring their Affiliation Rules in conformity with these Rules. He stated that the Government of Punjab would ensure that the universities, while dealing with law colleges, strictly adhere to these Rules.
The learned Additional Advocates General N.W.F.P., Sindh and Balochistan also supported the petition.
The learned counsel appearing for the University of Punjab submitted that the Affiliation Rules of the University of Punjab are similar to the one framed by the Pakistan Bar Council. He added that the University shall adopt these Rules in addition to the existing Affiliation Rules insofar as law colleges are concerned.
The Additional Registrar appearing for the University of Balochistan submitted that the University has no objection if this petition is allowed. The Bahauddin Zikriya University, Multan also filed a conceding statement and did not join issue to the acceptance of this petition.
We have heard the learned counsel for the parties and have given anxious consideration to the submissions made.
Pakistan Bar Council, the petitioner, is the apex professional elected body of lawyers established under the Legal Practitioners & Bar Councils Act, 1973 [hereinafter referred to as "Act"]. One of its primary functions under this Act is "to promote legal education and prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils". [Section 13(j)] It has been empowered to make rules to carry out its functions which include "rules to provide for, "the standards of legal education to be observed by the universities in Pakistan and the inspection of universities for that purpose." [Section 55(q)]. In the exercise of its function, the Pakistan Bar Council did frame the Bar Council Legal Education Rules, 1978, wherein it issued guidelines to law universities and law colleges for admission in LL.B course, for student-teacher ratio in law colleges, for duration of the LL.B. courses, for qualification of a part time teacher, for provision of library in a law college, the criterion of pass percentage in the law examination, for adequate representation of the Pakistan Bar Council on the Board of Studies, Faculties of Law, Board of Governors and other organizations set up for governing the law colleges and other institutions of law and for a provision of inspection of law colleges by a team to be appointed by the Pakistan Bar Council. The framing of "Affiliation of Law Colleges Rules" and the prayer that the respondents be directed to adhere to those rules is an exercise of a similar kind.
The concern expressed by the Pakistan Bar Council about the declining standards of legal education is a matter of serious consideration. The petitioner-Council laments that, there is no check either from the Government or HEC to put restrain on the growth of substandard law colleges with no facilities of good Lecturers, Professors and Libraries. It has been noted with serious concern that for the last 4/5 years, Respondent No. 1, the Federal Government as well as Provincial Governments have granted Charters to individuals for establishing colleges and Universities, in private sector, who have also entered in the field of legal education with no experience of legal education." Contending that the issue mooted in the petition is "a question of public importance", the petitioner implored this Court to intervene as according to it, this is causing deterioration in the legal profession and at the same time adversely affecting Judicial System of this country, it will be in the public interest that a guideline should be provided by this Hon'ble Court to various institutions including Universities imparting legal education in the country to improve their system and to put restrain on establishing law colleges without proper infrastructure."
The twin objectives of dispensation of justice and enforcement of fundamental rights enshrined in the Constitution cannot be achieved without a strong and conscientious judiciary and independent and competent Bar. No wonder the United Nations Instrument on Legal Profession stipulates that, "independent legal profession is a sine qua non for any system of protection of human rights and fundamental freedoms." The Bar brings issues to the Court and the quality of justice delivered partly depends upon the quality of assistance rendered. Besides that while rendering advice to his client, a lawyer has not only to keep the relevant law in mind but also other considerations such as moral, economic, social or political, as the case may be, and then it is from the Bar that the Bench is constituted. The Bar and the process of dispensation of justice have a symbiotic relationship. Justice V.R. Krishna Iyer aptly observed while speaking on the responsibility of the Bar that:--
`Lawyering like justicing rises and falls in reputation and esteem according as they serve the great purpose of delivering justice to the people. When they fail what befalls them i.e. best expressed in Shakespeare's words 'Dick, the first thing we do. Let's kill all the lawyers."
The quality of the Bar and the assistance it renders to the Courts to a great extent depends on the legal education. The Bar in general and the Pakistan Bar Council in particular therefore have awesome responsibility to improve the quality of legal education because it is the possession of a degree of law which is a sufficient academic qualification for entering the Bar. The petition in hand therefore raises a question of public importance which has a great bearing on the justice system and the enforcement of fundamental rights in the country.
It is a matter of common knowledge that there has been a mushroom growth of substandard law colleges lacking in infrastructural facilities and quality legal education. There is no eligibility criteria for admission and any person having done his graduation with minimum marks required for passing can get admission in those colleges. Dropouts from other courses find it easier to join a law course. The quality of faculty in most of the law colleges leaves much to be desired. These colleges have only part time lecturers and barring a few honourable exceptions, most of them do not have any commitment to the cause of legal education. Without a proper faculty, quality legal education is not possible. The law teachers should be well-trained, well-paid and committed to the cause. It has also been noted that colleges enroll students in great numbers but do not provide for adequate class rooms and even the student-teacher ratio tends to be imbalanced. This is so because the colleges are established more for commercial considerations rather than academic or to impart genuine legal education. The lack of commitment, loose administration and lack of requisite facilities has led to absenteeism in law colleges. Students get themselves enrolled, do not attend classes, at times they live or work at miles away from their respective colleges where they are formally enrolled. They get themselves marked present through proxies. The colleges do not discourage this because it brings them money. Courses of study prescribed by the university are paid lip service. Neither there is any indepth study of the subjects included in the curriculum nor any stress is laid on moral issues and professional ethics. Such students have hardly any commitment to scholaristic pursuits and when the exams approach, they prepare for the same through get-through guides. Law examinations held by universities are mere test of memory and students manage to pass by cramming. Colleges mostly have become business centres and in the name of legal education, it is a profit making industry that they are running. It is these centres which produce law graduates, who are called to the Bar, some practice, some join judiciary at the district level, some adorn the constitutional Courts and some become law-makers.
The poor quality of legal education in the country is taking its toll on the Bench, the Bar and ultimately the quality of justice. The Provincial Public Service Commissions, while engaged in recruitment to the posts of civil judges have frequently regretted the deteriorating academic standards of law graduates competing for the posts. Every year thousands of law graduates are getting added to the Bar. Some are products of colleges, having a certain credibility of imparting quality education whereas many come from colleges where the standard is below average. The products of the latter kind neither have the requisite knowledge of law nor any commitment to professional ethics. The apprenticeship training, prescribed under the Bar Council Rules is taken as a formality. The good old tradition of a senior training the junior in Court room skills and ethics has given way to a new culture, where a young entrant is on his own sooner than is appropriate i.e. before he has legal skills or is fully equipped to properly advice the client and assist the Court. This results in situations which do not bring good name to the profession. There is a tendency to get engaged in non-professional pursuits. Bar has a proud legacy of promoting rule of law, fundamental rights, democracy and of standing up for just causes. But sometimes local Bars go on strike over issues which are hardly institutional. This disturbs the working of Courts and adversely affects the administration of justice. Courts cannot function, cases are adjourned to dates which are fixed after months and the clients go back home frustrated. Taking a collective stand over just causes is one thing but going on a strike is something else. The latter course paralyzes the administration of justice. Bar is a global fraternity. There is no concept of self employed professionals going on strike in most countries of the world.
Legal education should not only cater for those students who study to pursue law as a career but should also provide instructional and research facilities to those who aim at becoming researchers, academicians or critics in domain of law. The discipline of law encompasses almost every dimension of social life. Before students join a professional law course, they need to have a multidisciplinary academic base. They got to have sound language skills for reading, writing and communication. The study of English language is of particular importance. Because it is predominantly the Court language in the country and is the most widely spoken language in the world. Being rich in content, it determines the frontiers of one's knowledge. Unfortunately over the last few decades the quality of education in colleges has also declined. To strengthen the academic base of a potential law graduate, there is a dire need to improve the standard and quality of the qualifying degree for admission in the Bachelor's law course. The scheme to make the law degree a five year course after intermediate is step in the right direction. Those entrusted with framing the law degree course may examine its desirability.
There is by now a broad consensus among those concerned with legal education around the world that the issue needs to be tackled at three stages. Those are:--
(i) The academic stage.
(ii) The professional stage comprising both institutional training and practical training.
(iii) Continuing legal education.
While dilating on the academic stage in the legal education, law as subject has to be comprehended in proper perspective with particular reference to socio-economic and political dynamics which play a role in the evolution of law. Law is not merely a set of enactments churned out by the Legislature or study of a professional skills limited to Courts and lawyers. Law is a social science of a wider canvas. It is a study of the relationship between the individual and society, between the individual and an institution, between the State and the institution, the interaction between the institutions and the State and at a global level inter se relationship between the States. The discipline of law reflects the societal conflicts, the societal hopes and the social ethos. Law is a social organism which has to keep pace with the socio-economic, political and technological changes. The contemporary age has witnessed unprecedented advancement in science and technology which has affected human lives at individual, national and transnational domains. We live in an age of globalization--an age where distances have shrunk, International trade has multiplied manifold, multinationals impinge on state sovereignty, wonders of information technology have engendered hypes and hope, pleasure and pain, where on account of the paradoxical potential of nuclear technology, the non-State actors are brandishing weapons of mass destruction and the humankind is threatened by the use of some of its own inventions. The ever-increasing global warming poses a serious threat to ecosystem. These concerns among others call for a deeper, compassionate and purposive study of the charter and the law which regulate the affairs of the individuals and the institutions and the States inter se.
At the national level, the country has waded through vicissitudes--the geographical contours are no longer the ones that were carved out in 1947. We have had periods of constitutional deviation and more than one constitutional dispensations. These developments have affected the institutional growth and the constitutional law in the country. The year 2006 has been the 50th anniversary year of the Supreme Court of Pakistan. The Court including the High Courts have contributed their bit towards the promotion of fundamental rights through the exercise of constitutional jurisdiction. The Supreme Court in its attempt to ensure substantive justice have given an extended meaning to the fundamental right of right to life (Article 9 of the Constitution). The Court held that 'life has a larger concept which includes the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights." [The Employees of the Pakistan Law Commission Islamabad v. Ministry of Works (1994 SCMR 1548)]. To ensure pollution free environment, the Court declared that any action which may create hazards of life will be encroachment on personal rights to enjoy the life according to law. [Ms. Shehla Zia v. WAPDA (PLD 1994 SC 693)]. The conviction by a military Court not empowered to try under the law was held to be violative of Article 9 of the Constitution." [Sh Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504)]. The Court annulled the privatization of Pakistan Steel Mills Corporation as the process lacked transparency and was found to be against public policy and national interest. [Watan Party v. Federation of Pakistan (PLD 2006 SC 697)]. In yet another case, the Court upheld the institutional authority, "....Because institutions play a vital role in civilizing a people and in their onward march towards socio-economic and political progress. In the comity of nations the credibility and progress of a country is measured by the strength of its institutions. A nation which fails to respect the institutions falls in grace, decays, splits and is condemned in history. A society bereft of stable institutions would be at odds with itself."
[Pakistan Medical & Dental Council v. Ziauddin Medical University & others (Civil Appeal No. 2206/2005)].
The Court by invoking the concept of public interest litigation has brought solace to the under privileged strata of the society. Reiterating the concept of the basic structure doctrine, it attempted to lay down foundations of constitutional and political stability. While some of the judgments have been landmarks, others have been subject of critical comment. The Courts after all are man made institutions and are therefore fallible. The constitutional challenges faced by the country, the issues brought before the Courts and judicial activism reflected in the judgments have increased the challenge both of the Bench and the Bar manifolds. The challenges are both moral and intellectual. They call for a deeper study of the issues, various dimensions, able assistance by the Bar and qualitative and bold handling by the Bench. These objectives can only be achieved if the study of law at our law schools is rich in content, more ethical and purposive in approach and caters for providing institutional and practical training as well.
A graduate joining the law professional course should have an objective world view which can only be realized if the course content is revamped both at the graduate and L.L.B levels. The issues confronting the people at national level and the humankind at large warrant serious thought on what to study to attain a dignified place in the comity of nations, to develop and to live in peace in a world characterized by multifaceted diversities. Towards that end many questions need to be addressed. Some of those could be: are the questions need to be addressed. Some of those could be: are the colleges offering courses to prepare the Graduates to comprehend, confront and resolve the issues of contemporary age? Is the course content wide enough to include the social sciences which have a bearing on the socio-political dynamics or have the courses been suitably amended in response to the growing interdependence of States in the wake of globalization? Does it include the recent developments in International Law of Arbitration, Alternate Dispute Resolution Mechanisms, Intellectual Property and computer technology? Has the concept of sustainable development based on the intragenerational, intergenerational and inter-species justice spelt out in the "Earth Chapter", been introduced in courses on environmental law? In a world divided by faiths and in the wake of growing misconception of Islam, does the study of Islamic Law include its pluralistic dimension? Has the institution of "Ijtihad" been accorded a dynamic construction to play its role in the evolution of saw in modern age? Has the, study of law been made as comprehensive and multi-disciplinary as has been done in some of the renowned universities and law schools abroad? These questions may not be exhaustive. The aim should be to revise the courses in accord with our domestic requirements and international obligations.
The need for professional and continuing legal education cannot be over-emphasized. Lawyers' education is a continuing process. Be it through law colleges, academic pursuits, trial practice/clinical Courts, training for young lawyers through apprenticeship or other modes adopted in this regard. The Chief Justice of U.S.A. was highlighting this aspect of the legal education when while addressing the American College of Trial Lawyers, District of Columbia, he said, ".........in some jurisdictions up to half of the lawyers who appear in Courts are so poorly trained that they are not properly performing their job and that their manners and their professional performance, their professional ethics offend a great many people. They are engaging in on- the-job training at the expense of their clients' interests and the public."
For what has been discussed above and on account of the fair stand taken by the respondents, we are persuaded to allow this petition and direct as under:--
(i) The Pakistan Bar Council, is the apex professional elected body of lawyers established under the Legal Practitioner & Bar Councils Act, 1973. One of its primary functions under this Act is "to promote legal education and prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils". [Section 13(j)] It has been empowered to make rules to carry out its functions which include rules to provide for, "the standards of legal education to be observed by the universities in Pakistan and the inspection of universities for that purpose."
(ii) The Affiliation of Law Colleges Rules framed by the Pakistan Bar Council and any rule added or amended from time to time by it are essential to ensure that the law schools/colleges impart uniform quality legal education.
(iii) The rules framed by the Pakistan Bar Council shall be read into the rules framed by any Pakistani university and in case of conflict former rules shall have primacy.
(iv) The rules do not envisage any concept of provisional affiliation. However, if any enactment, rules or regulation made thereunder provide for provisional affiliation, the same shall not extend beyond the period of one year and thereafter the said college shall stop admitting students for a law degree.
(v) With a view to improve and update the syllabus prescribed for a professional degree in law, we are persuaded to appoint a 5-Member Committee to be headed by Justice (R) Nasir Aslam Zahid, former Judge of the Supreme Court of Pakistan to examine the existing courses of law prescribed by the universities for obtaining the professional degree and to suggest suitable proposals, inter alia, in the light of the observations made by this Court. The Committee shall submit its report within six months to the Pakistan Law Commission for consideration. The other members of the Committee shall be as under:--
(a) The Vice Chairman, Pakistan Bar Council (Ex Officio).
(b) Prof. Ghafoor Ahmad, former Vice Chancellor Peshawar University and Principal Khyber Medical College.
(c) Mr. Hamayun Ehsan, Principal Pakistan Law College, Lahore.
(d) Mr. Mansoor Ali Shah, Advocate Supreme Court of Pakistan.
(e) Two members to be nominated by the Chairman Higher Education Commission having the requisite academic background.
(vi) A copy of this judgment shall be sent to all the Vice Chancellors of the universities in Pakistan, Chairman Higher Education Commission, the Federal Law Secretary and to the Secretary Pakistan Law Commission, Islamabad for information and necessary compliance.
(R.F.K) Petition allowed
PLJ 2007 SC 596
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan and
Saiyed Saeed Ashhad, JJ.
MIAN PIR MUHAMMAD and others--Appellants
versus
FAQIR MUHAMMAD (deceased) through L.Rs
and others--Respondents
C.A. Nos. 1951 of 2000 & 1178 of 2005, decided on 12.12.2006.
(On appeal from the judgments dated 13.5.1999 in C.R. No. 342 of 1996 and dated 9.9.2003 in 324-D of 1997 of the Lahore High Court, Rawalpindi Bench, Rawalpindi).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973, Art. 185(3)--Pre-emption suit--Talab-i-Muwathibat and Talb-i-Isshad--Date, place and time, mentioning of in the plaint, mandatory--It is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time--After performing talb-i-muwathibat, the pre-emptor has another legal obligation to perform i.e. making of talb-i-isshad as soon as possible after making talb-i-muwathibat but not later than two weeks from the date of knowledge of performing talb-i-muwathibat--Held: It will be mandatory to mention in the plaint date, place and time of performing of talb-i-muwathibat because from such date, the time provided by the Statute i.e. 14 days shall be calculated.
[Pp. 600 & 601] F, G & H
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973, Art. 185(3)--Pre-emption suit--Talab-i-Muwathibat--Date, place and time, not mentioned in the plaint, Effect of--If date, place and time of talb-i-muwathibat were not mentioned, then it would be very difficult to give effect fully to S. 13(3) of Punjab Pre-emption Act, 1991 and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of talb-i-muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of tabl-i-isshad--Held: Performance of talabs successfully is sine qua non for getting a decree in a pre-emption suit--A plaint wherein the date, place and time of talb-i-muwathibat and date of issuing the notice of performance talb-i-isshad in terms of S. 13 of the Act, 1991 is not provided it would be fatal for the pre-emption suit. [P. 601] I & L
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Talab-i-Muwathibat, as jumping demand--Statutory provisions--Connotation of talb-i-muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of S. 13 of Act, 1991.
[P. 601] J
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Civil Procedure Code, (V of 1908), O. VI, R. 5--Pre-emption suit--Witnesses, names of--Essential--Held: There is no necessity of mentioning the names of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order 6 Rule 5 of CPC as evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance. [P. 602] K
Words & Phrases--
----According to Black's Law Dictionary Immediate' means
"occurring without delay, instant"--in Webster Comprehensive
DictionaryImmediate' has been defined to mean "without delay; instant--High Court has defined `Immediate' means to act immediately, suddenly or a sudden rise or moment-doing of a thing at once and without any delay. [P. 600] A, B, C & E
Words & Phrases--
----Jumping demand--Jumping demand means immediate demand made by the pre-emptor in the same meeting and sitting without any loss of time as soon as he received the information about the sale. [P. 600] D
2003 YLR 570, 2004 CLC 1949, PLD 2001 SC 13, 1983 CLC 2441, CA 1618 of 2003, 2000 SCMR 329, 2000 SCMR 314, PLD 2003 SC 315 and PLD 2005 SC 977 ref.
Ch. Afrasiab Khan, ASC and Ch. Akhtar Ali, AOR for Appellant (in C.A. No. 1951 of 2000).
Hafiz S.A. Rehman, ASC for Respondents (in C.A. No. 1951/2000).
Mr. Abdul Rahsid Awan, ASC and Mr. M.A. Azidi, AOR for Appellant (in C.A. No. 1178 of 2005).
Mr. Muhammad Munir Paracha, ASC and Mr. Ejaz Muhammad Khan, AOR for Respondent (in C.A.No. 1178/2005).
Date of hearing: 12.12.2006.
Judgment
Iftikhar Muhammad Chaudhry CJ.--In these cases leave to appeal has been granted, inter alia, to examine the following questions:
(i) Whether it is mandatory to disclose the particulars and details of the date, time and place of receiving information about sale and making of "Talb-i-Muwathibat' and also the names of the witnesses in whose presence this Talab was made] in the plaint in a suit for possession by way of pre-emption?
(ii) Whether in the instant case, the High Court was legally competent and justified to set aside the concurrent findings of fact recorded by of the appellate and trial Court to the effect that the requirements of "Talb-i-Muwathibat" had been duly fulfilled before the suit was instituted?
Talb-i-Muwathibat',Talb-i-Ishhad' and
`Talb-i-Khusumat'. However presently we are concerned with the
Talb-i-Muwathibat and Talb-i-Ishhad. It would be appropriate to reproduce herein below Section 13 of the Act herein below for convenience:"13. Demand of pre-emption. (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders, namely:--
(a) "Talb-i-Muwathibat;
(b) `Talb-i-Ishhad'; and
(c) Talb-i-Khusumat'.
Explanation-I: `Talb-i-Muwathibat' means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption.
Note. Any word indicative of intention to exercise the right of pre-emption are sufficient.
(II) `Talb-i-Ishhad' means demand by establishing evidence.
(III) `Talb-i-Khusumat' means demand by filing suit.
(2) When the fact of sales come within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise, the right of pre-emption:
Provided that in areas where owing to lack of post officer facilities it is not possible for the pre-emptor to give registered notice, he may' make Talb-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under sub-section (2), and Talb-i-Ishhad under sub-section (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
immediate' to determine the time or the period within which the Talb-i-Muwathibat is to be made by the pre-emptor after coming to know of the sale. For this purpose the meaning of the wordimmediate' will have to be examined from the dictionaries and from the decided cases, if any.In Black's Law Dictionary, Eight Edition on page 764 defines the word `Immediate' to mean "occurring without delay; instant".
In Webster Comprehensive Dictionary Encyclopaedic Edition on page 631 the word `immediate' has been defined to mean "without delay; instant."
The definition and meaning of the word "immediate" has been considered by Courts in several cases and it will be appropriate to refer to some of the decided cases relating to the definition of the word "immediate". In the case of Noor Khan v. Ghulam Qasim. (2003 YLR 570) Lahore High Court while deciding the case arising out of pre-emption suit pronounced that word "immediate" would mean to act immediately, suddenly or a sudden rise or moment. The Court also took into consideration the meaning of jumping demand and observed that it would mean immediate demand made by the pre-emptor in the same meeting and sitting without any loss of time as soon as he received the information about the sale. In the case of Muhammad Ali v. Allah Bakhsh (2004 CLC 1949) the word "immediate" was interpreted to mean doing of a thing at once and without any delay.
It is observed that great emphasis and importance is to be given to this word in making of Talb-e-Muwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced herein above after performing Talb-i-Muwathibat, in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talb-i-Ishhad as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub-sections (2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i.e. 14 days under sub-section (3) of Section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat, then it would be very difficult to give effect fully to sub-section (3) of Section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Isshad. It is now a well-settled law that performance of both these Talabs successfully is sine qua non for getting: a decree in a pre-emption suit. It may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of Section 13 of the Act. This Court in the case of Rana Muhammad Tufail v. Munir Ahmed and another (PLD 2001 SC 13), declined to grant leave to appeal maintaining the judgment of the learned High Court as there was four hours delay making the Talb-i-Muwathibat from the time of receiving the knowledge of the sale. In the case of Mst. Sundri Bai v. Ghulam Hussain (1983 CLC 2441) High Court of Sindh, held the delay of 1 hour in making Talb-e-Muwathibat to be fatal to the scheme of Shufa when the pre-emptor was residing on the first floor while the purchaser/respondent was residing on the ground floor of the same building. In another case of Mst. Kharia Bibi v. Mst. Zakia Begum and two others (CA 1618 of 2003) this view was endorsed.
Now we would consider the two judgments pronounced by this Court by larger Benches of equal strength in the cases of Haji Noor Muhammad v. Abdul Ghani & 2 others (2000 SCMR 329) decided on 27.10.1999 and Altaf Hussain v. Abdul Hameed (a) Abdul Majeed through Legal Heirs & another (2000 SCMR 314) decided on 15.11.1999, wherein the consensus was that in view of the law of pleadings, it is not necessary to give the details including the date, place and time of performance of Talb-i-Muwathibat. With utmost respect it is observed that while expressing the above view this Court did not take into consideration in detail the, importance and implication of the word immediate as has been provided in Explanation I to Section 13 of Act 1991 otherwise there was every possibility of arriving at the view which we are intending to take in this case. However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order 6, Rule 5 CPC as evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance. Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977, wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-i-Muwathibat. Therefore, we endorse the view taken in the these judgment and approve that a pliant wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performances Talb-i-Ishhad in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit.
In view of the above discussion, the question is answered in affirmative and now the cases shall be fixed before the respective Benches for decision after taking into consideration their respective evidence accordingly.
(R.F.K.) Order accordingly
PLJ 2007 SC 602
[Appellate Jurisdiction]
Present: Rana Bhagwandas & Hamid Ali Mirza, JJ.
MUHAMMAD IQBAL and others--Petitioners
versus
EXECUTIVE DISTRICT OFFICER (REVENUE), LODHRAN
and others--Respondents
C.P.L.As. Nos. 2287, 2288, 2289 & 2290 of 2005, decided on 11.1.2007.
(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 28.7.2005 passed in I.C.As. No. 14, 15, 16 & 17 of 2005).
Service Tribunals Act, 1973 (LXX of 1973)--
----S. 4(1)(b)--Civil Servants Act (LXXI of 1973), S. 9--Constitution of Pakistan, 1973, Arts. 212, 185(3) & 199--Promotion--Eligibility and fitness of civil servant--Leave to appeal--Constitutional jurisdiction of High Court--Promotion may be a question falling within the exclusive domain of the Service Tribunal constituted under the Service Tribunals Act, the question of suitability and fitness for promotion to a post was expressly excluded from the jurisdiction of the Tribunal--Held: Petitions were rightly filed before the High Court--Leave refused. [Pp. 604 & 605] A
(ii) Constitution of Pakistan, 1973--
----Art. 199--Promotion--Question of--Constitutional jurisdiction of High Court--Jurisdiction of High Court may be invoked where authority acts in violation of jurisdiction conferred on him--Question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on him, extraordinary jurisdiction of High Court in terms of Art. 199 of the Constitution can be invoked for redressing the wrong. [P. 606] E
(iii) Civil Servants Act, 1973 (LXXI of 1973)--
----S. 9--Eligibility for promotion--Authority was not competent to dispense with prescribed academic qualification--Authority may be competent to promote a civil servant on acting charge basis by relaxing the prescribed length of service, but no such discretion vests in the authority to dispense with or relax the prescribed academic qualifications. [P. 606] B
(iv) Civil Servants Act, 1973 (LXXI of 1973)--
----S. 9--Eligibility for promotion--Promotion is not a vested right--Right has been conferred on a civil servant to be considered for promotion, if he is eligible on account of the fact that he possesses prescribed minimum qualification but he has no vested right to be promoted.
[P. 606] C
(v) Civil Servants Act, 1973 (LXXI of 1973)--
----S. 9--Service Tribunals Act (LXX of 1973), S. 4(1)(b)--Promotion--Eligibility and fitness--Determination of--Question excluded from the jurisdiction of Tribunal--Question of eligibility, which is a term of service by virtue of S. 9(1) of the Civil Servants Act, 1973 has not been excluded from the purview of the jurisdiction of the tribunal but the question whether a person having requisite eligibility has been rightly selected or not selected on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade has been excluded. [P. 606] D
PLD 1994 SC 539, 1991 SCMR 1129, 2002 SCMR 574, 2002 SCMR 1056 and 2005 PL(CS) 610 ref.
Syed Aaqa Asif Jafari, ASC for Petitioners.
Nemo for Respondents
Date of hearing: 11.1.2007.
Judgment
Rana Bhagwandas, J.--These identical petitions are directed against common judgment of a Division Bench of the Lahore High Court dated 28.7.2005 upholding the judgment of learned Single Judge passed in similar writ petitions filed by the private respondents challenging the promotion of the petitioners-Patwaris to the office of Kanungo by Executive District Officer (Revenue) Lodhran.
Each of the respondents, through separate writ petitions challenged the act of respondent-Executive District Officer (Revenue) on the premise that the petitioners were neither eligible nor more suitable than the respondents in the matter of promotion as some of them had even not passed the departmental examination prescribed for the office of Kanungo under the Punjab Revenue Department (Revenue Administration Posts) Rules 1990' framed by the Government of Punjab under Section 23 of the Punjab Civil Servants Act 1974 as amended vide notification of the Government of Punjab, Services and General Administration Department dated 2.3.2002.
Writ petitions were resisted by the petitioners on a variety of grounds, including the bar of jurisdiction as contemplated by Article 212 of the Constitution. On merits, it was urged that the recommendation made by Departmental Promotion Committee was based on available record and the respondents were rightly non-suited and found unfit. In some of the cases, it was stated that their ACRs and other documents were not complete, therefore, they could not be considered and found fit for promotion as Kanungo. Learned Single Judge of the Lahore High Court, Multan Bench vide judgment dated 18.1.2005 elaborately dealt with all these pleas and relying upon the dictum laid down in Muhammad Anis v. Abdul Haseeb (PLD 1994 S.C. 539) held that while the issue of eligibility for promotion may be a question falling within the exclusive domain of the Service Tribunal constituted under the Service Tribunals Act, the question of suitability and fitness for promotion to a post was expressly excluded from the jurisdiction of the Tribunal and, therefore, the petitions were rightly filed before the High Court. While allowing the writ petitions, High Court made the following directions:--
"9. Consequently, the order dated 16.6.2004 passed by E.D.O(R), Lodhran on the recommendations of Departmental Promotion Committee is held to be illegal and unlawful and the E.D.O(R), Lodhran is directed to order the preparation and completion of service record of all the candidates/officials of Revenue department (Patwaris) who were qualified at the time of convening of earlier Departmental Promotion Committee and then to re-examine/reconsider the cases of the petitioners alongwith other qualified respondents, by the Departmental Promotion Committee and for fresh decision, keeping in view the rules, regulations and the law on the subject within shortest possible time. With this direction/observation, the writ petitions are accepted but with no order as to costs."
Petitioners being naturally dissatisfied, assailed the judgment of the learned Single Judge in I.C.As before a Division Bench of the Lahore High Court but without any success, hence these petitions for leave to appeal.
We have heard learned counsel for the petitioners at quite some length and gone through the impugned judgments as well as the record. Learned counsel reiterated the same arguments, which were advanced before two different Benches of the Lahore High Court but repelled for strong reasons.
Precisely stated, the grievance appears to be that the High Court should not have interfered with the exercise of jurisdiction by the competent authority in the matter of promotion as it was founded on subjective satisfaction of the Authority, which could not be substituted by the High Court under any canon of law. Learned counsel heavily relied upon Muhammad Anis (supra), Abdul Malik v. Sabir Zameer Siddiqui (1991 SCMR 1129), Abdul Ghafoor v. National Highway Authority (2002 SCMR 574), Zafarullah Baloch v. Government of Balochistan (2002 SCMR 1056) and Tasleem Jan v. Muhammad Zaman (2005 PLC (CS) 610). The ratio of all the cases appears to be that what is barred from the jurisdiction of the Tribunal is question of fitness of civil servant for promotion yet the determination of his eligibility is the question on which jurisdiction of the Tribunal has not been barred. Fitness essentially introduces an element of objective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or a Court. The case of Abdul Malik (supra) essentially deals with the question of eligibility of a person for the purpose of promotion being not a matter in terms of Section 4 of the Service Tribunals Act, 1974. Similar question was involved in the case of Abdul Ghafoor (supra) expressing the view that appeal before the Tribunal would not be competent against an order of departmental authority determining fitness of a civil servant to be promoted to a higher post or grade or to be appointed or hold a particular post. In the facts of the case, it was held that Authority may be competent to promote a civil servant on acting charge basis by relaxing the prescribed length of service, but no such discretion vests in the Authority to dispense with or relax the prescribed academic qualifications. In the case of Muhammad Anis (supra), it was authoritatively laid down that the questions of eligibility and fitness have been treated differently by law makers in the Civil Servants Act 1973 and in the Service Tribunals Act, 1974. In Section 9 of the former Act, a right has been conferred on a civil servant to be considered for promotion if he is eligible on account of the fact that he possesses prescribed minimum qualification but he has no vested right to be promoted. In contrast to aforesaid Section 9, the law makers in proviso (b) to sub-section (1) of Section 4 of the Service Tribunals Act, 1974 have not used the word "eligible" but have employed the world "fitness or otherwise to be appointed or to hold a particular post or to be promoted to a higher post or cadre." This Court concluded that the question of eligibility, which is a term of service by virtue of above sub-section (1) of Section 9 of the Civil Servants Act, 1973 has not been excluded from the purview of the jurisdiction of the Tribunal but the question whether a person having requisite eligibility has been rightly selected or not selected on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade has been excluded.
There may be no cavil with the proposition that the question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction without jurisdiction or in colourable exercise of powers conferred on him, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong. We are, therefore, not inclined to agree with the learned counsel that this was not a fit case for interference by the High Court in the exercise of Constitutional jurisdiction. Admittedly High Court has not substituted its own decision for the act of the respondent, therefore, the submission is preposterous and not relevant.
For the aforesaid facts, circumstances and reasons, we find no ground for the grant of leave, which is declined and petitions dismissed.
(R.F.K) Leave petition dismissed
PLJ 2007 SC 607
[Appellate Jurisdiction]
Present: Rana Bhagwandas & Hamid Ali Mirza, JJ.
ABDUL RASHEED through L.Rs. and others--Petitioners
versus
MANZOOR AHMAD and others--Respondents
C.P.L.A. No. 1670 of 2005, decided on 15.1.2007.
(On appeal from judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur dated 21.2.2005 passed in Civil Revision
No. 270-D/199/BWP)
(i) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Constitution of Pakistan, 1973, Art. 185(3)--Mutation--Burden of proof--Leave to appeal--Whenever a Mutation is challenged the burden squarely lies on the beneficiaries of the mutation to prove not only the mutation but also the original transaction, which he is required to fall back upon--Held: Where petitioners failed to independently prove the transaction of sale of the suit land in their favour, High Court was perfectly justified in non-suiting them and upholding the cancellation order recorded by Revenue Officer--Leave to appeal declined and petition dismissed. [P. 611] C
(ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Mutation--Presumption of correctness--Presumption of correctness attached to entries in the record of rights by way of mutation but such entries are always rebuttable and open to correction. [P. 610] A
(iii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Mutation--Entitlement--Mutation, per se, is not a deed of title and is merely indicative of some previous oral sale between parties.
[P. 610] B
(iv) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Mutation--Entitlement--Mutation entries in favour of the petitioners, by themselves--Held: Such entries are entered and sanctioned not for the purpose of record of title in the property and any entry founded on wrong presumption does not have any legal effect on the title to the property. [P. 611] D
PLD 1990 SC 1049, 1992 MLD 751, PLD 1971 SC 376, PLD 1979 SC 890, PLD 2003 SC 688, 2004 SCMR 1043, 2004 SCMR 1137, 2004 SCMR 1530, PLD 2005 SC 343, 2005 SCMR 1859, PLD 2006 SC 84 ref.
Mr. Muhammad Jaffar Hashmi, ASC and Mr. Mehr Khan Malik, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 15.1.2007.
Judgment
Rana Bhagwandas, J.--Office has reported that this petition is barred by three days. We have gone through the contents of C.M.A. for condonation of delay and the record, which clearly indicates that original petition for leave to appeal was filed in office on 26.4.2005 within a period of 60 days of the impugned judgment. Merely because it was returned with objection for substitution by legible pages within a week's time and the same was filed in office on 9.5.2005 would not render the petition out of time. Office objection is, therefore, rejected and office directed to refrain from submitting incorrect and erroneous submission of notes on the question of limitation.
This petition is directed against Lahore High Court, Bahawalpur Bench judgment dated 21.2.2005 whereby respondents' civil revision against concurrent findings of fact arising out of a suit for declaration and specific performance filed by the petitioners were disturbed and the suit dismissed.
Petitioners filed a suit for declaration, injunction and alternatively for specific performance of contract against the respondents on the averments that one Zia Naqvi general attorney for Syed Qasim Hussain Shah-Respondent No. 8 herein had made an oral sale of the suit land in their favour, which was recorded in the revenue record through Mutation No. 8 dated 21.9.1967. Subsequently, vide order dated 7.1.1970, the same was cancelled by a Revenue Officer, which was challenged in the suit while seeking a declaration of ownership and permanent injunction. Petitioners also challenged the registered sale-deed dated 20.1.1983 in favour of Respondent Nos. 2 to 7 executed by respondent-Manzoor Ahmad acting as general attorney for real owner i.e. Syed Qasim Hussain Shah as being collusive, without consideration and inoperative upon their rights. By way of consequential relief, the petitioners prayed for a permanent injunctive decree against the respondents from interfering with their possession or to create any charge on the disputed land in any manner. Alternatively, petitioners prayed for a decree for specific performance of contract in their favour on the basis of oral sale. Lastly and again as an alternate relief they prayed for a declaration as owners in possession of the suit property by way of adverse possession.
The suit was contested by Respondent Nos. 2 to 7 by filing a written statement on 4.12.1984. Subsequently, they alongwith Respondent No. 8-Syed Qasim Hussain Shah filed amended joint written statement on 11.7.1987 resisting various averments of the petitioners and pleaded that Respondent No. 8 never appointed Zia Naqvi as his general attorney nor any transaction of sale took place between the petitioners and Respondent No. 8. Respondent No. 8 also denied the receipt of any consideration from the petitioners as also getting entered any mutation or appearing before the Revenue Officer admitting the sale in favour of the petitioners. Attestation of mutation in favour of the petitioners was, thus, described as fictitious, fake and fraudulent. Handing over of possession was squarely denied with the averments that predecessor-in-interest of the petitioners i.e. Abdur Rashid was in fact occupancy tenant on the land and continued to be in possession thereof. He took undue advantage of his possession and got a fictitious mutation attested in his favour, which was rightly cancelled by a Revenue Officer. Respondent Nos. 2 to 7 claimed that Respondent No. 8 had transferred the suit property in their favour for consideration of Rs. 1,00,000/- and that they were in possession of the suit land.
On the pleadings of the parties as many as 10 issues were struck. Both the parties adduced evidence but neither Zia Naqvi nor Syed Qasim Hussain Shah entered the witness box as Zia Naqvi died a natural death on 6.12.1981. On evaluation of evidence, trial Court vide judgment and decree dated 28.9.1988 decreed the suit.
Judgment and decree were challenged by Respondent Nos. 2 to 7 whereas Respondent No. 8-Syed Qasim Hussain Shah was arrayed as respondent. Their appeal was, however, dismissed by an Additional District Judge, Bahawalnagar on 17.6.1991. Both the judgments were assailed in the revisional jurisdiction of the High Court, which succeeded with the consequence that both the judgments of the Courts below were set aside. On his part, learned Single Judge in the High Court held that by reason of non-examination of Zia Naqvi and not bringing any corroborative evidence in support of the oral sale, petitioners utterly failed to prove the transaction of oral sale in their favour. He held that respondents did not adduce even the general power of attorney purportedly executed by Syed Qasim Hussain Shah in favour of Zia Naqvi and, therefore, failed to prove the authority of the attorney to transfer the suit land in their favour. High Court held that there was no independent evidence on record to support the existence of a valid transaction of sale in favour of the petitioners and mere attestation of mutation was not sufficient to declare them as owners of the property. High Court accepted the plea of the respondents supported by Syed Qasim Hussain Shah in the written statement and upheld the sale of the property in favour of contesting respondents. On the question of alternate plea of adverse possession, as prayed by the petitioners, High Court expressed the view that this plea being mutually destructive and inconsistent with the plea of a valid sale in their favour could not be accepted, in view of the law laid down by this Court in Ghulam Qadir v. Ahmad Yar (PLD 1990 S.C. 1049) and Mst. Walayat Jan v. Habibullah Khan (1992 MLD 751).
We have heard Mr. Muhammad Jaffar Hashmi, learned counsel for the petitioners at sufficient length and examined the impugned judgment as well as the record made available.
It is vehemently contended that in the face of a valid mutation attested in favour of the petitioners as far back as 21.9.1967 and continuous possession of the suit land with them, High Court is legally not entitled to disturb the findings of fact concurrently recorded by two Courts below; that there is a presumption of correctness in favour of mutation entries in the record of rights, more particularly, when these are followed by entries in the Jamabandi Register coupled with possession of the property in favour of the petitioners. Learned counsel heavily relied upon Ghulam Rasool v. Chief Administrator of Auqaf (PLD 1971 S.C. 376) and Abdul Ahad v. Roshan Din (PLD 1979 S.C. 890).
In Ghulam Rasool's case (supra), it was held by this Court that it is true that entries in the mutation register are by themselves not conclusive evidence of the facts which they purport to record but they are, nevertheless, not an "unimportant part of the testimony as to a fact which is available". This Court further held that the weight and importance to be attached to them is in no way diminished by the fact that they have been allowed by those who were going to be adversely affected by them to remain unaltered for a large number of years, even though they were aware of the entries in the record. The ratio of Abdul Ahad's case (supra) appears to be that a mutation proceeding incorporated in jamabandi carries a presumption of truth.
We are in respectful agreement with the proposition laid down by this Court in the precedent cases, the fact, however, remains that, notwithstanding, presumption of correctness attached to entries in the record of rights by way of mutation, such entries are always rebuttable and open to correction. It has been consistently laid down by this Court that a mutation, per se, is not a deed of title and is merely indicative of some previous oral sale between the parties. This principle being in view, whenever any mutation is challenged the burden squarely lies on the beneficiaries of the mutation to prove not only the mutation but also the original transaction, which he is required to fall back upon. Since the petitioners utterly failed to independently prove the transaction of sale of the suit land in their favour, High Court was perfectly justified in non-suiting them and upholding the cancellation order recorded by Revenue Officer. We are fortified in our view by the cases reported as Muhammad Akram v. Altaf Ahmad (PLD 2003 S.C. 688), Fida Hussain v. Murid Sakina (2004 SCMR 1043), Muhammad Hussain v. Wahid Bakhsh (2004 SCMR 1137), Muhammad Munir v. Muhammad Saleem (2004 SCMR 1530), Fida Hussain v. Abdul Aziz (PLD 2005 S.C. 343), Arshad Khan v. Resham Jan (2005 SCMR 1859) and Muhammad Afzal v. Matloob Hussain (PLD 2006 S.C. 84). Principle of law laid down in precedent cases furnishes adequate answer to the argument raised by the learned counsel.
Consistent with the law laid down by this Court, we are of the considered view that mutation entries in favour of the petitioners, by themselves, would not confer any right or title upon them. In fact, such entries are entered and sanctioned not for the purpose of record of title in the property and any entry founded on wrong mutation does not have any legal effect on the title to the property.
No other point has been raised at the Bar.
For the aforesaid facts, circumstances and reasons, there is no merit in this petition, which must fail. Even otherwise no question of law of public importance is spelt out in the petition. Leave to appeal is, therefore, declined and petition dismissed.
(R.F.K.) Leave declined
PLJ 2007 SC 611
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ; Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
COMMISSIONER OF INCOME TAX, KARACHI--Appellant
versus
ABDUL GHANI--Respondent
C.As. Nos. 991 & 992 of 2002, decided on 23.05.2006
(On appeal from the judgment/order dated 24.10.2001 passed by High Court of Sindh, in ITA No. 226 & 227/1999)
(i) Administration of Justice--
----Wrong provision of law while exercising a power--Effect--As long as the power to hear and decide a matter vests in a Court, mere reference to a wrong provision of law, for invocation of that power is not a bar to exercise of that power. [P. 616] A
(ii) Income Tax Ordinance, 1979 (XXXI of 1979)--
----Ss. 56 & 65--Assessment--Notice for previous years--Power of the Assessing Officer--Notice of assessment for previous years issued by the Assessing Officer u/Ss. 56 & 65--Validity--There can be no doubt with regard to power of the Assessing Officer to re-open the assessment for the previous assessment years u/S. 65 of the Ordinance, if lie is satisfied that there has been escapement of assessment--Assessing Officer issued a notice u/S. 56 instead of
u/S. 65 would neither invalidate the notice issued u/S. 56 of the Ordinance nor would render the assessments framed in pursuance of such notice as illegal and without jurisdiction. [P. 616] B
(iii) Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 156--Rectification, conditions for--Rectification u/S. 156 of the Ordinance is permissible if the error is apparent, obvious and floating on the face of the judgment and can be rectified without long drawn arguments and proceedings for appreciating facts and interpretation or application of any provision of law. [P. 617] C
(iv) Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 156--Rectification--Exercise of jurisdiction in the absence of any apparent error--Effect--In absence of any error apparent on the record, with regard to the impugned order/judgment, Tribunal ought to have refused to exercise jurisdiction u/S. 156 of the Ordinance as in exercise of such jurisdiction only a mistake apparent on the record can be rectified but Tribunal in fact had acted as Appellate Forum against its own order, which is not sustainable in law. [P. 617] D
PLD 1993 SC 109, 1992 SCMR 687, 2000 PTD 306, 2003 SCMR 1401 ref.
Mr. Akhtar Ali Mehmood, ASC and Mr. A.R. Akhtar, AOR for Appellant.
Mr. Nasrullah Awan, ASC for Respondent.
Date of hearing: 23.5.2006.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--As in the listed appeals common question requiring interpretation of Section 156 of the Income Tax Ordinance 1979 .(herein after referred to as "the Ordinance") is under examination, therefore, we intend to disposed them of by means of instant judgment.
Rs. 24,000/- as income was filed claiming exemption thereon. Similarly, the Wealth Tax statement was also filed, declaring therein a net wealth at Rs.230,000/- and in the same statement gross wealth was shown as Rs. 8,730,000/- including the liabilities of Rs. 8,500,000/-. During the pendency of the proceedings, details of the liabilities were called from the 7 persons and notices were issued to them under Section 148 of the Ordinance. Out of them two persons appeared before Income Tax Officer and stated that they advanced Rs. 1,300,000/- to the respondent and simultaneously admitting that their yearly incomes were Rs.20,000/- per annum and they had advanced loan to the assessee directly from their own savings and by collections of amount from their relatives and friends etc. The Income Tax Officer through letter dated 13th June 1995 confronted the respondent with the explanation offered by those two persons from whom allegedly the amount of Rs. 13,00,000/- was taken by him. In the said letter he was also called upon to furnish explanation failing which, the amount of Rs. 85,000,000/- would be deemed to be income in terms of Section 13 (1), (aa) of the Ordinance and would be subjected to tax. This letter was also replied but without any plausible explanation, therefore, the Income Tax Officer proceeded to add
Rs. 8,500,000/- with the prior approval of IAC under Section 13(1)(aa) of the Ordinance. Against this order an appeal was filed. Learned CIT (A) vide order dated 23rd November 1996 disposed of the appeal. Against this order two appeals were filed by respondent before the Income Tax Appellate Tribunal of Pakistan, Karachi which were disposed of vide order dated l2th January 1999 in the following terms:--
"15. In the light of the above facts and discussion, we are inclined to hold that treatment of the learned ACIT, and the upholding thereof to confirmed to the exigent of remaining amount being income from undisclosed source u/S. 13(1)(a)(a)."
After passing of this order, respondent submitted an application under Section 156 of the Ordinance before the Appellate Tribunal for rectification of the above order. The application was allowed. Relevant para therefrom is reproduced herein below for convenience :--
"7. Accordingly, we recall paragraphs 6 to 15 and part of para 17 of the order in ITA No.l716/KB of 1996-97 (A.Y.1991-92) dated 12.1.1999 and substitute the same with the following:--
"The Full Bench, has further, held:--
Reverting to the facts of the case, instead of issuing notices u/S. 65 of the Ordinance, where previous approval of the IAC concerned in writing to do so was mandatory, which is missing in the present case, admittedly two notice u/S. 65, one dated 11.5.1989 for assessment years 1961-62, 1963-64, 1964-65, 1965-66, 1967-68, 1969-70 to 1972-73 and 1974-75 to 1976-77, were issued by the assessing officer requiring the legal representatives of the assessee to furnish their returns of income. In this view of the matter, the proceedings initiated by the assessing officer u/S. 56 of the Ordinance for the assessment years under consideration, except for the assessment year 1988-89 are to be treated as coram non judice or he had committed an error of jurisdiction while passing a consolidated order u/S. 62 of the Ordinance, be therefore, annual the assessment orders relating lo assessment years, as mentioned in the instant para for having been made without lawful authority.
On the foregoing facts we find that the impugned order is unsustainable because the proceedings initiated u/S. 56 were not initio void in law.
Accordingly, impugned assessment order passed u/S. 62 is hereby annulled."
Learned Division Bench of the High Court vide judgment dated 24th October 2001 dismissed the appeals holding that the Tribunal had rectified its earlier order under Section 156 of the Ordinance in respect of mistake which was apparent on the face of record. Hence, instant appeals by leave of the Court.
Learned counsel appearing for the appellant-department contended that the jurisdiction has been conferred upon the Income tax Authorities including the Appellate Tribunal under Section 156(1) of the Ordinance to amend any order passed by it or to rectify any mistake apparent from the record on its own motion or on such mistake being brought to its notice by any other income tax authority or, by the assessee.
In view of such provision, it is contended that the Tribunal is not bestowed with the jurisdiction to recall its earlier order in the garb of exercise of powers of rectification because the exercise of such powers in such a manner would tantamount to reviewing the earlier order which is not permissible under the law.
On the other hand learned counsel appearing for respondent stated that as there was error apparent on the face of record, because notice under Section 56 of the Ordinance can be issued for the current year and if at all the department wants to take action in respect of income escaping assessment for the previous assessment years then notice under Section 65 of the Ordinance should have been issued, therefore, as there was a mistake on the face of record, the Tribunal had rightly exercised its jurisdiction.
We have heard the learned counsel for the parties at length and have also gone through the record carefully. It may be noted that admittedly before the Commissioner of Income Tax (Appeals) questions of non-issuance of the notice under Section 56 of the Ordinance and jurisdiction of the Assessing Officer were not raised, therefore, the Commissioner of Income Tax up held the addition of Rs. 8,500,000/-. Similarly when the Income Tax Appellate Tribunal was seized of the matter, the respondent for the first time raised the question of issuance of notice under Section 56 and not under Section 65 of the Ordinance and jurisdiction of Assessing Officer.
The above objection was duly considered and examined by the Appellate Tribunal in detail and it was held that though a notice under Section 65 of the Ordinance was required to be issued in respect of the income escaping assessment for the previous assessment years and proceedings for bringing the escaped income for the previous assessment years under the tax regime could not have been initiated under Section 56 of the Ordinance yet such failure would not render the proceedings taken on the basis of notice under Section 56 as illegal, without jurisdiction and void ab initio in view of the fact that by means of notice under Section 56 of the Ordinance the Assessing Officer had disclosed his intention in clear and express terms and had brought it to the notice of the respondent that he intended to proceed in respect of his income for the previous assessment years as in his previous assessment they had escaped the assessment. It was further observed that mentioning of wrong section would not render a notice as ineffective and illegal and it is the subject-matter and substance of the notice which is to be considered for determining the question of provision of law under which action was contemplated, irrespective of the section referred to therein. The discussion relating to the above issues/objection appears on page 19 of the main paper book of Civil Appeal No. 991 of 2002 (page 3 of the judgment/order of the Appellate Tribunal dated 12.1.1999) and it will be useful to reproduce the same as under:--
"However, para 21 narrated at page 21 of the judgment supra is also reproduced which contains that form or lending of notice is immaterial, if, otherwise, it fulfills the legal requirement, which is as under:
`We therefore hold that if the income of the assessee was assessable and the assessing officer had propel jurisdiction for making assessment or passing an order of the limitation period is not expired under Section 65 of the Ordinance, issuing of wring form of notice is immaterial and the assessment framed and the older passed consequent upon that notice, warrant or other document would not vitiate that assessment order.'
In light of the above mentioned observation quoted from the judgment, we over-side the objection of the learned A.R. that proceeding against the assesses be void abinitio for the reasons that issuance of notice under different heading did not cause any prejudice to the assessee."
From a bare perusal of the above paragraphs reproduced from the judgment of the Appellate Tribunal dated 12th January 1999, it may be noted that the objection with regard to non-issuance of notice under Section 65 of the Ordinance and the jurisdiction of the Assessing Officer to proceed with the assessment of income of the respondent for the previous assessment years had been overruled by the Tribunal. Such observation was made by the Tribunal after taking into consideration the facts of the case, the provisions of Sections 56 and 65 of the Ordinance and the view expressed by a Full Bench of the Appellate Tribunal in the case reported in [(1998) 77 Tax 91]. In this extent it will be appropriate to refer to the judgment of this Court in the case of Pakistan Fisheries Ltd. V. United Bank Ltd. (PLD 1993 SC 109), wherein this Court pronounced that as long as power to hear and decide a matter vests in a Court, mere reference to a wrong provision of law for invocation of that power would not be a bar to the exercise of that power. Applying this pronouncement to the present case, there can be no doubt with regard to the power of the Assessing Officer to re-open the assessment for the previous assessment years under Section 65 of the Ordinance, if he is satisfied that there has been escapement of assessment. Thus the fact that the Assessing Officer instead of issuing a notice under Section 65, issued a notice under Section 56 would neither invalidate the notice issued under Section 56 of the Ordinance nor would render the assessments framed in pursuance of such notice as illegal and without jurisdiction. Viewed in the background of above legal and factual position, it is observed that the Tribunal had decided the above issue after application of mind, consciously and giving plausible and satisfactory reasons for the same. It, therefore, cannot be said to be a mistaken or inadvertent finding or an error floating on the face of the judgment so as to be rectifiable under Section 156 of the Ordinance. Rectification under Section 156 of the Ordinance is permissible if the error is apparent, obvious and floating on the face of the judgment and can be rectified without long drawn arguments and proceedings for appreciating facts and interpretation or application of any provision of law.
After examining the record and facts, the Tribunal gave its findings that out of the amount of Rs.8,500,000/- an amount of Rs. 5,900,000/- was income of the assesses from undisclosed source as such concealed income directing it addition to the income of the respondent. Thereafter, the application under Section 156 of the Ordinance was submitted by the respondent before the Tribunal for rectifying its earlier order.
Thus for the foregoing reasons, appeals are allowed with cost and the impugned judgment dated 24th October 2001 passed by the High Court of Sindh as well as the judgment dated 22nd October 1999 passed by the Income Tax Appellate Tribunal are set aside.
(R.F.K) Appeals Allowed.
PLJ 2007 SC 618
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan & Saiyed Saeed Ashhad, JJ.
PROVINCE OF BALOCHISTAN and 2 others--Petitioners
versus
MURREE BREWERY CO. LTD.through its Secretary--Respondent
C.A. No. 210 of 2004 out of C.P. No. 94/Q of 2003, decided on 15.12.2006.
(On appeal from the judgment dated 7.4.2003 passed by the High Court of Balochitan at Quetta in Civil Petition No. 471 of 2000).
Constitution of Pakistan, 1973--
----Arts. 199 & 185(3)--Conditions--Constitutional jurisdiction--Locus standi--Validity--Court must satisfied that there was no other adequate remedy available under the law to the person/party invoking the jurisdiction of High Court and party was to be an aggrieved one which condition has not been prescribed u/Art. 199(1)(b) of the Constitution--Held: Jurisdiction of High Court through a Writ Petition that the petitioner must be an aggrieved person and he must have a locus standi for availing such a jurisdiction. [Pp. 622 & 623] A
Words & Phrases--
----Aggrieved Person--In order to be an aggrieved person it is imperative for him to show any of his proprietary or personal rights recognized by law, to be invaded or denied. [P. 623] B
Words & Phrases--
----Aggrieved party--Party must show some interest in property to which some legal sanctity was attached in order to bring itself within the ambit of the definition of "aggrieved party". [P. 623] C
Words & Phrases--
----Aggrieved person--Possibility of obtaining property by making highest bid, does not give to bidder a vested right in property--Mere possibility that a person can obtain property by making highest bid if a property is disposed of by public auction does not give such a potential bidder a vested right in property--Such person is not an aggrieved person and has no right to maintain a Constitutional petition. [P. 623] D
Constitution of Pakistan, 1973--
----Arts. 199 & 185(3)--Writ jurisdiction--Maintainability--Aggrieved Person--Person could not be held to be an aggrieved person unless he had a right in the performance of statutory functions by a person performing functions in connection with the affairs of the Federation or Province in respect of any right which he may have in relation to the performance of the functions and if he did not have any right directly in the matter had no locus standi to maintain Constitutional petition--Held: Relief sought must be in relation to the aggrieved person and not the grievance of the any third person. [P. 623] E
Constitution of Pakistan, 1973--
----Arts. 199 & 185(3)--Jurisdiction--Extraordinary relief--Principle--Granting of the extraordinary relief, the complainant's need of it and the absence of an adequate remedy at law must clearly appear--Complainant cannot succeed because someone else may be hurt--Other persons who may be injured are persons of the same race or occupation. [P. 624] F
Constitution of Pakistan, 1973--
----Arts. 199 & 185(3)--Writ jurisdiction--Aggrieved person--Maintainability--Assailed--High Court while accepting the petition of the respondent declared the notification issued by the Provincial Government and subsequent memorandum issued by the Excise Department to be without lawful authority and of no legal effect--Respondent could not advance any convincing reasons to hold it as an aggrieved party as no fee has been imposed on it and it has never paid the same--Licensees has ever complained of the depreciation of the sale of its products' in the market because of the imposition and consequential increase in the prices or any of them has ever refused to take the supply of its products--Held: License of third party would not be allowed to be pleaded which is liable to pay the impugned fee and which party is not before the Court. [P. 625] G
Supreme Court Rules, 1980--
----O. XXVIII, R. 3--Constitution of Pakistan, Art. 185(3)--Frivolous litigation--Respondent was not an aggrieved party and was having no locus standi to agitate the matter before the High Court in its Constitutional jurisdiction--Intention of such proceedings by the respondent is a futile exercise and it dragged the appellants unnecessarily into frivolous and vexatious litigation and which stand was still asserted on behalf of the respondent ever before Supreme Court by defending baseless proceedings and has wasted precious time of the Courts meant for the grant of relief to the genuine litigants and public--Held: Respondent was liable to payment of special costs for such frivolous litigation as either has been awarded by Supreme Court under its inherent powers while exercising Constitutional jurisdiction and also under Order XXVIII Rule 3 of the Supreme Court Rules, 1980 or has approved special costs, awarded by the High Court under similar inherent powers while exercising Constitutional jurisdiction. [P. 625] H
PLD 1978 SC 151, 1979 SCMR 299, 1982 PSC 888, 1987 SCMR 1577, 1994 CLC 2318, PLD 1958 (WP) Karachi 211, 1985 SCMR 1226, 1997 SCMR 1020, 1998 SCMR 2386, 2001 SCMR 4, 1993 SCMR 639, AIR 1995 SC 117, AIR 1983 SC 1086, AIR 1986 SC 494, AIR 1987 SC 1086 and 2006 SCMR 1834 ref.
Mr. Salahuddin Mengal, A.G. and Mr. Mehmood Raza, Addl.A.G. for Appellants.
Mr. Shahid Hamid, Sr. ASC for Respondent.
Date of hearing: 15.12.2006.
Judgment
Mian Shakirullah Jan, J.--This appeal, with leave of the Court, is directed against the judgment of the Balochistan High Court whereby while accepting writ petition filed by the respondent, the impugned notification dated 20.8.1999 issued by the Provincial Government and subsequent memorandum dated 23.8.1999 issued by the Excise Department i.e. Respondents No. 2 and 3 were declared as without lawful authority and of no legal effect with a further direction that the respondents/writ petitioners "be entitled to the recovery of tax, collected from him on the basis of said Notification. "
"No. SO(E&T)234-Tax/99/769-78/. In exercise of the powers conferred by Section 62 of the Balochistan Excise Regulation, 1915 (I of 1915), the Government of Balochistan is pleased to make the following amendments in the British Balochistan Foreign Liquor and Country Spirit Rules, 1947, namely:-
For sub-rule (4) of Rule 4 the following shall be substituted namely: --
"(4) The permit fee on the import of Pak Made foreign liquor and Pak Made Beer shall be at the rates specified below:--
(a) Pak Made Foreign Liquor ...Rs. 100/-per gallons.
(b) Pak Made Beer. ...Rs. 2/- per Litre.
It is this notification and subsequent memorandum issued in pursuance of the notification which were challenged by the respondent before the High Court in its Constitutional Jurisdiction.
According to the respondent, the Murree Brewery Company Ltd., Rawalpindi (the petitioner in the writ petition before the High Court) is a public limited company and is conducting various kinds of business including manufacture and sale of Pakistan Made Foreign Liquor (PMFL) and Beer for over a period of century. It was licensed to manufacture and sell its products in the Punjab under the provisions of the Punjab Excise Act, 1914, now under the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 and the rules framed thereunder. The respondent also sells its products to licensees in Balochistan. The petitioner, being aggrieved of the aforesaid notification and the memorandum issued thereunder by imposing an import license fee on all supplies to Balochistan from other provinces, has challenged the same before the Balochistan High Court at Quetta, inter-alia, on the grounds that the respondent company has been placed at a disadvantage on account of import duty levied by the petitioner as the respondent has to pay more on account of import duty levied on the PMFL from other provinces while the same duty is not levied on products of Quetta distillery that is situated in the Province of Balochistan; and the import duty by the respondent being a clog and fetter on the petitioner's right to trade and business is violative of various provisions of the Constitution i.e., Articles 18, 151(2) and 25 being discriminatory one as the sharp increase in the cost of respondent's products has the effect of rendering its product's prices uncompetitive.
The learned High Court after hearing the parties accepted the writ petition and while declaring the notification and the memorandum, referred to above, as without lawful authority and of no legal effects, also held the respondent shall be entitled to the recovery of tax collected from him on the ground that "any Notification of executive order, which invades the authority of Article 151, in prohibiting the export of goods of any class, from one Province to another, and is deterrent to free trade, commerce and intercourse throughout the country, cannot be saved."
The learned Advocate General, after giving a short background of the facts of the case, at the very outset has vehemently contended that the respondent was not an aggrieved person as contemplated under Article 199 of the Constitution under which the respondent has agitated the matter before the High Court and was having no locus-standi, as the permit fee imposed on the import of the liquor, mentioned therein, was not imposed on the respondent and it has never been recovered from him and the High Court has traveled even beyond prayer, made in the writ petition and granted a relief i.e., refund of tax so collected on the basis of the said notification whereof it (the respondent) was not entitled at all to such relief as no tax/fee/duty has been paid by it.
In view of the contentions so made by the learned Advocate General, we consider it proper to first decide the objection over the maintainability of the writ petition before the High Court on the ground as to whether the respondent was an aggrieved party as envisaged under Article 199 of the Constitution or not and could competently make a recourse to the High Court under its Constitutional Jurisdiction. We have heard both the learned counsel for the appellants as well as for the respondent. The learned counsel for the respondent has attempted to meet the objections so raised.
Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973, which reads, A High Court may if it is satisfied that no other adequate remedy is provided by law:
(a) On the application of any aggrieved party make an order:
(i) directing...
(ii) declaring...
lays emphasis (i) on the satisfaction of the Court about the absence of any adequate remedy available under the law to the person/party invoking the jurisdiction of the High Court under the said provisions of the Constitution and (ii) that the party is to be an aggrieved one which conditions have not been prescribed under sub-clause (b) of clause (1) of Article 199 of the Constitution. It is sine qua non for invoking the jurisdiction of the High Court through a Writ Petition, under the clauses referred to above and under which the instant writ comes, that the petitioner must be an aggrieved person and he must have a locus standi for availing such a jurisdiction. The word aggrieved or aggrieved party has not been defined in the Constitution, however, from time to time it has been interpreted by the superior Courts in the given circumstance of the case.
"It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. This principle has been very clearly stated by Huges J. in McCabe V. Atchison (1914) 235 U.S. 151 in these words:
It is an elementary principle that in order to justify the granting of the extraordinary relief, the complainant's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact clearly--established of injury to the complainant--not to others--which justifies judicial interference."
In a case (ii) (Indian Sugar Mills Association v. Secretary to Government, Uttar Pradesh Labour Department and others) the Full Bench of Allahabad High Court in Indian held that:
"We do not want to express any opinion whether those orders were right or wrong but other writs, directions or orders, cannot be placed on the same footings as a writ of habeas corpus and every one of the several mission persons of this State cannot be given the right to come up and agitate and reagitate against an Act or order like the one in question when he cannot show that his rights were directly affected by that order."
In a case (iii) (Surrendara Transport and Engineering Co. Ltd., Kalka and others v. State of Punjab) a Division Bench of the Punjab High Court held that:
"This petition can be dismissed on the short ground that the petitioners have not locus standi to challenge the validity of the Act, for it has been held repeatedly that a statute may be assailed only by one relying on an alleged invasion of his own constitutional rights. The invasion must affect his interests adversely and this interest must be a genuine proprietary interest and not merely a remote interest vide Article 13 of Willoughby on the Constitution of the United States, Volume I. The tax in the present case is to be paid not by the petitioners who are plying their vehicles on hire but by the passengers who are carried or by the owners of the goods which are transported and it seems to me, therefore, that the present petition is incompetent.", Finally it concluded that:
"It is unnecessary to quote, from more authorities because the position appears to be fairly clear that the petitioner which does not pay Toll Tax cannot come to the Court for relief on the ground that the contractors whose trucks are employed by the petitioners pay the tax and are expected in the ordinary course to include that tax in their charges and thus to indirectly recover them from the petitioners has not even attempted to meet this objection of Mr. Abbasi and has cited no authority to the contrary. I therefore hold that the petitioners have no locus standi to file the writ petitioner and that it is not maintainable.
Learned counsel for the respondent, could not advance any convincing reasons to hold it as an aggrieved party as no fee has been imposed on it and it has never paid the same and it is also not the case of the respondent that any of the licensees has ever complained of the depreciation of sale of its products in the market because of the imposition and consequential increase in the prices or any of them has ever refused to take the supply of its products and it cannot be allowed to plead the case of third party (the licensee) which is liable to pay the impugned duty/fee and which party is not before the Court. The only contention of the learned counsel for the appellants that its products would not be competitive with the local products is a far fetched idea to consider it as an aggrieved party on such a speculative and an imaginary consideration. Even the learned counsel for the respondent has very frankly conceded that the respondent would not be claiming the return of any amount as directed by the High Court and the said stand was taken very rightly as it is not the said respondent which had ever paid any fee on the import of its products.
As we held above, the respondent was not an aggrieved party and was having no locus-standi to agitate the matter before the High Court in its Constitutional Jurisdiction challenging the enhancement/ imposition of the permit fee on import of the liquor and the initiation of such proceedings by the respondent is a futile exercise and it dragged the appellants unnecessarily into frivolous and vexatious litigation and which stand was still asserted on behalf of the respondent even before this Court by defending such baseless proceedings and has wasted precious time of the Courts meant for the grant of relief to the genuine litigants and public and the respondent is liable to the payment of special costs for this frivolous litigation as either has been awarded by this Court under its inherent powers while exercising Constitutional Jurisdiction and also under Order XXVIII, Rule 3 of the Supreme Court Rules, 1980 or has approved it (Special Costs) awarded by the High Court under similar inherent powers while exercising Constitutional Jurisdiction as reported in the cases of Muhammad Rafiq v. Ataullah and others (1985 SCMR 1226), Inayatitllah v. Sh. Muhammad Yousaf and 19 others (1997 SCMR 1020), The Postmaster General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others (1998 SCMR 2386), Muhammad Naseer v. Mir Azhar Ali Talpur (2001 SCMR 4) wherein reliance was also placed on the cases of Khurshid Ahmad Naz Faridi v. Bashir Ahmed (1993 SCMR 639), Arwinder Singh Bagga v. State of U.P. and others (AIR 1995 SC 117) Rudul Shah v. State of Bihar (AIR 1983 SC 1086), Bhim Singh Mila v. State of Jammu and Kashmir (AIR 1986 SC 494), M.C. Mehta v. Union of India (AIR 1987 SC 1086), and Akhtar lqbal v. Muhammad Ali Bilal and others (2006 SCMR 1834). Thus we deem it proper to direct the respondent to pay Rs. 5,00,000/- as Special Costs to be deposited with Appellant No. 1 against valid receipt within two months, with intimation to the Registrar of this Court. Consequently, appeal is allowed with special costs.
(R.F.K) Appeal allowed
PLJ 2007 SC 626
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar and
Mian Shakirullah Jan, JJ.
CHAIRMAN SYNDICATE UNIVERSITY OF PESHAWAR
and another--Petitioners
versus
DIL NAWAZ KHAN--Respondent
C.P. No. 285-P of 2005, decided on 13.11.2006
(On appeal rom the judgment dated 13.5.2005 of the Peshawar High Court, Pehsawar passed in C.R. No. 1007/04)
Constitution of Pakistan, 1973--
----Art. 185(3), University of Peshawar Employees Efficiency and Discipline Statutes, 1977, Ss 5, 6 & 29--Leave to Appeal--Dismissal from service--Assailed--Competent authority to appoint inquiry officer--Show Cause Notice as well as order of removal from service issued by the Registrar against respondent--Respondent filed a civil suit which was dismissed but he was reinstated in his service with back benefits by First Appellate Court which order was confirmed by High Court--Leave to Appeal--Order of removal from service of respondent was rightly passed by Registrar with the approval of the competent authority after holding proper inquiry--Respondent did not avail proper remedy but agitated his grievance by filing a civil suit--Validity--Head of the Department being the authorised officer was competent to appoint Inquiry Officer and to issue show-cause notice and Vice Chancellor who was competent to pass order for his removal from service--Registrar of the University was not vested with such power as such being incompetent his entire actions were found without lawful authority--Held: Show-cause notice and order of removal from service issued by the Registrar were rightly set aside by both Appellate Court--Leave to appeal refused. [P. 629] B
University of Peshawar Act, 1974 (N.W.F.P. Act No. II of 1974)--
----Ss. 5, 6 & 27(1)(k)--University of Peshawar Employees Efficiency and Discipline Statutes, 1977, Ss. 5, 6 & 29--Constitutional of Pakistan, 1973, Art. 212(3)--Disciplinary action against employees, procedure--Authority competent to take disciplinary action--Statutes prescribes the grounds of penalty--Employees after completion of disciplinary action by competent authority--According to S. 29 of the Statutes Syndicate has been empowered to issue instructions for the maintenance of appropriate standards of efficiency, good conduct, discipline and integrity of the University employees--Disciplinary action an appendix has been attached at the foot of the Statues wherein National Pay Scale of the employee, authority competent to take disciplinary action and appellate authority have been defined--Petitioner being Technical Assistant in BPS-14 his appointing authority was the Vice-Chancellor and authority competent to take disciplinary action was the Head of the Department and Syndicate was the Appellate Authority. [P. 629] A
Mian Saadullah Janduli, ASC for Petitioners.
Mr. Abdul Qadar Khattak, ASC for Respondent.
Date of hearing: 13.11.2006.
Order
Abdul Hameed Dogar, J.--This petition is directed against judgment dated 18.4.2005 passed by a learned Judge of Peshawar High Court, Peshawar whereby Civil Revision No. 1007 of 2004 filed by petitioners was dismissed and the order of reinstatement in service of respondent passed by learned District Judge, Peshawar was maintained.
Briefly, stated facts are that on 29.1.1983 respondent Dil Nawaz Khan joined petitioner/University of Peshawar (hereinafter referred as `the University') as Technical Assistant (BPS-14). He was transferred and posted as Camp Manager at the campus of the University at Baragali. Later on, he was transferred to academic section of the University. Since there were allegations of disobedience of lawful orders of the competent authority, negligent in his duties, absence from duty without prior permission and public complaints about his character and moral values, as such Dr. Tariq Bangish Assistant Professor of the History Department was appointed as Inquiry Officer to conduct facts finding inquiry. He submitted his report on l6.06.1991 in pursuance of which a show-cause notice was issued by the Registrar of the University to respondent on 09.07.1991 which was replied by respondent on 16.7.1999 but the same was not found satisfactory as such he was removed from service on 3.9.1991. Feeling aggrieved respondent filed departmental appeal which was rejected by syndicate on 11.12.1991. The respondent then filed a suit for the grant of declaration, permanent injunction and in the alternate for the recovery of Rs. 300,000/- as damages before Civil Judge, Peshawar which was dismissed vide judgment dated 4.3.2003. This judgment was assailed before Additional District Judge, Peshawar which was allowed vide judgment dated 17.5.2004 and respondent was reinstated in service will back benefits, however, the suit to the extent of damages was dismissed. This judgment was challenged by petitioners before learned Peshawar High Court, Peshawar which was dismissed vide impugned judgment.
We have heard Mian Saadullah Janduli, learned ASC for the petitioners and Mr. Abdul Qadar Khattak, learned counsel for the respondent at length and have gone through the record and proceedings of the case in minute particulars.
It is mainly contended by learned counsel for the petitioners that order of removal from service of respondent was rightly passed by Registrar with the approval of competent authority after holding proper inquiry, as such, order of removal is proper. He stressed that the respondent did not avail proper remedy but agitated his grievance by filing suit for the grant of declaration, permanent injunction and in the alternate for the recovery of Rs.300,000/- as damages which was not competent as such impugned judgment is not sustainable in law and liable to be set aside.
On the other hand learned counsel appearing on behalf of respondent while controverting the above contentions contended that show-cause notice as well as order of removal from service was passed by Registrar of the University who was not competent to do so as such the impugned judgment does not suffer from any illegality or infirmity.
In order to reconstitute and reorganize the University for the purposes of giving it necessary autonomy, raising its standard of teaching and research, and improving its administration an Act was passed on 2nd April, 1974 which was designated as The University of Peshawar Act, 1974 (N.W.F.P. Act No.II of 1974) (hereinafter referred to as `the Act'). In pursuance of Section 27(1)(k) of the Act, University of Peshawar Employees Efficiency and Discipline Statutes 1977 (hereinafter referred to as "the Statutes") were prescribed to govern the matter relating to efficiency and discipline of the University of Peshawar Employees. It would be appropriate to refer herein below the words "Authority" and "Authorised Officer" as defined in Section 4 of the Statutes for proper adjudication of the matter:--
(a) "Authority" means an officer or authority specified in the Appendix, competent to appoint.
(b) "Authorised Officer" means an officer competent to take disciplinary action.
Section 5 of the Statutes prescribes the grounds of penalty whereas Section 6 mentions the penalties to be imposed upon the employees after completion of disciplinary action by competent authority. According to Section 29 of the Statutes Syndicate has been empowered to issue instructions for the maintenance of appropriate standards of efficiency, good conduct, discipline and integrity of the University Employees. For initiating disciplinary action an appendix has been attached at the foot of the Statutes wherein National Pay Scale (N.P.S.) of the employee, Appointing Authority, Authority competent to take disciplinary action and Appellate Authority have be defined. Coming to the case of respondents it is pertinent to note that at the relevant time he was working as Technical Assistant in BPS-14, as such according to appendix his Appointing Authority was the Vice Chancellor whereas Authority competent to take disciplinary action was Head of the Department and Syndicate was Appellate Authority.
(R.F.K) Leave refused
PLJ 2007 SC 630
[Review Jurisdiction]
Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.
Sheikh SHEHZAD alias FAREED AHMED--Petitioner
versus
Mian ABDUL MAJEED and 2 others--Respondents
C. Rev. P. No. 34 of 2004 in C.P. No. 2443 of 2001, decided on 24.1.2007.
(On review from this Court judgment dated 12.12.2003 in Civil Petition No. 2443 of 2001).
Abatement of Civil Causes--
----Decision of a Court, binding nature--Legal heirs of a party to litigation bound by decision after his death even without impleadment--Legal heirs of any person dying during the pendency of litigation automatically become bound by the decision against their predecessor-in-interest, even without impleadment. [P. 632] A
Binding on legal heir--
----Competency--Petition or Appeal; who may file--A party directly affected by a judgment may file appeal or petition--Petitioner being legal heir of the deceased is bound by decision and hence is a party directly affected by such judgement but without impleadment--Held: petitioner is entitled to file a petition or appeal, as the case may be, against such judgement. [P. 632] B
Common Sense--
----Legal heir--Determination of--Role of power of attorney--Admission on the part of other legal heirs--If one legal heir of some one admits any other to be his co-legal heir, he makes a statement against his interest by admitting the other one as his co-owner in the property, to be shared by that other--Held: Special power of attorney given by as many as eleven legal heirs of the deceased in favour of the petitioner describing him as son of deceased is an unavoidable document that could not be ignored by any stretch of reason.
[P. 632] C
Liability--
----Impleadment of a legal heir--Responsibility of the opposing party--Objection--Petitioner did not apply for impleadment before the High Court, is not material because impleadment, if at all necessary, was the responsibility of the petitioner in writ petition--Held: Non Impleaded legal heir, if directly affected by such judgement, has every right to challenge such judgement. [P. 632] D
Justice--
----Complete and Real Justice, doing of--A weakness alone for which the opposite party can duly be compensated, would not be considered an impediment in the way of doing complete and real justice. [P. 633] E
Mr. S.M. Naseem, ASC with Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Ch. Mushtaq Ahmad Khan, ASC with Mr. Arshad Ali Ch., AOR for Respondents.
Date of hearing: 11.1.2007.
Order
Sardar Muhammad Raza Khan, J.--Mian Abdul Majeed of Mohallah Kutb-ud-Din Rawalpindi and Sheikh Muhammad Ishaque of Kanak Mandi Rawalpindi had been litigating over the disputed shops and a godown. Writ Petition # 11/R of 1983 was lastly filed by Mian Abdul Majeed before Lahore High Court, Rawalpindi Bench on 28.2.1983. During its pendency Sheikh Muhammad Ishaque passed away on 12.10.1992. The writ petitioner impleaded Mst. Zubaida Begum widow, Muhammad Ilyas, Fayyaz Ahmed and Muhammad Riaz, sons of deceased who contested the writ petition, which was ultimately decided in favour of Mian Abdul Majeed on 17.5.2001.
The aforesaid impleaded legal heirs did not proceed further but one Fareed Ahmed alias Sheikh Shehzad, the son of Sheikh Muhammad Ishaque filed a Petition # 2443 of 2001 seeking leave to appeal from the judgment dated 17.5.2001 passed in Writ Petition # 11/R of 1983. It came up for hearing before this Court on 12.12.2003 when learned counsel for the respondent raised a preliminary objection regarding maintainability of the petition on the sole ground that petitioner Sheikh Shehzad is not a legal representative of Sheikh Muhammad Ishaque deceased and that being a stranger he had no locus standi to challenge the judgment of the High Court.
To the contrary, it was alleged that the real name of the petitioner was Fareed Ahmed and that Sheikh Shehzad was his alias or nick name and that he being the son of Sheikh Muhammad Ishaque and being directly an aggrieved person, had every light to file the petition irrespective of the fact whether he was impleaded in the writ proceedings or not. He relied upon various documents like special power of attorney executed by all other legal heirs of Sheikh Muhammad Ishaque describing Fareed Ahmed alias Sheikh Shehzad as the son of Sheikh Muhammad Ishaque. Further reliance was placed on birth certificate, national identity card, passport, driving licence and nikah nama. All these documents are reproduced in the judgment dated 12.12.2003 in CPLA # 2443 of 2001. This Court in the said judgment came to the conclusion that Sheikh Shehzad was a stranger and not entitled to get any relief. The leave was, therefore, declined. The petitioner has filed the instant review petition against the judgment dated 12.12.2003, aforesaid.
It is a known fact that the provisions concerning abatement of civil causes have long been deleted from the Civil Procedure Code through Law Reforms Ordinance 1972. Thereafter, the legal heirs of any person dying during the pendency of litigation automatically become bound by the decision against their predecessor-in-interest, even without impleadment. Thus the judgment dated 17.5.2001 would be binding on all the legal heirs of the deceased Sheikh Muhammad Ishaque provided they are the legal heirs. Sheikh Farid Ahmed alias Sheikh Shehzad, if happens to be the son of Sheikh Muhammad Ishaque, is bound by such decision and hence is a party directly affected by such judgment but without impleadment. He, therefore, is entitled to file a petition or appeal, as the case may be, against such judgment. In case of being a son, he is never a stranger to the proceedings.
His status needs to be discussed and determined. It is a matter of common sense that if one legal heir of some one admits any other to be his co-legal heir, he makes a statement against his interest by admitting the other one as his co-owner in the property, to be shared by that other. In the instant case, leaving aside for the moment, all pieces of evidence mentioned earlier, the special power of attorney dated 28.12.2002 given by as many as eleven legal heirs of Sheikh Muhammad Ishaque in favour of Fareed Ahmed alias Sheikh Shehzad (page-27 of the CMA # 884 of 2003), describing him as son of Sheikh Muhammad Ishaque is an unavoidable document that could not be ignored, by any stretch of reason. This Court, while passing the order under review, primarily fell into the confusion created by the petitioner as well as by his alias and omitted to consider the most important document in the shape of special power of attorney dated 28.12.2002. We believe, in the interest of justice, that there exist strong circumstances for the review of the impugned judgment.
The objection that Fareed Ahmed alias Sheikh Shehzad did not apply for impleadment before the High Court, is not material because impleadment, if at all necessary, was the responsibility of the petitioner in the writ petition. A non-impleaded legal heir, if directly affected by such judgment, has every right to challenge such judgment. As already observed, when all the legal heirs admit the petitioner to be their son and brother respectively, one has no reason to disbelieve. The
only confusion is created by the irresponsible conduct of Fareed Ahmed alias Sheikh Shehzad who seems to be more fascinated by his alias rather than his real name given in more than many documents. We are constrained to observe that such weakness alone, for which the opposite party can duly be compensated, should not be considered an impediment in the way of doing complete and real justice. We may also observe that the family of Sheikh Muhammad Ishaque has not been exhibiting a responsible conduct. Although not bound yet the four legal heirs impleaded in the writ petition ought to have informed the Court that their predecessor-in-interest died leaving behind eleven heirs. In the instant review petition, the legal heirs numbering eleven are mentioned at page-8 but the special power of attorney dated 28.12.2002 indicates of another daughter named Farrah Deba who is omitted to be given in the list at page-8.
Another important factor must not be lost sight of Original Petition # 2443 of 2001 was filed by the petitioner on 20.7.2001 while special power of attorney on behalf of all the remaining heirs was executed on 28.12.2002. In such power of attorney the serial number of CP 2443 of 2001 pending before the Supreme Court is already mentioned, meaning thereby, that all the legal heirs who had not filed any petition against the judgment in writ petition and the pendency whereof was within their knowledge on 28.12.2002, have failed to challenge the judgment dated 17.5.2001 in Writ Petition # 11/R of 1983. They, now cannot challenge the same being hopelessly time barred. Their act of authorizing Fareed Ahmed alias Sheikh Shehzad to file the petition solely in his own name, is not valid for being hopelessly time barred by almost one and a half year. Petition # 2443 of 2001 can, therefore, be considered to be filed by the petitioner alone and in his own right.
Consequent upon what has been disccused above, we are of the view that the petitioner deserved to be heard in Civil Petition # 2443 of 2001 and, in the circumstances, was not a stranger. The slacking and irresponsible behavior of the petitioner requires also to be taken notice of. The petition is accepted, the judgment dated 12.12.2003 is reviewed and CPLA # 2443 of 2001 is restored for rehearing on merits, subject to a cost of Rs. 40,000/- to be paid to the opposite party and to be deposited by the petitioner in this Court before Deputy Registrar (Judicial), within fifteen days from the announcement of the order, failing which the judgment dated 12.12.2002 of this Court in CPLA # 2443 of 2003 shall hold the field.
(R.F.K.) Petition accpeted
PLJ 2007 SC 634
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ.
Mst. SUBAN--Appellant
versus
ALLAH DITTA etc.--Respondents
C.A. No. 2046 of 2001, decided on 8.1.2007.
(On appeal from judgment dated 15.8.2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Civil Revision No. 362-D of 1989/BWP).
Succession--
----Rule of--After the death of the owner, property automatically gets vested in the heirs without intervention or any act on the part of the Revenue Officer or any State Agency--As soon as someone who owns some property, dies, the succession to his property opens and the property gets automatically can immediately vested in the heirs and the said vesting was not dependant upon any intervention or any act on the part of the revenue authorities or any other State Agencies.
[P. 637] A
Co-Sharer--
----Inheritance--Limitation, start running of--Entitlement--Extinguishment of right by efflux of time--Right of inheritance would not be extinguished by efflux of time and limitation would start running from the date when the right of any co-sharers in such land was denied--Efflux of time did not extinguish any rights in inheritance because on the death of a owner of property, all the co-inheritors, immediately and automatically, became co-sharers in the property and limitation would start running not from the time of the death of their predecessor-in-interest nor even from the date of mutation, if there be any, but from the date when the right of any such co-sharer/co-inheritors in such land was denied. [P. 637] B
Dispensation of Justice--
----Dispensation of justice--Principle of--Rules of morality, ethics, fair-play, justice and equity to be kept in mind--It is a principle of dispensation of justice that after a Court had determined all the legal and factual issues struck in a civil case and when it reached the final issue of grant of relief then the Court seized of the lis had to consider not only its answers to the said legal and factual issues but also and equally importantly, to keep in mind the dictates of morality, ethics, fair-play, justice and equity. [P. 638] C
Mian Allah Nawaz, ASC for Appellant
Mr. M. Munir Paracha, ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent No. 1.
Respondents No. 2 to 9 Ex-parte.
Date of hearing: 8.1.2007.
Judgment
Khalil-ur-Rehman Ramday, J.--At the time of his death, one Gharu owned land in two different villages of Tehsil Bahawalnagar i.e. 131 kanals and 1 marla of land in MAUZA CHAWAYKA OTTARAH and 558 kanals and 19 marlas of land in MAUZA CHAWAYKA HITTARH. He had no male child and was thus survived only by his widow, namely, Mst. Ghulam Fatima and by his two daughters, namely, Mst. Suban and Mst. Sardaran. Through a mutation Bearing No. 86 dated 14.6.1943 (Ex-P.2), the entire above-mentioned piece of land measuring 131 kanals and 01 marla situated in MAUZA CHAWAYKA OTTARAH was mutated exclusively in favour of Mst. Ghulam Fatima widow constituting her as the sole-owner thereof while through another mutation Bearing No. 32 dated 27.6.1944 (Ex. P. 1), the entire parcel of land measuring 558 kanals and 19 marlas situated in MAUZA CHAWAYKA HITTARH was mutated in favour of the above-mentioned two daughters of Gharu namely, Mst. Suban and Mst. Sardaran. Through a TAMLEEK NAMA, the said Mst. Ghulam Fatima widow was alleged to have transferred the said 131 kanalas and 01 marla of land situated in the above-mentioned village OTTARAH in favour of one Allah Ditta who was her son but from the earlier, husband, namely, Ghulam Muhammad and not from Gharu.
It is available on record as a fact admitted on all sides that the above-mentioned Gharu also had at least one brother by the name of Inayat.
In the year 1984, a suit was filed by the heirs of the said Inayat as also by the above-mentioned two daughters of Gharu questioning the above-mentioned Mutation No. 86 dated 14.6.1943 (Ex-P.2) through which the above-described 131 kanals and 01 marla of land had been mutated exclusively in the name of Mst. Ghulam Fatima widow on the ground that the above-mentioned Inayat being a brother of the said Gharu and Mst. Suban and Mst. Sardaran being his daughters were also entitled to their respective shares in the said piece of land.
The said suit was dismissed by a learned Civil Judge at Bahawalnagar after finding that a PUNCHAYAT had met at the time of the QUL KHAWANI of the said Gharu and with the assistance of the said PUNCHAYAT, a family settlement had been reached between the said widow and the said daughters of the said Gharu as a result whereof the above-described 131 kanals and 01 marla of land went to the share of Mst. Ghulam Fatima widow while 558 kanals and 19 marlas of land in MAUZA HITTARH fell to the share of the two daughters and that having received the said piece of land in MAUZA HITTARH, Mst. Suban and Mst. Sardaran could not be heard to lay claim to the suit land in village OTTARAH.
In pursuance of an appeal filed by Mst. Suban plaintiff, the said judgment and decree of the learned trial Judge were set aside and the suit of the plaintiff was decreed, as prayed. In reaching the said conclusion, the learned Appellate Judge was influenced by the fact that Mst. Suban and Mst. Sardaran were both minor at the time of the death of their father and thus they could not have legally entered into any settlement with respect to their rights in the property in question which stood vested in them as a result of the death of their father. It had also been found that the mutation in question Bearing No. 86 transferring 131 kanals and 01 marlas of land in favour of Mst. Ghulam Fatima was collusive, fraudulent and un-just as it had never mentioned that the land in question was being mutated in favour of Mst. Ghulam Fatima to the exclusion of other heirs on the ground of some family settlement and that the said mutation had in fact been entered and attested in favour of the said widow concealing the existence of the said two daughters of Gharu as it had been mentioned therein that the said Gharu had died issueless. It had also been found that the said plaintiffs being co-inheritors of the land in question would be declined to have been in possession of the same and that in the circumstances, the limitation would run against them not from the date of the mutation in question but from the time of denial of their rights in the suit land and that it could not, therefore, be said that the suit in question filed by the said co-sharers/co-inheritors, was barred by limitation.
On a petition filed by the present respondents seeking revision of the said appellate judgment, the learned High Court set aside the same and restored the judgment and decree of the trial Court dismissing the suit in question.
Hence this appeal by Mst. Suban through leave of this Court.
The learned counsel for the parties have been heard and we have also perused the record in the light of the submissions made before us.
What stands established/admitted on record is that Gharu had left the above-mentioned two parcels of land i.e. 131 kanals and 01 marla of land in village OTTARAH and 558 kanals and 19 marlas of land in village HITTARH; that at the time of his death in the year 1942, he had been survived by his widow, namely, Mst. Ghulam Fatima and by his two daughters, namely, Mst. Suban and Mst. Sardaran; that no claim was ever made by any side throughout these proceedings that the said Gharu did not profess SUNNI faith; that at the time of his death he had at least one brother, namely, Inayat; that both his daughters, namely, Mst. Suban and Mst. Sardaran were minor at the time of entering and attestation of the mutation in question and were not competent in law to enter into any agreement or settlement; that no one stood appointed as a guardian of the said two females when the alleged family settlement had been reached between the said daughters and the said widow and finally that there was nothing on record to indicate that the said brother Inayat or any other collateral of Gharu were also a party to some such alleged family settlement.
These are then the facts on the basis of which the present lis has to be decided.
It is a proposition too well established by now that as soon as someone who owns some property, dies, the succession to his property opens and the property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the Revenue authorities or any other State Agencies. It is also an established proposition that a mutation did not confer on anyone any right in any property as the revenue record was maintained only for realization of land revenue and did not, by itself confer any title on anyone. It may also be added that efflux of time did not extinguish any rights in heritance because on the death of an owner of property, all the co-inheritors, immediately and automatically, became co-sharers in the property and as has been mentioned above, limitation against them would start running not from the time of the death of their predecessor-in-interest nor even from the date of mutation, if there be any, but from the date when the right of any such co-sharers/co-inheritors in such land was denied by someone.
Having thus examined all aspects of the matter, we find that the learned Appellate Judge was right in holding that the plaintiff-heirs of the said Gharu could not have been non-suited on account of limitation; that the onus lay very heavily on Mst. Ghulam Fatima to establish relinquishment, by the other heirs, of their rights in the property in question which burden she had not been able to discharge, inter alia, because the daughters in question of Gharu were minor at the time of the alleged family settlement and also because mutation in question Bearing No. 86 proceeded on dishonest and incorrect premises i.e. Gharu having died issueless and Mst. Fatima being his only surviving heir.
To the said extent the findings of the learned Appellate Judge i.e. the learned Additional District Judge at Bahawalnagar were not open to any exception and the learned High Court was thus not justified in interfering with the same. This finding should have ordinarily led us to the setting aside of the impugned judgment of the learned High Court and restoring the judgment and decree passed by the learned Appellate Judge but then the question is - should it be so done?
What we know from the record, as has been noticed above is, that the Gharu in question had left behind a total of 690 kanals of land i.e. 131 kanals and 01 marla in village OTTARAH and 558 kanals and 19 marlas in village HITTARH. We also know that he had no male issue and had been survived only by a widow and two daughters. No body ever claimed that the said Gharu did not profess SUNNI faith. In the circumstances, the entire estate of Gharu was to devolve upon his widow, his two daughters and upon his collaterals/the residuaries, in accordance with their SHARAIEE shares. What had instead happened was that 131 kanals and one marla was got mutated in favour of the widow while the remaining 558 kanals and 19 marlas went to the two daughters, each one of them thus getting 279 and 9 marlas. The collaterals of Gharu, however, got nothing.
The daughters, while sitting tight over the said 558 kanals and 19 marlas of land, joined the above-said brother of Gharu, namely, Inayat/his heirs and claimed further land by laying claim to their share in 131 kanals and 1 marla which had gone to the widow. Decreeing the suit in question would, therefore, mean that the two daughters would retain 558 kanals and 19 marlas of land just between the two of them and then get a further share from the 131 kanals and 01 marla in question out of which 131 kanals some share would also have to go to the above-mentioned brother of Gharu who was entitled to a share not only out of the said 131 kanals and 01 marla but out of the total land left behind by Gharu which, as has been mentioned above, was 690 kanals. And similar would be the position of the widow who would get her share only from the said 131 kanals of land as if the said was the total estate left by her late husband. This would be highly un-just.
It is a principle of dispensation of justice, too well established by now, that after a Court had determined all the legal and factual issues struck in a civil case and when it reached the final issue of grant of relief then the Court seized of the lis had to consider not only its answers to the said legal and factual issues but also and equally importantly, to keep in mind the dictates of morality, ethics, fair-play, justice and equity.
Viewed in this perspective, we find that decreeing the suit of the plaintiffs as prayed as had been commanded by the learned Appellate Judge, would lead to un-just consequences as the same would on the one hand deprive some of what was legally due to them and would on the other hand enrich the others by what did not belong to them.
Consequently, in view of the provisions of Rule 4 of Order XLI of the Code of Civil Procedure which envisage grant of relief even to the non-appealing parties and also in discharge of the obligations caste on this Court to do complete justice, we declare and direct:--
(a) that all those persons, who qualified as heirs of Gharu as per the SUNNI faith, at the time of his death in the year 1942, were entitled to their respective SHARAI SHARES in each and every inch of land left behind by the said Gharu;
(b) that the said estate would consequently devolve upon all such heirs in accordance with the said shares and that;
(c) the District Officer (Revenue) of Bahawalnagar shall identify/cause to be identified all such heirs of the said Gharu and then ensure entering and attestation of mutation/mutations of inheritance of the said entire estate of Gharu in the name of the said heirs or in the name of the heirs of the said heirs if any such heirs be dead by now.
Regarding the claim of Allah Ditta respondent who, as has been mentioned above, was a son of Mst, Ghulam Fatima widow from her earlier husband and not from Gharu, the learned Appellate Judge had found that the alleged TAMLEEK NAMA allegedly executed by Mst. Ghulam Fatima in his favour could not be declared as valid and consequently effect would not be given to the same because Mst. Ghulam Fatima was not the exclusive and lawful owner of 131 kanals and 01 marla of land in question. No exception could be taken to the said findings of the learned Appellate Judge which finding is resultantly affirmed.
Civil Appeal No.2046 of 2001 is disposed of in the above terms and the suit in question filed by the plaintiffs is decreed accordingly.
No orders as to costs.
(R.F.K.) Order accordingly
PLJ 2007 SC 640
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed, JJ.
RAFAQAT ALI and others--Petitioners
versus
Mst. JAMSHED BIBI and others--Respondents
C.P. No. 574 of 2006, decided on 14.2.2007.
(On appeal from the judgment/order dated 14.3.2006 passed by Lahore High Court, Multan Bench, Multan, in C.R. No. 848-D of 2005).
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 185(3)--Limited jurisdiction--High Court has very limited jurisdiction to meddle with concurrent findings of the Courts below while exercising power u/S. 115 C.P.C. [P. 641] B
(ii) Constitution of Pakistan, 1973--
----Art. 185(3)--Concurrent findings--Misreading of evidence--Supreme Courts does not interfere with concurrent findings of the Courts blow in exercise of the power u/Art. 185(3) of the Constitution, unless there is defect of misreading or non-reading of the record--Petitioners had failed to point out any misreading of evidence--Held: Supreme Court having found no substance in the present petition dismissed the same--Leave refused. [P. 642] D
(iii) Equitable Relief--
----Specific performance is an equitable relief and Courts below have rightly declined to exercise the discretion in favour of petitioner with cogent reasons. [P. 642] C
(iv) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17 & 79--Non-production of two attesting witnesses--Validity--Petitioners had produced one witness to prove the execution of agreement as evident from the judgment--According to Arts. 17 & 79 of Qanun-e-Shahadat Order, petitioner had to produce two attesting witnesses of agreement in-question. [P. 641] A
PLJ 2000 Lah. 1723; PLD 2003 SC 31 and 2003 MLD 131, ref.
Raja Muhammad Ibrahim Satti, ASC and Mr. M.S. Khattak, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 14.2.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present petition arises are that predecessor-in-interest of the Respondents No. 1 to 6 Defendants No. 1 to 6 was allottee of land in question measuring 57 kanals 6 marlas under Tarbela Dam Affectees Scheme situated in chak No. 174/10-R, Tehsil Jahanian, District Khanewal. After his death it was transferred to his LRs present Respondents No. 1 to 6 who agreed to sell the land in question to the petitioners vide agreement to sell dated 3.11.1983 for a consideration of Rs. 14200/-. The possession of the land in question was also handed over to the petitioners. All Government dues have been paid by the petitioners/plaintiffs but Respondents No. 1 to 6 refused to execute the sale-deed in favour of the petitioners/ plaintiffs. Petitioners being aggrieved filed suit for specific performance in the Court of Civil Judge Khanewal on 27.10.1991. Respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 6 issues and after recording the evidence of the parties, dismissed the suit vide its judgment and decree dated 18.12.2000. Petitioners being aggrieved filed appeal before the Addl. District Judge who dismissed the same vide judgment and decree dated 16.6.2005. Thereafter the petitioners being aggrieved filed civil revision in the Lahore High Court Multan Bench which was also dismissed. Hence, this petition.
The learned counsel for the petitioners submits that all the Courts below had decided the case against the petitioners by misreading and non-reading of the record. He further submits that learned High Court had decided the case against the petitioners as none of the petitioners entered appearance in the witness-box to face the weapon of cross-examination and also failed to produce general power of attorney executed by the respondents in favour of the petitioners at the time of execution of agreement to sell with the petitioners.
We have considered the submissions made by learned counsel for the petitioners and perused the record. It is admitted fact that the petitioners had produced only one witness PW-1 Sher Bahadar to prove the execution of agreement Ex.PI as evident from para 9 of the judgment of the Addl. District Judge. According to Articles 17 and 79 of Qanun-e-Shahadat Order, 1984, petitioners had to produce two attesting witnesses of the agreement in question. As mentioned above, petitioners had produced only one witness to prove the agreement to sell, therefore, all the Courts below were justified to non-suit the petitioners as law laid down by this Court in various pronouncements. See Suleman Ali's case (PLJ 2000 Lah. 1723), Maqsood Ahmad's case (PLD 2003 SC 31), Qazi Muhammad Saqib Khan's case (2003 MLD 131). The learned High Court had taken a lot of pain to re-appraise the evidence on record as evident from paragraphs 5 to 9 of the impugned judgment. The learned High Court has very limited jurisdiction to meddle with the concurrent findings of the Courts below while exercising power under Section 115 CPC. There are various pronouncements in this regard of this Court and the Privy Council. See N.S. Venkatagiri Ayyanger's case (PLD 1949 P.C. 26), Muhammad Akhtar's case (2001 SCMR 1700) and Abdul Rahim's case (2000 SCMR 346). It is a settled law that specific performance is an equitable relief and the Courts below have rightly declined to exercise the discretion in favour of the petitioners with cogent reasons. The judgments of the Courts below are in consonance with the law laid down by this Court in Irshad Hussain's case (NLR 1994 SCJ 134) and this Court does not, normally, interfere with the concurrent findings of the Courts below in exercise of the power under Article 185(3) of the Constitution unless there is defect of misreading or non-reading of the record. The learned counsel for the petitioners has failed to point out any misreading of evidence and thus we having found no substance in this petition dismiss the same and refuse the leave.
(R.A.) Leave refused.
PLJ 2007 SC 642
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ.
Mrs. FARKHANDA TALAT, EX-SUPERINTENDENT, MINISTRY OF WOMEN DEVELOPMENT, SPECIAL EDUCATION AND SOCIAL WELFARE, ISLAMABAD--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Establishment Division Islamabad and others--Respondents
C.P. No. 1043 of 2006, decided on 19.1.2007.
(On appeal from the judgment dated 1.9.2006 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 265(R)CS/2003).
(i) Civil Servants Act, 1973 (LXXI of 1973)--
----Ss. 3(2) & 11-A--Constitution of Pakistan, 1973, Art. 212--Object--Guarantee to civil servants--Adversely affected--Terms and conditions of service not be violated--Principle--Held: Section 3(2) hold out a guarantee to all civil servants that no action could ever be taken which could adversely affect the terms and conditions of their service--Tenure of their employment, the pay and grade, right to promotion, retirement benefits and all other terms and conditions which were prescribed by Chap. II of Civil Servants Act, 1973--Provisions contained in the main body of Section 11-A of Civil Servants Act is re-iteration of the same principle assuring even the employees who stood declared surplus that they would be entitled to appointment to posts, carrying basic pay scale equal to the posts held by them prior to being rendered surplus--Held: Civil servant found guilty of acts of omission and commission amounting to misconduct could be stripped of the said privilege or at least some of them by way of punishment. [Pp. 646 & 647] A, B, C & D
Mr. Abdur Rehman Siddiqui, ASC with Mr. Arshad Ali Ch., AOR for Petitioner.
Ms. Naheeda Mehboob Elahi, DAG with Mr. M.S. Khattak, AOR, Sh. Naseer-ul-Haq, Addl. Secretary and Aftab Mehmood, Joint Secretary, for Respondent No. 1.
Mr. Shahid Chaudhry, S.O. for Respondent No. 2.
Nemo for Respondent No. 3.
Date of hearing: 19.1.2007.
Judgment
Khalil-ur-Rehman Ramday, J.--The petitioner was working as a Superintendent in BS-16 in the Ministry of Women Development when the Federal Government decided to re-organize its secretariat. As a result of the exercise which followed, the posts of Superintendents in the said Ministry were reduced by one. The axe fell on the petitioner as she was the junior-most Superintendent in the said Ministry and consequently landed in the Surplus Pool. This happened in the year 1997.
Through a notification dated 13.10.1998 of the Establishment Division, the services of the petitioner, alongwith four others, were placed at the disposal of the Ministry of Commerce for absorption against some vacant posts. It appears from an O.M. of the Ministry of Women Development dated 4.11.1998 which was addressed to the Establishment Division that the Ministry of Commerce had declined to accept her "charge assumption" and a request had consequently been made to the Establishment Division to ask the Ministry of Commerce to absorb the petitioner. Silence appears to have been the only response from the said Division.
What is then on record is an application by the petitioner to the Secretary of the Ministry of Women Development sent in the month of September of the year 2002 wherein the petitioner had submitted that a Superintendent of the said Ministry by the name of Latif had since retired; that the said post had thus become vacant and available and that the petitioner who belonged to the same Ministry may be absorbed against the said post.
Once again, the answer was-silence.
The next relevant fact is a notification issued by the Establishment Division on 4.10.2002 whereby the services of the petitioner, alongwith 55 others from the Surplus Pool, were:--
"......placed at the disposal of M/o Communications and Railways against the vacant posts of Senior Auditors (BS-11) in Railway Account Department....."
It appears from the impugned judgment that the co-appointees of the present petitioner through this notification or at least some of them defied the said command; refused to report to the Railways and got subsequently blessed with posts equivalent to the ones held by them prior to being declared surplus. The fault of the petitioner, however, appears to be that she obeyed the said superior command and had paid the price ever-since.
The petitioner then approached the Federal Service Tribunal complaining that despite the assurance given to her by sub-section (2) of Section 3 of the Civil Servants Act of 1973, the petitioner had been de-graded and had been put against a post in BS-11 as if she was a player playing a game of snakes and ladders where she could be bitten down to square one at the whims of some snake and was not a civil servant serving the Federal Government of a civilized State. The learned Tribunal responded by saying that notwithstanding the provisions of the said Section 3(2), a surplus employee like her, could be appointed to a lower post as was permitted by the proviso to Section 11-A of the said Act of 1973 and further that she had nothing to complain as her pre-surplus days' pay stood protected. She now re-acts by submitting that how would a Federal Secretary in BS-22 like to be appointed a peon in BS-1 even if he was assured of the pay and privileges of a Federal Secretary? This re-action does offer some food for thought.
The petitioner had also submitted before the learned Tribunal that her's was a case of gross discrimination as some of the other grade 16 surplus employees who, alongwith her, had been appointed to BS-11 posts through the above-mentioned notification of 4.10.2002 and who had refused to obey, had thereafter been given posts equivalent to the ones held by them prior to being rendered surplus. The learned Tribunal replied that she could not identify herself with the said other employees as they had, by refusing to report to the Railways Department, incurred the risk of termination of their services while the petitioner could not muster the same courage to run any such risk and her case was, therefore, not at par with the case of the said others and the differential treatment was, therefore, justifiable.
The petitioner also pleaded before the learned Tribunal that during the time that she was in the Surplus Pool, an equivalent post had become available, inter-alia, in her own Ministry of Women Development and that she could and should have been posted against the said vacancy. The learned Tribunal answered by saying that since she had decided not to defy the orders of the competent authority and had joined the BS-11 post in the Railways, therefore, her connection with her parent Ministry stood severed which dis-entitled her to any post available therein and further that having opted to accept the said lower post, she stood estopped from claiming any post equivalent to her pre-surplus days' post.
The appeal filed by the petitioner before the Service Tribunal was resultantly dismissed through the impugned judgment dated 1.9.2006 which brought her to this Court through Civil Petition No. 1043 of 2006 filed under Article 212 of the Constitution.
We have heard the learned ASC for the petitioner who has re-iterated the above-mentioned submissions made before the learned Tribunal. We have also had the benefit of the assistance rendered by the learned Deputy Attorney General pursuant to our notice to the respondents.
Before we proceed any further with the matter, it may be stated that the facts above-noticed are not in dispute. And we may add that during the pendency of this petition, in order to find out about the factum of availability or otherwise of an equivalent post then and even now, we had asked the Establishment Secretary through our order dated 12.1.2007 to:--
"...file an affidavit that no post in BS-16 was available at the relevant time in any Ministry, Division or Office of the Federal Government anywhere in Pakistan nor was any such post available even today."
The said Secretary responded with an affidavit in the following terms:--
"1. That no requisition for the post of Superintendent (BS-16) or equivalent was available in the Surplus Pool of Establishment Division against which petitioner namely Mrs. Farkhanda Talat could have been absorbed.
That no requisition for the post of Superintendent (BS-16) or equivalent is available in the Surplus Pool of Establishment Division at this time.
That deponent can only absorb employees from surplus pool against requisitioned posts."
This response to our query was, to say the least, evasive.
The admitted position thus is that the petitioner was holding a Grade-16 post in the year 1996 and had even earned a move-over to Grade 17 w.e.f. 1.12.1997 and that in consequence of the alleged re-organization of the Federal Secretariat, she became surplus and was then appointed to a lower post in BS-11 in the month of October, 2002. The crucial question is as to whether a civil servant could have been so treated?
The provisions of law, relevant for resolution of this controversy, are the ones contained in sub-section (2) of Section 3 of the Civil Servants Act of 1973 and the ones contained in Section 11-A thereof especially the provisions of the proviso to the said Section 11-A. The same are re-produced here-under for ready reference:--
"3 (1).........................
(2) The terms and conditions of service of any person to whom this Act applies shall not be varied to his disadvantage.
11-A. Absorption of civil servants rendered surplus.--Notwithstanding anything contained in this Act, the rules, agreement, contract or the terms and conditions of service, a civil servant who is rendered surplus as a result of re-organization or abolition of Division, department, office or abolition of a post in pursuance of any Government decision may be appointed to a post, carrying basic pay scale equal to the post held by him before such appointment, if he possesses the qualifications and fulfils other conditions applicable to that post:
Provided that where no equivalent post is available he may be offered a lower post in such manner, and subject to such conditions, as may be prescribed and where such civil servant is appointed to a lower post the pay being drawn by him in the higher post immediately preceding his appointment to a lower post shall remain protected."
(emphasis and under-lining is ours)
The fundamental principle which is thus clearly enunciable from the said provisions of Section 3(2) of the said Act of 1973, is that the same hold out a guarantee to all civil servants that no action could ever be taken which could adversely affect the terms and conditions of their service e.g. the tenure of their employment; the pay and the grade earned by them through years of labour and hard work; the right to promotion including the legitimate expectancy of future advancement in their respective careers; the retirement benefits such as pension, the gratuity and provident fund etc. and all other terms and conditions which were prescribed by Chapter II of the said Act of 1973 and by other laws, rules and regulations relating to the subject. The above-quoted provisions contained in the main body of Section 11-A of the said Act is a reiteration of the same principle assuring even the employees who stood declared surplus that they would also be entitled to appointment to posts; carrying the basic pay scale equal to the posts held by them prior to being rendered surplus.
But then all rules are liable to be subjected to exceptions and the above-noticed principle is no exception to the said rule, as we know for instance, that a civil servant found guilty of acts of omission and commission amounting to misconduct could be stripped of the said privileges or at least some of them by way of punishment. The above-quoted proviso to the above-mentioned Section 11-A of the Act of 1973 envisages another exception to the said principle whereby a civil servant could be denuded of the post earned by him. through years of sweat and toil and could be de-graded to a lower post and that also for no fault of his and only because someone in authority had thought of re-organizing the secretariat.
We all know by now that all provisions which create exceptions to general rules have to be construed rather strictly in their application to situations causing such deviations and moreso where the envisaged departure is not on account of any wrong-doing on the part of the one likely to be affected by it but because of some star stuck somewhere high up in the horizon. The proviso in question to the said Section 11-A is thus not only an exception to a guaranteed rule but a cruel exception at that. The deviating steps have, therefore, to be measured very minutely and monitored with the greatest of care and precision.
Reverting to the said proviso to the said Section 11-A, we find that the same does allow appointment of a surplus civil servant to `a lower post' but then subjecting such an employee to such an extra-ordinarily harsh treatment is permissible only and only on the satisfaction of a condition precedent prescribed by the said proviso i.e. non-availability of an equivalent post.
What then emerges from the above-discussion is:--
(a) that the said proviso to the said Section 11-A of the Civil Servants Act of 1973, does, envisage appointment of a surplus civil servant to a `lower post';
(b) that the only encroachment allowed by the said proviso upon the guarantees extended by the provisions of Section 3(2) of the said Act is the said appointment to a `lower post' and none else;
(c) that the said action is permissible only if `no equivalent post is, available'; and finally;
(d) that the said proviso is an exception to the above-noticed general rule and its application has, therefore, to be very strictly watched and guarded.
Testing the validity of the impugned action on this touchstone, we find that the petitioner had earned basic pay scale No. 16 in the year 1996 and a move-over to BS-17 in the year 1997 and was working against a post of a Superintendent in the Ministry of Women Development when she was struck by the re-organization of the Federal Secretariat; that a post of a Superintendent had become available in that very Ministry before she had been appointed to a BS-11 post in the Railways Department; that some equivalent posts had also become available in the Ministry of Commerce before her impugned down-gradation; that no affidavit or even a certificate had been filed by any competent authority declaring non-availability of an equivalent post before taking the impugned action against the petitioner and further that despite the orders passed by this Court, the" Establishment, Secretary had only said that no requisition was available in his Division asking for a grade 16 officer and not that no such equivalent post was available with the employer i.e. the Federal Government, in any of its ministries, divisions, departments or offices or in any office or department under its control or authority, either between 1997 and 2002 or even thereafter.
Needless to add that as has been mentioned above, the condition precedent permitting the kind of action impugned before us was the non-availability of an equivalent post' and not: the `non-availability of a requisition with the establishment division for an equivalent post'. Therefore, such an excuse offered by the Establishment Division was far from being a sufficient satisfaction of the said condition precedent. And we may also add that even the other justification offered by the Establishment Division for non-absorption of the petitioner in an equivalent post i.e. the Ministry of Commerce not honouring its notification regarding posting of the petitioner to one of the available equivalent posts in the said Ministry, was only a painful display of a callous disregard of the rights of a fellow civil servant as the Ministries etc. in the Federal Government were not sovereign powers but were a part and parcel of the same Government which were subject and subordinate to one superior command. We would dread even to visualize the situation canvassed on behalf of the respondents and unfortunately even accepted by the learned Tribunal that an action taken by the prescribed and the competent Division in the Federal Government had been thrown into the gutter by another Division or Ministry of the same Government with no one in the hierarchy to intervene and to set things right. Such a situation, in English language, is called anarchy and despite the respondents' insistence of having reached the said stage, we refuse to believe the existence of such an anarchic situation in the Government and in fact pray to Allah that such a claim never becomes a reality. We may add that the Establishment Division being or not being at the mercy of other Ministries, Divisions or offices etc. in the matter of placement of the Federal Government employees, is an internal affair of the said Government and is of no relevance to the petitioner nor does the same concern the Courts and the enforcement of law.
Having thus examined all aspects of the matter, we find that the impugned action could not be sustained in law as nothing was available on record which could assist us to hold that no equivalent post had ever become available in the entire set up of the Federal Government during the period in question i.e. from the year 1997 to 2002 and even till date. In the absence of such a material, the impugned action of appointing the petitioner to a lower post was an illegal and a callous exercise of authority and the same is accordingly declared as such.
Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment of the Federal Service Tribunal dated 1.9.2006 passed in Appeal No. 265(R)CS/2003 as also the impugned notification of the Establishment Division dated 4.10.2002 appointing the appellant to a lower post of Senior Auditor in BS-11 in the Railways Department, are set aside. Resultantly, the appellant is ordered to be appointed to a post equivalent to the one held by her before being rendered surplus with all back. benefits, if any be due. And this shall be so done by or before 28.2.2007 and her said appointment shall be made against a post in Islamabad.
Since the appellant had suffered agony for so long and for no fault of hers and since she had also been compelled to go into litigation which would have cost her money, therefore, she deserves compensation for the same which is fixed at Rs. 25,000/- (twenty-five thousand Only) and which shall be paid to her before the above-mentioned 28th day of February, 2007. An amount of rupees one thousand out of the said amount of Rs. 25,000/- shall be paid by the Establishment Secretary from his own pocket on account of his above-noticed conduct.
The Establishment Secretary shall then submit a report about the compliance of this order to the Registrar of this Court for the information of this Bench.
(W.I.) Appeal allowed.
PLJ 2007 SC 650
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Ch. Ijaz Ahmad, JJ.
ABDUL HAMID and another--Appellants
versus
DILAWAR HUSSAIN alias Bhalli and others--Respondents
C.A. No. 96 of 2003, decided on 9.2.2007.
(On appeal from the judgment dated 13.7.1999 passed by the Lahore High Court, Lahore, in Civil Revision No. 424-D of 1983).
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VII, Rr. 11 & 13, S. 11--Rejection of plaint--Deficiency of Court fee--Principle of resjudicata--Applicability--Determination--Second suit with same cause of action was not barred--Rejection of plaint does not pre-clude the presentation of fresh plaint and plaint was not liable to be dismissed on the well-known principle of res-judicata qua filing a fresh suit on the same cause of action--Rejection of plaint has not an adjudication on merits--Earlier suit of the appellant was decreed subject to payment of Court fee short coming can only entail rejection of suit and as mentioned the suit on same cause of action was not barred--Held: Courts below had committed material irregularity to reject the plaint without adverting to O.VII, R. 13.
[Pp. 653 & 654] A, B & C
PLD 1992 SC 256; 1989 SCMR 58; 1995 MLD 1563; PLD 1973 Lah. 495; 2000 YLR 1241; 1984 CLC 2392; 1993 SCMR 1686 & 1984 CLC 3292.
(ii) Interpretation of Statute--
----Statute must be read as an organic whole as laid down by Supreme Court. [P. 654] D
PLD 1993 SC 473 & PLD 1993 Lah. 183.
Mirza Hafiz-ur-Rehman, ASC for Appellants.
Mr. M. Munir Paracha, ASC for Respondents.
Date of hearing: 6.2.2007.
Judgment
Ch. Ijaz Ahmed, J.--Necessary facts out of which the present appeal arises are that appellants filed a suit for ejectment/possession in the Court of Civil Judge, Jhang on 17.10.1972 on the ground that plot in Question No. 79/11/M situated in Basti Atawali, Jhang was purchased by one Muhammad Rafique through an auction held by the Settlement Department and PTD was issued in his favour. Appellants purchased the plot in question from Muhammad Rafique vide registered sale-deed dated 11.7.1970 for consideration of Rs. 1,000/-. Plot in question was in possession of the respondents/defendants. Respondents filed written statement, controverted the allegations levelled in the plaint. The trial Court decreed the suit in favour of the appellants vide judgment and decree dated 24.9.1974 subject to the condition of making up the deficiency in Court fee till 26.10. 974. Respondents being aggrieved filed appeal before the first appellate Court which was rejected and thereafter revision petition filed by the respondents in the Court was also dismissed. The judgment of the trial Court was upheld upto the level of the High Court and the respondents did not file any petition before this Court. Appellants filed execution petition before the executing Court which was refused by the executing Court on the ground that appellants had failed to make up the deficiency in Court fee within the prescribed period, therefore, as directed in the judgment and decree dated 24.9.74 the plaint in their suit stood rejected. The appellants being aggrieved filed appeal in the Court of District Court who had reversed the order of the executing Court and thereafter revision petition filed by the respondents/defendants was accepted by the learned High Court by observing that the decree had become un-executable. Thereafter appellants filed second suit for possession in the Court of Civil Judge, Jhang qua the same subject-matter and cause of action. Respondents/defendants filed written statement, controverted the allegations levelled in the plaint and raised various preliminary objections including the preliminary objection that the second suit was barred by res-judicata. The trial Court on the request of the learned counsel for the parties framed the preliminary issue to the following effect:
"Whether the present suit is barred by Res-judicata? OPD
Both the parties were provided opportunity to produce their evidence. The parties had placed on record certain judgments, copy of plaint, written statement in previous suit and appeals. The trial Court dismissed the suit vide judgment and decree dated 26.4.1982 as the second suit was not maintainable on the well known principle of res-judicata. Appellants being aggrieved filed appeal in the Court of District Judge who dismissed the same and the revision petition filed by the appellants in the Lahore High Court was also met with the same fate. Appellants filed C.P., No. 1809-L/1999 before this Court which was fixed on 27.1.2003 and leave was granted.
The learned counsel for the appellants submits that all the Courts below had erred in law to dismiss the suit of the appellants on the principle of res-judicata inspite of the fact that principle of res-judicata was not applicable in the given circumstances as the earlier suit was filed by the appellants was not dismissed and their plaint was rejected.
The learned counsel for the respondents has supported the impugned judgment and further maintains that earlier suit was dismissed on merits in case the judgment be read as a whole, therefore, all the Courts below were justified to reject the plaint of the appellants under Order VII Rule 11 CPC.
We have considered the submissions made by counsel for the parties and have also perused the record. It is better and appropriate to reproduce operative part of the judgment of the trial Court in the first round of litigation and relevant provisions of CPC to resolve the controversy between the parties:--
OPERATIVE PART OF JUDGMENT OF TRIAL COURT IN THE FIRST ROUND OF LITIGATION.
"According to my findings on Issue No. 7, the plaintiffs are entitled for the decree of possession against the defendants. Accordingly it is passed in their favour with costs. In accordance to my findings on Issue No. 3, the plaintiffs are directed to make good of the deficiency of the Court fee amounting to Rs. 71/- before 26-10-1974, otherwise their plaint will be rejected."
Sec. 11 of CPC-Res judicata--"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.--For the purposes of this Section, the competence of a Court shall be determined irrespective of any provisions as to right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.--The matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Order VII Rule 11 of CPC: Rejection of plaint.--"The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.
Order VII Rule 13 of CPC: Where rejection of plaint does not preclude presentation of fresh plaint.--The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
(i) Sakhi Muhammad's case (PLD 1992 SC 256), (ii) Abdul Satar's case (1995 MLD 1563], (iii) Munawwar Hussain's case (2001 YLR 1241) and
(iv) Mian Khan's case (1989 SCMR 58).
(i) Mst. Kaneez Fatima's case (PLD 1973 Lah. 495) and
(ii) Abdul Majid's case (1984 CLC 2392).
"To start with, it must be kept in mind, first, that the provisions of Order VII, Rule 11 are procedural provisions, and secondly that on the principle that the first and the best source from which to ascertain the meaning of any statute is the statute itself, the Code of Civil Procedure must be read as a whole, that is to say, those provisions must not be read in isolation, and if intrinsic aid is afforded in their interpretation by other provisions of the Code, that aid must be made use of"
(W.I.) Appeal allowed.
PLJ 2007 SC 655
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar and Ch. Ijaz Ahmed, JJ.
SUBA KHAN and another--Petitioners
versus
HAFIZ MIAN MUHAMMAD--Respondent
C.P. No. 1429 of 2004, decided on 5.12.2006.
(On appeal from the judgment dated 5.4.2004 passed by the Lahore High Court, Rawalpindi Bench, in C.R. No. 218-D of 2001).
Constitutional Jurisdiction--
----Constitutional jurisdiction is discretionary in nature. [P. 658] D
Punjab Pre-emption Act, 1991 (IV of 1991)--
----S. 9--Contitution of Pakistan, 1973, Art. 185(3)--Co-shares--Determined equal right of possess--Held: Petitioner is recorded, co-sharer in the record of rights--Petitioner as well as respondents have equal right in the suit land, therefore the suit of the petitioner is decreed to extent of 1/2 share justice has been done by High Court to decree the suit to the extent of 50% of the land in-question. [P. 658] C
Punjab Pre-emption, 1991 (IV of 1991)--
----S. 13--Non-mentioning of time, date and place in plaint--Validity--Divergent views--Held: Every case should be decided on its peculiar facts and circumstances. [P. 657] A & B
2005 SCMR 1201; 2004 SCMR 1580; 2000 SCMR 314; 2006 SCMR 1410.
Malik Muhammad Kabir, ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioners.
Nemo for Respondent.
Date of hearing: 5.12.2006.
Judgment
Ch. Ijaz Ahmed, J.--Petitioners have sought leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, dated 5-4-2004 wherein the revision petition filed by respondents was accepted and reversed the judgment of the First Appellate Court. Necessary facts out of which the present petition arises are that Bakhat Bhari was the original owner of land in question measuring 24 kanals 2 marlas. The suit land is part of Khewat Nos. 1106 to 1112, 468 and share in Shamilat Deh. The original owner had sold the land in question to the petitioners through Mutation No. 965 dated 13-3-1996 for consideration of Rs. 12,000/-. Respondent/plaintiff filed a suit for possession through pre-emption in the Court of Civil Judge First Class Pindigheb, District Attock. The contents of the plaint reveal that respondent/plaintiff had visited his native village on 25-3-1996 and acquired knowledge of the said sale, so he at-once pronounced his intention to bring suit for pre-emption and thereafter he had despatched notices through registered post A/D as required by law of pre-emption. The contents of the plaint further reveal that plaintiff/respondent has claimed his superior rights on the basis of Shafi-e-Chareck and having adjacent land. Petitioners/defendants filed written statement controverting allegations leveled in the plaint. Out of the pleadings of the parties the trial Court framed six issues. The learned trial Court had completed the legal formalities such as recording of evidence of the parties. The Civil Judge First Class/Trial Court decreed the suit vide its judgment and decree dated 4-1-2000. Petitioners being aggrieved filed appeal in the Court of Additional District Judge Attock who accepted the same and set aside the judgment and decree of the trial Court vide its judgment dated 4.1.2001. Respondent being aggrieved filed Civil Revision No. 218-D/ 2001 in the Lahore High Court, Rawalpindi Bench which was accepted as mentioned above vide impugned judgment. Hence the present petition.
1 PLD 1998 SC 121
1991 SCMR 2001
2001 SCMR 1651
We have given our anxious consideration to the contentions raised by the learned counsel of the petitioners and perused the record. The learned High Court had thoroughly re-examined the evidence on record and thereafter reversed the finding of First Appellate Court with cogent reasons as evident from para 6 of the impugned judgment. The learned High Court had given finding of fact after re-appraisal of evidence that respondent/plaintiff had performed the talabs in accordance with law.
It is pertinent to mention here that First Appellate Court had non suited the respondent for non-mentioning of time, date and place in the plaint. This Court had given various divergent views of the said proposition of law. This Court has laid down principle while interpreting provisions of pre-emption law that date, time and place is not necessary to mention in the contents of plaint. See Haji Noor Muhammad's case (2000 SCMR 329), Azmatullah's case (2005 SCMR 1201), Abdul Qayyum's case (2001 SCMR 798), Ameer Jan's case (PLD 1997 SC 883), Allah Bakhsh's case (2004 SCMR 1580), Muhammad Ilyas's case (1999 SCMR 958), Altaf Hussain's case (2000 SCMR 314), Sar Anjam's case (1999 SCMR 2167) and Hayat Muhammad's case (2006 SCMR 1410).
This Court has also laid down a principle in the following judgments that date, time and place must be mentioned in the contents of plaint. See Haji Lal Shah's case (2004 SCMR 409), Atiq-ur-Rehman's case (PLD 2006 SC 309), Muhammad Saleem's case (PLD 2003 SC 315), Muhammad Siddique's case (2005 SCMR 1231), Gul Hussain Shah's case (1996 SCMR 294), Shafi Muhammad's case (1996 SCMR 346), Akbar Ali Khan's case (2005 SCMR 431), Khani Zaman's case (PLD 1998 SC 121).
The learned High Court had decided the case, as mentioned above, after judicial application of mind by scrutinizing the each and every piece of evidence on record and thereafter reversed the finding of the first appellate Court. This fact brings the case in the area that the judgments cited by the learned counsel for the petitioners are distinguished on facts and law. Even otherwise it is a settled law that every case is to be decided on its own peculiar facts and circumstances as law laid down by this Court in Muhammad Saleem's case (1994 SCMR 2213). The relevant observation is as follows:--
"Case is only an authority for what it actually decides"
In the case in hand necessary facts are mentioned in the plaint as is evident from the contents of paras 2 and 4 of plaint and finding of Para 9 of the impugned judgment.
The learned High Court had taken into consideration Mutation No. 965 as is evident from Para 7 of the impugned judgment which is to the following effect:--
"As to the superior right of pre-emption the petitioner is recorded a co-sharer in the Record of Rights for the years 1993-94. He pre-empted the sale transaction, took place through Mutation No. 965, attested on 13.3.1996. The respondents also became co-sharers on the suit land through mutation Exh. D.1. Both the petitioner as well as the respondents have equal right in the suit land, therefore the suit of the petitioner is decreed to the extent of 1/2 share.
In view of the above discussion, this civil revision is allowed partly, the impugned judgment of the learned appellate Court is set aside. The suit of the petitioner is decreed to the extent of 1/2 share against a consideration of Rs. 6,000/- to be paid within 2 months from toddy, failing which his suit shall be deemed to have been dismissed."
Mere reading of the aforesaid paragraph clearly shows that justice has been done between the parties by the learned High Court to decree the suit to the extent of 50% of the land in question. It is a settled law that constitutional jurisdiction is discretionary in character. As mentioned above, justice has been done by the learned High Court between the parties, therefore, we are not inclined to exercise our constitutional jurisdiction in favour of the petitioners as law laid down by this Court in Nawabzada Raunak Ali's case (PLD 1973 SC 236).
For what has been discussed above, we do not find any infirmity or illegality in the impugned judgment on merits in view of finding of the learned High Court as evident from Paragraphs 6 to 8 of the impugned judgment. The petition being devoid of merit is dismissed. Leave refused.
In view of the divergent view by different Hon'ble benches of this Court consisting of five and three Hon'ble judges, the case be placed before the Hon'ble Chief Justice of Pakistan for consideration to constitute a larger bench in any other appropriate case to resolve the controversy if the Hon'ble Chief Justice deems it fit.
(W.I.) Leave refused.
PLJ 2007 SC 658
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Ch. Ijaz Ahmed, JJ.
ASSAR ALI SHAH since dead through his Legal Representatives and 2 others--Appellants
versus
Syed MUZAFFAR DIN SHAH and 4 others--Respondents
C.A. No. 2161 of 2004, decided on 6.12.2006.
(On appeal from the judgment dated 24.2.2004 of the Peshawar High Court, Bench Abbottabad, in Civil Revision No. 2/1997).
Punjab Pre-emption Act, 1991 (IV of 1991)--
----S. 25--Constitution of Pakistan, 1973, Art. 185(3)--Consent decree--Non-depositing of balance amount--Appellants had failed to deposit the pre-emption money, the decree would be null and void--Balance pre-emption money was not deposited by appellants within the time fixed by the Court--No reason has been advanced by for appellants for the delay in depositing the amount--Neither any application for condonation of delay was filed nor any request for extension of time was made--Appeal was dismissed. [P. 660] A
Sh. Wazir Muhammad, ASC for Appellants.
Mr. Muhammad Munir Peracha, ASC for Respondents.
Date of hearing: 6.12.2006.
Judgment
Abdul Hameed Dogar, J.--This appeal is directed against the judgment dated 24.2.2004 passed by learned Judge in Chambers of the Peshawar High Court, Bench Abbottabad, whereby Civil Revision No.2 of 1997 filed by respondents was allowed and the judgment and decree dated 19.9.1996 of the learned District Judge, Batagram, was set aside, consequently the suit of appellants was dismissed.
Briefly, stated, facts giving rise to the filing of instant appeal are that respondents purchased land measuring 378 kanals 1 marla out of Khasra Nos. 840 to 850 and 971 situated in the area of Bateela, Tehsil Allai vide Mutation No. 51 attested on 23.2.1982. The appellants filed suit for the enforcement of their pre-emptive rights against the respondents. During the pendency of the suit, the matter was patched up between the parties on 29.7.1986 and on the statement of appellants, the trial Court passed a decree in favour of appellants with the direction that the remaining amount of Rs. 81,987.65 will be deposited in the Court by appellants within a period of one month failing which the decree shall be null and void. The appellants failed to deposit the pre-emption money within the stipulated period but on 23.9.1986 made an application to the District Judge Mansehra, Camp Batagram for allowing them to deposit the same which was rejected on 23.9.1986 being barred by time. The said order was not challenged and the same attained finality. Appellants thereafter challenged the consent decree dated 29.7.1986 of the learned Senior Civil Judge, Kohistan at Batagram, before the learned District Judge, Mansehra Camp Batagram, which was dismissed vide judgment dated 3.3.1987. Appellants then filed review petition on 31.10.1986, which was accepted on 14.3.1988. The respondents filed Writ Petition No. 131 of 1992 before the learned High Court, which was allowed, vide judgment dated 18.4.1992 and the matter was remanded to the learned District Judge with the direction to decide the matter on merits. During the pendency of this appeal, appellants filed review petition before the trial Court for reviewing its order dated 29.7.1986, which was accepted vide order dated 27.10.1992. Feeling aggrieved, respondents filed appeal before the learned District Judge, Batagram, which was dismissed vide judgment and decree dated 19.9.1996. Respondents then approached the learned Peshawar High Court by filing Civil Revision No.2 of 1997 which was accepted vide impugned judgment. Hence this direct appeal filed by the appellants.
We have heard Sh. Wazir Muhammad, learned ASC for appellants and Mr. Muhammad Munir Paracha, learned ASC for respondents and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the appellants has argued that the failure of the appellants to deposit the pre-emption money within the period fixed by the trial Court would not result into the dismissal of the suit as the learned trial Court had not used the word dismissal but had stated that the decree would be null and void.
On the other hand, Mr. Muhammad Munir Paracha learned ASC for the respondents contended that the appellants were bound to deposit the pre-emption money within one month but they failed to do so and the inescapable legal consequence of such failure was the dismissal of the suit of appellants. He further contended that as the matter was pending adjudication before the learned District Judge after the remand by the learned High Court, therefore, the trial Court had no power to entertain the review petition of the appellants.
In this case the trial Court while passing the consent decree had clearly observed that in case the appellants failed to deposit the pre-emption money the decree would be null and void. There is no denial to the fact that the balance pre-emption money was not deposited by appellants within the time fixed by the trial Court. No reason has been advanced by the learned counsel for the appellants for the delay in depositing the amount. As stated above, appellants submitted application before the District Court on 23.9.1986 for deposit of pre-emption money, which was rejected on the same day on the ground that it was barred by time. It is also admitted fact that neither any application for condonation of delay was filed nor any request for extension of time was made.
For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Resultantly, the appeal is dismissed with no order as to costs.
(W.I.) Appeal dismissed.
PLJ 2007 SC 661
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Hamid Ali Mirza, JJ.
PROVINCE OF THE PUNJAB through Collector, District Khushab, Jauharabad and others--Appellants
versus
HAJI YAQOOB KHAN and others--Respondents
C.A. No. 166 to 178 of 2003, decided on 12.12.2006.
(On appeal from the judgment dated 30.10.2001 in C.Rs. No. 1905 to 1917 of 2003 passed by the Lahore High Court, Lahore)
Duty Bound--
----Judicial officers are duty bound to decide the cases after judicial application of mind. [P. 664] A
Constitution of Pakistan, 1973--
----Arts. 189 & 190--Binding of judgment--Judgment of Supreme Court is binding on each and every organ of state by virtue of Constitution.
[P. 664] B
PLD 1977 SC 109.
Interpretation of Statute--
----Order made by authority acting under it would not be called in question in any Court. [P. 665] C
Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--
----S. 36--Constitution of Pakistan, 1973, Art. 185(3)--Unfetter power--Officer working under Colonization of Government Lands (Punjab) Act, 1912 should exercise their powers freely and should not be interrupted unnecessarily to administer colony land according to terms and conditions issued by competent authority of and on but his provision does not give unfettered power. [P. 665] D
Jurisdiction--
----Supervisory jurisdiction--Civil Court while exercising supervisory jurisdiction, mala fide excessive or not in accordance with law or based on fraud. [P. 665] E
Jurisdiction--
----Trial Court has given findings of fact against appellants that orders were passed by appellants against respondents mala fide, without jurisdiction. [P. 666] F
Constitution of Pakistan, 1973--
----Art. 4--Public functionaries are duty bound to pass the orders in accordance with law. [P. 667] G
PLD 1987 SC 447
Constitution of Pakistan, 1973--
----Art. 185(3)--Civil Procedure Code, (V of 1908), S. 115--Concurrent of trial Court and High Court----Supreme Court does not interfere in concurrent conclusion arrived at by Courts below. [P. 667] H
PLD 1987 SC 145; PLD 1977 SC 109; PLD 1987 SC 447.
Ms. Afshan Ghazanfar, AAG Punjb for Appellants.
Mr. Muhammad Munir Peracah, ASC and Ch. Muhammad Akram, AOR for Respondents (in all appeals).
Date of hearing: 12.12.2006.
Judgment
Ch. Ijaz Ahmed, J.--We intend to decide captioned appeals by one consolidated judgment having similar facts and law arising out of the common judgment of the Lahore High Court, dated 30.10.2001.
Appellants/petitioners had sought leave to appeal against the judgment of the Lahore High Court dated 13.10.2001 wherein the revision petitions filed by the private respondents were accepted through the impugned judgment.
Necessary facts out of which the aforesaid appeals have been arisen are that respondents filed suit for declaration alongwith permanent injunction and consequential relief against the appellants in the Court of Civil Judge, First Class Khushab to the effect that all the orders passed by the Revenue Authorities against them were illegal and void. Petition filed by Respondent No. 1 in present Civil Appeal No.166 of 2003 reveals that land in question was allotted on 4.3.1960 as depicted from Roznamcha No. 353, dated 8.7.1969. The contents of the plaint further reveal that possession of the land in question was given to the respondent by the appellants in the year 1960. The contents of the plaint further reveal that the allotment order and Rapat Roznamcha about allotment and possession in favour of the respondents/plaintiffs were misplaced by the official of the appellants malafide there EACO/Collector Jauharabad after enquiry held that the allotment in favour of the respondents was bogus vide order dated 27.9.1981 which order was upheld by the Additional Commissioner (Revenue), however in revision Member Board of Revenue remanded the case to the Assistant Commissioner/Collector Sub-Division Noorpur Thai for decision afresh who again decided the case against the respondents/plaintiffs on 10.12.1989 thereafter appeals and revision filed by the respondents were dismissed vide orders dated 28.2.1989 and 5.12.1991 by additional Commissioner and Member Board of Revenue. Similar are the facts of the connected appeals. Appellants filed written statement controverting the allegations leveled in the plaint. Out of the pleadings of the parties, the trial Court framed eight issues. Learned trial Court after completing the legal formalities such as recording of evidence of the parties decreed the suit vide judgment and decree dated 10.5.1997. The appellants being aggrieved filed appeals in the Court of Additional District Judge Khushab which were accepted vide judgment dated 7.8.2000. Private respondents being aggrieved filed civil revisions in the Lahore High Court which were accepted vide impugned consolidated judgment, hence the appellants/petitioners filed civil petitions before this Court which were fixed before this Court on 3.2.2003 when leave was granted in the following terms:--
"Leave to appeal is granted to consider whether in the absence of any allotment order by the competent authority mere report in `Roznamcha Waqiati' could confer right to claim propriety rights in addition to the effect of jurisdictional bar, perceived by the Colonization of Government Lands (Punjab) Act, 1912."
Learned counsel for the appellants submits that learned First Appellate Court was justified to none-suite the private respondents with cogent reasons keeping in view the law laid down by this Court in a similar case in Writ Petition No.11989 of 1980 titled Noor Muhammad etc. Vs. EACO etc. She further submits that respondents have no allotment letter in their favour which fact was not considered by the trial Court in true perspective as well as by the High Court and this fact was considered by the First Appellate Court in its true perspective. She further submits that mere entries in the Roznamcha do not confer any title in favour of the private respondents. She further submits that Civil Court has no jurisdiction to take the cognizance of the matter and entertaining the suit in view of Section 36 of the Colonization of Government Land (Punjab) Act, 1912.
Learned counsel for the respondents has supported the impugned judgment. He submits that learned trial Court was justified while ignoring the judgment of the High Court in the aforesaid writ petition as the private respondents were not party in the said writ petition. He further submits that First Appellate Court erred in law to reverse the findings of trial Court on Issues No. 5 to 7 without any justification and without judicial application of mind. He further submits that learned High Court has given findings of fact against the appellants after proper appreciation of evidence on record and this Court normally does not interfere in the findings of fact recorded by learned High Court while exercising its powers under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
We have given our due consideration to the contentions of the learned counsel for the parties and perused the record.
It is admitted fact that in Writ Petition No.11989 of 1980 private respondents were not party therefore learned First Appellate Court erred in law to non-suite the private respondents in view of the order of the High Court. The judgment of the High Court in the said writ petition is judgment in personam therefore learned First Appellate Court was erred in law to non-suit the private respondents on the basis of judgment of the High Court which is not in consonance the law laid down by this Court in Pir Bakhsh v. The Chairman, Allotment Committee and others (PLD 1987 SC 145). It is also settled principle of law that judicial officers are duty bound to decide the cases after judicial application of mind as law laid down by this Court in Gouranga Mohan Sikdar's case PLD 1970 SC 158. It is also settled principle of law that judgment of this Court is binding on each and every organ of the State by virtue of Articles 189 & 190 of the Constitution of the Islamic Republic of Pakistan, 1973. In view of aforesaid reasons the High Court was justified to reverse the findings of First Appellate Court while exercising powers under Section 115 CPC. It is pertinent to mention here that the learned trial Court had considered each and every piece of evidence on record while rendering the finding of fact qua issues No. 5 to 7 in favour of the respondents in paras 9,10 and 11 consisting of eight pages. The said findings were reversed by the First Appellate Court without application of mind as is evident from the operative part of the finding of First Appellate Court which is as under:
"12. The Court decided these issues together against the order of remand. The plaintiffs-respondents could not prove their allotment under the scheme. The Revenue Officers found the respondents as lessees. The findings of the Revenue Officers are not open to challenge. The order of the Additional Commissioner and Board of Revenue are against the respondents. The orders are neither illegal nor in any way malafide and without authority. The findings on Issues No. 5 to 7 are also reversed."
"The exclusion jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
The aforesaid proposition of law was considered by this Court in Zafarul Ahsan's case (supra) and laid down following principles:--
"Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."
There are several pronouncements of the superior Courts that Civil Court inspite of the exclusive power has jurisdiction to take the cognizance of the matter in case the authorities under the Special law have passed the order in violation of Rules and Regulations or malafide. It is also settled law that manner of exercising power is also termed as malafide as law laid down by this Court in Agha Shorash Kashmiri's case PLD 1969 SC 14. The aforesaid proposition of law with regard to the jurisdiction of the Civil Court is supported by following judgments:--
Khadim Hussain's case PLD 1967 Lah. 915
Muhammad Amin's case NLD 1998 Rev. 47
Jewana's case PLD 1954 Lah. 253
Karam Dad's case PLD 1978 Lah. 679
Muhammad Saleh's case NLR 1980 Rev. 3
Muhammad Ibrahim's case PLD 1960 Lah. 1106
Masood All's case PLD 1950 Lah. 340
Anjuman-e-Taleem-ul-Islam's case PLD 1983 Lah. 294
Hamayun's case NLR 96 Rev. 23
Muhammad Akram's case PLD 1993 Lah. 114
Nawab Din's case NLR 1984 Rev. 276
Fateh Muhammad's case 2002 CLC 639
Muhammad Zafar's case PLJ 2003 Lah. 1273
Muhammad Saleh's case 1980 CLC 662
Khadim Hussain's case 1970 SCMR 127
Muhammad Shaft's case 1982 CLC 55.
The ratio of the aforesaid judgments is that Section 36 of the Colonization of Government Land (Punjab) Act, 1912 is available only where the authorities concerned acted within powers and four corners of their jurisdiction and not their acts are ultravires or without jurisdiction or void or in excess of their jurisdiction. It is pertinent to mention here that trial Court, as mentioned above, has given findings of fact against the appellants that orders were passed by the appellants against the respondents malafide, without jurisdiction. The said findings were approved by the learned High Court in the impugned judgment, therefore contention of the learned counsel for the appellant that Civil Court had no jurisdiction to take the cognizance of the matter and entertain the suit filed by the respondent has no force. It is settled principle of law that public functionaries are duty bound to pass the orders in accordance with law in view of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 as law laid down by this Court in Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447). Both the Courts below i.e. trial Court and the Lahore High Court have given concurrent conclusion against the appellant that officials of the appellants had misplaced the original record and the appellants had not taken any action against them. It is settled law that no body should be penalized for the act of the public functionaries as law laid down by this Court in Umar Din (deceased) through L.Rs. and others v. Abdul Rahim and others (2005 SCMR 496).
Both the Courts below i.e. trial Court and the High Court have given concurrent conclusion against the appellants. This Court does not, normally interfere in the concurrent conclusion arrived at by the Courts below under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 as laid down by this Court in Muhammad Ishaque's case PLD 1977 SC 109. Learned counsel for the appellants has failed to bring the case within the parameters prescribed by this Court in Muhammad Ishaque's case (supra).
We do not find any infirmity or illegality in the impugned judgment passed by the Lahore High Court, therefore appeals are dismissed with no order as to costs.
(R.A.) Appeals dismissed.
PLJ 2007 SC 667
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
BASHIR AHMED through his L.Rs. and another--Appellants
versus
MUHAMMAD ALI through his L.Rs. and another--Respondents
C.A. No. 505 of 2002 and C.P. No. 1977 of 2000, decided on 12.2.2007.
(On appeal from the judgment/order dated 27.11.2000 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in C.R. No. 111-D of 1981).
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Constitution of Pakistan 1973, Art. 185(3)--Leave to appeal--Constitutional jurisdiction--Concurrent findings--Distinguished--Facts and law----Courts below had refused to exercise discretion in favour of appellants with cogent reasons as evident from operative part of the judgment--Supreme Court does not normally go beyond concurrent findings of fact recorded by Courts below, unless it can be shown that finding against evidence or so patently improbable, or perverse that to accept could amount to perpetuating a grave miscarriage of justice--If there has been any misapplication of evidence or finally if the finding could be demonstrated to be physically impossible. [Pp. 672 & 673] A
Constitution of Pakistan, 1973--
----Art. 185(3)--Specific Relief Act, (I of 1877), S. 12--Concurrent finding--Appreciation of evidence--Findings of Court below are on whole reason and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence.
[P. 673] B
Constitutional Jurisdiction--
----Concurrent finding--Constitutional jurisdiction--Discretionary in character--Constitutional jurisdiction cannot be exercised where concurrent findings of fact recorded by Courts below. [P. 673] C
Mr. Muhammad Jaffar Hashimi, ASC for Appellants.
Mian Allah Nawaz, ASC for Respondents.
Date of hearing: 12.2.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present appeal arises are that Appellant No. 2 and predecessor of the Appellant No. 1(i-iv) Bashir Ahmed filed suit for declaration and specific performance in the Court of Civil Judge Bahawalpur on 12.7.69 against the respondent seeking specific performance to sell qua the land in question. The contents of the plaint reveal that Respondent No. 1 (late Muhammad Ali) agreed to sell the land in question to the appellants for a consideration of Rs. 13,000/- which was paid to him and the possession of the suit land was also delivered to the appellants. The contents of the plaint further reveal that at the time of oral agreement to sell between the parties Respondent No. 1 late (Muhammad Ali) had not acquired the proprietary rights of the land in question. Therefore the execution of sale-deed was deferred till the issuance of the proprietary rights in favour of Respondent No. 1 (late Muhammad Ali). The contents of the plaint further reveal that Respondent No. 1 (late Muhammad Ali) secured proprietary rights on 5-8-1968 and had baked out from his commitment to execute sale-deed in favour of the appellants. Respondent No. 1 had sold the land in question to Respondent No. 2 vide registered sale-deed dated 6-8-1968 which was void. Respondents filed two separate written statements out of the divergent pleadings/pleas of the parties. Trial Court framed 8 issues and subsequently also framed Issue No. 1-A and Issue No. 2-A. The trial Court dismissed the suit with regard to specific performance of the oral agreement and decreed the suit of the appellant to the extent of alternate relief wherein Respondent No. 1 was directed to return Rs. 13,000/- to the appellants vide judgment and decree dated 24-6-1979. Both the parties filed 2 appeals in the Court of District Judge Bahawalpur who dismissed both the appeals vide judgment and decree dated 23-5-1981. Appellants being aggrieved filed Civil Revision No. 111-D/1981 in the Lahore High Court, Lahore but the respondents did not file appeal against the judgment of the First Appellate Court in the Lahore High Court. The learned High Court dismissed the appeal of the appellants vide impugned judgment dated 20.11.2000, Appellants being aggrieved filed Civil Petition No. 1977/2000 before this Court which was fixed on 6.3.02 and leave was granted. Out of which the present appeal arises.
Learned counsel for the appellants submits that all the Courts below had erred in law to dismiss the suit of the appellant qua the specific performance of agreement after holding that oral agreement was arrived between the parties. Respondent No. 1 had also received all the consideration amounting to Rs. 13,000/- at the time of agreement arrived between the parties, by misreading and non reading of provisions of Specific Relief Act and Transfer of Property Act. He further urges that all the Courts had also erred in law to come to the conclusion that Respondent No. 2 was bona fide purchaser of the land in question without notice. This finding of the Courts below was also result of misreading and non reading of the record. He further maintains that the onus was on Respondent No. 2 to first prove that he had no notice of previous agreement of sale between the appellants and Respondent No. 1 and his mere statement as witness that he had not have such notice, would have shifted onus to the appellants but he neither made any such statement nor pleaded in the written statement therefore onus of Issue No. 6 could not have been held to have been discharged by him. The finding of the Courts below on Issue No.6 was also not in consonance as law laid sown down by this Court in Mst. Khair-un-Nisa's case (PLD 1972 SC 25). He further submits that had Respondent No. 2 stated in his examination in chief that he had no notice of the previous agreement of sale, only then the onus would not have shifted to the appellant to prove that he, in fact, had the notice which otherwise had been established by the mere fact that the appellants as admitted by Respondent No. 2 had been in possession of the land all along in terms of the oral agreement and this fact was sufficient to prove that Respondent No. 2 was negligent and did not make necessary enquiry about the previous agreement of sale which a person of ordinary prudence should have made in order to plead that he was bonafide purchaser. He further urges that all the Courts below had considered the Respondent No. 2 as bona fide purchaser in violation of the law laid down by various pronouncements of this Court in support of the his contention he relied upon the following judgments:-
Industrial Development Bank of Pakistan v. Saadi Asmatullah and others (1999 SCMR 2874).
Shukri and others v. Ch. Muhammad Shafi Zaffar and others (PLD 1975 Lah. 619).
Hikmat Khan v. Shamsur Rehman (1993 SCMR 428).
Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2198)
He further urges that impugned judgment of the learned High Court is based not only on misreading or non reading of the evidence but also suffers from illegality as the law has not been correctly applied to the facts established on the record as regards the bona fide purchase of the land by Respondent No. 2 who was subsequent vendee. He further maintains that all the Courts below had dismissed the suit of the appellants in violation of the law down in the aforesaid judgments and in violation of the parameters prescribed by the legislature in its wisdom under Sections 41, 53-A of Transfer of Property Act and Section 12 of the Specific Relief Act.
The learned counsel has supported the impugned judgment and stated that Respondent No. 1 was lawful owner, therefore, provision of Section 41 of the Transfer of Property Act is not attracted in the present case. He further urges that appellants had also claimed alternative relief for return of the consideration from Respondent No. 1 which was granted by all the Courts below with cogent reasons. He further maintains that relief under Specific Relief Act is equitable relief which was denied by all the three Courts below with cogent reasons.
We have considered the submissions made by counsel for the parties and have also perused the record. It is admitted fact that all the Courts below had given concurrent findings of fact to the extent that oral agreement was arrived at between the Appellants and Respondent No. 1 but refused to grant equitable relief to the appellants in view of the peculiar facts and circumstances of this case by observing that Respondent No. 2 had purchased the land in question from Respondent No. 1 through registered sale-deed dated 6.8.1968 and found him bonafide purchaser without notice and appellants were in possession of the land in question as tenants. The learned High Court had taken a lot of pain to re-appraise the evidence as evident from para 12 to 15 of the impugned judgment. It is better and appropriate to reproduce operative part of the impugned judgment to resolve the controversy between the parties:
"It is worth to mention that even no suggestion was made to this Witness/Respondent No. 2 to the effect that. he was aware of the agreement between the petitioners and Respondent No. 1 and he did not pay the sale price i.e. Rs. 25000/-. Of course it can be said from the other side that petitioners were in possession of the suit land but no revenue record supports this plea of the petitioners that they were having the possession under an agreement to sell; it is not only mentioned in the written statement of Respondent No. 1 but also in his statement as DW.1 that petitioners were having the possession in the capacity of tenants.
It is also admitted by PW 10 Bashir Ahmad one of the petitioners that in July 1968 Mohammad Ali Respondent No. 1 had paid the entire instalments meaning thereby receipts were also issued in the name of the Respondent No. 1.
No doubt the judgments cited by the learned counsel for the petitioners supports the point that burden lies on the subsequent transferee to prove that he was transferee for value and that he paid money in good faith without notice of original contact and in this case possession of the petitioners was sufficient to indicate that title of the Respondent No. 1 was not without clouds but at the same time as indicated above the material available on the file is not sufficient to draw an inference against Respondent No. 2. It was not even alleged that he was aware of any contract between Respondent No. 1 and the petitioners and mere possession without any entry in the revenue record would not substantially affect the case of the Respondent No. 2 particularly when it was not even doubted that he had paid the price.
In view of the above discussion I am constrained to hold on the basis of the available material that respondent 2 was a bonafide purchaser for value without notice. I may mention here that Issue No. 5 "whether the subsequent sale in favour of Defendant No. 2 is illegal, void and ineffective against the rights of plaintiffs? was decided against the petitioners and this finding was further confirmed by the learned District Judge meaning thereby the sale in favour of Respondent No. 2 was held to be valid for all purposes, that is why the same was given preference, however in furtherance of the ends of justice, alternate relief claimed by the petitioners for awarding Rs. 13000/- with costs was granted. Petitioners have invoked the revisional jurisdiction of this Court u/S. 115 C.P.C. and it is pertinent to observe that as per Section 22 of the Specific Relief Act, the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. In the facts and circumstances of the instant case, I am convinced that the learned Courts below have exercised discretion judiciously and not arbitrary, by acceding to the alternate prayer of the petitioners for grant of a decree of Rs. 13,000/- with costs. Thus, the ends of justice have been adequately served. "
(i) Arif Shah's case (PLD 1991 SC 905)
(ii) Mussarat Shaukat Ali's case (PLD 1994 SCMR 2189)
(iii) Ameena Bibi's case (PLD 2003 SC 430).
(iv) Jethalal Nanshah Modi v. Bachu and another (AIR 1945 Bombay 481)
The ratio of the aforesaid precedents is as follows:--
"Where the circumstances under which a contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part or relief may be denied where the plaintiff has been negligent or as acquiesced in the injury."
In the case in hand all the Courts below had refused to exercise discretion in favour of appellants with cogent reasons as evident from the operative part of the impugned judgment reproduced hereinabove. It is a settled law that this Court does not normally go beyond the concurrent findings of fact recorded by the Courts below, unless it can be shown that the finding on the face of it against the evidence or so patently improbable, or perverse that to accept could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of evidence, or, finally if the finding could be demonstrated to be physically impossible. This being the practice and the rule of the Court in civil appeals, burden lies rather heavily on the appellants to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us as law laid down by this Court in various pronouncements. See Wali's case (NLR 1995 S.C.J. 339), Abdul Latif's case (1990 SCMR 909) and Ahmad Sher's case (1990 SCMR 445). It is also a settled law that this Court does not meddle with the findings of fact reached by the Courts below while exercising power under Article 185(3) of the Constitution when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by dis-regarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible. It is a settled law that constitutional jurisdiction is discretionary in character as law laid down by this Court in Nawabzada Raunak Ali's case (PLD 1973 SC 236). It is also a settled law that constitutional jurisdiction cannot be exercised where concurrent findings of fact recorded by the Courts below as law laid down by this Court in Khuda Bukhsh v. Muhammad Sharif and another (1974 SCMR 279). In view of peculiar facts and circumstances of this case, we are not inclined to exercise our discretion in favour of the appellants as law laid down by this Court in Rana Muhammad Arshad's case (1998 SCMR 1462) and Haji Saifullah Khan's case (PLD 1989 SC 166).
For what has been discussed above, we find no merit in this appeal which is dismissed.
(N.F.) Appeal dismissed.
PLJ 2007 SC 673
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Ch. Ijaz Ahmed, JJ.
RAFAQAT ALI--Petitioner
versus
MUHAMMAD FARID and others--Respondents
C.P. No. 573 of 2006, decided on 14.2.2007.
(On appeal from the judgment/order dated 14.3.2006 passed by Lahore High Court, Multan Bench, Multan, in C.R. No. 849-D of 2005).
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973--Art. 185(3)--Concurrent findings--Typographical mistake--Misreading and non-reading of the record--Memorandum of petition--Contention--Specific ground was not taken before First Appellate Court--Petitioner had failed to take such plea before High Court as well as evident from memorandum of revision petition--Assailed--Validity--High Court had taken a lot of pain to reappraise evidence on record--High Court did not interfere with concurrent conclusion arrived at by Courts below while exercising power u/S. 115 CPC--Held: Courts below had rightly declined to exercise the discretion in favour of the petitioner with cogent reasons--Leave refused. [P. 676] A & D
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17 & 79--Attested witnesses--Validity--Petitioner had failed to produce two attesting witnesses to prove the contents of agreement to sell--Held: Courts below were justified to non suit the petitioner in view of Arts. 17 & 79 of Qanun-e-Shahadat. [P. 676] B
(iii) Constitution of Pakistan, 1973--
----Art. 185(3)--Concurrent findings--Jurisdiction--Supreme Court did not normally interefere in concurrent findings recorded by Courts below while exercising power u/Art. 185(3) of Constitution.
[P. 676] C
Raja Muhammad Ibrahim Satti, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 14.2.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present petition arises are that petitioner filed suit for specific performance against the respondents in the Court of Civil Judge Khanewal on 27.10.1991. According to the contents of the plaint the controversy between the parties is in respect of 21 kanals land. Mehmood Khan predecessor-in-interest of the present respondents was allotted land in question under Tarbela Dam Affectees Scheme. After his death Mst. Anwar Sultan inherited the property and she vide agreement dated 19.1.1991 sold the property in question to the petitioner for a consideration of Rs. 15,000/- and the sale consideration was also paid there and then. Respondents refused to execute sale-deed in favour of the petitioner and as such the said suit was filed. Respondents filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties trial Court framed 6 issues. The learned trial Court dismissed the suit vide its judgment and decree dated 18-12-2000. Petitioner being aggrieved filed appeal in the Court of Additional District Judge, Khanewal on 30-3-2001 who dismissed the same vide judgment and decree dated 16-6-2005. Thereafter the petitioner filed Civil Revision No. 849-D/2005 in the Lahore High Court, Multan Bench, which was dismissed vide impugned judgment dated 14-3-2006. Hence the present petition.
"According to the evidence brought on record I am fully confident tha the father of the Defendant No. 1 did not enter into an agreement to sell with the plaintiff on 19.1.1991, hence this issue is hereby decided in the negative".
Learned counsel for the petitioner submits that agreement to sell was executed by Respondent No. 1 in favour of the petitioner as is evident from the contents of the agreement. The agreement is at pages 98-99 of the paper book.
"To prove some document it is essential for the transferee to produce atleast two witnesses but plaintiff could not produce two witnesses in support of his contention ".
The First Appellate Court also observed regarding attesting witnesses in para 9 in the following term:--
"Perusing record it has been observed that out of two marginal witnesses only one marginal witness could be produced."
It is an admitted fact that agreement to sell was witnessed by Sadiq Hussain P.W.3 and Muhammad Ashraf who was not produced. Mere mentioning by the trial Court that agreement to sell was not executed by father of the Respondent No. 1/Defendant No. 1 does not support the cause of the petitioner in view of the discussion by the trial Court in Para Nos. 7 & 8 of the judgment coupled with the fact that trial Court had mentioned in narration of facts that agreement was executed between the petitioner and Respondent No. 1. It is admitted fact that petitioner had also filed another suit against the respondents qua other agreement, which was decided by the trial Court on the same date by a separate judgment. Therefore it was merely typographical mistake. The learned counsel for the petitioner had failed to produce second attesting witness of the agreement to sell before the trial Court. The learned High Court had taken a lot of pain to reappraise evidence on record as is evident from Para Nos. 7 to 10 of the impugned judgment, therefore learned High Court did not interfere with concurrent conclusions arrived at by the Courts below while exercising power under Section 115 CPC. The judgment of the learned High Court is in consonance with the law laid down by this Court in various pronouncements. See Anwar Zaman's case (2000 SCMR 431). It is admitted fact that as mentioned above petitioner had failed to produce two attesting witnesses to prove the contents of the agreement to sell, therefore, Courts below were justified to non suit the petitioner in view of Article 17 read with Article 79 of Qanun-e-Shahdat Order, 1984 as law laid sown by this Court in various pronouncements. See Qazi Muhammad Saqib Khan's case (2003 MLD 131), Suleman Ali's case (2000 YLR 1938) and Maqsood Akhtar's case (PLD 2003 SC 131). It is also settled principle of law that this Court does not normally interfere in the concurrent findings recorded by the Courts below while exercising power under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973. See Wali's case (NLR 1995 SCJ 339). It is also a settled law that specific performance is an equitable relief and we find that the Courts below have rightly declined to exercise the discretion in favour of the petitioners with cogent reasons. The judgments of all the Courts below are in consonance with the law laid down by this Court in Irshad Hussain's case (NLR 1994 SCJ 134) and learned counsel has not been able to point out any misreading or non reading of evidence or any infirmity or illegality in the impugned judgment. This petition has no merit and the same is accordingly dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2007 SC 677
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Ch., C.J. Mian Shakirullah Jan & Saiyed Saeed Ashhad, JJ.
MUHAMMAD AKHTAR alias HUSSAIN--Petitioner
versus
STATE--Respondent
C.P. No. 2367-L of 2006, decided on 27.2.2007.
(On appeal from the judgment dated 2.10.2006 passed by Lahore High Court, Lahore in W.P. No. 1047/2006)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 347(7)--Anti-Terrorism Act, 1997 (XXVII of 1997)--S. 7--Pakistan Penal Code, (XLV of 1860), Ss. 302 & 34--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, S. 10(4)--Question of reduction of sentence--Compromise--Unsuccessful attempts to secure acquittal--Efforts to effect compromise--Conviction and sentence recorded against/accused--Appeals were rejected--Not compoundable offence--Application was submitted before trial Court for acquittal on basis of compromise, dismissed--Plea was not accepted by High Court--Question of reduction of sentence--Decision having been rendered by Supreme Court against conviction and sentence--Findings have been given on merits by Supreme Court--Held: Once findings have been given on merits by Supreme Court, then it would not be appropriate to enter the merits of the case again to consider the reduction of sentence offence which was not compoundable--No illegality impugned orders and which did not deserve any interference. [Pp. 680 & 681] A & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Constitution of Pakistan, 1973, Art. 187--Acquittal on basis of compromise with legal heirs--Re-open of case--Not possible for High Court to re-open the case on merits Supreme Court was not supposed to undertake such exercise under Art. 187 of the Constitution and consider the question relating to quantum of sentence on basis of compromise between the parties in heinous offence which is considered a crime against society. [P. 681] C
Interpretation of Law--
----Court can interpret the provisions of law but cannot change or substitute such provisions and cannot go beyond the wisdom of law.
[P. 681] B
Mian Ata-ur-Rehman, AOR for Petitioner.
Ch. Munir Sadiq, D.P.G. (Punjab) for State.
Date of hearing: 7.2.2007.
Judgment
Mian Shakirullah Jan, J.--The petitioner after having been convicted under (a) Section 449/34 PPC and sentenced to 10 years R.I. and fine of Rs.100,000/-, (b) Section 302/34 PPC and sentenced to death and a compensation of Rs.100,000/- to be paid to the legal heirs of the deceased, (c) Section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to death, and (d) Section 7 of ATA, 1997 and sentenced to death with a fine of Rs.100,000/- by the trial Court, filed an appeal before the High Court but without any success and ultimately approached this Court whereby while maintaining his conviction and sentences as noted above except under Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, his petition was dismissed.
The petitioner after having been unsuccessful in his attempts to secure his acquittal in the case initiated making efforts to effect a compromise with the complainant party and in this respect he submitted an application before the trial Court for his acquittal on the basis of the compromise. His this application was dismissed by the trial Court against which a writ petition was filed before the High Court. The case was remanded back by the High Court to the Anti- Terrorism Court (the trial Court) with the direction to give findings with regard to the compromise between the parties. This time the trial Court while allowing the compromise to the extent of charge under Section 302(b) PPC, acquitted the petitioner from the said charge whereas his application to the extent of conviction and sentence on the charge under Section 7 of the ATA, 1997 was dismissed. The petitioner again approached the High Court through a Constitution petition questioning the legality of the order on the ground that the conviction and sentence of the petitioner under Section 7 of the ATA, 1997 is the outcome of the main charge under Section 302(b) PPC and since the petitioner has already been acquitted from the said charge he is also entitled to be acquitted from the charge under Section 7 of the ATA, 1997. However, his this plea was not accepted by the High Court and his writ petition was dismissed and now the present petition.
The learned counsel for the petitioner has vehemently contended, as submitted before the High Court, that after the acquittal of the petitioner under Section 302 PPC, he was entitled to the acquittal under Section 7 of the ATA, 1997 which is the off shoot of the main offence under Section 302 PPC.
We have attended to his this contention. Whatever the nature or status of an offence but for the purpose of the compromise it will be seen as to whether the offence/the section of law for which the compromise is requested is compoundable under the law or not. The offences which are compoundable have been mentioned in Section 345(1) Cr.P.C. Since the offence is under Section 7 of the ATA, 1997 for which a death penalty has been prescribed does not find its mention in the aforesaid section in the category of the offences which are compoundable, and both the Courts below have rightly disallowed the compromise. In this respect reliance can be placed on the case of Muhammad Rawab v. The State (2004 SCMR 1170). The relevant extract from the judgment in which leave was granted in order to examine, inter-alia, the following:--
"2. The question whether the Court can permit the parties to compound the offences which are not mentioned in Section 345, Cr.P.C. specially when there is a bar under Section 345(7) of Cr.P.C. for entertaining a compromise in the offences not mentioned in Section 345, Cr.P.C.
The Court while dismissing the appeal held:--
"3. The pivotal question which needs determination would be as to whether parties can be allowed to compound the offences which are not compoundable by virue of the provisions as contemplated in Section 345, Cr.P.C. specially in view of the specific bar as mentioned in sub-section (7) of Section 345, Cr.P.C. There is no denying the fact that Section 365-A, P.P.C. readwith Section 7(e) of the Anti-Terrorism Act, 1997 is not compoundable. The provisions as contained in Section 345(7), Cr.P.C. have been couched in such a plain and simple language that there is hardly any scope for any interpretation except that a non-compoundable offence cannot be made compoundable by this Court for the simple reason that no amendment, deletion, insertion or addition could be made by this Court and it could only be done by the Legislature as this aspect of the matter falls in its exclusive domain of jurisdiction. The provisions as contained in Section 345, Cr.P.C. cannot be stretched too far by including the non-compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. It may be noted that tabulation of the offences as made under Section 345, Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offences. The judicial consensus seems to be that "The Legislature has laid down in this section the test for determining, the classes of offences which concern individuals only as distinguished from those which have reference to the interest of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of Section 345. Cr.P.C are satisfied as to all matters mentioned in the section."
The aforesaid judgment was followed by this Court in another case, Ghulam Farid alias Farida v. The State (PLD 2006 SC 53).
"4. There is no cavil to the proposition that the Courts at all levels without any legal impediment, while deciding the criminal cases on merits, in the regular proceedings, can consider the compromise of an offender with the victim or his legal heirs, as a mitigating circumstance for the purpose of question of sentence in a non-compoundable offence but after final disposal of a criminal matter, Courts cannot assume jurisdiction to re-open the case on merits in collateral proceedings arising out of miscellaneous application. The petitioner after losing the case on merits, before the trial Court, the High Court and also before this Court in regular proceedings moved an application to the Court of first instance for his acquittal on the basis of his compromise with the legal heirs of the deceased wherein he also made an alternate prayer of reduction in sentence.
This is settled law that Courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law. The contention of the learned counsel that the compromise between the parties at least could be treated a mitigating circumstance for the purpose of lesser punishment, has also no substance. This Court while upholding the judgment of the High Court by virtue of which conviction and sentence awarded to the petitioner by the trial Court was, maintained, has already dismissed the petition for leave to appeal. The present petition has arisen out of the proceedings in a miscellaneous application moved by the petitioner for his acquittal on the basis of his compromise with the legal heirs of the deceased, therefore, in these proceedings, it was not possible for the High Court to re-open the case on merits in exercise of its powers under Section 561-A Cr.P.C., and similarly this Court is not supposed to undertake such an exercise under Article 187 of the Constitution of Islamic Republic of Pakistan and consider the question relating to the quantum of sentence on the basis of compromise between the parties in such a heinous offence which is considered a crime against the Society."
The findings of the Courts below by not granting permission to compound the offence under Section 7 of the ATA, 1997 are in accordance with law and particularly in view of the bar as contained in sub-section (7) of Section 345 Cr.P.C. We find no illegality in the orders impugned herein and which does not deserve any interference. Resultantly we see no force in this petition, leave is declined and the petition is dismissed.
(N.F.) Leave refused.
PLJ 2007 SC 681
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
M/s. TURES HOTEL, ISLAMABAD & others--Appellants
versus
CAPITAL DEVELOPMENT AUTHORITY and others--Respondents
C.A. Nos. 424, 425 & 578 of 2004, decided on 12.7.2006.
(On appeal from the judgment dated 11.11.2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi Passed in WP No. 201, 1358 of 2001 & 201 of 1997).
(i) Constitutional of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Grant of--Imposition of taxes--Question of--Levying of Property Tax--Legality--Leave to appeal was granted to consider as to whether property tax on hotels, motels and restaurants Appellant's establishment would be charged at commercial rates or industrial. [P. 684] A
(ii) Capital Development Authority Ordinance, 1960 (XXIII of 1960)--
----S. 49--Civil Procedure Code, (V of 1908), O. XLII R. 1(a), (b)(c)--Notice was issued for payment of property tax--Commercial tariff--Unexceptionable--Assailed--Validity--Appellants were allotted commercial plots for the construction of hotels--Notification issued by Federal Government--Declaring business of hotel as industry would not affect the nature of building or use of plot as defined in Regulation No. 3 of CDA--Finding of High Court--No statutory enactment declaring Hotels/Motels and Restaurant located in Islamabad Capital is made by competent authority--Appellants cannot claim to be charged at that rate, is quite unexceptionable--Appeals were dismissed. [Pp. 686 & 687] B, C & D
2001 SCMR 908, relied.
Syed Asghar Hussain Sabzwari, ASC & Ch. Akhtar Ali, AOR for Appellants (in CA Nos. 424 & 425/04).
Mr. Fakhruddin G. Ebrahim, Sr. ASC & Mr. Muhammad Afzal Siddiqui, ASC (In CA No. 578/01).
Mr. Arif Chaudhry, ASC & Mr. Mehr Khan Malik, AOR for Respondents.
Date of hearing: 28.4.2006.
Judgment
Abdul Hameed Dogar, J.--By this judgment, we intend to dispose of the above 3 civil appeals which are directed against a common judgment dated 11.11.2003 passed by a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Writ Petition Nos. 201 of 1997, 210 and 1358 of 2001 filed by the appellants were dismissed.
I. Industrial/Institution (Per Annum)
Plot Area Rs. 0.50 per Sq.yd.
Covered Area (Shed) Rs. 0.50 per sft
Covered Area (Building) Rs. 0.80 per sft
II. Residential Plots
Plot Area Rs. 1.00 sq.yd
Covered Area Rs. 1.50 per sft
III. Commercial Plots
Plot Area Rs. 3.00 per sq. yd
Covered Area Rs. 5.00 per sft
IV. Petrol Pump
On plot area only Rs. 10.00 per sq.yd
Government of Pakistan vide S.R.O. No. 806(1)/1991 dated 20th August 1991 levied property tax at the rates mentioned above in Islamabad with immediate effect. Accordingly, CDA vide letter dated 10.3.1994 issued notices demanding payment of property tax from the appellants, owners of Hotels, Motels and Restaurants in Islamabad Capital Territory, with effect from 1991 at commercial tariff. Since appellants did not make payment as such on 20.12.1995 Revenue Officer of CDA issued notice under Section 49 of the CDA Ordinance 1960 for recovery of outstanding dues as arrears of land revenue. At the first stage appellants objected notice of demand on the ground that since notification dated 20.8.1991 has been superseded by Notification No. CDA-30(9)(Noti)-Coord/ 94/695 dated 21.6.1995 as such arrears cannot be demanded with retrospective effect. They further claimed that hotel is "non-residential" property which can only be classified as "industrial/institution". In support of their claim they referred to Office Memorandum dated 22.7.1990 issued by Government of Pakistan, Ministry of Industries & Production (Industries Wing) whereby appellants' establishments i.e. Hotels/Motels have been declared as industry. Water and Power Development Authority (WAPDA) vide its letter dated 22.9.1990 charged hotels/lodges and restaurants with tariff A-2 treating them as an industry. They also placed reliance on SRO No. 178(l)/94 issued by the Ministry of Petroleum and Natural Resources in pursuance of which M/s. Sui Northern Gas Pipelines and Sui Southern Gas Company have treated hotel/motels under the heading of Industrial Consumers. On 21.1.1998 appellants also made representations before Government of Pakistan, Cabinet Division, Islamabad in connection with charging of Industrial rates instead of commercial rates. On 25.2.1998 Deputy Director (Commercial) CDA informed appellants that their representations have been rejected. On 10.3.1998 again demand notices were issued to the appellants with the direction to deposit the outstanding dues by 10th of April, 1998, otherwise recovery proceedings would be initiated against them. Appellants also filed review petition under Section 114 CPC read with Order XLII Rule 1(a), (b), (c) CPC 1908 before Secretary to the Government of Pakistan challenging the rejection of their representations. Feeling aggrieved appellants invoked the constitutional jurisdiction of Lahore High Court challenging the imposition of tax, rejection of their representations and the notices for payment of tax by filing Writ Petitions No. 201 & 1358 of 2001 and 201 of 1997 which were heard alongwith six other writ petitions and were dismissed vide impugned order. Only appellants have assailed the judgment before this Court.
Leave to appeal was granted by this Court on 27.4.2004 to consider, inter alia, as to whether property tax on hotels, motels and restaurants the appellants' establishments would be charged at commercial rates or industrial one.
We have heard Syed Asghar Hussain Sabzwari, learned counsel for the appellants (in CA Nos. 424 and 425 of 2004), Mr. Fakharuddin G. Ebrahim, learned Sr. ASC for appellant (in CA No. 578 of 2004), and Mr. M. Arif Chaudhry, learned counsel for the respondents and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel for the appellants vehemently contended that property tax is not leviable on Hotels & Restaurants under commercial tariff as they have been declared as industry by Ministry of Industries & Production, Water & Power Development Authority and Ministry of Petroleum. He further contended that as per tourism policy, all tourism facilities would be treated as industrial concern and would qualify for the same benefits, concession and treatment as is extended in other recognized industries. According to learned counsel, appellants are being treated discriminately and the right to be treated equally is denied by the respondents inasmuch as in no other Municipal Corporation and Municipal Organization the Hotels, Motels and Restaurants are being applied commercial tariff at such an exorbitant rates. He further contended that commercial properties located in specified areas are to be charged on the said rates whereas Industrial/Institutions are to be charged separately. The acts of respondents, therefore, are violative of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Mr. Fakharuddin G. Ebrahim, learned counsel for appellants in Civil Appeal No. 578 of 2004 vehemently contended that Rules of 1991 were never implemented nor there was any sanction of law behind them. He contended that vide notification of 1995 property tax in question has been levied with immediate effect yet CDA is claiming arrears from the appellants. He further contended that levy of property tax in Islamabad was notified by the Federal Government w.e.f. 1991, however, another notification was issued by the CDA in 1995, thus 1991 notification stood superseded and no demand of property tax can be raised there under. In view of this, CDA can only levy and recover property tax from 1995 and not with retrospective effect. He further contended that CDA without any justification repelled all their legal objections and insisted on payment of the accumulated arrears.
On the other hand learned counsel for CDA controverted the above contentions and supported the impugned judgment. He contended that disposal of land vesting in CDA is dealt with by Section 49 of the CDA Ordinance. He further contended that
Islamabad Land Disposal Regulation 1993 (hereinafter referred to as the
Regulation') vide Regulation No. 3 has classified the plots into different categories. Hotels/motels have been defined in the category of commercial and business plots and are charged under commercial tariff. He further contended that orders or notifications of the Federal Government under other laws declaring the hotel as industry would not affect the nature of the building or use of the plot as defined in the Regulation, the business of a hotel is a commercial enterprise and would not change its inherent character of commercial enterprise. It is the use of the property which would determine the rates of tax to be applied thereto. Wherever a hotel or commercial property is situated in any part of Islamabad could be taxed as commercial property. He further contended that vide Notification No. 783(1)/2003 dated 09.8.2003, non-residential properties outside commercial areas have been included in the headingCommercial'. In support of his contentions, he placed reliance on the case reported as Mrs. Bilquis Anwar Khan and 39 others Versus Pakistan through
Secretary, Cabinet Division, Government of Pakistan, Islamabad and 3 others
(2001 SCMR 809).
We have considered the arguments of learned counsel for the parties, as well the relevant provisions of law. In exercise of its powers under Section 15-A read with Section 50 of the CDA Ordinance the Federal Government vide SRO No. 95(1)/82 dated 28.1.1982 framed and promulgated the Rules under which Notification No. 805(1)/91 was issued on 20.8.1991 specifying the area in which CDA was to perform municipal functions. By another Notification No. SRO 806(1)/91 dated 20.8.1991 Federal Government sanctioned the levy of property tax in Islamabad at the rates and on the conditions mentioned herein above. This SRO was superseded by SRO No. CDA. 30(9)(Noti)-Coord/94/695 dated 21.6.1995 whereby CDA with the sanction of Federal Government levied tax at the rate of one twelth of the annual value of the buildings and lands. It would be appropriate to reproduce Regulation No. 3 of the Regulation showing classification of commercial and business plots:
"(2) Commercial and Business plots.--Plots located in commercial areas meant for use as markets, departmental stores, shops, business offices, restaurant, cafes, hotels, cinemas, threatre, motels, marriage hall, petrol filling stations, incidental shops corners and include flat-sites in such areas whether or without shops and offices etc.
Whereas industrial plots have also been defined in clause (5) of Regulation No.3 of the Regulation which reads as under:--
"(5) Industrial plots.--These plots shall cater for the following:--
(i) Very light industry and trading associated with residential areas e.g. laundries, repair shops, bakeries etc, I&T centers.
(ii) Light manufacturing and servicing industries essential for the need of the city at large and those created for the constructional works to be carried out in the areas as may be specified by the Authority.
(ii) Extractive industries, mining, quarrying and crushing and brick-kilns in area as may be specified by the authority.
The question with regard to legality of imposition of property tax in Islamabad has already been determined by this Court in case of
Mst. Bilquis referred supra. Several Office Memorandums or notifications being relied upon by the appellants would show that concerned authorities like WAPDA, Ministry of Oil and Gas or the Ministry of Tourism have included the hotel/motels in the term industrial' for the application of relevant laws. On the other hand it is also evident that no statutory enactment has been made in the CDA rules whereby hotels/motels situated in the jurisdiction of CDA has been included in the termindustry,industrial' or institution, as such appellants cannot claim such relief. The appellants were allotted commercial plots for the construction of hotels. The orders or notifications issued by
Federal Government under other laws declaring business of hotel as industry would not affect the nature of building or use of plot as defined in the
Regulation No. 3 of CDA. Irrespective of above, an amendment has also been made in Notification No. 24(l)/2001 dated 11.1.2001 through Notification No. 783(1)/2003 dated 09.8.2003 whereby non-residential properties outside commercial areas have been included in the heading `Commercial'. Thus finding of learned High Court that until no statutory enactment declaring hotel/Motels and Restaurant located in
Islamabad Capital is made by competent authority, appellants cannot as a matter of right claim to be charged at that rate, is quite unexceptionable.
(R.A.) Appeals dismissed.
PLJ 2007 SC 687
[Appellate Jurisdiction]
Present: Javed Iqbal & Hamid Ali Mirza, JJ.
FEDERATION OF PAKISTAN & others--Appellants
versus
GHULAM SHABBIR and others--Respondents
C.As. No. 132 & 133 of 2005, decided on 17.4.2006.
(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 16.12.2003 passed in appeal No. 224(R) SC/2002).
Service Tribunal Act, 1973 (LXX of 1973)--
----S. 3--Constitution of Pakistan, 1973, Arts. 185(3) & 212--Civil servant--Compulsory reitrement--Reduction to lower pay scale--Leave was granted to consider--
(i) Whether the Federal Services Tribunal has reduced the penalty in violation of S. 5 of the Services Tribunal Act, 1973;
(ii) Whether the regular enquiry was essential in the matters imposing the major penalty of reduction in rank; and
(iii) Whether the terms of conditions of service at the time of appointment could be varied, subsequently by the respondents to the disadvantages of the petitioner.
[Pp. 688 & 689] A
Constitution of Pakistan, 1973--
----Arts. 185(3) & 212--Charge of embezzlement--Penalty of compulsory retirement--Penalty was converted--Validity--Accusation could not be substantiated by leading cogent and concrete evidence qua embezzlement--Disciplinary proceedings against civil servants--Initiated after a lapse of three years after joining new assignments--Mala fides--Charges of corruption and misappropriation could not be substantiated by producing worthy of credence evidence--Service Tribunal has rightly converted the compulsory retirement into reduction to lower pay scale--No question of law of public importance was involved--Appeal was dismissed. [Pp. 693, 693 & 694] B, C & D
Service Tribunal Act, 1973 (LXX of 1973)--
----S. 5--Constitution of Pakistan, 1973, Art. 212--Misappropriation and embezzlement--Charges of--Compulsory retirement from services--Penalty of--Penalty was reduced--Assailed--Legality--Lenient view was taken by Federal Service Tribunal and major penalty of compulsory retirement had been reduced to lower pay scale for three years--Held: No further indulgence is called for as misuse of authority and certain irregularities have been proved as is indicative from the findings of the Court--Appeal dismissed. [P. 694] E
Mr. Nasir Saeed Sheikh, Deputy Attorney General for Pakistan and Ch. Akhtar Ali, AOR for Appellants in C.A. 132/05 & for Respondents in C.A. 133/05.
Mr. Tariq Bilal, ASC and Mr. Ejaz Muhammad Khan, AOR for Appellants in C.A. 133/05 & for Respondents in C.A. 132/05.
Date of hearing: 17.4.2006.
Judgment
Javed Iqbal, J.--The above captioned petitions with leave to appeals are directed against the judgment dated 16.12.2003 whereby the appeal preferred on behalf of Ghulam Shabbir (respondent) has been accepted and major penalty of compulsory retirement from service by means of order dated 6.11.2001 converted to that of reduction to lower pay scale for a period of three years with effect from the date of his compulsory retirement with all back benefits of the reduced pay scale for the intervening period of compulsory retirement to his reinstatement.
"After hearing at length learned counsel for the parties, we are inclined to grant leave to consider the following:--
(i) Whether the Federal Service Tribunal has reduced the penalty in violation of Section 5 of the Service Tribunal Act, 1973;
(ii) Whether the regular enquiry was essential in the matters of financial irregularities before imposing the major penalty of reduction in rank; And
(iii) Whether the terms & conditions of service at the time of appointment could be varied subsequently by the respondents to the disadvantage of the petitioner Ghulam Shabbir.
Appeals be listed within three months. C.M.A. No. 1416 of 2004 is rejected as no case for stay is made out."
Precisely stated facts of the case are that pursuant to disciplinary action the respondent was compulsory retired from service w.e.f 7.11.2001. The respondent preferred a departmental appeal which was rejected vide order dated 20.2.2002. The respondent approached the learned Federal Service Tribunal by way of appeal which has been accepted, hence this appeal.
Ghulam Shabbir being dissatisfied with the judgment impugned has also preferred a petition for leave to appeal which has been accepted and leave was granted as mentioned herein above. We intend to dispose of above captioned appeals by this common order as similar questions of law and facts are involved.
Charge sheet, findings and opinion of the Court of inquiry is reproduced herein below to appreciate the legal and factual aspects of the controversy:--
Charge Sheet
"That the Appellant was appointed in B-17 in the Respondent-Organization as Assistant Manager on 25.5.1978 on contract basis for a period from 11.4.1977 to 26.5.1978. He was promoted as Works Manager (B-18) with effect from 22.10.1986 on officiating basis and on 22.10.1988 on regular basis. He was allowed move over to B-19 with effect from 1.12.1990 and was posted as Works Manager/Admnin. Officer, Wah Cantt with effect from 23.3.1995. The appellant was transferred and posted in CAO's Organization and relieved on 18.8.1996 to join new assignment. He was issued a charge sheet on 8.7.1999 containing the following allegations:--
(i) Misappropriated and embezzlement the huge amount out of Bank account of Magna Road Mess, which you were independently operating under your own signatures.
(ii) Embezzlement the Govt. Rental charges amounting to Rs. 25,110/- received from Mr. Saqib Rahim and failed to deposit the same in Govt. Treasury through A.MN/Finance.
(iii) Took various items of Govt. stores at your residence for your personal use, unauthorizedly by violating departmental procedure, rules and regulations.
Mr. Aftab Mr. Muhammad Iqbal Khan, Member, General Manager was appointed as inquiry Officer. Detailed inquiry was conducted and findings and opinion of the Court of Inquiry are detailed as under:--
Findings
The accused officer accept the issuance of 03 Woolen Carpets, each size of 220 Sq. Ft.
. The issuance of the Woolen Carpets, normally non-issuable item to officers for use at official resident, was managed by the accused officer using his official influence.
. The accused officer is not paying rent in case of 03 x 220 Sq.ft. woolen carpets as these were never included in Letter No.Wah/1112/53/5/ Estate, dated 18.7.98 (Ref. Part IV, page 181)
. The prosecution has failed to prove the exact number of flower ports issued to the accused officer. However, he got certain number of flowerpots issued without any formal documentary procedure.
Opinion of the Court
Mr. Ghulam Shabbir the accused officer, using his official capacity as Admin Officer got issued normally non-issuable items i.e. 03 Woolen Carpets, each of size 220 Sq.ft. for use at his official residence for which no recovery of rent is being made from him and his statement to this effect is false (Ref. Part IV, page 181). The accused officer managed to get undue benefit by misusing his official capacity. The officer has Still not returned the items.
\ The accused officer got issued curtain number of flower pots, by using his official influence without leaving any formal documentary evidence."
The disciplinary proceedings culminated into imposition of major penalty of compulsory retirement, which was converted to that of reduction to lower pay scale for a period of three years from the date of compulsory retirement. Mr. Nasir Saeed Sheikh, learned Deputy Attorney General appeared on behalf of Federation of Pakistan (appellant) and urged with vehemence that proper opportunity of defence was afforded to the appellant and personal hearing was given pursuant to the provisions as contained in Rule 6(2) of Government Servants (Efficiency & Discipline) Rules, 1973 hence the question of miscarriage of justice as concluded by the Tribunal does not arise. It is next contended that infliction of penalty falls within the jurisdictional domain of the competent authority and the appellant was compulsorily retired as his retention in service was not considered desirable in view of the nature of accusation duly substantiated by producing cogent and concrete evidence which escaped the notice of learned Service Tribunal causing serious prejudice against the appellant. It is also argued that the departmental authority cannot afford to ignore the charges of misappropriation and embezzlement irrespective of the quantum of amount embezzled or misappropriated to maintain discipline and crush the elements of corruption. It is next argued that undue indulgence and leniency has been shown by the learned Service Tribunal by ignoring the findings of facts recorded by the Court of inquiry and determination whereof has been upheld by the competent authority and there was a little scope to get it reversed that too without any lawful justification.
Mr. Tariq Bilal, learned ASC entered appearance for Ghulam Shabbir (appellant in C.A. 132/05) and strenuously controverted the view point as canvassed at bar on behalf of Federation of Pakistan and supported the judgment impugned for the reasons enumerated therein and with the further submission that the allegations could not be proved against the respondent and no evidence worth the name could be led inferring that any misappropriation or embezzlement was made. It is also contended that the respondent was not responsible for the financial management and in case of any irregularity entire blame cannot be attributed to the petitioner.
We have carefully examined the respective contentions as agitated on behalf of the parties, thrashed the entire evidence and perused the judgment impugned with care and caution. A carefully scrutiny of the charge sheet would reveal that the main accusation against the appellant was embezzlement and misappropriation. No doubt that basic audit requirements could not be fulfilled but the question would be as to whether the appellant alone can be held responsible for such lapses who was admittedly not "all in all" in financial affairs and exclusive authority in this regard was never conferred upon him qua financial management and being an "administrative officer" he was answerable to CAO and it was for him to implement any audit policy and besides that nothing has come on record inferring that any account was being operated single handedly by the appellant. The learned Deputy Attorney General was pointedly asked as to whether any such account was in existence being operated by Ghulam Shabbir but no satisfactory answer could be given.
We have also adverted to Allegation No. 2 i.e. that the amount of Rs. 25110/- received from Mr. Saqib Rahim Marketing Manager was required to be deposited in Government treasury through A.M. Finance but it was deposited in Account No. 17835-1 in U.B.L.
A careful scrutiny of the record would reveal that an amount of Rs. 25110/- was got recovered from Mr. Saqib Rahim pursuant to letters of even number dated 23.11.1995 and 14.1.1996. The amount was admittedly not misappropriated or embezzled as it was deposited in Megna Mess Account. The deviation from procedure appears to have been established but it must not be lost sight of that no definite procedure could be pointed out which was violated. At this juncture the learned Deputy Attorney General duly assisted by the representative of the Department was asked to point out the procedure allegedly violated by Ghulam Shabbir but no answer could be given. The learned Deputy Attorney General could not point out any evidence on the basis whereof it could be inferred that the amount of Rs. 25110/- was drawn from the Megna Mess Account and misappropriated by the appellant. No evidence worth the name could be led in this regard.
We have also examined the Allegation No. 3 qua use of two electric fans, heater, two T.V. trollies at his residence. The use of the said items is not disputed but the gravity of charge was diminished as the said items were being used after having the sanction of COA and payment of monthly rent at the rate of Rs. 69/- per month which could not be controverted.
We have also examined the Allegation No. 4 i.e. use of three woolen carpets in his official residence for which no plausible justification could be furnished by the appellant. It is to be noted that two woolen carpets were got issued and the allegation is that it was so done by exercising pressure and using influence. The learned Deputy Attorney General was asked that as to whether any disciplinary action was initiated against the sanctioning authority which yielded to the pressure of the appellant but no answer could be given except that the woolen carpets should have not been used in the official residence.
After having gone through the entire record we are of the view that the accusation could not be substantiated by leading cogent and concrete evidence qua embezzlement of Rs. 25110/- which was the most serious allegation. The deviation from procedure and depositing of the particular amount in the "wrong head", the procedural deviation and minor irregularities cannot be equated to that of misappropriation/ embezzlement which have its own peculiar characteristics and ingredients. The burden of proof to get it proved was on the Department, which could not be discharged.
It has been observed with curiosity that disciplinary proceedings against appellant were initiated on 8.7.1999 after a lapse of three years after joining his new assignments at Sanjwal on 31.7.1996 also smacks of mala fides. In the same wake of events it has been observed that serious allegations were leveled against a few senior officers by the appellant and it was decided by the Ministry of Defence by means of letter dated 17.7.1997 that proper inquiry should be got conducted which could not be done for the reasons best known to the concerned authorities which speaks a volume about the internal affairs of POF. The above letter is reproduced herein below for ready reference:-
"MINISTRY OF DEFENCE
DEFENCE PRODUCTION DIVISION
Subject:-- DISCIPLINARY ACTION AGAINST MR. GHULAM SHABBIR. ADMN OFFICER
Reference POF Board's D.O. No.4162/792/OF-1(B) dated 25th June, 1997, on the subject noted above.
(i) Mr. Ghulam Shabbir be asked to proceed to new place of posting forthwith.
(ii) POF Board to hold a departmental inquiry to investigate into the charges leveled by Mr. Ghulam Shabbir against Col. Abdul Kabir SFA & others & submit a report in this regard to this Division without any further delay. (Emphasis provided)
(iii) The proposal for initiation of disciplinary proceedings against Mr. Ghulam Shabbir should be considered after a proper legal scrutiny is carried out by the POFs DP Division.
Sd.-
(ALTAF HUSSAIN AGRAL)
Joint Secretary 1"
The learned Deputy Attorney General was asked that in spite of categoric instructions of Ministry of Defence why no disciplinary proceedings could be initiated against Colonel Abdul Kabir but no answer could be given. In our considered view nothing could have happened without the facilitation and connivance of Colonel Abdul Kabir who was holding a very important portfolio. It has also been observed that proper opportunity of hearing was not afforded to the appellant who was personally heard by (Director Admn) POF Board and not by the Chairman. The learned Deputy Attorney General could not inform as to whether any authority was delegated by the Chairman to the Director Admn POF Board or otherwise for having such hearing on his behalf. We are of the firmed opinion that personal hearing should have been afforded by the authority competent to impose major penalty and admittedly (Director Admn) POF Board was not the competent authority to award the penalty of dismissal. As mentioned herein above the charges of corruption and misappropriation could not be substantiated by producing worthy of credence evidence. In our considered view, the penalty of compulsory retirement does not commensurate with the gravity of alleged charges and appears to be harsh. The learned Service Tribunal has rightly converted the compulsory retirement into reduction to lower pay scale for a period of three years w.e.f. date of compulsory retirement of the appellant with back benefits of the reduced pay scale for the intervening period of compulsory retirement and that of his reinstatement. No question of law of public importance is involved in the matter and accordingly the appeal is dismissed being devoid of merit.
(R.A.) Appeals dismissed.
PLJ 2007 SC 695
[Review Jurisdiction]
Present: Javed Iqbal & Hamid Ali Mirza, JJ.
ABDUL RAUF and others--Petitioners
versus
QUTAB KHAN & others--Respondents
C.R.P. No. 347 of 2005 in C.P. No. 842 of 2000, decided on 19.4.2006.
(i) Constitution of Pakistan, 1973--
----Art. 188--Criminal Procedure Code, (V of 1898), S. 145--Review of--Entitlement--Determination of--Result of proceeding enunciated--No bearing qua the partition of Shamilat which is yet to be partitioned--Question of entitlement of the petitioner cannot be decided as pressed time--Petition has been examined on the touchstone of the criterion--Petition was dismissed. [Pp. 695, 696, & 697] A, B & C
1968 SCMR 104; 1970 SCMR 622; PLD 1979 SC 741 & 1979 SCMR 99, rel.
Mr. Abdul Samad Khan, ASC for Petitioners.
Sh. Wazir Muhammad, ASC/AOR for Respondents.
Date of hearing: 19.4.2006.
Judgment
Javed Iqbal, J.--Petitioner has sought review against the judgment dated 12.9.2005 whereby the Civil Appeal preferred on behalf of petitioner has been dismissed.
"5. We have carefully examined the respective contentions as agitated on behalf of the appellants in the light of relevant record which has been perused with the eminent assistance of learned counsel on behalf of the parties. The judgments of all the courts below have been examined with care and caution. After having gone through the entire record we are of the considered opinion that the appellants have failed miserably to substantiate their claim by adducing any cogent or concrete documentary or oral evidence. We have carefully perused the statement of appellant who has admitted in a categoric manner that suit land is Shamilat kandi mundizai which is yet to be partitioned and further admitted that Defendant No. 1 is co-sharer of the land in question. The statement of Muhammad Zaman (P.W.3) hardly renders any assistance to the case of appellants for the simple reason that Muhammad Zaman (P.W.3) had relinquished the possession of the suit land hence no importance can be attached to his statement. Besides that the categoric findings of the learned Peshawar High Court in Writ Petition No. 195 of 1982 with regard to possession of the suit land cannot be ignored which were never challenged before this Court and attained finality by now. Moreover, the factum of possession being question of fact has been determined by the learned trial court, determination whereof has been upheld by the learned appellate forum and High Court hence the question of any interference does not arise. The question of fact stands concluded by consistent findings of the three courts below and no reason could be shown to exist us which could persuade us to reopen the said issue. There is no denial of the fact that the result of proceedings initiated under Section 145 Cr.P.C. would have no bearing qua the partition of Shamilat which is yet to be partitioned."
The review petition has been examined on the touchstone of the criterion as mentioned herein above and in our considered opinion it has got no merit which is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2007 SC 697
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Nasir-ul-Mulk, JJ.
IKRAM ELAHI SHEIKH--Appellant
versus
DIRECTOR GENERAL, NATIONAL INSTITUTE OF SCIENCE
AND TECHNICAL EDUCATION (NISTE), ISLAMABAD
etc.--Respondents
C.A. No. 650 of 2005, decided 6.7.2006.
(On appeal from the judgment of the Federal Service Tribunal dated 5.5.2003 passed in Appeal No. 103(R)CS/2002).
Civil Servants Act, 1973--
----S. 2(a)(b)--Constitution of Pakistan, 1973, Art. 212(3)--Benefits of pension was not granted--Civil servants--Status of--Notification was issued by Federal Government--Appeal dismissed by F.S.T.--Assailed--Validity--Employees of the institution were recognized as civil servant by notification in-question employees would be entitled to the pensionary benefits under Rules and Regulations--Employees were given status of civil servants in terms of S. 2(b) of the Civil Servants Act, 1973--Employees controlled by other organizations would be enjoying the status of civil servant and would be entitled to claim the pensionary benefit--Appeal allowed.
[Pp. 703, 705 & 706] A, B, D, E & F
PLD 1990 SC 612; PLD 1994 SC 123; 1998 SCMR 1160; PLD 1990 SC 612; 1996 SCMR 1572; 1997 SCMR 1477; Civil Appeal No. 22(P) of 1988 rel.
Civil Servants Act, 1973 (LXX of 1973)--
----S. 2(A)--Constitution of Pakistan, 1973, Art. 212(3)--Purpose of--Purpose was to provide a forum to the employes controlled by other organizations against the orders passed by the competent authorities--Terms and conditions of service also reduced the litigation before different forums. [P. 704] C
Shah Abdur Rashid, ASC Mehr Khan Malik, AOR for Appellant.
Mr. M.S. Khattak, AOR and M. Arif Raja, ASC for Respondents.
Date of hearing: 23.11.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal under Article 212 (3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment dated 5.5.2003 passed by the Federal Service Tribunal, Islamabad whereby the appeal filed by the appellant, an employee of National Institute of Science and Technology Education, an Organization set up by the ministry of Education, Government of Pakistan, wherein he sought declaration that he was entitled to the payment of pensionary benefits/gratuity admissible to the Government servants under the service laws, was dismissed.
"Leave to appeal is granted inter-alia to determine:--
(i) As to whether petitioner was a civil servant for the purpose of claiming pensionary benefits etc?
(ii) As to whether the petitioner has been discriminated because one of the employees of same department Muhammad Aslam Ch. Director Research & Evaluation has been given pensionary benefits? And
(iii) What would be the effect of the judgments of this Court reported in (I) Saeed Rabbani v. Director General Leather Industry Development Organization & another (PLD 1994 SC 123), (II) C.As. Nos. 1704 to 1715 of 2003 and (iii) C.A. No. 2 of 1996?
Appeal is to be prepared on the same record with opportunity to parties to file additional documents if need be in accordance with the rules. To be fixed after summer vacations".
The facts in small compass in the back ground giving rise to this appeal are that appellant, initially joined National Education Commission (NEC), in 1987, an institution of M/o Education, established by a Resolution and later on abolition of NEC in 1995, he was absorbed as Director in the institute for promotion of Science, Education and training (IPSET), set up by a resolution of M/o Education. Subsequently, the institution of IPSET, and Organization of Technical Teaches College (NTTC), also set up by a resolution of the Ministry of Education were merged into National Institute of Science & Technology Education, (NIST). The appellant with eight years service as Director (B-18) in NEC was absorbed in (IPSET) and thereafter in NISTE in the same grade in 1997 from where, he on attaining the age of superannuation, stood retired from in 2000 and in this way, he served in the above institutions of the Ministry of Education Government of Pakistan for a total period of about 13 years. The claim of the appellant was that the status of the employees of the above institutions was at par to that of the employees of the Federal Government, therefore, he was entitled to the benefit, of pension and gratuity admissible to the employees of the Federal Government but his claim regarding the pensionary benefits was rejected by the competent authority vide order dated 27.10.2000, whereupon he filed an appeal before the Secretary, M/o Education and pending disposal of the appeal, on the instructions of the concerned Ministry vide letter dated 30.4.2001 he consented for refund of C.P. Fund/gratuity on the assurance given to him for grant of pensionary benefits. However, subsequently, on rejection of the departmental appeal filed by him vide order dated 10.1.2002, on the ground that he had not rendered service qualifying for pension and there was also no pension Scheme for the employees of the Institution of NISTE in the field, he filed appeal before the Federal Service Tribunal which was dismissed on the ground that the employees of (NISTE), and of such other Government Organizations, established by way of Resolution, have been awarded the status of civil servant for the limited purpose, by insertion of Section 2-A in the Service Tribunals Act, 1973 and in absence of any, pension scheme of the employees of these institutions, the appellant could not claim the benefit of pension under the pension scheme of the Government.
The learned counsel for the appellant has contended that the institution in which appellant was employed undoubtedly, was established by a resolution but the status of the employees of this institution in the light of law laid down by this Court would be at par to that of the Government employees and they would be deemed to be civil servants not only for the purpose of Section 2-A of the Civil Servants Act 1973 but would also be considered civil servant in terms of Section 2(b) of the said Act to claim the benefit of pension and gratuity admissible to the Government employees. The learned counsel placing reliance on Mr. Arshad vs. Miss Naeema Khan, (PLD 1990 SC 612), Saeed Rabbani vs. DG. LIDO (PLD 1994 SC 123), Dr. Rashid Anwar Vs. Federation of Pakistan (1996 SCMR 1572), Secretary Ministry of Science & Technology vs. Nasrullah (1998 PLC (CS) 1033), Nuran Shah Sarhadi vs. Chairman, Pakistan Academy of Letters, Islamabad (PLJ 2000 Tr.C. (Services) 199) has submitted that employees of an institution or organization established by the Government by a resolution for discharging functions in connection with the federation, are deemed to be in the service of Pakistan and a person in service of Pakistan by virtue of Section 25 of the Civil Servants Act, 1973 may acquire the status of civil servant for all practical purposes including the pensionary benefits on retirement in terms of Section 19 of the Civil Servants Act, 1973 read with Civil Service Regulation 361, 371-A, and 474 on the subject.
Learned Deputy Attorney General on the other hand has contended that the institutions in question were established by the Resolutions of the Ministry of Education, Government of Pakistan, and the employees of these institutions in the matter of terms and conditions of their service, would be governed by the relevant resolutions and not by the rules and regulations framed under Civil Servants Act, 1973 applicable to the Government servants. The learned DAG argued that the employees of the organizations, corporations, institutions, or statuary bodies controlled by the Federal Government were awarded the status of civil servant by insertion of Section 2-A in Service Tribunals Act, 1973, for the limited purpose of providing them remedy of appeal before the Service Tribunal against the order of departmental authorities in respect of their terms and conditions of service being governed by the service rules of such organization without treating them at par to the employees of Federal Government for any other purpose or civil servant in terms of Section 2(b) of Civil Servants Act, 1973.
Article 240 of the constitution provides that subject to Constitution the appointments to and the conditions of service of persons in the services of Pakistan shall be determined, in the case of the services of the Federation, post in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament. The explanation to this Article says that "All-Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by an Act of Parliament. In pursuance of Article 240 of the Constitution, Civil Servants Act, 1973 was enacted by the Parliament, therefore, it would be appropriate to reproduce the relevant provisions of the said Act for the proper appreciation of the contentions raised by the learned counsel for the parties in this appeal.
The expression "civil servant" has been defined in Section 2(b) of Civil Servants Act, 1973 as under:
(b) "civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include--
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)"
Section 5 of the ibid Act deals with the appointment in the Service of Pakistan which provides as under:--
"Appointments to an All-Pakistan Service or to a civil Service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf."
"Another ground which was raised during the course of the hearing of the appeal but not noted in the leave granting order was that the respondent could not be treated as a Federal Government employees and had to be dealt with under the Provincial Law being for all purposes governed by the Civil Servants Act of the Province of N.W.F.P. We find at page 21 of the Service Tribunal's record a determination of the Government of Pakistan, States and Frontier Regions Division, dated 21st March, 1982, wherein it was made clear that the posts were civil in nature, were connected with the affairs of the Federation and were to be paid from the Federal Budget and the employees were to be Federal Government employees, and governed by rules applicable to the Federal Government employees.
The Federal Service Tribunal itself in Appeal No. 123(R) of 1991 M/s. Muhammad Iqbal and Mr. Minollah, held the employees of the Afghan Refugees Organization as civil servants within the meaning of Civil Servants Act, 1973.
In this view of the matter, the appellant and other employees of the Afghan Refugees Organization are Government Servants and they are entitled to pensionary benefits of their cases are covered by Regulation No. 371-A of the Civil Services Regulation which reads:--....."
The status of employees of Afghan Refugees Organization established by the Government of Pakistan as civil servant was disputed on the ground that since the expenditures on the payment of their salaries etc were being borne out by United Nations High Commissioner for Refugees and not Government of Pakistan, therefore they were not civil servants to claim the pensionary benefit available to Government servants. The contention was repelled by this court with the observation that employees of Afghan Refugees organization were civil servant and were entitled to get pension in terms of section CSR 371-A.
In the light of statutory provisions and the law laid down by this Court, it is clear that the employees of the institutions of NEC, IPSET and NISTE which was established by the Resolutions of the Federal Government were discharging the functions in connection with the affairs of the federation and may be holding civil posts in terms of Article 240 of the Constitution but may not be ipso facto treated civil servant in terms of Section 2(b) of the Civil Servants Act, 1973 for the purpose of the terms and conditions of service at par to the employees of the Federal Government.
The Institutions having been set up by the Ministry of Education were under its direct control and the employees of these institutions have been awarded the status of civil servant for the purpose of availing the remedy of appeal before the Service Tribunal in respect of their terms and conditions of service.
However, Ministry of Education in the Federal Government vide Notification dated 25.2.2004, issued in pursuance of the judgment of this Court, recognized the employees of NISTE as civil servants in terms of Section 2(b) of the Civil Servants Act, 1973 and notwithstanding the fact that the Institution was set up by a resolution under the authority of Federal Government, its employees were awarded the status of civil servant for all intents and purposes and were being treated at par to that of employees of Federal Government without any distinction. The notification referred to above is reproduced hereunder:--
"No. F.35/2002-SE-1. In pursuance of the Supreme Court judgment in Civil Appeal Nos. 154 and 155 of 1988, the employees of National Institute of Science and Technical `Education (NISTE) Islamabad, an institute which resulted on merger of two defunct resolute bodies namely: National Technical Teachers Training College (NTTTC) and institute for the promotion of Science Education and Training (IPSET), established vide Resolution No. F. 1-4/81-PD (NTTTC) dated 10th March 1982 and Resolution No. F2-5/86-Sc-l dated 07th June, 1987, respectively, as amended from time to time, are deemed to be Civil Servants till such time as the future status of National Institute of Science and Technical Education (NISTE), Islamabad is determined in consultation with Management Services Wing of Establishment Division.
sd/-
(Nasir Ahmad)
Assistant Educational Adviser"
In consequence thereto the real question requiring determination would be whether in absence of any separate Scheme of pension introduced for the employees of NISTE, the appellant by virtue of the notification referred above, on retirement would be entitled to claim the pensionary benefit under the pension scheme of the Federal Government. The institution having been established by resolution of the Federal Government was placed under the administrative control of the Ministry of Education and was accordingly, managed and financed by the Federal Government. The employees of the institution were also recognized as civil servant by the Ministry vide notification in question for all practical purposes and consequently, they would be entitled to the pensionary benefits under the relevant rules read with Regulation No. 371-A of Civil Service Regulations which provides as under:--
"371-A. Notwithstanding anything contained in Articles 355(b), 361, 368 and 371 of these Regulations, temporary and officiating service in the case of Government servants who retired on or after 1st January, 1949 or who joined service thereafter shall count for pension according to the following rule:--
(i) Government servants who have rendered more than five years continuous temporary service shall count such service for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously, and
(ii) Temporary and officiating service followed by confirmation which does not qualify for pension under the rules in this section shall also count for pension or gratuity subject to the exclusion of the broken periods of temporary or officiating service, if any."
The Civil Service Regulations may not stricto senso be applicable to the employees of all Government controlled bodies, Organizations, Corporations and Institutions rather this regulation would be applicable either to the civil servants who are governed by Civil Servants Act, 1973 or to the employees of the institution, who have been awarded the status of civil servant in terms of Section 2(b) of Civil Servants Act in respect of their terms and conditions of service. The Tribunal in the present case proceeding on the assumption that the employees of statutory bodies or Corporation or Companies incorporated under the Companies Ordinance controlled by the Government are not civil servant as envisaged in Section 2(b) of Civil Servants Act, 1973, held that appellant was not entitled to claim pensionary benefits admissible to the Government servants.
The position of the employees of the Institution was different to that of the employees of Government controlled organizations who were awarded status of civil servant by virtue of Section 2-A of the Service Tribunals Act, 1973 for a limited purposes to provide them the remedy of appeal before the Service Tribunal in respect of their term and condition of service. The purpose of insertion of Section 2-A in the Civil Servants Act, 1973 was to provide a forum to the employees of the Government controlled Organizations against the orders passed by the competent authorities in their Organization detrimental to their terms and conditions of service and also reduce the litigation before different forums, therefore the employees of such Organizations were not given the status of civil servant to be treated at par to the employees of the Government in the matter of their terms and conditions of service whereas the employees of NISTE were given status of civil servant in terms of Section 2 (b) of the Civil Servants Act, 1973 by way of special notification issued by the Ministry of Education, Government of Pakistan. In the light of the above distinguishable features of the employees of NISTE to that of the employees of other Government controlled organizations, they would be enjoying the status of civil servant for all purposes and would be entitled to claim the pensionary benefit under the pension scheme of Federal Government.
The assertion of the respondent that appellant having withdrawn CP Fund with interest under CP Fund Scheme of NEC, would not be justified to claim the pensionary benefits, has no substance. The organization was set up by a resolution of the Federal Government and being under direct control of M/o Education, was supposed either to frame its own rules in consonance with the rules framed under Civil Servants Act, 1973 or adopt the rule framed there under, therefore notwithstanding the introduction of Scheme of CP Fund contribution, the right of pension of the appellant admissible under the rules applicable to the civil servants, subject to the surrender of benefit taken under the CP Fund scheme would remain intact. The learned counsel for the appellant has informed us that the appellant had already consented for return of the amount received by him as CP Fund contribution and has also brought to our notice that in similar circumstances, Nuran Shah Sarhad, an employee of Pakistan Academy of Letters, an Organization established by a Resolution of Ministry of Education, was allowed the pensionary benefits.
The Learned Deputy Attorney General has not been able to controvert the above legal and factual position or distinguish the case of appellant to that of the employees of Pakistan Academy of Letters referred above.
In the light of foregoing discussion, we hold that the pensionary benefits would be admissible to the appellant, under the relevant rules subject to Civil Service Regulation No. 371-A referred to above. This appeal is accordingly allowed with no order as to costs.
(R.A.) Appeal allowed.
PLJ 2007 SC 706
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Muhammad Nawaz Abbasi, JJ.
ALLIED BANK LIMITED, CENTRAL OFFICE BATH ISLAND, KARACHI through its Attorney and others--Petitioners
versus
SYED NASIR ABBAS NAQVI and others--Respondents
C.A. Nos. 1096 & 1097 of 2005, decided on 12.4.2006.
(On appeal from the judgment passed by Lahore High Court, Rawalpindi Bench in Writ Petition No. 679/2002, dated 2.7.2003 in both cases).
Administration of Justice--
----Administrative ordres passed by the public authorities in their discretion are not immune from judicial scrutiny of Court. [P. 711] D
Indutrial Relations Ordinance, 1969 (XXIII of 1969)--
----S. 25-A--West Pakistan (Standing Orders) Ordinance, 1968, S. 15(4)--Constitution of Pakistan, 1973, Arts. 185 & 199--Appellate jurisdiction--Re-instatement in service--Judicial review--Scope--Accusation of misconduct--Accountancy paper" for acquiring higher professional qualification--Civil servant was dismissed from service upon proof of misconduct--Re-instated--Bank filed appeal before Appellate Tribunal who reversed the findings of labour Court and dismissed the greivance petition--Petition was allowed--Assailed--Appellate Courts--Charge admitted--Quantum of punishment could not justiably reduce the penalty--Respondent was debarred from appearing in subsequent examinations--Penalty of dismissal from service was without lawful authority--Scope of--Power of judicial review of the High Court--Discretionary jurisdiction of public functionaries--Legality--High Court was not supposed to interfere in the administrative functions and disciplinary matters of public organisations--Order passed by an authority in its discretion was capricious, arbitrary or was passed in utter disregard of law--Departmental authorities have exclusive domain to determine the quantum of punishment in the light of nature of charge and Court may not substitute its decision in such matters--High Court in exercise of writ jurisdiction might look into the legality of an order passed by an authority--Held: Extraordinary remedy of writ petition was invokable in exceptional cases--Scope of judicial review of High Court was not confined to particular kind of order, rather in H.C. look into the question of legality or can passed by the public functionaries affecting the right of a person. [P. 710, 711] A & C
Industrial Relations Ordinance, 1969 (XXIII of 1969)--
----S. 25-A--West Pakistan (Standing Orders) Ordinance, 1968, S. 15(4)--Powes of Labour Court--Expression "Just and proper"--Proviso of--Legislative wisdom reflects the meaning--There must be some control on the exercise of power--Determining the degree of punishment--Penalty was modified. [P. 711] B
Quantum of punishment--
----Legality--Punishment has been awarded in an arbitrary manner, and the same did not commensurate with the gravity of charge.
[P. 712] E
West Pakistan (Standing Orders) Ordinance, 1968 (VI of 1968)--
----S. 15(4)--Appellate jurisdiction--Promotion from the date of dismissal--Supreme court did not find any illegality in the order of High Court passed in its discretionary jurisdiction--Penalty of stoppage of increments was not considered adequate, and the same was substituted withholding his promotion for a period of 7 years from dismissal u/S. 15(4) Ordinance, 1968. [P. 712] F & G
Mr. Shahid Anwar Bajwas, ASC with Mr. M.S. Khattak, AOR for Appellant (in C.A. No. 1096/2005).
Ch. Afrasiab Khan, ASC for Respondent (in C.A. No. 1096/2005).
Ch. Afrasiab Khan, ASC with Ch. Muhammad Akram, AOR, for Appellant (in C.P. No. 1097/2005).
Mr. Shahid Anwar Bajwa, ASC with Mr. M.S. Khattak, AOR for Respondents (in C.P. No. 1097/2005).
Date of hearing: 12.4.2006.
Judgment
Muhammad Nawaz Abbasi, J.--These two connected appeals involving common question of law and facts are proposed to be disposed of through this single judgment. Leave was granted in these appeals vide order dated 22.9.2005 in the following terms:--
"Both the petitions arise out of common judgment of the Lahore High Court dated 2.7.2003, substituting penalty of dismissal from service to withholding of two increments and directing re-instatement of Syed Nasir Abbas Naqvi in the employment of Allied Bank of Pakistan.
Precise facts appear to be that petitioner Syed Nasir Abbas Naqvi was serving as Officer Grade-III in the Allied Bank of Pakistan Limited. He was proceeded against on the charge of misconduct for getting certain questions answered in "Accountancy paper" of Banker's Diploma Examination held in summer 1999 by the Institute of Bankers for acquiring higher professional qualifications. He defended disciplinary proceedings but was found to be guilty of misconduct and dismissed from service vide order dated 19.10.1999.
In the first instance petitioner filed a service appeal before the Federal Service Tribunal which was rejected with the observations that Federal Government did not own or possess controlling shares in the Allied Bank of Pakistan, therefore, the Tribunal would have no jurisdiction to entertain the appeal against the penally. Petitioner, therefore, invoked jurisdiction of Punjab Labour Court, Lahore. His grievance petition was hotly contested but ultimately allowed and re-instatement ordered. The employer Bank challenged the re-instatement order before the Punjab Labour Appellate Tribunal who reversed the findings of the Labour Court and dismissed the grievance petition on a variety of grounds. The petitioner-employee, ultimately, filed a writ petition before the Lahore High Court which was resisted by the employer-Bank on a number of grounds. The High Court, inter alia, held that Branch of the Bank in which the petitioner was serving could not be treated as an "establishment" in isolation from the Bank establishment as a whole. Principle of double jeopardy for double punishment for same act was decided against the petitioner employee. It was held that he was a workman within the scope of Standing Order Ordinance, 1968, and that petition before the Labour Court even if barred by time delay was rightly condoned by the appellate Court and not disturbed by the Appellate Tribunal. Finding the petitioner guilty of misconduct, however, the High Court took a lenient view in the matter of penalty by substituting the same as aforesaid. Both parties feeling aggrieved by the finding and judgment of the High Court now seek leave to appeal.
We have heard Syed Nasir Abbas Naqvi in Civil Petition No. 2617 of 2003 and Mr. Shahid Anwar Bajwa, ASC, in Civil Petition No. 1859 of 2003, who has, inter alia, contended that apart from other findings which may not be sustained at law, at any rate, High Court in the exercise of writ jurisdiction could not alter or modify the penalty imposed upon an employee through such power vested in an appellate forum. Reliance is placed on Pakistan Tobaco Company versus Channa Khan (1980 PLC 981) (Supreme Court) and Brig. (Retd) F.B. Ali versus The State (PLD 1975 S.C 506).
The questions raised appear to be question of law of public importance, therefore, we are inclined to grant leave to appeal to examine, inter alia, the question of jurisdiction of the High Court in the matter of alteration of penalty in its writ jurisdiction. Order accordingly.
Since a short question is involved in these petitions, office is directed to list them out for final hearing before the year 2005 is out."
The pivotal question involved in the present appeals relates to the scope of the power of judicial review of the High Court in the matters falling within the discretionary jurisdiction of public functionaries.
Learned counsel for the appellant Bank has challenged the judgment of the High Court on the grounds firstly, that the learned Judge in the High Court after having observed that the respondent has admitted the charge of misconduct, was not supposed to interfere in the matter and secondly, the quantum of punishment being exclusively in the domain of departmental authority, the Labour Court or the High Court could not justifiably reduced the penalty.
The learned counsel for Syed Nasir Abbas Naqvi, respondent, on the other hand has argued that the penalty of dismissal from service was not in consonance with the nature of charge and since the respondent was debarred form appearing in ten subsequent examinations of the Banking Institution, therefore, the penalty of dismissal from service imposed upon him by the Bank on the same charge was without lawful authority.
The Labour Court having set aside the order by virtue of which the respondent was dismissed from service, allowed the grievance petition filed by him under Section 25-A, of the IRO 1969 vide order dated 11.12.2000 whereas the Labour Appellate Tribunal while reversing the order of Labour Court in appeal filed by the Bank, dismissed the grievance petition and the High Court in writ petition filed by the respondent, directed reinstatement of respondent in service with modification of the penalty of dismissal from service into stoppage of increments vide judgment dated 2.7.2003, therefore, the essential question requiring determination in the present appeal in the given situation would be the scope of interference of the High Court in the writ jurisdiction. We may agree with the learned counsel that ordinarily the High Court is not supposed to interfere in the administrative functions and disciplinary matter of public organizations in its constitutional jurisdiction unless it is found that an order passed by an authority in its discretion was capricious arbitrary or was passed in utter disregard of law. This is also not disputed that in disciplinary matter, the departmental authorities have exclusive domain to determine the quantum of punishment in the light of nature of charge and Court may not substitute its decision in such matters but this is settled law that the High Court in exercise of writ jurisdiction may look into the question of legality of an order passed by an authority and consequently, we deem it proper to examine the proposition in the light of the provisions of Section 25-A of IRO 1969.
The expression "just and proper" used in clause (b) to the proviso to sub-section (4) of the above Section in the legislative wisdom reflects the meaning that there must be some control on the exercise of power of the employer in the matter of determining the degree of punishment and Labour Court in a proper case, may wholly or partially allow a grievance petition and modify the penalty awarded to an employee by the employer with any other sort of penalty prescribed under the law. In the present case, the Labour Court having considered the facts and circumstances of the case, reinstated the respondent without grant of back benefits whereas the Appellate Tribunal taking a contrary view of the matter, dismissed the grievance petition and the High Court in exercise of its power of judicial review, having formed opinion that in view of the admission of respondent regarding charge of misconduct, the penalty of stoppage of increments would be sufficient to meet the ends of justice and consequently, setting set aside the order of Labour Appellate Tribunal, restored that of the order of Labour Court. The statutory remedy of appeal before the Labour Appellate Tribunal against the order passed by the Labour Court is certainly in continuation of the proceedings before the Labour Court whereas extraordinary remedy of writ petition before the High Court is invokeable in exceptional cases, therefore, the High Court may not necessarily interfere in the every order passed by the authorities in their discretion. However, the scope of judicial review of the High Court is not confined to particular kind of orders rather the High Court in its jurisdiction, may in the suitable cases, look into the question of legality or otherwise of an order passed by the public functionaries affecting the right of a person.
The High Court has not unfettered power of judicial review in its constitutional jurisdiction and may not substitute the administrative decision of the public authorities in its jurisdiction but these limitations on the power of judicial review of the High Court, cannot deter it from looking the question of arbitrary exercise of power or validity of the orders passed by the public authorities and consequently High Court must not hesitate from examining the legality of a matter in its entirety to correct the transgression or abuse of power or unlawful exercise of authority. In view thereof, we find no substance in the contention of the learned counsel for the appellant that the administrative orders passed by the public authorities in their discretion are immune from the judicial scrutiny of the Court. The quantum of punishment may not as such a question of law in every case but the Court on coming to the conclusion that the punishment has been awarded in an arbitrary manner which did not commensurate with the gravity of charge, must look into the legality of order and may also interfere to correct the illegality in the interest of justice. This Court is always reluctant to interfere in the order of the High Court passed in its discretionary jurisdiction under the Constitution unless there is serious question of law of public importance and learned counsel in the present case has not been able to show us any such illegality in the order of High Court calling for interference of this Court. Be that as it may, keeping in view the admission of the charge by the respondent, we are of the opinion that the penalty of stoppage of increments is also inadequate and consequently, in view of the concept of substantial justice, we without disturbing the reinstatement of the respondent in service, modify the penalty of stoppage of two increments into withholding his promotion for a period of seven years with effect from the date of order of dismissal passed by the competent authority under Section 15(4) of west Pakistan (Standing Orders) Ordinance, 1968.
(M.A.) Order accordingly.
PLJ 2007 SC 712
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
QALANDAR & 4 others--Appellants
versus
MUHAMMAD RAFI-UD-DIN--Respondent
C.A. No. 1777 of 2001, decided on 3.10.2006.
(On appeal from the judgment dated 12.11.1999 of the Lahore High Court, Lahore, in Civil Revision No. 1087/1987).
Punjab Pre-emption Act, 1913 (I of 1913)--
----S. 5--Constitution of Pakistan, 1973, Art. 185(3)--Superior right of pre-emption--Co-sharer--Concurrent findings--Plea was not taken in written statement--Improvement of status--Land was purchased for residential purpose--Validity--Contention of--Held: Evidence was ignored--Respondents had proved their superior right of pre-emption against the appellants--Appellants on the relevant date of purchase of suit land had no land in the estate--Whereas the respondent was the owner in the estate before the said sale--Appellants could not claim themselves to be the owner of the estate for the reason that it was purchased for residential purpose and secondly they paid no land revenue, hence could not be treated to be owner of the state--No misreading/non-reading of material evidence--No interference in concurrent findings of fact--Appeal dismissed.
[Pp. 714 & 715] A, B & C
PLD 1989 SC 373; 1994 SCMR 1168, followed.
Sh. Altaf Elahi, ASC for Appellants.
Raja Ibrahim Satti, ASC and Mr. M. S. Khattak, AOR for Respondent.
Date of hearing: 3.10.2006.
Judgment
Abdul Hameed Dogar J.--This appeal with leave of the Court is directed against the judgment dated 12.11.1999 passed by learned Judge in Chamber of the Lahore High Court, Lahore, whereby Civil Revision No. 1087 of 1987 filed by appellants was dismissed.
Rs. 13,000/- vide Mutation No. 260. On 27.7.1982 the respondent filed suit for pre-emption on the basis of being co- sharer before the trial Court. The appellants contested the suit by filing written statement wherein they denied the superior right of pre-emption of the respondent as claimed in the plaint. The trial Court framed as many as six issues including relief and after recording the evidence decided the suit on 11.5.1986 while holding that "the suit of the plaintiff/respondent is decreed in his favour against defendants/appellant for Rs. 13,000/-. Plaintiff/respondent was directed to deposit the decretal amount minus 1/5th pre-emption money already deposited upto 11.6.1986, failing which his suit shall stand dismissed with costs." Feeling aggrieved, appellants preferred appeal before the Additional District Judge, Mianwali, which was dismissed vide judgment dated 24.6.1987. The said judgment was assailed by the appellants before the learned High Court in the abovementioned civil revision which was dismissed vide impugned judgment.
Leave to appeal was granted on 23.7.2001 to consider the contention raised by the learned counsel for appellants that the owner of agricultural land in the estate which though was not assessed to land revenue or in respect of which no land revenue was paid, could still be treated as owner of the estate for the purposes of pre-emption matter.
We have heard Sh. Altaf Elahi, learned ASC for the appellants and Raja Muhammad Ibrahim Satti, learned ASC for respondents and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the appellants vehemently contended that the learned High Court as well as the learned lower Courts have not appreciated the material brought on record in its true perspective which resulted in miscarriage of justice. He further contended that as per findings of the learned Appellate Court, the land purchased by the appellants was agricultural in nature but the decree of the trial Court against the appellants has been affirmed only for the reason that in the written statement, it has been specifically mentioned that the appellants have improved their status by purchasing the land in the estate.
On the other hand, learned counsel for respondent while controverting the contentions of learned counsel for appellants contended that the impugned judgment does not suffer from any legal flaw and contended that all the three Courts are unanimous about his right of pre-emption. According to him, the said land measuring 1 kanal was purchased by the appellants for residential purposes, therefore, the same having not been proved to have been assessed to land revenue or that any land revenue was paid qua the same, the appellants could not be held to be owner in the estate.
The material point in this case is that appellants in their written statement have not taken the plea that they were also owners in the estate, so they had equal right of pre-emption against the respondent. Simple denial is not sufficient in the circumstances of the present case and evidence led by the appellants in order to prove the improvement in their status by purchase of 1 kanal land has to be ignored under law on the ground that the respondents have proved their superior right of pre-emption as against the appellants. The entries of record of rights proved beyond doubt that respondent are owners in the estate before the sale of the suit land. Appellants on the other hand also claimed their ownership in the estate at the time of filing of the suit as they have purchased one kanal of land on 26.7.1981. The appellants on the relevant date of purchase of suit land had no land in the estate. Whereas respondent was the owner in the estate before the said sale. No doubt the land purchased by appellants was part of agricultural land measuring 8 kanals and it was being cultivated by its owners. After the purchase of land appellants could not prove payment of land revenue. Appellants could not claim themselves to be the owner of the estate for the reason that, it was purchased by them for residential purpose and secondly they paid no land revenue hence could not be treated to be owner of the estate.
On the aspect of (owner of estate), this Court in the case of Haji Ahmad Yar v. Allah Ditta & another (PLD 1989 SC 373) and has observed as follows:
"Owner of estate means one who owns revenue paying land and not the land which loses its culturable character and is converted into a building site.
While affirming the same view, this Court in the case of Faiz Bakhsh & others vs. Malik Allah Bakhsh (1994 SCMR 1168) also held that in order to defeat plaintiff's right of pre-emption, on being "owner of the estate", defendants should have possessed status of "owner of the estate" at the time of sale sought to be pre-empted and continued to hold that right even at the time of institution of suit and its final decision. Defendant having purchased Sikni land for construction purpose could not attain status of "owner of the estate" so as to defeat suit for pre-emption on that basis. Learned counsel for the appellants though argued at length yet could not refer to any llegality, misreading or non-appraisal of evidence.
For what has been discussed above, we are of the considered opinion that impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material evidence brought on record or misconstruction of facts or law. There being concurrent findings of fact recorded by all the Courts which does not warrant interference by this Court.
Resultantly, the appeal being devoid of force is dismissed with no order as to cost.
(M.A.) Appeal dismissed.
PLJ 2007 SC 716
[Appellate Jurisdiction]
Present: Javed Iqbal, (Chairman), Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmud & Rashid Ahmed Jullundhari, JJ.
ABDUL GHAFFAR--Petitioner
versus
STATE--Respondent
Crl. P. No. 18(s) of 2005, decided on 15.11.2006.
(On appeal from the judgment dated 1.2.2005 of the Federal Shariat Court, Islamabad passed in Criminal Appeal No. 32-L of 2004).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10--Constitution of Pakistan, 1973, Art. 203-F--Conviction and sentence recorded against accused by trial Court--Assailed--Statement of victim Corroborated by material evidence which went un-rebutted--No irregularity or infirmity can be pointed out in the appreciation of evidence--Held: Supreme Court would refuse to reappraise evidence because the Court did not under take such task unless substantial departure from some rule or principle relating to appreciation of evidence has occurred--Leave refused.
[Pp. 717 & 718] A & B
PLD 1965 SC 111; 1971 SCMR 31; 19 DLR (SC) 177; 16 DLR (SC) 330; PLD 1961 SC 609; 1962 (1) PSCR 243; PLD 1951 FC 140; AIR 1958 SC 953; AIR 1956 SC 241; AIR 1955 SC 322; PLD 1951 FC 41; 1951 FC 78; PLD 1953 FC 317; PLD 1955 FC 378; and PLD 1951 FC 1 rel.
Mr. Arshad Ali Chaudhry, ASC for Petitioner.
Nemo for State.
Date of hearing: 15.11.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 1.2.2005 whereby the criminal appeal preferred on behalf of Abdul Ghaffar has been dismissed, however his conviction and sentence of 25 years R.I. was reduced to that of 15 years R.I. with benefit of Section 382-B Cr.P.C.
Precisely stated facts of the case according to the prosecution are that "victim Maryam Ashraf moved an application on 15.7.2002 that Mst. Gul Zareen, appellant is her step mother and Abdul Ghaffar alias Kashi is her , i.e. Mst. Gul Zareen's brother. Father of Mst. Maryam Ashraf contracted a second marriage after death of Mst. Maryam's mother. She i.e. Mst. Maryam was living with her maternal grand father but his father forcibly took her to his house where Mst. Gul Zareen was living with him as his wife. It was alleged that Mst. Gul Zareen got Maryam subjected to Zina-e-Bil-Jabr by her brother Abdul Ghaffar alias Kashi. The victim was obviously under shock and distress but her step-mother, i.e. Mst. Gul Zareen warned and threatened her that in case she disclosed this fact to any one, she may be stoned to death. Mst. Maryam was not permitted to visit the house of her maternal grandmother whose residence was in the same street. In the month of July, 2002 Mst. Maryam father left her in the house of her grand mother. Mst. Maryam's phoophi (paternal aunt) cautioned Mst. Maryam that she should not disclose about the incident accord to her, to her maternal grand father and left her in the house of her grandmother, and took an oath on Holy Quran. Mst. Maryam was under tremendous shock and fear, therefore, she remained silent for about 3/4 days. However, after 3/4 days she narrated the whole incident to her grand parents. On 13.7.2002 she was got medically examined and on 15.7.2002 an application was moved to the D.P.O. Sheikhupura which was marked to SHO and formal FIR No. 258 of 2002 was registered with Police Station Bhikhi, District Sheikhupura under Section 10 of the Ordinance. After completion of investigation the petitioner was sent up for trial and on conclusion whereof he was convicted and sentenced as mentioned herein above.
Mr. Arshad Ali Chaudhry, learned ASC entered appearance on behalf of petitioner and mainly contended that factum of enmity and rancour existing between the parties due to the second marriage of Muhammad Ashraf with Mst. Gulzareen has been ignored altogether which resulted in serious miscarriage of justice. It is also contended that on the basis of interested, partisan and contradictory evidence no conviction could have been awarded to the petitioner. It is argued that the statement of Mst. Maryam Ashraf (victim) should have been discarded being tutored one besides that no independent corroboration was available in support of her version. It is also contended that a very harsh punishment has been awarded to the petitioner which does not commensurate with the gravity of offence.
We have carefully examined the above-mentioned contention in the light of evidence which has come on record and perused the judgment impugned carefully. After having gone through the entire evidence by keeping the defence version in juxtaposition we are of the considered view that prosecution has established the accusation beyond shadow of doubt. The case of prosecution hinges on the oral version of Mst. Maryam Ashraf (victim) duly supported by medical evidence. We have carefully scrutinized her statement wherein she has narrated the details of unfortunate episode and mentioned without any ambiguity and in a unequivocal manner that the petitioner had committed Zina-Bil Jabr with her on different occasions. She was subjected to an exhaustive cross-examination but nothing beneficial could be extracted. The learned ASC was asked pointedly that as to why the statement of Mst. Maryam Ashraf (victim) should be disbelieved but no satisfactory answer could be given. The miner contradictions pointed out by the learned ASC have rightly been ignored by the learned trial and appellate courts being immaterial. The medical evidence furnished by Dr. Farida Shahbaz lends full corroboration to the statement of Maryam Ashraf (victim). Besides that the vaginal swabs were found to be stained with semen. In this regard report of Chemical Examiner (Exh.P/G) can be referred. We are not persuaded to agree with the contention of learned ASC on behalf of petitioner that no conviction and sentence can be awarded on the statement of an interested witness for the simple reason that "An interested witness is undoubtedly a competent witness under the Evidence Act. The proposition that his testimony should be corroborated by independent evidence is however not of universal application. The question of his reliability must depend upon the circumstances of each case and the quality of his evidence. If his testimony is found reliable the Court may accept it without any corroboration. But as a matter of prudence, the Court insists on corroboration of his evidence when he is inimically disposed towards the accused and it will, therefore, be unsafe to base a conviction on his testimony alone." Sohni v. Bahaduri (PLD 1965 SC 111).
As mentioned herein above the statement of Mst. Maryam Ashraf has fully been corroborated by the medical evidence which went un-rebutted. No irregularity or infirmity can be pointed out in the appreciation of evidence. It is well settled by now that "ordinarily the Supreme Court would refuse to reappraise evidence because the Court does not undertake this task unless a substantial departure from some rule or principle relating to the appreciation of evidence has occurred. When the Court of first instance and the Court of appeal arrives at concurrent findings of fact after believing the evidence of a witness, the Supreme Court as the final Court does not disturb such findings save in most exceptional cases. In the absence of a statutory bar this practice could have been and was occasionally relaxed or deviated from in special cases which were found to have been of a very unusual nature and of public and general importance; but never, unless justice was found to have miscarried as a result of either there not being a proper trial at all or on account of admission or reception of evidence which was not legally admissible or for something so shocking, so outrageous, or so gross as to shock the very basis of justice. This will be the case where there is such a disregard of the forms of legal process, or such a violation of principles as amounts to a denial or perversion of justice. The disregard or violation should not be merely technical in character, it should be both grievous as well as substantial." (Abdul Majid v. State 1971 SCMR 31, British India N. Co. v. Abdur Razzak 19 DLR (SC) 177, Shamshad Ali Shah v. Hassan Shah 16 DLR (SC) 330, PLD 1961 SC 609, Bashir Ahmad v. Yaqub Shah 1962(1) PSCR 243, Muhammad Bachhal v. Crown PLD 1951 FC 140, Badri Rai v. State of Bihar AIR 1958 SC 953, Mathew v. T.C. State AIR 1956 SC 241, Ram Narain v. State of Punjab AIR 1955 SC 322, Sarfaraz Ali Khan v. Crown PLD 1951 FC 41, Sarfaraz Ali v. Crown 1951 FCR 78, Muhammad Sarfraz Khan v. Crown PLD 1953 FC 317, Khuda Bakhsh v. Crown PLD 1955 FC 378, Gul Amir Khan v. Crown PLD 1951 FC 1). The case in hand does not fall within the ambit of above-mentioned criterion.
It may not be out of place to mention here that a lenient view has already been taken by the learned Federal Shariat Court and conviction and sentence of 25 years has been reduced to that of 15 years and no more indulgence is required on humanitarian grounds as pressed time and again by the learned ASC on behalf of petitioner.
In sequel to above-mentioned discussion the above petition being meritless is dismissed and leave refused.
(M.A.) Leave refused.
PLJ 2007 SC 719
[Appellate Jurisdiction]
Present: Javed Iqbal & Abdul Hameed Dogar, JJ.
CHAIRMAN WAPDA etc.--Appellants
versus
SARFRAZ KHAN & another--Respondents
C.As. Nos. 1335 to 1338 of 2003, decided on 15.1.2007.
(On appeal from the order dated 26.11.2002 of the Peshawar High Court, Peshawar, passed in R.F.A. Nos. 53, 54, 55, 56 of 1997).
Land Acquisition Act, 1894 (I of 1894)--
----S. 4--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Market value of land--Assessment--Potential value of acquired land--Determination--One year's average sale price of land in vicinity preceding--Date of notification--Factors for consideration in determining the market value of land but it cannot be adopted as basis for assessment of market value--If there is other evidence available on record to establish the potential value of acquired land at higher rate--Leave refused. [P. 722] A
Documentary evidence--
----Market and commercial value--Question of--Value of--Documentary evidence could not be rebutted by appellant by producing any worthy of credence evidence--Question relating to potentials of land, its market and commercial value being questions of facts have rightly been determined by High Court which being well based does not warrant interference--Appeals were dismissed. [P. 727] B
Mr. Abdul Qaddir Khattak, ASC for Appellants (in all cases).
Nemo for Respondent No. 1.
Nemo for Respondent No. 2.
Date of hearing: 15.1.2007.
Judgment
Javed Iqbal, J.--The above captioned appeals emanate from the same judgment and similar questions of law and facts are involved, hence the same are being disposed of by this common judgment.
Precisely stated the facts of the case are that "the Land Acquisition Collector acquired land measuring 99 Kanals 8 Marlas for construction of Narai Drain in Mardan SCARP vide Award No.260 dated 22.3.94 situated at Mauza Saro Shah Tehsil Takht Bhai District Mardan. He fixed Rs.1022/- per marla for Shah Nehri kind of land and Rs.255.50 for Ghair Mumkin kind of land. 15% compulsory acquisition charges and simple interest at the rate of 6% was also given to the land owners. Abbas Sarfaraz whose land measuring 15 Kanals 4 Marlas was acquired filed Objection Petition No.9/4, whereas Sarfaraz Khan, whose land measuring 18 Kanals was acquired filed Objection Petition No. 10/4 of 1994. The above mentioned Objection Petitions were referred to the learned Referee Court for determination. The learned Referee Judge after framing issues, recording pro and contra evidence of the parties enhanced the amount of compensation to Rs. 1643/- per marla for Shah Nehri and Rs.600/- for Ghair Mumkin kind of land. 15% compulsory acquisition charges and simple interest at the rate of 6% from the date of taking over possession till final payment was also granted on the enhanced amount vide judgment and decree dated 25.3.96." Being aggrieved the Chairman WAPDA preferred an appeal and simultaneously land owners have also filed appeals before the Peshawar High Court, Peshawar, which were disposed of by means of judgment impugned whereby the appeals preferred on behalf of Chairman WAPDA have been dismissed.
Heard Mr. Abdul Qadir Khattak, learned ASC at length who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective and the compensation amount has been enhanced by the learned Referee Judge at first instance which was further enhanced by the learned Single Judge of Peshawar High Court in chambers without having gone through the potentials of the land in question and besides that the enhancement of compensation amount is based on conjectural presumptions. It is next contended that the learned Single Judge in chambers has heavily relied on the award Bearing No. 196 dated 21.8.91 which had no nexus whatsoever with the land in question. It is argued that the Courts below have not dilated upon the controversy with diligent application of mind but on the contrary toed the award Bearing No. 196 dated 21.8.91 without any rhyme and reason resulting in serious miscarriage of justice. It is next argued that some local commissioner could have been conveniently appointed to determine the prevalent price of the land in question which could not be done for the reasons best known to the learned Referee Judge. It is urged emphatically that the land in question had no potential value and it was neither suitable for construction nor it could have been used for any commercial or residential purposes.
We have carefully examined the contentions as canvassed at bar on behalf of Chairman WAPDA (appellant), examined the entire record and perused the judgment of learned Referee Judge as well as the judgment impugned. The pivotal question which needs determination would be as to whether the compensation has been determined and enhanced in accordance with the provisions as contained in Section 23 of the Land Acquisition Act, 1894 and commercial/potential value of the land in question has been kept in view or otherwise? The question as to how the price of acquired land is to be determined, has been examined and answered by this Court in various cases in a comprehensive manner and guideline has been provided in case Province of Punjab v. Jamil Ahmad Malik (2000 SCMR 870), which is reproduced herein below for ready reference:--
"10. The cardinal principle for ascertaining the value of the land under acquisition is to find out the price acceptable to a willing seller from a willing purchaser. Attending this principle, we notice that the rate of compensation given by the Referee Court being much-less to that of the claim made by the owners was not exorbitant arid, therefore, taking the relevant factors into consideration, the rate of compensation awarded by the Referee Court was fair. Undoubtedly, there is no rule that a post notification transaction of sale of similar land cannot be looked into to find out the correct value of the land, but it is seen that after publication of the notification under Section 4 of the Land Acquisition Act, 1894, the price of the land in the locality is affected and, therefore, to place reliance on such a transaction of sale will not be a proper guidance for the determination of the market value of the acquired land. However, in the present case, the collector or the Referee Court did not include any such transaction for the purpose of calculation of the market value of the land and, therefore, the determination of the market value of land acquired by the Referee Court on the basis of the documentary evidence of the mutations of sale alongwith the other factors was supported by cogent reasons."
In the case of Pakistan Burma Shell (supra) this Court observed as under:--
"6. We are not pursuaded to strike off the award on the rectitude of these submissions, Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is that date of the notification under Section 4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and the price evidenced by the transaction of similar land at the time of notification are the factors to be kept in view. One year's average of the sales taking place before the publication of the notification under Section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment."
The above principle was also quoted with approval in the case of Haji Muhammad Yaqoob (supra) wherein it was observed that it is well settled that one year's average sale price of the land in the vicinity preceding the date of notification under Section 4 of the Act, is only one of the relevant factors for consideration in determining the market value of the land but it alone cannot be adopted as the basis for assessment of market value, if there is other evidence available on record to establish the potential value of acquired land at a higher rate.
In the case of Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others (1997 SCMR 1692), the following principles of law were laid down for assessing the future prospects of the land acquired under the Land Acquisition Act, 1894 in terms of Section 23:
(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable for becoming Chahi land.
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered.
(iii) That the market value of the land is normally to be taken as existing on the date, of publication of the notification under Section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back may be considered including other factors like potential value etc.
The above principles were also consistently followed in Abdur Rauf Khan v. Land Acquisition Collector (1991 SCMR 2164), Gunj Khatoon v. Province of Sindh (1987 SCMR 2084), Fazalur Rahman v. Collector (PLD 1988 SC 32) and Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. (1993 SCMR 1700).
Reference may also be made to Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1647), wherein one of us (Muhammad Bashir Jehangiri, J.) had exhaustively laid down the criteria for determination, of fair compensation. Relevant portion of the report reads thus:--
"The schedule of average price for four years or for that matter even of one year are not the only criterion for determining the amount of compensation but the other material' brought on the file is quite relevant to determine the correct amount of compensation for the acquired land. Section 23 of the Land
Acquisition Act, 1894 lays down, by way of criterion, thatmarket value' of land on the date of publication of notification under Section 4 of the said Act would be the amount of compensation. The expression `market value' has not been defined in the Act.
Merely one year average price of the land in the same vicinity or the classification thereof is not exhaustive in itself but there are other considerations enumerated in the law which would also be relevant for determining the market value for fair compensation to be awarded to an owner whose land has been compulsorily acquired.
It is wrong to look for the classification alone of the land for the purpose of determination of the fair compensation.
The following matters are to be taken into consideration its determining the amount of compensation:--
(i) The data from which the market value of the land can be estimated is given in Rule 13 of the North-West Frontier Province Circular No. 54 issued presumably under Section 55 of the Act.
(ii) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat, 1984 to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land.
(iii) Sub-section (1) of Section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publicaiton of the declaration under Section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition.
(iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under Section 4(1) of the Land Acquisition Act. The next best method is to take into consideration, the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.
(v) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant, time. No doubt, for determining the market value, classification p; the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits.
(vi) While determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration.
(vii) Consideration should be had to all the potential uses to which the land can be put as well as all the advantages, present or future which the land possesses in the hands of the owners.
(viii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction.
(ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist.
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court-witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired; because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind that it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levies on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The "previous sales" of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired.
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
(xii) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act.
(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted should be taken into consideration.
(xiv) The phrase
market value of the land' as used in Section 23(1) of the Act meansvalue to the owner' and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration."
satisfactory answer could be given nor any distinction could be made. The respondents in our considered view have produced worthy of credence documentary evidence such as Jamabandi for the year 1991-1992 (Ex.O.W.1/1) one year's average, commonly known as Ost yak sala for the period 31.3.92 to 31.3.93 (Ex.O.W.1/2). One year's average for the period 26.10.92 to 26.10.93 was also got exhibited as (Ex.O.W.1/3). Besides that Aks Shajara Kishtwar was also produced (Ex.O.W. 1/4). The documentary evidence could not be rebutted by the appellant by producing any worthy of credence evidence. The question relating to potentials of land, its market and commercial value being questions of facts have rightly been determined by the learned single Judge in chambers vide judgment impugned which being well based does not warrant interference. The appeals being devoid of merit are dismissed.
(R.A.) Appeals dismissed.
PLJ 2007 SC 727
[Appellate Jurisdiction]
Present: Javed Iqbal & Ch. Ijaz Ahmed, JJ.
MUHAMMAD NAWAZ KHAN & another--Appellants
versus
GOVERNMENT OF N.W.F.P. through Collector, Mardan etc.--Respondents
C.A. No. 404 of 2004, decided on 7.12.2006.
(On appeal from the judgment dated 30.5.2003 passed by the Peshawar High Court, Peshawar passed in RFA No. 97 of 1997).
(i) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 18, 23 & 54--Constitution of Pakistan, 1973, Art. 185(3)--Land was acquired--Potential commercial value of land--Enhancement of compensation of acquired land--Determining the price of land--Ascertainment of market value of land--Fair compensation--Enhanced the price of land by Referee Judge--Validity--Held: High Court had examined the entire documentary and oral evidence and had rightly enhanced the price on the basis of one year average, after keeping in view the commercial and potential value of the acquired land--Appeal was dismissed. [P. 734] A
2000 SCMR 870; 1993 SCMR 1700; 1997 SCMR 1670; 1997 SCMR 1692; 1991 SCMR 2164; 1987 SCMR 2084; PLD 1988 SC 2084 and
1999 SCMR 1647.
Mr. Maazullah Khan Barkundi, ASC for Appellants.
Sh. Mahmood Ahmad, ASC for Respondents.
Date of hearing: 7.12.2006.
Judgment
Javed Iqbal, J.--This appeal preferred on behalf of appellant under Section 54 of the Land Acquisition Act, 1894 is directed against the judgment/decree dated 30.5.2003 of the Peshawar High Court, Peshawar whereby the RFA preferred on behalf of appellant has been accepted and the compensation of acquired land was enhanced to Rs.12654/- per marla with 15% compulsory acquisition charges and 6% simple interest on the enhanced amount.
Precisely stated the facts of the case are that pursuant to notification under Section 4 of the Land Acquisition Act, 1894 on 7.2.1984, 5 kanals 18 marlas of land was acquired for construction of a bypass road from Charsadda Bus Stand Mardan to Gujar Garhi road from the appellant and compensation was fixed as Rs.3389/69 per marla by means of award dated 22.6.1989. A fresh award was also issued on 2.9.1992 and the price was reduced to Rs.3042.51 per marla as the alignment of the road was not found correct. The appellant filed Reference under Section 18 of the Land Acquisition Act, 1894 against the award dated 22.6.1989 which was withdrawn in view of the latter award made on 7.1.1991 and a new reference was made whereby the price of land was enhanced from Rs. 3042.51 per marla to that of Rs. 5016.51 per marla by the learned Referee Judge by means of judgment/decree dated 10.4.1997. Being aggrieved, RFA was preferred on behalf of appellant which has been disposed of vide judgment impugned enhancing the price from Rs.5016.51 to that of Rs.12,654/-per marla which has been assailed by means of this appeal.
Mr. Maazullah Khan Barkundi, learned ASC entered appearance on behalf of appellants and contended that the potential and commercial value of the land in question has not been determined in accordance with the evidence which has come on record and moreso the determination of price is not in consonance with the provisions as enumerated in Section 23 of the Land Acquisition Act, 1894. It is also argued that the market value of the land, per marla in the village was Rs.50,000/- which has been ignored by the learned High Court without any rhyme and reason causing grave loss to the appellant. It is also contended that the learned trial and appellate courts have committed error by not making the report of Local Commissioner as part of the record as neither the Local Commissioner was called nor the report was got exhibited. It is pointed out that had the Local Commissioner being called the position would have been different.
We have carefully perused the award, its reasoning, judgment of learned Referee Judge as well as the judgment impugned. The only question which needs determination would be as to whether the compensation has been determined in accordance with the provisions as contained in Section 23 of the Land Acquisition Act, 1894 and commercial/potential value of the land in question has been kept in view or otherwise? The question as to how the price of acquired land is to be determined, has been examined and answered by this Court in various cases in a comprehensive manner and guideline has been provided in case Province of Punjab v. Jamil Ahmad Malik (2000 SCMR 870), which is reproduced herein below for ready reference:--
"10. The cardinal principle for ascertaining the value of the land under acquisition is to find out the price acceptable to a willing seller from a willing purchaser. Attending this principle, we notice that the rate of compensation given by the Referee Court being much-less to that of the claim made by the owners was not exorbitant arid, therefore, taking the relevant factors into consideration, the rate of compensation awarded by the Referee Court was fair. Undoubtedly, there is no rule that a post notification transaction of sale of similar land cannot be looked into to find out the correct value of the land, but it is seen that after publication of the notification under Section 4 of the Land Acquisition Act, 1894, the price of the land in the locality is affected and, therefore, to place reliance on such a transaction of sale will not be a proper guidance for the determination of the market value of the acquired land. However, in the present case, the collector or the Referee Court did not include any such transaction for the purpose of calculation of the market value of the land and, therefore, the determination of the market value of land acquired by the Referee Court on the basis of the documentary evidence of the mutations of sale alongwith the other factors was supported by cogent reasons."
In the case of Pakistan Burma Shell (supra) this Court observed as under:----
"6. We are not pursuaded to strike off the award on the rectitude of these submissions, Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is that date of the notification under Section 4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and the price evidenced by the transaction of similar land at the time of notification are the factors to be kept in view. One year's average of the sales taking place before the publication of the notification under Section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment."
The above principle was also quoted with approval in the case of Haji Muhammad Yaqoob (supra) wherein it was observed that it is well settled that one year's average sale price of the land in the vicinity preceding the date of notification under Section 4 of the Act, is only one of the relevant factors for consideration in determining the market value of the land but it alone cannot be adopted as the basis for assessment of market value, if there is other evidence available on record to establish the potential value of acquired land at a higher rate.
In the case of Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others (1997 SCMR 1692), the following principles of law were laid down for assessing the future prospects of the land acquired under the Land Acquisition Act, 1894 in terms of Section 23:--
(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable for becoming Chahi land.
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered.
(iii) That the market value of the land is normally to be taken as existing on the date, of publication of the notification under Section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back may be considered including other factors like potential value etc.
The above principles were also consistently followed in Abdur Rauf Khan v. Land Acquisition Collector (1991 SCMR 2164), Gunj Khatoon v. Province of Sindh (1987 SCMR 2084), Fazalur Rahman v. Collector (PLD 1988 SC 32) and Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. (1993 SCMR 1700).
Reference may also be made to Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1647), wherein one of us (Muhammad Bashir Jehangiri, J.) had exhaustively laid down the criteria for determination, of fair compensation. Relevant portion of the report reads thus:---
"The schedule of average price for four years or for that matter even of one year are not the only criterion for determining the amount of compensation but the other material brought on the file is quite relevant to determine the correct amount of compensation for the acquired land.
Section 23 of the Land Acquisition Act, 1894 lays down, by way of criterion, thatmarket value' of land on the date of publication of notification under
Section 4 of the said Act would be the amount of compensation. The expression
`market value' has not been defined in the Act.
Merely one year average price of the land in the same vicinity or the classification thereof is not exhaustive in itself but there are other considerations enumerated in the law which would also be relevant for determining the market value for fair compensation to be awarded to an owner whose land has been compulsorily acquired.
It is wrong to look for the classification alone of the land for the purpose of determination of the fair compensation.
The following matters are to be taken into consideration in determining the amount of compensation:--
(i) The data from which the market value of the land can be estimated is given in Rule 13 of the North-West Frontier Province Circular No. 54 issued presumably under Section 55 of the Act.
(ii) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat 1984 to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land.
(iii) Sub-section (1) of Section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition.
(iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under Section 4(1) of the Land Acquisition Act. The next best method is to take into consideration, the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.
(v) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value maybe tremendously high because of its location, neighborhood, potentiality or other benefits.
(vi) While determining the value of the compensation the market value of the land at the time of requisition/ acquisition and its potentiality have to be kept in consideration.
(vii) Consideration should be had to all the potential uses to which the land can be put as well as all the advantages, present or future which the land possesses in the hands of the owners.
(viii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction.
(ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist.
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court-witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired; because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind that it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levies on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The "previous sales" of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired.
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
(xii) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act.
(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted should be taken into consideration.
(xiv) The phrase
market value of the land' as used in Section 23(1) of the Act meansvalue to the owner' and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration."
In sequel to above mentioned discussion this appeal being merit less is dismissed and leave refused.
(M.A.) Leave refused.
PLJ 2007 SC 735
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Khalil-ur-Rehman Ramday, JJ.
MUHAMMAD AKRAM--Petitioner
versus
Mst. ZAINAB BIBI--Respondent
Civil Petitions No. 1753 and 1754 of 2004, decided on 1.12.2005.
(On appeal from the judgment dated 11.6.2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Civil Revisions
No. 67-D and 68-D of 1999).
Administration of Justice--
----Ignorance has never been considered a valid defence for any non, mis or mal-feasance. [P. 738] D
Administration of Law--
----When law required a thing to be done in a particular manner then it would be nullity in the eyes of law. [P. 738] E
Punjab Pre-emption Act, 1991--
----Ss. 5, 6(1) & 13(1)--Constitution of Pakistan, 1973, Art. 185(3)--Right of pre-emption--Making of talabs--Non-disclosure of exact date of sale and talb-i-ishhad--Suit was dismissed----Assailed--Leave to appeal--Making of "Talab" is not a mere formality but depends the very life and continued existence of the right--Court has no power to condone any deficiencies or deviations in the matter of making the demands because the consequences of failure to perform Talb-i-Ishhad in the prescribed manner stand determined by law--Essentials--First demand was made at once after knowledge of sale, and second demand within two weeks thereof--Impossible for Court to determine facts--If pre-emptor did not disclose the date of knowledge, adverse inferences had to be drawn against him--Law does not provide concessions to illiterate or the persons who come from the rural areas--Held: Courts had to insist upon not disclosure the date on which pre-emptor had acquired knowledge about the sale transactions in question therefore, interference by Appellate Courts was unwarranted--Leave accepted. [Pp. 737, 738 & 739] A, B, C & F
Malik Qamar Afzal, ASC with Ch. Muhammad Akram, AOR for Petitioner.
Syed Rafaqat Hussain Shah, ASC for Respondent.
Date of hearing: 1.12.2005.
Judgment
Khalil-ur-Rehman Ramday, J.--Mst. Zainab Bibi respondent filed two separate suits to pre-empt two transactions of sale of the suit land made in favour of Akram petitioner. Both the suits were dismissed essentially on the ground that the pre-emptor had failed to establish the making of the requisite `TALABS' in the prescribed manner. The learned Appellate Judge, however, reversed these findings; set aside the trial Court judgments and decrees and decreed both these suits. On being approached through two revision petitions, the Lahore High Court concurred with the appellate judgments and affirmed the conclusions reached by the Appellate Court.
Hence these petitions.
We have re-examined the matter in the light of the submissions made by the learned counsel for the parties and the material available on record.
From a perusal of the plaints filed in these suits, we find that the pre-emptor had elected not to disclose the source of her information about the sales in question nor had she opted to take the trial Court into confidence about the place where and the date on which she had received the said information. Three witnesses appeared at the trial in support of her case i.e. Yousaf (PW. 1), Hayat (PW.2) and the husband and the attorney of the pre-emptor, namely, Sadiq (PW.3). The first two were not present with the pre-emptor when she had received information about the transactions of sale in question. They only said that the pre-emptor had come to know of the same about three months after the said transactions when she called them and then asked them to go to the vendee to claim the suit land, which they did. They added that two days thereafter, the vendee refused to return the suit land to the pre-emptor and eight days thereafter, they accompanied the said pre-emptor and her husband to the district Courts where a notice (Talab-i-Ishhad) was got written and was then posted to the vendee. To the same effect was the statement of the said Sadiq PW who had, however, added that it was the vendor and the Patwari' who had told him about the sale in question and that he had, in turn, told his pre-emptor wife about it who had then made the firstTalab' in their house.
The trial Court non-suited the pre-emptor on account of non-disclosure of the exact date on which she had acquired knowledge about the said transaction of sale and then taking the said date to be three months from the attestation of the mutations in question, as claimed by the said witnesses, found that the `Talab-i-Ishhad' had been made much after the period prescribed for the purpose.
The learned
Appellate Judge was, however, of the opinion that the making of the first two requisite Talabs' by the pre-emptor stood sufficiently proved on record; that the learned trial judge had been "Too Technical By Watch" in calculating the time limit for makingTalab-i-Ishhad'; that calculating the date of knowledge in question on the basis of Three Months' as mentioned by the witnesses was not justified as the said three months should not have been literally taken to be three months because the appellant and her witnesses were anIlliterate Lot Of The Rural Area' and could not Be Maticulous On The Point
Of Calculating And Counting Each And Every Day' and that the pre-emptor hadComplied With The Legal Requirements Expected Of Her As An Illiterate Lady'.
And it was for the said reasons that the trial Court judgment had not found favour with the Appellate Court and had been set aside.
There appears to be some confusions about the status of the right of pre-emption and its enforcement, and we therefore consider it necessary to say a few words about the same.
It is the provisions of Section 5 of the Punjab Pre-emption Act of 1991 which recognized this right to pre-empt sales of immovable properties and then conferred the same right on persons identified through sub-section (1) of Section 6 of the said Act. The provisions of Section 13(1) thereof are, however, emphatic in declaring that the said right Shall Be Extinguished' unless a person possessed of the same makes demands of pre-emption i.e.Talab-i-Muwathibat', Talab-i-Ishhad' andTalab-i-Khusumat' in the prescribed order; the prescribed manner and within the stipulated time. The making of these Talabs' is thus not a mere procedural formality prescribing a mode for the enforcement of the right of pre-emption but on the same depends the very life and the continued existence of the said right. It may be added that the law has not granted any power to any Court to condone any deficiencies or deviations in the matter of making the said demands or to show any laxity in the said matter because the consequences of failure to perform the saidTalabs' in the prescribed manner, stand determined by the law itself i.e. `Extinction Of
The Said Right'.
Hence the vital importance of these demands and making of the same strictly in accordance with the requirements of the said Section 13.
As per the said provisions, Talab-i-Muwathibat' is the first in line and has to be made by the pre-emptorImmediately' on acquiring knowledge of the sale intended to be pre-empted by him and in fact the said demand has to be made in the same sitting or meeting (Majlis) in which he comes to know of the said sale. Next in order is the "Talab-i-Ishhad' which has to be made as soon, after the making of Talab-i-Muwathibat', as possible and not in any caseLater Than Two
Weeks From The Date Of Knowledge' of the said sale.
In order to succeed, therefore, the pre-emptor would need to establish that he had made the first demand, immediately on coming to know of the sale and that he had then made the second demand within two weeks thereof. This is how and why this date of knowledge acquires vital significance in pre-emption suits because in the absence thereof it would not be possible for the Courts seized of the matter to determine whether the first demand had or had not been made immediately upon coming to know of the sale in question and also whether the second demand had or had not been made within two weeks of the same. This date is thus the pivot on which the fate of a pre-emption case rests.
It is for this reason that the Courts have to insist upon the disclosure of the date on which the pre-emptor had acquired knowledge of the sale being pre-empted by him and if he chooses not to do so, for whatever reason, then adverse inferences have to be drawn against him. And we may repeat here that no special provisions exist in the law in question envisaging grant of any concessions or allowances to the ones who are illiterate or to the ones who come from the rural areas. It may be added that even ignorance has never been considered a valid defence for any non, mis or mal-feasance. When the law requires a thing to be done in a particular manner then it would be a nullity in the eyes of law, if not performed in that very prescribed manner.
In the present case, the pre-emptor had elected not to mention the date on which she had acquired knowledge about the sale transactions in question. Even her witnesses, who remembered the sale price of the suit land and also the days which had been consumed by the vendee to decide whether to accept the Talab-i-Muwathibat' or to refuse the same and who also remembered the exact number of days after which they had accompanied the pre-emptor to the local Courts for the purposes of makingTalab-i-Ishhad', had said only that the pre-emptor had got to know of the sale three months after the same had been transacted. This was thus the only basis provided by the plaintiff to the Court to calculate time for the subsequent events and no exception could, therefore, be taken to the calculation of the same on the basis of the said data. As has been mentioned above, no power vests in any Court either to enlarge the time prescribed by the provisions of Section 13(1) and (3) of the said Act of 1991 or to condone the delay occurring in doing the needful.
Having thus examined the legal and factual aspects of the matter, we find that the conclusions drawn by the learned trial Judge about the said legal and factual issues were well-founded and were not open to any exception and that the interference by the learned Appellate Judge therewith, was un-warranted.
Consequently, both these petitions are converted into appeals which are allowed as a result whereof the impugned judgment of the Lahore High Court dated 11.6.2004 passed in Civil Revisions No.67 and 68-D of 1999 as also the appellate judgments of the learned Additional District Judge dated 25.9.1998 which had been affirmed by the learned High Court through the impugned judgment, are set aside. As a further consequence thereof the two suits filed by Mst. Zainab respondent are dismissed.
No orders as to costs.
(M.A.) Appeals accepted.
PLJ 2007 SC 739
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Main Shakirullah Jan, JJ.
RIFFAT IQBAL--Appellant
versus
Mst. FATIMA BIBI, etc.--Respondents
C.A. No. 760/2006, decided on 10.10.2006.
(On appeal from the judgment dated 20.2.2006 passed by Lahore High Court, Lahore in W.P. No. 6333/04).
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11(d)--Constitution of Pakistan 1973, Art. 185(3)--Deficiency in the Court fee--Rejection of plaint for non payment of Court fee--Legal obligation--Extension of time--Validity--Once an opportunity to make good the deficiency in the Court fee has been provided to the plaintiff and if he fails to discharge his legal obligation then he is not entitled to any relief. [P. 741] A & B
Mr. Hifz-ur-Rehman, ASC with Mr. Mehr Khan Malik, AOR for the Appellant.
Mr. F.K. Butt, ASC with Mr. Ejaz Muhammad Khan, AOR for the Respondents.
Date of hearing: 10.10.2006.
Judgment
Abdul Hameed Dogar, J.--This appeal, with leave of the Court, is directed against the judgment dated 20.02.2006 passed by Lahore High Court, Lahore in W.P. No. 6333/2004 filed by appellant was dismissed and order dated 07.04.2004 passed in Civil Revision by Additional District Judge, Mandi Baha-ud-Din rejecting the plaint of appellant under Order VII, Rule 11 CPC for non-payment of Court-fee was maintained.
It would be relevant to give little background of the case. Appellants filed suit for possession through pre-emption in the Court of Civil Judge, Mandi Baha-ud-Din on 14.09.2002. It was on 05.03.2003, the learned Civil Judge seized with the matter, directed the appellant to make good deficiency in the Court-fee, which was determined to be Rs. 5,459/- by 17.03.2003. The appellant preferred an application under Sections 148, 149 & 151 CPC for extension of time to make compliance and the time was extended up to 27.03.2003. The respondent challenged the said order through revision before Additional District Judge which was allowed and the plaint as stated above was rejected. Feeling aggrieved appellant filed writ petition before learned Lahore High Court which was dismissed vide impugned judgment.
This Court on 24.04.2006 granted leave to appeal to consider, inter-alia, the contention that extension of time allowed by trial Court to the appellant/preemptor for making up the deficiency in the payment of Court-fee under Sections 148, 149 & 151 CPC was unjustifiably recalled by the learned Additional District Judge, Mandi Bahauddin.
We have heard M/s Hifzur Rehman, learned counsel for the appellant and F.K.Butt, learned counsel for the respondents at length and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel appearing on behalf of the appellant contended that appellant being a lady was unaware of the law and instead of approaching the Court asked the Patwari about determination of the Court-fee, thus she was not able to make the deficiency within time and requested for further time. According to him learned trial Court was competent to extend the time as contemplated under Section 148 CPC. In support he relied upon the cases of Sultan Ahmad and others v. Khuda Bux and others (1986 SCMR 1005) and Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others (1972 SCMR 179).
On the other hand learned counsel for the respondents supported the impugned judgment and contended that extension of time was unjustified. There have been concurrent findings of two Courts below, as such, the impugned judgment does not suffer from any illegality. In support he relied upon the case of Mubarak Ahmad and 2 others v. Hassan Muhammad through Legal Heirs (2001 SCMR 1868).
This Court in the case of Sultan Ahmed referred supra held that the second order prescribing time for making up deficiency of Court-fees and findings, was passed without application of mind and ignorance of the orders passed earlier under which the time allowed had already expired and the conduct by making up a proper application. It has been observed that the plaint as not liable to be rejected under Order VII, Rule 11(d) CPC unless the Court had first made an order calling upon the plaintiffs to make up the deficiency in the Court-fees by specifying the amount thereof. In this case the Court-fee was determined by the trial Court and the plaintiff was directed to pay the same but he failed. As such this case is distinguishable with the case in hand. Similarly, the case of Shah Nawaz referred supra is not applicable on the case as it is on different facts and circumstances. The case law cited in the case of Mubarak Ahmad referred supra by the learned counsel for the respondents is clear on the point and controversy. It has been categorically observed in the case that once an opportunity to make good the deficiency in the Court-fees has been provided to the plaintiff and if he fails to discharge his legal obligation then he is not entitled to any relief. Moreover, plea of ignorance of law by plaintiff was also found without any justification. This Court in the case of Abdul Majid v. Muhammad Afzal Khokhar (1993 SCMR 1686) held that under Order VII, Rule 11, Court was to require plaintiff to correct valuation mentioned in the plaint and also direct plaintiff to make up the deficiency in Court-fee within a time to be fixed by the Court and on his failure to comply with the direction Court had to reject the plaint. This Court, in case of Assistant Commissioner and Land Acquisition Collector. Badin v. Haji Abdul Shakoor and others (1997 SCMR 919) held that under Section 149, Order VII, Rule 11 and Order XLI, Rule 1 CPC, where, however, petitioner was guilty of contumacy or he had acted in positive malafide manner in regard to deficient Court-fee, Court would decline to exercise discretion in his favour on that ground. Though after expiry of more than one month he paid deficit Court-fee as a matter of abundant caution, learned High Court was, thus, justified in concluding that petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend time.
Accordingly, we find no justification to interfere with the well-reasoned concurrent findings of the two Courts below. Resultantly, this appeal being devoid of any force is dismissed with no order as to costs.
(F.F.) Appeal dismissed.
PLJ 2007 SC 742
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan & Saiyed Saeed Ashhad, JJ.
JAWAD MIR MUHAMMADI and others--Appellants
versus
HAROON MIRZA and others--Respondents
C.A. No. 1436 of 1996, decided on 7.3.2007.
(On appeal from the judgment dated 29.3.1995 passed by High Court of Sindh, Karachi in Constitutional Petition No. D-1092 of 1991).
Karachi Development Authority Order, 1957--
----Arts. 40 (4), (5), (6) and 52-A (2) & (3)--Karachi Town Planning and Building Regulations, 1979, Regul. Nos. 20 & 25--Sindh Building Control Ordinance, 1979, S. 19 & Karachi Building Control Authority Act, 19--Constitution of Pakistan, 1973, Arts. 4, 14, 23, 199 & 185(3)--Change nature of plot--Residential to commercial--Permission for construction of multistoryed building--Approval was cancelled, but revised plan was granted--Violation of rights of easement, privacy and peaceful enjoyment--Deprivation of fresh air, sunlight and pollution free atmosphere--Questions of--Leave to appeal--Validity--Held: Changing the nature of the plot can be ordered by authority only after issuance of public notice for calling their objections to conversion and deciding same after providing opportunity of hearing--Provisions of--Appellants etc. had objected to conversion of the user of the plot from residential to commercial, and their views were considered; hence, the conversion of the nature of the plot in dispute could not be said to be contrary to law. [P. 757] A & B
Sindh Building Control Ordinance, 1979--
----S. 19--Karachi Town Planning & Building Regulations, 1979, Regul. Nos. 20 & 25--Karachi Development Authority Order, 1957, Ss. 40, 52-A(2) & (3)--Change of catagory--Conversion of residential and amenity plot into commercial--Administration of justice--Contention--Pronouncements would be applicable on all fours to the facts--Relief granted--Repelled--Legality--Concerned Authority had compounded the irregularities, and the builder paid composite fee for violating the regulations, and the irregularities relating to the mode of conversion of the nature of the plot, approval of the building plans and no objections from the Ministry of works were got duly regularised as they were of the nature which could be regularised.
[Pp. 757 & 758] D & E
Interpretation of Statute--
----Ordinance and Regulations did not bar the conversion of the nature of a residential plot to commercial or commercial cum residential--Conversion of the plot in dispute from residential to residential cum commercial used did not violate any provision of law. [P. 757] C
Constitution of Pakistan, 1973--
----Arts. 4, 14 & 23--Fundamental rights--Inconvenience, hardships and miseries--Privacy & easmentary rights--Violation thereof--Demolition of illegal and unauthorised floors of the building would not only result in violation of fundamental rights but also would result in their eviction from their properties and such act would cause untold miseries, hardships which would be faced by the appellants relative to infringement of their rights of privacy, light fresh air and clean atmosphere if this appeal was dismissed and respodnents were allowed to retain and enjoy the properties.
[P. 759] F
Principle of Natural Justice--
----Right of privacy, light, fresh air and pollution free environment--Duty bound--Demolition of illegal construction floors--Concerned authorities could be activated, rather they were duty bound to provide necessary infrastructure for increasing water supply, electricity gas and laying down sewerage lines of bigger dimensions to meet the demand of extra burden. [P. 760] G & H
(984) 1000 L.Q. R. 337; PLD 1980 SC 193 relied.
Constitution of Pakistan, 1973--
----Arts. 199 & 185(3)--Appellate jurisdiction--Constitutional petitions--Maintainability--Principle of laches--Delay in filing the Constitutional petition--Question of--Principle laches of several years could be overlooked having regard to facts of each case--Laches of several months might be fatal--Appellants for a period of 16 months would certainly lead to a presumption that they had not only agreed to the construction of three floors in dispute but had induced the builder and all other concerned persons that they had no objection to the construction--No irregularity or illegality was committed in dismissing the Constitutional petition--Appeal dismissed.
[Pp. 761, 762, 763 & 764] I, J, K, L & M
1999 SCMR 2883, disting.
(1767) 3 Bro. C.C. 639, Snell's Equity by John Mchgee ref.
Mr. M. Naeemur Rehman, ASC with Mr. M.S. Khattak, AOR for Appellants.
Ex parte for Respondents No. 1, 2, 3, 6, 7, 8, 12 & 14.
Raja Abdul Ghafoor, AOR for Respondent No. 4.
Nemo for Respondent No. 5.
Mr. Muhammad Sharif, ASC for Respondents No. 9, 10, 11 & 13.
Mr. Shaffaat Hussain, ASC for Intervenors.
Dates of hearing: 11 and 12.12.2006.
Judgment
Saiyed Saeed Ashhad, J.--This appeal with the leave of the Court assails the judgment of Sindh High Court, Karachi dated 29.3.1995 in Constitutional Petition No.D-1092 of 1991.
The appellants assailed the conversion of the nature of the plot, permission to construct multistoried building and approval of building plans. According to them, they were given assurance that construction intended to be raised on Plot No. 141-A would be Ground plus two stories but subsequently it transpired that construction to be raised on the plot was beyond two stories. Accordingly C.P No. D-77 of 1991 was filed challenging the construction of 3rd, 4th, 5th and 6th floors as the same were being raised in pursuance of an illegal building plan by the KBCA Respondent No. 2 in violation of the Ordinance of 1979 and the Karachi Town Planning and Building Regulations, (hereinafter referred to as the "Regulations") and also without approval from the Ministry of Works, Government of Pakistan. Prior to filing above constitutional petition the appellants and other residents of the locality made representations to the concerned authorities and on 14.8.1990 Respondent No. 3 cancelled the approval for construction of multistoried building which was subsequently recalled and approval of the revised plan for construction of ground and six stories was granted on 30.3.1992. Respondent No. 14 vide letter dated 22.8.1994 also granted permission for conversion of the user/nature of the disputed plot, which was required in accordance with the terms and conditions of the license/lease.
Respondents No. 6 to 13 were joined in the petition on their application as they claimed to have purchased apartments/flats in the multistoried building raised on Plot No. 141-A to safeguard and protect their rights in the property. It may be pointed out that some aggrieved persons earlier filed Constitutional Petition No. D-77 of 1991 and obtained an order of status quo but according to the petitioners therein the respondents continued with the construction work and completed the superstructure of Ground, Mezzanine plus five stories as a result of which the said petition had become inftractuous and the appellants had to file the above petition. This petition was dismissed by the Sindh High Court vide impugned judgment as it did not find any illegality or irregularity in raising the multistoried buildings on Plot No. 141-A and observed that the conversion of the nature of the plot, permission to construct multistoried building and approval of the building plan was done by the authorities enjoying powers to do so under the Ordinance, the Regulations and the provisions of law and further that Respondents No. 6 to 13 after having purchased shops/apartments/flats in the multistoried building had acquired fundamental right to hold and enjoy the proprietary rights as guaranteed under Articles 4 and 23 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the "Constitution") and in protecting or safeguarding the rights of easement, privacy and peaceful enjoyment of the appellants, the fundamental rights of Respondents No. 6 to 13 in respect of their flats could not be violated or infringed. Hence this appeal.
We have heard the arguments of Mr. Naeemur Rehman, ASC alongwith Mr. M.S. Khattak, AOR for the appellants, Mr. Muhammad Sharif who appeared on behalf of respondents 9, 10, 11 and 13. Raja Abdul Ghafoor appeared on behalf of Respondent No. 4. Mr. Shaffaat Hussain appeared on behalf of Respondent No. 5. None appeared on behalf of respondents 1, 2, 3, 6, 7, 8, 12 and 14 and the appeal was ordered to proceed exparte against them.
Mr. Naeemur Rehman vehemently assailed the judgment of the High Court and submitted that the same was in complete disregard and violation of the provisions of the Ordinance of 1979, the Regulations, and the Karachi Development Authority Order, 1957 (hereinafter referred to as the "KDA Order") as well as the principles of law relating to construction of multistoried buildings in Karachi as laid down by this Court as well as the Sindh High Court. Elaborating his arguments he advanced the following grounds on which he attacked the impugned judgment:
(i) that the construction of multistoried building on Plot No. 141-A violated the right of privacy of the appellants;
(ii) that the conversion of nature of the Plot No. 141-A from residential to commercial was in violation of the provisions of law as the same could have been allowed by Respondent No. 14 Ministry of Works, Environment and Urban Affairs, Government of Pakistan;
(iii) that admittedly the approval of the conversion of the nature of the plot was not granted by Respondent No. 14 till the construction of the multistoried buildings had been started and further that the same was not in violation of Articles 40(4) and 52-A (2) and (3) of the KDA Order as according to the above provision an order for conversion of the nature of the plot can be made only after inviting objection from the residents of locality through a public notice and deciding the same after providing opportunity to the residents which procedure was not observed;
(iv) that the permission to construct multistoried buildings consisting of ground plus mezzanine and five floors and approval of the building plan was in violation and contravention of law;
(v) that the High Court completely ignored the hardships, miseries and problems which would be faced by the residents of the locality by the construction of a multistoried building comprising of ground plus mezzanine and five floors consisting of shops, apartments/flats as it would create heavy burden on the existing water and sewerage lines, electricity and gas would infringe the right of privacy of the residents, would deprive them of fresh air, sun light, and pollution free atmosphere and would also create traffic congestion as a result of increase in the number of vehicles because a large number of persons would be occupying the shops and flats;
(vi) that the High Court erred in holding that the petition required decision of factual questions which could not be decided in constitutional jurisdiction as the same required recording of evidence; and
(vii) that the High Court fell in error in holding that the civil petition suffered from laches and was liable to be dismissed on this ground alone.
(viii) He concluded that in view of the above infirmities and irregularities the judgment of the High Court could not be sustained and ought to be set aside. He further submitted that the multistoried building had been constructed in disregard and violation of law and according to the pronouncement made by this Court in several cases a multistoried building constructed in violation of law could be demolished. To substantiate his contentions he relied on the judgments of this Court in case of Haji Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and others (1999 SCMR 2883).
M/S. Muhammad Sharif and Shaffaat Hussain, learned ASCs appearing on behalf of some of the respondents controverted the arguments of Mr. Naeemur Rehman and supported the judgment of Sindh High Court. They submitted that it did not commit any illegality or irregularity in holding that after permission/approval by the competent authorities relative to conversion of the nature of the plot, permission for construction of multistoried building and approval of the building plan though belatedly, the building could not be said to have been constructed illegally and in flagrant violation of the law or that it violated any fundamental or vested rights of the appellants. With regard to the order of conversion of the user of Plot No. 141-A from residential to commercial-cum-residential it was submitted that no illegality was committed nor any provision of the Ordinance was violated as Respondent No. 3 was vested with the powers to allow/permit conversion, subject, of course to the approval of Respondent No. 14, Ministry of Works which in this case was duly conveyed. With regard to the contention that heavy burden will be caused on the water and sewerage lines and there would be shortage of gas, electricity and water in the locality, it was submitted by them that appropriate remedy was for the concerned authorities to take measures to provide for laying bigger and larger pipelines for supplying water and for disposal of sewerage as well as providing more electricity and gas and not by demolishing the floors alleged to have been illegally constructed which was not the correct factual situation as all the concerned Authorities had approved the construction of the high rise building after observing and complying with the requisite provision of law relating to conversion and construction of high rise buildings. They laid great emphasis on the fact that Respondents No. 6 to 13 after purchasing the shops/ apartments/flats in the multistoried buildings have become owners thereof and their rights to own and enjoy their properties are guaranteed under Articles 4 and 23 of the Constitution which envisaged that no person would be deprived of his property save in accordance with law. To substantiate their above contentions M/s. Muhammad Sharif and Shaffaat Hussain placed reliance on the ratio decidendi in the cases of Multi Lines Associates v. Ardeshir Cowasjee (PLD 1995 SC 423) and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and others (1999 SCMR 2883).
We have considered the respective arguments advanced by learned counsel for the parties, have perused the record, the relevant law applicable to the facts and circumstances of the case and the case law relied upon by the learned counsel for the parties in support of their arguments.
The High Court in dismissing the constitutional petition filed by the appellants had relied on the judgment of this Court in the case of Multi Lines Associates v. Ardeshir Cowasjee (PLD 1995 SC 423) wherein this Court pronounced that where a builder in constructing a high rise building had committed breach of law/regulations and irregularities which were subsequently compounded by the concerned authorities on payment of composition fee then such violation/irregularities would stand regularized and the building would not be liable to be demolished. One of the grievances of the appellants is that the High Court erred in placing reliance on the above judgment and failed to take into consideration an earlier judgment of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) wherein this Court held that breach of law/regulation and irregularities committed in the construction of high rise building even if compounded would not wipe out the said violation/irregularities and the building so constructed would be liable to be demolished.
Leave to appeal was granted in this case on 24.4.1996. From perusal of the leave grant order it transpires that leave was granted primarily to consider and reconcile the two conflicting judgments of this Court delivered by Benches of equal strength in almost similar facts and circumstances. The first judgment is in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512). The other case is that of Multi Lines Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423). In both the above cited cases the issues involved were: with regard to the conversion of the user/nature of the plot; approval/sanction by the Karachi Development Authority for conversion and change in the user of the plot; permission/approval for construction of high rise buildings, violation of the rights of privacy, air, sun light, pollution free atmosphere of the residents of the locality; and extra burden on the utilities available in the locality, such as, electricity, gas and water, sewerage on account of construction of large number of flats/apartments in place of a single residential house as well as congestion on the adjoining roads/streets due to the increase in the number of vehicles.
For resolving the disputes which require determination in this case it is necessary to examine in depth the observations and the pronouncements made by this Court in the cases of Abdul Razak (PLD 1994 SC 512) and Multi Lines Associates (PLD 1995 SC 423) and thereafter proceed to examine the case of Ardeshir Cowasjee and 10 others Vs. Karachi Building Control Authority and others (1999 SCMR 2883) to apprise as to how this Court reconciled the conflicting pronouncements. For this purpose it is found necessary to reproduce the relevant passages from all the three afore cited cases. The relevant observations/pronouncements made in the case of Abdul Razak (PLD 1994 SC 512) are as under:--
We are inclined to concur with the above conclusion of the High Court. We may observe that the discretion given to the Authority under Section 19 of the Ordinance or under Regulations Nos. 20 and 25 is subject to the well-settled principle of legal jurisprudence that discretion is to be exercised fairly and reasonably and not at the cost of prejudice of third parties.
We may also point out that there is marked distinction between a criminal liability under Section 19 of the Ordinance and a civil liability under the Regulations to rectify irregularity/breaches. The Authority may compound criminal liability but it cannot regularize a breach of the Regulations which is of the nature which has changed the complexion or character of the structure, which was originally intended to be erected or of the plot. In such cases, it can be said that the Authority has no discretion in fact and law. The plot in dispute was intended to have residential bungalow, it was not earmarked as flats site. It is a matter of common knowledge that in the various K.D.A. schemes the plots are categorized as residential plots, flats sites, commercial plots and industrial plots.
19-A. The Authority though has allegedly regularized the present construction through its letter dated 12.2.1991 but has not stated any reason for doing so. It has not adverted to the question, whether the irregularities/breaches were of the nature, which could have been regularized. The High Court in the judgment under appeal has highlighted that the breaches of the Regulations were such which are prejudicial to safe and hygienic conditions of living for the citizens and detrimental to health. In this view of the malter, the above regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion of character of the original proposed construction nor it adversely affects third parties rights/ interests.
The relevant extracts from the case of Multi Lines Associates (PLD 1995 SC 423) are as under:--
In the instant case, there appears to be no violation of the Regulations when the builders have got their building plan regularized after composition and have paid requisite fees for additional floors and have obtained no objection certificate. Not only this but counsel for K.B.C.A. and K.D.A. appearing before the High Court fully supported the case of the builders and made no objection. They took the stand that the plan was approved and composition fees had been paid.
It is a well-known and admitted fact that in the city of Karachi there is congestion on account of over-population and in such situation there is no other way out except construction of high-rise buildings are already in existence in the close vicinity of the buildings in dispute. It is imperative upon the Court while exercising jurisdiction in a Constitutional petition to see that discretion is to be exercised in such a way that mischief and chaos is prevented particularly when construction of high-rise building is in public interest and the construction of building in dispute is not the first building in the area in the neighbourhood of which there are no high-rise buildings already constructed. If the writ petitioners did not want constructions of high-rise buildings in Freer Town Quarters or in the matter in Clifton area on the ground that it was purely residential area, then voice should have been raised by them against construction of high-rise buildings at the earliest opportunity long time ago when the scheme was prepared allowing such facility. Public opinion could have been moulded up by making it joint cause by writing articles in the print media to leave alone particular area of the city to remain forever residential area with houses and bungalows built prohibiting construction of high-rise building and flats of such type. Since it was not done at the proper stage, now it is too late in the day to raise such objection against construction of one particular building when it stands side by side with some other tall buildings. In such circumstances, the High Court, should not have granted relief of demolition of such construction which was not in a violation of the Regulations particularly when counsel for K.B.C.A. supported the claim of the builders. For facts and reason stated above, we set aside the impugned judgment of the High Court and allow the appeal.
After the leave grant order in this case, the judgments in the cases of Abdul Razak (PLD 1994 SC 512) and Multi Lines Associates (PLD 1995 SC 423) were minutely examined by a Bench of five Judges of this Court in the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and others (1999 SCMR 2883) and following pronouncements/observations were made:--
The perusal of the above quoted extracts from the above judgments indicates that in the case of Abdul Razak, this Court held that the power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity of the nature which does not change the complexion or character of the original proposed construction nor it adversely affects third parties rights/interest. It has been further held that the paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities and that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. It has been further held that deviation from the planned scheme will naturally result in discomfort and inconvenience to others. It has also been held that framing of a housing scheme does not mean simpliciter, leveling of land and carving out of plots, but it also involves working out approximate requirement of water, electricity, gas, sewerage lines, streets and roads, etc. And if a housing scheme is framed on the assumption that it will have residential units 1+1 but factually the allottees of the plots are allowed to raise multi storeyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. It has also been held that to reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure adherence to the Regulations. However, it has also been clarified that it may not be understood that once a scheme is framed, no alternations can be made. Alternations in a scheme can be made for the good of the people at large, but not for the benefit of an individual for favouring him at the cost of other people.
On the contrary, in the judgment in the case of Multi Line Associates (supra) somewhat different view has been taken. It has been held that if the builders have got their building plan regularize after composition and have paid requisite fees for additional floors and have obtained no objections certificate there is no violation of the Regulations. It has been further held that in the city of Karachi there is congestion on account of over-population and in such situation there is no other way out except construction of high-rise buildings. Such high-rise buildings are already in existence in the close vicinity of the building in dispute. It has also held that it is imperative upon the Court while exercising jurisdiction in a Constitutional Petition to see that discretion is to be exercised in such a way that mischief and chaos is prevented particularly when construction of high rise building is in public interest and the construction of the building in dispute is not the first building in the area in the neighbourhood of which there are no high-rise buildings already constructed.
After examining the above observations/pronouncements in the cases of Abdul Razak (PLD 1994 SC 512) and Multi Line Associates (PLD 1995 SC 423) this Court made the following pronouncements:
The above conclusion recorded in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) (supra) runs contrary to what has been held in the judgment of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) highlighted hereinabove. With due deference, we are unable to subscribe to the above view found favour in the case of Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423). The legal position enunciated, inter alia, in the abovequoted extracts from the judgment in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) is in consonance with the provisions of the Karachi Development Authority Order, 1957, Sindh Building Control Ordinance, 1979, and the Building Regulations, 1979. The power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature, which does not change the complexion or character of the originally proposed construction. The Government or the Authority under the Ordinance does not enjoy unbridled or unfettered power to compound each and every breach of the Regulations. The Regulations should be applied for the benefit of the public and not for favouring an individual. Simpliciter the factum that on account of tremendous increase in the population in Karachi the situation demands raising of high rise buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus-one and allowing the raising or high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc.
We may observe that even when the conversation of a residential plot on the main roads into a commercial plot is warranted on account of change in the situation, the legal requirement of public notice, inter alia, as envisaged by Article 40 of the K.D.A. Order (if applicable) and para.3 of Schedule `D' to the Regulations is to be complied with. Secondly, simpliciter conversation of a residential plot into commercial does warrant granting of permission for a high rise building having 17/18 floors, but the Government or the Authority is under obligation to keep in view the quantum of water, electricity, gas sewerage lines, streets and roads etc., available in the locality involved, and efforts should be made to allow minimum floors, so that the same may cause less inconvenience and discomfort to the inhabitants of the locality involved.
(i) that plot designated as an amenity plot and reserved for a public benefit/facility such as hospital, school, college, library, park, play ground, community centre, etc. the nature or user thereof can never be converted for residential or commercial use;
(ii) that a residential plot can be converted into a commercial or commercial-cum-residential in accordance with the provisions of KDA Order, Ordinance and the Regulations as there is no specific bar of such conversion in all the said laws /regulations;
(iii) that there is no impediment in the construction of high rise building on a plot after change/conversion of its user from residential to commercial or residential-cum-commercial provided that the provisions relating to the conversion of plot and commercialization contained in the laws/ regulations referred to hereinabove are complied with and the concerned authorities undertake to provide new infra-structure for provision of enhanced water supply, electricity, gas, provide better sewerage system, roads and ensure enjoyment of peaceful life to the residents of the locality;
(iv) that construction of a high rise building not strictly in accordance with the provisions of law and suffering from irregularities can be regularized by compounding the irregularities and payment of composite fee provided that there is no violation of the laws/regulations and further that the violations are of the nature which can be regularized.
In view of the above observations this Court declared the judgment in the case of Multi Lines Associates (PLD 1995 SC 423,) to the extent of inconsistency with the judgment in the case of Abdul Razak (PLD 1994 SC 512) as not reflecting the correct legal position and over ruled the same. In this view of the matter the question of reconciliation of the two conflicting judgments no longer requires to be considered.
The question requiring determination is the effect of the pronouncements made by this Court in the case of Ardeshir Cowasjee and 10 others Vs. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883) on the case in hand and whether in view of the pronouncements whether the building is dispute would appear to have been constructed in violation of the provision of KDA Order, Ordinance of 1979, and the Regulations.
Before determining the fact of judgment of Ardeshir Cowasjee (1999 SCMR 2883) it will be appropriate to take into consideration the contention of Mr. Naeem-ur-Rehman that the entire process of the conversion of the plot in dispute from residential to commercial-cum-residential by Respondent No. 2 and the approval/consent to the said conversion by Respondent No. 14 is in contravention of the law, thus illegal and since the very conversion was illegal, no activity in the nature of construction of high rise building could be undertaken of the plot. Mr. Naeem-ur-Rehman for his contention had placed reliance on Article 40(4)(5)&(6) and Article 52-A (2) and (3) of KDA Order great emphasis had been laid that question of conversion of the user of the plot and approval/consent thereof accorded by Respondent No. 14, it will be useful to reproduce the aforesaid Articles:--
Article 40(4)(5)(6)
(4) If any person desires to use any land for any purpose other than that laid down in the Zonal Plan Scheme notified under clause (3), he may apply to the authority for permission to do so and the Authority may order a public hearing and give notice to all persons it deems affected.
(5) If the Authority refuses permission to any person, such may within thirty days of the Authority's refusal, move the Provincial Government for a revision of the case.
(6) The decision of the Provincial Government on any such revision shall be final.
52A.(1).........................
(2) The Authority or the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in sub-section (1), apply to the Commissioner for conversion of such plot to any other purpose.
(3) The commissioner shall, on receipt of an application under sub-section (2), invite objections from the general public through a notice published in one English and vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice.
From perusal of the above two Articles conversion of the user/nature of the plot can be ordered by the authorities only after issuance of a public notice calling upon the residents of the locality to submit their objections to the said conversion and deciding the same after providing them opportunity of hearing. It is a mandatory requirement and order passed in violation of mandatory requirement would not be in consonance with law. However, from the material on record it stands established that after the residents of the area had come to know of the construction of the high rise building on the plot in question they had objected to the same before the relevant authorities and in pursuance of their agitation/objection, permission/approval for construction of the high rise building was cancelled. Thereafter a revised plan, which included 4th, 5th and 6th floors, was submitted and was approved. As regard the contention that on the objections of the appellants and the residents, Respondent No. 14 did not grant permission/sanction to the conversion of the nature of the plot it is to be noted that Respondent No. 14 did not at any stage refuse the same. The matter remained under consideration and on 22.8.1994 Respondent No. 14 granted permission/sanction for conversion of the user of the disputed plot. From the above acts it is to be inferred that though the provisions of Articles 40 and 52-A(2) & (3) relative to issuance of public notice were not strictly complied with but there was substantial compliance thereof as the appellants and other concerned had objected to the same and their views were considered. In the circumstances the orders of Respondents 2 and 14 relating to conversion of the nature of the plot in dispute cannot be said to be contrary to law.
It was submitted by Mr. Naeem-ur-Rehman that the facts in the case in hand are identical to the case of Ardeshir Cowasjee (supra) and therefore the pronouncements made therein would be applicable on all fours to the facts of this case as a result of which the appeal warranted to be allowed, the judgment of the High Court may be set aside, the reliefs prayed by the appellants in their constitutional petition be granted, and the floors constructed in violation may be ordered to be demolished.
From a perusal of the judgment in the case of Ardeshir Cowasjee (1999 SCMR 2883) and the material on record of this case it cannot be said that the facts and circumstances of the case in hand are similar and identical to the case of Ardeshir Cowasjee (1999 SCMR 2883). In the cited case the plot in dispute was an amenity plot whereas in the present case the plot in dispute was a residential plot. The Ordinance and the Regulations do not bar conversion of the nature of a residential plot to commercial or commercial-cum-residential. Therefore, conversion of the plot in dispute from residential to residential-cum-commercial use did not violate any provision of law and cannot be said have been in violation of law or the pronouncements of this Court.
Another circumstance which distinguishes this case from the case of Ardeshir Cowasjee is that in that case the building/erection sought to be constructed was in its initial stage when the residents of the locality had objected to the raising of multistoried building and the construction had been stayed. In the present case the construction upto sixth floor was completed, the flats/apartments constructed therein were sold to third parties including Respondents 6 to 13 who acquired proprietary rights in the said flats/apartments. It is on record that all the necessary approvals/sanctions and no objections as required under the KDA Order, the Ordinance of 1979 and the Regulations were obtained by the Builders for construction of the existing multistoried building. The concerned Authority had compounded the irregularities and the Builder paid composite fee for violating the Regulations and the irregularities which were found in the various steps relating to the mode of conversion of the nature of the plot, approval of the building plans and no objections form the Ministry of Works were got duly regularized as they were of the nature which could be regularized.
Respondents 6 to 13 after having purchased the properties in pursuance of the advertisement appearing in the newspaper which according to Mr. Muhammad Sharif contained specific information that the building was being constructed after all the necessary approval, sanctions/no objections of all the concerned authorities had been obtained, are bona fide purchasers for value and have not only acquired vested proprietary rights but have also acquired fundamental rights guaranteed under Articles 4 and 23 of the Constitution which confer a right on every citizen of Pakistan to acquire, hold and dispose of the property in any part of Pakistan. According to these Articles no body can be deprived of his rights in the property without adhering to various provisions of law and no person can be deprived of his fundamental right to hold property save in accordance with law.
The situation which now emerges is that there is question of safeguarding and protecting the fundamental rights of the Appellants on the one hand and of Respondents Nos. 6 to 13 on the other hand. The grievance of the appellants is that by construction of the high-rise building in question their right of privacy of home as guaranteed under Article 14 of the Constitution has been violated. In deciding this issue the fundamental rights of both the parties will have to be given due consideration and a balance will have to be struck in deciding the issue so that the fundamental rights of the warring parties are not violated. In such a situation the inconvenience, hardships and miseries to be caused to the respective parties will have to be weighed. In case this appeal is allowed the decision in the constitutional petition filed by the appellants would be in their favour resulting in granting the reliefs prayed for by them in their constitutional petition. Amongst other reliefs the appellants had sought demolition of the fourth, fifth and sixth floors which are alleged to have been constructed illegally without existence of valid plan and permission from the concerned authorities. Relative to the contention that construction of fourth to sixth floor had been carried out illegally without approval from the Karachi Building Control Authority or permission from Respondent No. 14, it is noted, as already observed above, that originally approval was given for construction of ground plus two floors but subsequently the building plan was revised/modified and it was to consist of ground plus six floors. This plan was duly approved and construction had been made in pursuance thereof. Demolition of the floors said to have been constructed illegally in violation of the original building plan would result in eviction of the owners of the flats/apartments constructed on such portion of the building and will amount to rendering them shelterless. It was submitted by Mr. Muhammad Sharif that the respondents have spent their life time savings on purchasing the flats/apartments in the building in question and have been residing therein for the last about 12 years, therefore, in such circumstances demolition of the alleged illegal and unauthorized floors of the building would not only result in violation of fundamental rights of the Respondents 6 to 13 but would result in their eviction from their properties rendering them shelter-less without a place to live and virtually throwing them in the open. Such act would cause untold miseries, hardships and difficulties to them which would be much more severe, hazardous and harsh than the sufferance and hardship which would be allegedly faced by the appellants relative to infringement of their rights of privacy, light, fresh air and clean atmosphere if this appeal is dismissed and Respondents Nos. 6 to 13 are allowed to retain and enjoy the properties.
The ground of hardship has always been given due consideration and importance by the Courts of law while granting a relief and they have even refused to grant a relief prayed for if the same would cause unnecessary hardship to either of the parties or to a third party. In this context reference may be made to the case of Patel v. Ali (1984) 1000 L.Q.R. 337) where the Court refused to order specific performance of the contract on the ground of hardship though all the requisite conditions for allowing specific performance were made out. The facts of case are that the vendor and her husband were co-owners of the house which they contracted to sell in 1979. The husband's bankruptcy caused a long delay in completion, for which neither the vendor nor the purchaser was to blame. After the contract the vendor got bone cancer and had a leg amputated. She later gave birth to her second and third children. The purchaser obtained an order for specific performance, against which the vendor appealed on the ground of hardship. She spoke little English, and relied on help from nearby friends and relatives, hence it would be a hardship to leave the house and move away.
Goulding J held "that although a person of full capacity took the risk of hardship, the Court in a proper case could refuse specific performance on the ground of hardship subsequent to the contract, even if not caused by the plaintiff and not related to the subject-matter. On the facts, there would be hardship amounting to injustice, therefore, the appropriate remedy was damages".
As regards the right of privacy it is pertinent to note that this Court in the case of Haji Fazal-i-Raziq Vs. Syed Zaman Shah and others (PLD 1980 SC 193) held that likelihood of any person having opportunity of over looking the property of the other from the window of the upper storey of his property would not be a sufficient ground to hold that there was interference in the enjoyment of the property or it would amount to interference in his privacy or easementary rights.
As regards the deprivation of the rights to light, fresh air and clean environment, it is noted that infringement of such rights can be established only by producing satisfactory evidence and not merely on the statements in the pleadings of the affected party. There is no material on record to prove the allegation of the appellants relating to deprivation or violation of the above easementary rights by construction of the alleged illegal floors. It is their unfounded apprehension based on subjective and abstract considerations. The hardships, inconvenience, or discomfort likely to result by the building in question must be more than "mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material". The appellants have failed to prove infringement of their rights of privacy, light, fresh air and pollution free environment as there is no material to substantiate their infringement.
So far as the question of adverse effect due to extra burden on the utilities is concerned it is suffice to say that the Respondent No. 3/concerned Authorities are duty bound to provide adequate relief by providing necessary infrastructure for increasing water supply, electricity, gas and laying down sewerage lines of bigger dimensions to meet the demand of extra burden and they can be activated to perform their duties. This appears to be appropriate and viable solution rather than if demolition of alleged unauthorized/illegal floor which have been regularized in accordance with law.
The next issue which requires consideration is whether Constitutional petition filed by the appellants was hit by laches and was liable to be dismissed on this ground. The High Court in its judgment observed that there was a delay of 16 months in filing the constitutional petition. Mr. Naeem-ur-Rehman strenuously contended that a constitutional petition involving violation and infringement of fundamental rights of the citizens could not be thrown out on the ground of delay in filing the same and heavily relied on the observations of this Court in the case of Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) (1999 SCMR 2883). From a perusal of the judgment in the cited case it is observed that this Court while dilating on the question of laches held that laches per se is not a bar to the constitutional jurisdiction and a question of delay in filing would have to be examined with reference to the facts of each case. It was finally concluded that laches of several years could be overlooked if the facts of the case and dictates of justice so warranted or laches of few months may be fatal. It is a settled proposition "that the delay defeats equities or equity aids the vigilant and not the indolent". Relying on the above maxim this Court as well as the High Courts of the Country have refused to come to the aid of a party who had not been diligent, vigilant and acted in a prudent manner. It will be appropriate to reproduce the words of Lord Camden L.C. while dealing with the issue of delay and laches from the judgment of Smith v. Clay (1767) 3 Bro. C.C. 639n. at 640n observed as under:
A Court of equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing.
Now the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these lapse of time and delay are most material.
Laches essentially consists of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim. Delay will accordingly be fatal to a claim for equitable relief if it is evidence of an agreement by the claimant of abandon or release his right, or if it has resulted in the destruction or loss of evidence by which the claim might have been rebutted, or if the claim is to a business (for the claimant should not be allowed to wait and see if it prospers), or if the claimant has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. But apart from such circumstances delay will be immaterial. There can be no abandonment of a right without full knowledge, legal capacity and free will, so that ignorance or disability or undue influence will be a satisfactory explanation of delay.
The appellants being fully aware of raising of construction of the three floors in dispute by the Builders did not immediately approach the High Court by way of constitutional petition and allowed a period of 16 months to lapse before approaching the High Court during which period the construction was continuously in progress and was completed in accordance with the revised plan. The inaction of the appellants for a period of 16 months would certainly lead to a presumption that they had not only agreed to the construction of the three floors in dispute but had induced the builder and all other persons concerned that they had no objection to the construction thereof. In the case of Ardeshir Cowasjee (1999 SCMR 2883) the facts and circumstances did not lead to a presumption either that the aggrieved persons had surrendered their rights which according to them were violated by the construction of the high rise buildings or given an inducement or understanding to the builders and all other concerned persons that they had accepted the raising of the high rise buildings as a result of which this Court found that the petition was not hit by laches. However, as enunciated above the facts in the case in hand are totally different and the delay of 16 months could not be over looked or ignored in the absence of satisfactory and plausible explanation.
It was lastly submitted by Mr. Muhammad Sharif that the Courts of law are meant to safeguard and protect the right of the people from infringement or violation either by the public functionaries or by other citizens and they themselves could not act in a manner which would amount not only to violation and infringement of fundamental rights but also result in hardships, injustice and inconvenience. He further submitted that demolition of fourth to sixth floors if allowed, would virtually bring Respondent No. 6 to 13 and that this Court being the highest Court of the country would refrain from passing an order which would not only result in depriving Respondents 6 to 13 of their fundamental rights to hold and enjoy their properties but will also make their lives miserable, will deprive them of the right to enjoy their dignity and they would be forced to live without a roof.
This Court in a large number of cases had pronounced that no party should be made to suffer on account of the act of the public functionaries or of a Court. In the case of Shireen vs. Fazal Muhammad (1995 SCMR 584) this Court while dilating upon the above proposition made the following observations:--
"All public authorities including the judicial functionaries while doing an act enjoined by law or merely empowered to do it must not do it improperly. An action may lie against a public authority for misfeasance or non-feasance but for the sake of safe administration of justice and good sense no action lies for the breach of duty when the duty to perform is judicial or quasi-judicial. There may be a variety of reasons for omission or failure in performing such duty or exercising power with reasonable dispatch such as delaying tactics of the parties to the action, multiplicity of pending cases in the Court or intricacies of questions of law and facts raised before it.
One of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors and when the expression "the act of the Court", is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole form the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case".
Similar observations were made by this Court in the case of Fateh Khan v. Boze Mir (PLD 1991 S.C. 782).
To sum up it may be observed that the pronouncement made by this Court in the case of Ardeshir Cowasjee (1999 SCMR 2883) would not be applicable to the facts and circumstances of this case and relying upon the same an order for demolition of the alleged unauthorized OR illegal construction cannot be ordered. As a matter of fact the pronouncement made by this Court support the case of Respondents Nos. 6 to 13. Such observations which can be said to be support or beneficial to Respondents 1 and 6 to 13 and on which the appellant may not be able to succeed are contained in Paragraph 15 of the judgment. According to the contents of this paragraph the principle propounded by this Court can be summarized as under--
"that a residential plot can be converted into a commercial plot and permission for construction of high rise building can be given provided that all the requirements of law relating to the
conversion of the nature of the plot, approval of building plan for raising a high rise building in accordance with law are complied with; and secondly that the concerned authorities undertake to provide proper and better facilities for consumption of water, electricity, gas, sewerage connection and other allied facilities. It is matter of record that approval, sanction and permission by the concerned authorities under the Ordinance and the Regulations were made and building in question has been constructed, third parties interests have been created in favour Respondents 6 to 13 who have acquired proprietary rights are residing therein alongwith their families for the last 12 years. These facts were not in existence in the case of Ardeshir Cowasjee (1999 SCMR 2883) and, therefore, the pronouncements made therein would have no application to this case but will be applicable only to the facts and circumstances the cited.
(M.A.) Appeal dismissed.
PLJ 2007 SC 764
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar & Ghulam Rabbani, JJ.
MUHAMMAD BAKHSH--Appellant
versus
Mst. GHULAM FATIMA (deceased) through L.Rs and others--Respondents
C.A. No. 1897 of 2001, decided on 4.4.2007.
(On appeal from judgments dated 27.11.1998 of the Lahore High Court, Multan Bench, passed in W.P. No. 686 of 1975).
Co-operative Society Act, 1925 (VII of 1925)--
----S. 27--Bye Laws of Society--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Entitlement of proprietary rights--Muslim Personal law of inheritance--State land was allotted who was member of Co-operative Farming Society--Predecessor in interest of respondents--Eligible for grant of proprietary rights--Interest and rights in land in-question stood devolved upon his legal heirs under the Muslim Personal Law of inheritance--Held: Nomination of the appellant would not by itself deprive his legal heirs to inherit the estate of deceased--Provisions of S. 27 of the Co-operative Society Act, 1925 and bye laws of the Society would not be construed so as to exclude the application of Muslim Personal Law of Inheritance--Appeal was dismissed. [P. 766] A
Mr. Ehsan-ul-Haq Ch., ASC and Mr. Gul Zarin Kiani, ASC for Appellant.
Syed Asghar Hussain Sabzwari, ASC for Respondents No. 1 to 4.
Raja Saeed Akram, A.A.G., Punjab for Respondents No. 5, 6 and 8).
Date of hearing: 4.4.2007.
Judgment
Faqir Muhammad Khokhar, J.--This appeal, by leave of the Court, is directed against judgment dated 27.11.1998, passed by a learned Single Judge of the Lahore High Court, Multan Bench, whereby Writ Petition No. 686 of 1975 of late Mst. Ghulam Fatima and Respondents No. 2 to 4 was allowed. Consequently, the orders dated 20.2.1975, 16.7.1973, 1.3.1975 and 23.7.1974, respectively passed by the Board of Revenue, Punjab, District Collector, Additional Commissioner, and Assistant Collector-II Multan, were declared to be without lawful authority and of no legal effect while upholding the order dated 24.7.1971, passed by the Additional Commissioner, Multan Division.
One Faiz Bakhsh, predecessor-in-interest of Respondents No. 1 to 4 and 7, being a Member of Co-operative Farming Society of Chak No. 4 Faiz, Tehsil and District Multan, was allotted by the society the State land in dispute measuring 100 kanals in the said Chak. The Colony Assistant/Collector, Multan, vide order dated 24.4.1965, declared him eligible to acquire proprietary rights of the land. He nominated his real son Bashir Ahmed as his successor, who passed away. Thereafter, he nominated the appellant, who was the son of his real brother Noor Muhammad, the Respondent No. 7. The original allottee Faiz Bakhsh passed away on 20.1.1967. He was survived by a widow late Mst. Ghulam Fatima and three daughters, the Respondents No. 2 to 4. An inheritance Mutation No. 39 dated 24.12.1971 of the land in dispute of Faiz Bakhsh deceased was attested in favour of his legal heirs i.e his widow late Mst. Ghulam Fatima, his daughters, the Respondents No. 2 to 4 and his brother Noor Muhammad, the Respondent No. 7. The appeal of the appellant there-against was allowed by the Assistant Commissioner/Collector on 25.3.1971. The review petition of the Respondents No. 2 to 4 and late Mst. Ghulam Fatima was also rejected on 13.5.1971. The Additional Commissioner (Revenue), Multan Division, accepted their revision petition on 24.7.1971 and inheritance Mutation No. 39 dated 24.12.1971 in their favour was restored. However, a Member, Board of Revenue, Punjab, allowed the revision petition of the appellant vide order dated 20.2.1975 in the light of the bye-laws of the Co-operative Society. Therefore, the legal heirs of late Faiz Bakhsh i.e Mst. Ghulam Fatima and Respondents No. 2 to 4 filed Writ Petition No. 686 of 1975 which was allowed by a learned Single Judge of the Lahore High Court, Multan Bench, vide impugned judgment dated 27.11.1998.
The learned counsel for the appellant submitted that the case was required to be decided on the basis of the nomination of the appellant made by late Faiz Bakhsh in terms of Section 27 of Co-operative Societies Act, 1925 and the bye-laws of the society. The provisions of Section 19-A of the Colonization of the Government Lands (Punjab) Act, 1912, providing for devolution of tenancy of a deceased tenant in accordance with Muslim Personal Law (Shariat) had no application to the present case as late Faiz Bakhsh was not a tenant of the Government as defined by Section 3 of the Act but he was a member of a Co-operative Society. Reference was made to the case of Dr. Muhammad Aslam Sial versus Board of Revenue, Punjab and 2 others (2004 CLC 108) and also to Clauses 7, 8, 10, 15 and 45 of the byelaws of the society. It was further contended that the appellant was rightly conferred proprietary rights of the land vide title deed dated 2.4.1975 executed and registered by the Collector. The position of a Member of the society, who was given agricultural land for cultivation, was merely that of a sub-tenant of the society.
On the other hand, the learned counsel for the contesting respondents argued that for all intents and purposes, late Faiz Bakhsh was treated to be a tenant of the Government land. Therefore, inheritance Mutation No. 39 was justifiably attested in favour of his legal heirs as per law laid down by this Court in the cases of Mst. Amtul Habib and others versus Mst. Musarrat Parveen and others (PLD 1974 SC 185), Fazal Shah versus Muhammad Din and others (1990 SCMR 868), Manzoor Ahmad versus Mst. Salman Bibi and others (1998 SCMR 388) and Mst. Aisha and 23 others versus Member (Colonies) Board of Revenue and 6 others (Civil Appeal No. 139 of 1987 decided by this Court on 21.11.1990).
We have heard the learned counsel at length and have also perused the available record. We find that late Faiz Bakhsh had already been found by the authorities as eligible for grant of proprietary rights when he passed away. Therefore, his interest and rights in the land in dispute stood devolved upon his legal heirs under the muslim personal law of inheritance notwithstanding anything contained in the bye-laws of the co-operative society. The nomination of the appellant by late Faiz Bakhsh would not by itself deprive his legal heirs to inherit the estate of the deceased. The provisions of Section 27 of the Co-operative Societies Act, 1925 and the bye-laws of the society would not be construed so as to exclude the application of Muslim Personal Law of inheritance. A some-what similar view was taken in the cases of Mst. Amtul Habib, Fazal Shah, Manzoor Ahmad and Mst. Aisha and 23 others (supra). Needless to observe that the bye-laws of the Co-operative Society are meant for the purpose of internal management which do not adversely affect the vested rights of the third party. Reference may usefully be made to the case of Co-operative Central Bank Ltd. and others versus Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others (AIR 1970 SC 245). In our view the impugned judgment of the High Court is just and fair to which no exception can be taken.
For the foregoing reasons, we do not find any merit in this appeal which is dismissed leaving the parties to bear their own cots.
(R.A.) Appeal dismissed.
PLJ 2007 SC 767
[Appellate Jurisdiction]
Present: Javed Iqbal & Abdul Hameed Dogar, JJ.
ABDUL AZIZ--Petitioner
versus
SECRETARY, MINISTRY OF INTERIOR & NARCOTICS CONTROL, ISLAMABAD and another--Respondents
C.P. No. 2399 of 2004, decided on 11.12.2006.
(On appeal from the order dated 24.9.2004 of the Federal Service Tribunal, Islamabad, in Appeal No. 798(R)(CS)/2002).
Government Servants (Conduct) Rules, 1964--
----R. 10--Service Tribunals Act, 1973--S. 4--Constitution of Pakistan, 1973--Art. 212(3)--Leave to appeal--Civil servant--Dismissal from service--Money lending on interest basis--Inquiry initiated--Recommendation--Major penalties prescribed in Removal from Service (Special Powers) Ordinance, 2000 for misconduct be imposed on the civil servant--Tribunal was dismissed the appeal owning to involve in the interest bearing lending business--Violation of--Bar for civil servants--Department had become hostile and biased towards him and consequently out of the malice and ill-will the department succeeded in initiating the departmental proceedings which culminated into his dismissed from service--Held: Civil servant was not beneficiary and the Tribunal while recording judgment against him did not consider all these aspects of the matter and merely a person who stood surety for taking loan by someone did not constitute an offence of misconduct--Tribunal had not justified in upholding the punishment imposed by the department--Leave to appeal was accepted with direction to reinstate the civil servant with all back benefits. [Pp. 768 & 770] A, B & C
Dr. Babar Awan, ASC & Mr. Ejaz Muhammad Khan, AOR for the Petitioner.
Raja Muhammad Irshad, Dy. A.G. Col. Akhtar Abbas, Joint Director ANF & Mr. Mukhtar Awan, DS, ANF for Respondents.
Date of hearing: 11.12.2006.
Order
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 24.9.2004 of the Federal Service Tribunal, Islamabad, (hereinafter referred to as `the Tribunal'), whereby Appeal No. 798 (R)CS of 2002 filed by him was dismissed.
Briefly, stated the facts giving rise to the filing of instant petition are that petitioner on 15.8.1988 joined Pakistan Narcotics Control Board (PNCB). On the complaint of the employees of the Anti-Narcotics Force (ANF), Police Station ANF, Gilgit, regarding money lending on interest basis, an inquiry was initiated by two different officers, namely, Mr. Sarzaman Khan, DSP Gilgit and Mr. Raji-ur-Rehmat, Assistant Director ANF, Gilgit against the petitioner. On 26.01.2002 a charge was framed against the petitioner. The Inquiry Officer submitted his report on 21.2.2002 in which he recommended that one of the major penalties prescribed in the Removal from Service (Special Powers) Ordinance, 2000 for misconduct be imposed on the petitioner. He also recommended disciplinary action against the ANF employees who got the interest earning loan from the petitioner. On 12.6.2002 the petitioner was dismissed from service. Petitioner filed department appeal. Since, there was no response to the appeal, therefore, the petitioner approached the Tribunal under Section 4, Service Tribunals Act, 1973. The learned Tribunal dismissed the appeal of the petitioner while holding that the petitioner was involved in the interest bearing lending business among his colleagues which is clearly a violation of Rule 10 Government Servants (Conduct) Rules, 1964.
We have heard Dr. Babar Awan, learned ASC for the petitioner and Raja Muhammad Irshad, Deputy Attorney General for the respondents and have gone through the record and the proceedings of the case.
Dr. Babar Awan, learned ASC for the petitioner contended that the petitioner has neither been a loaner nor a loanee but he acted just as a guarantor for loaner. Mst. Malika Begum as is evident from the agreement deed dated 14.5.1999. He further contended that in fact Mst. Malika Begum had advanced loan to Mahboob, Khush Faraz and Babar officials of A.N.F on the surety of petitioner. He contended that during the inquiry proceedings, petitioner produced six documents and copy of agreement in his defence but the Inquiry Officer did not consider these documents and also did not discuss or comment upon them in his inquiry report. The transaction of loaning between Mst. Malika Begum and the aforesaid officials of A.N.F Police Station Gilgit took place during the month of May, 1999 whereas petitioner was transferred to ANF Regional Directorate, Rawalpindi during the month of December, 1999. According to him, the report of Inquiry officer is completely arbitrary and unjust. He contended that during the inquiry proceedings, four employees of A.N.F Police Station appeared before the Inquiry Officer in support of the petitioner but the Inquiry Officer did not discuss their evidence in the inquiry report. He further contended that Inquiry Officer had also recommended appropriate disciplinary proceedings against the persons who secured interest based money loan from the petitioner but no action has been taken against them but imposed major penalty of dismissal from service against the petitioner. According to him even on the refusal of the loanees to repay the amount of loan, petitioner approached the Army Monitoring Cell Gilgit on 20.7.2000 and the loanees were summoned by the Army Monitoring Cell and directed them to repay the amount immediately. He further contended that during the month of July, 2000 a vacancy of ASI was announced for which the petitioner applied through proper channel and in written test secured the highest marks among the candidates of Northern Areas but one Muhammad Saleem was selected who did not even appear in the interview held in August, 2000 and also obtained lesser marks. The petitioner challenged this illegality before the Wafaqi Mohtasib and for this reason the petitioner was made scapegoat in this case.
On the other hand Raja Muhammad Irshad, learned Deputy Attorney General on behalf of respondents supported the impugned judgment for the reasons enumerated therein with the submission that it being well in accordance with law hardly warrants any interference. He contended that the Inquiry Officer recorded the evidence of five official of ANF Police Station who deposed that the petitioner had developed a tendency of lending money to the employees of ANF as interest based advance for the last 3/4 years which is sufficient to prove that the petitioner was rightly held guilty of the offence. He contended that the petitioner was charge-sheeted and all the codal formalities were observed by the department while imposing penalty upon him.
It is an admitted fact that Mst. Malika Begum is the relative of the petitioner and she used to invest her savings on profit. The loan was sought by some official of ANF Police Station from her and the petitioner only stood guarantor because the officials were working in the same office.
It is admitted position that during the year 2000 the petitioner applied for the post of ASI in ANF and qualified the same but he was ignored and one Muhammad Saleem was appointed in his place which compelled him to approach Wafaqi Mohtasib against injustice done to him by the department and learned Wafaqi Mohtasib vide order dated 29.2.2001 while accepting the grievance petition observed that the grievance of the petitioner/complainant was established to be genuine and he should be given appointment against the next available post of ASI. We see that there is sufficient force in the contention raised at the bar by the learned counsel for the petitioner that the department became hostile and biased towards him and consequently out of this malice and ill-will, the department succeeded in initiating the departmental proceedings which culminated into his dismissed from service. The proceedings enunciated against him on the charge that he stood surety for the loan taken by the officials of the ANF from a widow Mst. Malika Begum. There was an agreement between Mst. Malika Begum and the employees of the ANF and the matter was ultimately reported to the Army Monitoring Cell for return of the alleged loan and all the three defaulters were called by the Army Monitoring Cell which clearly shows that matter was between Mst. Malika Begum and the officials of the ANF. These all show that the petitioner was not the beneficiary and the Tribunal while recording judgment against him did not consider all these aspects of the matter and merely a person who only stood surety for taking loan by someone does not constitute an offence of misconduct, therefore, the learned Tribunal was not justified in upholding the punishment imposed by the department.
On 11.12.2006 by a short order, we had converted this petition into appeal and accepted. The judgment dated 9.8.2006 passed by learned Federal Service Tribunal was set aside. The Director General, Anti-Narcotics Force was hereby directed to reinstate the appellant, namely, Abdul Aziz with effect from 12.6.2002 with all back benefits.
Above are the detailed reasons for the order dated 11.12.2006.
(R.A.) Appeal accepted.
PLJ 2007 SC 771
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad & Ch. Ijaz Ahmad, JJ.
ABDUL HAMEED & others--Petitioners
versus
SPECIAL SECRETARY EDUCATION (SCHOOLS) GOVERNMENT OF PUNJAB etc.--Respondents
C.P. Nos. 1622-1632-L of 2006, decided on 6.9.2006.
(On appeal from the judgment dated 10.7.2006 by the Punjab Service Tribunal, Lahore in Appeal Nos. 1644 to 1654 of 2006)
Constitution of Pakistan, 1973--
----Arts. 189 & 212(3)--Common question of law and fact--Tribunal did not bother to look into judgments and orders of Supreme Court--Issues involved in appeals--Violation of Constitution--Held: Judgment of Supreme Court is binding on all the Courts and Tribunals--Case was remanded. [P. 772] A
Hafiz Tariq Nasim, ASC with Mr. Tanvir Ahmad, AOR for Petitioners.
Ch. M. Sadiq, Addl. A.G. Punjab for Respondents (on Cour'ts call).
Date of hearing: 6.9.2006.
Judgment
Saiyed Saeed Ashhad, J.--These petitions for leave to appeal have been filed against order dated 10.7.2006 of Punjab Service Tribunal, Lahore (hereinafter referred to as the "Tribunal") in Appeal Nos. 1644 to 1654 of 2006 dismissing the aforesaid appeals in limine. As common questions of facts and law are involved in these petitions, therefore, the same are disposed of by this single judgment.
(i) that the correct decision of the appeals filed by the petitioners before the Tribunal could only have been arrived at after calling for the comments from the concerned department;
(ii) that the Tribunal had decided the appeals in a hasty, arbitrary and fanciful manner without taking into consideration the grounds mentioned under the heading "Grounds" in the memo of appeal especially grounds at C, D and E and discussing the merits of the appeals;
(iii) that the Tribunal failed to take note of the fact that the petitioners could not be forced to accept service conditions contrary to the provisions of Section 16 of the Punjab Civil Servants Act, 1974 (hereinafter referred to as the "Act"); and
(iv) that mere acceptance by a civil servant of certain terms and conditions mentioned in the appointment letter would not deprive him from seeking benefit of Section 16 of the Act.
From a bare perusal of the impugned order of the Tribunal it transpires that the Tribunal appeared to be in great haste in disposing of the appeals filed by the petitioners and did not advert to very material points/questions which were required to be considered in deciding the appeals justly and fairly. It is absolutely clear that the Tribunal did not bother to look into the judgments and orders of this Court and the Punjab Service Tribunal on the issues involved in the appeals of the petitioners which is violative of Article 189 of the Constitution of Islamic Republic of Pakistan which requires that a judgment of this Court is binding on all the Courts and Tribunals in Pakistan.
Notice was given to Ch. Muhammad Sadiq, Addl. A.G. and he was asked to argue the matter on behalf of the respondents and to assist the Court. Learned Additional Advocate General after going through the file and the relevant law could not controvert the contentions raised on behalf of the petitioners that the order of the Tribunal was an arbitrary and the impugned order non-speaking order and could not be sustained.
In view of above factual position, it will be appropriate that the appeals of the respondents be re-heard by the Tribunal. Accordingly these petitions are converted into appeals and are allowed. The impugned order of the Tribunal is set aside. The cases are remanded to the Tribunal for fresh decision after taking into consideration the grounds mentioned in the memo of appeal specials Grounds C, D and E and arguments of the learned counsel which may be advanced before the Tribunal on behalf of the parties. No order as to costs.
(R.A.) Case remanded.
PLJ 2007 SC 773
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ch. Ijaz Ahmad, JJ.
ABDUL MAJEED ZAFAR and others--Appellants
versus
GOVERNOR OF THE PUNJAB, through Chief Secretary and others--Respondents
C.A. Nos. 593 to 596 of 2003, decided on 21.9.2006.
(On appeal from the judgment dated 19.7.2002 passed by the Punjab Service Tribunal, Lahore, in Appeal Nos. 174 and 1585/2001).
Seniority List--
----Natural justice--Seniority between sets of employees--Seniority list was withdrawn without notice--Order was passed without notice to respondents and without application of the mind.
[Pp. 777 & 778] A & B
PLD 1964 SC 410, 1983 SCMR 1208 & PLD 1987 SC 304.
Constitution of Pakistan, 1973--
----Arts. 4 & 5(2)--Public functionaries are duty bound to act in accordance with law without fear, favour and nepotism--Appeals disposed of with the direction that the Secretary would pass a speaking order afresh giving reasons and affording an opportunity of hearing to all concerned. [P. 778] C
PLD 1973 SC 383, ref.
Dr. A. Basit, Sr. ASC with Mr. Ejaz Muhammad Khan, AOR for the Appellants (in C.A. No. 593 to 596 of 2003).
Mrs. Afshan Ghanzafar, AAG A/w Mr. Irfan (Litigation Officer) for Respondents No. 1 & 2 (in C.A. No. 593 of 2003).
Mr. Hafiz Tariq Naseem, ASC for Respondent Nos. 3 & 6 (in C.A. No. 593 of 2003).
Mrs. Afshan Ghanzafar, AAG for Respondents No. 1 & 2 (in C.A. 594/2003).
Hafiz Tariq Naseem, ASC for Respondent No. 3 (in C.A. 594/2003).
Mrs. Afshan Ghanzafar, AAG for Appellants (in C.A. 595/2003).
Hafiz Naseem, ASC for Repsondents No. 1 & 17 (in C.A. 595/2003).
Dr. A. Basit, Sr. ASC a/w Mr. Ejaz Muhammad Khan, AOR for Respondents No. 3-13 (in C.A. 595/2003).
Mrs. Afshan Ghazanfar, AAG for Appellants (in C.A. 596/2003).
Hafiz Tariq Naseem, ASC for Respondent No. 1 (in C.A. 596/2003).
Dr. A. Basit, Sr. ASC Mr. Ejaz Muhammad Khan, AOR for Respondents No. 3-6, 8-13 (in C.A. 596/2003).
Date of hearing: 21.9.2006.
Order
The captioned appeals were disposed of by this Court through a short order in the following term:
Short Order:
"The detailed reasons will be recorded lateron.
The basic order which has been passed by the Department (Secretary) dated 10-7-2001 whereby a separate seniority list prepared by the department was withdrawn but the said order is not a speaking one and is lacking the detailed reasons as required under the law and also in order to ascertain what has compelled the authority to recall the earlier one for re-fixing the seniority. Resultantly while setting aside the judgment of the Service Tribunal and that of the Secretary concerned, we remand the cases back to the Secretary, Government of the Punjab, Agriculture Department for passing a speaking order afresh with reasons thereto after affording opportunity of hearing to all concerned. However while passing any order under the law, he (Secretary/Authority) shall not be influenced by any observations made in the judgment of the Tribunal or by this Court. The process be completed within a period of two months after the receipt of the order of this Court under intimation to the Deputy Registrar(Judicial) of this Court".
Ch. Ijaz Ahmed, J.--Following are the detailed reasons for the short order mentioned above.
We intend to decide the captioned appeals by one consolidated order having similar facts and law arising out of the common judgment of the Service Tribunal dated 19.7.2002.
Appellants/petitioners filed CPLA Nos. 3490-L/2002, 3491-L/2002, 3556-L/02 and 3557-L/2002 respectively seeking leave to appeal against the judgment dated 19.7.2002 wherein appeals filed by the respondents Rana Muhammad Shafique and Rana Muhammad Yousif were accepted. The aggrieved persons as well as Chief Secretary etc. had filed aforesaid petitions which were fixed before this Court on 3.4.2003 and the leave was granted in the following term:--
"The question as to what is the legal status and rights of the employees of the extension side, functional unit and those who were working in extension wing as regards seniority and cadre etc require consideration being question of law of public importance, therefore, leave is granted to examine and consider the same."
The brief facts out of which the present appeals arise are that Respondents No. 5 and 6 filed appeals before the Service Tribunal challenging the viries of the various orders of the respondents including order dated 10.7.2001. The learned Service Tribunal accepted their appeals vide impugned judgments. Hence, the present appeals.
The learned counsel for the appellants submit that there are three functional group consisting of economic wing, extension wing and research wing. Extension wing consisting of two wings namely extension wing and extension side. He further submits that learned Service Tribunal erred in law to decide the case in favour of the Respondents No. 5 and 6 in violation of the judgment of this Court dated 25.7.2000. The learned Service Tribunal had noted the contentions of the appellants' counsel in para 9 of the impugned judgment and rejected the same in para 10 to 13 without judicial application of mind and also erred in law to decide the case against the appellants on merits as evident from para 14 of the impugned judgment. He further maintains that learned Service Tribunal had decided the case against the appellants without adverting to the relevant rules which are at pages 66 to 81 of paper book of CA 593 of 2003. The aforesaid rule clearly reveal functional unit extension wing as evident from Column No. 2 and the Service Tribunal erred in law to rely on Column No. 7 against Entry No. 4 wherein word extension side is mentioned. The combined seniority list has to be prepared in accordance with the Rule 14 of the Punjab Civil Servants (Appointment and Conditions) Rules, 1974.
The learned Law Officer submits that impugned judgment is not in consonance with the mandatory provisions of Civil Servants Acts and rules framed thereunder.
The learned counsel for the private respondents in all the aforesaid appeals submits that learned Service Tribunal was justified to reject the preliminary objections raised by the appellant's counsel after noting in para 9 of the impugned judgment with cogent reasons. Respondent Rana Yousif was inducted in the service of the Agricultural Department through public service commission on 9.4.1971 whereas the private appellants were appointed in Punjab Agriculture Extension developed project for a fixed period in the year 1980-81 who were declared subsequently surplus. They were absorbed in the Agriculture Department on 6.7.1989. He further maintains that functional unit according to the rules mentioned in Column No. 2 extension wing having different sub-branches consisting of more than 10. The appellants are belonging to the office of Director of Agriculture Adaptive (Research) whereas the respondents belong to Category No. 4 at page 67 of the paper book. He further maintain that seniority list of each branch were maintained separately till they were promoted to the rank of Grade-18. The combined seniority would be prepared thereafter for the purpose of promotion in BPS-19. He further submits that Muhammad Sarwar Shah filed Appeal No. 1767 of 1997 against the Government of Punjab through Chief Secretary, Secretary Agriculture Department and Director General of Agriculture Extension and Adaptive Research challenging the viries of the orders dated 27.12.1992, 20.5.1996 and 19.12.1996 whereby the officers junior to him had been promoted to the post of Director BS-19 on current charge basis. Appeal of Muhammad Sarwar Shah alongwith Appeal No. 1766 of 1997 were accepted by the Service Tribunal vide judgment dated 14.9.99 and directed the respondent department to make appointments from amongst the eligible officers on the basis of seniority list of Grade-18 officers of the Agriculture Department extension wing as it stood on 1.12.1987 strictly in accordance with Rules 1980. Muhammad Yousif etc. the aggrieved person filed CP No. 77-L to 79 of 2000, 427-L/2000 and 632-L/2000 which were disposed off by this Court with the direction to the government to finalize the appointments on regular basis after complying with the relevant rules within 90 days from today under intimation to the Assistant Registrar of this Court seniority list which was stated to be under process would also be expedite within the shortest possible time but not later than 60 days from today. The government functionaries in-obedience of the direction of this Court dated 25.7.2000 had prepared separate list of the appellants and Respondents No. 5 and 6 on 12.10.2000. Thereafter combined seniority list was also prepared on 14.12.2000. Secretary to Government of the Punjab had withdrawn the separate list dated 12.10.2000 vide order dated 10.7.2001. Respondents No. 5 and 6 being aggrieved filed aforesaid appeals before the Service Tribunal which were allowed.
We have considered the submission of learned counsel for the parties and have perused the record. It is very painful to note that the matter in question between the parties relating to the seniority list but unfortunately neither the appellants nor the respondents had placed on record any of the seniority list. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties:--
(i) This Court vide judgment dated 25.7.2000 passed in CP No. 632-L/2000 alongwith other petitions directed the government functionaries to resolve the issue of seniority of the employees of the Agriculture Department in the following term:--
"We, therefore, direct the Government to finalize the appointments on regular basis after complying with the relevant rules within 90 days from today under intimation to the Assistant Registrar of this Court. Seniority List, which is stated to be under process shall also be expedited within the shortest possible time but not latter than 60 days from today."
(ii) The respondents prepared the separate seniority list on 12.10.2000.
(iii) The combined seniority list was prepared on 14.12.2000.
(iv) The Secretary concerned had withdrawn the separate seniority list vide order dated 10.7.2001.
(v) Respondents No. 6 and 7 filed appeals before the Service Tribunal challenging the viries of the orders of the Agriculture Department including the order dated 10.7.2001.
"No. SO(A-II) 9-1/2000(II). Separate seniority list of Deputy Directors of Agriculture (Extension/Deputy Director Agriculture (Training), in service Agricultural Training Institutes of Extension Wing of Agriculture Department as it stood on 22.9.2000 issued vide this department's letter No. SO(A-II)9-1/2000(II), dated 12.10.2000, is hereby withdrawn ".
(1) Fazalur Rehman 's case (PLD 1964 SC 410)
(2) Pakistan Chrome Mines Ltd,'s case (1983 SCMR 1208)
(3) Public at Larges' case (PLD 1987 SC 304)
It is a settled law that public functionaries are duty bound to act in accordance with law without fear, favour and nepotism as is envisaged by Article 4 of the Constitution read with Article 5 (2) of the Constitution as law laid down by this Court in Ch. Zahoor Elahi's case (PLD 1973 SC 383).
In view of what has been discussed above, the appeals are disposed of in terms of short order mentioned above.
(A.S.Sh.) Appeals disposed of.
PLJ 2007 SC 778
[Appellate Jurisdiction]
Present: Javed Iqbal, M. Javed Buttar & Hamid Ali Mirza, JJ.
JAN MUHAMMAD (deceased) through his Legal Representatives--Appellants
versus
KUNDAN MAI & 14 others--Respondents
C.A. No. 1254 of 2004, decided on 7.2.2007.
(On appeal from the judgment dated 14.5.2001 of the Lahore High Court Bahawalpur Bench passed in RSA No. 36 of 1985/BWP).
Superior right of Pre-emption--
----Relationship of vendors and pre-emptors--Superior right of pre-emption on the basis of collaterals, joint owners--Documentary evidence--Contents of Pedigree tables were proved by oral evidence--Connection with each other--Proof of--Courts below correctly read the oral as well as documentary evidence--Held: Plaintiffs as well as vendors were connected with each other through ancestor--Appellants did not point out any misreading or non-reading of evidence. [P. 781] A
Transfer of Property Act, 1882 (IV of 1882)--
----S. 54--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Acquiring of title--Sale without registration of sale-deed--Contentions--Applicability--In petty cases Supreme Court can refuse to decide even a question of law even if special leave is granted and can revoke the special leave which has been obtained by making false and misleading assertions in the petition but Supreme Court had not exercised discretions and have not gone into the issues--Appeal was dismissed. [P. 782] B
Syed Afzal Haider, Sr. ASC and Mr. Tanvir Ahmad, AOR (absent) for Appellants.
Mr. Gulzarin Kiani, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents No. 1 to 12.
Ex-parte for Respondents No. 13 & 14.
Date of hearing: 7.2.2007.
Judgment
M. Javed Buttar, J.--This appeal, by leave, is directed against the judgment dated 14.5.2001 passed by a learned Judge in Chambers of Lahore High Court, Bahawalpur Bench whereby Regular Second Appeal No. 36 of 1985/BWP, instituted by the deceased appellant Jan Muhammad, now represented by his legal representatives, was dismissed.
The relevant facts are that the predecessors of Respondents No. 1 to 12, instituted a suit for possession through pre-emption claiming superior right of pre-emption as being collaterals, joint owners in the khata and owners in the estate which was resisted by the deceased vendee/defendant Jan Muhammad on legal as well as factual grounds. The learned trial Court after framing necessary issues and recording evidence of the parties, vide its judgment and decree dated 18.7.1981, dismissed the suit. On Issue No. 2 qua the superior right of pre-emption, the only issue which has been agitated before us, it was found that plaintiffs were neither collaterals of the vendors nor owners in the village because purchases made by them through revenue mutations which evidenced oral sales in their favour, were not recognized in Law because of the applicability of Section 54 of Transfer of Property Act, 1882 in the area, hence they did not possess superior right of pre-emption. The District Judge, Rahimyar Khan vide his judgment and decree dated 24.4.1985 reversed the findings of the trial Court on Issue No. 2. It was held that the plaintiffs were connected with the vendors through common ancestor in the 5th degree and were also owners in the estate by way of inheritance because of Exh.D-46, a mutation of inheritance sanctioned on 31.1.1921, through which Chani, father of plaintiffs, inherited a piece of land from one Diwaya who had died issueless and the said land ultimately devolved on plaintiffs. The suit of pre-emption was thus decreed and, as mentioned above, the second appeal filed by the deceased vendee/defendant Jan Muhammad was dismissed on 14.5.2001.
We have heard the learned Sr. ASC for the parties at length and have also seen the available record.
The only points urged by the Sr. ASC for the appellants before us are that the learned First Appellate Court had erred in upsetting the well considered judgment of the trial Court, the Pedigree-tables relied upon by the plaintiffs stood rebutted by the documents produced by the appellants, merely the production of Pedigree-tables in the absence of any other corroborative evidence could not connect the plaintiffs with the predecessor of the vendors and that the oral sales in favour of the plaintiffs evidenced by revenue mutations but not registered in accordance with provisions of Section 54 of the Transfer of Property Act IV of 1882, which is applicable with full force in the area, did not make the plaintiffs a co-owner in the village. In support of his contentions, the learned Sr. ASC has placed reliance on Muhammad Naeem and others v. Ghulam Muhammad and others (1994 SCMR 559), Rehman v. Noora through his Legal Heirs (1996 SCMR 300), Muhammad Bakhsh v. Zia Ullah and others (PLD 1971 B.J. 42) and Muhammad Hussain and others v. Muhammad Khan (1989 SCMR 1026). The learned counsel has also half heartedly argued that collaterals from the 5th degree, in law cannot be considered as collaterals and cannot claim superior right of pre-emption on the said basis.
The learned counsel representing Respondents No. 1 to 12/plaintiffs, while vehemently opposing the appeal, has submitted that the appellants had obtained the leave to appeal from this Court on 27.8.2004 by suppressing material facts and by not producing the complete record, that PW-1 had given all the details connecting the plaintiffs with the vendors through a common ancestor, thus a convincing and un-rebutted evidence was produced which corroborated Pedigree-tables and even Exh.D-22, a document produced by the defendant himself, established that the plaintiffs and the vendors had common ancestor, that under Section 15 of the Punjab Pre-emption Act 1 of 1913, the collaterals, howsoever remote, would have a superior right of pre-emption, if the other side did not possess the same qualification or was not nearer in decree, whereas in the present case, the deceased vendee was an out sider and not related at all, that it is established on the record that the plaintiffs were owners in the estate/village through inheritance vide mutation (Exh.D-46) sanctioned in favour of father of the plaintiffs on 31.1.1921, therefore, even if the oral sales evidenced through mutations in favour of the plaintiffs are ignored, the plaintiffs would still be possessed with the superior right of pre-emption as being owners in the estate and that since the leave to appeal had been obtained by the appellants from this Court by making false and misleading assertions, this Court would be justified in revoking leave to appeal. The learned counsel, in support of his contentions, has placed reliance on Mst. Farrukh Jabin v. Maqbool Hussain through Legal Heirs and others (2001 SCMR 820), Noor Salam and others v. Gul Badshah and others (PLJ 2003 SC 44), Jalal Din v. Saeed Ahmad and others (PLD 1979 SC 879) and Udai Chand v. Shankar Lal and others (AIR 1978 SC 765). In the end, the learned counsel for the respondents has submitted that controversy raised before this Court is merely factual in nature, no law point is involved and in petty cases, Supreme Court can refuse to decide even a question of law even after the grant of leave to appeal. Reliance in this regard, has been placed on Management of P.T.C v. B.B.L Majalay and others (AIR 1978 SC 764).
The argument of the learned counsel for the appellants that the plaintiffs being related to the vendors in the 5th degree cannot be considered as collaterals and cannot claim superior right of pre-emption due to remoteness is baseless. A pre-emptor howsoever remotely connected with the common ancestor of the vendors, can come forward and claim superior right of pre-emption. In Jalal Din (supra) the proposition that if nearer heir does not sue still his remedy being in existence would count as a bar to the suit of remoter heirs was repelled. The documentary evidence produced by the plaintiffs and Exh.D-22, a document produced from the appellants' side, established the relationship of the vendors and the pre-emptors. The contents of the Pedigree-tables were proved by oral evidence. The First Appellate Court as well as Second Appellate Court correctly read the oral as well as the documentary evidence and correctly held that the plaintiffs as well as the vendors were connected with each other through the same ancestor. The learned counsel for the appellants has not been able to point out any misreading or non-reading of evidence in the impugned judgment. The case law relied upon by him does not advance the case of the appellants and is not relevant because in the instant case the plaintiffs had substantiated contents of Pedigree-tables through oral evidence. In Mst. Farrukh Jabin (supra), the contents of Pedigree-tables were also proved by the oral evidence and the findings of fact recorded on such score were not interfered with by this Court. In our view, the findings of fact recorded by two Courts below are unexceptionable. Furthermore, the father of plaintiffs had become owner in the estate through inheritance vide above-mentioned mutation (Exh.D-46) sanctioned on 31.1.1921, which later on conferred the status of co-owners in the estate upon the plaintiffs, because of inheritance from their father, hence reliance of the appellants on the case of Muhammad Bakhsh (supra) is not relevant as the said judgment deals with acquiring of title through sale without the registration of sale-deed in an area where Section 54 of Transfer of Property Act IV of 1882 is applicable, therefore, we need not decide the said legal issue in the present case. We are in agreement with the contentions of the learned counsel for the respondents that in petty cases Supreme Court can refuse to decide even a question of law even if special leave is granted and can revoke the special leave which has been obtained by making false and misleading assertions in the petition but we have not exercised the said discretions and have not gone into the said issues because we thought it fit to proceed with the appeal and decide it on merits.
In view of the above mentioned, we find no merit in this appeal which is dismissed, leaving the parties to bear their own costs.
(R.A.) Appeal dismissed.
PLJ 2007 SC 782
[Appellate Jurisdiction]
Present: Nasir-ul-Mulk & Ch. Ijaz Ahmed, JJ.
PUNJAB INDUSTRIAL DEVELOPMENT BOARD--Petitioner
versus
UNITED SUGAR MILLS LIMITED--Respondent
C.P. No. 2717 of 2005, decided 22.3.2007.
(On appeal from the judgment/order dated 25.8.2005 passed by High Court of Sindh, Karachi in H.C.A. No. 142/2000).
Arbitration Act, 1940 (X of 1940)--
----Ss. 30, 33 & 39--Law Reforms Ordinance, (XII of 1972), S. 3--Format agreement executed between parties--Dispute between parties--Matter before Arbitrator--Appreciation of evidence--Controversy after judicial application of mind--Principal in various pronouncement--Appellate Court has to decide the appeal after independent application of mind and mere reproduction of the judgment of trial Court--Findings of the Courts below on the whole reasonable are not arrived at by disregarding of any provision of law or any accepted principle concerning appreciation of evidence.
[Pp. 785 & 786] A, B & D
PLD 1964 SC 829 & PLD 1983 SC 53.
(ii) General Clauses Act, 1897 (X of 1897)--
----S. 24-A--Public functionaries are duty bound to decide the applications of citizens while exercising statutory power with reasons after judicial application of mind. [P. 785] C
1998 SCMR 2268 and PLD 1970 SC 758.
Syed Najam-ul-Hassan Kazmi, ASC for Petitioner.
Ch. M. Anwar Khan, AOR for Respondent.
Date of hearing: 22.3.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present petition arises are that the petitioner was the owner of Pasroor Sugar Mills. In pursuance to the policy of the Government of the Punjab petitioner has advertised for sale in the press qua the project in question (Pasroor Sugar Mills) in July, 1984. Respondent participated in the auction proceedings. Ultimately an agreement arrived between petitioner and respondent through negotiations among the banks and Pakistan Banking Council in the following terms:--
"(i) PSM was to be sold on the basis of fixed assets and the shares to be transferred to Respondent against a notional value of Rupee One only.
(ii) Current assets of PSM were to be sold to the Respondent separately.
(iii) Petitioner would receive a fixed sum of Rs. 3,00,00,000/- (Rupees Three Crores only), against its equity and investment in PSM, which would be paid by the respondent, within a period of ten (10) years, with two (2) years grace period. The payment was to be secured by a bank guarantee.
(iv) Respondent was to enter into a separate agreement with PBC and NFDC for assuming and taking over the total liabilities of PSM towards the financial institutions. These were fixed at Rs. 20,00,00,000/- (Rupees Twenty Crores only).
Petitioner had delivered possession of the project in question to the respondent on its request without executing formal agreement on 4.9.1985. It was specifically agreed that all the stocks and cash belonging to the petitioner in the said project shall remain with the petition because the petitioner was still dealing with the past and on-going transactions. The said arrangement was approved vide letter dated 27.9.1985 which was issued by the petitioner to Habib Bank Limited on the request of the respondent. From 16-9-1985 to 15-11-1985, a period prior to execution of agreement dated 9-2-1986 but subsequent to handing over of the project in question to respondent it was the responsibility of the petitioner to administer the day to day affairs of the project in question to deal with and conclude the continuing transactions. Formal agreement executed between the parties on 9.2.1986. Dispute arose between petitioner and respondent. The matter was referred to Arbitrator. The Arbitrator announced award on 30.3.1991. The facts as depicted from the judgment of the trial Court are as follows:--
"By his award dated 30.3.1991 sole Arbitrator Mr. M.R. Khan, former Chairman Pakistan Banking Council, pursuant to the arbitration agreement dated 9.2.1986 executed between Punjab Industrial Development Board and United Sugar Mills Limited, rejected the claims of both the parties except a sum of
Rs. 12,09,385/-. By his award he directed that defendant PIDB shall pay the aforesaid amount to the plaintiff United Sugar Mills Limited with 1% interest/mark up from the date of the award.
Consequent upon the notice of filing of the award registered as Suit No. 1094/1991 defendant PIDB filed applications under Section 30 read with Section 33 of the Arbitration Act, 1940 for setting aside the award."
The respondent being aggrieved filed an application (Suit No. 1094/1991) under Section 30 read with Section 33 of the Arbitration Act, 1940 in the High Court of Sindh, Karachi. Learned Single Judge dismissed the objections of the petitioner vide judgment and decree dated 29.1.2000 in the said suit and maintained the award. Petitioner being aggrieved filed an appeal under Section 39 of the Arbitration Act read with Section 3 of the Law Reforms Ordinance, 1973 and Section 15 of Ordinance X of 1980 in the High Court of Sindh at Karachi, The learned Division Bench dismissed the same vide impugned judgment dated 25-8-2005. Hence the present petition.
The learned counsel for the petitioner submits that the learned Appellate Court has decided the appeal without judicial application of mind as is evident from Paragraphs Nos. 7 to 12 of the impugned judgment. He further maintains that the learned appellate Court has reproduced the judgment of the learned Single Judge in the aforesaid paragraphs and thereafter dismissed the appeal of the petitioner without discussing evidence and points raised by the petitioner before the appellate Court. He further maintains that Arbitrator has misread Clauses 8 and 10 of the Agreement and this fact was not scrutinized by the learned Single Judge/ Trial Court and the appellate Court has also not considered this aspect of the case in its true perspective.
The learned counsel of the respondent has supported the impugned judgment.
We have considered the submissions made by the learned counsel for the parties and perused the record. This Court has laid down the principal in various pronouncements that it is duty and obligation of the appellate Court to decide the controversy between the parties after judicial application of mind. See Mollah Ejahar Ali v. Government of Pakistan (PLD 1970 SC 173). Relevant observation is as follows:--
"To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty, off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted", should not be equally blessed. This will reduce the whole judicial process to authoritarian degrees without the need for logic and reasoning which have always been the tradition pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. "
"Such an order, we regret to say, does not disclose a proper application of mind of the High Court to the merits of the case that was before it. As was pointed out by this Court in the case of Adamjee Jute Mills Limited v. The Province of East Pakistan."
It is also a settled law that appellate Court has to decide the appeal after independent application of mind and mere reproduction of the judgment of the trial Court and thereafter dismissing the appeal is not in consonance with the law laid down by this Court in Ghulam Mohayyaudin's case (PLD 1964 SC 829). After addition of Section 24-A in the General Clauses Act, even the public functionaries are duty bound to decide the applications of citizens while exercising statutory powers with reasons after judicial application of mind as laid down by this Court in Airport Support Services v. The Airport Manager, Ouaid-e-Azam International Airport Karachi and others (1998 SCMR 2268). As the appellate Court has decided the case in violation of the dictum laid down by this Court in aforesaid judgments and has not decided the appeal after perusing material on record in accordance with the law. This Court normally does not interfere with the findings of fact reached by the learned High Court and the Court below when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding of any provision of law or any accepted principle concerning appreciation of evidence. In the instant case however it is difficult to avoid the impression that the conclusions reached by the learned appellate Court suffer from errors of law while not deciding the appeal in terms of the dictum laid down by this Court in various pronouncements including the aforesaid judgments. Therefore, the learned appellate Court has committed material irregularities as laid down by this Court in Kanwal Nain and others v. Fateh Khan and others (PLD 1983 SC 53).
In view of what has been discussed above this petition is converted into appeal and allowed. The judgment of the learned Appellate Court is set aside and case is remanded to the appellate Court to decide the case afresh in accordance with the law. The appeal filed by the petitioner shall be deemed to be pending adjudication before the appellate Court. No order as to costs.
(R.A.) Appeal allowed.
PLJ 2007 SC 786
[Appellate Jurisdiction]
Present: Javed Iqbal & Muhammad Nawaz Abbasi, JJ.
SARGODHA TEXTILE MILLS LIMITED, LAHORE though its G.M. Finance--Petitioner
versus
HABIB BANK LIMITED through its Chairman and another--Respondents
C.P. No. 2142 of 2005, decided on 2.4.2007.
(On appeal from the judgment passed by Lahore High Court, Lahore in R.P. No. 61/2004, dated 21.6.2005).
Constitution of Pakistan, 1973--
----Arts. 185(3) & 199--Discretionary relief--Original jurisdiction--Remedy of writ petition--Concealment of facts--Entitlement--Validity--Petitioner filed a suit in High Court in its original jurisdiction under Financial Institutions (Recovery of Finance) Ordinance on same subject--Review petition was dismissed with observation that the petitioner having not disclosed fact relating to institution of civil suit--Guilty of concealment of fact and was not entitled to discretionary relief--Held: Suit was withdrawn by petitioner to pursue the remedy of writ petition but writ petition was dismissed without adhering the merits on the ground that remedy of writ petition as well as civil suit could not be availed whereas petitioner availed only remedy of writ petition--Appeal was allowed.
[P. 790] A
Mr. Abdul Hafeez Pirzada, Sr. ASC and Mr. M.S. Khattak, AOR for Petitioner.
Mr. Shams Mahmood Mirza, ASC Legal Advisor, CIRC for Respondent No. 1.
Raja Abdul Ghafoor, ASC for Respondent No. 2.
Date of hearing: 7.4.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185 (3) of the Constitution has been directed against the judgment dated 21.6.2005 passed by the learned judge in chamber in the Lahore High Court, Lahore in the review petition arising out of a writ petition which was dismissed as not maintainable.
The petitioner filed a writ petition seeking direction for grant of benefit of PBD-Circular No. 29 issued by the State Bank of Pakistan which was dismissed vide judgment dated 19.10.2004 on the ground that the petitioner after filing of writ petition also filed a suit in the High Court in its original jurisdiction under Financial Institutions (Recovery of Finances) Ordinance, 2000 on the same subject and subsequently, having withdrawn the civil suit availed the remedy of writ petition without disclosing in the writ petition the fact relating to the filing of the suit. The petitioner then invoking the review jurisdiction of the High Court in the matter sought review of the Judgment but the review petition was dismissed with the observation that the petitioner having not disclosed the fact relating to the institution of civil suit on the same subject was guilty of concealment of material fact and was not entitled to the discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan.
The learned counsel for the petitioner with reference to the averments of the plaint in the civil suit, contended that the fact relating to the pendency of writ petition was mentioned in the suit and so much so on the request of the learned counsel for the petitioner that suit may be heard alongwith the writ petition, the learned Judge in Chamber in the High Court exercising the powers of Banking Court on the original side vide order dated 24.9.2003 directed for fixation of writ petition together with the suit and in view thereof, the observation in the judgment that the fact relating to the filing of the suit during the pendency of writ petition was not brought to the notice of the Court was factually incorrect. Learned counsel added that the suit was withdrawn at initial stage even before issue of the process with the permission of the Court to file a fresh suit, if need be, therefore, the observation that the remedy of civil suit as well as writ petition was availed together at the same time was against the record and in any case the filing of the suit as well as writ petition on the same subject, would not curtail the right of the petitioner to avail the appropriate remedy for decision of the case on merits but the learned Judge in the High Court due to the misconception of law held that notwithstanding withdrawal of the suit, the writ petition could not proceed.
Learned counsel for the respondents, on the other hand, at the outset raising the question of limitation, contended that the petitioner having not challenged the original order passed in the writ petition before this Court within time, could not question the validity of the said order in the present petition in which the order passed by the High Court in review petition has been assailed and consequently, this petition so far as the order passed in writ petition is concerned, is hopelessly barred by time. The precise contention of the learned counsel is that since the order passed by the High Court in writ petition was not challenged independently before this Court within time, therefore, the same cannot be challenged together with the order passed in the review petition at this belated stage and placing reliance on Ghulam Hussain Vs. Kanwar Ashiq Ali Khan (PLD 1980 SC 198), Ghulam Nabi Vs. Rashid (PLD 2000 SC 63), Crown Vs. Haveli (PLD 1949 Lahore 550), Pir Muhammad Vs. Education Town Co-operative Society Ltd (1982 SCMR 995) submitted that the delay in challenging the order passed in the writ petition is not condonable.
The petitioner instead of assailing the order passed by the High Court in the writ petition before this Court preferred to avail the remedy of review before the High Court and after dismissal of review petition filed the instant petition in which the order passed in the writ petition as well as in the review petition have been challenged together. Keeping in view the circumstances leading to this petition and the ground on the basis of which the High Court dismissed the writ petition as well as the review petition, the question of limitation may not have much significance to dismiss this petition as time barred. Undoubtedly the petitioner without availing the remedy of review petition before the High Court could challenge the order passed in writ petition before this Court but he preferred to avail the remedy of review before the High Court as the writ petition was dismissed on technical ground and thus he having availed the remedy of review before the High Court, was not obliged to also file a petition before this Court against the same order and since the writ petition as well as the review petition were not dismissed on merits therefore, the petitioner would not be precluded to challenge the order passed by the High Court in the writ petition alongwith the order passed in the review petition before this Court. The judgment referred above dealing with the question of limitation being based on entirely different facts may not be strictly applicable to the case in hand and this may be seen that the writ petition was dismissed by the High Court being not maintainable and unless it is shown that the remedy of review availed by the petitioner before the High Court was a device either to prolong the matter or to enlarge the time for filing the petition before this Court, he may not be deprived from getting decision of the case on merits. The remedy of review before the High Court was availed by the petitioner in good faith and since the time was not consumed in availing the remedy before a wrong forum, therefore, there was no legal impediment in his way to question the legality of the order passed by the High Court in the writ petition together with the order passed in the review petition. This is to be noted that the High Court instead of deciding the writ petition on merits dismissed the same being not maintainable and the review petition was also dismissed on the same ground, therefore, not only the petitioner was condemned unheard on merits but the High Court also failed to exercise the jurisdiction in proper manner. Thus in view of the peculiar circumstances of the present case, we are of the considered opinion that mere filing of suit and its subsequent withdrawal would not as such affect the maintainability of the writ petition.
Learned counsel representing the State Bank of Pakistan has argued that the order assailed in the writ petition was passed after considering all aspects of the case and petitioner had no case even on merits, therefore, no exception can be taken to the dismissal of writ petition as well as the review petition by the High Court.
Learned counsel for Habib Bank Limited has submitted that circular in question issued by the State Bank of Pakistan was no more in the field and since no relief could be granted to the petitioner in terms of the above referred. Circular at the time when writ petition was filed, therefore, the decision of the writ petition even on merits would have no effect.
Having heard the learned counsel for the parties at length and perused the record with their assistance, we find that after institution of writ petition, the petitioner also filed a civil suit on the same subject in the High Court in the original jurisdiction under Finance Institutional (Recovery of Finances) Ordinance 2000 and having brought this fact to the notice of learned Judge in the High Court exercising the original jurisdiction under Financial Institution (Recovery of Finance) Ordinance 2000, requested the Court for taking up the suit with the writ petition and order was passed accordingly but subsequently, the petitioner after withdrawing the suit preferred to pursue the remedy of writ petition and in these circumstances he was neither guilty of the concealment of any material fact nor was disentitled to get decision of the writ petition on merits. The suit was withdrawn by the petitioner with a view to pursue the It remedy of writ petition but writ petition was dismissed without adhering to the merits of the case on the ground that the remedy of writ petition as well as civil suit could not be availed in the same matter whereas factually the petitioner availed only the remedy of writ petition. The multiplication of litigation on the same subject before the same forum or different forum is not permitted and must be discouraged but in certain situations the availing of the remedy of civil suit may not be considered bar to avail the remedy of writ petition on the same subject and vice versa. In The Murree Brewery Co. Ltd Vs. Pakistan through the Secretary to Government of Pakistan, Works Division (PLD 1972 SC 279) this Court has held:
"The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well-recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The appeal under Section 36 of the Ordinance is limited to a matter which is within the jurisdiction of the authority concerned and the scope of the Ordinance. A question of jurisdiction is a matter for Review, which is based not on the merits but on the legality of the lower authority's proceedings."
The High Court in the present case without appreciating the legal position declined to exercise the jurisdiction vested in it under the Constitution on technical ground and failed to dispose of writ petitions as well as the review petition on merits in accordance with law.
In the light of forgoing reasons, we convert this petition into an appeal, set aside the judgment of High Court in the writ petition as well as in the review petition and send the case back to the High Court for the decision of writ petition on merits which shall be deemed to be pending before the High Court. This appeal is allowed in the above terms with no order as to costs.
(R.A.) Appeal allowed.
PLJ 2007 SC 791
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
FEDERATION OF PAKISTAN through Establishment Division--Appellant
versus
BRIG (RTD.) ZULFIQAR AHMAD KHAN and others--Respondents
C.A. No. 1084 of 2002, decided on 26.3.2007.
(On appeal from the judgment dated 12.4.2001 passed by Lahore High Court, Rawalpindi Bench in Writ Petition No. 8 of 2001).
Constitution of Pakistan, 1973--
----Arts. 9(2) & 212--Entitlement to pensionary benefit--Civil servant was retired from Pakistan Army--Entitlement to grant of civil pension but was refused by appellant--Jurisdiction--Legality--Civil servant approached Wafaqi Ombudsman who accepted his prayer--Establishment Division being aggrieved of the order of High Court, filed appeal--Mohtasib cannot accept for investigation any complaint by or on behalf of a public servant or functionary relating to Agency--Matter relating to terms and conditions a proper forum was available--Respondent was having a good case on merits, passed an effective order which may be favourable to respondent, but respondent has divulged himself in litigation courses which were not available to him under law--Mohtasib had wrongly assumed jurisdiction while entertaining the complaint of respondent when matter comes before the Court--Order conveniently may be ignored and order being without jurisdiction and without lawful authority--Appeal was accepted. [Pp. 793 & 794] A & B
Raja Muhammad Irshad, DAG for Appellant.
Ch. Afrasiab Khan, ASC and Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 26.3.2007.
Judgment
Mian Shakirullah Jan, J.--Federation of Pakistan through Establishment Division, by leave of the Court, has impugned the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby while accepting writ petition filed by the respondents it was held that respondent having retired from Pakistan Army on 5.7.1987 would be deemed to have been inducted in civil service of Pakistan from the said date and having earned/qualified service was entitled to the grant of civil pension and the refusal by the appellant to grant it to the respondent was declared without lawful authority.
A brief resume of the case is that the respondent while serving as Brigadier in Pakistan Army was posted on secondment in the President's Secretariat on 31.12.1985 as Director General/Joint Secretary. On his retirement from the Army he was inducted in the Secretariat Group of Civil Service of Pakistan w.e.f. 19.4.1989 wherefrom he retired on 9.2.1998 having remained in Civil Service for a period of less than 10 years and was found to be not entitled to pensionary benefits. However, subsequently the retirement of the respondent was antedated by the GHQ from 19.4.1989 to 5.7.1987 and thus became entitled to the pensionary benefits. Having failed to get the required pensionary benefits on refusal by the Establishment Division, the respondent approached the Wafaqi Ombudsman who accepted his prayer and directions were issued for awarding him the pensionary benefits of the civil post. On representation to the President, the order of Wafaqi Ombudsman was set aside. The respondent then approached the High Court in its Constitutional Jurisdiction for the award of pensionary benefits of the civil post and also for setting aside the order of the President. The respondent succeeded in his this attempt in getting order of the Establishment Division and also that of the President set aside and he was held entitled to the pensionary benefits. The Establishment Division being aggrieved of the order of the High Court, passed in the writ petition, filed instant appeal, by leave of the Court.
Learned Deputy Attorney has contended that (i) the matter pertains to the terms & conditions of service of a civil servant and in view of the bar contained under Article 212 of the Constitution, the High Court has got no jurisdiction to entertain the writ petition and (ii) the Wafaqi Ombudsman has no jurisdiction in the matter relating to the terms & conditions of the service and moreso when it is a case of no mal-administration, On the other hand learned counsel for the respondent has submitted that after retirement from service, the respondent was no more civil servant and the High Court has rightly entertained the writ petition and also that the order which had been passed by the President by accepting the representation of the appellant and setting aside the order of Wafaqi Ombudsman is not sustainable as no opportunity of hearing has been afforded to the respondent and liable to be struck down as has been done by the High Court.
By looking at the very grievance of the respondent, as it has been agitated before the High Court and also before Wafaqi Ombudsman was with regard to the award and non award of pensionary benefits depending on the conditions as to whether he has completed tenure of 10 years in the civil service which is purely relatable to the terms & conditions of service. By no stretch of imagination, this case could be brought out of the ambit of the terms & conditions of civil servant and in such view of the matter bar contained under Article 212 of the Constitution attracts and the High Court has wrongly assumed the jurisdiction despite the constitutional bar while accepting writ petition of the respondent. Reliance can be placed on Peer Muhammad Vs. Government of Balochistant through Chief Secretary and others (2007 SCMR 54) and Province of Punjab, through Secretary education Vs. Shamshad Begum (2004 PLC (C.S) 1027).
Similar is the case with Wafaqi Ombudsman. According to Article 9(2) of the Constitution, Mohtasib cannot accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein. In view of this implicit bar that petitioner being a civil servant and the matter relating to the terms & conditions of his service and for the redressal for such grievance a proper forum is available, i.e. Service Tribunal which could, in case the respondent was having a good case on merits, pass an effective order which may be favourable to the respondent, but the respondent instead of adopting a proper legal course, has divulged himself in the litigation courses which were not available to him under the law . The findings of the High Court whereby the orders passed on representation against the order of Mohtasib were set aside are also not sustainable. Article 9(1) prescribes the jurisdiction, functions and powers of Mohtasib and sub-Article (2) of the Article ibid contains bar thereto as under what circumstances such powers cannot be exercised which reads as under:
9(2). Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein.
The case of the respondent, which pertains to his personal grievance relating to his service clearly falls under the aforesaid sub-article containing bar on the jurisdiction of Mohtasib. The Mohtasib has wrongly assumed jurisdiction while entertaining the complaint of the respondent and giving findings on it, which he could not do and when such matter comes before the Court i.e. consideration of the order of Mohtasib as an ancillary one or incidentally and not under direct challenge, that can very conveniently be ignored i.e. the order being without jurisdiction and without lawful authority. If the same is set aside or reversed on representation as provided under the law, also cannot be set aside on account of any flaw, may be of not giving opportunity of hearing to the respondent as whether it has been set aside on representation or not, the order of Mohtasib on account of lack of jurisdiction would be of no consequence. Consequently, while accepting this appeal judgment of the High Court, impugned herein is set aside. No order as to costs.
(R.A.) Appeal accepted.
PLJ 2007 SC 794
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Tassaduq Hussain Jillani, JJ.
MUNAWAR SHAH--Petitioner
versus
BAHADUR SHAH and 7 others--Respondents
C.P. No. 980 of 2004, decided on 31.10.2006.
(On appeal from the judgment dated 4.3.2004 Peshawar High Court, Abbottabad Bench in C.R. No. 2 of 2000).
Limitation Act, 1908 (IX of 1908)--
----S. 28--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Suit for declaration--Plea of adverse possession, dismissal of--Appeals were also dismissed--Non-maintainability of suit--Plea of prescription--Contention--Petitioner had become owner in possession of the suit property due to open and hostile possession for more than 12 years and also by prescription for being remained in possession as mortgagee for more than 60 years, was repelled--Plea was not available to him as Section 28 of the Limitation Act, had been declared repugnant to the injunctions of Islam--Right in the property could not be extinguished that the impugned judgment was based on valid and solid reasons and was entirely in consonance with the law laid down by Supreme Court--No misreading/non-reading or misconstruction of facts or law--Leave to appeal was refused.
[P. 796] A & B
1991 SCMR 2963, rel.
Raja Muhammad Ibrahim Satti, ASC for Petitioner.
Roy M. Nawaz Kharal, ASC Mr. M.A. Zaidi, AOR, for Respondents.
Date of hearing: 31.10.2006.
Judgment
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 4.3.2004 of a learned Judge in Chambers of the Peshawar High Court, Abbottabad Bench, whereby Civil Revision No. 2 of 2000 filed by him was dismissed.
Briefly, stated the facts giving rise to the filing of instant petition are that petitioner filed a suit against respondents for declaration that he is the owner in possession of the suit land situated in village Neelore Tehsil and District Mansehra for being remained in possession as mortgagee for more than 60 years as well as being in adverse possession for more than 12 years and the respondents have lost their rights of ownership and mortgagor in the suit land.
The suit was contested by the respondents by filing their written statement on various grounds that the suit is not within time and also not maintainable in its present form and that Respondents No. 4 to 8 are bona fide purchasers of the land but ultimately the suit was dismissed vide judgment and decree dated 20.2.1995 mainly on the ground that plea of prescription is not available to the petitioner and also that the exclusive possession over the suit land hostile to the respondents has not been proved. Petitioner filed appeal before the District Judge, Mansehra, which was dismissed, vide judgment dated 23.11.1999 holding that Section 28 of the Act, 1908 (Act No. IX of 1908)(hereinafter referred to as `the Act') has been declared repugnant to the Injunctions of Islam and as such not applicable to the present case. Feeling aggrieved, the petitioner assailed the said judgment before the learned High Court in the above mention civil revision, which was dismissed, vide impugned judgment.
We have heard Raja Muhammad Ibrahim Satti, learned ASC for the petitioner and Roy Muhammad Nawaz Kharal, learned ASC for respondents and have gone through the record and proceedings of the case in minute particulars.
Raja Muhammad Ibrahim Satti, learned ASC for the petitioner has argued that the findings of the Courts below suffer from misreading and non-reading of material evidence on record and also from wrong appreciation of facts and law involved in the case. He further argued that the Courts below have erred in holding that since Section 28 of the Act has been declared un-Islamic by the learned Shariat Appellate Bench of this Court, the petitioner could not claim to have prescribed his titled through adverse possession. He contended that Section 28 of the Act has been declared to be ineffective and non-existent from 31.8.1991 only and the rights which had already matured before 31.8.1991 on account of adverse possession have not been affected by the said judgment because the petitioner had prescribed his titled through adverse possession long before 31.8.1991. He further contended that petitioner has successfully proved his adverse possession through evidence. According to him the learned trial Court even did not frame the issues properly which arose out of the pleadings of the parties.
On the other hand Roy Muhammad Nawaz Kharal, learned ASC for respondents vehemently controverted the view-point as canvassed by learned counsel for petitioner and supported the impugned judgment being free from any illegality or serious irregularity.
The main point, which requires serious consideration, is whether the petitioner has matured his title through adverse possession. The petitioner claimed that respondents have lost their rights of ownership and status of mortgagors over the suit property and he has become owner in possession of the same due to open and hostile possession for more than 12 years and also by prescription for being remained in possession as mortgagee for more than 60 years. We are of the opinion that this plea is not available to him inasmuch as Section 28 of the Act has been declared repugnant to the injunctions of Islam by this Court in the case of Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR 2963) wherein it has been held that Section 28 of the Act is repugnant to the Injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the said property and that this decision shall take effect from 31st of August, 1991 and on this date Section 28 of the Act shall also cease to have effect.
For what has been discussed above, we are of the considered opinion that impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material brought on record or misconstruction of facts or law.
Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(N.J.) Leave to appeal refused.
PLJ 2007 SC 797
[Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Hamid Ali Mirza, JJ.
REHMATULLAH and others--Petitioners
versus
SALEH KHAN and others--Respondents
C.P. No. 1081 of 2006, decided on 11.12.2006.
(On appeal from the judgment dated 13.9.2006 passed by the Peshawar High Court, D.I. Khan Bench, in C.R. No. 118 of 2003).
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 118 & 119--Mutation registers with its entries--Attestation of--Mutation--Evidentiary value of--Onus to prove--Beneficiaries liable--Principle--Entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record--Any person who is acquiring title through mutation, the burden of proof of proving transaction embodied in mutation is upon him--Mutation by themselves do not create title and the persons deriving title thereunder have to prove transferred did part with the ownership of the property--Mutation in favour of the transferee and that mutation was duly entered and attested--Mutation is to be proved the through evidence. [Pp. 801 & 802] A & C
Mutation--
----Presumption--An attested mutation may carry a rebuttable presumption. [P. 801] B
Mutation--
----Procedure--Recording of mutation requirement party consent notice mutation has to be recorded in the presence of parties with their consent or upon due notice them. [P. 802] D
1992 MLD 833 and PLD 1958 SC 104;
Interpretation of law--
----Basic order--Illegal--Consequences--Principle upon basic order is without lawful authority then all the superstructure shall fall on the ground automatically. [P. 802] E
Limitation--
----Limitation in void order & inheritance--Validity--Principle limitation cannot run against void order--Question of limitation does not arise in inheritance case. [P. 802] F
1987 SCMR 119; PLD 1992 SC 825; PLD 1975 SC 331 & PLD 1990 SC 1.
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 9--Non-joinder of party--Effects--Non-impleading of party, suit cannot be dismissed. [P. 802] G
PLD 1992 SC 590.
Constitutional jurisdiction--
----Constitutional jurisdiction is discretionary in nature--Maxim--He who seeks equity must come with clean hands. [P. 802] H
PLD 1988 Lah. 725 and PLD 1989 SC 166;
Mr. Abdul Karim Khan Kundi, ASC with Ch. Muhammad Akram, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 11.12.2006.
Judgment
Ch. Ijaz Ahmad, J.--Respondents Saleh Khan and others filed suit for declaration against the petitioners in the Court of Civil Judge Tank on 12.12.1991. The contents of the plaint reveal that Saleh Khan and others filed a suit against the present petitioners/defendants for declaration to the effect that they are owners in possession of land measuring 421 kanals 05 marlas according to their shari share being legal heirs of Mst. Zar Bibi and Mst. Janat Bibi and the petitioners/defendants have got no concern with the land exceeding shari share of their father Sarwar Khan and that Mutation No. 3763 attested on 17.12.1939 being wrong, fictitious, collusive, based on fraud is ineffective upon the rights of respondents/plaintiffs. They also prayed for possession of the land. They have also made a prayer for permanent injunction restraining the petitioners/defendants for making interference in their possession and use of trees and grass etc. The petitioners/defendants filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 10 issues and vide judgment and decree dated 29.7.2002 dismissed the suit. Respondents/Plaintiffs being aggrieved filed appeal in the Court of District Judge Tank which was accepted vide judgment and decree dated 26.6.2003. Thereafter the petitioners filed civil revision in the Peshawar High Court, D.I.Khan Bench which was dismissed vide impugned judgment. Hence, the present petition.
The learned counsel for the petitioners submits that trial Court was justified to dismiss the suit of the respondents whereas the First Appellate Court and learned High Court erred in law to reverse the same. He further submits that both the Courts below had mis-read the record and decided the case against the petitioners without any justification. He further submits that it was in the knowledge of the respondents well in time and the respondents had filed the suit after 52 years and this fact was not considered in its true perspective. The learned trial Court was justified to dismiss the suit as time barred. He further submits that one of the legal heirs of Mst. Zar Bibi filed suit for declaration which was dismissed and it was in the knowledge of the respondents but this fact was not considered by the Courts below. He further submits that petitioners had secured a decree on the basis of mortgage and this fact was also not considered in its true perspective. He further submits that affidavits were filed before the First Appellate Court and the High Court by the respondents that the case was filed by the respondents only on political reasons and they did not want to proceed with the case and this aspect of the case was also not considered by the Courts below. He further submits that collateral were not made party, therefore, learned Courts below were not justified to reverse the judgment of the trial Court and this fact was also not considered in its true perspective. He further maintains that one of the legal heirs of Mst. Bani objected to the mutation before revenue authorities in the year 1939 which was rejected, therefore, respondents had knowledge of the mutation since then as the Mutation No. 3763 was attested on 17.12.1939, hence Courts below erred in law that respondents/plaintiffs got knowledge of the mutation in 1986. Moreover Respondents/Plaintiffs were the mortgages of the land, therefore, they had knowledge of proceedings in relation to the redemption of mortgage to the mortgager. He further urges that petitioners/their predecessor-in-interest have taken possession of the land in question in view of oral sale agreed/accepted between Mst. Bani, the vendor and Sarwar Khan, the vendee. The said alienation was completed when the sale consideration was received by the vendor. After the said sale the respondents/plaintiffs acquired their inheritance respective predecessors i.e. Mst. Janat Bibi and Mst. Zar Bibi vide Mutation No. 3849 dated 11-5-1941, Mutation No. 6105 dated 23-7-1963, Mutation No. 6611 dated 11.2.1966, the suit land was not included in the inheritance, therefore, they did have knowledge and this fact was not considered by the Courts below in its true perspective.
We have considered the submissions made by counsel for the petitioner and perused the record. It is better and proper to reproduce issued framed by the trial Court out of the divergent pleas of the parties to resolve the controversy between the parties:--
"1. Whether plaintiffs have got a cause of action?
Whether this Court has got jurisdiction?
Whether plaintiffs have waived their right if any?
Whether suit is liable to be dismissed being malafide?
Whether suit is within time?
Whether plaintiffs are owners in the suit land being legal heirs of Mst. Zar Bibi and Mst. Janat Bibi?
Whether Mutation No. 3762 dated 17.12.1993 in favour of the predecessor of defendants is wrong, collusive, fraudulent and ineffective on the rights of plaintiffs?
Whether plaintiffs are entitled to the decree for declaration and permanent injunction as prayed for?
Whether plaintiffs are entitled to the possession of suit land in the alternative?
Relief."
Some of the grounds i.e. (i) Respondents/plaintiffs are legal heirs of Mst. Bani or not, (ii) validation of mutation of sale, (iii) limitation and (iv) non impleadment of necessary parties, raised before us are exactly the same which were raised before the learned High Court and were rejected with cogent reasons by the learned High Court in the impugned judgment vide Paragraphs No. 7 to 10. The remaining grounds which were contended before us by the learned counsel for the petitioners were not agitated before the learned High Court as is evident from para 3 of the impugned judgment. It is a settled law that parties are bound by their pleadings as law laid down by this Court in Mst. Murad Begum's case (PLD 1974 SC 322). It is also a settled law that this Court does not, normally, allow the parties to raise fresh pleas before this Court as law laid down by this Court and Privy Council. See Ashfaqur Rehman's case (PLD 1971 SC 766) and John E. Brownlee's case (AIR 1940 P.C. 219). In view of the law laid down by this Court remaining pleas raised by the learned counsel of the petitioners have no force. The learned High Court had taken lot of pain to consider each and every piece of evidence to find out the validity of mutation of sale in question as is evident from para 8 of the impugned judgment which is reproduced herein:--
"As far as the validity of impugned sale mutation is concerned it was entered at the instance of Sarwar the predecessor of petitioners on 19.8.1939 and in column No. 13 of the mutation the sale consideration was shown as Rs.500/-. The mutation was presented before the Revenue Officer for attestation on 27.8.1939 but on that day Mst. Bani, the alleged vendor, did not appear before him. On 27.9.1939 the mutation again came up before the Revenue Officer and on that Mst. Bani had appeared before him. She was accompanied by one Habibullah Lumberdar who told the Revenue Officer that she admits the receipt of sale consideration of Rs.240/-. However, when questioned by the Revenue Officer Mst. Bani told him that she cannot tell as to how much amount she had received. At the same time the alleged vendee told the Revenue Officer that she had received Rs.1000/- as sale consideration. In view of the above contradictory statements of the parties and that of Lumberdar the Revenue Officer made an order that the mutation be put up in the presence of the heirs of Mst. Bani. However, soon after 27.9.1939 Mst. Bani died and the Revenue Officer attested the sale mutation on 17.12.1939 in the absence of her legal heirs mentioning the receipt of sale consideration of Rs.240/-. It is admitted fact that Mst. Bani was an illiterate lady. The entry dated 27.9.1939 recorded in the impugned mutation reveals that she knew nothing about the contents of impugned sale mutation and she was incapable of understanding the nature of the transaction. She had neither admitted the receipt of sale consideration nor there is any evidence on record establishing the payment of alleged sale consideration. It was, therefore, rightly held by the learned District Judge that the attestation of impugned mutation was the result of fraud and collusion and it was ineffective over the rights of the plaintiffs who being the successors in interest of Mst. Bani are entitled to get their share in the suit property. "
Mere reading of the aforesaid paragraph we are of the view that learned High Court had rightly come to the conclusion that attestation of impugned mutation was the result of fraud and collusion. It is settled law that entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record. It is settled law that any person who is acquiring title through mutation, the burden of proof of proving transaction embodied in the mutation, is upon him. It is also settled law that mutations by themselves do not create title and the persons deriving title thereunder have to prove that transferred did part with the ownership of the property, the subject of mutation in favour of the transferee and that the mutation was duly entered and attested as law laid down by this Court in Hakim Khan's case (1992 SCMR 1832) and Muhammad Ali's case (NLR 1993 A.C. (Civil) 250). It is settled law that an attested mutation may carry a rebutable presumption. See Karam Shah's case (1988 CLC 1812) and Ghulam Muhammad's case (NLR 1992 C.L.J 405). Mutation is to be proved through evidence of title. See Muhammad Din's case (1992 ALD 459). Even mutation has to be recorded in the presence of the parties with their consent or upon due notice to them. See Muhammad Shah's case (1992 MLD 833). The petitioners have failed to prove that sale price was paid to the original owner as evident from para 8 of the impugned judgment, therefore, there was no sale in the eyes of law as law laid down by this Court in Muhammad Shafi's case (PLD 1986 SC 519). It is settled law when the basic order is without lawful authority then all the super structure shall fall on the ground automatically as law laid down by this Court in Yousaf Ali's case (PLD 1958 SC 104) and Crescent Sugar Mills' case (PLD 1982 Lah 1). It is now by settled law that limitation cannot run against void order. See Pakistan Post Office's case (1987 SCMR 1119), Raja Mohammad Fazil Khan's case (PLD 1975 SC 331) and Muhammad Masihuzzaman's case (PLD 1992 SC 825). It is also settled law that question of limitation does not arise in inheritance cases. See Mst. Fazal Jan's case (NLR 1993 Revenue SC 8) and Ghulam Ali's case (PLD 1990 SC 1). It is pertinent to mention here that fraud vitiates even solemn orders as held by this Court in Muhammad Fazil Khan's case supra. It is settled law that for non impleading of party, suit cannot be dismissed as law laid down by this Court in Central Government of Pakistan's case (PLD 1992 SC 590). It is admitted facts that both the Courts below had held that mutation was proved to be fraudulent and thus it was a question of fact on which both the Courts below including the High Court had rightly come to a conclusion to declare mutation as not genuine. This Court, as a rule, should give due weight and consideration to the opinion of the Courts below, therefore this Court, does not normally interfere with the findings of fact reached by a High Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence as law laid down by this Court in Malik Muhammad Ishaque's case (PLD 1977 SC 109).
We do not find any infirmity or illegality in the impugned judgment. It is settled law that constitutional jurisdiction is discretionary in nature. He who seeks equity must come with clean hands. In view of the conduct of the petitioners we are not inclined to exercise our discretion in favour of the petitioners as law laid down by this Court in the following judgments:--
Muhammad Sharif's case (PLD 1988 Lah 725);
Haji Saifullah's case (PLD 1989 SC 166);
Nawabzada Raunak Ali's case (PLD 1973 SC 236);
Qutubuddin's (1976 SCMR 524);
SC M. Shakoor v. Federal Public Service Commission PLJ
(Iftikhar Muhammad Chauhdry, C.J.)
2007 M. Shakoor v. Federal Public Service Commission SC
(Iftikhar Muhammad Chauhdry, C.J.)
(W.I.) Leave refused.
PLJ 2007 SC 803
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chauhdry, C.J., Mian Shakirullah Jan & Saiyed Saeed Ashhad, JJ.
MUHAMMAD SHAKOOR and another--Appellants
versus
FEDERAL PUBLIC SERVICE COMMISSION and others--Respondents
C.A. Nos. 2227 of 2005 & 1629 of 2006, decided on 23.1.2007.
(On appeal from the judgment dated 19.4.2002 and 10.6.2002 passed by Lahore High Court, Lahore in W.Ps. 19477/2000 and 24015/2000).
Competitive Examination--
----Statutory rules--Purpose of--Framing of rules--Equal opportunity--Object--Equity to candidates--Principle--Statutory rules for the purpose of CSS examination are framed to provide equal opportunity to all the candidates who are contesting from the various places of the Territory of Pakistan as well as from AJK. [P. 807] A
Central Superior Examination Rules, 1999--
----R. 6(iii)(i)--Domicile certificate--No substitution to enjoy better fruit--Principle--A person who entered into a Govt. service on the basis of any domicile certificate would not be allowed to change his domicile certificate in the future service--Held: Once a person had expressed his intention to be a domicile of a particular area he cannot change his place of domicile certificate subsequently for the purpose of getting better benefits. [P. 807] B & C
1980 SCMR 456;
Mr. Muhammad Arif Raja, ASC for Appellant (in CA 2227/05).
Mr. Farooq Amjad Meer, ASC for Appellant (in C.A. 1629 of 2006).
Mr. Nasir Saeed Sheikh, DAG for Respondents.
Date of hearing: 23.1.2007.
Order
Iftikhar Muhammad Chaudhry, CJ.--Listed appeals are by the leave of the Court. Leave granting order from one of the appeals (CA 2227/05) is reproduced herein below:
"After hearing the learned counsel for the petitioner as well as the learned Deputy Attorney General for Pakistan, we grant leave to appeal to consider as to which of the clauses of Rule 6 of the Rules for Competitive Examination, 1996, were attracted to the facts and circumstances of the case."
W.P. No. 24015 of 2000
The petitioner claims to be a subject/national of State of Jammu and Kashmir and a permanent resident of Azad Jammu & Kashmir and a permanent resident of Azad Jammu & Kashmir. He appeared in the Central Superior Services (herinafter referred to as CSS) Examination held in 1993 claiming himself to be a subject of Jammu & Kashmir State but could not qualify the said examination. He however, appeared in the Provincial Civil Service competitive examination of the Punjab held in 1994 on the strength of his domicile of Punjab held in 1994 on the strength of his domicile of Punjab, was selected and joined as Extra Assistant Commissioner in 1995. He again appeared in the C.S.S. Examination of 1999 claiming himself to be a national of Jammu and Kashmir. However, vide letter dated 23.6.2000 of the Federal Public Service Commission he was informed that the Commission had accepted his domicile as Punjab in terms of Rule 6 (ii) (i) of the C.S.S. examination Rules 1999. The petitioner made a representation which was rejected vide order dated 31.7.2000 the said orders have been assailed in this constitutional petition with a prayer that the respondents be directed to consider the petitioner for appointment against the vacancies reserved for Azad Jammu & Kashmir. It may be noted that petitioner was selected in 1999 C.S.S. examination and on the basis of his domicile of the Punjab allocated to the Income Tax Group. Vide order dated 4.12.2000 of this Court he was permitted to join the said group without prejudice to his right to seek decision of the present petition.
Writ Petition No. 19477 of 2000
This petition pertains to the C.S.S examination held in 1996. The case of the petitioner is that his father was Class 1 subject of the State of Jammu and Kashmir and had migrated to Sialkot District as Azad Jammu & Kashmir refuge in the year 1982. He unsuccessfully appeared in the C.S.S examinations held in the year 1988 and 1992. Meanwhile, he was selected and appointed as Drug Inspector in the Service of the Government of the Punjab in the Health Department on 16.10.1988. He again appeared in C.S.S. examination held in the year 1996. According to the averments of the writ petition, the petitioner had competed against the posts reserved for A.J.K candidates in all the three CSS examination. On 3.5.1997 the petitioner was informed that the Federal Public Service Commission had accepted his domicile as Punjab in terms of Rule 6(iii)(g) of the Rules for the competitive examination 1996 the petitioner was selected in 1996 examination and on the basis of the Punjab domicile he was allocated to the Postal Group which he joined. It is averred that on 12.5.1997, the petitioner had filed a representation before the Federal Public Service Commission and again filed a representation before the learned Chairman of the Federal Public Service Commission on 15.8.2000 which was rejected vide order dated 11.9.2000.
In this petition the prayer made is that the Federal Public Service Commission be directed to appoint him against the quota reserved for Azad Jammu and Kashmir candidates. It is averred that a vacancy pertaining to the year 1996 is still available in the Income Tax and Central Excise group.
In the report and parawise comments submitted by the Federal Public Service Commission the position taken in both the cases is that the petitioners in both the cases had joined Government service on the basis of Punjab domicile which was accepted in terms of Rule 6 (iii)(i) and 6(iii)(g) for the CSS examinations held in 1999 and 1996 respectively. The rule was the same for the aforesaid examinations.
The appellants after having qualifying CSS examination in the year 1999 and 1996 respectively were allocated professional groups of Income Tax and Postal Service respectively treating them to be the domicile of Province of Punjab. It was their claim that as they belong to AJK therefore, they should be allocated against quota of AJK. It seems that request made by them was not entertained, as such they instituted writ petitions before the High Court which have been dismissed by means of impugned judgment.
Mr. Farooq Amjad Meer learned counsel in CA 1629 who has taken main burdon of arguing the case alongwith Mr. Arif Raja, ASC in CA 2227/05 has contended that the appellants belong to AJK and they have placed material on record for the purpose of substantiating their plea namely that they have wrongly been allocated professional groups from Province of Punjab. In this behalf he has referred certain documents as well as the rules, particularly the CSS Examination Rules for competitive examination for the year 1996 and 1999 respectively. He argued that the candidates who are residents of AJK Territory get more benefits in the age limit and their eligibility would be examined on the basis of nationality of AJK, therefore, according to him the Rule 6(iii)(i) would not be applicable because once they have been joined to be the domicile from the AJK, they are eligible for accommodation against the reserved quota from there. It may be noted that the rule which is being relied upon namely Rule (6)(iii)(g)(h) and (i) were identical for the examination of 1996 and 1999, therefore, sub-rules (g), (h), (i) are reproduced herein below:--
(g) The domicile claimed by a candidate and accepted by the Government as the time entry into Government service shall be treated as final throughout his/her service career and no subsequent change in his/her domicile will be recognized for the purpose of terms and conditions of his/her service including his/her allocation and liability to transfer.
(h) The domicile once claimed and accepted by the Commission for the purpose of admission to an examination, no change will be allowed at a subsequent examination or selection.
(i) Only those candidates shall be considered for vacancies reserved for Azad Jammu and Kashmir whose application forms for the Competitive Examination are accompanied by the domicile certificate alongwith Permanent Residence Certificate, issued by the Kashmir Affairs Division, of that territory. No such certificates shall be accepted at any later stage.
It is an admitted position that Muhammad Shakoor (CA 2227/05) joined service in the Health Department of the Government of Punjab before appearing in the CSS examination on the basis of the domicile certificate of Punjab. Similarly Rehan Safdar (CA 1629/06) was selected by Provincial Public Service Commission as Extra Assistant Commissioner on the basis of domicile certificate of Punjab. The appellants on filing the examination forms for the purpose of CSS examination both under Rules 1996 and 1999 were fully aware about the situation that earlier they had taken the benefit as the domicile certificate of Punjab and on the basis of the same they joined service in the Provincial Cadre, therefore, the learned High Court on having taken into consideration this aspect of the case came to the conclusion that as they have entered into the service of Provincial Government as domicile of Punjab, therefore, they cannot change position now by saying that they are domicile of AJK, therefore, their allocation may be made from the quota reserved for AJK. In this behalf it is to be noted that the statutory rules For the purpose of CSS examination are framed to provide equal opportunity to all the candidates who are contesting from the various places of the Territory of Pakistan as well as from AJK. Competitive examination allows opportunities to all such candidates to compete for the examination and then the allocations are made in the Professional Groups and the rules are not supposed to cause prejudice to any of the candidate competing for the examination. For example the appellants who had applied for CSS examination in 1996, 1999 had in fact deprived so many candidates from the Province of Punjab from where they were claiming themselves as domiciles when they joined Provincial Service. Thus once they had taken the benefit of a domicile certificate issued in their favour from a particular Province then they are not allowed to claim further benefits in examination on managing to get domicile certificate from an area where more benefits are extended in service like A.J.K. As in the instant case appellants joined Provincial Service as Drug Inspector and Extra Assistant Commissioner on basis of domicile certificate, therefore, they deprived genuine candidates from the Province of Punjab for the purpose of competing for both the seats because at that time their claim was that they belong to Punjab.
To avoid such situation the rules framers have provided in Rule 6(iii)(i) that a person who entered into a Government Service on the basis of any domicile certificate would not be allowed to change his domicile certificate in the future service. In this context it may be noted that learned High Court rightly observed that Government service does not mean that only the service of Federation of Pakistan but it also include the service of Provinces which have been accepted/joined by the appellants on the basis of the domicile certificate of that area. A perusal of Rule 6(iii)(i) clearly indicates that once a person had expressed his intention to be a domicile of a particular area he cannot change his place of domicile certificate subsequently for the purpose of getting better benefits. The expression domicile came for consideration before this Court in the case of Muhammad Yar Khan Vs. Deputy Commissioner Political Agent, Loralai (1980 SCMR 456). The ratio of the said judgment is that as far as the domicile certificates are concerned they are obtained for the purpose of admission in professional colleges as well as for job and once a person has decided by showing his intention to be a domicile of a particular area, he is to be treated the domicile from that area for all intents and purposes. It seems that as far as the Rule 6(iii)(i) is concerned it has been framed in the light of the observations which have been made by this Court in the judgment noted above. Thus we are of the opinion that under the circumstances, learned High Court was justified in not issuing writ in favour of the appellants.
For the foregoing reasons, both the appeals are dismissed. No order as to costs.
(W.I.) Appeals dismissed.
PLJ 2007 SC 808
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chauhdry, C.J., Mian Shakirullah Jan & Saiyed Saeed Ashhad, JJ.
Sardar MUHAMMAD AMIR KHAN--Petitioner
versus
NADEEM AKHTAR & others--Respondents
C.P. No. 1115 of 2006, decided on 8.2.2007.
(On appeal from the judgment dated 14.11.2006 passed by Lahore High Court, Rawalpindi Bench in I.C.A. No. 100/2006).
Constitution of Pakistan, 1973--
----Art. 185(3)--Election for the office Nazim Union Council--Election
of returned candidate--Successful--Disqualification--Ground--Notorious--Concealment of the assets--Not mentioned in nomination papers--Dismissed--Concealment of assets was not mentioned in the nomination papers, however, it was the duty of petitioner to establish on record through positive evidence that disqualification was notorious and in excess of such evidence the votes secured by a successful candidate could not be thrown away and the candidates securing next highest votes could not be declared elected--Although petitioner has succeeded to bring on record that (deceased) concealed his assets but no evidence was brought on record about notoriety of disqualification--Leave to appeal was refused. [P. 810] A
Mr. Abdul Karim Khan Kundi, ASC for Petitioner.
Sh. Zamir Hussain, ASC for Respondents.
Mr. Ashraf Aatif, Respondent No. 5 (in person).
Date of hearing: 8.2.2007.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed against the judgment dated 14.11.2006 passed by a Division Bench of Lahore High Court whereby the order dated 19th July, 2006 passed by a learned single Judge in Chambers and the order of Election Tribunal dated 15th June, 2006 were set aside.
"For what has been discussed above, we are of the considered view that the judgments of the learned Election Tribunal as well as learned Single Judge in Chamber are not sustainable in law to the extent of declaring Respondent No. 2 as returned candidate. Similarly, holding Respondent No. 4 (Naib Nazim in the penal of returned candidate) as validly elected in un-lawful. The judgments to the above extent are set aside. Election of returned candidate is declared to be void as a whole. "
Learned counsel contended that as the petitioner had secured second highest number of votes for the office of Nazim, therefore, he was rightly ordered to be declared successful in place of Amir Khan (deceased) as according to him the disqualification on the ground of concealment of the assets was notorious, therefore, principle of law laid down by this Court in the judgment relied upon by the Division Bench of High Court while deciding ICA was not applicable.
We have heard learned counsel and examined the impugned judgment as well the judgment passed by High Court in writ petition dated 19th July, 2006 and the judgment of Election Tribunal in Election Petition dated 15th June, 2006. In this behalf it may be noted that learned Election Tribunal while disposing of the matter has declared that Amir Khan (deceased) had concealed his assets. Admittedly this fact was not mentioned in the nomination papers, however, it was the duty of the petitioner to establish on record through positive evidence that disqualification was notorious and in excess of such evidence the votes secured by a successful candidate could not be thrown away and the candidates securing next highest votes could not be declared elected. Although petitioner has succeeded to bring on record that Amir Khan (deceased) concealed his assets but no evidence was brought on record about notoriety of disqualification. This fact has been highlighted in the case of Ellahi Bakhsh Vs. District and Sessions Judge, Rajanpur (PLD 2003 SC 268). Relevant para there from is reproduced herein below:
Notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence which is lacking in the present case. There is yet another circumstance which goes a long way to show that the disqualification of the respondent was not notorious. The material on record makes it manifest that at the time of scrutiny of the nomination papers of the respondent no objection was raised against his candidature. Consequently, the petition is dismissed and leave refused.
It may be noted that above conclusion has been drawn on having taken into consideration the judgments in the cases of Lal Muhammad Vs. Muhammad Usman and others (1975 SCMR 409), Syed Saeed Hassan vs. Pyar Ali (PLD 1976 SC 6) with reference to parameters of notoriety of disqualification of a returned candidate highlighted in paragraph 549 of Halsbury's Laws of England, Volume 14 and in the case of Junaid Ahmad Soomro Vs. Haji Mehboob Ali Bhayo and others (PLD 1986 SC 689). The above principle has been reiterated by this Court in the case of Sheikh Amjad Aziz Vs. Haroon Akhtar Khan (2004 SCMR 1484) and Shaukat Ali Vs. District Returning Officer and another (PLD 2006 SC 78).
Thus for the foregoing reasons, we are of the opinion that learned Division Bench of High Court exercised its jurisdiction according to law leaving no scope for this Court to grant leave to appeal in the instant proceedings.
Petition is dismissed and leave to appeal declined.
(N.F.) Leave declined.
PLJ 2007 SC 811
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Nasir-ul-Mulk, JJ.
GOVERNMENT OF PUNJAB through Secretary Housing & Physical Planning & Environmental Planning Lahore & others--Appellants
versus
MUHAMMAD ISMAIL KHAN BHATTI--Respondent
C.A. No. 1879 of 2001, decided on 2.2.2007.
(On appeal from the order dated 19.1.2001 of the Lahore High Court, Lahore passed in WP No. 7572/98)
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Quota reserved for journalists--Eligible for allotment of plot--Appellant invited applications from journalists for allotment of plots--Respondent was declared eligible for allotment of plot--Later on appellants denied to issue formal allotment letter--Constitutional jurisdiction was invoked and allowed--Assailed--Subsequent change in policy could not take away the vested right of allotment in favour of respondent--Respondent was found eligible for allotment of plot after completing formalities as such appellants cannot go back to their commitment on the pretext of change in policy--Leave was refused. [P. 813] A & B
Ms. Afshan Ghazanfar, AAG Punjab for the Appellants.
Mr. Muhammad Riaz Lone, ASC for Respondent.
Date of hearing: 2.2.2007
Judgment
Abdul Hameed Dogar, J.--This appeal with leave to this Court is directed against order dated 19.1.2001 passed learned Judge in Chambers of Lahore High Court, Lahore whereby Writ Petition No. 7572 of 1998 filed by respondent was allowed.
Briefly stated facts giving rise to the filing of instant appeal are that Appellant No. 2 invited applications from journalists for allotment of residential plots of various sizes in Development Scheme No. II at Tehsil Samundari, District Faisalabad vide memorandum No. S.O.(D-ll)HP&EP-2-1/86 dated 23.12.1986. The respondent being a Correspondent of Pakistan Press International (PPI) applied for allotment of plot in the above scheme on 25.2.1990 and deposited 20% of the total price of the plot. The application of the respondent was processed and he was declared eligible for allotment of Plot No. 394 measuring 1 kanal. Later on the appellants denied to issue formal allotment letter. Feeling aggrieved, respondent invoked the Constitutional jurisdiction of the Lahore High Court, Lahore through Writ Petition No. 7572 of 1998 which was allowed vide impugned order.
Leave to appeal was granted by this Court on 30.8.2001 to consider inter alia the following contentions:--
(i) Whether by moving an application for allotment of plot reserved against the quota of journalist in the scheme would entitle them to claim the allotment essentially; and
(ii) Whether the provisions of the Disposal of Land Development Authorities (Regulation) Ordinance, 1998 whereby no quota has been reserved for any journalists and advocates etc. would be applicable in the case of appellant.
We have heard Ms. Afshan Ghazanfar, learned AAG Punjab for the appellants and Mr. Muhammad Riaz Lone, learned ASC for the respondent at length and have gone through the record and proceedings of the case in minute particulars.
Learned AAG Punjab vehemently contended that no vested right had accrued in favour of respondent for allotment of the plot in question though his application was accepted. She further contended that Government withdrew the policy on 25.10.1993 through The Disposal of Land Development Authorities (Regulation) Ordinance, 1998 and no quota has been reserved for any category of claimants including journalists and advocates etc. She further contended that respondent was not entitled for the allotment of plot out of the quota for journalist after the abolition of the same. According to her since no allotment letter was issued to respondent, therefore, no right accrued in his favour for the allotment of the plot. She also contended that Civil Petition No. 253-L of 1997 was dismissed by this Court on 5.6.1997 but no law was declared or enunciated on the subject, therefore, question of allotment of the plots against reserved quota can be reconsidered/examined by this Court in view of the fact that scheme for allotment has been cancelled through Ordinance of 1998 except disabled persons no other category of professional are entitled for the allotment of plot against reserved quota.
On the other hand learned counsel appearing for the respondent supported the impugned order and contended that on 25.2.1990 respondent deposited a sum of Rs.13,600/- being the 20% of the total price of the plot reserved for journalist and after processing his application he was allotted Plot No. 394 measuring 1 kanal on 8.2.1994. He further contended that after determination of eligibility by the allotment committee a right stood vested in favour of respondent and by introduction of new policy of allotment or any subsequent change in the policy could not take away that right. According to him, this Court in the case of Secretary to Government of Punjab, Housing Physical and Environmental Planning Department, Lahore Vs. Muhammad Ismail Khan Bhatti (CP No. 1266-L of 2001) involving similar controversy observed as under:--
"Since the respondent was found to be eligible to the allotment of the plot and as a matter of facts had to be allotted a plot, the petitioner cannot go back upon his commitment and any change in the policy could not be applied retrospectively to the respondent."
(R.A.) Appeal dismissed.
PLJ 2007 SC 814
[Original Jurisdiction]
Present: Khalil-ur-Rehman Ramday, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M. Javed Buttar, Tassaduq Hussain Jillani, Saiyed Saeed Ashhad, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Syed Jamshed Ali, Hamid Ali Mirza and Ghulam Rabbani, JJ.
CHIEF JUSTICE OF PAKISTAN, MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY--Petitioner
versus
THE PRESIDENT OF PAKISTAN through the Secretary
and others--Respondents
Constitution Petition Nos. 21, 7, 8, 10, 11, 12, 15, 16, 18, 19, 22, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 38 & 40 of 2007, C.M. Appeal Nos. 22 &
27 of 2007, decided on 20.7.2007.
Constitution of Pakistan, 1973--
----Arts. 184(3) & 187--Reference against Chief Justice of Supreme Court by President--Before Supreme Judicial Council--Assailed--Constitutional petition--Maintainability--Petition was unanimously declared maintainable. [P. 818] A
Constitution of Pakistan, 1973--
----Art. 209(5)--Supreme Judicial Council--Reference against Chief Justice of Pakistan by President--Challenged through Constitutional petition--By majority view direction (Reference) is set aside.
[P. 818] B
Judges (Compulsory Leave) Order--
----President Order No. 27 of 1970--Validity of the order--Challenged before Supreme Court--Order dated 15.3.2007 is unanimously declared to have been passed without lawful authority.
[Pp. 818 & 819] C
Appointment of Acting Chief Justice--
----Validity of appointment of Acting Chief Justice--Constitutional petition before Supreme Court--Appointment in-question are unanimously declared to have been made without lawful authority.
[P. 819] D
Ch. Aitzaz Ahsan, Sr. ASC, Mr. Hamid Khan, Sr. ASC, Mr. M.S. Khattak, AOR Assisted by Barrister Gohar Ali Khan, Mr. Nadeem Ahmed and Mr. Shahid Saeed, Advocates (under special permission granted by this Court) for Petitioner (in Const. P. No. 21 of 2007).
Mr. Makhdoom Ali Khan, Attorney General for Pakistan, Raja Abdul Ghafoor, AOR Assisted by Mr. Khurram Hashmi and Mr. Umair Majeed Malik, Advocates (under special permission granted by this Court) on Court' Notices (in Const. P. No. 21 of 2007).
Syed Sharifuddin Pirzada, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC Assisted by Mr. Waqar Rana, Advocate (under special permission granted by this Court) for Respondent No. 1 (in Const. P. No. 21 of 2007).
Mr. Maqbool Ellahi Malik, Sr. ASC, Malik Muhammad Qayyum, ASC, Mr. Shaukat Ali Mehr, ASC Ch. Akhtar Ali, AOR Assisted by Mr. Muhammad Ahmed Qayyum, Advocate (under special permission granted by this Court) for Respondent No. 2 (in Const. P. No. 21 of 2007).
Syed Zafar Abbas Naqvi, AOR for Respondent No. 3 (in Const. P. No. 21 of 2007).
Nemo for Respondents No. 4 & 5 (in Const. P. No. 21 of 2007).
Mr. Aftab Iqbal Chaudhary, A.G. Punjab, Ch. Muhammad Hussain, Addl. A.G. and Rao Muhammad Yousaf Khan, AOR for Respondent No. 6 (in Const. P. No. 21 of 2007).
Petitioner in person (in Const. P. No. 7 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 1 (in Const. P. No. 7 of 2007).
Barrister Zafar Ullah Khan, ASC with Mr. G.N. Gohar, AOR for Petitioner (in Const. P. No. 8 of 2007).
Mr. Makhdoom Ali Khan, Attorney General for Pakistan with Raja Abdul Ghafoor, AOR On Court's Notice (in Const. P. No. 8 of 2007).
Sahibzada Ahmed Raza Kasuri, Sr. ASC, Malik Muhammad Qayyum, ASC, Ch. Akhtar Ali, AOR for Respondents (in Const. P. No. 8 of 2007).
Dr. Farooq Hassan, ASC, Mr. Abdur Rasheed Qureshi, ASC and Malik Shakeel-ur-Rehman, ASC for Petitioners (in Const. P. No. 10 of 2007).
Mr. Makhdoom Ali Khan, Attorney General for Pakistan with Raja Abdul Ghafoor, AOR On Court's Notice (in Const. P. No. 10 of 2007).
Malik Muhammad Qayyum, ASC, with Mr. Shaukat Ali Mehr, ASC, Mr. Abdul Sattar Chughtai, ASC, Mr. Abdul Hameed Rana, ASC and Ch. Akhtar Ali, AOR for Respondent No. 1 (in Const. P. No. 10 of 2007).
Petitioner in person (in Const. P. No. 11 of 2007).
Nemo for Respondents (in Const. P. No. 11 of 2007).
Petitioner in person (in Const. P. No. 12 of 2007).
Nemo for Respondent (in Const. P. No. 12 of 2007).
Mr. Muhammad Akram Sheikh, Sr. ASC, Mr. Abdul Rehman Siddiqui, ASC, Mr. Arshad Ali Chaudhry, AOR Assisted by Mr. Mohsin Kamal and Mr. Azid Nafees, Advocates (under special permission granted by this Court) for Petitioner (in Const. P. No. 15 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 1 (in Const. P. No. 15 of 2007).
Engineer Jamil Ahmed Malik (in person) for Petitioner (in Const. P. No. 16 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 1 (in Const. P. No. 16 of 2007).
Mr. Muhammad Akram Sheikh, Sr. ASC with Mr. Arshad Ali Chaudhry, AOR Assisted by Barrister Natalya Kamal and Mr. Ahmed Ahsan, Advocates (under special permission granted by this Court) for Petitioner (in Const. P. No. 18 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 1 (in Const. P. No. 18 of 2007).
Dr. Farooq Hassan, Sr. ASC with Malik Shakeel-ur-Rehman, ASC and Ch. Arshad Ali, AOR for Petitioner (in Const. P. No. 19 of 2007).
Nemo for Respondents (in Const. P. No. 19 of 2007).
Petitioner in person (in Const. P. No. 22 of 2007).
Malik Muhammad Qayyum, ASC with Mr. Pervaiz Alamgir, ASC, Mian Ehsan-ul-Haq Sajid, ASC and Ch. Akhtar Ali, AOR for Respondent No. 1 (in Const. P. No. 22 of 2007).
Mr. Hamid Khan, Sr. ASC with Mirza Aziz Akbar Baig, ASC and Mr. M.S. Khattak, AOR for Petitioner (in Const. P. No. 23 of 2007).
Malik Muhammad Qayyum, ASC with Mr. M. Siddique Mirza, ASC, Mr. Khalid Mahmood Farooqi, ASC, Mr. Shabbir Lali, ASC and Ch. Akhtar Ali, AOR for Respondent No. 2 (in Const. P. No. 23 of 2007).
Mr. Hamid Khan, Sr. ASC with Mr. Rasheed A. Rizvi, ASC, Mr. Shafqat Abbasi, ASC, Hafiz Abdul Rehman Ansari, ASC and Mr. M.S. Khattak, AOR for Petitioners (in Const. P. No. 24 of 2007).
Mr. Ahmed Raza Kasuri, Sr. ASC, Malik Muhammad Qayyum, ASC and Ch. Akhtar Ali, AOR for Respondent No. 2 (in Const. P. No. 24 of 2007).
Mr. Abdul Majeeb Pirzada, Sr. ASC, Ms. Mehreen Anwar Raja, ASC and Mr. M.S. Khattak, AOR for Petitioner (in Const. P. No. 25 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Naseer Ahmed, ASC and Ch. Akhtar Ali, AOR for Respondent No. 2 (in Const. P. No. 25 of 2007).
Mr. Muhammad Akram Sheikh, Sr. ASC, Mr. Arshad Ali Chaudhry, AOR Assisted by Barrister M. Kamran Sheikh, Mr. Rahat Kaunain, Advocate (under special permission granted by this Court) for Petitioners (in Const. P. No. 27 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 1 (in Const. P. No. 27 of 2007).
Syed Mansoor Ali Shah, ASC with Mr. Yahya Afridi, ASC, Mr. Athar Minallah, ASC and Mr. M.S. Khattak, AOR for Appellant (in C.M. Appeal No. 22 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR (in C.M. Appeal No. 22 of 2007).
Appellant in person (in C.M. Appeal No. 27 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 1 (in C.M. Appeal No. 27 of 2007).
Mr. Arshad Ali Chaudhry, ASC/AOR for Petitioner (in Const. Petition No. 30 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 2 (in Const. Petition No. 30 of 2007).
Mr. Rasheed A. Rizvi, ASC with Mr. Abrar Hassan, ASC and Mr. M.S. Khattak, AOR for Petitioner (in Const. Petition No. 31 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 2 (in Const. Petition No. 31 of 2007).
Mr. Ahmed Awais, ASC with Mr. M.S. Khattak, AOR for Petitioner (in Const. Petition No. 32 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 2 (in Const. Petition No. 32 of 2007).
Mr. Fakhar-ud-Din G. Ibrahim, Sr. ASC with Mr. Tariq Mahmood, ASC and Mr. M.S. Khattak, AOR for Petitioner (in Const. Petition No. 33 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 2 (in Const. Petition No. 33 of 2007).
Ch. Naseer Ahmed Bhutta, ASC for Petitioner (in Const. Petition No. 34 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent (in Const. Petition No. 34 of 2007).
Mr. Arshad Ali Chaudhry, ASC/AOR for Petitioner (in Const. Petition No. 35 of 2007).
Malik Muhammad Qayyum, ASC with Ch. Akhtar Ali, AOR for Respondent No. 2 (in Const. Petition No. 35 of 2007).
Syed Iftikhar Hussain Gillani, Sr. ASC with Mr. M.S. Khattak, AOR for Petitioner (in Const. Petition No. 38 of 2007).
Nemo for Respondent (in Const. P. No. 38 of 2007).
Mr. Habib-ul-Wahabul Khairi, ASC for Petitioner (in Const. Petition No. 40 of 2007).
Nemo for Respondent (in Const. Petition No. 40 of 2007).
Dates of hearing: 15 to 17, 21 to 25, 28 to 31.5.2007, 1, 4 to 8, 11 to 14, 18 to 21, 25 to 28.6.2007, 2 to 5, 9 to 12 and 16 to 20.7.2007.
Order
For detailed reasons to be recorded later, the following issues arising out of this petition are decided as under:--
(I) MAINTAINABILITY OF COP NO. 21 OF 2007 FILED UNDER ARTICLE 184(3) OF THE CONSTITUTION
This petition is unanimously declared to be maintainable.
(II) VALIDITY OF THE DIRECTION (THE REFERENCE) ISSUED BY THE PRESIDENT UNDER ARTICLE 209(5) OF THE CONSTITUTION
By a majority of 10 to 3 (Faqir Muhammad Khokhar, J., M. Javed Buttar, J. and Saiyed Saeed Ashhad, J. dissenting), the said direction (the Reference) in question dated March 9, 2007, for separate reasons to be recorded by the Hon. Judges so desiring, is set aside.
(III) VIRES OF JUDGES (COMPULSORY LEAVE) ORDER BEING PRESIDENT'S ORDER NO. 27 OF 1970 AND THE CONSEQUENT VALIDITY OF THE ORDER DATED 15.3.2007 PASSED BY THE PRESIDENT DIRECTING THAT THE CJP SHALL BE ON LEAVE
The said President's Order No. 27 of 1970 is, unanimously declared as ultra vires of the Constitution and consequently the said order of the President dated 15.3.2007 is also, unanimously declared to have been passed without lawful authority.
(IV) VALIDITY OF THE ORDER OF THE PRESIDENT DATED 9.3.2007 AND OF THE ORDER OF THE SAME DATE OF THE SUPREME JUDICIAL COUNCIL RESTRAINING THE CJP FROM ACTING AS A JUDGE OF THE SUPREME COURT AND/OR CHIEF JUSTICE OF PAKISTAN
Both these orders are, unanimously, set aside as being illegal. However, since according to the minority view on the question of the validity of the direction (the Reference) in question, the said Reference had been competently filed by the President, therefore, this Court could pass a restraining order under Article 184(3) read with Article 187 of the Constitution.
(V) VALIDITY OF THE APPOINTMENT OF THE HON'BLE ACTING CHIEF JUSTICES OF PAKISTAN IN VIEW OF THE ANNULMENT OF THE TWO RESTRAINING ORDERS AND THE COMPULSORY LEAVE ORDER IN RESPECT OF THE CJP
The appointments in question of the Hon'ble Acting Chief Justices of Pakistan vide notification dated 9.3.2007 and the notification dated 22.3.2007 are, unanimously, declared to have been made without lawful authority. However, this in-validity shall not affect the ordinary working of the Supreme Court or the discharge of any other Constitutional and/or legal obligations by the Hon'ble Acting Chief Justices of Pakistan during the period in question and this declaration is so made by applying the de-facto doctrine.
(VI) ACCOUNTABILITY OF THE HON'BLE CHIEF JUSTICE OF PAKISTAN
It has never been anybody's case before us that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication. All other legal and Constitutional issues raised before us shall be answered in due course through the detailed judgment/judgments to follow.
ORDER OF THE COURT
By majority of 10 to 3 (Faqir Muhammad Khokhar, J., M. Javed Buttar, J. and Saiyed Saeed Ashhad, J. dissenting), this Constitution Original Petition No. 21 of 2007 filed by Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, is allowed as a result whereof the above-mentioned direction (the Reference) of the President dated March 9, 2007 is set aside. As a further consequence thereof, the petitioner CJP shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.
The other connected petitions shall be listed before the appropriate Benches, in due course, for their disposal in accordance with law.
(R.A.) Original petition allowed.
PLJ 2007 SC 820
[Appellate Jurisdiction]
Present: Javed Iqbal, HACJ, Abdul Hameed Dogar &
Mian Shakirullah Jan, JJ.
CAPITAL DEVELOPMENT AUTHORITY, through its Chairman & another--Petitioners
versus
Mrs. SHAHEEN FAROOQ & another--Respondents
Civil Petitions No. 193 & 194 of 2007, decided 2.4.2007.
(On appeal from judgment dated 20.12.2006 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petitions No. 1325 &
1326 of 2006).
General Clauses Act, 1897 (X of 1897)--
----S. 24-A(1)--Involvement of identical questions of law and fact--Constitutional jurisdiction--Contrary comments--Construction within stipulated period--Order of cancellation of allotments had not been passed by Chairman, as despite repeated asking, counsel for petitioner was unable to point out any document showing that cancellation orders were passed by Chairman except referring to certain documents--Verbal orders had no sanctity--Such orders are alien to process of law and Courts--Held: Judgment of High Court, if not complied within the prescribed period, the same may be complied within a period of one month--If they commit again such default, petitioners may proceed against them strictly in accordance with law and not on their whims and the manner they want--Petition dismissed. [Pp. 822 & 823] A & C
Constitution of Pakistan, 1973--
----Art. 185(3)--General Clauses Act, (X of 1897), S. 24(2)--Common question of law and facts--Commercial plot--Allotment--Conditions of--Order of cancellation of allotment--Assailed--Accepted--Leave to appeal--Question of--Maintainability--Allotment has been rightly cancelled by Member (A) and upheld by the Board--Contrary to--Allotment was cancelled by Chairman, which is conflict with that taken before High Court whereby an attempt had been made to justify the existence of powers in the Member (A) to cancel the allotment, which is not maintainable because it is the powers of the Chairman, who can allot and cancel the plots and who cannot delegate such powers to other officers of Authority--Petitions dismissed. [Pp. 822 & 823] B
Mr. Arif Chaudhry, ASC and Raja Abdul Ghafoor, AOR for Petitioner.
Mr. Waseem Sajjad, Sr. ASC for Respondent No. 1. (in C.P. No. 193 of 2007).
Mr. Abdul Hafeez Pirzada, Sr. ASC For Respondent No. 1 (in C.P. No. 194 of 2007).
Nemo for Respondent No. 2.
Date of hearing: 14.3.2007.
Judgment
Mian Shakirullah Jan, J:--These two petitions involving identical questions of law and fact have been filed by the CDA (Capital Development Authority) against a common judgment passed by Lahore High Court, Rawalpindi Bench, Rawalpindi dated 20.12.2006 whereby writ petitions filed by the respondents/allottees of the commercial plots were accepted and the orders of cancellation of allotment issued by the petitioners were set aside.
The petitioners in both the writ petitions were allotted one commercial plot each on certain terms and conditions, in respect of which respective agreements were also executed.
Since the respondents/allottees did not abide by the conditions of the allotment regarding construction over the plots within stipulated period with a consequential cancellation orders as provided under the regulation/law. The respondents have challenged the cancellation orders in the High Court by invoking its Constitutional jurisdiction and after acceptance of the writ petitions, the petitioners have now approached this Court by filing the instant petitions.
The impugned order is a short one, and the writ petitions were mainly allowed on the ground that learned Legal Adviser for the petitioner had conceded that the cancellation orders were passed by the Director CDA, who had no authority or power to do so.
Learned counsel for the petitioner vehemently contended that concession so made by the Legal Adviser was not in consonance with the facts of the case as it was not the Director, who had passed the order impugned in the writ petitions but it was the Chairman, a competent authority, passed the said orders and the Director had only conveyed the decision. While elaborating his view point, he had referred to some documents showing thereby that it was the Chairman who had cancelled the allotment of the plots through "verbal orders" and the letters, which had been questioned in the writ petitions were only a communication to this effect.
On the other hand, learned counsel for the respondents have strenuously argued that the entire record is indicative of the fact that it was the Director who had passed the impugned orders and not the Chairman and the Director had no authority or power to pass such an order. As such, cancellation orders are null and void and ineffective on the rights of the respondents and were rightly struck down by the High Court. Therefore, impugned order of the High Court does not call for any interference. In this respect, reliance was placed on the case reported as C.D.A. v. Zahid Iqbal (PLD 2004 S.C. 99).
We have gone through the impugned order, relevant record and also attended to rival contentions so raised before us. There is no cavil with the proposition that the order of cancellation of allotments had not been passed by the Chairman, as despite repealed asking, learned counsel for the petitioner was unable to point out any document showing that the cancellation orders were passed by the Chairman except referring to certain documents whereby a reference has been made to the verbal orders of the Chairman. Verbal order has no sanctity in law and such orders are alien to the process of the law and the Courts. All orders passed and acts performed, particularly, by the State/public functionaries and adversely affecting anyone must be in writing, as Section 24-A(1) of the General Clauses Act 1897 envisages that the powers shall be exercised reasonably, fairly and justly and sub-section (2) further make it necessary that the authority passing orders shall, so far as necessary or appropriate, give reasons for making the orders and unless the order is in writing, the reasons and fairness etc thereof cannot be ascertained/adjudged. It may be noted that petitioners in their comments before the High Court, in reply to para (b) of the grounds, it was mentioned that "allotment has been rightly cancelled by Member (A) and upheld by the Board." Contrary to this, today before us a stand has been taken by the learned counsel for the petitioners that allotment was cancelled by the Chairman, which is in conflict with that taken before the High Court whereby an attempt had been made to justify the existence of powers in the Member (A) to cancel the allotments, which is also not maintainable because it is the powers of the Chairman, who can allot and cancel the plots and who cannot delegate such powers to other officers of the Authority as held in C.D.A. v. Zahid Iqbal (supra), relevant para of which is reproduced herein below:--
"12. ........ All matters connected with the allotment, sale etc. and cancellation etc. of plots including commercial plots fell within the list of functions to be performed by the Chairman. The obligations assigned to the Member (Administration), however, did not include the matters relating to sale etc. and cancellation etc. of plots............."
We have not been able to persuade ourselves to agree with the said submission of the learned counsel for the C.D.A. As has been noticed above in some detail, it is the Authority under Section 51 of the Ordinance XXIII of 1960 which had powers to make Regulations to deal with the matters relating to the Authority and in exercise of the said powers, the Authority had made the Conduct of Business Regulation of 1985 according to which Regulation the Estate Management Directorate fell to the share of the Chairman. The learned counsel could not show us any authority vesting in the Chairman either under the Ordinance or any Regulation to assign his functions either to the Members or to other officers in the Authority in derogation of the distribution of business commanded by a Regulation. In this view of the matter the above noticed Office Order dated 29.2.1988 issued by the Chairman allotting the business assigned to him to the Member (Administration) was an order without lawful authority."
Much emphasis has been placed by the learned counsel for the petitioners that concession made by the Legal Adviser before the High Court, as noted in the impugned order, cannot stand as it is not in line with the facts of the case and the relevant regulations/rules, as such, Legal Adviser was not authorized to make such concession. In our view, as held in the case cited above, stand taken by the Legal Adviser is quite in consonance with the facts of the case and the law and regulations on the subject as interpreted by this Court in the above cited judgment.
However, before parting with the judgment, it may be observed that judgment of the High Court, if not complied within the prescribed period, the same may be complied within a period of one month, as mentioned in the impugned judgment, from today. If they commit again such default, the petitioners may proceed against them strictly in accordance with law and not on their whims and the manner they want.
For what has been cited above, we see no force in these petitions, which are hereby dismissed.
(N.F.) Petitions dismissed
PLJ 2007 SC 824
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Mian Shakirullah Jan & Saiyed Saeed Ashhad, JJ.
HUMAN RIGHTS CASE
BY
(Malik Muhammad Taj and another complainant)
H.R. Case No. 3693 of 2006, decided on 15.2.2007.
Criminal trial--
----Murder under custody of Police--Accused were acquitted of charge of murder--Inquiry was conducted--Accused/respondents were not found guilty--No effective role to play--Disciplinary action as well as criminal proceeding under the law--Victim remained in illegal custody--Determination--Identity of dead body and who is responsible for her murder--Question of--PPO is directed to constitute a team of Senior Police Officers who will make thorough probe into the matter, but the cases shall be decided without being prejudice from the present proceedings and judicial inquiry conducted by District and Sessions Judge--Progress report of whole episode shall be sent to the Registrar of Supreme Court for our perusal in chamber within a period of three months--Disposed of accordingly. [Pp. 825 & 826] A
Malik Muhammad Taj and Malik Ameer Khan, Complainants (in person).
Mr. Khadim Hussain Qaisar, Addl. A.G. Punjab.
Raja Zaraat Kiyani, Ex-DSP Civil Lines.
Mr. Mujahid Hussain, Ex-SHO P.S Civil Lines (Now DSP).
Raja Sikandar Hayat, Ex-DSP, CIA (Retired).
Mr. Muhammad Iqbal Khan, Ex-DSP, Taxila (Retired).
Mr. Ali Asghar, Sub-Inspector/SHO P.S. Civil Lines.
Mr. Abdul Majeed Warriach, Ex-Inspector, CIA (Retired).
Mr. Adalat Hussain, SI P.S. Taxila.
Mr. Nazir Ahmed, Ex-SHO Taxila (Now DSP).
Mr. Muhammad Fayyaz, Ex-Sub-Inspector, Taxila.
Mr. Muhammad Ashraf, Ex-Sub-Inspector, P.S. Taxila.
Mst. Malkani, Bibi on Court Notice.
Date of hearing: 15.2.2007.
Order
This complaint has been filed by Taj Muhammad and another wherein they have stated that Complainant No. 1 was challaned in a false case of murder and had suffered agony of trial for five years out of which for three years he alongwith four persons namely, Malik Ameer Khan, Sanoobar Hussain, Mazhar Hussain and Ajab Mussain remained in Jail, ultimately they were acquitted of the charge of murder of Mst. Malkani on 31.05.2001. Vide order dated 21.07.2006 learned District & Sessions Judge, Rawalpindi was directed to conduct inquiry in the matter. He has submitted report, perusal whereof indicates that Taifur Akhtar, S.I. P.S Taxila (now DSP), Ali Asghar, S.I./SHO PS Civil Lines, Rawalpindi, Mujahid Hussain I/SHO PS Civil Lines, Rawalpindi (now DSP), Ijaz Hussain SI PS Civil Lines, Rawalpindi (Now Inspector), Muhammad Shafique, ASI PS Civil Lines, Rawalpindi, Allah Rehm ASI/Reader DSP/SDPO, Civil Lines, Rawalpindi and Nazeer Ahmed, I/SHO PS Taxila (Now DSP) have been found not guilty. As far as Muhammad Zarat Kiani, DSP/SDPO Civil Lines, Rawalpindi (now SP) is concerned he has been declared guilty. On perusal of the record which has been summoned, it indicates that he had no effective role to play in this case. Therefore, we are of the opinion that he is also not guilty in the matter, thus, no further action is called for to their extent.
As far as Abdul Majeed Waraich, Raja Sikandar Hayat, Muhammad Iqbal Khan, Muhammad Fayyaz and Muhammad Ashraf have been found guilty in the judicial inquiry by the learned Sessions Judge, Rawalpindi. They are required to be proceeded against in accordance with law. Copy of the inquiry report as well as the fair copy of the chart which has been submitted by the Additional Advocate General be sent to the Inspector General of Police/ PPO, Punjab for initiating disciplinary action as well as criminal proceedings under the law. Needless to say that they will be dealt with strictly according to the relevant provisions of law.
As far as complainant is concerned, if he desire he can sue the responsible persons for damages etc if so law permits.
Mst. Malkani Bibi is present in Court and stated that the dispute had arisen out of the land which was pending between her and Malik Muhammad Taj etc. Therefore, PPO shall also examine her case and would determine whether she had been kept in illegal detention for a long period and under what circumstances she was sent to District Jail Gujrat. On coming to the conclusion that she remained in illegal custody then action against the persons responsible to detain her for a period of six years shall also be taken strictly according to law.
The PPO shall also inquire about the dead body which was shown to be of Mst. Malkani and shall also proceed against them according to law and efforts shall also be made to detect that what was the identity of the dead body and who is responsible for her murder. The culprits, if traced out shall be proceeded against PPO is directed to constitute a team of Senior Police Officers who will make thorough probe into the matter but the cases shall be decided without being prejudice from the present proceedings and Judicial Inquiry conducted by learned District & Sessions Judge.
The progress report of the whole episode shall be sent to the Registrar of this Court for our perusal in chamber within a period of three months i.e. on or before 16th May, 2007. The matter stands disposed of accordingly.
(N.F.) Case disposed of.
PLJ 2007 SC 826
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar &
Mian Shakirullah Jan, JJ.
GUL MEER, etc.--Appellants
versus
HASSAN BASRI, etc.--Respondents
Civil Appeal No. 653 of 2005, decided on 15.3.2007.
(On appeal from the judgment dated 17.6.2004 passed by Lahore High Court, Lahore in C.R. No. 50/2002).
West Pakistan Consolidation of Holding Ordinance, 1960 (VI of 1960)--
----S. 26--Constitution of Pakistan, 1973, Art. 185(3)--Suit for declaration--On the basis of correction of entries made in revenue record--Challenge to--Jurisdiction of Civil Court--Lack of jurisdiction--Consolidation authorities--Question of--Finding of consolidation/ revenue authorities returning the application on the ground that parties should approach the Civil Court in a matter in which there is a statutory bar over the entertainment of the lis by the Civil Court, does not change statutory provisions of law and High Court has gone on a wrong premises by holding that the Civil Court has got jurisdiction--Held: No such order could have been passed directing the respondents to approach Civil Court--Matter is accordingly remanded to Collector consolidation to examine the entire controversy in light of revenue laws as well as bar contained in S. 26 after affording proper opportunity of hearing to all concerned so that the controversy could be set at naught completely--Appeal set aside. [P. 829] A & B
Mr. Bashir Ahmad, ASC for Appellants.
Mr. Kokab Iqbal, ASC/AOR for Respondents.
Date of hearing: 15.3.2007.
Judgment
Mian Shakirullah Jan, J.--The respondents/plaintiff instituted a civil suit claiming declaration of title on the basis of correction of the entries made in the revenue record which occurred on account of deletion of certain entries therein, started right from the year 1911 and also in different Jamabandis regarding different entries and which entries according to them were finalized during the consolidation proceedings completed in the year 1984-85. As a contest of the suit by the appellants/defendants, a number of issues were framed including the lack of jurisdiction of the Civil Court and also limitation as the suit has been filed in the year 1994 with a challenge to the entries in the jamabandi, which are as old as more than four decades. The learned trial Court after recording evidence of the parties has given issue wise findings, some of which had been decided in favour of the respondents while the others, including the limitation and the lack of jurisdiction, were decided in favour of the appellants. These findings were also confirmed by the appellant Court, however, on revision the findings of the two Courts below are reversed by the High Court and the plaintiffs suit was decreed. It is against this judgment and decree of the High Court which has been challenged through the instant appeal by leave of the Court.
At the very outset the learned counsel for the appellants has contended, inter alia, that the Civil Court had got no jurisdiction in the matter and a finding to this effect given by the two Courts below i.e., the trial Court and appellate Court are in consonance with the provisions of law i.e., Section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960 (hereinafter to be referred as the `Ordinance'). To this, the learned counsel for the respondents, has contended that it was the officials, the revenue officer, competent to deal with the consolidation proceedings, who on application filed by the respondents directed them to settle the matter through the Civil Court and they have rightly approached the Civil Court and the Civil Court has wrongly refused to entertain their suit and which error was corrected by the High Court.
We have gone through the impugned judgment as well as the judgments of the Courts below and the available record, with the assistance of the learned counsel for the parties. The High Court while setting aside the judgments of the Courts below and holding that the findings of the Civil Court qua the lack of jurisdiction is erroneous has observed" ... Since long standing entries in the revenue record they were directed by the revenue authorities to move to the Civil Court, therefore, the findings of the learned trial Court on Issue No. 8 are entirely erroneous for non-suiting the petitioners who rightly moved to the Civil Court after direction passed by the revenue authorities. The omission to exercise jurisdiction vest in the trial Court is an error patent on the record". It seems that the issue has wrongly been referred as Issue No. 8 as the question of jurisdiction has been formulated under Issue No. 5. The learned High Court after considering the revenue record placed on file, with the assistance of the Patwari as summoned, was of the view that none of the learned Courts below have considered the Jamabandi and all of the relevant documents and the evidence produced by the parties and the judgments suffer from non-consideration of material evidence and erroneous assumption of facts, cropping up due to misreading of evidence.
The foremost question involved in the case is jurisdiction of the Civil Court as there is an express bar contained in Section 26 of the Ordinance which reads as under:
"26. Jurisdiction of Civil Courts, barred as regards matter arising under this Ordinance.--No Civil Court shall entertain any suit or application to obtain a decision or order in respect of any matter which Government or the Board of Revenue or any officer is by this Ordinance, empowered to determine, decide or dispose of.
This statutory provision about the bar of jurisdiction of Civil Court has been interpreted in the case of Nawab v. Ghulab and 4 others (2004 SCMR 1833) and has held as under:
"5. We having considered the matter in detail, find that no exception can be taken to the judgment of the High Court wherein it has been held that due to the bar of jurisdiction contained in Section 26 of the Consolidation of Holdings Ordinance, 1960, the civil suit was not maintainable. The judgment of the High Court being not suffering from any illegality, would not call for interference of this Court. This petition having no substance is accordingly, dismissed. Leave is refused. "
This statutory provision is also having the backing of other judgments enunciated by the superior Courts in the cases of Ghulam Qadir v. Member Board of Revenue, West Pakistan, Lahore and 4 others (1970 SCMR 292), Ahmad and others v. Karam Hussain and another (1986 SCMR 1384), Sardara and 4 others v. Province of the Punjab through Collector, District Jhang and 17 others (2000 CLC 1752) and Farman Ali and 7 others v. Khani Aman and 400 others (PLD 2005 Peshawar 186).
The ground which weighed with the learned High Court about the jurisdiction of the Civil Court is the observation made by the consolidation authorities over the application submitted by the respondents, the existence of which application has also been controverted by the learned counsel for the appellants. What the case may be let it be as to whether the application was submitted or not but the finding of the consolidation/revenue authorities returning the application on the ground that the parties should approach the Civil Court in a matter in which there is a statutory bar over the entertainment of the lis by the Civil Court, does not change statutory provisions of law and the High Court has gone on a wrong premises by holding that the Civil Court has got jurisdiction, Though the entries of the revenue record have been challenged, which are quite old and even if entertainable the question of limitation would also be a factor to be adjudged.
What has been discussed above the conclusion is, that in view of bar contained in Section 26 of West Pakistan Consolidation of Holdings Ordinance 1960 (hereinafter referred to as the Ordinance 1960), no such order could have been passed directing the respondents to approach Civil Court. The matter is accordingly remanded to Collector Consolidation to examine the entire controversy in the light of revenue laws as well as bar contained in Section 26 of the Ordinance 1960 after affording proper opportunity of hearing to all concerned so that the controversy could be set at naught completely. The judgment passed by learned Additional District Judge dated 27.11.2001, judgment of the learned Civil Judge dated 16.4.2001 shall remain intact and judgment impugned is set aside.
(N.F.) Case remanded.
PLJ 2007 SC 829
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan; Ch. Ijaz Ahmed and
Hamid Ali Mirza, JJ.
Dr. ISRAR-UL-HAQ--Petitioner
versus
MUHAMMAD FAYYAZ and another--Respondents
Crl. P. No. 153 of 2004, decided on 4.4.2007.
(On appeal from the judgment dated 8.3.2004 of the Lahore High Court, Rawalpindi Bench, passed in Cr. Appeal No. 51/1995).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 324--Constitution of Pakistan, Art. 185(3)--Accused was acquitted--Criminal appeal was dismissed--Un-seen occurrence--Leave to appeal--Concurrent conclusions--Appreciation of evidence--Courts below have given concurrent conclusions that eye-witnesses had not seen occurrence and also have come to conclusion that eye-witnesses account furnished by two witnesses is not in consonance with medical evidence--Ocular evidence is dis-believed in a criminal case then recovery of an incriminating article in nature of weapon of offence does not by itself prove prosecution case--Doubts which induced in High Court to uphold acquittal of respondent were substantial doubts affecting possibility of belief in truth of prosecution case--Direct evidence having failed, corroborative evidence is of no help--Prosecution has failed to bring on record any piece of evidence to connect respondent with commission of offence--Trial Court has acquitted respondent after proper appreciation of evidence and it was endorsed by High Court with cogent reasons--Held: Supreme Court does not interfere with concurrent conclusions reached by Courts below with regard to innocence of respondent while exercising power under Art. 185(3) of Constitution--Leave refused. [P. 834] A, B & C
ILR 19 Lah. 995; PLJ 1977 SC 444; 1970 SCMR 857; 1970 SCMR 877 and 1996 SCMR 1553 ref.
Sardar Asmatullah, ASC for Petitioner.
Sh. Zamir Hussain, ASC with Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 4.4.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present petition arises are that Respondent No. 1 Muhammad Fayyaz involved in case FIR No. 104 which was registered at Police Station Attack city on 19-6-1994 on the complaint of PW.8 Dr. Israr-ul-Haq under Section 302/324 PPC for committing murder of Abdul Khaliq deceased and launching murderous assault on Dr. Israr-ul-Haq. The facts as narrated in the FIR are as follows as noted by the learned High Court in para 3 of the impugned judgment:
"Briefly the case of the prosecution is that Dr. Israr-ul-Haq complainant was holding lease of property tax of Municipal Committee, Attock alongwith Abdul Khaliq (deceased), Muhammad Fayyaz (accused) and one Qadir Khan. On checking of the accounts, it revealed that Muhammad Fayyaz was creating mis-chief in the partnership business for certain period. On 18-6-1994 the complainant alongwith Abdul Khaliq, Hussain-ud-Din Baig PW-9 went to Muhammad Fayyaz at village Shadi Khan on his personal Car No. AK-3210. They asked him to render the accounts but he taking them into confidence while coming to the office at Attock disclosed about the mis-appropriated amount and committed to account for the same. The accused said that till the clearing of the account, they should not bring this matter to the notice of said Qadir Khan. All the four took their dinner at the Dera of Mumtaz Khan resident of Shadi Khan where Dr. Ijaz and Yamin Khan PW-11 were also present. After taking the meal, Dr. Ijaz Yamin and Fayyaz came to see them of and all the three departed for Attock from there by their Car. The Car was driven by Abdul Khaliq and on the front seat Hussain-ud-Din Baig was sitting while the complainant was sitting on the rear set of the car. When at about 10.30 p.m. they reached near Ice Factory of Mirza Abdul Rehman, Fayyaz appeared from behind on his Alto Car Bearing No. AKA-42 and while bringing the car parallel to their car, he started firing on them indiscriminately by his rifle .222 bore. As a result, one bullet hit the deceased on right side of his head whereas two bullets hit the complainant on his right thigh. The car went out of control due to the fire-arm shot injury caused to Abdul Khaliq and after hitting a tree near the bungalow of Mirza Abdul Rehman, collided with the iron bar of the fence and stopped. Abdul Khaliq succumbed to the injuries at the spot whereas Hussain-ud-Din having received injuries on his left thigh and right cheek as a result of collision of the vehicle. Muhammad Fayyaz after firing took away his vehicle speedily. The accused while committing fraud with them had committed murder of Abdul Khaliq and launched murderous assault upon him."
The investigating agency after investigation submitted challan against Respondent No. 1 before the competent Court. The trial Court/(Sessions Judge Attock) after completing legal formalities such as framing charge, recording of evidence acquitted Respondent No. 1 vide its judgment dated 26-2-1995. Petitioner/complainant being aggrieved filed Criminal Appeal No. 51/1995 under Section 417(2)(a) Cr.P.C. in the Lahore High Court Rawalpindi Bench which was dismissed vide impugned judgment dated 8-3-2004. Hence the present petition.
Learned counsel of the petitioner submits that both the Courts below have erred in law to acquit Respondent No. 1 by misreading and non-reading of the record. He further maintains that substitution is a rare phenomena qua the single accused and this fact was not considered by the Courts below in its true perspective. He further maintains that eye-witnesses PW.8 Dr. Israrul Haq and PW.9 Hussain-ud-Din Baig were injured eye-witnesses and this fact was also not considered by the Courts below in its true perspective. He further maintains that statement of P.W.5 Javed Iqbal and PW14 Muhammad Yaqoob were also misread by both the Courts below. He further urges that prosecution has proved the case against Respondent No. 1 beyond any shadow of doubt but the both the Courts below had erred in law to discard veracity of the eye-witnesses and other witnesses. He further maintains that weapon of offence was recovered from the petitioner and both the Courts below had erred in law to acquit Respondent No. 1. He further maintains that both the Courts below have also erred in law to observe that statements of the eye-witnesses were not in consonance with the medical evidence. He further urges that medical evidence is in consonance with the statements of the eye-witnesses. He further urges that learned Courts below have erred in law to disbelieve the evidence of empties merely on the ground that this was recorded in the presence of Respondent No. 1/accused as on the face of it unfortunate. He further maintains that there was overwhelming evidence to prove the motive but the both the Courts below had erred in law to come to the conclusion that prosecution had failed to prove the motive. He further submits that both the Courts below erred to observe that Respondent No. 1 cannot fire with .222 rifle by bringing the car parallel to the car of the victim is too hypothetical and is not based on logic and common sense. He sums up his argument that there was no enmity between the parties and acquittal by both the Courts below of Respondent No. 1 is not in accordance with the settled principle of criminal jurisprudence. The vehicle in question Car No. AKA-42 which was used by Respondent No. 1 at the time of incident and was recovered on the same night and had contained .222 rifle which was taken into possession and therefore learned Courts below were not justified to discard the recovery of the vehicle and empties .
Learned counsel of the respondent has supported the impugned judgment.
We have given our due consideration to the contention of learned counsel for the parties and perused the record. It is an admitted fact that trial Court as well as learned High Court had acquitted Respondent No. 1 after proper appreciation of evidence. Both the Courts below have given concurrent conclusions of innocence of Respondent
No. 1. This Court has laid down parameters regarding interference in the cases of acquittal in Ghulam Sakindar's case (PLD 1985 SC 11). The relevant observation is as follows:--
"(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of ever reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis-read such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous ".
The aforesaid judgment is upheld by this Court in various pronouncements. See Muhammad Iqbal's case (1994 SCMR 1928).
So keeping in view the aforesaid principles, we have appreciated the arguments addressed by the learned counsel for the parties with care. It is a settled law that substitution of innocent person when a single accused is named in a murder case is a rare phenomenon but it depends from case to case. In the present case, both the Courts below have given concurrent conclusions that eye-witnesses had not seen the occurrence and also have come to the conclusion that eye-witnesses account furnished by the two witnesses is not in consonance with the medical evidence. It is also a settled law when ocular evidence is dis-believed in a criminal case then the recovery of an incriminating article in the nature of weapon of offence does not by itself prove the prosecution case. See Dhuende's case (ILR 19 Lah. 995). It is pertinent to mention here that in the present case empties were recovered in the absence of respondent and were not sent to the expert till the recovery of the weapon of offence from Respondent No. 1. This was noted by both the Courts below as is evident from paras 12 to 19 of the impugned judgment. However in the interest of justice and fair play we have considered the entire evidence and all aspects of the case from the point of view that to reverse the acquittal by the High Court and replace it by a conviction are possible only if we are satisfied independently that the evidence in the case was in quality and quantity adequate to support a conviction of the offence charged. We have also considered it from the aspect of discovering whether the doubts felt by the learned Judges of the High Court were doubts arising out of and inhering in the evidence and circumstances of the case, or whether on the other hand, there were doubts of an artificial character which resided more in the minds of the learned Judges then in the matters which had been established by the evidence in the case. Our conclusion is that the doubts which induced the learned Judges in the High Court to uphold the acquittal of Respondent No. 1 were substantial doubts affecting the possibility of belief in the truth of the prosecution case. We find ourselves in agreement with them and at the same time independent examination of the evidence, we are clear in our mind that this is not a case in which a finding of guilty can be reached with confidence. There is sufficient material on the record that there is a dispute between the Respondent No. 1 and the deceased and complainant. Therefore, both the Courts below were justified to discard their veracity as their statements as mentioned above could not inspire confidence. It is an admitted fact that the evidence of the two eye-witnesses PW-8 and PW-9 having been dis-believed by the two Courts below with cogent reasons. It is also a settled law that the direct evidence having failed, the corroborative evidence is of no help. In the case in hand, the prosecution has failed to bring on record any piece of evidence to connect the respondent with the commission of offence. It is admitted fact that trial Court has acquitted the respondent after proper appreciation of evidence keeping in view the principle laid down by this Court qua appreciation of evidence. The acquittal of Respondent No. 1 was endorsed by the learned High Court with cogent reasons vide impugned judgment. It is also a settled law that this Court does not interfere with the concurrent conclusions reached by the Courts bellow with regard to the innocence of the respondent while exercising power under Article 185(3) of the Constitution as law laid down by this Court in various pronouncements. See Muhammad Ashraf's case (PLJ 1977 SC 444), Din Muhammad's case (1970 SCMR 857), Matiur Rehman's case (1970 SCMR 877) and Abdul Khaliq's case (1996 SCMR) 1553).
For what has been discussed above, this petition has no merit and the same is dismissed. Leave refused.
(A.S.Sh.) Leave refused.
PLJ 2007 SC 835
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ.
GHULAM MUHAMMAD & 5 others--Appellants
versus
SHAMIM AHMAD KHAN, deceased through his
Legal Representatives--Respondents
Civil Appeal No. 1053 of 2003, decided on 28.2.2007.
(On appeal from the judgment dated 19.9.2002 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Regular Second Appeal No. 419 of 1980).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 3--Suit for possession through pre-emption--Superior right of pre-emption--Relationship of being collaterals--Plea of divisibility of sale--Whenever such plea is raised, obviously during evidence or at any stage of trial, the trial Court should frame an issue to that effect, placing burden on defendant to prove--Tenant looses his right for not being afforded the opportunity to lead evidence qua a question of fact, the case, in the interest of justice, needs to be remanded.
[Pp. 837 & 838] B, D & E
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 3--Principle of sinker--Applicable--Cannot damage the right of a tenant sanctioned by a Federal Law--If a party is expected to cover all the aspects of a case in pleading, then the plea of sinker requires to be raised in the plaint by pre-emptor. [P. 837] A
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 3--Constitution of Pakistan, 1973, Art. 185--Question of fact--Sinker--Divisibility of sale--If trial Court has framed an issue about sinker the vendee would have had an opportunity to prove that it was not applicable because of divisibility of sale. [P. 837] C
Mr. Gulzarin Kiani, ASC with Ch. Akhtar Ali, AOR for Appellants.
Ch. Afrasiab Khan, ASC for Respondents.
Date of hearing: 28.2.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Ghulam Muhammad and others have filed this appeal against the judgment dated 19.9.2002 of learned Judge in Chambers of Lahore High Court, Rawalpindi Bench whereby the respondent pre-emptors stood granted a decree for possession of the suit land through pre-emption.
Land measuring 99 kanals in dispute was sold by Nawazish Ali Khan in favour of Ghulam Muhammad, Mir Zaman, Noor Zaman, Muhammad Zaman, Muhammad Nazir and Baza through registered sale-deed dated 6.10.1977. Vide judgment dated 16.9.1979, the learned trial Court granted the decree prayed for but in the appeal, the learned Additional District Judge Attock vide judgment dated 24.4.1980 partially modified the decree holding that the suit deserved to be and was dismissed qua the share of Mst. Naz Zahoor, one of the vendors, who was provenly not related to the pre-emptors. Superior right of pre-emption was based on the relationship of being collaterals. The learned High Court, however, granted a decree for the entire property, holding also, that Ghulam Muhammad and Baza being tenants had associated in the sale remaining four vendees who had no such right and thus would loose the land under the principle of sinker.
Learned counsel for the appellant-vendees raised multi-fold objection. Firstly, that the superior right based on being collaterals, the pre-emptors had no relationship whatsoever with Mst. Naz Zahoor, one of the vendors, the suit qua her 19 kanals (calculated by the learned counsel) required to be dismissed outright.
Secondly, that the pre-emptors, as per pedigree-table Ex.P-3 (p-69) directly descending from one Nawab Khan, had failed to prove the link with Abdullah Khan, the common ancestor. The argument was developed on the ground that the name of Nawab Khan in pedigree-table was not linked with any one ascending up to Abdullah Khan. It was claimed that, in the circumstances, the entire suit was liable to be dismissed.
Thirdly, it was claimed that the principle of sinker, not otherwise provided in the Punjab Pre-emption Act 1913, cannot damage the right of a tenant sanctioned by a Federal Law (Para 25 (3)(d) of MLR-115) which had the overwriting effect against any Provincial Law.
Fourthly, the learned counsel added, that even if the principle of sinker was to be brought into play, it would not apply to the sale in question because it was a divisible sale whereby specific share of 3/4 was purchased by Ghulam Muhammad, while remaining specific 1/4 share was purchased by the remaining five vendees in equal share. It was further alleged that the application of sinker being not pleaded in the plaint and no issue having been framed to that effect, the vendees were deprived of opportunity to rebut the application of sinker by proving through evidence that the sale was divisible as per criteria of divisibility laid down by the superior Courts.
Taking the arguments not in seriatim, we must say that Para 25(3)(d) of MLR-115, irrespective of being a Federal Law, gives first right/superior right to a tenant. No more and no less. This would automatically operate as part of the Pre-emption Laws of the Provinces and is liable to succeed or to be defeated in accordance with the principle of such laws. Sinker is a principle that evolved through case law and hence has to be followed even in cases involving the right of a tenant.
Who is to plead sinker, is the question to follow. Obviously, the principle applies to and against the defendant-vendees and hence, the plea of sinker detrimental to the defendant cannot be raised by a defendant. Being a question of fact and favourable to the pre-emptor, it should normally be raised by the plaintiff-pre-emptor but he too might be reluctant because by taking this plea, which may or may not be accepted finally, he would be taking the risk of accepting the superior right of some of the defendant or defendants whom he would like to sink with those having inferior right. It is quite intriguing for the plaintiff as well. Anyhow, if a party is expected to cover all the aspects of a case in pleadings, then the plea of sinker requires to be raised in the plaint by the pre-emptor.
Be that as it may, one thing is settled that the principle of sinker is a question of fact and becomes all the more serious when plea of divisibility of sale, is raised by the vendee. We believe that whenever such plea is raised, obviously during evidence or at any stage of trial, the trial Court should frame an issue to that effect, placing burden on the defendant to prove.
9-A. Viewed in such background and involving substantial question of fact, if the trial Court had framed an issue about sinker, the defendant-vendees would have had an opportunity to prove that it was not applicable because of the divisibility of sale. A similar view was taken by this Court in Civil Appeals # 1015 and 1016/1995 Haji v. Ahmed Ali decided on 26.3.2002. In the instant case, prima facie, the sale is made with specific shares, being one of the ingredients of a divisible sale. Lest a tenant looses his right for not being afforded the opportunity to lead evidence qua a question of fact, the case, in the interest of justice, needs to be remanded.
As we intent to remand the case, the questions of collateral-ship of pre-emptors with the vendors and that of Mst. Naz Zahoor, vendor not being a collateral at all, are left open.
Consequently, the appeal is accepted, the impugned judgment dated 19.9.2002 is set aside and the case is remanded back to the trial Court with direction to afford opportunity to the parties to lead evidence on the following issue and thereafter to decide the case in accordance with law:
Whether the sale in question is divisible and hence averts the application of sinker. OPD.
(N.F.) Appeal accepted.
PLJ 2007 SC 838
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
AKBAR ALI--Appellant
versus
MUHAMMAD ABDULLAH--Respondent
Civil Appeal No. 1832 of 2001, decided on 2.4.2007.
(On appeal from the judgment dated 2.11.1999 of the Lahore High Court, Lahore, in Civil Revision No. 2278/1995).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----Ss. 20 & 13(3)--Constitution of Pakistan, 1973, Art. 185(3)--Talb-i-Ishhad--Notice--Right of pre-emption--Suit for pre-emption--Leave to appeal--Notice of Talb-i-Ishhad was attested by two marginal witnesses, but at trial only open marginal witness was examined--No explanation of any sort had been brought on record by appellants--As per S. 13(3) of Act 1991, it is mandatory that notice about Talb-i-Ishhad is to be sent in writing attested by two truthful witnesses under registered cover acknowledgment due to vendee confirming intention to exercise the right of pre-emption. [Pp. 841 & 842] A & E
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Qanun-e-Shahadat Order, (10 of 1984), S. 79--Provision of Qanun-e-Shahadat would be applicable in such case as the Qanun-e-Shahadat Order was promulgated in 1984 and the right of pre-emption in the instant case was claimed by the appellant. [P. 841] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 79--Document required by law to be attested--Mode of examination--If a document is required by law to be attested, it shall not be used as evidence until two attested witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence--If the writing or signatures is on a document which is by law required to be attested, then execution and signature on document can be proved only by calling in evidence the attesting witnesses of the document. [P. 842] C
Interpretation of Law--
----Demands for claiming right of pre-emption have been defined as S. 225 of Muhammadan Law, 1987--A person who has declared his intention to assert the right immediately in the presence at least of two witnesses. [P. 842] D
Mr. Taki Ahmad Khan, ASC for Appellant.
Mr. Sanaullah Zahid, ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent.
Date of hearing: 29.11.2006.
Judgment
Abdul Hameed Dogar, J.--This appeal with leave of the Court is directed against the judgment dated 2.11.1999 passed by a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Civil Revision No. 2278 of 1995 filed by appellant was partly allowed and the suit filed by appellant to pre-empt sale of land has been partly decreed to the extent of one half share after recording finding that the appellant being co-sharer in the same khata should share the disputed land equally in accordance with Section 20 of the Punjab Pre-emption Act, 1991 (hereinafter referred to as the "Act"). The respondent will also be entitled to withdraw Rs. 40,000/- already deposited.
Briefly, stated, facts giving rise to the filing of instant appeal are that appellant purchased the land in dispute measuring 6 kanals 9 marlas from Khewat No. 29 Khatauni No.106 Khasra Nos.121-122 situated in village Lodeke Tehsil Daska, for a sum of Rs. 40,000/- from Faiz Ahmad vide registered sale-deed dated 12.3.1992. On 9.7.1992 Akbar Ali appellant filed suit for pre-emption on the basis of being co-owner before the trial Court. The appellant contested the suit by filing written statement wherein he denied the superior right of pre-emption of the respondent as claimed in the plaint. The trial Court framed the issues and after recording the evidence dismissed the suit vide judgment and decree dated 30.3.1994 on the ground that the requirement as to making of talabs had not been complied with. Feeling aggrieved, respondent preferred appeal before the Additional District Judge, Daska, who vide judgment dated 23.10.1995 allowed the same while holding that the requirement as to making of talabs had been complied with and decreed the suit of respondent as a whole. The said judgment was assailed by the appellants before the learned High Court in the abovementioned civil revision which was partly allowed with the modification that the parties should share the same half and half.
Leave to appeal was granted on 25.7.2001 by this Court to consider, inter alia, that according to Section 13 of the Act, it was required that notice regarding talabs shall be attested by two truthful witnesses, therefore, it was a document which was required by law to be attested. Article 79 of the Qanun-e-Shahadat Order, 1984, provides that two attesting witnesses should have been called in Court to prove the same, whereas in this case only one witness was examined and on account of the non-production of other witness the finding of the trial Court that mandatory requirement as to fulfilment of talabs had not been complied with was correct and the suit was liable to be dismissed and was rightly dismissed by the said Court.
We have heard Mr. Taki Ahmad Khan, learned ASC for the appellant and Mr. Sanaullah Zahid, learned ASC for respondent and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the appellant contended that the evidence produced by the vendee regarding the Talbs was discrepant and it had rightly been rejected by the learned trial Court. According to him the finding of the First Appellate Court on Issue No. 8 regarding superior right of pre-emption was based on patent misreading of the record. He further contended that appellant filed a suit for specific performance before the Civil Court at Daska against one Faiz Ahmad which remained pending for a considerable period and the respondent had the knowledge of sale in favour of appellant due to the decree of the said suit, therefore, the allegations of lack of knowledge and consequent belated Talb-i-Muwathibat is false. He contended that the Talb-i-Muwathibat was not made in accordance with law and not at the time when the respondent acquired the knowledge of the sale in favour of appellant. He argued that the out of two witnesses of Talb-i-Ishhad only one witness was produced in the Court as such requirement of Section 13 of the Act is not fulfilled. He contended that the provisions of Act have not been interpreted in accordance with Section 32 of the Act thus the impugned judgment be modified and the suit of the respondent is liable to be dismissed. He vehemently urged that the requirement of Talb-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talabs were made. He went on to argue that witnesses, namely, Abdullah (PW-1) and Muhammad Aslam (PW-2) even did not disclose in their respective statements in evidence the time and the date of sale, therefore, the period for making Talb-i-Ishhad cannot be said to have been made within two weeks from the date of knowledge of sale. Even notice of Talb-i-Ishhad did not bear the time and date of reconfirmation of Talb-i-Muwathibat while making Talb-i-Ishhad. Lastly, the learned counsel contended that the judgment of trial Court is well reasoned and is based on proper appraisal of evidence and in accordance with law, as such the same may be maintained.
On the other hand, learned counsel for the respondent controverted the above contentions and argued that the impugned judgment does not suffer from any legal flaw and argued that the PWs are unanimous about the date, time and place of gaining of knowledge by the respondent regarding sale and have unambiguously deposed that the respondent instantly expressed his intention of pre-empting the sale. He further contended that the respondent has proved notice of Talb-i-Ishhad by producing its marginal witness, namely, Muhammad Aslam (PW-2) who without any contradiction supported the case of respondent on making of Talabs.
At the very out set, it would be relevant to refer in the instant matter though the notice of Talb-i-Ishhad was attested by two marginal witnesses, namely, Muhammad Aslam and Faiz Muhammad but at trial only one marginal witness namely, Muhammad Aslam was examined as PW-2. About non-examination of other marginal witnesses, namely, Faiz Muhammad, no explanation of any sort has been brought on record by the appellant. As per Section 13(3) of the Act, it is mandatory that notice about Talb-i-Ishhad is to be sent in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption. Its proviso further mentions that if the facilities of post office is not available, Talb-i-Ishhad is to be made in presence of two truthful witnesses. The provisions of Qanun-e-Shahadat would be applicable in the instant case as the Qanun-e-Shahadad Order, was promulgated in 1984 and the right of pre-emption in the instant case was claimed by the appellant on 9.7.1932. Qanun-e-Shahadat Order, 1984, prescribes the mode of examining the witnesses whereby it is mentioned that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence. This Court in the case of Hamid Qayum and 2 others v. Muhammad Azeem through Legal Heirs and another (PLD 1995 SC 381), has held that if the writing or signatures is on a document which is by law required to be attested, then the execution and signature on the document can be proved only by calling in evidence the attesting witnesses of the document.
Even in Mahomedan Law 1987, the demands for claiming right of pre-emption have been defined as follows:
"225. Demands for pre-emption: No person is entitled to the right of pre-emption unless--
(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talb-i-muwathibat (literally, demand of jumping, that is, immediate demand): and unless
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talb-i-muwathibat had already been made and has made a formal demand--
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale (b), and
(b) in the presence at least of two witnesses this formality is called talb-i-ishhad (demand with invocation of witnesses).
On perusal of above provisions of Mahomedan Law as well as of Punjab Pre-emption Act it is clear the demand of talb-i-ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness.
For what has been discussed above, the appeal is allowed, impugned judgment dated 2.11.1999 and judgment of the Appellate Court dated 13.10.1995 are set aside whereas the judgment and decree of the trial Court dated 30.3.1994 whereby the suit filed by respondent was dismissed with costs, is restored.
(N.F.) Appeal allowed.
PLJ 2007 SC 843
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday and
Muhammad Nawaz Abbasi, JJ.
ABDUL GHANI--Appellant
versus
MUHAMMAD SHAFI and 4 others--Respondents
Civil Appeal No. 2009 of 2001, decided on 12.9.2006.
(On appeal from the judgment dated 11.5.2001 passed by Lahore High Court, Rawalpindi Bench in RSA No. 35 of 1987).
Limitation Act, 1908 (IX of 1908)--
----Art. 113--Limitation for execution--Execution of mortgage deed--Question of--Right of vendee--If time was not fixed in agreement for completion of sale on payment of sale price, claim the specific performance of agreement within reasonable time--Time may not be essence of contract--No inflexible rule to be made applicable--Remedy of specific performance of contract is an equitable remedy which is always in the discretion of Court and suit for specific performance may be detected if the plaintiff without any legal excuse failed to perform his part of contract within time specified therein--Determination--Held: Appellant made any effort for fulfilling his part of contract and offered payment of sale price within stipulated time or atleast within reasonable time to complete the sale--Delay in filing the suit beyond the normal period provided under the law would be fatal and appellant would not be entitled to claim the decree for specific performance--Appeal dismissed. [P. 848] B & D
Limitation--
----Suit for specific performance--Contract is not enlarged--General principle--Sufficient cause--Statutory period--Limitation in the suit for specific performance of contract is not enlarged in the light of general principle that in respect of sale of immovable property time is not essence of contract unless a sufficient cause and a strong reason is shown for filing the suit beyond the statutory period--Such rule may not be helpful to the plaintiff/vendee who was not vigilant about performance of his part of contract and contributed in the delay caused in completion of sale. [P. 848] C
Limitation--
----Mortgage deed was executed--Continuation of agreement to sell-No time was fixed for payment of remaining sale-price--Held: Time would not be considered as essence of contract and appellant would be entitled to the decree for specific performance without clog of limitation. [P. 847] A
Sheikh Zamir Hussain, ASC for Appellant.
Hafiz S.A. Rehman, ASC for Respondents.
Date of hearing: 12.9.2006.
Judgment
Muhammad Nawaz Abbasi, J:--This appeal by leave of the Court has been directed against the judgment dated 11.5.2001 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi whereby Regular Second Appeal filed by the appellant against the judgment and decree passed by the learned Civil Judge in the suit for specific performance of contract and affirmed by the learned District Judge, Jhelum in first appeal, has been dismissed.
The facts in small compass in the background are that the appellant being in possession of suit property bearing New No. B-VII-2-R-18 owned by Muhammad Nawaz Khan predecessor-in-interest of the respondents, as tenant, entered into an agreement to sell dated 30.11.1966 with the owner for a consideration of Rs. 53,000/- and paid an amount of Rs. 8000/- as earnest money. Subsequent to the sale agreement Muhammad Nawaz Khan, the (vendor) also executed a mortgage deed dated 9.3.1967 in favour of appellant in respect of the same property and having received another amount of Rs. 8,000/- delivered the possession of the property to the appellant. In the mortgage deed he also acknowledged the agreement to sell dated 30.11.1966 with the undertaking that the mortgagee (appellant) on the payment of balance sale price of Rs. 37,000/-, would be entitled to get the property transferred in his name but after death of the mortgagor, his legal heirs refused to honour the agreement whereupon the appellant filed a suit for specific performance of contract wherein he pleaded that mortgage deed was executed in affirmation of the agreement to sell as an acknowledgement of sale in his favour which was to be read as part of agreement and sought a decree for specific performance whereas the case of the respondents as set up in the written statement was that in consequence to the execution of mortgage deed, the agreement to sell dated 30.11.1966 stood annulled and was not enforceable.
The Court of first instance having formed the opinion that the mortgage deed was executed in continuation of agreement to sell as an acknowledgement of sale and passed a decree in the suit which was reversed in appeal by the learned District Judge with the conclusion that notwithstanding the acknowledgement of the part payment of the sale consideration in the mortgage deed, the agreement stood extinguished on the execution of mortgage deed between the parties and the suit for specific performance of the contract was not maintainable. The High Court having examined the matter in detail, affirmed the judgment of the First Appellate Court and dismissed the second appeal.
Leave was granted in this appeal vide order dated 8.10.2001 as under:--
"Learned counsel for the appellant argued that the Courts below have failed to construe properly the terms of the mortgage deed in order to discover the real intention of the parties behind the execution of the said deed, for while construing a document in order to find out its nature, the intention of the parties is the criteria which was the determining factor. He maintained that the circumstances which made the parties to execute the said mortgage deed were that the vendor was in the need of further money and the vendee was not bound to make further payment to him under agreement of sale till November, 1967, therefore, in order to meet the requirements of the vendor, further amount was advanced by the appellant who wanted security of his right to get the property sold to him that deed was executed which was described as mortgage. The intention of the parties to keep intact the agreement of sale itself, therefore, it was stipulates in this deed that the remaining amount of Rs. 37000/- out of the total amount of consideration may be paid by the appellant later and get the sale-deed executed, therefore, this mortgage deed was nothing but an agreement in furtherance of the original agreement of sale through which further amount was paid as earnest money and time was also extended. In the alternative, it was argued that the two immediate Courts below have not decided the question of clog on equity of redemption in its true perspective inasmuch as according to law, if stipulation in the mortgage deed itself had provided that the same transaction would operate as sale-deed on the happening of certain events as per its terms, only then the same could operate as clog on equity of redemption but not in a case where the parties intended to keep alive and intact the previous agreement of sale and right of the prospective vendee to get the same enforced and sale-deed executed independently as is the position in the present case.
The contention inter-alia require examination, therefore, we are inclined to grant leave to consider the same.
Learned counsel for the appellant submitted that the respondents have filed independent suit seeking redemption of the property and wants stay of the proceedings in the said suit."
Learned counsel for the appellant has contended that the sale of property by predecessor-in-interest of the respondents vide agreement dated 30.11.1966 is admitted and payment of Rs. 8,000/- as earnest money was also acknowledged in the mortgage deed executed on 9.3.1967 which was to be adjusted towards the mortgage money and thus the mortgage deed for all intents and purposes would be treated as a sale agreement. Learned counsel emphasized that notwithstanding the recital of mortgage deed, the plain reading of the two documents together would clearly establish that the mortgage deed was executed in continuation of the agreement to sell with clear intention to treat it as part of the agreement. In nutshell learned counsel argued that the mortgage deed dated 9.3.1967 was an acknowledgement to the agreement to sell and since no period for performance of the contract was fixed in the mortgage deed therefore, the suit for the purpose of limitation would be governed by Article 113 of the Limitation Act, 1908. The precise argument was that in the present case, time would not be considered as essence of the contract as neither the predecessor-in-interest of the respondents during his life time, denied the performance of agreement nor the appellant had any notice of refusal of the performance by the respondents, therefore, the suit would be deemed to have been filed within time under second part of Article 113 of the Limitation Act, 1908.
Learned counsel for the respondents, on the other hand, has contended that the agreement dated 30.11.1966 stood extinguished on the execution of mortgage deed dated 9.3.1967 and notwithstanding the acknowledgement in the mortgage deed that appellant may on payment of sale price, mentioned therein, purchased the property, the same having entirely an independent legal character, would not be treated as a part of agreement to sell to maintain the suit for specific performance.
The execution of the agreement to sell dated 30.11.1966 between the parties and the mortgage deed dated 9.3.1967 is admitted and this is also admitted that the predecessor-in-interest of the respondents acknowledged the payment of Rs. 8000/- as earnest money in the mortgage deed out of the total sale consideration fixed in the agreement to sell dated 30.11.1966 with the undertaking for transfer of the property on payment of balance sale price and thus the sole question requiring determination would be as to whether mortgage deed dated 9.3.1967 was part of agreement to sell dated 30.11.1966 or it was an independent legal document. The original agreement dated 30.11.1966 was not brought in evidence rather its extract from the relevant register was made part of the record and predecessor-in-interest of respondents having acknowledged the execution of the agreement in the mortgage deed dated 9.3.1967 admitted the existence of the agreement with the undertaking that appellant would be entitled to complete the sale in terms of the agreement. In view thereof the contention of the learned counsel that the mortgage deed was executed in continuation of the agreement to sell and since no time was fixed in the mortgage deed for payment of remaining sale price or execution of sale-deed therefore, the time would not be considered as essence of the contract and the appellant would be entitled to the decree for specific performance without the clog of limitation, has no substance.
8 The plain reading of the two documents would show that notwithstanding the acknowledgment of agreement to sell in the mortgage deed, both have entirely independent legal character and mortgage deed was not as such executed in continuation of the agreement dated 30.11.1966 and mere fact that agreement was kept alive in the mortgage deed, would not effect the independent legal status of two documents. The predecessor-in-interest of the respondents without suppression of the agreement to sell executed mortgage deed wherein it was agreed that property would be transferred in the name of appellant on payment of the balance sale price fixed in the agreement dated 30.11.1966 in terms thereof without change of any condition contained therein, therefore, the assertion that time fixed in the agreement was not essence of the contract, has no legal foundation. It may be noted that time of one year was fixed in the agreement for completion of sale and in absence of any express stipulation in the mortgage deed regarding enlargement of time to complete the sale, it would not automatically extended and even in case of implied intention to extend the time, the sale must have been completed within reasonable time. The normal period provided for filing of the suit for specific performance of contract provided under Article 113 of the Limitation Act, 1908 is three years from the date of execution of the agreement and this statutory period of three years even if is considered to have commenced from the date of execution of mortgage deed or from the date of expiry of the agreement to sell the suit would still be time barred and thus the contention of the learned counsel that under Second part of Article 113 of the Limitation Act, 1908, the time would be computed from the date of refusal of the performance of the contract, has no force. There is no cavil to the proposition that in a case in which time is not expressly provided for the performance of the contract or in the agreement of sale vendor acknowledged the right of the vendee in express terms for completion of sale beyond normal period fixed for its performance in the document, in such a case time may not be essence of the contract and limitation for filing the suit may be computed from the date of refusal.
There is no cavil to the proposition that possession delivered under the sale agreement is a shield anchor to protect the right of the vendee and he may if time was not fixed in the agreement for completion of sale on payment of sale price, claim the specific performance of the agreement within reasonable time and thus in such a case, time may not be the essence of the contract but this is not an inflexible rule to be made applicable in every case as the remedy of specific performance of contract is an equitable remedy which is always in the discretion of Court and suit for specific performance may be defeated if the plaintiff without any legal excuse failed to perform his part of the contract within the time specified therein. In the normal circumstances, the limitation in the suit for specific performance of the contract is not enlarged, in the light of the general principle that in respect of sale of immovable property, time is not essence of contract, unless a sufficient cause and a strong reason is shown for filing the suit beyond the statutory period. The above rule may not be helpful to the plaintiff/vendee who was not vigilant about the performance of his part of the contract and contributed in the delay caused in completion of the sale.
The learned counsel for the appellant has not been able to show us form record that before filing the suit, the appellant made any effort for fulfilling his part of the contract and offered payment of the sale price within the stipulated time or atleast within reasonable time to complete the sale. The learned counsel has also not been able to satisfy us that there was any acknowledgment of right either by the predecessor-in-interest of respondents or the respondents for completion of sale beyond the period mentioned in the agreement and thus the delay in filing the suit beyond the normal period provided under the law would be fatal and appellant would not be entitled to claim the decree for specific performance.
The detail examination of the matter with the assistance of the learned counsel for the parties, we have not been able to find out any legal or factual infirmity in the concurrent findings of the two Courts to differ with the conclusion arrived therein.
In the light of the forgoing reasons this appeal being without any substance, is dismissed with no order as to costs.
(N.F.) Appeal dismissed.
PLJ 2007 SC 849
[Appellate Jurisdiction]
Present: Nasir-ul-Mulk & Ch. Ijaz Ahmad, JJ.
Mst. LALAN BIBI and others--Petitioners
versus
MUHAMMAD KHAN & others--Respondents
C.P. Nos. 1477 & 2712 of 2004, decided on 22.3.2007.
(On appeal from the judgments/orders dated 18.5.2004 and 8.11.2004 passed by the Lahore High Court Rawalpindi Bench, Rawalpindi, in C.R. No. 181/D of 1999 and Review Application No. 7-C/2004 in C.R. No. 181/D of 1999).
Civil Procedure Code, 1908 (V of 1908)--
----S. 141 & O. XXII, R. 4--Miscellaneous proceedings--Sole defendant--Applicability--Application of S. 141 CPC is not only confined to the proceedings which are original and are in para materia with the suit but are also applicable to the proceedings which spring out of a suit--Held: Provisions of O.XXII, R. 4 CPC is applicable to the proceedings arising out of revision petition. [P. 854] A
Civil Procedure Code, 1908 (V of 1908)--
----O.VIII, R. 13--List of legal representative--To nominate a person to intimate Court--Fact of death and to furnish Court with necessary particulars--Bona fide mistake--Defendant is under obligation to file list of legal representatives alongwith written statement and to nominate a person to intimate Court of fact of death of defendant to furnish Court with necessary particulars and addresses of legal representatives--Non-compliance of order would authorize Court to proceed with suit not withstanding death of defendant--No prejudice has caused to them even it is bona fide mistake. [P. 854] B
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Suit for possession through pre-emption--Right of pre-emption--Entitlement--Co-sharer, owner of adjacent land--Not mentioned date, time and place in the plaint--Distinugished on fact and circumstance of the case--Fact was not considered by all the Courts below in its true perspective--Trial Court had committed material irregularity--First Appellate Court had also committed the same mistake, which were not rectified by High Court in the impugned judgment--Conclusion arrived at by all the Courts below that pre-emptor complied with the requirement of Talbs were erroneous, therefore, it was the duty and obligation of High Court to exercise its revisional jurisdiction--Conclusioons reached by High Court and Courts below suffer from serious errors of law and fact which unless set right are likely to revision in miscarriage of justice--Case referred to mis-reading or non-reading of the evidence--Petitions converted into appeals. [Pp. 854 & 856] C, D, E & F
Malik Shahzad Ahmad Khan, ASC and Mr. Ejaz Muhammad Khan, AOR (Absent) for Petitioners (in C.P. No. 1477/2004).
Ch. Mushtaq Ahmed Khan, Sr. ASC and Mr. M.S. Khattak, AOR (Absent) for Petitioners (in C.P. No. 2712/2004).
Nemo for Respondent (in C.P. No. 1477/2004).
Malik Shahzad Ahmed Khan, ASC and Mr. Ejaz Muhammad Khan, AOR (Absent) for Respondents (in C.P. No. 2712/2004).
Date of hearing: 20.3.2007.
Judgment
Ch. Ijaz Ahmed, J.--We intend to decide the captioned petitions by one consolidated judgment having similar facts and law arising out of the common impugned judgment and decree of the High Court dated 18-5-2004. The necessary facts out of which the aforesaid petitions arise are that Muhammad Khan filed suit for possession through pre-emption against Ghulam Ali in the Court of Senior Civil Judge, Chakwal on 13-9-1994. The contents of the plaint reveal that Ghulam Ali predecessor of Defendant Nos. 1-A to 1-B (Mst. Lalan Bibi and Noor Khan) purchased the land in question from Khuda Dad Khan S/o Nawab Khan vide Mutation No. 1930 dated 18-8-1994 for
Rs. 2,50,000/-. The contents of the plaint further reveal that in order to defeat the right of pre-emptor, fictitious sale consideration of
Rs. 6,50,000/- mentioned in the mutation. Ghulam Ali died during pendency of the suit and his legal heirs Lalan Bibi and others brought on record. The contents of the plaint further show that late Muhammad Khan plaintiff came to know about the sale on 2-9-1994. He at once pronounced that he will pre-empt the sale and thereafter he sent a written notice to Ghulam Ali by post on 5-9-1994 and written notice was attested by two witnesses namely Hayat Muhammad and Muhammad Iqbal. The contents of plaint further reveal that plaintiff Muhammad Khan has got superior right of pre-emption on the following grounds:--
Co-sharer.
Owner of adjacent land.
Defendants in the suit filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed 10 issues. After recording the evidence of the parties, the trial Court decreed the suit vide judgment and decree dated 4-5-1998 subject to the payment of Rs. 4,69,950/-. The plaintiff was directed to deposit the said amount after deducting zar-e-saim already deposited in the Court within one month failing which his suit shall stand dismissed. Plaintiff has complied with the directions of the trial Court and deposited the said amount on 23-5-1998. The defendants in the suit namely Mst. Lalan Bibi etc. being aggrieved filed appeal in the Court of District Judge Chakwal on 9.6.1998 who dismissed the same vide judgment and decree dated 21-12-1998. Mst. Lalan Bibi etc/defendants filed Civil Revision No. 181-R/1999 in the Lahore High Court Rawalpindi Bench. The learned High Court had dismissed the revision to the extent of decreeing the suit by the trial Court but the learned High Court has determined the sale consideration to be Rs. 6,50,000/- in terms of the contents of sale mutation in question. Respondent/plaintiff was directed to deposit payment of Rs. 7,15,650/- after deducting the zare saum already deposited in the Court within one month failing which his suit shall stand dismissed. Legal heirs of original plaintiff late Muhammad Khan filed review application on 2.7.2004 before the High Court which was dismissed vide order dated 8-11-2004, therefore they have filed C.P.No. 2712/2004 with regard to enhancement of sale consideration whereas legal heirs of defendants Ghulam Ali namely Mst. Lalan Bibi etc. filed C.P.No. 1477/2004 before this Court.
Learned counsel of the petitioner in C.P.No. 1477/2004 submits that all the Courts below have erred in law to decree the suit of the respondent without adverting to the contents of the plaint as the respondent/plaintiff did not mention date, time and place in the contents of the plaint. He further maintains that all the Courts below have decided the case against the petitioners by misreading and non-reading of the record. He further maintains that respondent/plaintiff has failed to prove making of talabs in accordance with the provisions of Pre-emption Act. He further maintains that respondent/plaintiff has filed suit himself and not through his attorney as is evident from the title of the plaint. He further maintains that respondent/plaintiff did not appear in witness box to prove the contents of the plaint. According to him first talab was made by him on 2-9-1994 and the second talab was made by him on 5-9-1994. He further submits that respondent/plaintiff has executed special power of attorney in favour of Ghulam Hasan on 12.9.1994 as is evident from the Ex. P.1 (page 45 of paper book of C.P No. 1477/2004). He further maintains that all the Courts below have erred in law to decree the suit of the respondent by believing the statement of Ghulam Hassan special attorney. He further maintains that all the Courts below have decided the case against the petitioners in violation of the mandatory provisions of Pre-emption Act and the law laid down by the superior Courts. In support of his contentions, he relied upon Atiq-ur-Rehman v. Muhammad Amin (PLD 2006 SC 309) and Fazal Subhan v. Sahib Jamala (PLD 2005 SC 977).
The learned counsel for the respondent in this petition submits that petitioners have filed this petition against the dead person as the respondent Muhammad Khan had died on 24.5.2003 and the case was decided by the High Court on 18.10.2004. His LRs have also filed petition against the judgment of the High Court (CP 2712/2004) before this Court in November, 2004. Present petitioners have engaged the counsel in their petition who has filed power of attorney before this Court on 13.8.2005. Therefore, it was the duty and obligation of the petitioners to bring on record the LRs of respondent Muhammad Khan but the petitioners have not filed any application till date, therefore, petitioners' petition is liable to be dismissed as they filed petition against the dead person. In support of his contention, he relied upon the following judgments:--
(i) Aisha Bibi v. Saghirul Hassan (1985 SCMR 1758).
(ii) Shabbir Hussain v. Abdul Raoof (1977 SCMR 287).
The learned counsel for the petitioner in Civil Petition No. 2712 submits that respondents filed Civil Revision No. 181-D/1999 in the Lahore High Court, Rawalpindi Bench against Muhammad Khan/original plaintiff/ predecessor in interest of the petitioners. Muhammad Khan died on 24.5.2003. The revision petition was decided on 18.5.2004 wherein the revision petition of the respondent was dismissed to the extent of decreeing the suit but the learned High Court had increased the sale consideration in terms of the sale mutation subject to payment of
Rs. 7,15,650/- after deducting of zar-e-saim already deposited in the Court within one month failing which his suit shall stand dismissed. The petitioners did not know qua the pendency of the said revision petition. Petitioners filed review petition in the Lahore High Court for reviewing the judgment dated 18.5.2004 and also prayed for extension of time to deposit the sale consideration in terms of the judgment of the High Court dated 18.5.2004. The learned High Court erred in law to dismiss the review petition vide judgment dated 8.11.2004. The learned counsel for the petitioners submits that petitioners could not deposit the sale consideration in terms of judgment dated 18.5.2004 on account of lack of knowledge of the direction passed by the learned High Court in the judgment dated 18.5.2004. The learned High Court has erred in law not to extend the time for depositing the sale consideration. The judgment of the learned High Court in review petition is result of mis-reading and non-reading of the record and in violation of the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:--
(i) Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983)
(ii) Muhammad Nawaz v. Muhammad Sadiq (1995 SCMR 105)
(iii) Gul Muhammad v. Mataa Muhammad (2004 SCMR 1600)
(iv) Niaz Muhammad Mann v. Muhammad Ahmad (1988 SCMR 1016)
(v) Gul Usman v. Ahmero (2000 SCMR 866)
He further maintains that trial Court decreed the suit in favour of the predecessor in interest of the petitioners on 14.5.1998 with the direction to deposit the sale consideration within one month. Predecessor in interest of the petitioners has complied with the direction by depositing the sale consideration on 23.5.1998. The respondents filed appeal before the First Appellate Court on 9.6.1998. Therefore, learned High Court has erred in law not to extend the time to the petitioners to deposit the sale consideration in violation of the Order XX Rule 14 CPC. Predecessor in interest of the petitioners has become owner of the property in question after depositing the sale consideration on 23.5.1998 and this fact was not considered by the learned High Court in its true perspective.
The learned counsel for the respondents in this petition submits that suit was filed by the predecessor in interest of the petitioners himself and not through his attorney, therefore, it was the duty and obligation of the petitioners to file application before the High Court to bring on record the legal heirs of the original plaintiff late Muhammad Khan. He further submits that revision petition has not abated in view of Law Reforms Ordinance, 1972 in view of Order XXII Rule 4 CPC. In support of his contentions, he relied upon Province of Punjab v. Gul Muhammad Khan (1988 MLD 2110). He further maintains that petitioners have not deposited the sale consideration within one month even after their knowledge about the direction of the High Court in terms of the judgment dated 18.5.2004 as evident from para 5 of the order dated 8.11.2004 passed by the Lahore High Court in their review petition. He further maintains that order of the Lahore High Court is in consonance with the law laid down by this Court. In support of his contention, he relied upon Shujat Ali v. Muhammad Riasat (PLD 2006 SC 140), Nawab Khan v. Fazalur Rahman (1976 SCMR 502), Maqbool Ahmed v. Muhammad Rafiq (1998 SCMR 112) and Allah Wasaya v. Irshad Ahmad (1992 SCMR 2184).
We have considered the submissions made by learned counsel for the parties and have also perused the record. It is an admitted fact that Mst. Lalan Bibi and 7 others have filed C.P. 1477/2004 against the judgment of the Lahore High Court dated 18.5.2004 wherein the revision petition of the petitioners was dismissed to the extent of decreeing the suit in favour of the respondents. The petitioners have filed the petition before this Court in June, 2004 whereas the respondent in C.P. 1477/2004 filed review petition before the High Court on 2.7.2004 which was dismissed by the learned High Court vide order dated 8.11.2004, therefore, at the time of filing the petition before this Court by Mst. Lalan Bibi and others, it was not in their knowledge that Muhammad Khan has died. In this view of the matter, preliminary objection raised by the learned counsel for the respondent has no force on the well known principle that no body is allowed to take benefit of his own mis-deeds. In fact, predecessor in interest of the respondent has not filed any application for their impleadment. It is settled law that the application of Section 141 CPC is not only confined to the proceedings which are original and are in para materia with the suit but are also applicable to the proceedings which spring out of a suit, therefore, provisions of Order XXII Rule 4 CPC is applicable to the proceedings arising out of revision petition. See Faqir Alam v. Ajab Khan (1986 CLC 1320), Municipal Committee Jhelum v. Muhammad Shafi (1971 SCMR 740), Muhammad Hassan v. Abdul Ghani (PLD 1993 Kar 623) and Muhammad Rafique v. Rashida Begum (1979 CLC 823). It is also settled law that defendant is under obligation to file list of legal representatives alongwith his written statement and to nominate a person to intimate Court fact of death of defendant and to furnish Court with necessary particulars and addresses of his legal representatives and also to make application for their substitution in view of order VIII Rule 13 CPC. It is settled law that non-compliance of said order would authorize Court to proceed with suit not withstanding death of such defendant. It is admitted fact that legal heirs of respondent in C.P. No. 1477/2004 have also filed C.P. No. 2712/2004 before this Court, we have heard them, therefore, no prejudice has caused to them even otherwise it is bona fide mistake. In view of the facts of the case in hand, legal representatives of dead party/respondent are not impleaded in petition, the same would not be fatal to the proceedings in the present petition. See Sakina Bibi v. Muhammad Nawaz (2000 SCMR 1051) and Nazir Ahmad Khan v. Muhammad Shaukat Khan (1999 MLD 1193). It is a settled law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down by this Court in Muhammad Saleem's case (1994 SCMR 2213). The judgments cited by the learned counsel for the respondent are distinguished on facts and circumstances of the case in hand. It is pertinent to mention here that all the Courts below had decreed the suit of the respondent inspite of the fact that respondent had not mentioned date, time and place in the plaint. This Court had given various divergent views of the said proposition of law as observed by this Court in Paragraphs 4 and 5 of judgment dated 5.12.2006 in CP 1429/2004 and observed as under:
"In view of the divergent view by different Hon'ble benches of this Court consisting of five and three Hon'ble Judges, the case be placed before the Hon'ble Chief Justice of Pakistan for consideration to constitute a larger bench in any other appropriate case to resolve the controversy if the Hon'ble Chief Justice deems it fit".
The larger bench was constituted by the Hon'ble Chief Justice of Pakistan to examine the following questions:--
"(i) Whether it is mandatory to disclose the particulars and details of the date, time and place of receiving information about sale and making of "Talb-i-Muwathibat, and also the names of the witnesses in whose presence this Talab was made in the plaint in a suit for possession by way of pre-emption?
(ii) Whether in the instant case, the High Court was legally competent and justified to set aside the concurrent findings of fact recorded by the appellate and trial Court to the effect that the requirements of "Talb-i-Muwathibat" had been duly fulfilled before the suit was instituted? "
The said bench vide its judgment dated 12.12.2006 passed in Civil Appeals No. 1951/2000 and 1178/2005 laid down following principle:--
"Wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-i-Muwathibat. Therefore, we endorse the view taken in the these judgments and approve that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit."
It is also an admitted fact that the plaintiff Muhammad Khan has filed suit in his personal capacity and not through his attorney as evident from the title of the plaint which is re-produced hereunder:-
Plaintiff has made first Talb on 2.9.94 and second Talb was made on 5.9.94. Ghulam Hassan was appointed by the plaintiff as his attorney on 12.9.94. It is an admitted fact that plaintiff late Muhammad Khan did not appear before the trial Court, therefore, making of Talbs in terms of Section 13 was not proved and this fact was not considered by all the Courts below in its true perspective. Judgements of all the Courts below are not in consonance with the law laid down by this Court in Mst. Salma Bibi's case (1996 SCMR 1067). The aforesaid proposition of law is also supported by the following judgments:
(i) Salma Bibi's case (1996 CLC 623).
(ii) Mst. Wazeeran's case (1996 CLC 682).
The trial Court has decided the case in violation of the dictum laid down by the superior Courts in the aforesaid judgments, therefore, trial Court has committed material irregularity. See Kanwal Nain's case (PLD 1983 SC 53), Oil and Gas Development Corporation's case (PLD 1970 Kar 332) and Muhammad Hashim's case (PLD 1971 SC 793). The First Appellate Court has also committed the same mistake which were not rectified by the learned High Court in the impugned judgment. The conclusions arrived at by all the Courts below that pre-emptor complied with the requirement of Talbs are erroneous, therefore, it was the duty and obligation of the learned High Court to exercise its revisional jurisdiction. See Hakim Muhammad Buta's case (PLD 1985 SC 153). We are perfectly conscious that as ultimate Court in the land, the Supreme Court, as a rule, should give due weight and consideration to the opinions of the Courts below. This Court normally, does not, interfere with the findings of fact reached by the Courts below when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by dis-regarding any provision of law or any accepted principle concerning the appreciation of evidence. In the instant case, however, it is difficult to avoid the impression that the conclusions reached by the High Court and the Courts below suffer from serious errors of law and fact, which unless set right are likely to result in miscarriage of justice. We have also referred to misreading or non reading of the evidence on record hereinabove.
(A.S.) Order accordingly.
PLJ 2007 SC 857
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday & Raja Fayyaz Ahmed, JJ.
LUQMAN ZAREEN & others--Petitioners
versus
SECRETARY EDUCATION NWFP etc.--Respondents
C.Ps. Nos. 326-P to 342-P, 485-P, 486-P, 513-T to 519-P, 586-P & 622-P of 2005, decided on 21.6.2006.
(On appeal from the judgment/order dated 14.5.2005 of the NWFP Service Tribunal, Peshawar, passed in Service Appeals No. 187 & 188 of 2004, 1019, 1020, 1021, 1022, 1023, 1025, 1026, 1122, 1178, 1191, 1192, 1193, 1194, 1195, 1196, 1024, 1151, 1152, 1153, 1154, 1158, 1159, 1160, 1161, 1157 and 997 of 2003, respectively).
Service Matter--
----Civil servants--Promotion of--Adjusted against higher posts on acting charge basis--Entitlement of salary--Notification--Assailed--Vacancies of subject specialists existed and petitioners possessed requisite qualifications for being regularly promoted to posts on that date when they had been appointed on acting charge basis--Nothing existed in the way of petitioner which could have dis-entitled to regular promotion to the post in-question--It was the usual apathy, negligence and bureaucratic red-tapism which had deprived the petitioners of the fruits that they deserved. [P. 859] A
Civil Servant--
----Promotion--Regular--Entitlement to salary--Principle--A person who was asked to hold a higher post to which he was subsequent promoted on regular basis was entitled to salary--If vacancy existed in a higher cadre to which a civil servant was qualified to be promoted on regular basis but was not promoted without any fault on his part and was intend put on the post on officiating basis then on regular promotion. [P. 861] B
Mr. Javed A. Khan, ASC with Mr. Mir Adam Khan, AOR for Petitioners (in all Petitions).
Mr. M. Saeed Khan, Addl. A.G. NWFP with Haji Ahmed Khan, Addl. Secretary (S & L) & Fazli Manan, Director (S & L) Education Department, Peshawar for Respondents.
Date of hearing: 21.6.2006.
Judgment
Khalil-ur-Rehman Ramday, J.--All these petitions, twenty-eight in number, involve identical questions of law and facts; arise out of the same consolidated judgment of the learned NWFP Service Tribunal and are, therefore, being disposed of together through this single judgment.
"The following SETs holding M.A./M.Sc. Degrees in the relevant subject for the post of Subject Specialists are hereby adjusted against the post of Subject Specialists on acting charge basis in the schools noted against each on seniority basis with immediate effect subject to the terms and conditions in vogue or ones to be framed in future."
"On the recommendation of the Departmental Promotion Committee, the Competent Authority has been pleased to promote the following S.E.Ts. (BPS-16) (I/C S.S.) to the rank of Subject Specialists (BPS-17) on regular basis with immediate effect and adjusted in the schools as noted against their names.''
The petitioners felt aggrieved of their promotion to the said post from 27.5.2003 and not from the date when they had been actually appointed to the said posts though on acting charge basis i.e. from 31.8.2000. They sought redress of their said grievance from the learned Service Tribunal but failed.
Hence these petitions.
It has not been denied even before us that clear vacancies of Subject Specialists existed on 31.8.2000. It has also not been denied that all the petitioners possessed the requisite qualifications for being regularly promoted to the said posts on the said date and no impediment existed in their way to such a promotion. The reason offered for not so doing was that since a large number of S.E.Ts. were to be promoted, therefore, it took the Departmental Promotion Committee some time i.e. about three years to do the needful. It was, however, submitted that no financial loss had accrued to the petitioners because during these three years when they were holding the said higher posts, they had been paid salaries etc. attached to the same.
The learned Tribunal non-suited the petitioners essentially on the ground that dining the period in question when they were holding the said higher posts on acting charge basis, they were entitled only to the salaries of the said posts and nothing more and that they were not possessed of any right to claim regular promotion from 31.8.2000. A mention had also been made by the learned Tribunal that during this period some twenty-seven persons had got directly recruited as Subject Specialists who had not been arrayed as parties to the appeals filed by the petitioners before the said learned Tribunal; that ante-dating the promotion of the petitioners to the said posts would adversely affect the seniority of the said direct appointees and since they had not been made parties to the said appeals, therefore, the sought relief could not be ground of them. From the impugned judgment of the learned Service Tribunal, an impression is also gathered that while refusing the said relief to the petitioners, the said learned Tribunal had also been influenced by the fact that they had not re-coursed to the available remedies in the year 2000 when they had been promoted to the posts in question on acting charge basis only and not on regular basis.
We have heard the learned counsel for the parties and have also perused the record in the light of the submissions made before us.
It is then a position admitted on all sides that nothing existed in the way of the petitioners on 31.8.2000 which could have dis-entitled them to regular promotion to the posts in question and that it was only the usual apathy, negligence and bureaucratic red-tapism which had deprived the petitioners of the fruits that they deserved. The petitioners could not be permitted to be punished for the faults and in-action of others. We are of the view that where a post was available against which a civil servant could be promoted; where such a civil servant was qualified to be promoted to such a higher post; where he was put on the said higher post on officiating or acting charge basis only because the requisite exercise of allowing the regular promotion to the said post was being delayed by the competent authority and where he was subsequently found fit for the said promotion and was so promoted on regular basis then he was entitled not only to the salary attaching to the said posts but also to all consequential benefits from the very date from which he had been put on the said post on officiating or acting charge basis and we hold accordingly.
The learned Tribunal had brushed aside some precedent cases cited before it including some cases of this Court by declaring that the same were distinguishable. We have gone through the said judgments delivered by this Court and find that the learned Tribunal had failed to read the said judgments properly and to appreciate the ratio of the same in its correct prospective.
One such judgment to which a reference had been made in detail in the impugned judgment was Sarwar Ali Khan's Case reported as PLD 1994 SC 233. This was a case where a Deputy Registrar of the Sindh Labour Appellate Tribunal had been appointed to the post of the Registrar of the same Tribunal on 5.7.1988 with immediate effect and till further orders but in his own pay and scale. It was almost three years later that he was regularly promoted to the said post on the recommendation of the Departmental Promotion Committee. Since there was no prospect of his further promotion beyond the post of Registrar, therefore, he had claimed only the salary of the post of Registrar which he had held on officiating basis for about three years and had prayed for nothing more. This claim was denied to him which finally led him to this Court. And this is what was held by this Court in the said facts and circumstances:
"........This cannot be stretched to cover the case in hand, where the incumbent has worked against that post on his own pay and status for three years, particularly when there was no legal impediment in his way to be promoted at that time on regular basis when he was inducted on 5.7.1988. In the instant case, since the appellant was eligible and qualified for promotion to B-18, there appears no justiciable reason to deprive him of the salary and others benefits of that post for a period of three years, which he would have received, had he been promoted on regular basis. The appellant had discharged full duties and responsibilities of the higher post and in the absence of some plausible reason, he cannot be deprived of the salary and other benefits connected with that post."
(under-lining is ours)
Dealing with this judgment, the learned Tribunal had failed to appreciate the principle laid therein by this Court by omitting to give the requisite weight to the principle enunciated and the words "other benefits" emphasized by this Court through the said judgment.
Another judgment of this Court placed before the learned Tribunal for its guidance was the one delivered in the case of Chaudhry Mehmood Akbar reported as 2003 SCMR 13.
This was a case where Muhammad Afzal, the respondent in that case, while serving as a Deputy Superintendent of Jail on 21.12.1989, was transferred and posted as Superintendent of Jail in his own pay and scale and it was almost five years thereafter i.e. on 1.9.1994 that he was regularly promoted to the said post of Superintendent. He reached the Service Tribunal claiming regular promotion from the date when he had been appointed to the said post of Superintendent i.e. from 21.12.1989 instead of the date of his regular promotion to the same i.e. on 1.9.1994. The learned District Attorney who represented the Government before the learned Tribunal did not object to the grant of the said relief and the same was accordingly allowed to him. One Muhammad Akbar questioned the said judgment of the learned Tribunal before this Court submitting that he was senior to Muhammad Afzal in service; had been promoted to the post of Superintendent of Jail after Muhammad Afzal had been put on the said post in his own pay and scale but before his regular promotion to the said post on 1.9.1994 and that granting promotion to the said Muhammad Afzal with effect from 21.12.1989 would operate prejudicially to his seniority and interests vis-a-vis the said Muhammad Afzal. After hearing all the sides, this Court sanctified the promotion of Muhammad Afzal with effect from the date when he had been actually put on the said higher post i.e. with effect from 21.12.1989 subject only to the proviso that the same would not adversely affect the rights of the other Superintendents of Jail who were senior to the said Muhammad Afzal.
A bare perusal of these judgments would thus show that this Court had always accepted the principle that a person who was asked to hold a higher post to which he was subsequently promoted on regular basis, was entitled to the salary etc. attaching to such a post for the period that he held the same; that he would also be entitled to any other benefits which may be associated with the said post and further that if a vacancy existed in a higher cadre to which a civil servant was qualified to be promoted on regular basis but was not so promoted without any fault on his part and was instead put on the said post on officiating basis then on his regular promotion to the said post, he would be deemed to have been so promoted to the same from the date from which he was allowed to hold the said higher post unless justifiable reasons existed to hold otherwise.
The appeals filed by the petitioners before the learned Service Tribunal could not have been dismissed on the ground of limitation. Firstly, because it was the subsequent notification dated 27.5.2003 which had ordered their regular promotion not from the date that they had been promoted to the posts in question on acting charge basis but from the date of the said notification which had caused grief to them. Therefore, limitation would start running against them not from 31.8.2000 but from 27.5.2003. And secondly, because on similar question of limitation, this Court had thus held in Sarwar Ali Khan's Case (supra):-
"........ it can be said that presumption favourable to the civil servant (Appellant) would be that it was temporary arrangement and would not last long but it lasted for three years. Filing representation was also proper remedy and in such circumstances, it would not be fair to knock down service appeal as time-barred on the ground that first notification was not challenged."
This brings us to the question whether the petitioners could have been denied relief by the learned Tribunal on the ground that allowing relief in question to them could have operated to the prejudice of some persons who had been directly recruited to the posts of Subject Specialists between 31.8.2000 and 27.5.2003 and who had not been impleaded as respondents in the said appeals. Suffice it to say that the appeals filed by the petitioners before the Service Tribunal did not seek seniority over the said directly recruited persons and what they were asking for was the vindication of their right to regular promotion from the date in question and if the petitioners were found entitled to the same then they could not be deprived of it only because it could have caused some prejudice to some others nor could the said others be heard to deny the said benefit deserved by the petitioners. Therefore, we find that non-impleading of the said direct recruits to the appeals filed by the present petitioners in the learned Tribunal could also be no ground to deny them a right which had lawfully accrued to them.
Having thus examined all aspects of the matter and for the above-discussed reasons, all these petitions are converted into appeals which are allowed as a result whereof the impugned judgment of the NWFP Service Tribunal is set aside and as a further result whereof it is declared that the petitioners (now appellants) shall be deemed to have been regularly promoted as Subject Specialists from 31.8.2000 and not from 27.5.2003.
No orders as to costs.
(R.A.) Petitions allowed.
PLJ 2007 SC 862
[Appellate Jurisdiction]
Present: Javed Iqbal & Ch. Ijaz Ahmed, JJ.
RAJA ALI SHAN--Petitioner
versus
M/s. ESSEM HOTEL LIMITED and others--Respondents
Civil Petition No. 2193 of 2004, decided 7.12.2006.
(On appeal from the judgment dated 24.6.2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in C.R. No. 76 of 2003)
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 8--Constitution of Pakistan, 1973, Art. 185(3)--Suit for declaration and permanent injunction--Rights in Shamilat Deh--Defend on behalf of all interest--Claim of--General principle--Exception--Leave to appeal--Suit was filed without fulfilling requirement prescribed--Petitioner has filed suit in a representative capacity and not in his individual capacity--Respondents/plaintiffs had filed suit in representative capacity under O. I, R. 8 but procedure laid down therein as not followed, therefore, suit should be deemed to be on behalf of respondents/plaintiffs in his individual capacity cannot be accepted. [P. 868] A
Duty of Court--
----Rejection of plaint--Incompetent suit--Court attention--Court is not only empowered but under obligation to reject plaint, even without any application from a party, if same is hit by any of clauses mentioned u/O. VII, R. 11--Supreme Court is not inclined to exercise discretion in his favour. [P. 869] C
Constitutional Jurisdiction--
----Discretionary in character--He who seeks equity must come with clean hands--Supreme Court does not normally exercise discretion in view of conduct of the petitioner. [Pp. 869 & 870] D
Constiution of Pakistan, 1973--
----Art. 162--Documents--Reference by President Interpretation of Law--Held: Documents must be read as a whole as the law laid down by Supreme Court in matter of Reference by the President of Pakistan.
[P. 868] B
PLD 1957 SC (Pak) 219; PLD 1960 Dacca 555 ref.
PLD 1957 SC (Pak.) 219; AIR 1933 P.C. 183; PLD 1988 Lah. 725 and PLD 1989 SC 166 ref.
Mr. Muhammad Ilyas Sheikh, ASC and Ch. Akhtar Ali, AOR for Petitioners.
Mr. Zulfiqar Khalid Maluka, ASC for Respondents No. 1 & 2.
Mr. Arif Chaudhry, ASC and Raja Abdul Ghafoor, AOR for Respondent No. 3.
Date of hearing: 7.12.2006.
Judgment
Ch. Ijaz Ahmed, J.--The petitioner has sought leave to appeal against the judgment of the Lahore High Court dated 24.6.2004 wherein revision petition filed by the petitioner before the High Court was dismissed.
Necessary facts out of which the present petition arises are that petitioner is resident of village Bartamah. The inhabitants of the village in question have total land measuring 326 acres, 5 kanals and 3 marlas out of the said land, capital development authority had acquired land measuring 206 acres 6 kanals and 19 marlas. The land measuring 10 kanals, 16 marlas being Shamlaat Deh land being meant for graveyard of the village was exempted from acquisition. The exempted area is situated in Khasra No. 59/1/91 and 90 of khewat at No. 52/150 and khewat No. 9 respectively. The petitioner filed suit for declaration with permanent injunction against the respondents in the Court of Civil Judge Islamabad on 12.12.1995. The contents of the plaint reveal that the petitioner claimed that he and his ancestors were old residents of the revenue estate Bartamah alongwith rights in the Shamlaat Deh specifically reference was made to the land measuring 10 kanals, 16 marlas which was not acquired by the capital development authority. The contents of the plaint further reveal that the said land be excluded from acquisition proceedings as it consisted of a graveyard and Khangah. The trial Court rejected the plaint under Order VII, Rule 11 CPC as barred by time. Petitioner being aggrieved filed appeal before the District Judge who accepted the same vide order dated 18.2.1996 and remanded the case to the trial Court to decide the case afresh on merits in accordance with law. During the pendency of the said suit petitioner filed Writ Petition No. 490 of 1996 with the prayer that the land in question be excluded from the acquisition proceedings. The petitioner had withdrawn the said suit during the pendency of the writ petition as evident from order dated 10.6.1996. Writ petition was also dismissed vide order dated 16.7.1996. Thereafter petitioner filed ICA No. 33/96 which was also dismissed on 18.8.1996. The petitioner had not challenged the aforesaid orders passed by the learned High Court and filed a second suit for declaration and permanent injunction before the Civil Judge Islamabad on 12.12.1996. Respondents filed application under Order VII, Rule 11 CPC before the trial Court. The learned trial Court after receiving the reply from the petitioner framed 7 issues, thereafter rejected the plaint vide judgment dated 12.3.2001. Petitioner being aggrieved filed appeal in the Court of District Judge which was also dismissed vide judgment and decree dated 22.10.2002. Petitioner being aggrieved filed Civil Revision No. 76 of 2003 before the learned High Court, Rawalpindi Bench. Respondent Nos. 1 and 2 had also filed Writ Petition No. 138 of 2000 as the land in question was allotted to Respondents No. 1 and 2 by Respondent No. 3. The learned High Court decided the said revision petition and constitutional petition vide impugned consolidated judgment dated 24.6.2004. The revision petition of the petitioner was dismissed as mentioned above. Hence, this petition.
The learned counsel for the petitioner submits that learned High Court had accepted the application of the respondents under Order VII, Rule 11 CPC and rejected the plaint of the petitioner on the following grounds:--
(i) The suit is not maintainable in view of Order XXIII, Rule 3 CPC.
(ii) The suit is not maintainable in view of Order XXIII, Rule 3 CPC.
(iii) Suit is not maintainable in view of Order I, Rule 8 CPC which was upheld by the First Appellate Court.
The learned High Court had dismissed the revision petition only on the ground that petitioner has filed suit in repugnant to the provisions of Order I, Rule 8 CPC and the suit in its present form for declaration and permanent injunction was not maintainable. He further maintains that learned High Court had erred in law to non-suit the petitioner in violation of the law laid down by the superior Courts. In support of his contention, he relied upon Islam-ud-Din's case (PLD 2004 SCMR 633) and Haji Saleh Muhammad's case (1983 SCMR 587). He further submits that learned High Court had erred in law to non-suit the petitioner without adverting to the contents of the plaint specially para 3 and 4 wherein the petitioner had agitated his personal grievance, therefore, his suit was competently filed and provisions of Order I, Rule 8 CPC are not attracted. He further submits that learned High Court had erred in law to non-suit the petitioner without adverting to the provisions of Order VII, Rule 11 CPC in case the petitioner has filed suit in the representative capacity without completing the formalities prescribed under Order I, Rule 8 CPC. He further maintains that learned High Court has non-suited the petitioners without adverting to the Order I, Rule 9 CPC. The trial Court has not adopted proper procedure and after framing the issues did not allow the parties to adduce evidence and this aspect of the case was not considered by the learned High Court in its true perspective.
The learned counsel for the Respondents No. 1 and 2 submits that the petitioner filed suit for declaration with permanent injunction on 12.12.95 which was dismissed as withdrawn on 10.6.1996 as the petitioner during the pendency of that suit filed Constitutional Petition No. 490 of 1996 which was dismissed on 16.7.1996 and thereafter petitioner filed Intra Court Appeal which was also dismissed and thereafter petitioner had filed second suit for declaration and permanent injunction on 12.12.1996 merely on the observation that the learned High Court had dismissed his Constitutional petition on the ground that disputed questions of fact could not be adjudicated upon in constitutional proceedings. The best course for the petitioner is to approach the Civil Court of preliminary jurisdiction for the determination of his rights, if any. The learned High Court had not allowed him to file a suit for declaration in violation of the mandatory provisions of CPC. He further maintains that learned High Court had dismissed the revision petition in view of provisions of Order I, RuleRule 8 CPC. This petition is also liable to be dismissed in view of the conduct of the petitioner and in view of Order 23 CPC.
The learned counsel appearing on behalf of CDA has also adopted the arguments advanced by the learned counsel for the Respondents No. 1 and 2 and further submits that petitioner had filed a suit in representative capacity as evident from the contents of the Paragraphs No. 2, 3, 4 and 10 of the plaint.
We have considered the submissions made by counsel for the parties and perused the record. It is better and appropriate to reproduce the relevant paragraphs of the plaint to resolve the controversy between the parties:--
"Briefly the facts are that the petitioner M/S Essem Hotels (PVT) Limited was allotted a plot for the construction of Five Star Hotel in Islamabad by the Capital Development Authority/ respondent. The CDA raised a demand in respect of the payment of outstanding premium/dues amounting to Rs. 13,99,88,230.38 alongwith the delayed payment charges worked out till 15.11.1997. It was stipulated that in the event of failure to comply with the same, the allotment of the plot made in favour of the petitioner shall stand cancelled.
The petitioner filed Writ Petition No. 2816 of 1997 to challenge the said act of the CDA. The said writ petition was decided by this Court vide judgment dated 24.4.1998 whereby it was found that as the plot allotted to the petitioner was subject-matter of litigation since 1991 and as the respondent failed to deliver the possession of the plot to the petitioner with a clear title and free of encroachments, the delay in the payment of premium by the petitioner was neither contumacious nor deliberate. It was held that the imposition of delayed payment charges was without lawful authority and was of no legal effect. It was consequently directed that petitioner shall deposit the balance of the premium amount in six equal instalments of Rs. 1,77,53,121.33 each with a further direction to deposit the first instalment within a week of the said order and the remaining instalments in the next 15 months. The respondents were to deliver the actual physical possession of the plot clear of all encroachments immediately upon the deposit of the first instalment.
Against this judgment, the CDA/respondent filed CPLA No. 887/98 against the petitioner while the petitioner also filed CPLA No. 933/98. The Supreme Court refused to grant leave to appeal in CPLA No. 887/98, CPLA No. 933/1998 was also dismissed as not pressed with the result that the judgment of this Court passed in W.P. No.2816/97 attained finality.
It is not denied that the first instalment was paid by the petitioner through bank drafts dated 28.4.1998 and 29.4.1998 respectively.
The case of the petitioner is that the CDA was not able to hand over clear title and possession of the entire plot to the petitioner for the reason that one Raja Ali Shan had commenced litigation in relation to a portion of the plot in question by filing a civil suit. On account of this disability of the CDA to comply with the orders of this Court passed in the aforementioned writ petition, it became impossible for the petitioner to fulfil its corresponding obligation of the payment of the instalments. It was contended that till such time that the litigation brought by the aforesaid Raja Ali Shan did not conclude in favour of the CDA, the petitioner should not be coerced to make the payment of the remaining premium to the CDA. At this juncture, it is necessary to refer to the suits filed by Raja Ali Shan filed against the petitioner and the CDA respectively.
While the said suit was still pending, the plaintiff Raja Ali Shan filed W.P. No. 490 of 1996 wherein the same land measuring 10 kanals 10 marlas was sought to be excluded from the acquisition proceedings. Raja Ali Shan withdrew the said suit on 10.6.1996 in view of the pendency of the writ petition. "
(a) Persons interested in the suit must be numerous.
(b) They all must have the same interest in the suit.
(c) Permission of Court under Rule 8 shall be obtained.
(d) Notice must be given to all the persons whom it is sought to represent.
(e) Indian Supreme Court while interpreting Order I, Rule 8 CPC in The State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu (AIR 1965 SC 11) laid down the following principle:--
"to enable a person to file a suit in a representative capacity for and on behalf of numerous persons where they have the same interest, the only condition is the permission of the Court".
Graveyard means a place for the interment of dead bodies. See Stockton v. Weber, ILR 98 Cal. 433. The aforesaid definition of the word graveyard shows once a land is reserved by the inhabitants of the village then it does not remain property of any individual. Therefore, all the Courts below were justified that suit was not maintainable in view of parameters prescribed by the legislature under Order I, Rule 8 CPC.
"It is submitted before us that the respondents/plaintiffs had filed a suit in representative capacity under Order I, RuleRule 8, C.P.C. but procedure laid down therein was not followed, therefore, the suit should be deemed to be on behalf of respondents/plaintiffs in their individual capacity. It is not possible for us to accept this assertion of the appellants in view of the consent of the Advocate-General in favour of respondents/plaintiffs to institute a suit. Even otherwise, there is no bar upon an individual to institute a suit for a right existing in his favour in respect of the cases pertaining to public nuisance without obtaining consent of the Advocate-General, therefore, non-following the procedure under Order I, RuleRule 8, C.P.C. would not be fatal in given circumstances of the case.
Besides it, in view of the findings of the High Court namely "in case of public nuisance and private nuisance, injury to the property and to a person would confer jurisdiction upon the Court except that in the case of public nuisance, consent of Advocate-General except that in the case of public nuisance, consent of Advocate-General as required under Section 91, C.P.C. would be necessary under the law, while in case of private nuisance no such consent would be required but the relief for filing a suit for injunction and damages would be available in both kinds of nuisance" the objection being raised on behalf of appellants has no substance. (PLD 2004 SC 633).
The argument based on the provisions of Order I, Rule 8 Code of Civil Procedure may next be disposed of which was not very seriously pressed before us. The contention that since the interest of the whole tribe was involved in the controversy being the subject matter of the proceedings before the High Court, it was incumbent upon the High Court to adopt the procedure provided for in Order I, Rule 8, C.P.C., is wholly untenable. The provisions of rule 8 are only enabling and permissive in nature and it is not mandatory that wherever there are several persons interested in a suit or proceeding it should be instituted in representative capacity. Such view has been taken in a number of reported cases including Rangal Shah v. Mula Jadal (1), in which it was held that if a person has a right to action, he can proceed independently of the others who may be having a common cause of action with him, and he does not at all stand in need of including others or to prefer a representative suit. No exception can be taken to this view. Article 199 of the Constitution provides a special remedy to an aggrieved party against the specified persons therein in respect of inter alia, any act done or proceeding taken within the jurisdiction of the concerned High Court and such an aggrieved person is under no obligation to implead in the proceedings others having a common cause of action with him. The contention has, therefore, no substance". (1983 SCMR 587)
It is pertinent to mention here that in view of the Order VII, Rule 11 CPC it is the duty of the Court to reject the plaint if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts' attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that the Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under Rule 11 of Order VII CPC. Undoubtedly in the case in hand, the respondent is seeking the order of the rejection of the plaint by invoking the aforesaid provisions of law. It is a settled law that Constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. This Court does not, normally, exercise discretion in view of the conduct of the petitioner. The detailed facts have already mentioned hereinabove that petitioner had filed suit for declaration with permanent injunction against the respondent. During the pendency of the suit petitioner filed constitutional petition on the same subject-matter and cause of action. His suit was dismissed as withdrawn during the pendency of his constitutional petition. The constitutional petition was dismissed. Thereafter the petitioner filed second suit out of which the present controversy arises. The conduct of the petitioner is such that we are not inclined to exercise discretion in his favour as law laid down by this Court in various pronouncements. See Khawaja Muhammad Sharif case (PLD 1988 Lah. 725) and Haji Muhammad Saifullah Khan's case (PLD 1989 SC 166).
In view of what has been discussed above, this petition has no merit and the same is dismissed. Leave refused.
(A.S.Sh.) Leave refused.
PLJ 2007 SC 870
[Appellate Jurisdiction]
Present: Javed Iqbal & Abdul Hameed Dogar, JJ.
MIR ALAM & 2 others--Appellants
versus
SAHIBZADA & 7 others--Respondents
C.A. No. 387 of 2001, decided on 9.1.2007.
(On appeal from the judgment dated 30.10.2000 of the Peshawar High Court, Peshawar, in Civil Review No. 278 of 1997).
Civil Procedure Code, 1908 (V of 1908)--
----S. 91--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal was granted--Public nuisance rather than of nuisance--Consent of Advocate-General--Provisions of law--Appellants filed suit in personal capacity--Relief sought of entire community--Objection raised--Maintainability of suit--Held: In case of public nuisance, consent of Advocate-General as required u/S. 91 CPC would be necessary under the law, while in case of private nuisance no such consent would be required but relief for filing a suit for injunction and damage would be available in both kinds of nuisance--Appeal was dismissed.
[P. 873] A & B
Mr. M. Aman Khan, ASC for Appellants.
Respondent No. 1 in person.
Respondent Nos. 2 to 8 Exparte.
Date of hearing: 9.1.2007.
Judgment
Abdul Hameed Dogar, J.--This appeal with leave of the Court is directed against the judgment dated 30.10.2000 passed by learned Judge in Chambers of the Peshawar High Court, Peshawar, whereby Civil Revision No. 278 of 1997 filed by appellants was disposed of and while setting aside the decrees and judgments of two Courts below, the plaint of the appellants was returned being not maintainable for want of sanction as required under Section 91 of the CPC. However, it was also directed that the appellants would be at liberty to file a fresh suit regarding declaration of the suit land as graveyard and perpetual injunction against any nuisance by the respondents.
Briefly, stated, the facts giving rise to the filing of the instant appeal are that appellants instituted a suit for declaration with perpetual injunction against the respondents in the Court of Civil Judge, Dargai, alleging therein that the land in question is reserved for graveyard. They also claimed that the respondents wanted to raise construction on it unlawfully. The respondents filed written statement and raised legal and factual objections. They also mentioned that the disputed land is not a graveyard. The trial Court framed 13 issues. Both the parties produced their evidence to prove their claims. The trial Court after conclusion of trial dismissed the suit vide judgment and decree dated 26.5.1996. Feeling aggrieved, appellants filed appeal before the learned Addl. District Judge, Malakand which was also dismissed vide judgment and decree dated 15.4.1997. Feeling dissatisfied, appellants invoked the revisional jurisdiction of the learned Peshawar High Court by filing Civil Revision No. 278 of 1997 which was disposed of as stated above vide impugned judgment.
Leave to appeal was granted by this Court on 3.4.2001 to consider whether the High Court was justified in setting aside the findings of two Courts below and has correctly interpreted Section 91, C.P.C.
We have heard Mr. M. Aman Khan, learned ASC for the appellants and Respondent No. 1 who appeared in person at length and have gone through the record and the proceedings of the case in minute particulars.
Mr. M. Aman Khan, learned ASC for appellants contended that since respondents did not raise the plea of maintainability of the suit under Section 91 CPC before the trial Court, therefore, this plea cannot be agitated at this belated stage. He contended that the learned High Court has erroneously raised issue of maintainability of the suit under Section 91 CPC. According to him the appellants produced sufficient evidence before the trial Court which shows that the dead bodies of their forefathers are buried in that graveyard since long. He also pointed out that even the witnesses of defendants, namely, DW-2 Daulat Khan, Khasta Qadar DW-3 and DW-4 Gul Zafar Khan have categorically stated that the dead bodies of relatives of Mir Alam and Rasool Shah appellants are also buried in the disputed property which is sufficient to prove that the disputed property is a graveyard. He contended that Section 91 CPC would have no application on account of the rule laid down by the superior Courts.
On the other hand Respondent No. 1 who appeared in person refuted the above submissions and contended that declaration sought by appellants was regarding graveyard and all graveyards are public property and, therefore, by such relief against any nuisance could only be agitated after getting permission of the Advocate-General as required under Section 91 of the CPC which was not done so in this matter. Thus the learned High Court has rightly returned the plaint to the petitioners.
First of all, in order to reach at correct conclusion of the dispute, it would be appropriate to reproduce Section 91 of the CPC:--
"91. Public nuisance.--(1) In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
The perusal of the above mentioned provisions of law indicates that appellants was required firstly to obtain sanction of the Advocate-General before filing the suit which apparently they did not do so. Appellants filed the suit in their personal capacity although the relief sought was in respect of the entire community and thus it was necessary that the suit should have been filed in representative capacity. The respondents also raised objection before the trial Court regarding the maintainability of the suit in its present form. It is also proved from the evidence that the dead bodies of the relatives of respondents were buried in the said graveyard since long. Even from the statement of DW-2 Daulat Khan, it is also established that the dead bodies of the relatives of appellant Mir Alam and others are buried in the disputed graveyard. DW-3 Khaista Qadar also stated in his statement that the brother of appellant Mir Alam , father , sons and dead bodies of the relatives of Appellant No. 3 Rasool Shah are also buried in the disputed place.
We have examined the contents of the plaint and concur with the findings recorded by the learned High Court that in substance it is a case of public nuisance rather than of private nuisance. On that assumption, sanction prescribed under Section 91 of the C.P.C. was essential and that suit was not competent without it. It was held by this Court in the case Islamuddin & others v. Ghulam Muhammad & others (PLD 2004 SC 633) that in case of public nuisance and private nuisance, injury to the property and to a person would confer jurisdiction upon the Court except that in the case of public nuisance, consent of Advocate-General as required under Section 91 CPC would be necessary under the law, while in case of private nuisance no such consent would be required but the relief for filing a suit for injunction and damages would be available in both kinds of nuisance.
For what has been discussed above, we are of the opinion that the impugned judgment does not suffer from any illegality and warrants no interference. Accordingly, appeal being devoid of any substance stands dismissed with no order as to costs.
(R.A.) Appeal dismissed.
PLJ 2007 SC 873
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
MUSHTAQ AHMED and others--Appellants
versus
SECRETARY, M/O DEFENCE through Chief of Air & Army Staff etc.--Respondents
C.A. Nos. 613, 614, 782, 802 & 825 of 2006, decided on 25.9.2006.
(On appeal against the judgments dated 14.3.2006, 28.3.2006, 13.4.2006 & 17.4.2006 passed by the Lahore High Court, Rawalpindi Bench in WP. Nos. 585/06, 2876/06, 897/06, D.No. 3086/06 & 906/06).
Administration of Justice--
----The general ouster of jurisdiction cannot be canvassed on the basis of an English case which has no binding authority on High Court.
[P. 886] L
Administration of Justice--
----Joint trial, objection to--Joint trial of uniformed personnel with the civilians could not take place, was not, raised before trial authority; thus the argument lost its significance--In view of the bar of jurisdiction in terms of Art. 199(3) of the Constitution, it was not obligatory upon the Court to enter upon such controversy. [P. 887] M
Administration of Justice--
----Objection that copies of some documents were not supplied to the Appellants and that on account of joint trial, the confession made by one accused had been used against the other, was not raised during the trial, therefore, the same was not entertainable for want of jurisdiction of High Court. [P. 889] R
Constitution of Pakistan, 1973--
----Arts. 185 & 199(3)--Pakistan Army Act, 1952, Ss. 2(1)(d), 31(d), 58(4) & 59--Pakistan Air Force Act, Ss. 2(d) & 37(e), 71(3)--Pakistan Penal Code, (XLV of 1860), S. 131--Appellate jurisdiction--Appellants accepted the jurisdiction of the General Court Martial and a conviction awarded to them was not based on mala fide nor coram non judice or without jurisdiction--High Court had rightly declined to exercise jurisdiction under Art. 199(3) of the Constitution--Appeals dismissed. [P. 889] Q & S
Constitution of Pakistan, 1973--
----Art. 199(3)--Pakistan Air Force Act, S. 37(c)--Writ jurisdiction--Bar of--Contention--Trial is based on mala fide, without jurisdiction and coram non judice--Accused had been punished u/S. 37(C) of PAF Act, therefore, trial was mala fide on the part of the prosecution--High Court had jurisdiction to examine the merits of the case, was repelled--High Court observed that mala fide had not been pleaded either against the prosecution or the victims/complainants but against applying wrong provisions of law--No mala fide--Held: If there was a Constitutional bar upon the jurisdiction of High Court, then it becames its duty to first of all determine its jurisdiction then to proceed ahead--Further held: High Court had rightly declined to exercise its jurisdiction under Art. 199 of the Constitution.
[P. 885 & 886] J & K
PLD 1996 SC 632; PLD 1999 SC 57; PLD 1968 Pesh. 114; PLD 1974 Lah. 120; PLD 1973 SC 49; PLD 1977 Lah. 1174 and PLD 1989 SC 26 ref.
Interpretation of Statute--
----It is a cardinal principle of interpretation of statute that the words employed in a statute are to be read interpreted in its ordinary meanings. [P. 880] B
PLD 2001 SC 549 rel.
Pakistan Army Act, 1952 (XXXIX of 1952)--
----Ss. 2(2)(d), 31(d), 58(4) & 59--Pakistan Air Force Act, Ss. 2(dd), 37(e) & 71(3)--Pakistan Penal Code, (XLV of 1860), S. 131--Criminal Procedure Code, (V of 1898), Ss. 106(3) & 423--Defence Services Laws (Amendment) Ordinance (III of 1967)--Constitution of Pakistan, 1973, Arts. 185, 199(1) & (3)--Appellate jurisdiction--Seducing or attempting to seduce any person from his duty--Allegation of--Trial before General Court Martial--Principles of natural justice--Jurisdiction of trial and appellate authority--Objection to--Validity--Once a civilian accused had been found involved in the commission of the aforesaid offences, would be punished accordingly under Pakistan Army Acts--Civilian accused would be convicted/sentenced in similar manner as an accused, who was in uniform because the accused had been brought within the folds of the above Acts, by subjecting him to the same--Contention--Held: If punishment for the offences of seducing or attempting to seduce any person from his allegiance to Govt. had not been provided by Pakistan Army Acts--Further held: Non-uniformed accused had been charged for the offence of seducing or attempting to seduce any persons subject to Pakistan Army Act from his duty or allegiance to Govt. therefore, their trial by General Court Martial had rightly been held. [Pp. 880, 881, 883 & 884] A, C, D, E, F, G & H
PLD 1975 SC 506 ref.
Pakistan Army Act, 1952 (XXXIX of 1952)--
----S. 133(B)--Criminal Procedure Code, (V of 1898), Ss. 423 & 106(3)--Enhancement of sentence--Opportunity of right of hearing, non-provision of--Statutory power of appellate authority to enhance sentence--Validity--Appellate Court under S. 133(b) of Pakistan Army Act, 1952 specifically conferred powers to remit the whole or any part of the punishment or reduced or enhance the punishment or for any less punishment, therefore the Appellate Authority was in empowered to enhance the sentence--Held: Presence of counsel its Court of appeal as well as the jail appeals file before the Appellate Authority, it would be deemed that opportunity was given to him; and that no sooner the appeal was filed, it would be presumed that while disposing of the same, opportunity of hearing had been given through his counsel. [P. 888] N, O & P
Col. (R) Muhammad Akram, ASC for Appellants (in C.As. Nos. 613, 614, 782 and 825 of 2006).
Mr. Hashmat Ali Habeeb, ASC and Mr. M.S. Khattak, AOR for Appellant (in C.A. 802 of 2006).
Mr. Mujeeb-ur-Rehman, ASC and Col. Jehangiri, JAG Dept. Army Group Cat. Aziz for Respondents.
Mr. Nasir Saeed Sheikh, DAG (on behalf of Attorney-General) On Court Notice.
Date of hearing: 25.9.2006.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--These appeals by leave of the Court are directed against the judgments dated 14th March 2006, 28th March 2006, 13th April 2006 and 17th April 2006, of the Lahore High Court, Rawalpindi Bench whereby Writ Petition Nos. 585/2006, 897/2006, 906/2006, 2896/2006 and D.No.3086 of 2006 filed by the appellants have been dismissed. As common questions of law and facts are involved in these appeals, therefore, we intend to decide them by means of instant judgment. However, the facts of the each set of appeals are being noted herein below, separately.
Civil Appeals No.613-614 of 2006.--The appellants Mushtaq Ahmed son of Imran Ahmed, Khalid Mehmood Ex.Chf-Tech (Pak-851866), Nawazish Ali Ex. Cpl. Tech (Pak-489006), Niaz Muhammad Ex. Jnr. Tech (Pak-860186), Adnan Rashid Ex.Jnr. Tech (Pak-862476) were apprehended on 7th January 2004 and 9th January 2004, respectively, in a criminal case, pertaining to causing explosion at Jhanda Chechi bridge (Chaklala) on 14th December 2003, as they were charged with making an attempt on the life of Gen. Pervaiz Musharraff, Chief of the Army Staff and the President of the Islamic Republic of Pakistan. They were tried by the Field General Court Martial under the Pakistan Air Force Act [herein after referred to as "the PAF Act"]. On conclusion of the trial they were found guilty, as such, sentenced to death which has been confirmed by the confirming authority. Their appeals before the Court of Appeal were rejected. Thereafter they challenged their conviction/sentences by filing Writ Petitions before Lahore High Court, Rawalpindi Bench referred to herein above, which have been dismissed vide judgments dated 14th March 2006 and 28th March 2006.
Civil Appeals No. 782, 802 and 825 of 2006.--Appellants Zubair Ahmed @ Tauseef, Rashid Qureshi @Tipu @ Ibrahim, Ghulam Sarwar Bhatti @ Salahuddin, Ikhlas Ahmed @ Rusi, Naik Arshad Memood (Ex-Number 7351783), Rana Muhammad Naveed, and Ameer Sohail @ Sajjad were found involved in the commission of offence falling within the mischief of Section 31(d) read with Section 59 of the Pakistan Army Act [herein after referred to as "PA Act"], for seducing and attempting to seduce persons in the Military Force of Pakistan from their allegiance to the Government of Pakistan, as such, they were arrested and tried by the Field General Court Martial. They were adjudged guilty for the offences for which they were charged with, as such sentences of imprisonment for life were awarded to them. Which were confirmed by the confirming authority. In the appeals filed by them, the Appellate Court while dismissing their appeals enhanced their sentences from life imprisonment to death. Ultimately, they approached the High Court by filing Writ Petitions, but the same have been dismissed by means of impugned judgments being not entertainable under Article 199 (3) of the Constitution of Islamic Republic of Pakistan [herein after referred to as "the Constitution "].
Leave to appeal was granted, initially, in Civil Appeals No. 613 and 614 of 2006 and this order was followed in other cases as well.
Learned counsel appearing for appellants contended that:--
(a) Death sentences to civilian accused, under Section 2(dd) of the PAF Act and Section 2(l)(d) of the PA Act, have wrongly been awarded, as they have been made subject to the Acts, only for the offence of seducing and attempting to seduce persons in the Military Force of Pakistan from their allegiance to the Government of Pakistan, therefore, on establishment of charge against them, they would be liable to be convicted under Section 131 PPC and not under Sections 37(e) of the PAF Act and 31(d) of the PA Act, thus rendering their convictions mala fide and proceedings before General Court Martial as well as the Appellate Authority as without jurisdiction being coram-non-judice and learned High Court committed grave illegality in not exercising jurisdiction.
(b) The General Court Martial members of Pakistan Air Force as well as of Pakistan Army is also bad in the eye of law because the procedure adopted by them was contrary to the provisions of Qanoon-e-Shahadat Order (Formerly Evidence Act) and the principles of natural justice.
(c) The Appellate Authority enhanced the sentence of Zubair Ahmed and others from life imprisonment to death without providing them opportunity of hearing, although they had not filed any appeal challenging their conviction.
(i) Copies of the proceedings were not provided to the appellant; and
(ii) Placing reliance on the confessional statement of one of the accused against the co-accused in different trial is unwarranted as such the proceedings suffered from illegality and material irregularity rendering them as unlawful and void entitling the appellants to acquittal.
(a) The Civilians have been subjected to the PAF Act and the PA Act, under Sections 71(3) and 58(4), respectively, as such, they have been convicted in exercise of jurisdiction under Section 37 (e) of the PAF Act and 31(d) of the PA Act, therefore, in view of the bar under Article 199(3) of the Constitution, High Court had no jurisdiction to entertain the petitions filed by the appellants.
"2. Persons subject to this Act.--The following persons shall be subject to this Act wherever they may be, namely:--
(a) officers and warrant officers of the Air Force;
(b) Persons enrolled under the Indian Air Force Act, 1932, before the date notified in pursuance of sub-section (2) of Section 1 and serving in the Air Force on that date, and persons enrolled under this Act;
(c) persons belonging to the Pakistan Air Force Reserves in the circumstances prescribed by rules made under Section 6 of the Pakistan (Army and Air Force) Reserves Act, 1950 (XLVII of 1950)
(d) persons not otherwise subject to Air Force law who on active service, in camp, on the march, or at any frontier post specified by the Federal Government, by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of, the Air Force;
(dd) persons not otherwise subject to Air Force Law, who are accused of.--
(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or base, ship or aircraft, or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923.
(e) to such extent and subject to such conditions as the Federal Government may direct, persons subject to the Pakistan Army Act, 1953 (XXXIX of 1952) or the Pakistan Navy Ordinance, 1961 (XXXV of 1961), when seconded for service with the Air Force.
It may be noted that Section 2(1)(d)(i)(ii) of the PA Act is verbatim replica of the above provision of Section 2(dd) of the PAF Act, therefore, it need not be reproduced.
A perusal of Section 2(a), (b), (c), (d), (dd) and (e) demonstrates that all the personnel in uniform have been made subject to the PAF Act, and with a view to include all those persons, who were not otherwise subject to the PAF Act, above provision was added. It may be noted that under Section 2(d), the person, not otherwise subject to PAF Act, who on active service, in camp, on the march, or at any frontier post specified by the Federal Government, by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, the Air Force, has been made subject to this Act, but under clause (dd) of Section 2, those persons have been included who are neither in uniform nor they are acting in any manner with the force, but have been found involved being an accused of seducing or attempting to seduce any person subject to PAF Act from his duty or allegiance to Government, etc. It seems that to establish connection between two type of the accused, firstly those who are in uniform or otherwise connected with the force or secondly those who are non-uniformed persons but also connected with the force and have been found involved in the commission of offence of seducing the person who is subject to this Act, have been declared to be such person, who can be tried under the PAF Act or PA Act.
At this stage, it is also important to note that sub-section (3) to Section 71 of the PAF Act and sub-section (4) to Section 59(4) of the PA Act, were incorporated in the above two Acts by Defence Services Laws (Amendment) Ordinance IV of 1967. According to the language, employed in both these sub-sections, which contains non-obstentic clause, a person who becomes subject to PAF Act and PA Act by reason of his being accused of an offence mentioned in clause (d) of sub-section (1) of Section 2 of the PA Act and clause (dd) of Section 2 of the PAF Act, shall be liable to be tried or otherwise dealt with under the afore stated two Acts for such offences as if the offence were an offence against the PAF Act or the PA Act committed at a time when such person was subject to these Acts and the provisions of these sections shall have effect accordingly.
It is a cardinal principle of interpretation of statute that the words employed in a statute are to be read and interpreted in its ordinary meanings. Comparative study of these provisions of law clearly demonstrates that any person who has been subjected to the above Acts, shall be deemed to be an accused if he committed an offence of seducing or attempting to seduce any person from his duty or allegiance to Government and shall be dealt with under the provisions of PAF Act and the PA Act.
Arguments raised by the learned counsel for the appellants that a civilian person is not to be convicted under Section 37(e) and Section 31(d) of the PAF Act and the PA Act, respectively, seems to be misplaced because once a civilian accused has been found involved in the commission of offence, which falls within the purview of PAF Act or PA Act, shall be punished accordingly under the said Acts. If the argument of the learned counsel that the accused would be tried by General Court Martial under any of the above Acts, but shall be convicted under PPC, are allowed to prevail, it would create an anomalous situation. In our considered opinion, such departure could have been possible only if the punishment for the offence of seducing or attempting to seduce any person from his allegiance to the Government, had not been provided by the above Acts or if they would have not been charged for an offence which is not covered under the above Acts, then for the purpose of punishment, reference to the provisions outside the Acts could have been made, that too subject to framing of the charge against the accused under the provisions other than the PAF Act and the PA Act. Otherwise, as per the normal course, on the culmination of the trial, a civilian accused shall be convicted/sentenced in similar manner as an accused, who is in uniform because the former has been brought within the folds of the above Acts, by subjecting him to the same.
With reference to the above proposition, it may also be noted that if the intention of the legislature would have been to record sentence against a person who has been made subject to PAF Act or PA Act, under Section 131 PPC and not under Section 37 (e) of the PAF Act or Section 31(d) of the PA Act, then the legislature quite conveniently would have added the same in Section 2(dd) (i) to the PA Act as the addition of some of the laws in Section 2(d) (ii) of the PAF Act has been made; namely an offence under the Official Secrets Act, 1923 having been committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, etc. So the intention of the legislature can safely be gathered by making reference to clause (ii) of Section 2(dd) of the PAF Act that non-uniformed personnel were not to be convicted under Section 131 PPC by the General Court Martial on the completion of the trial and they would be convicted in the same manner as uniformed personnel, on having been found guilty for the offences they are charged with.
It is important to note that there are two types of offences namely civil offences and military offences. Uniformed persons under the above Acts are amenable to both type of the offences, but when a person who has been subjected to the PAF Act or the PA Act, under Section 71(3) or Section 59(4), respectively, he would be liable to be punished for the military offences, punishment for which has been provided in both the Acts, independently, otherwise, if a non-uniformed person or civilian accused had to be tried by the Civil Court then there was no necessity at all to introduce amendment in Section 71(3) of the PAF Act and Section 59(4) of the PA Act.
Both the learned counsel had relied upon the case of F.B. Ali v. State (PLD 1975 SC 506) to canvass their viewpoint, therefore, it would be appropriate to examine this report thoroughly to ascertain as to whether sentence can be awarded to a person who has been made subject to the PAF Act or the PA Act, under the respective provisions, contained therein. According to the facts of the case Brig. (R) F.B. Ali and Col. (R) Abdul Aleem Afraidi, being persons subject to PA Act under the provisions of Section 2(1)(d), were charged with for committing a civil offence, that is to say, conspiring to wage war against Pakistan and thereby committed an offence punishable under Section 121-A of the PPC. Similarly, both of them were charged under Section 31(d) of the PA Act for attempting to seduce any person in the Military Forces of Pakistan from his allegiance to the Government of Pakistan, as it was alleged against them that during the period from August 1972 to 30th March 1973, they hatched a plan to overthrow the Government established by law in Pakistan by putting under arrest with the help of troops at their disposal, the President, the Governor of Punjab, the Ministers, all the Generals assembled in a conference and other officials holding key position in the Administration, and thereby to assume power in the country for themselves by use of criminal force. As a sequel, they attempted to seduce some of the Military Officers and other persons in the Military Force from their allegiance to the Government, in order to enlist their support in furtherance of their plan to overthrow the Government. The case of both the officers was that since they had been retired from the Army and were no longer subject to the PA Act, as such they could not be tried by a General Court Martial. The objection so raised on the question of jurisdiction was overruled by the General Court Martial, therefore, they challenged the jurisdiction of the General Court Martial to try them alongwith a number of other Army Officers by preferring writ petition, which remained pending. In the meantime, trial continued. It may be noted that during the trial, once again the question of jurisdiction of the Court Martial was raised but the same was again overruled and the trial proceeded, resulting in the conviction of the appellants on both the charges.
After their conviction, amendment was sought in the writ petition, reiterating that PA Act applied only to those persons who are subject to the discipline of the Army and that the inclusion of the categories of persons to whom the PA Act was sought to be made applicable by the Defence Services Laws (Amendment) Ordinances III and IV of 1967 was of no effect as the Ordinances were; firstly, ultra vires the powers of the President under the Constitution of 1962 and; secondly, in any event, were discriminatory and violative of the Fundamental Right No. 15 of the Constitution of 1962 relating to the equality of citizens before law. Hence, they were ab initio void and of no legal effect by reason of the provisions of Article 6 of the said Constitution. Learned High Court dismissed the writ petition in limine while holding that the Ordinances of 1967 were competently made by the President as the subject was expressly covered by Items Nos. 1, 48 and 49 of the Third Schedule to the Constitution of 1962. The contention that the Ordinances of 1967 were violative of Fundamental Right No. 15 of the 1962 Constitution, pertaining to the equality of citizens before the law was also repelled on the ground that a challenge to a law on account of its being in conflict with a fundamental right was in reality an attempt to enforce a fundamental right, which could not be done during the subsistence of proclamation of emergency. It is to be noted that after having discussed different aspects of the case, including the provisions of Article 199 of the Constitution of 1973, it has been held by the Lahore High Court that it had no jurisdiction in relation to any order made in respect of a person who is member of the Armed Forces of Pakistan or who is, for the time being, subject to any law, relating to any of those forces, in respect of his terms and condition of service or in respect of any action taken in relation to him as a member of the armed forces or as a person subject to such law. Similarly, the High Court repelled the contention that the offence under Section 121-A PPC was not, in any event, covered by the Ordinances. Learned High Court also held that sub-section (1) of Section 59 of the PA Act was wide enough to give jurisdiction to the General Court Martial to try any person to whom the PA Act had been applied by clause (d) of Section 2 even in respect of civil offences.
This Court after granting leave to appeal, examined the vires of the Ordinance No. III of 1967 and found it to be intra vires of the Constitution, therefore, concluded that the words used in clause (d) added to Section 2 of the PA Act by Ordinance No. II of 1967 are clear enough. The words "person not otherwise subject to this Act" clearly embrace all others who are not subject to the said Act by reason of the provisions of clauses (a), (b), (bb) and (c). The intention of the framers of clauses (d) and (dd) clearly is that even civilians or persons who have never been, in any way, connected with the Army should be made subject to it in certain circumstances gravely affecting the maintenance of discipline in the Army. The nexus required is that they should be persons who are accused of seducing or attempting to seduce any person subject to the PA Act and the PAF Act from his duty or allegiance to Government. In the case in hand, non-uniformed appellants (civilians) have been charged for the offence seducing or attempting to seduce any person subject to the PA Act from his, duty or allegiance to Government, therefore, their trial by General Court Martial has rightly been held.
In this reported judgment, the argument that for the offence of seducing or attempting to seduce any person subject to the PA Act from his duty or allegiance to Government, shall be punished under Section 131 PPC and not under Section 31(d) or for the purpose of present case to the extent of personnel of Pakistan Air Force Section 37(e) of the PAF Act, was raised but repelled. Relevant para therefrom is reproduced herein below, instead of discussing the proposition in our own words, as this question has already been disposed of in the reported judgment:
"This may well be incidentally the consequence of the amendment introduced, insofar as the persons falling within the new category are concerned, but it cannot be said that this is in pith and substance the object of the amending legislation. The Pakistan Army Act was a Central Act which could only be amended by the Central Legislature and the Central Legislature had power to enlarge or restrict its operation by amendment, and if it was intended to extend the operation of the Act to another specific category of persons who are accused of certain offences in relation to defence personnel or defence installations, how can it be said that the object of the Act was not in pith and substance to prevent the loyalty of the defence personal from being subverted by outside influence. The legislation, therefore, in my opinion, came directly within item 1 of the Third Schedule of the 1962 Constitution. It did not amend either Section 131 or Section 139 of the Penal Code."
In F.B. Ali's case, this Court has also proceeded to examine Section 59(4) of the PA Act, which has already been reproduced herein above and concluded that the main purpose of this addition was to effectuate the purpose sought to be achieved by addition of clause (d) to sub-section (1) of Section 2 of the PA Act and to make the offence itself triable under the said Act when committed by persons accused of such offence. This became necessary because otherwise such persons would have been liable for trial under the PA Act only in respect of an offence of the said type committed after they became subject to the Act as a result of the accusation, which would necessarily be made after the commission of the offence.
Therefore, in view of above discussion in F.B. Ali's case, the arguments put forward by the learned counsel for appellants becomes redundant and it is held that if a civilian person is tried on the charge of seducing or attempting to seduce any person in the Military Force of Pakistan from his allegiance to the Government, he shall not be punished under Section 131 PPC but would be punished under the provisions of PA Act or the PAF Act i.e. Section 31(d) or 37(e) respectively, in view of the provisions of Section 59(4) of the PA Act and 71(3) of the PAF Act.
Learned counsel next contended that the High Court under Article 199(3) of the Constitution is not absolutely debarred from entertaining a writ petition because if the trial is based on mala fide, without jurisdiction and coram-non-judice, then the Court has jurisdiction to examine the merits of the case, as according to him in the instant case, instead of awarding punishment to appellants under Section 131 PPC, they have been punished under Section 37(e) of PAF Act, therefore, it is mala fide on the part of the prosecution. In this behalf, he relied upon the judgment in the case of Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632) and Farooq Ahmed Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57).
We are not in agreement with the learned counsel because mala fide has not been pleaded either against the prosecution or the victims/complainant but against applying wrong provisions of the law. In this behalf, as we have already held that conviction of the appellants in the trial on the charge of seducing or attempting to seduce any person in the Military Force of Pakistan from his allegiance to the Government, is not to be made under Section 131 PPC but under Section 37(e), therefore, the argument, being without substance, is accordingly overruled and it is held that there was no mala fide on the part of the prosecution and the trial of the appellant and then conviction by General Court Martial was in exercise of the jurisdiction vesting in it and the proceedings cannot be stamped to be coram-non-judice.
Learned counsel has also relied upon Gul Akbar v. Deputy Chief of Air Staff (PLD 1968 Peshawar 114). In this case petitioner Gul Akbar being a former employee of Pakistan Air Headquarter Peshawar was tried alongwith an Afghan subject by the General Court Martial under Section 71 of the PAF Act, 1953 read with Section 4 of the Official Secrets Act, 1923. They raised number of objections in respect of their trial including the one that the Defence Services Laws (Amendment) Ordinances, III and IV of 1967 are contrary to the Constitution and hence are ultra vires and amount to and are in effect ex post facto laws. Such objections of the petitioners have been replied as follows:
"11. Dr. Abdur Rahim, learned counsel for the petitioners, tried to argue that Section 71 of the Air Force Act was listed in Chapter VI under the heading "offences", and therefore Section 71 itself was substantive offence. The argument, in our view, is clearly misconceived for the short and sensible reason that the reading of Section 71 as amended by Ordinance No. IV does not create an offence much less provides any punishment for any such offence. That Section is an enabling section under which any person subject to that Act having committed any civil offence shall be deemed to be guilty of an offence against that Act. The scope of Section 2 of the Air Force Act has been enlarged by Ordinance No. III of 1967 by addition of clause (dd) by subjecting to an offence under the Secrets Act, any person who are not subject to the Air Force Act who are accused of "having committed in relation to any work of defence--or air force affairs of Pakistan. To put it differently, Ordinances No.III and IV of 1967 have the cumulative effect of providing a new forum of trial, namely, "Court Martial" for the alleged offences committed by the petitioners under Section 3(1)(c) of the Secrets Act. The punishment under the Air Force Act for an offence is neither greater than, nor of a kind different from the penalty prescribed under the Secrets Act, and therefore, the petitioners can have no valid grievance that Ordinances Nos. III and IV are violative of Fundamental Right No.4 which guarantees "protection against retrospective punishment".
In view of above conclusion, we are of the opinion that this judgment has not advanced the case of appellants in any manner.
Learned counsel actually wanted to argue that the question of bar of jurisdiction of the High Court or the Supreme Court was not raised in this judgment, therefore, according to him the case has to be heard on merits. We are not inclined to agree with him because we feel that if there is a constitutional bar upon the jurisdiction of a Court, then it becomes its duty to first of all determine its jurisdiction then to proceed ahead. Besides, in this very judgment the provisions of both the Ordinances of 1967 referred to herein above have been declared valid as a result whereof the petition was dismissed.
Learned counsel next relied upon the case of Begum Shamim Afridi v. Province of Punjab (PLD 1974 Lahore 120). In this case detention of the Army personnel was brought under challenge and at the end of the proceedings, Advocate General took a sudden change in respect of the ouster of the jurisdiction of the High Court, basing his submission on an English case (R. v. Army Council). In this context the Court observed that the general ouster of jurisdiction cannot be canvassed on the basis of an English case which has no binding authority on the High Court and also because in the development of the law of habeas corpus much water has flown by now. It is to be noted that in this judgment the bar contained in Article 199(3) of the Constitution upon jurisdiction of this Court to issue a writ was in the specific subject, therefore, this judgment has no bearing on the instant case as well.
Learned counsel also relied upon the judgments in State v. Zia-ur-Rehman (PLD 1973 SC 49), Saifuddin Saif v. Federation of Pakistan (PLD 1977 Lahore 1174) and Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26). In these judgments it has been declared that the bar to exercise constitutional jurisdiction shall not be applicable where proceedings suffered from defect of jurisdiction or were coram-non-judice or were made mala fide and the Court despite of such bar will exercise jurisdiction. In our considered opinion, these judgments are not applicable to the case in hand in view of the discussion made herein above, wherein it has been held that as there is no mala fide on the part of the prosecution, complainant/victim in the trial of the appellant by the General Court Martial, therefore, the absolute power to exercise the jurisdiction will operate against both the categories of the accused namely civilians and uniformed officers. Similar view has been formed in the case of Saifuddin Saif (ibid), relied upon by the learned counsel for appellants, wherein it has been held that if an action suffers from certain infirmities including absence of jurisdiction then the bar of clause (3) of Article 199 of the Constitution would not operate. Since in the instant case we have already held herein above that the trial of appellants does not suffer from jurisdictional defect, therefore, the constitutional bar would be an impediment for the High Court to exercise its jurisdiction.
Learned counsel for appellants next contended that the joint trial of uniformed personnel with the civilians cannot take place. This argument needs not to be examined at length because the appellants through their counsel conceded that objection on the joint-trial was not raised before the General Court Martial, thus in such view of the matter the arguments so advanced loses its significance. In addition to it, in view of the bar of jurisdiction of the High Court, in terms of Article 199(3) of the Constitution, it is not obligatory upon this Court to enter upon such controversy.
Learned counsel for appellants vehemently argued that some of the appellants i.e. Zubair Ahmed and others were awarded sentence of life imprisonment by the General Court Martial but the Appellate Authority unauthorizedly enhanced their sentences in absence of any appeal filed by the prosecution and affording them opportunity of the right of hearing, therefore, the sentences of death awarded to them deserve to be reversed.
On the other hand learned counsel appearing for respondent contended that Section 133-B of the PA Act empowers the Appellate Authority to enhance the sentence while disposing of the appeal filed by the convict.
In this behalf it may be noted that the question for consideration before us is as to whether in exercise of inherent powers, sentences of life imprisonment of some of the accused have been enhanced or the statute has conferred powers upon the Appellate Authority to enhance the sentence. It may be noted that Section 423 Cr.P.C. does not confer powers of enhancement of sentence of an accused upon the Court functioning under the Cr.P.C. as according to its sub-section (1) clause (b), in an appeal from a conviction, (1) Court can reverse the findings and sentence, and acquit or discharge the accused, or order him to be revived by a Court of competent jurisdiction, subordinate to such Appellate Court or sent for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject to the provision of the Section 106, sub-section (3) so as not to enhance the same. The Appellate Court under Cr.P. C. is not authorized even to convert acquittal into conviction or enhance the sentence whereas Section 439 Cr.P.C confers such powers upon the Revisional Court i.e. the High Court to enhance the sentence. Contrary to the power, available to Appellate Court under Cr.P.C. Section 133(b) of PA Act, while defining the powers of the Appellate Authority in sub-section (2) clause (f), specifically confers powers to remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishment mentioned in tins Act. (emphases supplied).
Learned counsel appearing for respondent under instructions stated that the sentence of the accused i.e. Zaheer Ahmed and others were enhanced after providing them and their counsel opportunity of hearing as well as considering the Jail appeals filed by some of them, therefore, there is nothing wrong with the enhancement in the punishment.
On having gone through the relevant provisions of Section 133(b) of the PA Act, we are of the considered opinion that the Appellate Authority is empowered to enhance the sentence. Even otherwise, presence of the learned counsel in support of appeal as well as the Jail Appeals, by way of which the convicts had represented against their conviction awarded to them by the General Court Martial, it would be deemed that opportunity of hearing was given to him.
It may also be noted that under the general law of Cr.P.C. as well as the precedent law, there is no specific mode of issuing notice to an accused for the enhancement of the sentence. The requirement is only to the extent of providing him opportunity of being heard before the enhancement of his sentence and no sooner the appeal is filed, it would be presumed that while disposing of the same, opportunity of hearing has been given through his counsel. Reference in this behalf may be made to Khoda Bux v. Emperor (AIR 1934 Calcutta 105) and Javed Ahmad v. State (1978 SCMR 114). Relevant para from the case of Khoda Bux (ibid) is reproduced herein below for convenience:
"I observed at the outset of this judgment that as a measure of precaution we directed a rule to be issued upon all the appellants calling upon them to show-cause why the sentences passed upon them should not be enhanced by this Court. I desire to say that in my opinion it is by no means clear that any such procedure was really necessary. These five convicted persons had themselves appealed to this Court against their conviction and thus submitted themselves to the judgment of this Court. They had appeared before the Court by their advocate Mr. Dinesh Chandra Roy who, at the previous hearing was prepared to argue and had indeed commenced to argue that the conviction ought to be set aside for the reasons I have already discussed. That being the position the accused persons themselves were then before the Court and therefore, in my view it was open to the Court, should it after hearing the appeal decide against the appellants, straightway, to give to the accused persons the opportunity referred to in sub-section (2) S. 439 Criminal P.C. of being heard upon the question whether the sentence ought to be enhanced or not by calling upon the appellants in the person of their advocate to show cause there and then, why their sentences should not be enhanced. "
Thus we are of the opinion that the arguments so advanced on behalf of the appellants have no substance and relying upon another judgment of this Court in the case of Anwar Aziz v. Federation of Pakistan (PLD 2001 SC 549), wherein it has been concluded that as the appellant had accepted the jurisdiction of the General Court Martial and the conviction awarded to them is not based on mala fide nor coram-non-judice or without jurisdiction, therefore, the High Court had rightly declined to exercise jurisdiction under Article 199(3) of the Constitution.
Mr. Hashmat Ali Habeeb, appearing for some of the appellants attempted to argue that copies of some of the documents were not supplied to them and on account of joint trial the confession made by one of the accused has been used against the other, therefore, interference is called for.
In this behalf it may be noted that these are the questions which relate to the merits of the case. Furthermore, during the trial no such objection was raised on behalf of the appellants, therefore, the same is not entertainable for want of jurisdiction of the High Court, as concluded herein above.
Thus for the foregoing reasons, impugned judgments of the Lahore High Court are maintained. Consequently, appeals are dismissed.
(M.A.) Appeals dismissed.
PLJ 2007 SC 890
[Appellate Jurisdiction]
Present: Javed Iqbal, ACJ and Sardar Muhammad Raza Khan, JJ.
LAHORE DEVELOPMENT AUTHORITY etc.--Petitioners
versus
SULTAN AHMAD and another--Respondents
C.A. No. 2721 of 2006, decided on 31.5.2007.
(On appeal from the judgment dated 3.10.2006 passed by the Lahore High Court, Lahore in Writ Petition No. 10527 of 2006).
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Constitution of Pakistan, 1973--Art. 185(3)--Amendment in pleadings--Petitioner applied for amendment of the written statement--Interlocustory order--Receipt of incomplete written statement was irregularity when defendant could have conveniently been granted time to file complete written statement--Held: Trial Court rectified its own mistake by allowing the amended written statement. [P. 890] A
(ii) Amendment--
----Pleading--Dissallowed the amendment--Character of litigation--Amendment, provided it does not change the nature and character of the suit, can be allowed at any stage--First Appellate Court disallowed the amendment--Held--It never changed the character of litigation. [P.890] B
(iii) Pleading--
----Amendment of pleadings--Question of--Allowing or refusing to allow amendment of pleadings is an act, which hits at the very root of the attack or defence of a party--Parties cannot lead evidence beyond their pleadings and hence it affects the production of evidence.
[P. 890] C
Mr. Qamar-uz-Zaman, ASC and Mr. Tanvir Ahmad, AOR (absent) for Petitioners.
Ch. M. Zahoor Nasir, ASC and Haji M. Rafi Siddiqui, AOR (absent) for Respondents.
Date of hearing: 31.5.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Lahore Development Authority (LDA) has been granted leave to appeal from the judgment dated 3.10.2006 of a learned Judge in Chambers of Lahore High Court, whereby, their writ petition was dismissed, most probably in limine.
Through a suit for declaration-cum-permanent injunction, Khalil-ur-Rehman plaintiff raised a dispute concerning Plot # 641/A, Gulshan-e-Ravi Scheme Lahore. On one of the adjourned dates the LDA filed a written statement wherein one of the paragraphs of the plaint was simply denied without giving details of fact because the comments of some Director of the LDA were still awaited. The learned trial Court received such written statement.
Subsequently, on receipt of the comments aforesaid, LDA applied for the amendment of the written statement in order to supplement and reinforce, by narration of facts, the para concerned, which initially was left incomplete. The learned trial Court allowed the amendment vide order dated 10.3.2006, which was set aside by the learned Additional District Judge Lahore on 7.6.2006, disallowing the amendment of written statement. The learned High Court dismissed the writ petition of the LDA and declined to interfere on the only ground that the disputed one was an interlocutory order.
After having heard the learned counsel on either side, we observe that the entire anomaly has been created by the learned trial Court itself, which happened to admit an incomplete written statement with implied understanding that it may subsequently be amended. The receipt of incomplete written statement was a clear irregularity, when, the defendant could have conveniently been granted time to file complete written statement. The opposite party could also have been compensated by imposition of costs. The learned trial Court rectified its own mistake by allowing the amended written statement.
Not realizing that anomaly was created by the trial Court itself and not realizing that an amendment, provided it does not change the nature and character of the suit, can be allowed at any stage, the learned Additional District Judge disallowed the amendment. We have gone through the pleadings and observe that it never changed the character of litigation.
Allowing or refusing to allow amendment of pleadings is an act, which hits at the very root of the attack or defence of a party, as the case may be. The parties cannot lead evidence beyond their pleadings and hence it affects the production of evidence as well. Ultimately, the case of a party, refused amendment in genuine cases, is most likely to be seriously jeopardized. Thus, the question of amendment in hand was not of such an interlocutory nature, which could subsequently be rectified at the time of final decision of case. While declining to interfere on such grounds, the learned High Court has fallen into material irregularity.
Consequently, the appeal is accepted, the impugned judgment dated 3.10.2006 of the High Court and dated 7.6.2006 of the Revisional Court are set aside and that dated 10.3.2006 of the trial Court is restored, but on payment of Rs.10,000/- as costs by the appellant, before the trial Court, failing which, the proposed amendment shall stand disallowed.
(R.A.) Appeal accepted.
PLJ 2007 SC 892
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Syed Jamshed Ali & Ghulam Rabbani, JJ.
MUHAMMAD ANWAR and another--Appellants
versus
DARUL ULOOM GHAUSIA HANFIA MOHALLAH DHABWALA--Respondent
Civil Appeal No. 585 of 2004, decided on 12.4.2007.
(On appeal from the judgment dated 23.6.2003 passed by the Lahore High Court Lahore in R.S.A. No. 3/1999).
Limitation Act, 1908 (IX of 1908)--
----Art. 144--Evacuee property--Suit for possession--Based on title-Period of 12 years--Applicable--Possession of defendant becomes adverse to the plaintiff--Period of 12 years would start from the date when the possession of defendant becomes adverse to the plaintiff. [P. 894] A
Limitation Act, 1908 (IX of 1908)--
----Art. 142--Constitution of Pakistan, 1973, Art. 185(3)--Possessory title--Act of ouster to knowledge of real owner--Length of time--Possession for any length of time would not be adversed, unless it is open, hostile & notorious to the knowledge of real owner--Written statement showed that except passing reference of `Qabza Mukhalfana' based on possession for a number of years, no such plea was raised that such possession amounted to an act of ouster to knowledge of the real owner--Appeal dismissed. [P. 894] B
Limitation Act, 1908 (IX of 1908)--
----S. 136--Constitution of Pakistan, 1973, Art. 185(3)--Registered sale-deed--Limitation of 12 years--Suit was filed on basis of registration sale-deed beyond of 12 years of the purchase--Suit was dismissed being barred by time. [P. 894] C
Mr. M. Munir Peracha, ASC for Appellants.
Mr. Zulfiqar Khalid Maloka, ASC for Respondent.
Date of hearing: 12.4.2007.
Judgment
Syed Jamshed Ali, J:--This appeal by leave of this Court, is directed against the judgment dated 23.6.2003 of the learned Lahore High Court and arises out the following circumstances.
The land in dispute (which was evacuee) was allotted to Major Jang Baz Khan, somewhere in 1962. On 9.5.1981, he filed a suit for possession against Sain Ghulam Ali, the predecessor-in-interest of the appellants. During pendency of the said suit, the property in dispute was sold by Major Jang Baz Khan in favour of Dar-ul-Uloom Ghausia, Ghausia Hanfia, the respondent herein, who was substituted as the plaintiff.
The suit was contested by the predecessor-in-interest of the appellants with the contention that he had been in possession of the land for more than 60 years and, therefore, his possession had matured into title. The suit was ultimately dismissed on the ground that it was barred by time. This conclusion was affirmed by the learned First Appellate Court with the observation that since allotment was made to Major Jang Baz Khan in 1962, the suit should have been brought within 12 years and, therefore, the suit brought in 1981 was barred by time under Article 144 of the Limitation Act. The learned High Court however, on re-appraisal of the evidence, found that in the revenue record Sain Ghulam Ali was shown as `Muzara Tabey Marzi' ( ) for the years 1973-1974 and 1976-1977 and the expression "Bashara Malkana Bawaja Qabza" was not sufficient to constitute adverse possession. Accordingly, the appeal of the respondent was allowed and the suit decreed.
The learned counsel for appellants submits that the suit was governed by Article 142 of Limitation Act because the plaintiff namely Major Jang Baz Khan has been in possession of the property in dispute and was dispossessed. Therefore, the suit should have been filed within 12 years of dispossession. The second submission is even under Article 136 of the Limitation Act, the suit was barred by time because the said Article also contemplated a period of 12 years for seeking possession by the vendee if the vendor was out of possession.
On the other hand, the learned counsel for the respondent has defended the impugned judgment for the reasons on which it is based with the contention that the learned High Court has found as a fact that the appellant's predecessor had not been able to establish adverse possession.
The submissions have been considered. As far as the first contention is concerned, it has no merit because it has never been the case of the appellants in their written statement that the original or the substituted plaintiff had been in possession and was dispossessed. It was a suit based on title to which Article 144 of Limitation Act was applicable and the period of 12 years would start from the date when the possession of defendant becomes adverse to the plaintiff. This was explained by this Court in Moulvi Noor Muhammad Vs. Sheikh Abdul Qadeem (1995 SCMR 522). There has been consensus of judicial opinion that Article 142 of Limitation Act governs a suit based on possessory title while Article 144 of Limitation Act governs a suit based on proprietary title. It may also be observed that possession for any length of time would not be adversed unless it is open, hostile & notorious to the knowledge of the real owner. A perusal of the written statement, shows that except passing reference of `Qabza Mukhalfana' ( ) based on possession for a number of years no such plea was raised that this possession amounted to an act of ouster to the knowledge of the real owner. We will also like to observe that disputed property being evacuee vested in the custodian and therefore, the plea of continuous possession was not otherwise sustainable because the plea of adverse possession was not available against the custodian till the property lost the character as evacuee.
As far as the second contention is concerned, it has no merit. The scope of the said Article was explained by the Rangoon High Court in Saw En Hoke Vs. Ma Po Yin and others (AIR 1934 Rangoon 223). In the said case, the plaintiff had filed a suit on the basis of registered sale in his favour beyond 12 years of the purchase, the suit was dismissed being barred by time under Article 136 of the Limitation Act. The Rangoon High Court while reversing the judgment of the District Judge held as under:--
"In holding that the suit was barred by limitation, the learned District Judge held that Art. 136, Sch. 1, Limitation Act, was applicable, as the purchase by the appellant was a purchase from a vendor who was out of possession of the property at the date of the sale. He held that Kyi Nyo never acquired possession of the land, and that therefore time began to run from the date of the sale-deed of 1917. But possession contemplated by Art 136 is not confined to actual occupation only; it also includes constructive possession. The expression "out of possession" as used in this article, implies that some person is in possession adversely to the vendor, some person holding in a character incompatible with the idea that ownership remained vested in the vendor. Sec Chintamani Pramanik v. Hriday Nath Kamila (1) and B. Venkayya v. Ramakrishnamma (2). Time does not begin to run under this article until the property is held in possession adverse to the vendor. In fact, the question for decision in applying this article is whether, if there had been no second sale, and the vendor had brought the suit for possession, he would have succeeded. If he would have succeeded, then the vendee must succeed in the suit brought by him. In my opinion, this question must be answered in the affirmative in this case."
(underlined to supply emphasis)
The view expressed by the Rangoon High Court was followed by learned Karachi High Court in Official Assignee of the High Court of West Pakistan, Karachi Bench, Karachi Vs. Muhammad Hussain and 28 others (PLD 1978 K 27).
(A.S.) Appeal dismissed.
PLJ 2007 SC 895
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Falak Sher, JJ.
NAIK MUHAMMAD alias NAIKA and another--Petitioners
versus
STATE--Respondent
Jail Petition No. 217 of 2006, decided 29.5.2007.
(On appeal from the judgment dated 5.4.2006 of the Lahore High Court, Lahore, in Criminal Appeal No. 1072 of 2000 & Murder Reference No. 388 of 2000)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence--Challenge to--Appreciation of evidence--Ocular evidence--Validity--No inherent defect or material lacuna in evidence of witnesses--Corroborative medico legal opinion and recovery of crime weapons--Mitigating circumstances--No illegality, misreading or non-appreciation was found in evidence--Mere relationship of the witnesses with the deceased per se would not render them interested or partisan witnesses--Prosecution having proved the guilt of the petitioner by strong motive, ocular reliable testimony coupled with corroborative medico legal opinion and recovery of crime weapons. [P. 899] A
Reduction of sentence--
----Injury--Attributed--Extenuating circumstances to reduce the sentence was that though one shot each was attributed to the accused but which of the shot was fatal, was not ascertainable from the medical evidence. [P. 899] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code (V of 1898), S. 382--Appreciation of evidence--Identical evidence--Benefit of doubt--Conflict between ocular and medical evidence--Co-accused acquitted--Validity--Fire-arm injuries attributed to the acquitted accused was not established on record from medical evidence--Held: Trial Court neither acted illegally nor arbitrarily in extending benefit of doubt to the acquitted accused. [P. 899] B
Syed Rafaqat Hussain Shah, ASC for Petitioners.
Ch. Munir Sadiq, Dy. P.G.Punjab for State.
Date of hearing: 29.5.2007.
Judgment
Abdul Hameed Dogar, J.--Petitioners seek leave to appeal against the judgment dated 5.4.2006 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No. 1072 of 2000 filed by them was partly allowed. The conviction under Section 302(b) PPC was maintained whereas the sentence of death was converted into imprisonment for life each. However, the amount of Rs. 50,000/- as compensation under Section 544 Cr.P.C. was enhanced to Rs. 1,00,000/- each or in default to undergo S.I for six months each. The sentence of fine of Rs. 20,000/- imposed by the trial Court was set aside. However, the benefit of Section 382 Cr.P.C. was given to them.
Briefly, stated the facts of the case are that on 25.12.1996 at 4.15 p.m Sher Muhammad complainant lodged FIR at Police Station Sadar Jhang wherein he alleged that on the same day at 3.00 p.m. he along with Murtaza alias Pappu, Sajjad, Ahmad and Muhammad Anwar while on their way back to the village after having delivered sugarcane at Sultanpura Kanda reached at Kacha road near Thatha Romana, petitioner Naik Muhammad alias Naika armed with .8 MM rifle, petitioner Said armed with .7-MM rifle alongwith acquitted accused Amir and Haider armed with hatchet emerged from the sugarcane crop. Acquitted accused Haider instigated his co-accused that a lesson be taught to Murtaza for assisting Waris in the theft committed at his house (Jhuggi). In the meanwhile, petitioner Said fired a shot which hit Murtaza on his arm near left shoulder. Murtaza ran towards the Barseen crop when petitioner Naik Muhammad alias Naika fired a shot from his rifle hitting him on his left flank, as a result whereof Murtaza fell down. The complainant, PWs Sajjad and Muhammad Anwar took shelter in the nearby watercourse and saw the incident.
The motive as stated is that Naik Muhammad and Said petitioners had committed theft in the house of Waris, a close relative of the complainant. The complainant and his son Murtaza deceased was extending help to Waris in that connection which nourished a grudge in the mind of petitioners. A few days prior to the occurrence when complainant alongwith Muhammad Aslam and Haq Nawaz PW-10 was present at his Dera, the acquitted accused Sher, Kanda, Zulfiqar, Humayun and Allah Yar came there and asked the complainant to restrain his son Murtaza from helping Waris, otherwise he would be killed.
On 26.2.1997 petitioner Naik Muhammad was arrested alongwith .8-mm rifle and six bullets. On 30.3.1997 petitioner Said was arrested and .7-mm rifle alongwith four cartridges were recovered from his possession.
On completion of investigation, petitioners and their co-accused were sent up to face trial before the learned Additional Sessions Judge, Jhang. In order to establish its case, the prosecution examined twelve witnesses, namely, Qamar-uz-Zaman PW-1, Mushtaq Hussain, Revenue Patwari PW-2, Dr. Mansoor Ahmad Cheema, M.O. PW-3, Riaz Hussain, ASI PW-4, PW-5 Muhammad Anwar, PW-6 Zafar Hayat, PW-7 Muhammad Siddique, Inspector, Sher Muhammad PW-8, Muhammad Anwar PW-9, Haq Nawaz PW-10, Naib Ali S.I. PW-11 and Jan Muhammad, S.I/SHO PW-12.
On 26.12.1996 PW-3 Dr. Mansoor Ahmad. Cheema, Medical Officer, DHQ Hospital Jhang, conducted the post mortem examination of the dead body of Murtaza alias Pappu deceased and noticed the following injuries on his person:
(i) A fire-arm wound of entrance with inverted margins .2 cm x 1.5 cm on the outer side of the right chest lower part.
(ii) A fire-arm wound of exit with averted margins 4 cm x 3 cm on the outer side of left chest middle part about 5 cm lateral, from left nipple.
(iii) A fire-arm wound of entrance with inverted margins 1.5 cm x 1 cm on the outer side of left upper arm, upper part.
(iv) A fire-arm wound of exit with averted margins 3 cm x. 2 cm on the inner side of left upper arm, upper part.
The petitioners in their respective statements recorded under Section 342 Cr.P.C. claimed innocence. They deposed that PWs are close relatives of the deceased and inimical towards them. The local MPA Maher Muhammad Nawaz Bharwana was inimical towards them. He got them falsely involved in this case in league with the complainant. They did not examine themselves on Oath as required under Section 340(2) Cr.P.C but produced Akbar Ali, S.I. DW-1 and Ghazanfar Hayat DSP DW-2 in their defence.
On conclusion of trial, the learned trial Court convicted the petitioners under Section 302/34 PPC and sentenced them to death each with fine of Rs. 20,000/- each or in default to further undergo R.I. for six months. They were also directed to pay Rs. 50,000/- each as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default to undergo six months R.I., whereas accused Amir, Haider, Sher, Kanda, Zulfiqar, Hamyun and Allah Yar were acquitted while giving them the benefit of doubt.
Feeling aggrieved from the conviction and sentence, petitioners preferred Criminal Appeal No. 1072 of 2000. Before the learned High Court, which was partly allowed as, stated above.
We have heard Syed Rafaqat Hussam Shah, learned ASC for the petitioners and Ch. Munir Sadiq, learned Deputy Prosecutor General Punjab and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel appearing on behalf of the petitioners mainly contended that the petitioners have been falsely implicated in the case. He further contended that on identical evidence co-accused, namely, Amir, Holder, Sher, Kanda, Zulfiqar, Hamyun and Allah Yar had been acquitted by the learned, trial Court, therefore, the benefit of doubt should also have been extended to the petitioners. The learned counsel challenged the ocular evidence on the ground that PW-8 Sher Muhammad is the real father and PW-9 Muhammad Anwar is cousin of the deceased and are the chance witnesses. According to him, there are material discrepancies in the medical evidence and the ocular evidence.
The learned counsel for the State supported the impugned judgment and contended that the conviction and sentence were rightly awarded to them by the trial Court and affirmed by the High Court and the petitioner has not been able to show any reason for his false implication in the case. He further contended that it was a day light occurrence and the FIR was lodged promptly. According to him the learned trial Court has acted on the principle of sifting the grain from the chaff.
We have gone through the evidence and the judgments of both the Courts below and do not find any illegality, misreading or non-appreciation, which otherwise is convincing and truthful. The ocular evidence furnished by PW-8 Sher Muhammad and PW-9 Muhammad Anwar was found to be credit worthy by the trial Court as well as the learned High Court. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. It is true that both the PWs are closely related to the deceased but fact of the matter remains that mere relationship of the witnesses with the deceased per se would not render them interested or partisan witnesses. Prosecution having proved the guilt of the petitioner by strong motive, ocular-reliable testimony coupled with corroborative medico legal opinion and recovery of crime weapons, we are unable to subscribe to the view of the learned counsel for the petitioners that there is a conflict between the ocular and medical evidence. Regarding the argument of the learned counsel for the petitioners that on identical evidence co-accused had been acquitted by the learned trial Court, we have considered this argument with utmost care and found from the record that fire-arm injuries attributed to the acquitted accused was not established on record from the medical evidence, therefore, learned trial Court, neither acted illegally nor arbitrarily in extending the benefit of doubt to the acquitted accused. At any event, case of the petitioners is distinguishable and not at par with that of co-accused, since acquitted. Before the learned High Court, the learned counsel appearing on behalf of the petitioners did not press the appeal on merits but urged for reduction of sentence alone. As according to him mitigating circumstances existed on record in their favour. In view of this, learned counsel appearing on behalf of the petitioners cannot argue the case on merits. The main ground which weighed with the learned High Court as an extenuating circumstance to reduce the sentence was that though one shot each was attributed to the petitioners but which of the shot was fatal, was not ascertainable from the medical evidence. In support of this, the learned High Court relied upon the case of Allah Dad & another v. The State (1995 SCMR 142), wherein mitigating circumstance to alter the sentence of death to imprisonment for life was that record did not show with certainty that the shot fired by appellant Allah Ditta proved fatal or that of other appellant.
Accordingly, we do not find any reason to interfere with the impugned judgment, thus the petition being devoid of force is dismissed and leave to appeal refused.
(A.S.) Leave refused.
PLJ 2007 SC 900
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Falak Sher, JJ.
CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE & another--Petitioners
versus
MAHMOOD AHMAD, CHIEF ENGINEER & 27 others--Respondents
Civil Petition No. 476 of 2007, decided on 31.5.2007.
(On appeal from the judgment dated 9.3.2007 of the Federal Service Tribunal, Islamabad, in Appeal No. 868 (R)/CS/2005).
Constitution of Pakistan, 1973--
----Art. 212(3)--WAPDA's Promotion Policy--Clause 10(b)--Leave to appeal--Service matter--Seniority--Promotion policy--Supersession--Validity--Assailed--Employee can be deferred from promotion if his ACR dossier is incomplete or disciplinary proceedings are pending against him--Supersession of respondent in the meetings was in violation of Clause 10(b) of the WAPDA's Promotion policy--Held: Respondent could only be deferred for promotion and should not have been superseded--Neither, there was misreading, nor non-reading of material evidence, or misconstruction of facts and law--Leave refused. [Pp. 902 & 903] B & C
Inquiry--
----Civil servant--Pending inquiry--Bar to--Validity--Standing instructions of Government are that pending inquiry poses no bar to an official's consideration for promotion. [P. 902] A
Mian Khurshid Alam Ramay, ASC for Petitioner.
Mian Muhammad Hussain, ASC for Respondent No. 1.
Respondent Nos. 2 to 28 not represented..
Date of hearing: 31.5.2007.
Judgment
Abdul Hameed Dogar, J.--Petitioners seek leave to appeal against the judgment dated passed by Federal Service Tribunal, Islamabad
(hereinafter referred to as the Tribunal'), whereby Appeal No. 868 (R)
(CS)/2005 filed by Respondent No. 1 was partly allowed to the extent that
Respondent No. 1's supersession in the Senior Selection Board meeting
(hereinafter referred to asthe SSB') held on 2.4.2003 and afterwards was converted into deferment with the result that consequent to his approval for promotion as Executive Engineer (BPS-20) with effect from 30.4.2005, he would be entitled to the restoration of his inter se seniority that existed prior to the SSB meeting held on 2.4.2003.
Briefly, stated the facts of the case are that on 5.9.1967 Respondent No. 1 had joined the petitioners-department as Junior Engineer (BS-17). Later on he was promoted as Superintending Engineer (BS-19) on 22.1.1987. On 2.4.2003 the department held a SSB meeting for the promotion to the post of Executive Engineer (BPS-20) but Respondent No. 1 was superseded whereas his junior Respondent No. 2 Muhammad Tariq Malik was promoted. Feeling aggrieved, Respondent No. 1 filed a departmental appeal on 27.5.2004, which was not responded. Thereafter, he filed Writ Petition No. 19648 of 2004 before the learned Lahore High Court, Lahore which was disposed of on 7.12.2004 directing the petitioners to take necessary action in the matter. Finally, Respondent No. 1 was promoted as Chief Engineer (BS-20) vide office order dated 30.4.2005 with immediate effect. Feeling not satisfied, Respondent No. 1 filed departmental appeal for anti-dated promotion and re-fixation of his seniority which was rejected by the petitioners vide letter dated 24.5.2005. Respondent No. 1 then challenged the same before the learned Tribunal on 20.6.2005. The learned Tribunal vide impugned judgment partly allowed the same as stated above.
We have heard Mian Khurshid Alam Ramay, learned ASC for the petitioners and Mian Muhammad Hussain, learned ASC for Respondent No. 1 and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel appearing on behalf of the petitioners mainly contended that the impugned Judgment is absolutely illegal, against law and facts and without jurisdiction. He further contended that the supersession of Respondent No. 1 could not be converted into deferment from 2.4.2003 as earlier deferment on 24.5.2001 and subsequent deferment has not been challenged at the relevant time, therefore, Respondent No. 1 could not claim anti-dated promotion and his supersession could not be converted into deferment. He further contended that Respondent No. 1 was considered for promotion as Chief Engineer (BS-20) for the first time in a meeting held on 24.5.2001 but he was superseded due to less threshold marks and non-availability of ACRs. Thereafter he was twice considered in the meetings held on 2.4.2003 and 21.4.2004 respectively but was also superseded due to weak record, pending of inquiry and other reasons. According to him, the learned Tribunal could not pass the order regarding ante-dated promotion.
On the other hand, learned counsel appearing for Respondent No. 1 supported the judgment for the reasons enumerated therein with the submission that the impugned judgment being well-based hardly warrants any interference as all the points agitated before the Tribunal were dilated upon and decided in a comprehensive manner.
It is admitted fact that case of Respondent No. 1 for promotion to the post of Chief Engineer (BS-20) was considered in a number of SSB meetings held in different times. First of all on 24.5.2001, his case was considered but he was superseded on the ground that his ACRs for the last five years were not available and that even he did not obtain qualified remarks of his ACRs being less than the threshold marks i.e. 70. Another SSB meeting was held on 1.12.2001 but the case of Respondent No. 1 could not be put up on the ground that ACR for the year subsequent to his supersession had not yet become available. On 2.4.2003, a meeting was held wherein the case of Respondent No. 1 was considered but again superseded due to weak record and a pending inquiry against him. Regarding point of pending inquiry, the standing instructions of the Government are that a pending inquiry poses no bar to an official's consideration for promotion. In this case Respondent No. 1 was treated with discrimination in that an inquiry was also pending against Muhammad Tariq Malik Respondent No. 2 but he was declared fit subject to clearance in the inquiry. The question of pending inquiry had been rendered completely groundless by 21.4.2004 because Respondent No. 1 has already been exonerated in this inquiry vide office order dated 6.12.2003. However, in this meeting, a number of his juniors including Muhammad Tariq Malik, Respondent No. 2, who was junior to him, were promoted. Finally, Respondent No. 1 was declared fit for promotion in the meeting held on 11.4.2005. Respondent No. 1 requested for ante-dation of his promotion but vide office order dated 30.4.2005 issued by the petitioners Respondent No. 1 was promoted to BPS-20 with immediate effect. Under Clause 10(b) of the WAPDA's Promotion Policy an employee can be deferred for promotion if his ACR dossier is incomplete or disciplinary proceedings are pending against him, therefore, it can be safely held that supersession of Respondent No. 1 in the. meetings held on 2.4.2003 and 21.4.2004 was in violation of Clause 10(b) of the WAPDA's Promotion Policy. In this context, Respondent No. 1 could only be deferred for promotion and should not have been superseded.
For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is misreading, nor non-reading of material evidence, or misconstruction of facts and law. Moreover, the question of general public importance as contemplated under Article 212(3) of the Constitution is not involved in this case.
Accordingly, we do not find any reason to interfere with the impugned judgment, thus the petition being devoid of force is dismissed and leave to appeal refused.
(A.S.) Leave refused.
PLJ 2007 SC 903
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Ghulam Rabbani, JJ.
MUHAMMAD ISHAQ--Appellant
versus
MUHAMMAD SADIQ--Respondent
Civil Appeal No. 1229 of 2001, decided on 19.9.2006.
(On appeal against the order dated 4.10.1999 passed by the Lahore High Court, Lahore in RSA No. 2/79).
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 4--N.W.F.P. Pre-emption Act (XIV of 1950), Ss. 4 & 6--Constitution of Pakistan, 1973, Art. 185(3)--Question of--Heritability of right of pre-emption--Whether principle of law and facts--Questions are inter-linked and would be dealt together--Para materia--Superior right--Pre-emptor must show that he had a superior right to pre-empt which he had at the date of sale which continued to remain superior at all relevant times, otherwise suit must fail--Right to acquire a property by right of pre-emption arises on the date of sale--Pre-emptor, now the respondent lacked the necessary qualification on the date of sale and that subsequent qualification by inheritance could not vest him with superior status after the accrual--Original pre-emptor, could not establish his subsisting title on the date of decree--Held: Respondent had no right on the date of sale and thereafter to pre-empt the same by inhertance--Respondent could not improve his qualifications to have such right, if any, enforced after the sale, accordingly--Appeal allowed. [Pp. 906, 908 & 909] A, B, D & H
NWFP Pe-emption Act, 1991 (IX of 1991)--
----S. 6--It was not possible to do so beyond the text of the Pre-emption Act. [P. 907] C
Civil Procedure Code, 1908 (V of 1908)--
----O.XXII, R. 3--Original pre-emptor--Question of--Whether the suit would not abate on the death of original pre-emptor in light of provision of O.XXII C.P.C.--Object of--Representative of a deceased plaintiff is merely is to continue the suit and consider the rights and disabilities of original party on whose death substitution takes place.
[P. 909] E
Words and Phrases--
----Word--"Heritable"--Defined in Concise Oxford Dictionary (Ninth Edition of 1995 edited by Della Thompson. [P. 909] F
Words and Phrases--
----Word--(Capable of inheriting) also in. [P. 909] G
Black's Law Dictionary (Eighth Edition by Bryan A. Garner).
Kh. Muhammad Farooq, ASC for Appellant.
Mr. Muhammad Munir Peracha, ASC for Respondent.
Date of hearing: 19.9.2006.
Order
Ghulam Rabbani, J.--This Civil Appeal with leave of this Court is directed against the judgement dated 4.10.1999 passed by a single Judge of Lahore High Court, Lahore dismissing Regular Second Appeal No.2/1979 filed by him.
Relevant facts are that late Pehlwan Khan father of respondent instituted on 5.12.1970 a suit for possession of the suit land by pre-emption admeasuring 89 kanals and 7 marlas on the ground that he was collateral of vendors, co-sharer in the suit land patti and an owner in the Deh. Appellant contested the suit and on 28.1.1973 filed his written statement; consequently issues were framed and both the parties adduced their evidence. However, before the suit could be decided, Pehlwan Khan died on 28.1.1973 and for impleading his legal representatives an application was filed on 12.2.1973. During pendency of that application, Muhammad Sadiq respondent, a son of deceased pre-emptor, filed on 7.3.1973 another application that he be allowed to pursue the suit. The appellant, who, initially, took exception to that application by saying that the suit had abated; consented subsequently and the application was allowed. An amended plaint was filed on 22.12.1973 followed by an amended written statement which gave rise to an additional issue as regards the limitation of the suit in the changed circumstances. Since both the parties did not wish to lead any evidence on the additional issue, the Civil Judge, Gujrat, on available material, decreed the suit in favour of all the legal heirs of late Pehlwan, the original plaintiff, on payment of Rs. 40,000/- vide judgement dated 26.4.1976; although, all the legal heirs had not liked to continue the suit. The present appellant preferred thereagainst appeal which was dismissed vide judgement dated 13.6.1978 passed by the Additional District Judge, Gujrat. Feeling aggrieved appellant filed regular second appeal, which, too, met the same fate vide judgement impugned herein.
Leave was granted by this Court vide order dated 20.2.2001 to consider, (a) whether right of pre-emption is heritable or otherwise?, (b) whether the learned High Court has failed to follow the principles of law and the facts of the case enunciated by this Court in the judgments in Aziz-ur-Rehman versus Muhammad Nawaz (PLD 1988 SC 384) and Muhammad Younus versus Khushal (1989 SCMR 698) and (c) whether the High Court was right in holding that after amendment in Order XXII, Rule 2 CPC the suit of pre-emption will not abate on the death of original pre-emptor?. If so, to what effect.
Mr. Muhammad Farooq, ASC, learned counsel for petitioner argued that the right to sue for pre-emption was not heritable and that after death of original owner the suit stood abated. He took a plea that neither the respondent possessed superior right of pre-emption at the time of sale viz. on 6.12.1969 nor at the time of institution of suit; viz. 5.12.1970, therefore, a decree could not have been passed in his favour. Learned counsel contended that learned single Judge of Lahore High Court, Lahore, before whom the judgments reported as Aziz-ur-Rehman and others (supra) and Muhammad Younus (supra) were cited, failed to interpret the same correctly and dismissed the regular second appeal of the appellant illegally and unlawfully. He stressed that the impugned judgement and the judgments of two courts below in favour of respondent were not sustainable at law and the same be set aside.
On the other hand Mr. Muhammad Munir Peracha, ASC, learned counsel for respondent controverted the above submissions and supported the impugned judgement and the judgments of two courts below. Mr. Peracha argued that Pehlwan Khan died after instituting the suit and the respondent as his legal representative had taken his place, therefore, the suit would not abate but could be continued within terms of Order XXII Rule 3 C.P.C. In support he relied on cases reported in PLD 1975 Lahore 1205 and 1976 SCMR 121. He, stressed that learned single Judge correctly interpreted the cited case of Aziz-ur-Rehman and others; and Muhammad Younus (supra) and had rightly dismissed the second appeal of respondent.
The first question for our consideration relates to heritability of right of pre-emption and the other is whether, in this case, principles of law and facts in case of Aziz-ur-Rehman and others (supra) and the case of Muhammad Younus (supra), palpably relating to the question of heritability of right of pre-emption, have been followed. Both these questions are, inter-linked and would be dealt with together. It may be stated, in this behalf, that the land involved in case of Aziz-ur-Rehman and others (supra), was located in N.W.F.P. The sale of that land took place during the life-time of respondent's father who was a co-sharer and a contiguous owner of the land. On his demise the respondent claiming to be the co-sharer and contiguous owner; by inheritance, pre-empted the sale through a suit for possession which was decreed. The Appellate Court set aside the decree and dismissed the suit. On a Revision Application made by respondents, Peshawar High Court restored the decree which was challenged by way of a Civil Appeal. In that, leave was granted by this Court, to consider, "whether the decision of holding the right of pre-emption to be inheritable was neither in accord with the Muslim Law of Pre-emption nor the N.W.F.P, Pre-emption Act, 1950 recognized any such right and that the right of person to sue for pre-emption was a simple personal right". This point was answered, inter-alia, in the circumstances next to follow.
Learned High Court had restored the decree in the cited case, relying on Faqir Ali Shah's case (133 PR 1907.P.636) and the case of Wajid Ali versus Shaban (ILR 1909 Vol. 31 All. 623). In the first mentioned case the full Bench of Punjab Chief Court held that "a right to sue for pre-emption upon a cause of action which accrued to a person in his life time passes at his death to his successor who inherits the property through which the right had accrued". In holding so learned full bench of the Punjab Chief Court based its decision on the rule that since the right of pre-emption passed with the land; the person who inherits the land should also be able to exercise that right meaning thereby that it was heritable right. Similar view was taken in another case. However, subsequently, Lahore High Court in case of Faiz Muhammad (AIR 1944 Lah. 172) and the Allahabad High Court in case of Chhajju and others (AIR 1947 All 297) took a contrary view. It was held that, "it was necessary that the pre-emptor must show that he had a superior right to pre-empt which he had at the date of the sale which continued to remain superior at all relevant times, otherwise his suit must fail". In doing so reference was made to section 4 of the Punjab Pre-emption Act - para materia with Section 4 of N.W.F.P Pre-emption Act (XIV of 1950). It was observed that "the right to acquire a property by right of pre-emption arises on the date of sale and, therefore, it should be in existence on that date". Besides, it was also noted that Peshawar High Court had, in another case of Muhammad Younus versus Khushal (Civil Revision No.115 of 1978), held that "the pre-emptor must possess the right on a date of sale".
On consideration of above facts, circumstances, and the relevant law, the point framed in the case (Aziz-ur-Rehman and others) was, thus, answered that, "a pre-emptor who had no right on the date of sale could not improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action". And it was held that the pre-emption suit must fail as the respondent lacked the necessary qualification on the date of sale. As regards the examination of the question in the light of Muhammadan Law, it was observed that, it was not possible to do so beyond the text of the Act itself and in that, reference was made to Section 6 of N.W.F.P. Pre-emption Act.
It will be important to note from the above narration that in deciding the case of Aziz-ur-Rehman and others (supra), reliance was placed, among others, on the case of Chhajju and others in which, it was laid down that "the crucial dates on which the plaintiff in a pre-emption suit must establish his subsisting title are date of the sale, the date of suit and the date of decree and that this had a reference to the property on the strength of which the suit for pre-emption was brought".
To see whether learned Single Judge of Punjab High Court failed to follow the principles of law and the facts of the case enunciated by this Court in the judgement in Aziz-ur-Rehman and others, it will be appropriate to look at the impugned judgement wherein the cited case was referred. Following passage from it is relevant:
"para-3......... Learned counsel for the appellant laid much stress on a passage quoted from the case of Muhammad Ismail vs. Abdul Rashid and others (AIR 1956 Allahabad 1) in which case the question was examined in the context of the Hanfi School of thought and it was held that the right of pre-emption does not survive to the heirs after the preemptor dies before obtaining a decree in his favour. In my humble opinion the said passage was quoted with reference to the observations made in the judgement to the effect that Section 6 of the NWFP Preemption Act specifically lays down that the right of pre-emption shall exist subject to the provisions and limitation contained in the Act, therefore, it is not possible to examine the question in the light of Muhammadan Law beyond the text of the Act itself. It is thus apparent that the said passage quoted from the case of Muhammad Ismail was not made the basis of the ratio of the judgement, but it was the fact that the preemptor in the case lacked a right of pre-emption on the date of sale. So far as the other judgements referred to in the said case of Aziz-ur-Rehman are concerned, the same are also to the effect that whereas the vendee by statutory permission can improve his status even if the sale till the time the suit is instituted, the pre-emptor has no such privilege and he is to establish that he was qualified to file a suit under the relevant law on the date the same took place. Besides the facts of the said case, as reproduced above, also show that there was no doubt that the preemptor in the said case had no right on the date of sale and had relied upon the ownership of the land by his father on the said date".
And that, "para 7. I have already stated above that the Supreme Court in the case of Aziz-ur-Rehman did not rely on the principles of the Hanfi School of though which were made basis for the observations from the case of Muhammad Ismail (AIR 1956 Allahabad 1). Needless to state that the facts and circumstances of the said case were distinguishable from the present case as the original pre-emptor had in fact filed a suit and admittedly had a right of pre-emption on the date of sale".
Reading through above passage will reveal that learned Single Judge in deciding this case was of the view that the case of Aziz-ur-Rehman and others (supra) could not be made applicable and did not follow the same for the reasons that the facts and circumstances of the case of Aziz-ur-Rehman and others (supra) were distinguishable and that the principles of Hanfi Law were not relied upon in the case. Evidently, learned Single Judge did not give weight to the pivotal/relevant point determined in that case i.e. that the pre-emptor, now the respondent himself in this case lacked the necessary qualification on the date of sale and that subsequent qualification by inheritance could not vest him with superior status after the accrual. Respondent's father Pehlwan, the original pre-emptor, as held in the case of Chhajju and others (supra), as well, could not establish his subsisting title on the date of decree palpably continue to have the feeble and predatory right of preemption enforced. Be that as it may, in case of Muhammad Younus (supra), wherein, the point for consideration (in both the appeals) was "whether the appellant who did not possess the superior right of pre-emption at the time of sales but subsequently acquired this right by inheritance, could avail of his improved status to pre-empt the sales of the disputed properties. In other words, the question was "whether the right of pre-emption is heritable", Justice Muhammad Haleem, Chief Justice (as then he was) speaking for a five members Bench, observed in unequivocal terms that "this question came up for consideration in Aziz-ur-Rehman and others v. Muhammad Nawaz, PLD 1988 Supreme Court 384, and it was held that the right to pre-empt the sale was not heritable, therefore, the sale cannot be pre-empted". Learned Judge in Chambers did not at all, discuss in his judgement as to what principle was laid down in that case. Accordingly, we do not feel ourselves inclined to agree with Mr. Peracha that learned single Judge of Lahore High Court correctly interpreted the cited cases i.e. Aziz-ur-Rehman and others and Muhammad Younus (supra). He failed to follow the principles laid down therein.
Coming to the remaining question whether the suit would not abate on the death of original pre-emptor in the light of provision of Order XXII C.P.C. it may be stated, at the outset, that the object of substituting the legal representative of a deceased plaintiff is merely is to continue the suit and consider the rights and disabilities of original party on whose death substitution takes place. The law settled in case of Chhujju and others followed by or approved in the cases cited in the foregoing paras is that in a preemption suit, the plaintiff must establish his subsisting title on the date of sale, the date of the suit and the date of decree. In the instant case the original plaintiff with right of pre-emption had, before a decree could be passed, breathed his last and as a plaintiff, he could not establish his subsisting title on the date of decree. In case of Muhammad Younus (supra), the question "whether the right of pre-emption is heritable" was considered and relying on the case of Aziz-ur-Rehman and others, it was held that the sale could not be pre-empted. The word "heritable" as defined in Concise Oxford Dictionary (Ninth Edition of 1995 edited by Della Thompson) denotes (a) (of property) capable of being inherited by heirs-at-law, (b) capable of inheriting. Also in Black's Law Dictionary (Eighth, Edition by Bryan A.Garner), the term "heritable has been defined to mean (1) (of property) capable of being inherited (2) (of an person) capable of inheriting. Speaking conversely, the term "not heritable" may be construed as "not capable of being inherited". Therefore, if the respondent is impleaded as a legal representative of the original pre-emptor who having failed, for obvious reasons, to continue his right before the decree could be passed; stretching the process of suit to consider his right shall lead to unconscionable consequences. The point at issue is, thus, answered accordingly.
Cumulative effect of above discussion is that we hold that the respondent himself had no right on the date of sale and thereafter to pre-empt the same by inheritance. Also, in this case, he could not improve his qualifications to have such right, if any, enforced after the sale, accordingly.
Before concluding, it may be stated that Mr. Munir Peracha, ASC, learned counsel for respondent placed reliance on case of Sheikh Inayat and the case of Muhammad Iqbal and others (supra). In both the cases, though the facts are distinguishable, the case law referred to in the instant case was not under review in these two cases, therefore, the same will be of no assistance to the case of respondent.
For the foregoing reasons, we allow this appeal and set aside the impugned judgment and the judgments/decrees of two Courts below. Consequently the suit of the respondents shall stand dismissed. The parties are however, left to bare their own costs.
(A.S.) Appeal allowed.
PLJ 2007 SC 910
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
CHIEF EXECUTIVE AYUB MEDICAL INSTITUTION, ABBOTTABAD & another--Petitioners
versus
Dr. WAQAR-UR-REHMAN QURESHI & 3 others--Respondents
Civil Petition No. 233 of 2007, decided on 26.3.2007.
(On appeal from the judgment dated 1.12.2006 of the Peshawar High Court, Abbottabad Bench, in W.P. No. 339 of 2005).
(i) Probation Period--
----Service matter--Civil servant was appointed as lecturer--Probation period of two years--No letter was served after expiry of two years--Probation period would be considered as extended--Civil servant would be treated as regular employee--Services were repatriated to parent department--Determination--Validity--Unless the letter of confirmation is issued, the period of probation shall be deemed to have been extended for another period of one year--Order of repatriation having been made within the probation period. [P. 913] A
(ii) NWFP Medical Institutions Rules, 2001--
----R. 10(i)--Constitution of Pakistan, 1973, Art. 212(3)--Notification was declared being without lawful authority and against law and rules--Civil servant/respondent was appointed as lecturer--Post of Assistant Professor was advertised--Applied through proper channel--Civil servant was to undergo a period of probation--Probation period would be considered as extended--Respondent would be treated as regular employee--Office order was issued by the principal of the Medical Institution--Ex. Pakistan Leave was granted--Notification--No objection to join his new assignment--On expiry of leave he would have to complete remaining probation period--Chief Executive repatriated the civil servant to his parent department--Assailed--Held: Probation period would be considered as extended for another year and on completion of the probation or extended period of probation, the civil servant would be treated as a regular employee.
[P. 913] B
(iii) NWFP Medical Institutions Rules, 2001--
----R. 10(i)--Civil servant--Appointed as Lecturer--Post of Assistant Professor was advertised--Applied for--Probation period of two years--No letter was issued after expiry of two years--Probation period would be considered as extended for another year--On completion of the probation, or extended period of probation, the civil servant would be treated as regular employee--Principal granted Ex-Pakistan leave without pay--No objection to join his new assignment and on expiry of leave repatriated the civil servant to his parent department--Appeal was allowed by High Court--Leave to appeal--Question of--Period of probation could either be suspended or postponed or extended beyond the period of three years--Determination--Civil servant was regular employee and the Institution had no objection for applying to overseas employees corporation--Competent authority was pleased to grant Ex-Pakistan leave without pay and institution had no objection to go to foreign to assume his new job and on expiry of leave civil servant would have complete the remaining probation period--Held: Period of probation could either be suspended or postponed or extended beyond the period of three years--Entire action was taken unilaterally without affording any opportunity of being heard which is not only against principle of natural justice but against settled norms of service law/rules prescribed for all Institution of nature through NWFP Medical Institution Rules, 2001--Leave was refused. [Pp. 913 & 914] C, D & E
Mr. Muhammad Munir Peracha, ASC for Petitioners.
Respondents not represented.
Date of hearing: 26.3.2007.
Judgment
Abdul Hameed Dogar, J.--Petitioners seek leave to appeal against the judgment dated 8.8.2003 passed by a learned Division Bench of the Peshawar High Court, Abbottabad Bench, whereby Writ Petition No. 339 of 2005 filed by Respondent No. 1 was allowed by declaring the notification dated 10.8.1987 issued by Health & Social Welfare Department, Government of NWFP, being without lawful authority and against the law and rules on the subject.
Briefly, stated the facts giving rise to the filing of the instant petition are that on 17.1.1987 Respondent No. 1 was appointed as Lecturer in Khyber College of Dentistry. In the meanwhile in Dentistry Department of Ayub Medical College, Abbottabad, a post of Assistant Professor was advertised in the newspapers. He applied through proper channel for the same and was provisionally appointed as Assistant Professor Dentistry in BPS-18 vide office order dated F. 7-7-200-Estt/1064-59 dated 21.8.2000. He was to undergo a period of probation for a period of two years and in case no letter was issued after the expiry of two years, the probation period would be considered as extended for another year and on completion of the probation or extended period of probation, the Respondent No. 1 would be treated as a regular employee of the College. The Principal of the Ayub Medical College also issued office order on 18.8.2000 wherein it was specifically mentioned that in continuation of office order of Assistant Professor Dentistry issued on 16.8.2000, Respondent No. 1 was designated as Assistant Professor Oral Surgery. On 15.11.2001 Overseas Employment Corporation asked the Principal Ayub Medical College, Abbottabad to relieve Respondent No. 1 on the ground that he was selected and his visa was endorsed. The Principal Ayub Medical College vide notification dated 11.1.2002 granted 730 days Ex-Pakistan leave without pay from the date of availing to Respondent No. 1 and that the Institution had no objection on his proceeding to Saudi Arabia to join his new assignment and on expiry of leave, he would have to complete the remaining probation period. The Chief Executive, Ayub Medical Institution, Abbottabad, vide order dated 27.7.2002 repatriated the respondent to his parent department i.e. Khyber College of Dentistry. Feeling aggrieved, respondent challenged the aforesaid order before the learned High Court, which was allowed, vide judgment-dated 1.12.2006.
We have heard Mr. Muhammad Munir Peracha, learned ASC for the petitioners and have gone through the record and the proceedings of the case in minute particulars.
Mr. Muhammad Munir Peracha, learned ASC for the petitioner vehemently contended that the impugned judgment suffers from legal defect and is not sustainable in law. According to him the learned High Court wrongly assumed that the respondent was a regular employee of Ayub Medical College, Abbottabad. He contended that the learned High Court did not consider the case properly and misinterpreted the provisions of NWFP Medical Health Institutions and Regulation of Health Care Services Ordinance, 2002 as well as the Medical Institutions Rules, 2001. According to him respondent was on probation when his services were repatriated to his parent department and it is a settled law that unless the letter of confirmation is issued, the period of probation shall be deemed to have been extended for another period of one year. He contented that as the order of repatriation having been made within the probation period, therefore, the respondent was no more employee of the Ayub Medical College.
The real controversy in this case is whether the respondent was an employee of Ayub Medical College or of Government of the NWFP through Health Department or Khyber College of Dentistry. It is admitted fact that the respondent was provisionally appointed as Assistant Professor Dentistry in BPS-18 and he was to undergo a period of probation for two years and in case no letter was issued after the expiry of two years, the probation period would be considered as extended for another year and on completion of the probation or extended period of probation, the respondent would be treated as a regular employee of the College. It is pertinent to mention here that Office order dated 18.8.2000 issued by the Ayub Medical College specifically mention that in continuation of office order of Assistant Professor Dentistry issued on 16.8.2000, Respondent No. 1 was allowed the specialty as Assistant Professor Oral Surgery. Even in the certificate dated 30.1.2001 issued by the Principal Ayub Medical College it was clearly mentioned that the respondent was a regular employee of Ayub Medical College since 23.9.2000 and the Institution had no objection for applying to Overseas Employees Corporation for the post of Consultant of Oral Surgery in Kindom of Saudi Arabia. The respondent was selected by Overseas Employment Corporation and was relieved on 7.11.2001. A notification dated 11.1.2002 was also issued by the Principal Ayub Medical College indicating therein that the competent authority was pleased to grant 730 days Ex-Pakistan leave without pay from the date of availing to the respondent and the Institution had no objection to go to Saudi Arabia to assume his new job and on expiry of leave, he would have complete the remaining probation period. There is no provision in the law that period of probation could either be suspended or postponed or extended beyond the period of three years. Admittedly the respondent was the employee of Ayub Medical College on completion of his three years of service, his deputation abroad was allowed by the Ayub Medical College and no fault or default of the respondent was found during the period of first three years of his service. Rule 10(1) provides that the Government employees already posted to the Institution shall continue to work as civil servants till retirement, if they do not opt for absorption in the service of the Institution. The respondent had retained a lien as lecturer in, College of Dentistry, during the period of probation. Ex-Pakistan leave and No Objection Certificate for contract service in Saudi Arabia was granted to him by the Principal Ayub Medical College and it was specifically mentioned that the competent authority had granted 730 days Ex-Pakistan leave without pay to Respondent No. 1. He had no other alternate except to presume that the Principal was representing the competent authority and the sanction of the competent authority was correctly conveyed to him by the Principal. The petitioner did not have the authority to unilaterally repatriate the respondent to the Government of the NWFP. Before termination of service of Respondent No. 1 with petitioners and his repatriation to Government of NWFP, it was incumbent upon them to hold an inquiry to ascertain the fault, if any, committed by Respondent No. 1. On the contrary, the entire action was taken unilaterally without affording any opportunity of being heard which is not only against the principles of natural justice but also against the settled norms of service laws/rules prescribed for all Institutions of same nature through the NWFP Medical Institutions Rules, 2001.
For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is misreading, nor non-reading of material evidence, or misconstruction of facts and law.
Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2007 SC 914
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
Sh. MUHAMMAD IQBAL--Petitioner
versus
SYED ASIM HASSAN & another--Respondents
Crl. P. No. 70 of 2007, decided on 28.3.2007.
(On appeal from the order dated 9.2.2007 of the Lahore High Court, Rawalpindi Bench, in Crl. Misc. No. 1430-B of 2007).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Constitution of Pakistan, 1973, Art. 185(3)--Accused was granted bail on medical grounds--Cancellation of bail--Leave to appeal--Accused sustained bullet injury on brain--Accused applied for bail on medical ground--Medical Board was constituted--High Court relying on the opinion given by Medical Board constituted to examine the respondent/accused enlarged him on bail--Held: High Court rightly granted bail to accused on medical ground and no case for cancellation of bail is made out--Leave refused.
[Pp. 916 & 920] A & B
Sheikh Zamir Hussain, ASC for Petitioner.
Dr. Babar Awan, ASC for Respondent No. 1.
Ms. Yasmeen Sehgal, DPG for Respondent No. 2.
Date of hearing: 28.3.2007.
Order
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the order dated 9.2.2007 passed by a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Misc. No. 1430-B of 2007 filed by Respondent No. 1 Syed Asim Hassan was accepted and he was granted bail on medical grounds in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of trial Court/Duty Judge.
Briefly, stated the facts giving rise to the filing of the instant petition are that on 18.2.2002 petitioner Sh. Muhammad Iqbal lodged FIR at Police Station Airport, Rawalpindi, wherein he alleged that on the same day at 10:10 a.m. his son Nasir Iqbal informed him from Safari Villas on telephone that respondent Syed Asim Shah, his co-accused Asif Shah and Waseem Shah had entered in the porch of his house duly armed and what he should do. Petitioner instructed him to opt in accordance with the circumstances and in the meanwhile he would reach there. When petitioner reached in the house of Nasir Iqbal at Safari Villas, he came to know that Nasir Iqbal had become injured who had been brought to General Hospital, Rawalpindi. During firing respondent Syed Asim Hussain and Waseem also sustained injuries who also had been shifted to hospital. The occurrence was narrated to him by the PWs Muhammad Javid and Sohail who witnessed the incident. It is pertinent to mention here that on the same day petitioner and his brother Dr. Irfan Iqbal allegedly in a hot chase fired at the respondent and his brother Waseem Shah while they were being treated in the District Headquarters Hospital, Rawalpindi to which Waseem Shah succumbed to the injuries upon which FIR No. 700 dated 18.12.2002 was registered under Sections 302/324/109 PPC read with Section 7 of the Anti-Terrorism Act, 1997 at Police Station Gunj Mandi, Rawalpindi by the respondent's brother Syed Farrukh Hassan.
The motive as stated in the FIR was that two days prior to the incident respondent Syed Asim Shah had come to Dr. Irfan Iqbal, the son of petitioner and told him that on the screaming of his child, his wife became disturbed upon which an exchange of hot words took place in between them.
Initially the case was registered under Sections 324/452/34 PPC but on the death of Nasir Iqbal, Section 302 PPC was added. Respondent remained absconder. Thereafter, he filed Criminal Misc. No. 5360/B/2004 before the Lahore High Court for bail before arrest, which was dismissed on 28.9.2004. Thereafter respondent filed Criminal Petition No. 565-L of 2004 before this Court who was dismissed vide order dated 21.10.2004. As the respondent sustained bullet injury in the brain, therefore, he was admitted in the hospital. Later on, respondent moved application for bail after arrest before the learned Additional Sessions Judge, Rawalpindi, on merits as well as on medical grounds, which was dismissed, vide order dated 10.6.2006. The respondent then filed Cri. Misc. No. 1430-B of 2006 before the learned High Court for bail on medical grounds. On 10.01.2007 a Medical Board consisting of Medical Superintendent General Hospital, Lahore, Assistant Professor, Department of Neurosurgery and Dr. Nazir Ahmed, Professor & Head of Department of Neurosurgery, PGMI, Lahore General Hospital, Lahore was constituted on the directions of the learned High Court who after examining the respondent opined as under:--
"It is submitted that the patient named Asim Hussain Shah son of Altaf Hussain Shah, a case of fire-arm injury to the brain admitted in this Unit on 9.9.2006. Patient is under treatment till to date. Regarding the current clinical status, there is no remarkable improvement in his condition, comparing to the previous report, which was sent on 16.10.2006.
Patient is still disoriented and he is unable to convey himself and speak properly (dysphasic). Patient has got weakness of (Rt) side of the body (paresis) and on clinical scale, he has got power of 2/5 of arm and 1/5 of the leg, with signs of upper motor neuron lesion. Patient has got severe spasticity of the effected side, for which he is dependent on his attendants for sitting and side changing. In spite of giving anticonvulsants, patient is suffering from repeated attacks of convulsions for which he has to continue the anticonvulsants drugs. For the last few days, patient is suffering from fever, which is moderate to high in intensity.
His X-Ray skull shows two bullets inside the brain with multiple metal pieces. The last C.T Scan brain shows atrophic changes to the brain. For his delay routines, patient is badly dependent for his caretakers like feeding, clothing urination and defecation.
Keeping in mind, the current clinical condition, patient would take a long time for improvement, or the condition would be static."
The learned High Court relying on the opinion given by the Medical Board constituted to examine the respondent, enlarged him on bail vide impugned order as stated above.
We have heard Sheikh Zamir Hussain, learned ASC for the petitioner, Dr. Babar Awan, learned ASC for Respondent No. 1 and Mst. Yasmeen Sehgal, Deputy Prosecutor General and have gone through the record and the proceedings of the case in minute particulars.
Sheikh Zamir Hussain, learned ASC for the petitioner contended that the learned High Court had fallen in error in granting bail to respondent on medical grounds for the reason that the respondent was declared as proclaimed offender; that he had applied for protective bail before arrest before learned Sessions Judge, Faisalabad, which was granted vide order dated 10.6.2004 till 21.6.2004. He further contended that one month thereafter he came to Lahore and applied for bail before arrest in Lahore. He further contended that during the proceedings before the learned High Court, the complainant who is the father of the deceased was not summoned who was necessary party. According to him failure to implead the petitioner as a party has resulted in grave miscarriage of justice for the reasons that the entire facts were not brought into the notice of the learned High Court while granting bail to the respondent. According to him on 18.12.2002 at 11.00 a.m. Dr. Irfan Khilji, Medical Officer, DHQ Hospital, Rawalpindi, examined respondent and observed that there was no fire-arm injury on his head but the same doctor again examined him on the same day at 1.05 p.m. and found three injuries on the persons of respondent but none of them was on the head. He contended that the respondent was declared proclaimed offender and challan against him was submitted under Section 512 Cr.P.C. According to him even the learned High Court while granting bail before arrest on 23.7.2004 ordered the respondent to join the investigation and appear before the Court on each and every date of hearing but the respondent had neither joined the investigation nor had complied with the direction regarding his appearance before the Court on each and every date of hearing but the respondent remained absconder. In support of his contention, learned counsel placed reliance on the case of Faqirullah v. Khalil-uz-Zaman and others (1999 SCMR 2203)
On the other hand, Dr. Babar Awan, learned ASC for the respondent controverted the above contentions and contended that respondent had been granted bail because he was suffering from such diseases, treatment of which was not possible in Jail, therefore, his detention was hazardous to his life. According to him in the instant case respondent Syed Asim Hassan and Waseem Hassan Shah also sustained serious bullet injuries and as a result of which respondent is completely disoriented paralysed, incapacitated and suffer through disability and infirmity as he can neither move nor speak, whereas his brother succumbed to the injuries. He further contended that the case of the respondent is covered by the first proviso to Section 497(1) Cr.P.C. and there is nothing on record to connect the respondent with the alleged commission of the offence. According to him while the respondent and his brother were being given treatment in the District Headquarter Hospital on 18.12.2002 at about 1.45 p.m. in the Emergency Ward of the Hospital, petitioner Sh. Muhammad Iqbal and his brother Dr. Irfan Iqbal went inside the operation theatre of the Hospital and Dr. Irfan Iqbal fired at both of them, resulting in the death of Waseem Hassan Shah whereas respondent Syed Asim Hassan sustained serious injuries. He further contended that learned High Court having gone through the medical report, which has been produced by a Medical Board granted bail to the respondent in accordance with the principles for grant of bail well in accordance with law. Learned counsel in support of his contentions also placed on record medical reports of various hospitals of the respondent. In support of his contention he also relied upon the case of Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others (2006 SCMR 1225).
Before dilating upon the legal aspect of the matter, it would be appropriate to refer the medical history of the respondent.
In this matter first incident took place on 18.2.2002 at 10.10 a.m. in which Nasir Iqbal as well as respondent Syed Asim Hassan and his brother Waseem Shah sustained injuries. The injured persons were shifted to the General Hospital, Rawalpindi. Initially FIR No. 481 dated 18.12.2002 was registered against the respondent under Sections 452/324/34 PPC but on the death of injured Nasir Iqbal Section 302 was added at Police Station Airport, Rawalpindi on the complaint of Sh. Muhammad Iqbal father of the deceased. The second incident also took place on the same day when brother of the petitioner Dr. Irfan Iqbal allegedly in a hot chase fired at the respondent and his brother Waseem Shah while they were being treated at about 1.45 p.m. in the District Headquarters Hospital, Rawalpindi. Resultantly Waseem Shah succumbed to the injuries whereas respondent also sustained injuries upon which FIR No. 700 dated 18.2.2002 was registered against Dr. Irfan Iqbal under Sections 302/324/109 PPC read with Section 7 of the Anti-Terrorism Act, 1997 at Police Station Gunj Mandi, Rawalpindi on the statement of respondent's brother Syed Farrukh Hassan. On 29.12.2002 respondent Asim Hassan Gilani was shifted to Shifa International Hospital. The doctor examined the respondent and found focal scalp injury to left parietal region of the respondent. According to the doctor approximately 2x1 cm opaque metallic bullet fragment in left parietal scalp was observed. Thereafter on 5.1.2003 the respondent was shifted to Combined Military Hospital, Rawalpindi where he was operated and doctor found five bullet injuries on his person. On 18.2.2003 the respondent was shifted to DHQ Hospital, Faisalabad. Vide order dated 22.3.2003 of Special Judge Anti-Terrorism, Special Court No. 11, Rawalpindi, a Medical Board consisting of Medical Superintendent, Prof. Dr. Maj (R) Abdul Rashid, Head of Surgical Unit-IV and Dr. Javed Iqbal, Assistant Prof. Of Surgery, DHQ Hospital, Faisalabad on 2.4.2003 at 10.00 a.m. in the DHQ Hospital, Faisalabad, for medical examination of the respondent who was admitted at that time in a Private Ward. The Board found the following injuries:--
Bullet injury head, resulting in Rt. Heniplegia & aphasia.
Bullet injury Rt. Chest resulting in 8th rib fracture & Rt haemothorax, chest intubation was done.
Bullet injury abdomen resulting in gut laceration and haematoma liver and kidney. Gut primary repair was done and liver was repaired.
Bullet injury Lt. Elbow resulting in fracture of upper end of radius. Conservative management was done.
Through & through injury Rt. Ankle & comminuted fracture Rt. Calcaneum Back slab applied.
The respondent was sent to Thoracic Surgeon, Lahore to manage the chronic Empyema thoracic where he was examined on 28.2.2003 and opined that the respondent is still suffering from aphasia & disarthria (difficult, slurred and incomprehensive speech) due to cerebral injury. A foreign body (bullet) is still lying in the anterior cranial fossa, which need Neurosurgical evaluation.
Due to the critical condition of the respondent, he was shifted to General Hospital, Lahore. On the direction of learned High Court, a medical board consisting of Medical Superintendent General Hospital, Lahore, Assistant Professor, Department of Neurosurgery and Dr. Nazir Ahmed Professor and Head of Department of Neurosurgery, PGMI/Lahore General Hospital, Lahore was constituted on 10.1.2007 who examined the respondent and gave its opinion as stated hereinabove. The respondent is physically handicapped. The medical report is also indicative of the ailment, which appears to be somewhat serious, and can be fatal to his life. According to the Medical Board the respondent is still disoriented and he is unable to convey himself and speak properly (dysphasic).
This Court in the case of Peer Mukaram-ul-Haq referred supra, suspended the sentence of petitioner therein and released, him on bail on medical ground taking into consideration that medical opinion furnished by Medical Specialist had recommended shifting of petitioner to some care health facility where a team of Specialists in diabetes, Neuro-physicians and Cardiologist were available. Petitioner, during the recent past, was hospitalised and remained under treatment in the Department of Urology. The main consideration which weighed with the Court was that medical, facilities such like up-to-date operation skill and know-how were not available in the District Headquarter Hospitals which aspect of the matter could not be ignored. The case of Faqirullah referred supra by the learned counsel for the petitioner in fact is a criminal review petition and is not relevant at all with the case in hand.
Accordingly, we are of the considered opinion that the learned High Court rightly granted bail to the respondent on medical ground and no case for cancellation of bail is made out. The criminal petition being devoid of force is dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2007 SC 920
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed & Hamid Ali Mirza, JJ.
WAJID SAEED KHAN--Petitioner
versus
ABDUL QADOOS KHAN SWATI and others--Respondents
C.P. No. 272 of 2007, decided on 10.5.2007.
(On appeal from the judgment dated 25.1.2007 of the Peshawar High Court, Abbottabad Bench, passed in F.A.B. No. 6/2006).
Constitution of Pakistan, 1973--
----Art. 185(3)--Suit for recovery--Respondent failed to discharge its liabilities in terms of agreement--National Bank filed a suit which was decreed--During pendency of execution proceedings--Incentive scheme was introduced--Offer was accepted and complied--Amount was deposited with interest in instalements--Bank issued letter to deposit the balance amount--Property in-question was put to auction--Respondent filed objection petition before executing Court that the amount had been deposited by prior to date of auction--Objection petition was dismissed--Appeal was accepted by High Court--Case was remanded--Leave to appeal--Contentions--Question of--Executing Court did not decide the matter after judicial application of mind--Held: Supreme Court does not interfere in remanded orders passed by High Court while exercising power under Art. 185(3) of Constitution--Leave refused. [P. 923] A
Banking Companies Ordinance, 1962 (LVII of 1962)--
----S. 25--Power to control advances--State Bank of Pakistan has power to control advances by Banking Companies Ordinance, 1962.
[P. 923] B
Duty of Court--
----Judicial officers are duty bound to decide the cases objections after judicial application of mind. [P. 923] C
General Clauses Act, 1897 (X of 1897)--
----S. 24-A--Public functionaries--Public functionaries are also duty bound to decide the applications of citizens after judicial application of mind. [P. 923] D
Mr. Abdul Shakoor Khan, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 10.5.2007.
Judgment
Ch. Ijaz Ahmed, J.--Necessary facts out of which the present petition arises are that Respondent No. 1 secured loan from Respondent No. 2 amounting to Rs.9000/- in the year 1976. Respondent No. 1 failed to discharge its liabilities in terms of agreement arrived at between Respondent No. 1 and Respondent No. 2 (National Bank of Pakistan). Respondent No. 2 being aggrieved filed a suit for recovery against Respondent No. 1 in the Court of Special Judge Banking Companies, NWFP at Abbottabad. The suit of Respondent No. 2 was decreed vide its judgment and decree dated 13-4-1987 amounting to Rs. 39193/-. Respondent No. 2 filed execution petition before Judge Banking Companies/Executing Court. During the pendency of the execution proceedings State Bank of Pakistan had issued an incentive scheme on 18-6-1997. Respondent No. 2 issued a letter to Respondent No. 1 offering the package by prescribing a recoverable amount of Rs. 9450/- by or before 5-12-1997. Respondent No. 1 had accepted the said offer and complied the same by depositing the said amount in three instalments. It is pertinent to mention here that Respondent No. 1 had also deposited 25% amount of Rs. 2500/- on 3-7-1997 whereas the balance amount was deposited in two instalments of Rs. 4072/- and Rs. 3000/- on 15-12-1997 and 12-2-1998 respectively. Respondent No. 2 issued another letter dated 18-10-1997 to Respondent No. 1 stating therein that instead of
Rs. 9450/- a sum of Rs. 22863/- was recoverable from him under the said incentive scheme. Respondent No. 1 failed to pay the said amount to Respondent No. 2 in terms of letter dated 18-10-1997 mentioned above. The cut off date of incentive scheme was extended. Respondent No. 1 deposited amount of Rs. 9572/- instead of Rs. 9400/- during the extended period. The property in question measuring 1 kanal belonging to Respondent No. 1 was put to auction which was held on 18-6-1998. Petitioner participated in the said auction proceedings. The bid of the petitioner was highest amounting to Rs. 42,000/-. Respondent No. 1 filed objection petition before the executing Court on 23-7-1998 on the ground inter alia that the amount had been already deposited by him prior to the date of auction. The property in question worth several lacs has been sold illegally for a petty amount of Rs. 42000/-. The objection petition was contested by Respondent No. 2 (National Bank) and auction purchaser before the learned executing Court. Learned executing Court dismissed the objection of the Respondent No. 1 vide its judgment dated 14-3-2006. Respondent No. 1 being aggrieved filed Appeal (F.A.B. No. 6/2006) before the Peshawar High Court, Abbotabad Bench which was accepted by the learned High Court vide impugned judgment dated 25-1-2007. Hence the present petition by the auction purchaser.
Learned counsel of the petitioner submits that petitioner had purchased the property in question in auction proceedings which were held on 18-6-1998 for consideration of Rs. 42000/- The said amount was equivalent to the market price. He further maintains that learned executing Court was justified to dismiss the objection of Respondent No. 1 whereas the learned High Court had accepted the same without judicial application of mind. He further maintains that Respondent No. 1 had not raised any objection qua the auction held by executing Court on 18-6-1998. Respondent No. 1 had filed objection on the basis of incentive scheme issued by the State Bank of Pakistan on the basis of which Respondent No. 2 had offered him to discharge his liabilities in terms of incentive scheme. Respondent No. 1 had not discharged its duty within the prescribed period in terms of the incentive scheme and offer letter issued by Respondent No. 2 on 18-10-1997 to the Respondent No. 1. Subsequently Banking Court had no other alternative except to sell the property in question through auction. He sums up his argument that the High Court had remanded the case to the executing Court on wrong premises without adverting to the ground realities and pleas raised by the petitioner before the learned High Court.
We have given our anxious consideration to the contentions of the learned counsel of the petitioner and perused the record. All the grounds raised by the learned counsel for the petitioner before us are exactly the same which were raised before the learned High Court and were rejected by the learned High Court as is evident from paras 4 to 8 of the impugned judgment. The learned High Court had taken a lot of pain to re-examine the facts/material on record and had come to the conclusion that executing Court did not decide the matter after judicial application of mind as is evident from paras 7 and 8 of the impugned judgment which are reproduced hereunder:
"No such investigation was ever conducted. A comprehensive objection petition covering various aspects of the case was submitted by the appellant on 23.7.1998 which was supplemented by several documents but the same was dismissed vide the impugned order merely by getting a reply from the decree holder and the auction purchaser. It has been held by the learned Banking Court that, firstly, "No material irregularity or fraud in publishing or conducting the sale was proved". Secondly, that "No substantial injury is shown to have been sustained by him by reason of any irregularity". This reason has been advanced by referring to Section 47 C.P.C. and Order XXI Rule 90 C.P.C. whereas Section 18(6) as referred to hereinabove (applicable to the period when the objection petition was moved) commences with the phrase "Notwithstanding anything contained in the C.P.C." Moreover, the substantial injury is apparent on the face of the entire record that despite the fact of deposit of the amount as per package of the Government and the permission of the Bank the house was auctioned for a petty amount and still more amount was being claimed from the judgment-debtor on the basis of the calculations of the Bank.
Thus in the interest of justice we accept this appeal, set aside the impugned order and remand the matter to the learned Banking Court to investigate the objection petition and to consider the points high-lighted hereinabove and after hearing the parties the objection petition as well as the confirmation of the auction proceedings be decided afresh. Parties are present before us and they are advised to appear before the referred Banking Court on 15-2-2007."
The aforesaid paragraphs clearly reveal that learned High Court had remanded the case to the executing Court to decide the objection of Respondent No. 1 in accordance with law. It is a settled law that this Court does not interfere in the remand orders passed by the learned High Court while exercising power under Article 185(3) of the Constitution as law laid down by this Court in Rehmatullah's case (1968 SCMR 337). It is pertinent to mention here that State Bank of Pakistan has the power to control advances by banking companies under Section 25 of Banking Companies Ordinance (LVII of 1962). It is a settled principle of law that Judicial Officers are duty bound to decide the cases/applications/objections after judicial application of mind as law laid down by this Court in various pronouncements. See Gouranga Mohan Sikdar's case (PLD 1970 SC 158) and Mollah Ejahar Ali's case (PLD 1970 SC 173). It is proper to mention here that public functionaries are also duty bound to decide the applications of citizens after judicial application of mind after addition of Section 24(A) of General Clauses Act as law laid down by this Court in Airport Support Services v. The Airport Manager (1998 SCMR 2268). The learned High Court was justified to set aside the order of the executing Court as learned executing Court has dismissed the objections of Respondent No. 1 without judicial application of mind.
In view of what has been discussed above this petition has no merits and the same is dismissed. Leave refused. However, in the interest of justice the executing Court is directed to decide the objections of Respondent No. 1 within one month after receipt of the order of this Court under intimation to the Deputy Registrar (Judicial) of this Court. Deputy Registrar (Judicial) is directed to send this order to the concerned executing Court immediately for compliance. Parties are directed to appear before the executing Court on 28.5.2007.
(R.A.) Leave refused.
PLJ 2007 SC 924
[Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ, Tassaduq Hussain Jillani & Nasir-ul-Mulk, JJ.
MUHAMMAD YOUSAF etc.--Appellants
versus
SIAN AKHTAR--Respondent
C.A. No. 1086 of 2004, decided on 17.4.2007.
(On appeal from the judgment of the Lahore High Court dated 25.1.2002 passed in C.R. No. 373 of 1995).
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 14--Suit for Pre-emption--Quatum of sale consideration--Extension of time--Decree holder did not deposit the sale consideration--Pre-emption money had not been deposited within reasonable time--Explicit self operative default--Decreed amount to be not paid to respondent--Connotations--Firstly, direction of trial Court for depositing of decretal amount was not stayed--Secondly, out of the decretal amount if so deposited, a sum was not to be paid to the judgment debtor--Decree holder did not deposit the amount in terms of the decree--During intervention period of 10 years, no effort was made by decree holder or to seek extension of time from Appellate Court. [Pp. 927, 928 & 929] A, B & C
Ch. Muhammad Nawaz Sulehria, ASC for Appellants.
Sardar M. Ishaq Khan, Sr. ASC Ch. Khan Muhammad Bajwa, ASC for the Respondent.
Date of hearing: 17.4.2007.
Judgment
Tassaduq Hussain Jillani, J.--This appeal by leave of the Court is directed against the judgment dated 1.01.2002 vide which the civil revision of the respondent-plaintiffs was allowed, the period for deposit of pre-emption money was extended and suit was decreed.
Facts in brief are that respondent-plaintiffs suit for pre-emption qua the land subject-matter of this appeal was decreed by the trial Court on 22.07.1984 subject to deposit of Rs. 84,800/- by or before 17.09.1984 after deducting Zar-i-Panjum, if any. The said judgment and decree was challenged in appeal by the respondent-plaintiff insofar as the quantum of sale consideration was concerned. The precise contention of respondent-plaintiff was that the sale consideration was Rs. 55,000/- and not as claimed by the defendant. While admitting the appeal, the Appellate Court did not suspend the operation of the judgment and decree but directed that the decretal amount to the extent of Rs. 25,000/- shall not be paid to the vendor. The decree holder instead of depositing the entire amount in terms of the decree deposited only a sum of Rs. 55,000/- as sale consideration. Not only the appeal was dismissed but even the suit met the same fate for non-deposit of the pre-emption money within the time allowed by the trial Court. This was vide judgment and decree of the learned District Judge dated 26.06.1994. This was challenged before the High Court by way of a civil revision which has been allowed vide the impugned judgment dated 25.01.2002.
Leave was granted by this Court vide order dated 24.08.2004:
"After hearing the learned counsel for the parties, we are inclined to grant leave to appeal inter alia to consider the question of law. whether the High Court was legally competent and justified to extend the period for deposit of part of pre-emption amount specifically directed by the trial Court to be deposited before a particular date and upheld by the appellate forum. Order accordingly."
(i) 1975 SCMR 1426
(ii) Haji Nawab Khan v. Fazal-ur-Rahman (1976 SCMR 502)
(iii) 1997 SCMR 420
(iv) Muhammad Taj v. Subedar Muhammad Rasheed (1989 SCMR 505).
Learned counsel for the respondent-plaintiff, on the other hand, submitted that the learned Appellate Court while admitting the appeal and issuing notice to the appellant-defendants did not direct him to deposit the entire decretal amount; that since he had challenged the quantum of the sale consideration, the learned Appellate Court should have suspended the judgment and decree to the extent of deposit of sale consideration but instead passed an order on 30.08.1984 to the effect that, "the decreed amount to the extent of Rs. 25.000/- be not paid to the respondents". According to him, the plaintiff was misled by the tenor of the afore-referred order and the non-deposit of amount within the period directed by the trial Court (on or before 17.09.1984) should not non-suit him. He further contended that the Appellate Court had sufficient discretion to grant reasonable time to deposit the amount by extending the period which power the Court did not exercise for reasons untenable in law. In such a circumstance, according to him, the learned Revisional Court amptly interfered with and reversed the judgment and decree of the Appellate Court and thereby extended the period within which the respondent-plaintiff was directed to deposit the sale consideration. The impugned judgment on that score, he argued, is unexceptionable. In support of the submissions made, learned counsel relied on Bhai Khan v. Allah Bakhsh (1986 SCMR 849), Nazir Ahmad v. Ghulama (1987 SCMR 1704), Dost Muhammad v. Nazar Hussain Khan (1984 SCMR 325).
We have heard learned counsel for the parties and have given anxious consideration to the submissions made.
The pre-emption suit was decreed on 22.07.1984 by the Civil Judge 1st Class Pasroor, the operative part of which carried a default clause as under:
"As a result of my findings on the above discussed issues the suit of the plaintiff is decreed subject to the payment of Rs. 84,800/-including Zare-Punjam and costs of registration of the sale-deed. The plaintiff is directed to deposit the above amount after deducting Zare-Punjam if already deposited by him on or before 17.09.1984 failing which the suit of the plaintiff shall, stand dismissed."
The respondent-plaintiff challenged the quantum of sale consideration by way of an appeal in which notice was issued to the appellant-defendant. No stay was granted against the judgment and decree and the Court merely directed that, "the decreed amount to the extent of Rs. 25,000/- be not paid to the respondents". The appeal was finally dismissed on 26.06.1994 and while doing so, the suit was also dismissed as the learned Appellate Court was of the view that the provisions of Order 20, Rule 14 CPC are mandatory and on account of failure of the pre-emption to deposit the pre-emption money within the time allowed by the trial Court "the operation of which was never suspended, had entailed in the dismissal of the suit and the suit of the plaintiff stood dismissed automatically." In reversing the judgment and decree of the learned Appellate Court vide the impugned judgment and decreeing the suit, the learned High Court invoked provisions of Section 22 of the Punjab Pre-emption Act, 1930, read with Order 41, Rule 13 of CPC and relied on a judgment of this Court reported at Muhammad Arshad v. Ch. Fazal Haq (1991 SCMR 2149).
In Muhammad Irshad (supra), which found favour with the learned High Court in passing the impugned judgment, this Court allowed 10 days time to the pre-emptor to deposit the sale consideration by reiterating the view taken in Khurshid Akbar v. Mian Manzur Ahmed (1982 SCMR 824) and Bhai Khan v. Allah Bakhsh (1986 SCMR 849) to the effect that normally the Appellate Court should grant reasonable time to the pre-emptor while dismissing the appeal but it can in exceptional cases refuse to exercise its discretion in his favour. The view that the Appellate Court has such a discretion was followed in Nazir Ahmad v. Ghulama (1987 SCMR 1704), Dost Muhammad v. Nazar Hussain Khan (1984 SCMR 325) and 1976 SCMR 50.
In Bhai Khan (supra), the learned High Court did not extend time as it was of the view that the appellant was guilty of gross negligence in not brining his said application to the notice of the learned District Judge and had for mala fide considerations contested the point of deficiency in the Court with a view to prolong the appeal and thus to gain time. The relief was thus refused.
In Dost Muhammad v. Nazar Hussain Khan (1984 SCMR 325), there was no self operative default clause in the decree and it stipulated that, "if the plaintiffs failed to pay or deposit in Court Rs. 4,00,000 towards the price of the land by 6th of May, 1978 their suit would be dismissed." The decree thus, did not envisage an automatic dismissal wherein normally the expression used is that in the event of default the suit "shall stand dismissed."
Similarly in Nazir Ahmad v. Ghulama (1987 SCMR 1704 at 1708), in absence of a self operative default clause in the consent decree extended time which was upheld by this Court and in doing so it relied on a previous judgment reported at Khurshid Akbar v. Mian Manzur Ahmed (1982 SCMR 824).
In the case in hand, there was an explicit self operative default clause which stipulated that if the decree holder did not deposit the sale consideration on or before 17.09.1984, the suit shall stand dismissed. The decree was passed on 22.07.1984, the appeal against the said judgment was admitted to regular hearing on 30.08.1984. There was no stay order issued against the decree. The direction of the Appellate Court at the time of admitting the appeal that "in the meanwhile decreed amount to the extent of Rs. 25,000/- be not paid to respondents" had two connotations. Firstly that the direction of the trial Court for deposit of the decretal amount by 17.09.1984 was not stayed and the decree holder had to deposit it in terms of the said order. Secondly out of the decretal amount if so deposited, a sum of "Rs. 25,000/- was not to be paid to the judgment debtor. Admittedly, the decree holder did not deposite the amount in terms of the decree and only deposited Rs. 55,000/-. The appeal was ultimately decided and dismissed on 26.06.1994. During the intervening period of 10 years (from 26.07.1984 to 26.06.1994), no effort was made by the decree holder or to seek extension of time from the Appellate Court and in the event of refusal from the next higher Court. Instead, during this interregnum stretching over a period of a decade, the appeal was dismissed in default thrice and thrice it was restored. This contumacious conduct reflects adversely on his bona fides and could not have entitled him to a discretionary relief which the Appellate Court was competent to grant. The judgment and decree of the learned Appellate Court dismissing the appeal as also the suit filed by the respondent-plaintiff, in the afore-referred circumstances, was unexceptionable and could not have been interfered with by the learned High Court vide the impugned judgment.
In Muhammad Taj v. Subedar Muhammad Rasheed (1989 SCMR 505), this Court upheld the judgment of the High Court dismissing the suit of the pre-emptor on the ground that in absence of a valid extension of time by the competent forum after time for payment/deposit of pre-emption money had run out, the amount could not be deposited and that the pre-emptor's decree became void.
In Haji Nawab Khan v. Fazalur Rahman (1976 SCMR 502), the Court considered the effect of the default clause in the decree and came to the conclusion as follows:
"In any event, it is clear that no relief could be granted, because, if the decree of the trial Court stated that in the event of the default in the payment the suit shall stand dismissed, then, on the happening of the default, the decree became operative of its own force and the time fixed thereunder could not be extended thereafter."
"An appellate Court is competent to extend time for deposit of the pre-emption money either during the pendency of an appeal before it or at the time of disposing of the same notwithstanding that the time mentioned in the pre-emption decree for the said purpose may have expired. Furthermore, an appellate Court may extend time for the above purpose at the stage when an appeal is not admitted for regular hearing by it or a petition for leave to appeal is not granted and such an extension of time will not be nullified by the factum that the appeal or the petition for leave to appeal is subsequently dismissed summarily. However, neither a trial Court nor an appellate Court can extend time for deposit of pre-emption money once the matter stands disposed of and it is no longer pending before it. In such an event, the direction contained in the original decree to the effect that in case of failure to deposit the pre-emption money the suit shall stand dismissed, becomes `effective. However, the above rule seems to be subject to one exception, namely, that if an appellate Court varies the finding of the Court below on the quantum of the pre-emption money, in other words it either increases or reduces the same, in that event, it should fix fresh reasonable time for deposit of the pre-emption money and in the absence of any such fixation, the pre- emptor may deposit the same within reasonable time. An Appellate Court is not bound to grant extension of time in every case. "
In Rehman ud Din v. Sahibzada Jehanzeb (2004 SCMR 418), this Court upheld the view that if the pre-emptor failed to deposit the pre-emption money on account of his negligence, he was rightly non-suited.
In Riaz Hussain v. Nazar Muhammad (2005 SCMR 1664), the Court again upheld the judgment of the High Court wherein the pre-
emptor was non-suited on the ground of non-deposit of pre-emption money within time and for filing belated appeal.
(A.S.) Appeal allowed.
PLJ 2007 SC 930
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
MUZAFFAR HUSSAIN & others--Appellants
versus
IFTIKHAR HUSSAIN etc.--Respondents
C.As. Nos. 958 to 965/2002 & Cr.O.P. Nos. 40 to 42/2003, decided on 27.3.2007.
(On appeal from the judgment dated 1.6.2000 of the Lahore High Court, Lahore, passed in W.P. No. 12-R/2000).
Punjab Tenancy Amendment Act, 1952--
----Ss. 114 & 2--Evacuee Property and Displaced Persons Law Repelaed Act, (XIII of 1975), S. 3(2)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Right of occupancy--Appreciate the legal and factual aspects of controversy--Contentions--Entitlement of entire land in their occupation and had been deprived of without lawful justification--Validity--No ambiguity--Provisions as contemplated in S. 2 of Punjab Tenancy Amendment Act, 1952--Denying of fact--Occupancy tenant will be considered as owner for the remaining 1/2 share in the occupied land--Appellants were occupancy tenants and they were accommodated accordingly and half of the land was allotted to the respondents which could have been done by notified officer as the forums available in the hierarchy of revenue laws are not concerned with it--Respondents having preferential rights on account of having abandoned their agricultural land in India, were entitled for allotment of the land in-question against their claim which was available for allotment--After satisfaction of their claim the appellants may approach the proper forum for allotment of remaining land subject to all legal exceptions--Appeals dismissed.
[Pp. 932 & 933] A & B
Mr. Yousaf Farooq, ASC and Mr. Iqbal Ahmed Qureshi, AOR for Appellants.
Mr. Maqbool Ellahi Malik, Sr. ASC for Respondents.
Date of hearing: 27.3.2007.
Judgment
Javed Iqbal, J.--The above captioned appeals with leave of the Court and criminal original petitions are directed against the judgment dated 1.6.2000 whereby the writ petitions preferred on behalf of appellants have been dismissed.
"This order shall dispose of eight (08) petitions filed against the order dated 1.6.2002 of the Lahore High Court, Lahore. Petitioners in the captioned petitions are occupancy tenants from generations. Allegedly, the Notified Officer had assumed the jurisdiction which did not vest in him to allot the land in dispute. It is contended that the order impugned is patently illegal and even no notice was issued to the petitioners.
Points raised need elaborate considerations, therefore, we are inclined to grant leave to appeal in all these petitions to consider the legality of the judgment sought to be impugned in all these cases. It is reported that two petition Nos.1908 and 1909 of 2002 are barred by time. We leave the question open to be determined at the time of the final disposal of these petitions. Status quo shall be maintained in the meanwhile and the operation of the impugned judgment shall remain suspended."
Mr. Yousaf Farooq, learned ASC entered appearance on behalf of appellants and contended that the Notified Officer had absolutely no jurisdiction to dilate upon the controversy and decide the same and therefore, his orders qua allotment were ab initio void. It is urged emphatically that the dispute in question could have been resolved by the forums available in the revenue hierarchy as the Notified Officer had no concern whatsoever with the dispute after the repeal of evacuee laws. It is argued that proper opportunity of hearing was not afforded by the Deputy Settlement Commissioner/Notified Officer and therefore the appellants were condemned unheard. It is contended that it is a case of fraud and forgery which aspect of the matter has been ignored by the learned High Court resulting in serious miscarriage of justice. It is next contended that no land could have been allotted in favour of respondents after the repeal of evacuee laws by violating the cut-off date i.e. 1.7.1974. It is argued that under Section 3 of the Evacuee Property and Displaced Persons Laws Repealed Act, 1975 the appellants should have been offered the land available by following the prescribed mechanism in the said Act and in case of their refusal it could have been disposed of in any manner as may be deemed fit and proper by the authority concerned but no such offer was ever made and therefore, the question of allotment in favour of respondents does not arise. It is also pointed out that the ancestors of the appellants were occupancy tenants since the time immemorial and they were not paying any battai as pursuant to Section 114 of the Punjab Tenancy Amendment Act, 1952 they were owners of the land in question which could not have been allotted in favour of any other person.
Mr. Maqbool Ellahi Malik, learned Sr. ASC appeared on behalf of respondents and while controverting the view point as canvassed at bar on behalf of the appellants supported the judgment impugned for the reasons enumerated therein with the further submission that no land whatsoever was available for allotment pursuant to the provisions as contemplated under Section 3(2) of the Displaced Persons Laws Repealed Act, 1975 and matter regarding their entitlement was pending. In order to support his esteemed views reliance has been placed on Hakim Ali v. Ghulam Muhammad (1995 SCMR 549).
We have carefully examined the respective contentions in the light of relevant provisions of law and record of the case. Let we mention here at the outset that all the contentions raised on behalf of appellants were never agitated before the learned High Court. The case of appellants before High Court in brief was that the appellants had been given share in the land in their possession whereas they were entitled for the entire land in their occupation and have been deprived of the remaining half without lawful justification. On legal plain there is no ambiguity whatsoever and the provisions as contemplated in para 13(b) of Section 2 of the Punjab Tenancy Amendment Act, 1952 is capable enough to meet all such sort of eventualities. There is no denying the fact that the evacuee share will be and the occupancy tenant will be considered as owner for the remaining 1/2 share in the occupied land. Admittedly the appellants were occupancy tenants and they were accommodated accordingly and half of the land was allotted to the respondents which could have been done only by the Notified Officer as the forums available in the hierarchy of revenue laws are not concerned with it. The Deputy Settlement Commissioner/Notified Officer has rightly interpreted the provisions as contained in Section 114 of the Punjab Tenancy Amendment Act, 1952 in the order dated 17.7.1999 which is reproduced herein below for ready reference:--
"16. Under Section 114 of Punjab Tenancy Amendment Act, 1952, Para (b) of Section-2, the right of occupancy tenants of land lords has been considered therein, both occupancy tenant and landlord have been declared as full owner according to the Battai provided in the revenue record. The evacuee will be owner to one-half and occupancy tenants will be considered as full owner to other one-half. (1991 SCMR 164 is relied upon). The share of Battai provided in the revenue record produced by the Patwari shows that the share of Battai was one-half between the landlord and the tenant."
The conclusion as arrived at by the Notified Officer is in consonance with the dictum laid down in case Zahoor Hussain v. Abdul Hamid (1991 SCMR 164) and 1995 SCMR 549 (supra).
The upshot of the above mentioned discussion is that the respondents having preferential rights on account of having abandoned their agricultural land in India were entitled for allotment of the land in question against their claim which was available for allotment. After satisfaction of their claim the appellants may approach the forum concerned for the allotment of remaining land subject to all legal exceptions. The order dated 17.7.1999 of Notified Officer has been upheld by the learned single Judge of Lahore High Court, Lahore in chambers vide judgment impugned which being well based does not warrant interference. The above captioned appeals and petitions being devoid of merits are dismissed.
(A.S.) Appeals dismissed.
PLJ 2007 SC 933
[Appellate Jurisdiction]
Present: Javed Iqbal, M. Javed Buttar & HAmid Ali Mirza, JJ.
Mst. HAZAN and 48 others--Appellants
versus
GOVERNMENT OF BALOCHISTAN and 383 others--Respondents
C.A. No. 1030 of 1999, decided on 3.4.2007.
(On appeal from the judgment dated 23.12.1996 of the High Court of Balochistan, Quetta passed in C.P. No. 200 of 1995).
West Pakistan Land Reforms Regulation, 1959--MLR No. 64 of 1959--
----Para-21(1)(2)--Balochistan Land Reforms Rules, 1973, R. 12--Entitlement of--Predecessors-in-interest--Question of Law--Land in-dispute was Jagir'--Nature of properties--Valuable rights accrued in favour of persons--Determination--Assailed--Appellants or their predecessors-in-interest at the relevant time were recorded in the record of rights, as Jagirdars and properties in dispute were not subject to assessment of Land Revenue--Land Reforms Authorities were under a duty to determine whether the appellants or their predecessors-in-interest, at the relevant time were entitled to benefits--No such exercise was taken by any authority and it had not been determined under Para 21 of MLR 64 of 1959--Appellants or their predecessors-in-interest were not entitled to retain any area of theirJagirs' because they were owners or possessed of irrigated land--Benefit contemplated under Para 21 was conferred on all such Jagirdars automatically and the provisions was self executory--Land Reforms Authorities after having determined the nature of properties as `Jagirs' were duty bound to undertake the exercise under MLR 64 of 1959--Land Reforms Authorities acted illegally was not determining the entitlement of the appellants or their predecessors-in-interest under Para 21 of MLR 64 of 1959--Deputy Land Commission of District or law authority would immediately initiate proceedings for determining the rights/entitlement of the appellants or their predecessor-in-interest--It was very old matter, it would be finalized within six months--Appeal allowed.
[Pp. 943 & 944] A, B, C & D
Mr. H. Shakeel Ahmed, ASC for Appellants.
Mr. Salahuddin Mirza, A.G. Balochistan, Mr. Mehmood Raza, Addl. A.G. Balochistan for Official Respondents No. 1 to 9.
Mr. Basharatullah, Sr. ASC and Mr. M.N. Kohli, AOR for Private Respondents No. 10-384 except 22 to 26.
Date of hearing: 9.2.2007.
Judgment
M. Javed Buttar, J.--This appeal, by leave, is directed against the judgment dated 23.12.1996 of the High Court of Balochistan, Quetta whereby Constitutional Petition No. 200 of 1995 instituted by the appellants against various within mentioned orders passed by the Revenue/Land Reforms Authorities, under MLR No.64 (West Pakistan Land Reforms Regulation, 1959), transferring the land in dispute to private respondents, was dismissed on merits as well as on laches.
In pursuance of the various orders passed by the Revenue/ Land Reforms Authorities, which have been mentioned in the impugned judgment, lands allegedly owned by the appellants, situated in Mouzas Khattan, Bhagai, Kolang, Rustam, Chattani, Pir Ahmad Shah and Pear, Sub Tehsil Khattan, District Bolan, were transferred in the names of private respondents, in purported exercise of jurisdiction under the above referred Regulation.
The case of the appellants was and is that they were owners of the agricultural land in dispute situated in above mentioned different Mouzas which were acquired by their predecessors through purchase, gifts, blood-money, decrees of the Courts as well as sannads/instruments of title, issued by the then Khan of Kalat, that at the time of Settlement of area, which was carried out in the year 1958, in the revenue record, the names of their predecessors-in-interest were recorded as owners whereas the names of the private respondents or their predecessors-in-interest were recorded as their tenants-at-will but the Deputy Commissioner of District Kachi (now Bolan) vide Letter No. SK 746-49 dated 30th October, 1983, directed Assistant Commissioners, Dhadar and others, in whose jurisdiction appellants' lands were situated, that as under Regulation 64 of 1959, appellants' lands being `Jagirs' stood forfeited, therefore, they should implement the Notification No. DSH 538-65/4395-LC dated 29th October, 1965. According to appellants, in pursuance of said letter, without issuing notices to them, entries in the revenue record from their names, were cancelled and mutations were attested in favour of private respondents, by Revenue Officers and on coming to know about it, they approached the Member, Board of Revenue, by filing revision petition under MLR 115 read-with Rule-12 of Balochistan Land Reforms Rules, 1972 but the said petition was dismissed on 16th April, 1995, which lead to the institution of above referred Constitutional petition.
The action against the appellants was taken under MLR No. 64 of 1959 promulgated on 7.6.1959, which was to take effect at once except in certain areas to be notified in the Official Gazette by the West Pakistan Land Commission under the above said Regulation and in paragraph-21 of the said Regulation, all Jagirs stood abolished and the land vested in the Government free from any encumbrances. It has also been brought on the record that the then Deputy Commissioner, Kachhi District, issued instructions to the Nazims vide his Memorandum No.6263-56 Arbitrators dated 27.4.1966 for treating the lands in question as Jagirs within the meaning of MLR No. 64 of 1959, which stood abolished under the said Regulation w.e.f. 7.2.1959 and Memorandum No.6298-99/Rev-5 dated 26.4.1966 was addressed to the Commissioner, Kalat Division who at the relevant time was Land Commissioner under the provisions of the said MLR from whom directions were solicited about the ownership rights of the lands in the area in dispute in Tehsil Dhadar. The Commissioner through Memorandum No.8308-11/L/64/A/Rev.dated 25.6.1966 informed the Deputy Land Commissioner that the lands in question were not Jagirs within the meaning of MLR 64/1959, therefore, the directives issued by him to the Nazims were illegal and should be withdrawn. Thereafter, the Deputy Land Commissioner issued fresh instructions to Nazims and Tehsildars directing them not to act under the earlier instructions.
It seems that thereafter, some of the tenants/respondents or their predecessors-in-interest filed separate writ petitions before the High Court of West Pakistan at Lahore challenging legality of the order of the Deputy Land Commissioner withdrawing his memorandum dated 27.4.1966 which were dismissed in limine on 26.7.1967. The said order was brought under challenge before this Court in which leave to appeal was granted on 9.10.1967 (1970 SCMR 81). Subsequently, however, leave granting order was recalled as certain compliances were not made by the Advocate-on-Record of the said respondents. Thereafter, allegedly the respondents/tenants did not raise any dispute in respect of the property in dispute in any manner whatsoever.
The case of the appellants was that the land in dispute was not `Jagir' within the meaning of MLR 64 of 1959, therefore, the same was out of purview of para 21 of above Regulation and was wrongly treated as having vested in the Government, that after the above mentioned instructions dated 25.6.1966, issued by the Commissioner, and after dismissal, of the writ petition of the tenants on 26.8.1967, the Deputy Land Commissioner, Kachhi illegally issued the above said orders dated 30.10.1983 for treating the appellants' properties as Jagirs and for treating them as having been forfeited under para-21 of MLR-64 of 1959 and illegally directed the Naib Tehsildar Sunni to mutate the properties belonging to the appellants in favour of the private respondents, who in pursuance whereof sanctioned mutations in favour of the respondents as owners.
We have heard the learned counsel for the appellants, the learned Addl. A.G. Balochistan for official respondents, the learned Sr. ASC for private respondents 10-384 except Respondents 22 to 26, at length and have also seen the available record. The un-represented private respondents are proceeded ex-parte.
It is submitted by the learned counsel for the appellants,--
(i) that the writ petition could not have been dismissed on the ground of laches, for the said objection was not raised in that writ petition as a consequence of which the appellants did not have the opportunity to explain the delay which occurred in filing the writ petition. (Relies on Pakistan Post Office vs. Settlement Commissioner and others (1987 SCMR 1119);
(ii) that no opportunity was given to the appellants before taking action to prove that the properties in question were not Jagirs within the contemplation of the said expression as used in MLR 64 or other relevant laws;
(iii) that the previous decision of the Land Commissioner dated 25.6.1966 had attained finality as the writ petition against the same stood dismissed, therefore, the issue could not be reopened, being past and closed transaction;
(iv) that in view of this order of the Commissioner, the provisions of MLR 64 of 1959 could not be invoked on the ground that the same were self-executory after their repeal through MLR 115 of 1972;
(v) that the principle decided in the case of Nawabzada Malik Habibullah Khan Tiwana and others vs. The Province of West Pakistan and another (PLD 1967 Lahore 533) as to definition of Jagirs was not correctly applied to the facts and circumstances of this case;
(vi) that entries in the ownership columns in the Record of Rights, against the names of the appellants or their predecessors-in-interest, as "Jagirdars" could not be taken to mean that the lands in dispute were `Jagirs';
(vii) that no evidence or material was available with the Authorities to establish that the lands were grants within the meaning of MLR 64 of 1959 so as to deal with them as `Jagirs' under the said MLR;
(viii) that no notice before changing entries, was given to appellants, as such, they were condemned unheard, therefore, question of laches did not arise; and
(ix) that even if the appellants properties are to be treated as Jagirs and are deemed to have been forfeited/acquired and vested in the Government free from any encumbrances, as held by the High Court in the concluding paragraph, immediately after 3rd October, 1959, or from the date of promulgation of the MLR 64 of 1959 i.e. 7.6.1959, still the appellants' are entitled to the benefits conferred upon the land owners, under sub-para (2) of para-21 of the above said Regulation, whereunder such land owners were entitled to retain as full owners, areas upto 500 acres of irrigated land or 36000 P.I.U's, which ever was more which limit was inclusive of their other holdings and this statutory provision which is self-executory in-nature escaped the notice of all the forums below including the Hon'ble Judges of the High Court and no exercise has been undertaken by the Land Reforms Authorities to determine that to what extent the alleged Jagirdars'/appellants or their predecessors-in-interest were entitled to retain lands from such forfeited Jagirs under sub-para (2) of para 21 of MLR 64 and to that extent, the lands could not be transferred in favour of private respondents.
The learned
Addl.A.G. as well as the learned Sr. ASC representing the private respondents while vehemently opposing the appeal and supporting the impugned judgment, have argued that in view of the plentiful documentary evidence available on the record, the High Court as well as the Land Reforms Authorities and the Revenue
Authorities correctly determined the nature of the properties in dispute as
Jagirs'. The learned Addl.A.G, Balochistan has however, frankly conceded that after treating the properties in dispute asJagirs', the appellants or their predecessors-in- interest were entitled to the benefits conferred to such owners/Jagirdars, under sub para (2) of para 21 of MLR 1959 and the land
Reforms Authorities ought to have determined such rights and the extent to which they were entitled to retain areas from such "Jagirs" as full owners before transferring the land in dispute in favour of private respondents.
The learned Sr. ASC representing the private respondents, on the other hand, has submitted that this issue has been raised by the appellants for the first time before this Court and no body should be permitted to setup a new case at this stage.
Learned counsel for the appellants, at this stage, stood up and intervened that he would not press for a decision from this Court that the properties in dispute were not "Jagirs" and they were out side the purview of MLR 64 of 1959, if the appellants or their predecessors-in-interest, are held entitled to the benefits given to such Jagirdars under sub para (2) of para 21 of MLR 64 of 1959.
The learned Judges of the High Court besides holding the appellants' Constitutional petition to be badly suffering from laches, gave findings against the appellants on merit as well by holding that the properties in dispute were "Jagirs", in the following manner: --
"Although we have found petition not maintainable for the reasons, noted herein-above, but keeping in view the interests of parties, we also desire to examine the case of merits. As it has been observed herein-above, that in the Settlement of Tehsil Dhadar, petitioners were recorded as Jagir Holders in 1958-59, but they did not challenge such entries subsequently before any competent forum. In the meanwhile Regulation 64 of 1959, was promulgated with effect from 3rd October, 1959, with its commencement, at once, except in the unsettled Districts of Quetta and Kalat
Divisions, where it shall come into force on such date and dates, as the
Commission may have notified in the official Gazette etc. As for as Dhadar where land in question is situated, is concerned, at that time, it was part of
Kalat Division being Tehsil of District Kachhi. Mr. Yakub Khan Yousafzai, the then Advocate General, although had referred to Notification dated 29th
October, 1969, according to which, Regulation 64 of 1959, was enforced in
Dhadar and Jhal Magsi Tehsils w.e.f. 7th February, 1959, but in our opinion, there was no necessity for issuance of such Notification, as for as Tehsil
Dhadar is concerned, because from the admitted facts of case, we can see that before coming into being of Regulation 64 of 1959, Tehsil Dhadar was a settled area. Anyhow, even if for sake of arguments reliance is placed on said
Notification, again it leads us to conclude that from 7th February, 1959, Regulation 64 of 1959, was made applicable over there with its commencement, at once. We have carefully surveyed various provisions of Regulation 64 of 1959, but we failed to notice any provision, available therein, to hold that after its promulgation, concerned revenue authorities with regard to abolition of
Jagirs' were required to do any overt act, namely; by way of inviting claims of owners to determine, whether, they have given the property asJagir' to the occupants whose names are recorded in revenue record or by obtaining or getting filled any particular forms from any of them primarily interested in lands etc.
Therefore, we are of the considered opinion that any Statute, provisions of which are not required to operated by subsequent act, is deemed to be self executory. Thus even without separately directing forfeiture of interest in
"Jagirs" as for as Holders of Jagirs' are concerned, their rights would be deemed to be extinguished, on the day when law i.e. Regulation 64 of 1959, was promulgated. It is evident from para 2(vi) (a) of the Regulation that wordJagir' includes any grant of land by way of Jagir'. Actually by using the wordincludes' Law givers, had intention to include any grant of land, allowed to any person on whatsoever consideration, shall be treated as Jagir'.
In this behalf Hon'ble Lahore High Court in a ceremonial Judgment reported in
PLD 1967 Lah 533, interpreted wordJagir' with its reference to Punjab
Abolition of Jagirs Act, 1952. At this stage, it may be mentioned that under the said Act, as well as under Regulation 64 of 1959, to some extent, definition of word Jagir' is identical. While interpreting this expression, definition from other corresponding Statutes of the wordJagir' was also examined and finally it was held as follows:--
We have held that pardon or exemption from land revenue, or in other words, the grant to retain the land revenue himself was a Jagir in the ordinary sense of this word and was, therefore, hit by the provisions of the Punjab Abolition of Jagirs Act, IX of 1952. A part from the above, however, we are also of the opinion that if not falling within the ordinary meaning of the word Jagir' the present case was covered by the extended meaning of the word as given in Section 2(1) of the Act. According to the said section
"any assignment or release of land revenue" is also a Jagir. This is clearly a case of release of land revenue, because when the grantee is being given exemption from paying land revenue or when he is being given a land revenue free estate, it means that he is being released from the liability to pay land revenue. Learned counsel for the petitioners submitted that the phrase
"release of land revenue" has a technical meaning and is used in such cases where land revenue is remitted to the owner himself. He states that it relates to those estates which are Mu'afis. On the other hand, when it is assigned to or released in favour of a third person, (that is a person other than the owner) then it is known as a Jagir. In our opinion, there is no need to import this technical distinction in the present case. As will be evident from the description of various land tenures as reproduced from various text-books in the earlier part of this judgment, the distinction, which the learned counsel is trying to maintain, has ceased to exist with the passage of time.
And how pardon of the land revenue is also known as Mu'afi or Jagir. Anyhow, without conceding that release of land revenue has any technical meaning, as is being suggested by the learned counsel for the petitioners, in the present case, the intention of the Act is not to give that technical meaning to it, because the words "assignment" or "release" have been prefixed by word "any". The use of the word "any" shows that the intention is not to give the words following it any restricted or technical meaning, but rather to enlarge them. In this way, every case where land revenue has been released whether in favour of the owner or a third person, will be covered by this phrase. It was laid down in Wooler v. North
Eastern Breweries (1), thatany' is a word which excludes limitation or qualifications. It connotes wide generality. The same was the view expressed by
Fry, L.J. in Duck v. Bates (2). This proposition of law was accepted as correct by a Full Bench of this Court reported in Dr. Cowas C. Mehta v. Additional
Settlement and Rehabilitation Commissioner and others (3). In that case, a question arose as to whether occupants of houses which had been declared as big mansions were eligible for protection given in Section 30 of the Displaced
Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958). The wording of the said section was to the effect that protection was available to any person who was in possession of "any", evacuee house, etc."
Farooqi, J., who wrote the leading judgment held as follows at page 952:--
"Now, in the definition of the term house' an exclusion had been made in respect of residential premises which might be declared under para. 16 as a big mansion. That limitation of the definition was known to the framers of the Act and, therefore, when they came to enact Section 30, it appears to us that they advisedly used the wordany' before evacuee house'. It was held by L.J. Fry in the case of Duck v. Bates, that the wordany' excludes limitation or qualification. It is true that the generality of the expression of the word may be restricted by the subject-matter or the context. But in this case it is clear to us that such a restriction was not contemplated.
Respectfully following the said cannon of interpretation, we hold that in the instant case as well as Jagir `includes' 'any' assignment or release of land revenue and the intention was to exclude any limitation or qualification. The two words "includes" and "any" in the context indicate that the intention was to make the concept of Jagir quite wide."
Testing the case in hand in view of above definition, we can safely conclude that petitioners had been enjoying Jagir hold interest in the land in question, free of revenue, as they never paid revenue tax, Dalbash etc. because no document in this behalf, has been placed on record for our perusal. Likewise, presuming for sake of arguments that if petitioners were the owners of property in their own rights, they would have definitely filled up declaration forms under Regulation 64 of 1959 or subsequently under Regulation 115 of 1972, or under Land Reforms
Act, 1977, but they had not stated a single word in this behalf, in memo of petition nor copy of any forms or the decision made by Authorities of Land
Commissioner ever in their favour, has been placed on record. Therefore, merely mentioning that they purchased the land in pursuance of sale Deeds or otherwise, they got it as a blood compensation, would not be sufficient to declare them owners of property. As such, it is held that immediately after 03rd October, 1959, all Jagirs hold rights' in the settled area of Kalat
Division including Tehsil Dhadar, stand abolished under para-21 of Regulation 64 of 1959 and any right, interest or estate granted, assigned, released, created or affirmed by any suchJagir' had reverted to Government, free from any encumbrance or charge. Since the Government had acquired ownership of land in question after forfeiting theJagir' hold rights' of petitioners therefore, its functionaries had an obligation to ensure distribution of property amongst occupants and they could have not done so, unless revenue record has not been corrected by concerned Revenue staff. Therefore, on 30th October, 1983, the
Deputy Commissioner, Kachhi (Now Bolan) with lawful authority issued directions to his subordinate revenue staff to record respondents as owners of property and under the circumstances, petitioners have no justiciable claim viz-a-viz to private as well as official respondents.
Thus, for the discussion, made herein-above we see no substance in petition, as such, writ as prayed for, is declined and petition is dismissed.
There shall however, be no order, as to costs".
We have given our anxious consideration to the entire facts and circumstances of the case and have carefully examined the reasons given by Hon'ble Judges of the High Court in recording findings on merits against the appellants (reproduced above) and to the arguments of the learned counsel for the parties advanced before us. It is an admitted position that appellants or their predecessors-in-interest, at the relevant time were recorded in the Record of Rights, as Jagirdars and the properties in dispute were not subject to assessment of Land Revenue, hence the Hon'ble Judges of the High Court after having carefully examined the relevant laws correctly held that the properties in dispute were `Jagirs' and under para 21 (1) of MLR, 64 of 1959, the same stood automatically abolished and reverted to the Government free from any encumbrance or charge, w.e.f. 3rd October, 1959.
The matter, however, does not end here. Sub-para 2 of para 21 of MLR 64 of 1959, for the purposes of ready reference, is reproduced below:--
"(2) If a jagir is, wholly or partly, in the form of a grant of land, the person in favour of whom the jagir subsisted, shall be entitled to retain, as full owner the whole of such land if the area, together with any other area which he may own or possess in any other capacity, is equal to or less than five hundred acres of irrigated land, or thirty-six thousand produce index units, whichever is more, and if the area exceeds that limit, then such portion, not exceeding the limit, as he may select, and the excess land shall revert to Government free from any encumbrance or charge, without payment of any compensation, and shall be disposed of by the Commission in the manner provided by or under this Regulation".
Jagirs' grants etc.
stood abolished and reverted to the Government under sub-para 1 of para 21 of the above mentioned Regulation and Land Reforms Authorities were under a duty to determine whether the appellants or their predecessors-in-interest, at the relevant time, were entitled to those benefits or not but strangely enough, as frankly admitted by the Addl. A.G. Balochistan, no such exercise was ever undertaken by any Authority and so far it has not been determined that even under sub para 2 of para 21 of MLR 64 of 1959, the appellants or their predecessors-in-interest were not entitled to retain any area out of theirJagirs' because they were owners or possessed more than 500 acres of irrigated land or 36000 P.I.U's, in addition to the land under Jagirs', to disentitle them to claim any benefit under sub-paragraph 2. It may be mentioned here, that the benefit contemplated under the above said sub-paragraph 2 was conferred on all such Jagirdars automatically and the provisions was self executory. Therefore, we find no force in the arguments of the learned counsel for the private respondents that appellants should not be allowed to raise this issue at this stage, which in our view, stood automatically raised the moment the properties in dispute were treated asJagirs', thus it can be raised at any time. Even otherwise, the careful perusal of the record shows that the issue has not cropped up for the first time. The Commissioner, Kalat Division, in his above mentioned directions dated 25.6.1966, in para (B) (vii) had also considered para 21 (2) of MLR of 1959 and had concluded that :--"Since the Settlement Operations in Kachhi/Kalat are still going on, therefore, we cannot determine if a particular land owner possess lands, including the so called Jagirs of Kachhi District, exceeding 500 acres of irrigated land or 36000 produce index units".
Therefore, in any case, Land Reforms Authorities on their own, after having determined the nature of properties in dispute, as `Jagirs', were duty bound to undertake the exercise under sub para 2 of para 21 of MLR 64 of 1959. Furthermore, it is purely a question of law which can be allowed to be raised at any time.
(A.S.) Appeal partly allowed.
PLJ 2007 SC 945
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan & Saiyed Saeed Ashhad, JJ.
MIR GHIAS KHAN and others--Appellants
versus
CHIEF EXECUTIVE/MINISTER KASHMIR AFFAIRS/NORTHERN AREAS DIVISION, ISLAMABAD through Secretary KANA Division, Islamabad & others--Respondents
C.A. Nos. 1181 & 1182 of 2002, decided on 2.4.2007.
(On appeal from the judgment dated 18.12.2000 of the Federal Service Tribunal, Islamabad in Appeal Nos. 563 & 764-R/CS of 2000).
Civil Servants Act, 1973 (XXI of 1973)--
----S. 2(1)(b)--Civil Servants (Appointment, Promotion, and Transfer) Rules, 1973--R. 21(3)--Government Servants (Efficiency & Discipline) Rules, 1973, Rr. 5(i)(ii) & 6--Constitution of Pakistan, 1973, Arts. 212(2), 240 & 260--Leave to appeal, granted--Service matter--Jurisdiction of Tribunal--Seniority and promotion--Challenge to--Post was neither advertised nor was recommended for regular appointment--Terms and conditions of employees in the service of Northern Areas--Appellants were civil servants and could competently invoke the jurisdiction of tribunals--Held: Tribunal had the jurisdiction to entertain and decree the matters relating to the terms and conditions of their services--Appeals allowed. [P. 951] A
Mr. Fazal Ellahi Siddiqui, ASC (in C.A. 1181/02) Mr. M. Bilal, Sr. ASC (in CA 1182/02) & Mr. Ejaz Muhammad Khan, AOR for Appellant.
Mr. Naheeda Mehboob Ellahi, DAG, Mr. Abdul Karim Khan Kundi, ASC, Mr. Muhammad Munir Peracha, ASC, Raja Muhammad Asghar Khan, ASC Mr. Mehr Khan Malik, AOR Mr. Arshad Ali Ch., AOR, Ch. Muhammad Akram, AOR & Syed Zafar Abbas Naqvi, AOR, for Respondents.
Date of hearing: 14.12.2006.
Judgment
Abdul Hameed Dogar, J.--Through this common judgment we intend to dispose of Civil Appeal Nos.1181 &, 1182 of 2002 as identical questions of law and fact are involved. These appeals with leave of this Court are directed against the judgment dated 18.12.2000 passed by learned Federal Service Tribunal, Islamabad (hereinafter referred to as `the Tribunal') whereby Appeal No.563-R/CS of 2000 filed by appellant Imdad Ali Khan and Appeal No.746-R/CS of 2000 filed by appellant Mir Ghias Khan were dismissed on the ground of beyond its territorial jurisdiction.
Briefly, stated the facts leading to the filing of Civil Appeal No. 1181 of 2002 are that appellant Mir Ghias Khan was appointed as Assistant Executive Engineer (B-17) in the Northern Areas PWD on adhoc basis. This post was neither advertised nor he was recommended for regular appointment. Thereafter, in 1991, Federal Public Service Commission advertised the posts of Assistant Executive Engineers in the Northern Areas PWD. In September, 1991 appellant appeared in the examination and was declared successful. Thereafter, on 21st March, 1992 he was appointed as Assistant Executive Engineer on regular basis. The claim of the appellant is that sixteen other candidates who appeared alongwith him in the interview have been shown senior to him although he is already in service with effect from 11.8.1987. On 4.7.1992 he filed departmental appeal for assigning him seniority with effect from the date of his appointment i.e. 11.8.1987 with all back benefits but his request was turned down vide order dated 17.10.2000. Feeling aggrieved, he filed Appeal No.746-R/CS/2000 before the learned Tribunal which was turned down vide impugned judgment on the plea that the Northern Areas do not fall within the territorial definition of Pakistan,. therefore, the appellant is not employee of the Federal Government within the meaning of Articles 240 and 260 of the Constitution of Islamic Republic of Pakistan, 1973 and also is not civil servant within the ambit of Section 2(I)(b) of the Civil Servants Act, 1973.
As regard Civil Appeal No. 1182 of 2002 appellant Imdad Ali Khan was working as Divisional Forest Officer in the Northern Areas Forest Department, Gilgit. On 24.1.1991 he moved application to the Secretary, Ministry of Kashmir Affairs & Northern Areas, Islamabad, (hereinafter referred to as 'KANA Division') for the post of Director, Jhunjers, National Park Gilgit in (BPS-19) on the basis of his eligibility and merit including the threshold qualifications. In the meanwhile appellant was allowed move-over from BPS-18 to PBS-19 with retrospective effect from 1.12.1990 but was not promoted. Appellant agitated his grievance and filed Writ Petition No. 326/94 before the learned Peshawar High Court which was disposed of on 16.4.1994 with a direction to KANA Division to dispose of the representation of appellant within two months in accordance with law. In the light of that order, on 5.6.1994 KANA Division directed the Chief Commissioner for initiating the case of appellant for promotion in BPS-19. The Chief Commissioner asked the Conservator of Forest, Gilgit on 22.6.1994 to send proposal for filling up the post of Director K.N.P.(BPS-19) on prescribed forms duly completed in all respects. Finally vide order dated 11.1.1996 KANA Division promoted one Ghulam Tahir who was junior to appellant as Director, KNP (BPS-19) Forest Department in the Northern Areas and the appellant was superseded. Feeling aggrieved from the order dated 17.1.2000 whereby he was not promoted by the Departmental Promotion Committee, he filed Appeal No-563-R/CS of 2000 before the Tribunal but the same was dismissed vide impugned judgment.
Leave to appeal was granted in both the matters by this Court on 9.9.2002 to consider:--
"Whether the status of the petitioners is to that of the employees of Federal Government and they fall within the definition of `civil servant' in terms of Section 2 (l)(b) of the Civil Servants Act 1973 to be governed by the service laws of the Federation and can avail the remedy of appeal before the Federal Service Tribunal or they are members of establishment of Northern Areas and being not employees of the Federal government should approach the Civil Court having territorial jurisdiction."
We have heard Mr. Fazal Ellahi Siddiqui, learned counsel for appellant in Civil Appeal No. 1181 of 2002, Mr. Muhammad Bilal, learned counsel for appellant in Civil Appeal No. 1182 of 2002, Ms. Naheeda Mehboob Ellahi, learned Deputy Attorney General, M/s Abdul Karim Khan Kundi, Muhammad Munir Peracha and Raja Muhammad Asghar, learned counsel for respondents at length and have gone through the record and proceeding of the case in minute particulars.
Mr. Fazal Ellahi Siddiqui, learned counsel for appellant Mir Ghias Khan vehemently contended that the learned Tribunal has seriously erred in holding that appellant is a civil servant of Northern Areas, as such, the learned Tribunal has no jurisdiction to entertain his grievance with regard to the terms and conditions of his service. According to him, appellant did his decree of Bachelor of Science in Civil Engineer in First Division from the University of Engineering and Technology, Lahore, on 2.3.1986 and was appointed by the Government of Pakistan, KANA Division as Assistant Executive Engineer B&R Division BPS-17 in the Northern Areas with effect from 21.3.1992 through Federal Public Service Commission and approved by the competent authority. According to him, his appointment was done by the competent authority viz. Federal Minister, KANA Division on the terms and conditions vide Memorandum No. NA. III-4 (13)/86 dated 25th July, 1992 initially for a period of one year on the probation extendable for another period of one year under Section 6 of Civil Servants Act, 1973, as such he becomes civil servant within the meaning of Civil Servants Act, 1973. He further argued that appellant was non-suited by the learned Tribunal without advancing any cogent reason simply referring the case of one Muhammad Riaz an employee of Police in Northern Areas, Gilgit. Learned counsel while distinguishing the case of appellant with that of Muhammad Riaz argued that Muhammad Riaz in fact was appointed as Sub-Inspector by Inspector General of Police Northern Areas, Gilgit. According to him, Muhammad Riaz was neither the employee of the Federal Government nor he was posted by the Federal Government in the Northern Areas being person in service of Pakistan to serve in that area on deputation nor his seniority was determined by the Federal Government which was the main reason which weighed with this Court in Civil Appeal No.48 of 2001 filed by said Muhammad Riaz decided on 11.10.2001. But the appellant is receiving his remuneration from the Federal Government exchequer through Accountant General of Pakistan.
Mr. M. Bilal, learned Sr. ASC for appellant Imdad Ali Khan adopted the arguments advanced by Mr. Fazal Ellahi Siddiqui, learned counsel for appellant Mir Ghias Khan but further added that appellant Imdad Ali Khan is also an employee of Forestry KANA Division, as such, his terms and conditions of service would be governed by Civil Servants (Efficiency and Discipline) Rules, 1973 being federal employee of Government of Pakistan. According to him, though he was allowed move-over from B-18 to B-19 with retrospective effect from 1.12.1990 but was not promoted, as such,, he filed Writ Petition No. 3262 of 1994 before the Lahore High Court, Rawalpindi Bench, claiming promotion/seniority which was entertained by the learned High Court and direction was given to the competent authority to dispose of the representation expeditiously vide order dated 16.1.1994. According to him, it is pertinent to note that the Federal Government was the respondent in that writ petition but did not raise any objection to the issuance of such direction. Since the appellant was not promoted but one Ghulam Tahir was promoted as Director (B-19) by the competent authority KANA Division with the approval of Prime Minister's Secretariat, Islamabad, who even according to the Office Order dated 11.1.1996, was appointed on probation for one year extendable for another period of one year under Section 6 of Civil Servants Act, 1973 and on expiry of said period under Section 3 Rule 21 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 the probation period shall be deemed to have been extended for a further period of one year. To further substantiate the stance, learned counsel for appellant contended that appellant invoked the jurisdiction of the learned Tribunal in Appeal No. 271(R)/96 which was admitted for regular hearing and after hearing appellant, respondents viz Chief Executives, Kashmir Affairs & Northern Affairs, Islamabad, Secretary, KANA Division, Islamabad, Secretary, Establishment Division, Islamabad and Ghulam Tahir, Director, KNP, Khanjarb, N.A concluded that if the appellant was not found guilty in any disciplinary proceedings then his case for promotion should be considered and original sonority be restored to him. He further argued that appellant's case was also considered by this Court in Civil Petition No. 87 of 1997 wherein it was directed to Secretary, KANA Division, Islamabad, to consider his case for promotion. Even contempt application was filed before this Court, which was also entertained. In support of his contention that appellant is civil servant within the meaning of Section 2(1)(b) of the Civil Servants Act, 1973, he referred to letter dated 4.2.1997 whereby a charge sheet was issued against appellant by Minister for KANA Division as authorised Officer to proceed under Rule 5(i)(ii) read with Rule 6 of the Government Servants (Efficiency & Discipline) Rules, 1973, and Mr. Naseer Ahmed, Secretary Home, Services & General Administration and Department, Northern Areas was appointed as Enquiry Officer and in said inquiry, he was exonerated, therefore, for all intents and purposes, appellant is an employee of Government of Pakistan and is civil servant within the meaning of Civil Servants Act, 1973 and the learned Tribunal has the jurisdiction.
On the other hand, Ms. Naheeda Mehboob Elahi, learned Deputy Attorney General for respondents controverted the above contentions of appellants' counsels and argued that both the appellants being part of Administration of Northern Areas are not employees of the Federal Government, thus they are not civil servants within the contemplation of the term as defined in Section 2(1)(b) Civil Servants Act, 1973 and Service Tribunals Act, 1973 and could not invoke the jurisdiction of the learned Tribunal established under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. She further submitted that in the light of observations made by this Court in the case of Muhammad Riaz referred supra, Northern Areas Chief Court, Gilgit, has issued a circular dated 13th June, 2002 by virtue of which the appellants can conveniently approach the Civil Court in the Northern Areas for adjudication of their disputes relating to the terms and conditions of their service.
As mentioned above, the matter of appellant Imdad Ali Khan was admitted by the learned Lahore High Court, Rawalpindi Bench claiming his seniority wherein the petition was admitted and was disposed of with the direction to the respondents, namely, Chief Executives, Kashmir Affairs & Northern Areas, Islamabad, Secretary, KANA Division, Islamabad, and also to the Secretary, Establishment Division, Islamabad for considering his case. Thereafter, even the learned Tribunal also admitted his case challenging his seniority and did not raise the question of its territorial jurisdiction at that time. Even this Court in Civil Petition No. 87 of 1997 also disposed of the petition of the appellant and directed Chief Executives, Kashmir Affairs & Northern Areas, Islamabad, Secretary, KANA Division, Islamabad, and Secretary, Establishment Division, Islamabad to consider his case for promotion. Even Criminal Original Petition No. 43 of 1999 filed by appellant before this Court was also entertained and disposed of with the direction to the concerned Authority for taking necessary action. This on the face of it shows that prior to the impugned judgment, the matters pertaining to the terms and conditions of employees in the service of Northern Areas were admitted and dealt with by the learned Lahore High Court, learned Tribunal and also by this Court wherein the respondents, namely, Chief Executives, Kashmir Affairs & Northern Areas, Islamabad, Secretary, KANA Division, Islamabad, and Secretary, Establishment Division, Islamabad did not raise any objection regarding its territorial jurisdiction but conceded to the same, as such, now they cannot raise a contrary stance. Even in parawise comments filed in this Court in Civil Petition No. 87 of 1997 no such plea regarding territorial jurisdiction has been raised, as such, they are now stopped to raise it. Irrespective of above and from the above narration of facts, it is clear that when the disciplinary proceedings on account of his involvement in cutting of forest in Chilas Sub-Division were initiated by respondents, namely, Chief Executives, Kashmir Affairs & Northern Areas, Islamabad, Secretary, KANA Division, Islamabad, and Secretary, Establishment Division, Islamabad against Imdad Ali Khan-appellant, the same were done under the Government Servants (Efficiency and Discipline) Rules, 1973, which makes the status of appellant clear that he was the civil servant within the meaning, of Section 2(I)(b) of the Civil Servants Act, 1973 and he can competently invoke the jurisdiction of Service Tribunals Act. The case of Muhammad Riaz referred (supra) decided by this Court in Civil Appeal No. 48 of 2001 is distinguishable with that of case of appellant as in that case Muhammad Riaz was the member of Police Establishment of Northern Areas which was established by the Administration of the Northern Areas which had its own rules and regulations of service, whereas appellant Mir Ghias Khan was appointed by Government of Pakistan KANA Division in a selection conducted by the Federal Public Service Commission and approved by the competent authority in BPS-17 initially on probation for a period of one year extendable for a further period of one year under Section 6 of Civil Servant Act, 1973 and if no order is issued under Rule (3) of Rule 21 of Civil Servants (Appointments, Promotion and Transfer) Rules 1973, on expiry of first year of probation period, the probation shall be deemed to have been extended under sub-rule (3) of Rule 21 of the said Rules.
To further substantiate, it would be relevant to refer. SRO No. 1367 (1)/98 published on 14.12.1998 whereby posts of Assistant Engineer BS-17 and above are to be appointed by the Chief Executive, KANA Division, Government of Pakistan, under Civil Servants Act, 1973 and under sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. In Schedule IV, the Administrative Powers of Chief Executive of Northern Areas lies with Minister for KANA Division. In case of appointment of BS-17 and 18 on adhoc basis would be made by appointing authority on the recommendations of the Departmental Committee whereas on regular basis, the appointment in BPS-17 and 18 would be made by the appointing authority subject to the recommendations of the Federal Public Service Commission. In case of BPS-19 and above, the appointing authority is Prime Minister on the recommendations of the Selection Board.
From the above resume, we are of the opinion that appellants are civil servants within the meaning of Section 2(1)(b) of the Civil Servants Act, 1973, as such, the learned Tribunal had the jurisdiction to entertain and decide the matters relating to the terms and conditions of their services. Accordingly, the impugned judgment dated 18.12.2000 is set aside and both the appeals are allowed with no order as to costs.
(A.S.) Appeals allowed.
PLJ 2007 SC 951
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
HAJI ABDUL HAQ etc.--Appellants
versus
PROVINCE OF PUNJAB etc.--Respondents
C.A. No. 753 of 2002, decided on 23.4.2007.
(On appeal from the judgment dated 14.3.2002 of the Lahore High Court, Lahore, passed in W.P. No. 162 of 1971).
Colonization of Government Lands Act, 1912 (V of 1912)--
----S. 17--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal, granted--Appreciation of legal and factual aspects of controversy--Proprietary rights--Acquired--Exchanged the state land with private land--State land Agriculture Department could not have been transferred with private land, proprietary rights whereof had been conferred upon appellants--Provisions of--Violation of--Order of commissioner should have been declared null and void by Board of Revenue which could not be done for the reasons best known to it--Order passed by commissioner to allow the exchange of land under the control of Agriculture Department is without lawful authority and is ab initio void--Government has been deprived of substantial amount and irreparable loss due to the irresponsible conduct of commissioner who should be penalized for it--Possession of land was taken over by appellants pursuant to order of commissioner and hence cannot be held liable for payment of mesne profit, because they had not utilized the land allotted in their favour--Held: Possession of land allocated in favour of appellants be handed over to appellants who shall vacate the possession of state land however, they shall not be liable to pay any mesne profit--Appeal disposed of.
[P. 956] A, B, C & D
Syed Najamul Hassan Kazmi, ASC for Appellants.
Raja Saeed Akram, Assistant Advocate-General & Mr. Fayyaz Ahmad, Secretary Agriculture for Respondents Nos. 1 to 3.
Date of hearing: 1.3.2007.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 14.3,2002 whereby the writ petition preferred on behalf of appellants has been dismissed.
"Petitioner seek leave to appeal against Lahore High Court Judgment dated 14.3.2002 in Writ Petition No. 621 of 1971 allowing writ petition filed by Province of Punjab and others, impugning correctness of the order dated 30.12.1970 passed by Commissioner Sargodha Division on a Reference from Governor Punjab as well as from the Administrator Thal Development Authority i.e. Chief Secretary Punjab.
3. Petitioners' land measuring 213 acres situated in Chak No. 64-MB, Mouza Ahirpur, District Sargodha (now District Khushab) was acquired by Thal Development Authority for establishment of Mandi Town, Joharabad way back in the year 1951. In terms of the policy decision as contained in Letter No.53-C, dated 5th January, 1952 by the Board of Revenue Punjab, Annex R/1, alternate land had to be granted to the petitioner in Colony Chaks in the close proximity of the Mandi Town as far as possible but the land given to the petitioner in Chak No.40-A/MB (Rakh Mitha Tiwana) was situated 14 miles away from the Mandi Town. It was the grievance of the petitioners that the alternate land was available for allotment in Chak No.52-MB at a distance of about 3 miles. Accordingly, they made a representation to the Governor Punjab in a public gathering at Joharabad, which was marked to the Commissioner Sargodha to looked into the matter. A report was also called for from the Thal Development Authority, who also referred the case to the Commissioner Sargodha Division for necessary action. On his part, Commissioner Sargodha vide order dated 30.12.1970 accepted the plea taken by the petitioners and directed the allotment of land in Chak Nos.52-MB and 53-MB. It appears that defunct Agricultural Development Corporation had some claim over this land, who, through the Government of Punjab impugned the order passed by the Commissioner in the writ petition, which has been accepted by the High Court on the premises that the sanction of the Provincial Government had not been obtained for the grant of land to the petitioners in lieu of land acquired for public purpose.
It is contended that valuable proprietary rights of the petitioners secured and granted under Article 24 of the Constitution would not be abridged and curtailed or terminated to their disadvantage without just and lawful compensation. The grounds, which weighed with the learned Judge in the High Court, on the face of it, appear to be unreasonable and hyper-technical in nature, inasmuch as, the Commissioner formed a part of the Government of Punjab, whose responsibility, inter alia, was to compensate the petitioners to provide lands in lieu of the lands compulsorily acquired. In our considered opinion, even if sanction of the Provincial Government was necessary, it could be obtained ex-post-facto for which petitioners' rights cannot be jeopardized. Essentially, the land was granted to ADC for development but it appears that it was not used for the purpose for which it was granted. Furthermore, ADC was dissolved through Presidential Order No.V of 1972 with effect from 7.2.1972. and its rights and liabilities devolved on the Provincial Government.
Contentions raised appear to be of first impression and not without substance. Leave to appeal is accordingly granted to consider the questions raised at the Bar.
Learned counsel states at the Bar that the petitioner are in physical occupation of the land for the last over thirty years. Their possession shall not be disturbed till the decision of this appeal."
Syed Najamul Hassan Kazmi, learned ASC entered appearance on behalf of appellants and urged with vehemence that the legal and factual aspects of the controversy in question have not been appreciated in its true perspective by the learned single Judge of Lahore High Court, Lahore, which resulted in serious miscarriage of justice. It is next contended that the land in question was duly allotted in favour of the appellants in lieu of the land got acquired by the Government hence no illegality whatsoever has been committed by the Commissioner Sargodha Division by whom the land in question was allotted in favour of the appellants in exchange of the land surrendered by them in Rakh Mitha Tiwana, It is argued that the Government had acquired the land of the appellants pursuant to the conditions enumerated in the policy formulated in this regard whereby the land owners were to be accommodated into the areas located adjacent to Mandi or Town which could not be done but on the contrary a barren chunk of land with bushes and dens situated at a distance of about twenty miles away from the Mandi/Town ignoring the commercial and potential value of the land acquired was allotted. It is pressed time and again that the exchange of land allowed by the Commissioner Sargodha Division was approved by the Board of Revenue and hence no interference could have been drawn by the learned High Court in exercise of jurisdiction as conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan. It is also contended that the Agriculture Department of Government of Punjab has no concern whatsoever with the land in question and no objection could have been raised qua the exchange of land as directed by the Commissioner Sargodha Division being totally unconcerned. It is urged emphatically that the direction regarding realization of mesne profit is not justified for the simple reason that the appellants have been enjoying usufruct of the land, possession whereof was handed over to them by the Commissioner Sargodha Division as well as Board of Revenue in lieu of their valuable land which was acquired on the promise that suitable chunk of land would be allotted in the suburbs of Mandi or Town which could not be done hence no undue advantage has been taken by the appellants.
Raja Saeed Akram, learned Assistant Advocate General entered appearance on behalf of Provincial Government duly assisted by Mr. Fayyaz Ahmed, Secretary Agriculture, Government of Punjab and supported the judgment impugned for the reasons enumerated therein with the further submission that the land in question could not have been given in exchange to the appellants by the Commissioner Sargodha Division being not competent as no such powers are conferred upon him to pass such type of order and exchange the State land with that of private land allotted in favour of the appellants. It is also pointed out by the Secretary Agriculture that proprietary rights had already been obtained by the appellants and a closed and past transaction could not have been reopened at the direction of the Governor which was given in "Khuli Kachehri". It is also argued by Raja Saeed Akram, learned Assistant Advocate General that the order of exchange of land passed by the Commissioner Sargodha Division is without any lawful authority and moreso the land pertained to Agriculture Department could not have been exchanged with private land as has been done by the Commissioner Sargodha Division.
We have carefully examined the respective contentions in the light of relevant provisions of law and record of the case and have also minutely perused the judgment impugned. After having gone through the entire record and chequered history of the case we are of the view that undisputedly the appellants had acquired the proprietary rights meaning thereby that the land allocated in their favour was not that of inferior quality or located in far flung area. Had this been the case, the position would have been different and proprietary rights would have not been acquired. The appellants went in a deep slumber and woke up after about more than a decade and moved an application to the Governor Punjab in a "Khuli Kachehri" and succeeded in getting the order for reconsideration which culminated into the orders passed by the Commissioner Sargodha Division whereby the land commonly known as `Sultana Gardens' was handed over to the appellants in lieu of the land allotted earlier in their favour in Chak No.40-A/M.B. by means of order dated 30.12.1970 passed by the Commissioner Sargodha Division. A careful scrutiny of record would reveal that the said order had been passed by the learned Commissioner Sargodha Division in a casual and cursory manner without diligent application of mind by ignoring the fact that the State land could not have been exchanged with private land situated in Chak No.40-A/M.B, proprietary rights whereof were obtained by the appellants about thirteen years back and mutations were also attested in their favour and duly registered in the Register Haqdaran Zamin. The closed and past transaction could not have been reopened by the Commissioner Sargodha Division having no locus standi whatsoever which amounts to misuse and abuse of authority never conferred upon him. The Commissioner Sargodha Division has violated the Government instructions contained in Letter No. 1841-C dated 28.4.1932 which makes it abundant clear that once proprietary rights have been acquired in a grant no application for exchange could be entertained. For the sake of argument if it is conceded that the allocation of land in favour of appellants was not "by way of grant" even then State land pertained to Agriculture Department could not have been transferred with private land, proprietary rights whereof had been conferred upon the appellants. Besides that the Commissioner Sargodha Division has ignored the provisions as enumerated in Section 17 of the Colonization of Government Lands Act, 1912 whereby only the State land can be exchanged for State land and therefore, the order passed by the Commissioner Sargodha Division was in utter violation of Section 17 of the Colonization of Government Lands Act, 1912. We are not persuaded to agree with Syed Najamul Hassan Kazmi, learned ASC on behalf of appellants that order passed by the Commissioner Sargodha Division was upheld by the Member Board of Revenue for the simple reason, that on technical ground it was held by the Board of Revenue that order passed by the Commissioner Sargodha Division being executive in nature could not have been interfered. In fact this all was manipulated and appellants succeeded in getting the valuable property worth whereof runs into millions with the facilitation and connivance of the Government functionaries. The order of the Commissioner Sargodha Division should have been declared null and void by the Board of Revenue which could not be done for the reasons best known to it. We have no hesitation in our mind that order dated 30.12.1970 passed by the Commissioner Sargodha Division to allow the exchange of land measuring 1345 kanals 5 marlas under the control of Agriculture Department Corporation located in Chak No.52/MB and Chak No. 53/MB District Khushab is without lawful authority and is ab initio void.
We have observed it with grave concern that Government has been deprived of substantial amount and irreparable loss due to the irresponsible conduct of the Commissioner Sargodha Division who should be penalized for it. There is no denying the fact that possession of land in Chak No.52/MB and Chak No. 53/MB was taken over by the appellants pursuant to the order dated 13.12.1970 of the Commissioner Sargodha Division and hence cannot be held liable for the payment of mesne profit because they had not utilized the land allotted in their favour in Chak No. 40-A/MB, Rakh Mitha Tiwana.
In sequel to above mentioned discussion the possession of land allocated in favour of appellants situated in Chak No. 40-A/MB be handed over to the appellants who shall vacate the possession of State land situated in Chak No. 52/MB and Chak No. 53/MB commonly known as "Sultana Gardens", however, they shall not be liable to pay any mesne profit. This exercise must be done within two months. The appeal is disposed in above terms.
(N.F.) Appeal disposed of.
PLJ 2007 SC 957
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Muhammad Nawaz Abbasi, JJ.
ALI MUHAMMAD--Appellant
versus
MUHAMMAD BASHIR--Respondent
C.A. No. 1843 of 2001, decided on 23.01.2007.
(On appeal from the judgment dated 29.2.2000 of the Lahore High Court, Lahore, in R.F.A. No. 114 of 1998).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal, granted--Requirement of Talb-i-Muwathibat--Assailed--Talb-i-Ishhad--Out of two witnesses of Talb-i-Ishhad, only one witness is examined which stands established that such talabs had not been performed in accordance with law--Held: Neither time nor particulars such as date, and place have been specifically mentioned by plaintiff in plaint claiming right of pre-emption on the basis of being co-sharer in property--Appeal dismissed. [P. 960] A
Mr. Muhammad Hussain Awan, ASC for Appellant.
Ch. Riasat Ali, ASC for Respondent.
Date of hearing: 23.1.2007.
Judgment
Abdul Hameed Dogar, J.--This appeal with leave of the Court is directed against the judgment dated 29.2.2000 passed by learned Judge in Chambers of the Lahore High Court, Lahore, whereby R.F.A. No. 114 of 1998 filed by appellant was dismissed.
Briefly, stated, facts giving rise to the filing of instant appeal are that on 10.2.1990 appellant filed a suit for pre-emption on the grounds of being shafi-i-sharik, shaki-khalit and shafi-i-jar regarding land measuring 41 kanals 2 marlas situated in Chak No.260/RB and the land measuring 43 kanals 15 marlas situated in Chak No. 262/RB (both Chak in Tehsil and District Faisalabad) sold by his brother Din Muhammad to respondent Muhammad Bashir against a consideration of Rs. 250,000/-. The respondent in order to defeat the right of pre-emption shown it as an exchange. Appellant went to respondents and his brother Din Muhammad without loss of time and declared his intention to purchase the property and made jumping demand i.e. Talb-i-muwathibat but respondent declined. Whereafter appellant took PWs Taj Din and Muhammad Sharif and approached respondent again and asked him that he had earlier declared his intention to assert his right of pre-emption and made talab-i-mowasibat and now he affirms earlier intention and makes talab-i-ishhad in presence of abovementioned witnesses and offered sale price but he refused to do so. Respondent in his written statement raised preliminary objection and while controverting the assertions of the appellant stated that he obtained the suit property in exchange as such is not pre-emptable. The trial Court framed as many as 7 issues and after recording evidence dismissed the suit with cost vide judgment dated 11.3.1998. Feeling aggrieved, appellant preferred RFA before the learned High Court which was dismissed vide impugned judgment.
Leave to appeal was granted by this Court on 27.7.2001 to consider as under:--
(a) That in such suits, there was no requirement of proving talb-i-muwathibat, (b) That talb-i-ishhad in the presence of two witnesses only was required to be proved and in such a case the requirements of making the same through notice attested by two witnesses had been dispensed with and the petitioner led evidence in this case to prove talb-i-ishhad in the presence of two witnesses which has been ignored on the erroneous assumption of law that talb-i-Muwathibat and talb-i-ishhad were required to be proved and the latter too through registered notice attested by two truthful witnesses.
We have heard Mr. Muhammad Hussain Awan, learned ASC for the appellant and Ch. Riasat Ali, learned ASC for respondent and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the appellant contended that appellant has performed the requisite Talabs as required by law. He contended that after the judgment delivered by this Court in the case of Government of NWFP through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) whereby the Punjab Pre-emption Act, 1913 was declared against the Injunctions of Holy Quran and Sunnah and before the enforcement of Punjab Pre-emption Act, 1991, the Islamic Law of Pre-emption was to hold the field and it cannot be said that during that period no law of pre-emption was in the field. According to him, the plaintiff has fulfilled all the required Talabs in accordance with the Islamic Law of Pre-emption. He contended that appellant on coming to know about the sale, declared his intention to exercise his right of pre-emption, therefore, he alongwith the two witnesses, namely, Taj Din. and Muhammad Sharif approached the respondent and demanded from him to receive the sale price amounting to Rs. 2,50,000/- and transfer the suit property to him.
On the other hand, learned counsel for the respondent controverted the above contentions and supported the impugned judgment which according to him does not suffer from any legal flaw. He contended that appellant has not examined Taj Din in whose presence he allegedly fulfill the requirement of Talb-i-Ishhad as such he has failed to fulfil the requirements of talabs. He vehemently urged that the requirement of Talb-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talab was made. He further contended that the case of the appellant would fall within the ambit of Mahomedan Law according to which right of pre-emption was to be claimed by making immediate/jumping demand on receiving the knowledge of the sale which was called as Talb-i-muwathibat in the presence of buyer or seller or on the premises subject of sale. As regard talb-i-Ishhad it is to be made in presence of at least two witnesses wherein it is expressly made clear that the pre-emptor had the intention to purchase the property under sale. He went on to argue that witnesses, namely, Ali Muhammad appellant and (PW-2) Muhammad Sharif, even did not disclose in their respective statements in evidence the time and the date of sale, therefore, the Talb-i-Ishhad cannot be said to have been made in accordance with law. Even notice of Talab-i-Ishhad did not bear the time and date of reconfirmation of Talb-i-muwathibat while making Talb-i-Ishhad.
Admittedly the suit was filed on 10.2.1990 whereas Punjab Pre-emption Act, 1991 was promulgated on 6.4.1991. This Court in the case of Malik Said Kamal Shah referred supra declared Punjab Pre-emption Act, 1991 against the injunctions of Holy Quran and Sunnah as such the instant case would be covered under the provisions of Mahomedan Law. It would be appropriate firstly to reproduce herein below its Section 225:
Demands of pre-emption.--No person is entitled to the right of pre-emption unless--
(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talb-i-muwathibat (literally, demand of jumping, that is, immediate demand): and unless
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talb-i-muwathibat had already been made (a), and has made a formal demand--
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale(b), and
(b) in the presence at least of two witnesses (c), this formality is called talb-i-ishhad (demand) with invocation of witnesses)
On bare perusal of above, the performance of above mentioned talabs are mandatory and non-performance of any of them would result in dismissal of suit. In this case, out of two witnesses of Talb-i-ishhad, only one witness is examined which stands established that the said talabs have not been performed in accordance with law. In this case even neither time nor particulars such as date, and place have been specifically mentioned by the plaintiff in the plaint claiming right of pre-emption on the basis of being co-sharer in the property. A larger Bench of this Court in the case of Mian Pir Muhammad Vs.Faqir Muhammad (deceased) thr.LR etc.. (CA 1951/2000) decided on 12.12.2006 held that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of Section 13 of the Act is not provided it would be fatal to the pre-emption suit.
The learned High Court while dismissing RFA No, 114/98 has taken into consideration the provisions of Section 13 (3) of the Act but has not dilated upon the factum as to whether the Act was applicable at the time of making Talabs about pre-empting the suit land. In fact as stated above, it was the principle of Mahomedan Law used to govern the law of pre-emption at the relevant time.
For what has been discussed above, we are of the opinion that the appeal being devoid offeree is dismissed with no order as to costs.
(N.F.) Appeal dsimissed.
PLJ 2007 SC 961
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
PAKISTAN TOBACCO COMPANY LIMITED ISLAMABAD--Petitioner
versus
ADDITIONAL COLLECTOR CENTRAL EXCISE GUJRANWALA--Respondent
C.P. No. 2614 of 2005, decided 9.2.2007.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 21.7.2005, passed in Civil Appeal No. 17/1995).
(i) Central Excise Act, 1944 (I of 1944)--
----S. 3--Scope--Levy and collection of duty--Section 3 provides for the levy and collection of duty on excise goods in such manner as may be prescribed. [P. 964] A
(ii) Central Excise Rules, 1944--
----R. 9--Time and manner of payment of duty--Time and manner of payment of duty is prescribed in Rule 9 which prohibits the removal of excisable goods from the place of its production or manufacture until excise duty leviable thereon is paid and after obtaining permission of the officer on the prescribed form. [P. 964] B
(iii) Central Excise Rules, 1944--
----R. 53-A--Scope--Maintained proper account and record--Maintainability--Account and record particulars of each removal in accordance with the prescribed form before the goods are removed from the factory. [P. 964] D
(iv) Central Excise Rules, 1944--
----R. 9--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Levy and collection of duty on excisable goods--Removal of excisable goods from the place of its production--Permitted to pay the duty within 15 days of their removal--Determination--Proviso--Power of the Board allowing the manufacturer of cigarettes under the fourth proviso to Rule 9 is only to extend the time for payment of the duty the liability which has already been created--Payment of duty which takes place when excisable goods are removed from the factory in violation of rules prescribed for maintaining proper account and obtaining authorization from the proper officer for removing the goods--Held: Such rules were violated and sale tax invoice did not carry the signature and authentication of the central excise officer, a mandatory requirement of Rule 9--Leave refused. [P. 964] C & E
Mr. Farrukh Jawad Panni, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 9.2.2007.
Judgment
Nasir-ul-Mulk, J:--The Pakistan Tobacco Company Limited has through this petition for leave to appeal assailed the judgment of the Lahore High Court whereby the appellants appeal against the judgment of the Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad was dismissed with the result that the order in appeal dated 4.5.2000 of the Collector of Sales Tax and Central Excise (Appeals) and the order in original dated 17.4.1989 of the Additional Collector were upheld. The Additional Collector had found that the appellant had removed from its factory situated in Jhelum a certain number of packages of cigarettes without payment of excise duty and sales taxes in contravention of the relevant provision of Central Excise Rules and Sales Tax Act, 1990, and thereby ordered the appellant to pay Rs.8,80,716/- as central excise duty and Rs.2,11,948/- as sales tax alongwith additional taxes and penalties.
The contravention for which the appellant was penalized was detected by the staff of the Intelligence and Investigation (Customs Central Excise and Sales Tax) Gujranwala, when it detained Truck No. AJKA-1983 carrying cigarettes manufactured by the appellant for verification of the documents pertaining to central excise duty and sale tax. Upon examination it came to light that the Gate Pass No.2611 dated 8.6.1994 was issued for another truck bearing Registration No.PRJ-7373, and the same neither showed serial number of the packages nor the time of departure of the vehicle from the factory. Some other discrepancies between the information recorded in the documents and the consignment in the truck were also detected. It was found that whereas the gate pass mentioned 200 cartons of "Wills King" brand cigarettes, only 190 cartons were available in the truck. Further that out of the 250 cartons of "Gold Flake" cigarettes, 59 did not carry any serial number and Serial No's. of 171 cartons were not legible. The truck and the goods were therefore seized under Section 168 and 157 of the Customs Act, 1969 read with Rule 200 of the Central Excise Rules 1944 (hereinafter called the Central Excise Rules) and Section 39 of the Sales Tax Act, 1990. After issuing show-cause notice to the appellant and upon receiving reply thereto the Additional Collector levied duty & taxes and imposed penalty as stated above.
Mr. Farrukh Jawad Panni, ASC entered appearance for the petitioner and made mainly two submissions. Firstly, that mere contravention of certain rules of the Central Excise Rules would not per se amount to evasion of duties and taxes and may only attract the imposition of penalty prescribed for contravention of the Rules in question. That none of the forums, including the High Court, had examined the record from the point of view of determining as to whether the evidence produced by the department was sufficient to establish evasion. The learned counsel further argued that all the duties and taxes had been paid for the cigarettes removed from the factory and in this context he referred to Form No.32-A, a challan of cash paid into the Government Treasury, Jhelum, showing payment of Rs.31,338,031.30 on 22.6.1994 as duty and taxes in respect of ARI No.436 to 439 dated 8.6.1994. Referring to S.R.O. No.603 (I)/96, dated 14.7.1996, the learned counsel submitted that the manufacturer of cigarettes have been allowed 15 days within which to make payments of the Central Excise duty after removal of the cigarettes from the factory and thus the payment of duty & taxes on 22.6.1994 leviable on cigarettes removed from the factory on 8.6.1994 were within the permissible period.
The first argument of the learned counsel pertains to pure question of fact and three forums as well as the Division Bench of the High Court had found the petitioner guilty of evading payment of excise duty and sales tax. The learned counsel also did not dispute the discrepancies in the official record of the Department maintained at the appellant's factory and the facts revealed by physical verification of the consignment in the truck. In addition to these discrepancies even the gate pass accompanying the detained truck bearing Registration No.AJKA-1983, was issued for another Truck, No.PRJ-7373. The explanation furnished to the Collector by the representative of the appellant that since the truck for which the gate pass was issued had broken down and the cigarettes were then loaded by the contractor on to another truck was also found false. It was noticed that according to the "bilty" and the Zila Council Exit receipt dated 13.6.1994 (and not dated 8.6.1994) showed that the consignment was loaded on to Truck No.AJKA-1983 from Jhelum and not from Sarai-Alamgiri as claimed by the appellant's representative. The factual determination by four forums based on record does not call for interference by this Court.
The second contention regarding payment by the appellant of all the duties and taxes through challan dated 22.6.1994 also does not carry much force for two reasons. Firstly, the plea was not taken up before any of the forums, including the High Court, and therefore was not examined. The learned counsel had referred to an application dated 4.5.2005 moved before the Appellate Tribunal, after the judgment in the appeal was reserved, for placing on record three documents: Form No.32-A, Form No.AR-I and Sales Tax Invoices gate pass. The application is signed by the counsel but there is nothing recorded thereon to show that it was received by the Tribunal. It also came to our notice that the Collector appeals had once remanded the case to the Additional Collector for re-examining the case afresh after providing opportunity to the appellant to produce documents. Even then the documents now being pressed into service were not brought to the notice of the adjudicating officer. We are not inclined to consider these documents at this stage not only because of the legal impediment but the same required a factual examination as to whether the duty paid related to the cigarettes packages in question.
Be that as it may, the payment of excise duty on 22.6.1994 will not be an answer to the contravention already made on 8.6.1994. Section 3 of the Central Excise Act provides for the levy and collection of duty on excisable goods in such manner as may be prescribed. The time and manner of payment of duty is prescribed in Rule 9 of the Central Excise Rules, which prohibits the removal of excisable goods from the place of its production or manufacture until excise duty leviable thereon is paid and after obtaining permission of the proper officer on the prescribed form. The fourth proviso to the Rule however empowers the Central Board of Revenue to allow manufactures of any goods to pay Central Excise Duty within a specified period after removing the goods. In exercise of this power the Board issued S.R.O.No.603 (I)/96, dated 14.7.1996 permitted the manufacturers of cigarettes to pay the duty within 15 days of their removal. Rule 53-A obligates the manufacturer to maintain proper account and record particulars of each removal in accordance with the prescribed form before the goods are removed from the factory. The combined reading of the above provisions shows that the liability of the manufacturer to pay excise duty is created at the time of removal of the excisable goods from the factory and that such liability is determined on the basis of the record of the goods so removed. The power of the Board allowing the manufacturer of cigarettes under the fourth proviso to Rule 9 is only to extend the time for payment of the duty the liability for which has already been created. Thus the payment of duty later would not exonerate the manufacturer from the charge of evasion of duty which takes place when the excisable goods are removed from the factory in violation of the rules prescribed for maintaining proper account and obtaining authorization from the proper officer prior to removing the goods. Admittedly such rules were violated and the sale tax invoice as well as the ARI (Application for Removal -----------------) did not carry the signature and authentication of the Central Excise Officer, a mandatory requirement of Rule 9.
Since neither of the two contentions raised on behalf of the petitioner have persuaded us to interfere with the concurrent findings of the forums we decline to grant leave and thus dismiss the petition.
(N.F.) Leave refused.
PLJ 2007 SC 965
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
MUHAMMAD ZARAT & another--Appellants
versus
AKBAR ALI (deceased) through his legal representatives & others--Respondents
C.A. No. 317 of 2001 & C.P. No. 784 of 2001, decided on 7.3.2007.
(On appeal from the judgment dated 20.2.2001 of the Lahore High Court Lahore passed in Regular Second Appeal No. 37 & 82 of 1988).
Punjab Pre-emption Act, 1913 (I of 1913)--
----S. 15--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Superior right of pre-emption to a tenant--Portion of land under his tenancy--No more and no less--Sinker--Principles--Principles of pre-emption, like limitation, waiver or sinker are apply to a tenant--Held: A tenant, therefore, if defendant, cannot escape from the clutches of the principle of sinker. [Pp. 966 & 967] A
Co-sharers--
----Both having purchased the land in equal share and both being co-sharers in each and every inch of land. [P. 967] B
Kh. Muhammad Farooq, Sr. ASC for Appellants/Petitioner (in both cases).
Mian Allah Nawaz, ASC for Respondents (in both cases)
Date of hearing: 7.3.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Both, the appeal as well as Civil Petition for leave to appeal, arising out of the same judgment, are taken up together.
Muhammad Zarat and Muhammad Nawaz purchased land measuring 212 kanals, in equal shares for a sum of Rs.2,29,000/- through registered sale deed dated 2.12.1975. Akbar Ali and Mehr Din sons of Sardar Khan pre-empted the sale which was defended by the vendees on the ground of being tenants in suit land.
The learned Civil Judge First Class Sargodha decreed the suit on payment of Rs.2,29,000/- as pre-emption money. On appeal, the decision aforesaid was set aside by a learned Additional District Judge Sargodha vide judgment dated 22.10.1987. A partial decree was granted against Zarat to the extent of 63 kanals while suit regarding 149 kanals was dismissed holding that the said portion lay under the tenancy of Muhammad Nawaz. Both the parties filed two regular second appeals before learned High Court. Vide judgment dated 22.2.2001 a learned Judge in Chambers accepted the appeal of the pre-emptors, set aside the judgment of the Additional District Judge and restored that of the Civil Judge, holding that though Muhammad Nawaz was a tenant yet the principle of sinker would apply, for, his having joined Muhammad Zarat in the sale, the latter being a stranger. The vendees have come up to this Court.
The learned counsel seriously assailed the impugned finding by contending that a tenant has got a superior right of pre-emption with regard to the portion under his tenancy, as granted by para-25(3)(d) of Martial Law Regulation 115. That the provisions of MLR 115 being a superior Federal law would supersede any provision of Punjab Pre-emption Act, 1913 and such superior right cannot be whittled down on any theory flowing from the Provincial law, especially, the principle of sinker.
We have closely scrutinised the arguments in the light of judgments of this Court. As a matter of fact para-25 (3)(d) of MLR 115 has granted a superior right to a tenant regarding portion of land under his tenancy. No more and no less. The only difference is that if a tenant exercises such right as pre-emptor, he would resort to the Revenue Court, which, for all intents and purposes shall exercise the powers of a Civil Court. This superior right, with effect from the promulgation of Land Reforms Regulation 1972, shall be read impliedly as part of Section 15 of Punjab Pre-emption Act, 1913. So far as the remaining principles of pre-emption, like limitation, waiver or sinker are concerned, those all shall apply to a tenant as well, whether emanating from text law or from the case law. A tenant, therefore, if defendant, cannot not escape from the clutches of the principle of sinker.
Learned counsel for the appellants/petitioners placed reliance upon a Division Bench judgement of this Court in Malhi Khan's case (PLD 1991 SC 824) where it was held that the superior right granted to a tenant under MLR 115 cannot be defeated by attracting the principles of Punjab Pre-emption Act, 1913. We do not agree to the above verdict in presence of a full bench judgment of ours in Muhammad Khan's case (PLD 1981 SC 155), where it was settled that Martial Law Regulation 115 has only given superior most right to a tenant which, for all practical purposes, is thenceforth to be read as a part of Punjab Pre-emption Act, 1913. We, therefore, hold that the principle of sinker would apply even to a tenant defending a suit of pre-emption.
Now we come to the factual aspect of the matter as to whether sinker is applicable to the facts of the present case. The learned High Court was of the view that if Muhammad Nawaz has joined with him Muhammad Zarat, a stranger in the sale, he has to sink with that stranger. The learned High Court further was of the view and rightly so, that both having purchased the land in equal share and both being co-sharers in each and every inch of the land, the transaction was not divisible so as to save the share of Muhammad Nawaz.
The above discussion we have resorted to, in order only to settle a question of law with reference to the discussion adhered to by the learned High Court. Whereas, the hard fact of the matter is that both Muhammad Zarat and Muhammad Nawaz vendees are not the tenants at all. Entry in their favour as tenant was challenged by Muhammad Siddique and Asmatullah before Collector Sargodha who vide his order dated 11.1.1977 categorically held that Muhammad Zarat and Muhammad Nawaz had forcibly ejected Muhammad Siddique and Asmatullah from their tenancy, with further direction that the former be proceeded against under paras-29/30 of MLR 115 (Ex.P.5-pages 77 to 81). This finding was upheld by Commission Sargodha Division vide his order dated 7.8.1977 (Ex.P.10-pages 89 to 91). The defendant-vendees went in revision (Civil Revision # 410/1984) before the High Court which too was dismissed on 20.2.2001, against which, Civil Petition for Leave to Appeal # 783-L of 2001 was also dismissed by a full bench of this Court. Muhammad Nawaz and Muhammad Zarat were not the tenants at all of the suit land and hence had no superior right to defend.
Finding no merit in the appeal as well as in the petition, both are hereby dismissed.
(N.F.) Appeals dismissed.
PLJ 2007 SC 968
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
MUBARIK ALI through his L.Rs.--Appellants
versus
AMROO KHAN through his L.Rs.--Respondents
Civil Appeal No. 1038 of 2004, decided on 10.4.2007.
(On appeal from the judgment dated 29.10.2001 passed by Lahore High Court, Lahore in C.R. No. 700/1995).
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973--Art. 185(3)--Revisional jurisdiction--Leave to appeal--Claim of title of disputed property--Undated oral sale--Consideration--Suit for declaration--No specific date or month--Prove to oral transaction--Produced two witnesses--Unreliable evidence--Contradiction--Contents of plaint--Documentary evidences were held not to be reliable evidence by giving the reasons and no plausible explanation qua the report lodged by respondent in respect of illegal and forcible possession taken by appellant--Held: In exercise of revisional jurisdiction was held to be justified when findings are based on conjectural presumption, erroneous assumptions of facts and wrong proposition of law--Further held: No injustice could be done greater than one in present case if the suit of the appellant succeeds by defeating the lawful process, of obtaining the possession by respondent through execution--Appeal was dismissed. [Pp. 970 & 972] A & B
Ch. Riyasat Ali, ASC for Appellants.
Mr. M. Munir Peracha, ASC for Respondents.
Date of hearing: 10.4.2007.
Judgment
Mian Shakirullah Jan, J:--The claim of the appellant to the title of the house, the disputed property, is on the basis of an undated oral sale for a consideration of Rs. 6,000/-. The assertion of the appellant by filing a suit for declaration is that he is the owner of the property by stating that the property being an evacuee property was allotted to the respondent and after being entangled in litigation with one Dhaney Khan, was decreed in his (respondent's) favour on 22.02.1969. After having a decree in his favour the respondent through an oral sale transferred the suit property in favour of the appellant with an undertaking that after obtaining the certified copies of the judgment, a written deed will be executed. The decree passed in favour of the respondent was reversed by the appellate Court on 20.03.1980 and further in appeal filed by the respondent, the findings of the first appellate Court were set aside by the High Court vide judgment decree dated 13.10.1992. The aforesaid litigation, which were commenced on 03.11.1966 ended on 13.10.1992. The present suit was filed by the appellant on 22.02.1993. The respondent, in addition to the contest of the suit filed by the appellant, has also filed a suit for possession of the property on the ground that the appellant has forcibly taken possession of the property in respect of which a report had also been lodged with the police, the copy of which has been placed on record. The trial Court after consolidation of these two suits, framing of the issues and recording of the evidences, finally decided the case in favour of the appellant by decreeing his suit with same result from the appellate Court. The respondent being constrained to file a revision petition before the High Court, which was allowed, and the judgment and decree of the two Courts below were set aside against which the instant appeal, with leave of the Court, has been filed.
The learned counsel for the appellant has mainly contended that on a question of fact as to whether the oral sale has been proved or not, the High Court in its revisional jurisdiction ought not to have interfered with judgments merely on the ground that in view of the High Court such findings were not sustainable unless misreading or non-reading of evidence or ignoring some material leading to a conclusion other than the one arrived at by the two Courts below have been pointed out, which according to him do not exist.
On the other hand, the learned counsel for the respondent, has contended that the evidence had not been read properly and the material aspect of the case has been ignored, which justify interference by the High Court in its revisional jurisdiction and particularly when some contradiction in the statement of a witness and the version given in the plaint has been noted and also the other witness was not found to be trustworthy being a servant of the close relative of the appellant.
We have gone through the judgments of the Courts below and also the relevant evidence on the record. Admittedly the property originally belonged to the respondent as so declared in the earlier litigation with Dhaney Khan finally by the High Court and which fact is not denied by the appellant and his claim is only on the basis of an oral sale with no specific date or month, but in the year 1969, after the decision of the earlier case by the Civil Judge by decreeing his (respondent) suit. The appellant to prove the oral transaction has produced two witnesses i.e., Abdul Aziz PW3 and Ghulam Rasool PW4, in addition to other documents like electricity bills etc., which have been paid by him. The learned High Court has found the statement of the two witnesses as unreliable on the ground that there was contradiction in the statement of PW3 and the plaint as to whether the written/registered deed will be executed after the decision of the case or after obtaining the certified copies of the judgment as at that time the case already stood decided according to the contents of plaint but according to witness the decision was still awaited from the Court of Civil Judge. The other witness was found to be under the influence of the plaintiff as he was employed with the brother-in-law of the appellant and similarly certain discrepancies were also found in the electricity bills with the further observations that no explanation had been furnished by the appellant regarding the lodging of the report with the police qua forcible possession obtained by him. Thus the two witnesses believed by the two Courts below and the other documentary evidences were held not to be reliable evidences by giving the aforesaid reasons and similarly with no plausible explanation qua the report lodged by the respondent in respect of illegal and forcible possession taken by the appellant. The reasons given by the High Court, which for arriving at a conclusion other than the one reached by the two Courts below, for disbelieving the evidence relied upon by the two Courts below seems to be correct and the High Court has rightly disbelieved them.
The matter does not end here as there is another important aspect of the case that how an immoveable property has been sold through an oral transaction without even single piece of paper may be in the form of a receipt of the amount or may be in the form of an agreement to sell. Had the property been sold after the decision of the Court of first instance then there was no occasion for the respondent to pursue the case before the appellate Court and after having an adverse decision to go to the High Court by filing a R.S.A and litigating it for about further 10 years before the two appellate forums i.e., District Court and the High Court. It is not the case of the appellant that such a prosecution of the case by the respondent was at his instance or for his benefit or that he has also contributed towards the expenses of the litigation. The case of the respondent is further strengthened by making a report with the police about taking possession forcibly of the property by the appellant as the factum of possession of the appellant otherwise would have gone in his favour. It is a clear cut case of collusion between the appellant and Dhaney Khan, the previous litigant, with the respondent, which deprived the respondent to reap the fruit of the decree passed by the Court in his favour in the previous litigation with Dhaney Khan. The judgments which have been cited by the learned counsel for the appellant with regard to non-interference by the High Court with the concurrent findings of the Courts below i.e.. Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din (1996 SCMR 813), Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139) and Roazi Khan and others v. Nasir and others (1997 SCMR 1849), in the circumstances of the case may not be of any help to the appellant firstly that the High Court has given cogent reasons for interference and also according to the aforesaid referred judgment [Roazi Khan and others (supra)], it is not only the misreading or non-reading of evidence, which justify the interference but even if the same suggests perversity whereby such findings can be interfered with or where approach of Courts below to evidence was perverse as held in the case of Abdul Hakeem (supra) or so perverse that grave injustice would result therefrom as held in the case of Sheikh Muhammad Bashir Ali and others (supra) or the Court fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court as held in the case of Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568). This Court in the case of Sheikh Muhammad v. Hashmat Sultana (1989 SCMR 34) has held that every finding of fact is not immune from interference in revisional jurisdiction as possessed by the High Courts to be exercised when the Courts below commit jurisdictional illegality and this concept i.e., of jurisdictional illegality has been considered by this Court in the case of Kanwal Nain (PLD 1983 SC 53), to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave in justice would result. Applying this test, if the reasons advanced by the High Court are correct on the legal plane, then the two Courts deciding the controverted question of fact, cannot be said to have acted with jurisdiction, if the evidence has been misread or the conclusions drawn are perverse. In the case of Muhammad Bakhsh v. Ellahi Bakhsh and others (2003 SCMR 286), while placing reliance on a judgment of this Court [Maj. Rashid Beg v. Rehman Ullah Khan and 4 others (PLD 2001 SC 443)], the interference in the judgments of the Courts below in exercise of revisional jurisdiction was held to be justified when the findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken. While relying on the principles as laid down by this Court in the afore referred judgments, it can be safely said that no injustice could be done greater than the one in the present case if the suit of the appellant succeeds by defeating the lawful process, of obtaining the possession by the respondent through execution, in round about manner through a collusion.
Resultantly, we see no force in this appeal and the same is dismissed, with no order as to costs.
(N.F.) Appeal dismissed.
PLJ 2007 SC 972
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
PAKISTAN MEDICAL & DENTAL COUNCIL and others--Appellants
versus
ZIAUDDIN MEDICAL UNIVERSITY & others--Respondents
C.A. Nos. 2206/2005 & 721/2006, Crl. A. No. 304/2003, C.P. No. 459 of 2006 and Suo Moto Case No. 8/2006, decided on 15.12.2006.
(On appeal from the orders dated 7.9.2006 and 10.3.2006 of the High Court of Sindh, Karachi, passed in CPD No. 371 of 2005 & CP.D. No. 1664 of 2005, respectively)
Pakistan Medical & Dental Council Ordinance, 1962--
----Ss. 2(1), 3(1)(b)(f), 4, 11, 13, 14 to 23, 28, 33 to 35 & Preamble--Constitution of Pakistan, 1973, Art. 185--Appellate jurisdiction--Entitlement--University was entitled to seek such information as might been necessary or cause inspection of medical or dental institution and seek compliance of regulations framed under the law--Contempt proceedings against the Appellants--Students alleged serious allegations against the college administration--Requested to Council to close down the college and accommodate the students in other recognised medical institution--Suo moto case were decided together--Recognition of medical qualification, its nature, import and concept--Nature of consultation with the council by Government--Representation of chartered university in the council--Representation of the teaching staff of each medical and dental institution on the council--Powers of the council under the law--Validity--Held: Combined reading of preamble, Ss. 11, 20, 21 & 22 would indicate that recognition accorded to medical qualification in terms of S. 11 of necessity would entail recognition of the institution which was imparting training and granting a medical qualification--Law does not contemplate any distinction between a medical institution or a chartered university. [P. 985] B & C
PLD 2004 SC 168 & PLD 2003 Lahore 752, ref.
Pakistan Medical & Dental Council Ordinance, 1962--
----Ss. 2(1), 3(1)(b)(f), 4, 11, 13, 14 to 23, 28, 33 to 35--Educational institution--Maintenance of uniform standard--Recommendation for recognition, de-recognition of medical qualifications--Registration of doctors with recognized medical qualifications within the country or outside the country--Registration of doctors possessing recognized medical qualification from within country or from foreign countries--Making arrangements with foreign countries for according reciprocal recognition to the medical qualifications. [P. 984] A
Pakistan Medical & Dental Council Ordinance, 1962--
----Ss. 2(1), 3(1) (b)(a), 4, 11, 13, 14 to 23, 28, 33 to 35--Nature of consultation with the council by the Federal Government--Held: Expert opinion of the apex body of the medical and dental professionals should be solicited before according recognition to a medical qualification--Opinion or advice rendered by the council may not be binding but the Federal Government has to consider and give it a due weight--Disagreement by the Federal Government must be with reasons in writing. [P. 986] D
Pakistan Medical & Dental Council Ordinance, 1962--
----Ss. 2(1), 3(1)(b)(f), 4, 11, 13, 14 to 23, 28 & 33 to 35--Constitution of Pakistan, 1973, Art. 185--Qualification--Value of--Medical & Dental faculty of a university by itself would be an institution--Only those universities who qualify for representation council whose degrees fall within the ambit of Section 11--Medical qualification granted by a university would require recognition from the Pakistan Medical & Dental Council being a regularity mechanism to ensure uniform quality education case--Universities having medical facilities, and medical institutions would require prior recognition of their respective medical qualifications for getting representation in the Council. [P. 987] E, G & H
Pakistan Medical & Dental Council Ordinance, 1962--
----Ss. 20 & 21--Powers of the medical and dental council--Powers of the council to require information with regard to courses of study and examination and to inspect examination being not exhaustive, may include the ancillary powers for the purpose of achieving the objective of the Ordinance and the regulations framed there under; the council may withdraw recognition accorded to a medical & dental institution in case of non-satisfaction with regard courses of studies and examination. [Pp. 988 & 989] I & J
Interpretation of Statute--
----Education being a concurrent subject under the Constitution--University can be established either under Federal or Provincial law.
[P. 987] F
Constitution of Pakistan, 1973--
----Art. 185--Pakistan Medical & Dental Council Ordinance, 1962 Ss. 2(1), 3(1)(b)(f), 4, 11, 13, 14 to 23, 28 & 33 to 35--Appellate jurisdiction--Declarations and directions made by Supreme Court--Appeal allowed. [Pp. 991, 992 & 993] K
Mr. M. Akram Sheikh, Sr. ASC Assisted by Barrister Rahil Kamran Sh. with Mr. M.A. Zaidi, AOR for Appellants (in Civil Appeal No. 2206 of 2005).
Mr. Anwar Mansoor Khan, ASC for Respondent No. 1 (in Civil Appeal No. 2206 of 2005).
Mr. Tariq Mehmood, Sr. ASC for Respondent No. 2 (in Civil Appeal No. 2206 of 2005).
Ch. Aitzaz Ahsan, Sr. ASC Assisted by Barrister Gohar Ali Khan, for Respondent No. 3 (in Civil Appeal No. 2206 of 2005).
Ms. Nahida Mehboob Elahi, DAG with Raja Abdul Ghafoor, AOR for Respodnent No. 4 (in Civil Appeal No. 2206 of 2005).
Mr. Anwar Mansoor Khan, ASC, Mr. Tariq Mehmood, Sr. ASC with Raja Abdul Ghafoor, AOR for Respondents Nos. 1 & 2 (in C.A. No. 721/2006).
Ms. Nahida Mehboob Elahi, DAG with Ch. Akhtar Ali, AOR for Respondent No. 3 (in C.A. No. 721/2006).
Mehr Khan Malik, AOR for Applicant (in C.A. No. 721/2006).
Mr. M. Bilal, Sr. ASC for Appellant (in Crl. Appeal No. 304 of 2003).
Mr. M. Munir Peracha, ASC, Mehr Khan Malik, AOR and Ch. Akhtar Ali, AOR for Respondent (in Crl. Appeal No. 304 of 2003).
Mr. M. Akram Sheikh, Sr. ASC Assisted by Barrister Rahil Kamran Sh., Mr. M.A. Zaidi, AOR for Petitioners (in C.P. No. 459 of 2006).
Mr. Anwar Mansoor Khan, ASC Raja Abdul Ghafoor, AOR and Ch. Akhtar Ali, AOR for Respondents (in C.P. No. 459 of 2006).
Malik Qamar Afzal, ASC and Barrister Ch. M. Jameel, ASC for Applicant for (in S.M. Case No. 8 of 2006).
Mr. Sohail Karim Hashmi, (Secy. PMDC), Mr. Fazal Ahmed, President PMDC Ms. Nahida Mehboob Elhai, DAG, Raja Saeed Akram, Asstt. A.G., Pb., Raja Abdul Ghafoor, AOR, Ch. Akhtar Ali, AOR and Mr. Ejaz Muhammad Khan, AOR on Court's Call (in S.M. Case No. 8 of 2006).
Date of hearing: 28.11.2006.
Judgment
Tassaduq Hussain Jillani, J.--Medicine has always been a noble, rewarding and cherished profession. No wonder, down the ages, some prompted by mundane considerations, some inspired by idealism and some by the belief that healing is a divine virtue, young men and women in great numbers have chosen it as a career. By the nature of their calling Doctors have been respected, adored and at times subjected to, not too flattering a comment. The poet John Owen was not very off the mark when he said:--
"God and the doctor we alike adore
But only when in danger, not before;
The danger o'er, both are alike requited, God is forgotten, and the Doctor slighted ".
Driven by lofty objectives, motivated to achieve higher standards of professional excellence in Medical & Dental research as also to provide quality services to the needy and to ward off the element of "slight", in public comment, efforts were made to establish regulatory bodies all over the world. In the Indian subcontinent was passed the Indian Medical Council Act, 1934 which formed a body by the name of Indian Medical Council. The Pakistan Medical Council of 1951 replaced by Pakistan Medical & Dental Council established under the Pakistan Medical & Dental Council Ordinance, 1962 are successor bodies to the said Council.
(i) What is the nature and import of the concept of recognition of a medical qualification as contemplated in Section 11 of the Pakistan Medical & Dental Council Ordinance, 1962?
(ii) What is the nature of `consultation' with the Council by the Federal Government, which the law requires the latter to have before passing an order under various provisions of the Ordinance?
(iii) Whether every chartered University having a medical faculty is entitled to representation in the Pakistan Medical & Dental Council in terms of Section 3 of the Ordinance?
(iv) Whether the teaching staff of each Medical & Dental Institution in Pakistan is entitled to representation in accord with Section 3 (f) of the Ordinance?
(v) Whether the Pakistan Medical & Dental Council is empowered to ask for information, make queries, issue directions and take other steps prescribed in law to carry out the purposes of the Ordinance?
The afore-mentioned issues have arisen out of following set of facts and circumstances.
In Civil Appeal No.2206 of 2005, Pakistan Medical & Dental Council has challenged the order dated 07.09.2005, passed by a learned Division Bench of the High Court of Sindh, Karachi, vide which the constitutional petition (C.P.D. No.371 of 2005) was allowed & it was held and directed as under:--
"We are of the considered opinion that the Petitioner No. 2 University as well as the Medical Institutions owned by the Trusts which Petitioners No. 1 and 3 represent are entitled to be represented on the Council of the Respondent No. 1. Indeed the Respondent No. 1 is entitled to seek such information as may be necessary or cause inspection of medical or dental institution as is permissible by Sections 20 and 21 and seek compliance of Regulations framed under Section 33(2), it cannot take away the petitioners ' right to be represented on the Council till such time that their recognition are revoked. We, therefore, direct the Respondent No. 1 to hold elections within 02 months from the announcement of our short order dated 07.09.2005. Above are the reasons of the aforesaid order".
In Civil Appeal No. 721 of 2006, Pakistan Medical & Dental Council has challenged the judgment dated 10.03.2006 passed (in C.P. No.D-1664 of 2005) by a learned Division Bench of the same learned High Court, vide which the earlier judgment/direction referred to in the preceding paragraph was reiterated and the Pakistan Medical Council was directed to convene a meeting for organizing the election of members for representing the respondent/petitioner in the Council in terms of Section 3(1) (b) and 3 (1)(f) of the Ordinance.
In Civil Petition No 459 of 2006, Pakistan Medical & Dental Council has challenged the order dated 25.05.2006 passed in C.P. No.D-619/2000, whereby the learned High Court of Sindh, Karachi held that since the Council did not hold elections in terms of the order passed in C.P.No.D-371 of 2005 (referred to in para 4 above), Petitioner Nos. 1 to 3 & 5 to 8 (Now Respondent Nos.2 to 8 before this Court) shall have a right to participate in the meetings of the Pakistan Medical & Dental Council unless the Notification dated 18.04.2006 of Ministry of Health declaring them elected as members of the Council under Section 3(1)(b) and (f) is set aside.
In Criminal Appeal No.304 of 2003, filed by Dr. Sohail Karim Hashmi, Secretary, Pakistan Medical & Dental Council, the charge sheet dated 03.07.2003, framed by a learned Division Bench of the Lahore High Court, has been challenged, wherein the learned Division Bench held that prima facie the appellant was guilty of violating the undertaking given before the High Court in Intra Court Appeal No.153 of 2003, with regard to carrying out inspection of a medical institution. It issued show-cause notice to the appellant and Dr. Riffat Ansari, Assistant Secretary, Pakistan Medical & Dental Council, as to why they should not be punished for committing contempt of the Court and the reply was sought within four days.
In Suo Moto Case No.8, some students of the independent Medical & Dental College, Faisalabad, addressed a petition to the Hon'ble Chief Justice of Pakistan, levelling serious allegations against the College administration and submitted that on account of omissions and commissions of the College, the students pursuing their professional Degree/Courses are not certain about their future as the medical qualification being given by the respondent had not been accorded recognition by the Pakistan Medical & Dental Council. It has been prayed that the Pakistan Medical & Dental Council be directed to close down the College and accommodate the students in other recognized Medical Institutions of the country.
The Pakistan Medical & Dental Council is a statutory body and in terms of the Pakistan Medical & Dental Council Ordinance, 1962, it is a regulatory authority for the universities having Medical & Dental Faculties and Institutions in Pakistan. The Council has been of the view that only those institutions and the faculties of such medical universities are entitled to be represented in the Council which are imparting education and training for the grant of medical qualifications which have been accorded recognition by the Federal Government in consultation with the Pakistan Medical & Dental Council in terms of Section 11 of the Ordinance. It has maintained that the elections for the membership of the Council from amongst the Medical faculties of universities and Medical Institutions have to be conducted by the Council. Reference was made to Section 3(1)(b) & (f), Sections 4 and 11 of the Pakistan Medical & Dental Council Ordinance, 1962. The Council has been jealous of its mandate to carry out inspections of the Medical & Dental Institutions & their examination centers with a view to ensuring uniform quality and standard of the medical education in Pakistan. Respondent Nos. 1 to 3 (in C.A. No. 2206 of 2005), were petitioners before the learned High Court of Sindh (in C.P. No.D-371 of 2005). Their precise case before the learned High Court was that all Medical and Dental Institutions recognized by the Federal Government have a right to be represented in the Council; that all the three respondent institutions have been accorded recognition in terms of the Pakistan Medical & Dental Council Ordinance, 1962; that elections were carried out by the respective institutions, and therefore, having been elected by Medical faculties, they have a right to be represented in the Medical Council. Civil Appeal No.721 of 2006 is directed against the order of the learned High Court of Sindh in which the same learned Bench reiterated its order passed in C.P. No.371 of 2005. The impugned order (in Civil Petition No.459 of 2006) dated 25.05.2006 was passed by a learned Division Bench of the High Court of Sindh in which constitution petition of Respondent Nos. 2 to 8 representing various medical institutions was allowed. In the said petition, filed by several representatives of medical institutions, it was alleged that notwithstanding the order passed in C.P. No.371 of 2005 by the Sindh High Court (which has been challenged in Civil Appeal No.2206 of 2006) the Medical & Dental Council had not complied with the order on the ground that recognition granted to the medical institutions was provisional, therefore, they were not entitled to be represented on the Council.
Learned counsel for the appellant representing the Pakistan Medical & Dental Council contended that the judgment of the learned High Court of Sindh holding that respondents are entitled to be represented in the Council is not tenable as it does not appreciate the mandate and import of Section 3(1) (b) & (f) of the Pakistan Medical & Dental Council Ordinance. Under these provisions, only those faculties of medical institutions have a right to be represented whose medical qualifications have been recognized by the Federal Government in consultation with the Pakistan Medical & Dental Council. Referring to various provisions of the Pakistan Medical & Dental Council Ordinance, 1962, learned counsel maintained that the lawmakers have prescribed an elaborate procedure of inspection/of inquiry and of inspection of examinations by the Council.
Mr. Anwar Mansoor Khan, learned counsel representing the private respondents, contended that under the Ordinance there is no requirement of recognition to a medical institution by the Federal Government which already stands affiliated with a Pakistan University established by law. He added that Ziauddin Medical University is a chartered University and under Section 3(1)(b) of the Ordinance it has right to be represented in the Council without prior recognition in terms of Section 11 of the Ordinance. He further added that the medical institutions are of two kinds i.e. firstly those which are merely imparting training and secondly those which are imparting training and granting medical degrees. So far as former institutions are concerned there is no concept of recognition by the Federal Government and the institutions which stand affiliated with the Ziauddin Medical University also do not require recognition by the Federal Government as they do not grant degrees and it is the University which grants degrees. He lastly submitted that since the faculties of medical institutions have held elections for members who are to represent them ill the Pakistan Medical & Dental Council, they have a right to be represented and the judgment of the learned High Court of Sindh is unexceptionable. Learned counsel also brought to the notice of this Court that the medical qualifications being granted by Respondents No. 1 (Ziauddin Medical University) & No.2 (Fatima Jinnah Dental College and Hospital Trust) have now been accorded recognition by the Federal Government in terms of Section 11 of the Ordinance.
Mr. Tariq Mehmood, ASC, representing the Fatima Jinnah Dental College & Hospital Trust, submitted that the institution has been accorded recognition by the Federal Government and to its extent there is no live issue.
Mr. Aitzaz Ahsan, Sr.ASC, learned counsel representing Respondent No.3 (Sohail Medical Trust) submitted that the institutions granting medical qualifications affiliated with a Pakistan University established under the law need not be specifically mentioned in the First Schedule of the Ordinance; that the respondent-institution was granted provisional recognition by the Pakistan Medcial & Dental Council; that the concept of provisional recognition is not alien to the Ordinance; that under Section 23 of the Ordinance there is a concept of provisional registration of a medical practitioner; that by extending provisional recognition the Council obliged the respondent to invest a huge sum of money in those medical institutions and it was only with concurrence of the Council that several students were granted admissions in those institutions. It would be rather harsh both to the management and to the students to withdraw such recognition at this stage. He added that the respondent-institution is training and imparting knowledge but the medical qualification is to be granted by the University with whom the respondent-institution is affiliated which is sufficient for the purposes of the Ordinance. He contended that there is no concept of granting recognition to a Medical or a Dental Institution, the same was inserted for the first time by Ordinance No. VII of 1999 which was promulgated on 25th May 1999. But it was never placed before the National Assembly/Parliament within the period stipulated under the Constitution and it lapsed. This according to him reflects the intention of the lawmaker i.e. to dispense with the requirement of prior approval and recognition by the Federal Government to establish a medical institution. Now the Ordinance contemplates recognition of medical qualification and not of a medical institution or a University.
Ms. Naheeda Mehboob Elahi, learned Deputy Attorney General, submitted that the right to confer degrees, diplomas, licenses or certificates or other documents to "practise scientific Medical and Dental System" is with the authorities referred to in Section 3 of the Medical & Dental Degrees Ordinance, 1982 and the Schedule thereunder. She added that unless the Medical or Dental qualification for which the respondents institutions are imparting training is recognized by the Federal Government in consultation with the Pakistan Medical & Dental Council in terms of Section 11 of the Pakistan Medical & Dental Council Ordinance, 1962, these institutions can not seek representation in the Council.
To appreciate the issues raised it would be in order to refer to the relevant provisions of Pakistan Medical & Dental Council Ordinance, 1962. The main object of the Ordinance is reflected in its preamble and it was, "to consolidate the data relating to the registration of medical practitioners and dentists and re-constitute (Medical & Dental Council) in Pakistan in order to establish a uniform minimum standard of basic and higher qualification in medicine and dentistry". The recognized medical qualification has been defined in Section 2 Clause (1), to mean, "any of the medical qualifications included in the first and second schedule or recognized under Sections 14 & 15 of the Ordinance". The composition of the Medical & Dental Council is spelt out in Section 3 of the Ordinance, which reads as under:--
"3, Constitution and composition of the Council.- (1) The Federal Government shall cause to be constituted a Council consisting of the following members, namely:--
(a) one member to be elected by the National Assembly from amongst its members;
(aa) one member from each Province, to be nominated by the Provincial Government;
(b) one member each to be elected by the members of the Syndicate of each Pakistan University from amongst the members of the medical faculty or the dental faculty of the University or, if the University has both a medical faculty and a dental faculty, from amongst the members of the two faculties;
(c) four members to be elected from amongst themselves by the registered medical practitioners;
(d) four members to be nominated by the Federal Government of whom at least one shall be a member of the Armed Forces Medical Services;
(e) two members to be elected amongst themselves by the registered dentists;
(f) one member to be elected by the teaching staff of each medical institution and dental institution in Pakistan from amongst the Professors on its staff, if such institution trains for a medical or dental qualification which is for the time being recognized under this Ordinance;
(g) one member, belonging to the legal profession, to be nominated by the Chief Justice of Pakistan;
(h) the Director General of Health, Government of Pakistan.
(2) The President of the Council shall be elected by the members of the Council from amongst themselves.
(3) No act done by the Council shall be invalid on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Council".
"11. Recognition of medical qualifications granted by medical Institutions in Pakistan.--
(1) The medical qualifications granted by medical institutions in Pakistan which are included in the First Schedule shall be recognised medical qualifications for the purpose of this Ordinance.
(2) Any medical institution in Pakistan which grants a medical qualification not included in the First Schedule may apply to the Federal Government to have such qualification recognised, and the Federal Government after consulting the Council, may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein (Emphasis is supplied).
(3) Such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be recognised medical qualification only when granted after a specified date".
(i) Maintenance of uniform standard of Medical & Dental education (at the graduate and postgraduate level).
(ii) Recommendations for recognition, de-recognition of medical qualifications registration of doctors with recognized medical qualifications within the country or outside the country.
(iii) Registration of doctors possessing recognized medical qualification from within country or from foreign countries.
(iv) Making arrangements with foreign countries for according reciprocal recognition to the medical qualifications.
consultation' with the Council by the Federal Government, which the law requires the latter to have before passing an order under various provisions of the Ordinance? Although the Ordinance does not expressly use the expression ofrecognition' of a training institution but a combined reading of the preamble, Sections 11, 20, 21 & 22 would indicate that recognition accorded to a medical qualification in terms of Section 11 of necessity would entail the recognition of the institution which is imparting training and granting a medical qualification. This is so because to assess whether the medical qualification being granted by an institution is in accord with the standard set by the Council and to ensure "uniform standard of basic and higher qualification in medicine and dentistry", the Council has prescribed the courses of study, watches the teaching standards and has been empowered to inspect, issue directions, monitor the working of the medical
& dental institution or university which trains for, "grants medical or both trains and grants a medical qualification, additional qualification registerable medical license or diploma or any degree, diploma and license in dentistry". In this regard, the law does not contemplate any distinction between a medical institution or a chartered university granting a medical degree. With regard to the power of the Council in the realm of recognition of a qualification and other related matters under the Ordinance this Court approved in "Shafique Ahmed and others vs. Government of Punjab and others
(PLD 2004 SC 168)" the view taken by the Lahore High Court in "Ahmad
Abdullah & 62 others vs. Government of the Punjab and 3 others (PLD 2003
Lahore 752)". In the latter judgment, at page 783, it was held as follows:--"But, so far as the power to grant a Degree in some medical qualification is concerned, no University in Pakistan can issue a Degree in a medical qualification mentioned in the First Schedule to Ordinance XXXII of 1962 unless the said qualification has been accorded prior recognition in terms of Section 11(1)(2) of the said Ordinance which, inter alia, contemplates recognition through a notification to be issued by the Federal Government after prior consultation with Medical Council established under the said Ordinance. This is true of the University of Punjab, the other Universities similarly placed in Pakistan and University of Health Sciences is no exception."
This brings us to the second issue mooted i.e. what is the nature of consultation' with the
Council by the Federal Government, which the law requires the latter to have before passing an order under various provisions of the Ordinance? Under
Section 11 (2) of the Ordinance, it is stipulated that "any institution which grants a medical qualification which is not included in the First
Schedule, may apply to the Federal Government to have such qualification recognized and the Federal Government afterconsulting' the Council may, by notification in the official gazette, amend the First Schedule so as to include such qualification therein". The rationale appears to be that the expert opinion of the apex body of the Medical & Dental professionals should be solicited before according recognition to a medical qualification. The
consultation' envisaged is not theconsultation' of a senior with the junior in administrative hierarchy nor it is a consultation' with a consultant of choice rather it isconsultation' with a statutory body mandated under the law to carry out prescribed functions to achieve certain objectives. The statutory phraseology of consultation has to be understood and expounded in accord and consistent with the law and to promote the objectives given in the context. The
Council being a body of medical and dental professionals, the `consultation' has to be purposive and meaningful. The opinion or advice rendered by the
Council during consultative process may not be binding but the Federal
Government has to consider and give it a due weight. If it chooses to disagree or bypass the advice rendered it has to give reasons in writing. The reasons should reflect an objective understanding of the issue and should be germane to the objectives enshrined in law. Consultation with the Council by the Federal
Government before an order under these provisions is passed is reflective of the legislative intent which is twofold i.e. firstly that it is the Federal
Government which has to pass an order conferring certain legal status to a medical qualification granted by an institution within or outside Pakistan and secondly an order by the Federal Government should be preceded by consultation with the Council.
The third & fourth issues are interrelated and they are being dealt with together. The issues are as under:--
"(iii) Whether every chartered University having a medical faculty is entitled to representation in the Pakistan Medical & Dental Council in terms of Section 3 of the Ordinance?
(v) Whether the teaching staff of each Medical & Dental Institution in Pakistan is entitled to representation in accord with Section 3 (f) of the Ordinance?
At a first look, a plain reading of Section 3(1)(b) gives the impression that every Pakistani University established by a law and having a medical or dental faculty or both has a right of representation. This Section does not require a university to have a prior recognition of its medical qualification (by the Council) to qualify for representation. However, this has to be read alongwith other provisions of the Ordinance. A university which has a medical or a dental faculty, would make arrangements to train, or to train and grant a degree in a medical qualification or to extend affiliation to an institution doing this unless such a qualification is accorded recognition in terms of Section 11 of the Ordinance, the university cannot issue a degree in the said qualification. Even otherwise the medical and dental faculty of a university by itself would be an institution. Therefore, only those universities would qualify for representation in the Council whose degrees fall within the ambit of Section 11. The argument that once, a university is established, the medical qualification it grants does not require recognition in terms of the Ordinance would defeat the very purpose of the Ordinance. Because education being a concurrent subject under the Constitution, a university can be established either under Federal or Provincial law. If such universities are established and they start imparting training or granting degrees of a medical qualification independently of the regulatory mechanism of Pakistan Medical & Dental Council, then each university would run its own courses, and there would be no institution of medical experts at national level to ensure uniform quality education.
In case of Medical Institutions under Section 3(1)(f), "the teaching staff of each medical or dental institution in Pakistan from amongst the Professors on its staff can elect one member for representation in the Council, provided, "such institution trains for a medical or dental qualification which is for the time being recognized under the Ordinance". Thus both the universities established by law in Pakistan having medical faculties and medical institutions would require prior recognition of their respective medical qualifications for getting representation in the Council.
The last fifth issue pertains to the powers of Pakistan Medical & Dental Council and has been framed as follows:--
"v. Whether the Pakistan Medical & Dental Council is empowered to ask for information, make queries, carry out inspections, issue directions and take other steps prescribed in law to carry out the purposes of the Ordinance?"
The powers to require information with regard to courses of study & examination and to inspect examination have been conferred on the Council in terms of Sections 20 & 21. These two provisions stipulate that the Council may require the institutions in Pakistan which train or grant or both train and grant a medical qualification, additional medical qualification, a diploma or a license in dentistry: --
(i) To furnish information regarding courses of study and examination to be undergone in order to obtain a medical qualification in question. The minimum age at which such undergraduate courses of study can be undertaken on admission. The examination required to be undergone prior to such qualifications being conferred, any general information having relevance for obtaining the afore-referred qualification, degree or diploma. The Council can appoint medical or dental Inspector to inspect the medical centers.
(ii) To appoint Inspectors who are mandated under the law not to interfere in the conduct of any examination but they are to report to the Executive Committee on the sufficiency of every examination which they attend and on the courses of study and facilities for teaching provided by the medical or dental institution in question at different stages in respect of such examination.
The powers envisaged under the provisions referred to in the preceding paragraphs are not exhaustive and they may include the ancillary powers which they may exercise to achieve the objective of the Ordinance and the regulations framed thereunder. If the Council is not satisfied on report submitted by its Executive Committee with regard to the courses of studies and examinations, the law mandates that the Council in such an event shall report the matter to the Federal Government which after considering the report transmit the same to the concerned medical or dental institution asking the latter to submit explanation and after receipt of the same and after making any further inquiry if it deems fit may withdraw the recognition.
We may observe that over the last few decades there has been a mushroom growth of Medical and Dental institutions in the private sector. The element of commercialization has been more pronounced than commitment to academic excellence. The travails of education in public sector are appalling and are partly attributable to the lopsided national priorities pursued by those at the helm of affairs. This tempted the private sector to fill the void. The rapid growth of educational institutions in the private sector on the one hand reflect the extent of public need/thirst for education and on the other a deterioration or dearth of State run educational institutions. The quality of education in the private sector leaves much to be desired. Barring a few exceptions it reflects a pathetic state of affairs. There has been a complete absence of any regulatory mechanism in the domain of general education and people have been allowed mostly to fleece the students and their parents. The private sector has entered the realm of medical and dental education as well. In this domain there are regulatory laws but their application needs further improvement. The Pakistan Medical & Dental Council Ordinance and the regulations framed thereunder lay down a comprehensive procedure to ensure uniform and quality medical and dental education. Similarly, the Medical & Dental Degrees Ordinance, 1982 has restricted and regulated the right to confer degrees, diplomas, licenses and certificates to practice in the medical and dental domain and any violation thereof has penal consequences. There is a dire need to enforce the provisions of these laws with a view to promoting not only quality medical and dental education but also to provide better quality of professional services to the people. The need for regulatory mechanism in the realm of general education and in the domain of professional courses has never been greater. The Higher Education Commission has taken a number of regulatory steps to ensure qualitative improvement in the higher education. The Pakistan Medical & Dental Council through the Ordinance and the regulations framed thereunder is mandated to pursue the objective of a uniform standard of Medical and Dental education in the country. All the stakeholders should strengthen these and similar institutions in the country because it is only through these institutions that we can achieve the goals set out in their Charter.
A society in transition witnesses two parallel strains i.e. a process of institutional erosion and attempt by the reformers/idealists to build the institutions. Effort should be to strengthen the latter. Because institutions play a vital role in civilizing a people and in their onward march towards socio-economic and political progress. In the comity of nations the credibility and progress of a country is measured by the strength of its institutions. A nation which fails to respect the institutions falls in grace, decays, splits and is condemned in history. A society bereft of stable institutions would be at odds with itself. The role of institutions in society has been aptly commented upon by (Professor Dr. Douglass C. North in his seminal work, "Institutional Change and Economic Performance"). According to him, "Institutions reduce uncertainty by providing a structure to everyday life. They are a guide to human Interactions, so that when we wish to greet friends on the street, drive an automobile, buy oranges, borrow money, form a business, bury our dead, or whatever, we know (or can learn easily) how to perform these tasks. We would readily observe that institutions differ if we were to try to make the same transactions in a different country, Bangladesh for example. In the jargon of the economist, institutions define and limit the set of choices of individuals. Institutions include any form of constraint that human being devise to shape human interaction. Are institutions formal or informal? They can be either: informal constrains-such as rules that human beings devise and informal constraints-such as conventions and codes of behaviour. Institutions may be created, as was the United States Constitution; or they may simply evolve over time, as does the common law. (Emphasis is supplied").
In the cases in hand, we are seized of the affairs of a professional regulatory institution. Such institutions stand on a set of rules prescribing the objective to be pursued, courses to be followed and a code of ethics to be honoured. The medical graduates would deliver, would be worthy of their noble calling, and would be respected within and outside the country only if they pass through the rigorous courses of study, abide by the parameters of academic discipline and the code of professional ethics which the Council has laid down. But above all, the Council itself has an onerous duty to perform and a responsibility to shoulder. The institution would be made or marred partly by what it does to itself, to its mandate, to the oath of its calling and to the law of which it is a creature.
For what has been discussed above. Civil Appeal Nos.2206 of 2005, 721 of 2006, Criminal Appeal No.304 of 2003, Civil Petition No.459 of 2006 after conversion into appeal & Suo Moto Case No. 8 of 2006, are allowed, the impugned judgments are set aside and we are inclined to hold, declare and direct as under:--
(i) No medical institution or university can train or grant a medical or dental qualification or train and grant both unless the said qualification, degree or diploma has been accorded recognition in terms of Section 11 of the Pakistan Medical & Dental Council Ordinance, 1962.
(ii) The Federal Government before according recognition in terms of Section 11 has to have a meaningful and purposive `consultation' with the Pakistan Medical & Dental Council and the order to be passed in this regard has to be germane to the purposes and objects of the law.
(iii) Every University established by law in Pakistan having a medical or dental faculty or both and every Medical & Dental Institution performing a similar function have a right of representation in terms of Section 3(1) (b) & (f) of the Ordinance, provided the medical qualification or diploma for which they are training the students in their university/institution have been accorded recognition as prescribed under Section 11 of the Ordinance.
(iv) There is no concept of provisional recognition of a medical qualification issued by a medical institution either under the Pakistan Medical & Dental Council Ordinance or the Regulations framed thereunder. Since on account of the act of Pakistan Medical & Dental Council and the Federal Government certain medical qualification/degree/diploma being issued by certain medical institutions have been granted provisional recognition and on account of this, several students admitted in those institutions and they may be at various stages of their professional courses, we are not inclined to direct immediate closure of these institutions.
(v) The cases of these colleges/institutions having provisional recognition shall be taken up by the Council. The institutions are given six months time from the announcement of this judgment to make up the deficiencies and submit a detailed report to the Pakistan Medical & Dental Council and thereafter the Council having examined the reports and carrying out requisite inspections, if deemed necessary, shall submit its recommendations to the Federal Government which shall decide the matter by 14th August 2007.
(vi) The medical institutions whose cases do not qualify for recognition in terms of Section 11 of the Ordinance and no order qua recognition of their medical qualification is passed by the Federal Government, by the afore-referred date shall not be allowed to function thereafter.
(vii) The students studying in the institutions/colleges who were accorded provisional recognition and whose cases are not approved in terms of Section 11 of the Ordinance, shall be accommodated by the Federal Government in various medical institutions of their respective provinces of residence. Necessary steps shall be taken by the Federal Government so that the students are not put under any mental pressure and their studies do not suffer on account of this exercise. This is being done firstly, because the Pakistan Medical & Dental Council & the Federal Government have been partly responsible for their admissions when it granted provisional recognition and secondly, on Court query the Secretary, Pakistan Medical & Dental Council undertakes that the Council with the assistance of the Federal Government shall ensure that these students are accommodated in Medical & Dental Institutions of their respective Provinces.
(viii) The Council shall ensure that all necessary steps are taken for the composition of the Council in accord with the afore-referred provisions under Section 4 of the Pakistan Medical & Dental Council Ordinance. It is the Council which has to conduct elections in terms of clauses (b) (c) (e) or (f) of sub-section 1 of Section 3 and a meeting of the Council shall be held within six weeks of the pronouncement of the judgment.
(ix) The Federal Ministry of Health, Government of Pakistan is directed to ensure that the mandate of the Pakistan Medical & Dental Council Ordinance, 1962 & Medical & Dental Degrees Ordinance, 1982 is given effect to in letter and spirit and any violation of these laws are met with penal consequences as envisaged under the law.
(x) In view of our findings in para 22 above with regard to powers of the Council qua inspection of a Medical Institution, the proceedings of contempt against the appellants are uncalled for. Therefore, Criminal Appeal No.304 of 2003 is allowed and the proceedings before the High Court, Rawalpindi Bench are set aside.
In view of terms noted above, all these appeals & petitions are disposed off.
(M.A.) Order accordingly.
PLJ 2007 SC 993
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Falak Sher, JJ.
HAROON--Appellant
versus
STATE--Respondent
Crl. A. No. 164 of 2007, decided on 7.6.2007.
(On appeal from the judgment dated 16.2.2006 of the Lahore High Court, Lahore, in Criminal Appeal No. 193 of 2005).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Anti-Terrorism Act, (XXVII of 1997), Ss. 7(b)(c)(h)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence--Challenge to--Benefit of doubt--Falsely implicated--Held: According to the case of prosecution, one person informed about the presence of contraband in the house whereupon complainant party went to his place of residence--Though the incident took place at the house of "P" but he was not apprehended and shown an accused in the case--Another important aspect which lost sight of the Courts below was that "S" who disclosed about appellant riding on the motorcycle was not cited as witness in the case--The third and important aspect which was also not considered by the Courts below was that the owner of the motorcycle was neither examined as witness nor arrayed as an accused though motorcycle said to had been used in crime was recovered from the spot--Accused fired from pistol which injured constable but presence of blunt weapon injury on his person negates the above version--He was fired from pistol but the medical evidence revealed that there were no corresponding holes on the shirt and the shalwar of the injured--Even blood was not noticed on the clothes of the injured which were taken into possession by police--Held: Prosecution had not been able to prove its case beyond any shadow of doubt--Appellant was entitled to the benefit of doubt and deserved acquittal--Appeal accepted. [P. 997] A & B
Mr. Hafizur Rehman, ASC for Appellant.
Ch. Munir Sadiq, Dy. P.G. Punjab.
Date of hearing: 7.6.2007.
Judgment
Abdul Hameed Dogar, J.--This appeal by leave is directed against the judgment dated 16.2.2006 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No. 193 of 2005 filed by appellant was dismissed and the sentence and conviction recorded by the trial Court were maintained.
Briefly, stated the facts of the case according to the complaint lodged by Muhammad Amin, S.I. are that on 27.4.2004 at about 11.00 a.m. he had arrested a person, namely, Shahzad Butt along with charas. During the course of interrogation, he disclosed that he purchased the aforesaid charas from one Parvez alias Peja Kasai resident of Kacha Nisbat Road, Lahore, whereupon a raiding party was constituted which raided at the house of said Parvez and knocked at his door. In the meanwhile a. person riding a motorcycle Honda CD-70 bearing registration No.LRW-8267 reached there. By seeing him, Shahzad Butt disclosed that the rider of the motorcycle was Haroon appellant and he was also involved in the sale of charas. On this disclosure, complaint tried to apprehend him but appellant alighted from the motorcycle and started firing at the policy party, as a result of which Muhammad Aslam constable received injuries on different parts of his body but the complainant remained uninjured. The appellant ran away while making firing and leaving his motorcycle at the spot.
The appellant was arrested on 2.7.2004. He led the police party to his house and got recovered pistol along with three live bullets.
On completion of investigation, appellant was sent up to face trial before the Court of Special Judge, Anti-Terrorism No. III, Lahore. In order to establish its case, the prosecution examined eight witnesses, namely, Muhammad Amin, S.I. complainant PW-1, Muhammad Aslam PW-2, Tahir Ikram, S.I. PW-3, Mubarak Ali, FC PW-4, Shahbaz Ahmed F.C PW-5, Muhammad Yousuf, ASI, PW-6, Dr. Tahir Zulfiqar PW-7 and Irshad Ahmad, S.I. PW-8.
The appellant in his statement recorded under Section 342 Cr.P.C. claimed innocence and pleaded that he was involved in this case falsely by the complainant and PWs with the connivance of one Pervez alias Peja due to party friction. He neither examined himself on Oath as required under Section 340(2) Cr.P.C nor produced any evidence in his defence.
On conclusion of trial, the learned trial Court convicted and sentenced the appellant as under:
(i) UNDER SECTION 7(b) OF ATA, 1997.
To suffer rigorous imprisonment for five years with a fine of Rs. 5,000/- or in default of payment thereof to further suffer simple imprisonment for two months.
(ii) UNDER SECTION 7(c) OF ATA, 1997.
To undergo rigorous imprisonment for seven years with a fine of Rs.5,000/- or in default of payment thereof to further suffer simple imprisonment for six months. The fine, if realized, was ordered to be paid to the injured, namely, Muhammad Aslam, Constable.
(iii) UNDER SECTION 7(h) OF ATA, 1997.
To suffer rigorous imprisonment for one year with a fine of Rs. 1,000/- or in default of payment thereof to further suffer simple imprisonment for one month.
All the sentences had been ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was extended to the appellant.
Feeling aggrieved from the conviction and sentence, appellant preferred Criminal Appeal No. 164 of 2007 before the learned Lahore High Court, which was dismissed as stated above.
Leave to appeal was granted by this Court on 24.5.2007 to consider, inter alia, the allowing contentions of the learned counsel for the appellant which requires deeper appreciation of the case:
(i) that the evidence of eye-witnesses, namely, PW-1 Muhammad Aslam, PW-2 Muhammad Aslam injured constable and PW-6 Muhammad Yousaf is not consistent with the medical evidence inasmuch none of them has stated about the presence of injury by a blunt weapon;
(ii) that the doctor who examined injured PW-2 Muhammad Aslam, who was taken directly from the place of incident to the hospital, did not find holes in the dress corresponding to the fire arm injuries;
(iii) that the prosecution did not take into possession clothes of injured constable PW-2 Muhammad Aslam which definitely would have blood-stained on them as he had admittedly received three grazing fire arm wounds; and
(iv) lastly that the motorcycle said to have been used by the appellant and taken into possession by the prosecution did not belong to the appellant but to one Imran who was not produced.
We have heard Mr. Hifzur Rehman, learned ASC for the appellant and Ch. Munir Sadiq, learned Deputy Prosecutor General Punjab for the State and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel appearing on behalf of the appellant mainly contended that the appellant has been falsely implicated in the case. He further contended that there are material discrepancies in the medical evidence and the ocular evidence. According to him the evidence of eye-witnesses, namely, PW-1 Muhammad Amin, PW-2 Muhammad Aslam injured Constable and PW-6 Muhammad Yousaf is not consistent with the medical evidence and even none of them stated about the presence of blunt weapon injury. He contended that the prosecution has failed to produce any independent public witness. According to him the motorcycle said to have been used by the appellant and taken into possession by the prosecution did not belong to the appellant but to one Imran who was not produced as a witness. He contended that in the medical examination of injured PW-2 Muhammad Aslam, the doctor did not find holes in the dress corresponding to the fire arm injuries. He also argued that even the police did not take into possession clothes of injured PW-2 Muhammad Aslam which definitely would have blood stains on them as he had admittedly received three fire arm injuries.
The learned counsel for the State supported the impugned judgment and contended that the conviction and sentence were rightly awarded to the appellant by the trial Court and affirmed by the High Court and the appellant has not been able to show any reason for his false implication in the case.
It is pertinent to note that the Courts below have not appreciated the evidence in its true prospective. According to the case of the prosecution, one Shahzad Butt, informed about the presence of contraband in the house of Pervez alias Peja whereupon complainant party went to his place of residence. It is strange enough that though the incident took place at the house of Pervez alias Peja but he was not apprehended and shown an accused in the case. Another important aspect which lost sight of the Courts below is that Shahzad Butt who disclosed about appellant riding on the motorcycle was not cited as witness in the case. The third and important aspect which was also not considered by the Courts below was that the owner of the motorcycle namely, Imran, was neither examined as witness nor arrayed as an accused though motor cycle said to have been used in crime was recovered from the spot. According to the case of prosecution disclosed by eye-witnesses, namely, PW-1 Muhammad Amin, S.I. and PW-6 Muhammad Yousaf, ASI that appellant fired from pistol which injured Muhammad Aslam constable but presence of blunt weapon injury on his person negates the above version. He was fired from pistol but the medical evidence reveals that there were no corresponding holes on the shirt and the shalwar of the injured. Even blood was not noticed on the clothes of the injured which were taken into possession by police.
From the above factors, we are of the considered opinion that the prosecution has not been able to prove its case beyond any shadow of doubt. Resultantly, the appellant is entitled to the benefit of doubt and deserves acquittal.
These are the reasons of our short order of even date which reads as:
"For the reasons to be recorded separately, this appeal is accepted and the judgment impugned is set aside. Haroon son of Ahmed Din appellant shall be released in case FIR No. 222 dated 27.4.2004 of Police Station Gowalmandi, Lahore, under Sections 324, 337-F(ii), 337-L(2), 353 PPC read with Section 7 of the Anti Terrorism Act, 1997, forthwith if not required in any other case."
(A.S.) Appeal accepted
PLJ 2007 SC 998
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Hamid Ali Mirza, JJ.
MUSLIM COMMERCIAL BANK--Petitioner
versus
SHAMSUL AULIA--Respondent
Civil Petition No. 1500 of 2005, decided on 27.2.2007.
(On appeal against the judgment dated 14.3.2005 passed by Peshawar High Court, Peshawar in Labour Appeal No. 35/2005).
Constitution of Pakistan, 1973--
----Art. 185(3)--Industrial Relations Ordinance, (XXIII of 1969), S. 25-A--Dismissal from service--Misappropriation of irregular payments--Departmental inquiry--Dismissed from service on the basis of guilty--Penalty of stoppage of increments--Grievance petition--Bank staff rules--Negligence--Held: Grievance petition filed by employee/respondent was initially dismissed by Labour Court--Labour Appellate Tribunal allowed the grievance petition and reinstated him in service--Assailed--Validity--Held: Under the Bank Staff Rules, a cashier before making payment, is required to obtain signatures of the person who presented the cheque and also verify the identity of such person whereas the respondent allowed encashment of certain cheques without proper verification of signatures of the person who presented the cheque and his identity in consequence to which the Bank suffered loss both in terms of money and reputation, he has neither been able to give a satisfactory answer nor could convince the Court that respondent was not negligent or in the light of concurrent findings of the Labour Court and the Tribunal on the charge of misconduct--Bank was successful in establishing the charge of willful negligence against respondent--Minor penalty of stoppage of two increments for a period of two years, would be sufficient to meet the ends of justice--Petition converted into appeal and accepted.
[Pp. 1000 & 1001] A & B
Qazi Muhammad Anwar, ASC Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Raja M. Ibrahim Satti, ASC with Mr. M.S. Khattak, AOR for Respondent.
Date of hearing: 27.2.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185 (3) of the Constitution has been filed against the judgment dated 14.3.2005 passed by a learned Judge in chamber of Peshawar High Court, Peshawar, in a labour appeal arising out of a petition filed by the respondent under Section 25-A of the Industrial Relations Ordinance (IRO).
The relevant facts in the background are that the respondent was employed in Muslim Commercial Bank and while posted as Cashier in Bisham Branch, District Shangla, he alongwith Attaullah, Manager of the Branch, was served with the charge-sheet containing the allegation of misappreciation of the irregular payments made on 31 cheques during the period from January 1997 to October 1998 and was proceeded against for the charge of misconduct under Bank Staff Rules. In the departmental inquiry, the petitioner and his companion was found guilty of the charge and the competent authority in the light of inquiry report and the concerned material, dismissed them from service.
The grievance petition filed by the respondent under Section 25-A of IRO, 1969, before the Labour Court was initially dismissed on the ground that he was not a 'workman' in terms of Section 2 (xxviii) of IRQ, 1969 and could not maintain such a petition before the Labour Court, but subsequently, on remand of the case by the NWFP Labour Appellate Tribunal, the Labour Court in the post-remand proceedings allowed the grievance petition and reinstated him in service. The appellant Bank challenged the order of Labour Court in an appeal before the NWFP Labour Appellate Tribunal and on the dismissal of the appeal, has filed the present petition.
Learned counsel for the petitioner having read before us the charge against the respondent, has contended that notwithstanding the fact that no financial loss was caused to the Bank and respondent was also not found to have misappropriated the amount in question, in consequence to the gross negligence of respondent, the Bank in addition to the temporary loss of money also suffered loss of reputation as a financial institution and at-least the charge of negligence was proved beyond any doubt. Learned counsel has contended that the judgment of the Tribunal was self-contradictory as on one hand Tribunal observed that the lack of vigilance on the part of respondent not to follow the instructions regarding obtaining of signatures of the person who presented the cheque, was apparent on the record which may constitute an act of gross negligence but on the other hand held that respondent was not responsible to the irregular payments and did not facilitate misappropriation of the amount in question.
Learned counsel for the respondent, on the contrary submitted that the Labour Court having come to the conclusion that charge against the respondent was not as such proved in the departmental inquiry, allowed the grievance petition and in appeal filed by the Bank, the NWFP Labour Appellate Tribunal affirmed the judgment of the Labour Court, therefore, notwithstanding the observation of Tribunal regarding the negligence of the respondent, the concurrent finding of two Courts on the charge of misconduct being not suffering from any legal or factual infirmity would not call for interference of this Court.
This is correct that usually this Court is reluctant to interfere in the concurrent findings of the Courts on a question of fact or a mixed question of law and fact based on evidence and mere fact that another view of the evidence was also possible or a wrong view of the evidence was taken by the concerned forum may not be a valid ground for interference of this Court. However, in the light of the facts of the present case, when we confronted the learned counsel for the respondent that under the Bank Staff Rules, a cashier before making payment, is required to obtain signatures of the person who presented the cheque and also verify the identity of such person whereas the respondent allowed encashment of certain cheques without proper verification of signatures of the person who presented the cheque and his identity in consequence to which the Bank suffered loss both in terms of money and reputation, he has neither been able to give a satisfactory answer nor could convince us that respondent was not negligent or in the light of concurrent findings of the Labour Court and the Tribunal on the charge of misconduct, the act of negligence would have no material effect on the transaction. The learned counsel for the petitioner however, without pressing this petition on merits for setting aside the order of reinstatement of respondent in service, submitted that in the facts and circumstances of the present case, the reinstatement of respondent with all back-benefits was not justified and if the order in respect of payment of back-benefits is set aside, the appellant would be satisfied. Learned counsel for the respondent, on the other hand, has stated that the back-benefits have already been paid to the respondent and to put him under financial burden at this stage may not be justified rather imposition of any minor penalty provided under the Bank Staff Rules, would be sufficient to meet the ends of justice.
We having heard the learned counsel for the parties and examined the record in detail with their assistance, have not been able to find out any defect in the judgment so far as it relates to the reinstatement of respondent and payment of back-benefits is concerned. However, we may point out that the Labour Appellate Tribunal having come to the conclusion that Bank was successful in establishing the charge of willful negligence against the respondent, instead of proposing even a minor penalty commensurating with the nature of charge, dismissed the appeal and affirmed the order of Labour Court. In view of the peculiar circumstances of the present case and the finding of the Labour Appellate Tribunal as well as the position taken by the learned counsel for the parties, we are of the considered opinion that minor penalty of stoppage of two increments for a period of two years, would be sufficient to meet the ends of justice. Consequently, we convert this petition into an appeal and modifying the judgment of the Tribunal direct that respondent shall undergo the penalty of the stoppage of two increments for two years without accumulative effect. This appeal in the above terms stands partly allowed with no order as to the costs.
(A.S.) Appeal accepted.
PLJ 2007 SC 1001
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Falak Sher, JJ.
MUHAMMAD JAMSHED--Petitioner
versus
STATE--Respondent
Crl. P. No. 118 of 2007, decided on 28.5.2007.
(On appeal from the judgment dated 26.3.2007 of the Peshawar High Court, D.I. Khan Bench in Criminal Appeal No. 20 of 2006).
Prevention of Corruption Act, 1947 (II of 1947)--
----S. 5(2)--Pakistan Penal Code, (XLV of 1860), S. 161--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Criminal misconduct--Illegal gratification--Accused was Reader in the Court, demanded Rs. 1500/- as illegal gratification from him to get the bail bond attested--On the direction of Sessions Judge, a raid was conducted by Senior Civil Judge and under his supervision the raiding party got arrested the accused and from his possession, they recovered specified amount which were illegally obtained by him--Held: High Court deeply scrutinized the entire evidence and attended to all the material aspects of the case, which do not suffer from any misreading or non-reading of the evidence--No illegality or infirmity in the impugned judgment could be pointed out and findings of the guilty recorded by trial Court were based on evidence, which in peculiar facts and circumstances of the case do not call for re-appraisal by Supreme Court--Leave to appeal refused. [Pp. 1004 & 1005] A & C
Criminal Justice--
----Principle--While deciding the case the circumstances of each case are to be examined independently as the facts of one case differs from the facts of the other case. [P. 1004] B
Mr. Abdul Karim Khan Kundi, ASC with Ch. Muhammad Akram, AOR for Petitioner.
Mr. Muhammad Zaman Bhatti, ASC for Respondent.
Date of hearing: 28.5.2007.
Judgment
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 26.3.2007 of a learned Judge in Chambers of the Peshawar High Court, D.I. Bench whereby Criminal Appeal No. 20 of 2006 filed by him was dismissed.
Briefly, stated the facts giving rise to the filing of the instant petition are that on 29.10.2004 complainant Shah Mahmood Shah lodged FIR at Police Station Anti-Corruption Establishment D.I. Khan wherein he alleged that his brother namely Sardar Shah was behind the bar in case FIR No. 228 dated 19.6.2004 under Sections 406/420 PPC. On 9.10.2004 he was allowed bail by Judicial Magistrate, D.I. Khan. The petitioner, who was Reader in that Court, demanded Rs.1500/- as illegal gratification from him to get the bail bond attested. A raiding party was constituted and on the direction of learned District & Sessions Judge, D.I. Khan, a raid was conducted by Senior Civil Judge, D.I. Khan and under his supervision the raiding party got arrested the petitioner and from his possession they recovered Rs. 1500/- which were illegally obtained by him from the complainant for getting the bail bond attested. The petitioner was arrested and tainted money of Rs.1500/- was recovered from his possession whereby a case under Section 161 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as `the Act') was registered against him.
The petitioner was confronted with the charges which he refuted and pleaded innocence and claimed trial.
In order to establish its case, the prosecution examined PW-1 Muhammad Daud Khan, PW-2 Fazal Rehman Execution Moharrar to Civil Judge Ist Class, PW-3 Anwar Saeed Kundi, Assistant Director Anti Corruption, PW-4 Malik Tariq, Circle Officer, Anti-Corruption, PW-5 Mr. Dost Muhammad Khan, Civil Judge/Judicial Magistrate, PW-6 Syed Aqeel Aajiz, Magistrate and PW-7 Shah Mahmood Shah complainant.
Petitioner in his statement recorded under Section 342 Cr.P.C. denied the charges and pleaded that he had been involved in this case falsely by the Anti-corruption staff in collusion with the complainant. He appeared himself in his defence and got recorded statement under Section 340(2) Cr.P.C. However, he produced DW-1 Haq Nawaz in his defence.
On conclusion of trial, the trial Court vide judgment dated 16.5.2006 found the petitioner guilty under Section 5(2) of the Act and was sentenced to undergo R.I. for two years and a fine of Rs. 10,000/- or in default to further undergo for three months S.I. The petitioner was also convicted under Section 161 P.P.C and was sentenced to one year R.I.
Feeling aggrieved, the petitioner challenged the aforesaid judgment before the learned Peshawar High Court, which was dismissed as stated above.
We have heard Mr. Abdul Karim Khan Kundi, learned counsel for the petitioner and Mr. Muhammad Zaman Bhatti, learned counsel for the State and have gone through the record and the proceedings of the case in minute particulars.
Mr. Abdul Karim Khan Kundi, learned ASC for the petitioner contended that the prosecution has failed to prove beyond any doubt that the petitioner is guilty of offence, therefore, conviction and sentence awarded to him is not sustainable in law. He further contended that there is no sanction available on the record as is necessary and mandatory under the relevant law rendering the entire trial as nullity in law. According to him it is not proved on record that either the delivery of the money by the complainant to the petitioner was seen by the Raiding Party or they had heard the conversation between the petitioner and the complainant. He was of the view that the purpose of delivery of the tainted money was not proved and the mere recovery of the tainted money from the pocket of the petitioner was of no use to the prosecution. He contended that prosecution has not produced any evidence with regard to passing of trap money to the petitioner. According to him the petitioner was not present in the Court and his waistcoat was hanging with the chair in which the money was put and later on the raiding party arrested the petitioner and recovered the said amount thereby making the petitioner as scapegoat. He contended that the statement of the complainant was not recorded before the raid and F.I.R. was not chalked out. He further contended that it was also not proved from the record that who provided the tainted money for the raid in question. He argued that the witness of the recovery memo stated that he signed the recovery memo in the office, which had made the recovery doubtful.
On the other hand, Mr. Muhammad Zaman Bhatti, Learned counsel on behalf of the State has supported the impugned judgment for the reasons enumerated therein and further pointed out that no illegality whatsoever has been committed by the trial Court as well as the learned High Court and judgment being well-reasoned does not warrant interference. He contended that the prosecution evidence was reliable as permission of the District & Sessions Judge, D.I. Khan was obtained in advance, who deputed the Senior Civil Judge to conduct the raid. He further contended that the learned Senior Civil Judge in the presence of Circle Officer, Anti-Corruption Establishment and other Staff conducted the raid and recovered an amount of Rs.1500/- from the pocket of the petitioner, which was tainted money.
It is an admitted fact that at the time of raid, petitioner was serving as Reader in the Court of Mr. Dost Muhammad Khan, Civil Judge/Judicial Magistrate, D.I. Khan and that in case FIR No.228 dated 19.6.2004 under Sections 406/420 PPC, bail was granted to an accused Sarwar Shah, brother of Shah Mahmood Shah complainant on 9.10.2004. The petitioner kept the bail bond pending on one pretext or the other till 29.10.2004. The petitioner demanded Rs.1500/- from the complainant with the promise that he would get the surety bonds attested from the Court. According to the prosecution necessary sanction was obtained from the District & Sessions Judge, D.I. Khan for conducting the raid and a Senior Civil Judge was deputed to conduct the raid. The Senior Civil Judge in presence of Circle Officer, Anti-Corruption Establishment and other Staff conducted the raid and recovered the amount of Rs.1500/- from the pocket of the petitioner, which was tainted money. It is settled, principle of law in criminal cases that while deciding the case the circumstances of each case are to be examined independently as the facts of one case differs from the facts of the other case. The instant case is of its own nature in which irrespective of learned District and Sessions Judge, Senior Civil Judge and Civil Judge/Ist Class Magistrate were part and parcel of the raid. It was on the directions of learned District and Sessions Judge, Senior Civil Judge conducted the raid and secured tainted money along with file containing bail bond in the name of Syed Safdar Shah son of Juma Khan and also three photo copies of NIC of sureties and identifier. On the contrary the defence plea taken by Haq Nawaz (DW-1) that he was given Rs.1500/- by Shah Mahmood for returning to petitioner from whom he got the amount as loan, goes to show that tainted money was recovered from petitioner.
In our considered view, the learned trial Court, as well as the learned High Court deeply scrutinized the entire evidence and attended to all the material aspects of the case, which do not suffer from any misreading or non-reading of the evidence. No illegality or infirmity in the impugned judgment could be pointed out and the findings of the guilt recorded by the trial Court are based on evidence, which in peculiar facts and circumstances of the case do not call for reappraisal by this Court.
Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(A.S.) Leave refused.
PLJ 2007 SC 1005
[Appellate Jurisdiction]
Present: Rana Bhagwandas, HACJ, Tassaduq Hussain Jillani & Nasir-ul-Mulk, JJ.
TASNEEM ISMAIL etc.--Appellants
versus
M/s WAFI ASSOCIATES etc.--Respondents
Civil Appeal No. 823 of 2000, decided on 4.4.2007.
(Against the judgment/order of the Lahore High Court dated 11.5.1999 passed in FAO No. 74 of 1999).
Decree--
----Principle--A decree in a suit for specific performance is not a final decree so as to debar the Court from extending the period fixed for depositing the sale consideration. [P. 1013] A
Words and Phrases--
----The Expression "shall be dismissed" does not envisage automatic--It contemplates a further judicial order dismissing the suit--Distinction between this expression and "shall stand dismissed" or "were be treated as dismissed" has been a subject of comment. [P. 1016] B
Specific Relief Act, 1877 (I of 1877)--
----S. 35(c)--Suit for specific performance--Withdrawal of sale consideration--Rescission of the contract--Default of deposit of sale consideration by the purchaser within stipulated time--Principle of lis pendens--Validity--Deposit of sale consideration by assignee was of no avail--Because the so-called assignment in his favour was not a valid assignment as the decree holder had no power to do so after having transferred his right and interest in favour of respondent, subsequent purported transfer in favour of assignee was hit by principle of his pendens--High Court allowed to deposit the sale price and even if the so-called assignment in favour of assignee was considered to be valid the said assignee at the leave granting stage made a prayer for withdrawal of the sale consideration deposited by him--Held: Balance sale consideration was no longer deposited and contract warrants rescission on that count as well--Appeal allowed.
[Pp. 1017 & 1018] C & D
Mr. S. M. Zafar, Sr. ASC and Mr. M.A. Zaidi, AOR for Appellants.
Syed Sharif-ud-Din Pirzada, Sr. ASC, Mr. Amir Alam Khan, ASC and Mehr Khan Malik, AOR for Respondent No. 1.
Mr. Farooq Amjad Mir, ASC and Raja Abdul Ghafoor, AOR for Applicants (in CMA 1954/03).
Nemo for Respondent No. 2.
Date of hearing: 4.4.2007.
Judgment
Tassaduq Hussain Jillani, J.--This appeal by leave of this Court is directed against the judgment dated 11.05.1999, passed by a learned Single Judge of the Lahore High Court, vide which the appeal of respondent-vendee was allowed, the joint application moved by the judgment-debtor and the alleged assignee (in a suit for specific performance of sale agreement) was accepted, the period for depositing the balance sale consideration was extended and they were directed to deposit the balance amount of Rs. 3,87,34,450/- upto 13.5.1999.
"1. That the captioned CPSLA is pending disposal before this Hon'ble Court and is fixed for hearing on 19.11.1998.
That dispute between the respondents and M/s Wafai Associates (Pvt) Limited with respect to a sale agreement relating to Property No. 134 (Commercial Plot) Block E-I, Gulberg-III, Lahore measuring 3 kanal 4 marla 116 Sq.Ft. etc as per terms of agreement to sell dated 30.8.1997 (suit property) is pending disposal before the Civil Court in the shape of a suit for specific performance of contract.
That the Alflah Bank's suit for the recovery of
Rs. 28,082,782/96 is also pending in the Banking Court against the respondents.
(a) That M/s. Wafi Associates have agreed to pay & deposit the balance sale consideration of Rs. 3,87,34,450/-- within a period of four months computing from the date of decree.
(b) That on payment/receipt of the aforesaid price of
Rs. 3,87,34,450/- M/s. Tasneem Ismail etc. (Respondents in the petition) shall undertake to execute the sale-deed in favour of M/s. Wafi Associates regarding Property No. 134-E-I, Gulberg-III, Lahore measuring 3 kanal 4 marla 116 Sq.Ft. (suit property) as per agreement of sale dated 30.8.1997.
(c) That it has been agreed by M/s. Tasneem Ismail etc. (respondents) that after the receipt of the consideration of the aforesaid sale proceeds of
Rs. 3,87,34,450/- a sum of Rs. 6.5 million shall be paid to M/s. Alflah Bank immediately. In consideration thereof the Bank has agreed that it has no objection to the sale of the properly to M/s. Wafi Associates as mentioned above and has further agreed to forego all their claims rights interest in the above said property.
(d) That the parties have agreed that a joint application shall be filed on 21.11.1998 before the learned Civil Judge for passing a decree for specific performance of the contract in favour of M/s. Wafi Associates in the terms agreed upon.
(e) That in case M/s. Wafi Associates fail to deposit, pay the balance of price amounting to Rs. 3,87,34,450/- to M/s. Tasneem Ismail etc (Respondents) as agreed upon, within the specified period of 4 months, the suit for specific performance shall be dismissed.
That the parties to the petition and Bank Alflah have entered into a lawful compromise the terms of which have been recorded above. It is in the interest of justice that the present petition may be disposed of on the above terms.
It is therefore respectfully prayed that this august Court may graciously record the aforesaid terms of agreement and the present petition may kindly be disposed of on the above terms and the learned Civil Judge, before whom the suit for specific performance is pending and fixed for hearing on 21.11.1998 may kindly be directed to decree the suit in view of the above terms on 21.11.1998."
Pursuant to the afore-referred order, the parties moved the learned trial Court. The vendee also moved the said Court for adjustment in the sale price by way of an application under Section 151 CPC. The latter application was dismissed by the trial Court on the ground that it could not vary the order of this Court referred to above. However, the Court decreed the suit in terms of the consent order of this Court and it was directed that the plaintiff shall deposit a sum of Rs. 3,87,34,450/- in the Court till 21.03.1999, failing which the suit shall stand dismissed. This was vide order dated 17.03.1999. The same day the application dated 16.03.1999 jointly filed by respondent-decree holder and Respondent No. 2 Abdul Waheed to the effect that since the decree holder had transferred his rights in favour of the latter and he being the assignee be allowed to deposit the decretal amount was dismissed by the learned trial Court on the ground that the Court could not vary the decree as it had become functus officio. An appeal (FAO No.74 of 1999) was filed before the High Court by the decree holder wherein Abdul Waheed was impleaded as respondent. During the pendency of the said appeal i.e. on 06.05.1999, Respondent No. 1, the vendee/decree holder executed a fresh agreement of sale/assignment in favour of Muhammad Ashraf in which the amount of consideration was fixed afresh. On 11.05.1999, when the FAO came up for hearing before the High Court, the Court was not informed about the afore-referred subsequent purported assignment (in favour of Muhammad Ashraf) and consequently with the acceptance of the appeal the by High Court the joint application of the decree holder and Abdul Waheed assignee was allowed (who was arrayed as Respondent No. 6 in FAO), and they were granted three days' time to deposit the balance amount (Rs. 3,87,34,450/-) i.e. upto 13.05.1999. Hence this appeal. Interestingly at the leave granting stage the subsequent "assignee" namely Muhammad Ashraf moved an application before this Court stating therein that he did not want to press his claim under the agreement of sale made in his favour and that the amount deposited by him before the trial Court may be allowed to be refunded to him. While granting leave this Court allowed the application of Muhammad Ashraf and the trial Court was directed to return the amount deposited by him.
In support of this appeal, learned counsel for the appellants made the following submissions:--
(i) That pursuant to the order of this Court dated 19.11.1998, a consent decree was passed by the trial Court vide the judgment dated 21.11.1998 which inter-alia directed the plaintiff to deposit a sum of Rs. 3,87,34,450/- in Court till 21.03.1999, failing which it was stipulated that the suit shall stand dismissed. The terms of the agreement could neither be varied nor could the date fixed be extended without the consent of the parties to the afore-referred agreement. The learned High Court, it was maintained fell in error in extending the period. In support of this submission, learned counsel relied on "Syed Ahmed Shah and 2 others vs. Muhammad Yar and 6 others (1974 SCMR 191 at page 192), Sirajud Din Banjmin (through his legal heirs) and another vs. Haji Abdul Latif and 4 others (1983 SCMR 836 at page 837), Saat Malook vs. Rozi Khan (1979 SCMR 593), Ch. Muhammad Nawaz vs. Ch. Rehmat Ali and another (1994 SCMR 349 at page 351), Synthetic Chemicals Co. Ltd.: In re (PLD 1988 Karachi 429), Begum Rashida Nawaz vs. Ch. Muhammad Amin and 3 others (PLD 1998 Lahore 503) & Haji Abdul Hameed Khan vs. Ghulam Rabbani (2003 SCMR 953 at case 956).
(ii) That despite direction of the learned High Court given in the impugned judgment neither the respondent-decree holder nor the respondent-original assignee Abdul Waheed (who was impleaded as Respondent No. 6 before the High Court) deposited the balance amount. Rather during the pendency of the appeal before the High Court the decree was assigned to one Muhammad Ashraf without intimating the Court. It was the subsequent assignee who deposited the amount in Court on 13.05.1999. Even the said Muhammad Ashraf withdrew the amount with permission of this Court in the presence of learned counsel for the respondent-decree holder and without any objection having been raised. As consequences of that the balance sale price is no more with the trial Court and the suit merits to be dismissed.
(iii) That the agreement was signed way back in August 1997 and after 10 years the price of property have escalated 10 times and it would not be fair to decree the suit on the same sale consideration. In support of this submission, he referred to Corpus Juris Secundum Vol. 81 page 983 & 984 to canvass that the conduct of the buyer and the delay caused have weighed with the Court while considering the question of granting or refusing to grant decree for specific performance of contract. The relevant observation relied upon by petitioner's learned counsel is as follows:--
"A purchaser may not however, withhold performance in order to speculate on an increase in value, and specific enforcement of a contract may be considered inequitable where the property has largely increased in value during the purchaser's delay. When parties are engaged in business enterprises that by their very nature fluctuate in value, such parties cannot demand specific performance of contracts unless they assert their rights diligently and without unreasonable delay".
On the other hand, Syed Sharif-ud-Din Pirzada, Sr. ASC, learned counsel for the respondents supported the impugned judgment by submitting that respondent-decree holder was all along prepared to comply with the terms of the agreement dated 30.08.1997. He contended that a bare reading of the various clauses of the agreement would indicate that parties had agreed that "vendor" would, "include their respective heirs, successors-in-interest and assignees" and the "buyer" would include "heirs, successors-in-interest and assignees". The application moved by the decree holder and the assignee namely Abdul Waheed before the trial Court was not only reflective of bona-fides of the respondent but was strictly in accord with the agreement. It was wrongly dismissed by the trial Court and was rightly reversed by the learned High Court and time extended for deposit of the balance sale price through the impugned judgment. According to him, the Court has ample powers to extend the time in suitable cases. Reliance was placed by learned counsel on the following precedent case laws: "Dar Okaz Printing and Publishing Limited Liability Company vs. Printing Corporation of Pakistan Private Limited (PLD 2003 SC 808), Dr. Iftikhar Ahmed Zahid vs. Mrs. Nilofer Akhtar and another (2004 SCMR 96) & Abdul Hameed and others vs. Settlement Authority and others (2004 SCMR 790)". Similarly, he added that no exception could be taken to the deposit of the remaining sale consideration by the subsequent assignee Muhammad Ashraf (pursuant to the impugned order) because the prior assignee stood substituted by the subsequent assignee in terms of the agreement dated 06.05.1999. The non-disclosure before the High Court of the subsequent assignment in favour of Muhammad Ashraf, he further added, was inadvertent and could not be pressed into service to non-suit the respondent-decree holder. Coming to the withdrawal of amount deposited by Muhammad Ashraf, he contended that it was an act of the Court and should not prejudice the case of the respondent.
Repelling the contention of appellant's learned counsel that escalation of price of properties should be a ground to decline specific performance of contract, Mr. Sharif-ud-Din Pirzada submitted that the respondent-decree holder had filed the suit well in time and there is nothing in evidence to show that the prices of real estate had increased manifold. In support of this submission, he referred to the following quote from a judgment of this Court in "Mrs. Shaukat Ali vs. Mrs. Safia Khatoon and others (1994 SCMR 2189 at 2212):--
"We have noticed the considerable appreciation in the value of suit property since the filing of the suit and have considered whether in the changed circumstances, the grant of relief of specific performance would be inequitable? We, however, found that there was no evidence on record to show that there was any worthwhile appreciation in the value of the suit property between the period, the agreement of sale was entered into between the appellant and the deceased and the suit for specific performance was filed by the appellant. The increase in the value of the property after the filing of suit for specific performance cannot be taken into consideration for denying the relief of specific performance, as this change in the circumstances is not attributed to the conduct of the appellant after entering into the agreement of sale. We are, accordingly, of the view that the appellant was entitled to the relief of specific performance in the circumstances of the case".
We have heard learned counsel for the parties and have given anxious consideration to the submissions made.
The argument that in the event of default of deposit of sale consideration by the purchaser within the time stipulated in a decree passed with the consent of the parties, the Court cannot extend the time without consent of the other party does not take into account the nature of a decree passed in a suit for specific performance. The precedent cases relied upon by appellants' learned counsel either did not arise out of suits for specific performance or do not address the issue in the context in which it has been mooted in the instant case. The judgment reported at "Saat Malook vs. Razo Khan (1979 SCMR 593), relates to a pre-emption matter. The case reported as "Sirajud Din Banjmin (through his legal heirs) and another vs. Haji Abdul Latif and 4 others (1983 SCMR 836), arose out of a constitutional petition wherein parties were pitted against each other for a claim under the Settlement Scheme No.VIII. The petition was disposed of in terms of a compromise which inter-alia stipulated deposit of a certain amount by specified date. Whereafter the respondents therein were to deliver the vacant possession. However, on account of non deposit of the afore-referred amount an application was made by the respondents for dismissal of the suit which was disposed of and an observation was made that the said application had borne fruit and the writ petition stood dismissed. This Court did not interfere with this order on the ground that "since they had agreed to the terms of compromise, neither on grounds of law nor of propriety, the matter required interference". In the case titled as "Ch. Muhammad. Nawaz vs. Ch. Rehmat Ali and another (1994 SCMR 349)", the ratio laid down was that a consent decree could not be changed or altered unilaterally without the consent of the other side and the Court refused to grant execution of the decree. But the prime consideration was the conduct of the decree holder as the Court found that, "in spite of such clear and unambiguous terms recorded the appellant submitted a sale-deed which was completely contrary to the agreement. Furthermore, the payment made by the appellant was also not in accordance with the agreement as it ought to have been made to Ch. Muhammad Amin". In the case of "Haji Abdul Hameed Khan vs. Ghulam Rabbani (2002 SCMR 953)", the Court refused to grant relief to a decree holder on the ground that he did not deposit the sale consideration and his conduct was contumacious. The Court held that, "in a suit for specific performance, it is always of paramount consideration that the plaintiff, seeking equitable remedy of specific performance must be always willing and ready to perform his part of contract. Conduct of the petitioner unequivocally tends to reflect that he has been protracting the litigation on one or the other ground and has been successful so far on untenable grounds. Since the petitioner did not deposit the sale amount "in compliance with the trial Court judgment as well as within the extended period, as permitted by the High Court, we would be legitimately justified in presuming that the petitioner is not serious in the prosecution of his remedy".
A careful analysis of those judgments which arose out of suits for specific performance (referred to above) would indicate that the Court refused to extend time on account of the contumacious conduct of the decree holder keeping in view the cannons of equity, reason and good conscience. The same principles have weighed with the Courts while extending time as well and in doing that the mandate of Section 35 of the Specific Relief Act was kept in view.
It is by now a settled principle of law that a decree in a suit for specific performance is not a final decree so as to debar the Court from extending the period fixed for depositing the sale consideration. It is in the nature of a preliminary decree which partakes the character of a contract i.e. the purchaser has to deposit the purchase price, has to take other necessary steps for framing and execution of a conveyance deed and the seller has to appear in Court and sign the afore-referred deed. That being so, the decree/contract continues to subsist unless it is rescinded by the Court in terms of Section 35 of the Specific Relief Act, which reads as under:--
"35. When rescission may be adjudged. Any person interested in a contract in writing may sue to have it rescinded and such rescission may be adjudged by the Court in any of the following cases, namely :
(a) Where the contract is voidable or terminable by the plaintiff;
(b) Where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff;
(c) Where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made and the purchaser or lessee makes default in payment of the purchaser-money or sums which the Courts has ordered him to pay.
When the purchaser or lessee is in possession of the subject matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and profits, if any received by him as such possessor.
In the same case, the Court may by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether as the justice of the case may require.
"Perusal of Section 35(c) clearly indicates that even after passing of decree, the Court possesses the power to rescind the contract and consequently set aside the decree, which it had passed earlier. Irresistible conclusion, therefore, would be that a suit, which was once decreed, could be dismissed again if the case falls within the scope of Section 35(c). The main characteristic of Section 35 is that the Court has been empowered to rescind or not to rescind the contract, despite the fact that decree has already been passed. If still the Court permits the decree to remain operative, certainly the time could be extended. Normally in a civil suit after passing of decree, the proceedings come to an end.
In a suit for specific performance, the situation is different and if the case falls under clause (c) of Section 35, still the. order of rescission can be passed. This brings it within the scope of preliminary decree, as further proceedings, as a rule, are to be taken before a suit could be completely disposed of. Besides, such decree itself assumes the characteristics of a contract, whereby certain acts are yet to be performed, including depositing of the purchase price, cost of purchase price of necessary stamps for execution of conveyance deed, the seller has also to put his appearance for signing conveyance deed, to receive the purchase price, etc. "
"That in case M/s. Wafi Associates fail to deposit, pay the balance of price amounting to Rs. 3,87,34,450/- to M/s. Tasneem Ismail etc (Respondents) as agreed upon, within the specified period of 4 months, the suit for specific performance shall be dismissed. (Emphasis is supplied)".
"That there is a difference between the words will be dismissed' andwill stand dismissed' or will be treated as dismissed' has been generally accepted and the Courts have been inclined to invoke their power under Section 148 of the Code of Civil Procedure where the words used arewill be dismissed' or words of similar import vide Dewratan v. Kristo Mohan Shah ILR 48 Cal. 902 but where the words used are words of finality and are to take effect automatically this Section can have no manner of application and the time cannot be enlarged. This is also the view of the English Courts vide The
Scrip Phonographic Co. v. Gregg (1890) 50 LJ406 (NS) and Whistler v. Hancock
(1879) 48 LJ QB 606."
The decree in the case in hand did not provide for dismissal of suit forth within the event of default. It had to precede an order of the Court in terms of Section 35 of the Specific Relief Act and the Court still had the discretion to extend time. The decree-holder which had moved the trial Court for extension of time which was wrongly refused and the learned High Court rightly set aside that judgment of the learned trial Court and allowed the joint application of the buyer and Respondent No. 6 (assignee Mian Abdul Waheed).
A reading of the joint application referred to in the preceding paragraphs reflects that the respondent-decree holder had transferred all his rights under the decree in favour of the assignee (who was Petitioner No.2 in the said application) and it was prayed that, "Petitioner No. 2 be kindly allowed to deposit, the balance sale consideration i.e. Rs.3,87,34,450/- in this Hon'ble Court and the decree dated 21.11.1998 passed in favour of the Petitioner No. 1 may graciously be transferred in favour of Petitioner No. 2 and the said decree be ordered to be executed in favour of Petitioner No. 2 with all rights available to Petitioner No. 1." It was this application which was allowed by the High Court through the impugned judgment with the stipulation that, "the buyer/assignee are granted time to deposit amount of
Rs. 3,87,34.450/- upto and inclusive of 13.5.1999". After the impugned judgment Mian Abdul Waheed, the assignee stepped into the shoes of the decree holder. However, admittedly he has not deposited the balance sale consideration in terms of the impugned judgment. Instead the sale consideration was deposited by one Muhammad Ashraf on 12.05.1999. The decree holder having assigned the right and interest in decree in favour of the assignee was divested of his lien with the decree and he could not further transfer or create a new assignment. After the assignment it is the assignee/transferee who has to seek execution of the decree in terms of Order XXI Rule 16 of the CPC, which reads as follows:--
"16. Application for execution by transferee of decree.- Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:
Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution:
Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others".
Admittedly, the assignee defaulted in payment of the purchase money in terms of the impugned judgment. His case was squarely hit by Section 35 Clause (c) of the Specific Relief Act and the contract merits rescission on this short ground. The deposit of sale consideration by Muhammad Ashraf was of no avail. Firstly because the so-called assignment in his favour was not a valid assignment as the decree holder had no power to do so after having transferred his right and interest in favour of Mian Abdul Waheed. Secondly the subsequent purported transfer in favour of Muhammad Ashraf was hit by principle of lis pendens. Thirdly the learned High Court vide the impugned judgment dated 11.05.1999 allowed Mian Abdul Waheed to deposit the sale price and only he could do so. Fourthly, even if the so-called assignment in favour of Muhammad Ashraf is considered to be valid the said Muhammad Ashraf at the leave granting stage (on 14.06.2000) made a prayer for withdrawal of the sale consideration deposited by him, which prayer was not opposed by the Counsel for decree holder and was allowed. The net effect is that the balance sale consideration is no longer deposited and contract warrants rescission on that count as well.
Learned counsel for the respondent-plaintiff attempted to argue that the withdrawal of sale consideration by Muhammad Ashraf was on account of an act of this Court and it should not ensure to his disadvantage. This argument is of no avail; firstly, because the order was passed in the presence of the then learned counsel for the decree holder namely Mian Iqbal Kala Noori and without any opposition from him; secondly, no attempt was made to have this order reviewed during the last seven (07) years when the appeal was pending and thirdly during this period neither the decree holder nor the assignee made any effort or sought leave of this Court to deposit the balance sale consideration.
For what has been discussed above, this appeal is allowed, the impugned judgment dated 11.05.1999 of the learned Lahore High Court is set aside and the suit filed by respondent-plaintiff is dismissed. However, the amount received by the petitioner-defendant i.e. a sum of Rs. 85,00,000/- shall be returned to the respondent-plaintiff within five (05) months.
(A.S.) Appeal allowed.
PLJ 2007 SC 1018
[Appellate Jurisdiction]
Present: Javed Iqbal & Mian Shakirullah Jan, JJ.
REGISTRAR, LAHORE HIGH COURT, LAHORE--Appellant
versus
MUHAMMAD AFZAL KHAN, CIVIL JUDGE, SAHIWAL and another--Respondents
C.A. Nos. 183 2& 1833 of 2003, decided on 26.4.2007.
(On appeal from the judgment dated 27.2.2003 passed by the Punjab Subordinate Judiciary Tribunal, Lahore in Service Appeals No. 84 and 85 of 2003).
Constitution of Pakistan, 1973--
----Art. 212(3)--Civil servant--Adverse ACRs--Member of District Judiciary--Adverse remark--Challange to--Member of the District Judiciary was awarded three adverse ACRs by the reporting officer, who in the case of first two ACRs was District & Session Judge/Judge Accountability Court--Incumbent felt aggrieved of the adverse ACRs approached the Punjab Sub-ordinate Judiciary Service Tribunal, for the expunction through three different service appeals--Validity--Reasons advanced for the adverse ACRs given by other reporting officer seen to have weight as prior to the ACR in-question for a period of the half of the year, good ACR had been given by the same reporting officer--Respondent having a long tenure of service about 23 years, had not been given any adverse remarks except the one in-question--No justification to differ with impugned judgment--Appeals dismissed. [P. 1019 & 1021] A & B
Ms. Afshan Ghazanfar, AAG with Mr. Nazar Hussain, Dy. Registrar for Appellant.
Mr. Pervaiz Inayat Malik, ASC for Respondent No. 1.
M. Yousaf (S.O.) Legal for Respondent No. 2.
Date of hearing: 26.4.2007.
Judgment
Mian Shakirullah Jan, J.--The respondent, a member of the District Judiciary was awarded three adverse ACRs for the period (i) 01.01.1998 to 31.12.1998 (ii) 01,01.1999 to 30.06.1999 and (iii) 01.01.2000 to 5.7.2000 by the reporting officer who in the case of first two ACRs was District & Sessions Judge, Jhang while in the case of third ACR, he was Sessions Judge/Judge Accountability Court, Bahawalpur. The said ACRs bearing out endorsement by the countersigning officer, not totally agreeing with the reporting officer. The incumbent felt aggrieved of the aforesaid adverse ACRs approached the Punjab Subordinate Judiciary Service Tribunal, Lahore for the expunction of the same through three different Service Appeals Bearing No. 83 to 85 of 2001. All the three appeals were allowed, through, a common judgment, by the Tribunal after finding that he did not deserve at all the adverse remarks. The appellant, Registrar, Lahore High Court, Lahore has filed three separate Civil Petitions No. 1483-L to 1485-L of 2003. All the three petitions were fixed before this Court for hearing on 08.12.2003 and out of three, one relating to the ACR for the period pertaining to the year 01.01.1998 to 31.12.1998 was dismissed while in two petitions i.e. 1484-L and 1485-L of 2003, leave to appeal was granted on the ground that "the judgment of the Tribunal prima-facie appears to be based on certain assumptions which are not sustainable in law" and which are now before us for adjudication.
Learned AAG has contended that the remarks of the reporting officer are not to be likely interfered with by the Tribunal as it is subjective evaluation on the overall performance, closely watched by the reporting officer and when the countersigning authority has not specifically disagreed with him.
On the other hand, learned counsel for the respondent, in addition to his other contentions, has raised preliminary objection, as noted in the leave granting order, the question of limitation by stating that the petitions, prior to leave granting order, were hopelessly time barred. On merits, he has submitted that as evident from the impugned judgment passed on the basis of record of the case that the reporting officer was biased having a grievance against the incumbent who (the respondent), after allotment of official accommodation pressing for its vacation, which was in occupation of the reporting officer already transferred from the said station, annoyed him and resulted in the impugned ACRs. The one (ACR) written by another reporting officer was on account of communication of the adverse remarks to the respondent, which came to his (reporting officer) notice, prior to the writing of the ACR for the period i.e., 01.01.2000 to 05.07.2000, the said reporting officer had given the incumbent good remarks, prior to the period i.e. 01.01.2000, i.e. for the remaining six months of the year 1999.
The submission of the learned counsel for the respondent on the question of limitation was that since the copy of the judgment had been sent by the Punjab Subordinate Judiciary, Tribunal to the appellant on 4.3.2003 and which was received by him on the same day and by counting the period from that date, the filing of petition/appeal became time barred which position qua the receipt of the copy on 4.3.2003 was not denied by the appellant and it was contended that for filing of the petition/appeal before this Court other documents, apart from the judgment, e.g. the grounds of appeals are required to be filed and it was the only impugned judgment which was sent to the appellant not accompanied by other necessary documents and obtaining certified copies of those documents delayed the matter and after getting certified copies of the documents alongwith the impugned judgment, the petition was filed within time. We inspected the file of this Court and found that the judgment annexed with the grounds/memorandum of petition/appeals bearing the dates as described by the appellant and counting as such the appeal not seems to be time barred and particularly when three petitions/appeals have been filed against a common judgment and which also requires three separate certified copies of the judgment and the three certified copies of the judgment appears to have not been sent with the covering letter to the appellant. Hence this objection of the learned counsel for the respondent is overruled.
One of the petition pertaining to the period i.e. 01.01.1998 to 31.12.1998 filed by the present appellant was dismissed by this Court on the date when leave to appeal was granted in the instant petitions as no substance was found in that petition.
Though the remarks about the performance of an incumbent may be a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is generally avoided unless the same is tainted with malafide, partiality and bias but which factors are found in the instant case for the reasons, referred to above, as annoyance of the reporting officer over the insistence of (incumbent) did exist. The case "Zahoor Hussain vs. Principal of Government College, Sahiwal and others" (2005 SCMR 1035) may be referred to. The reasons advanced for the adverse ACRs given by the other reporting officer seems to have weight as prior to the ACR in question for a period of the half of the year, good ACR had been given by the same reporting officer. It was stated at the bar that the respondent having a long tenure of service about 23 years, had not been given any adverse remarks except the one in question. We do not find the judgment of the Tribunal to be lacking in any aspect as sufficient reasons have been given for the interference by expunging the ACRs and we see no justification to differ with the impugned judgment. Resultantly these appeals have no merit and the same are dismissed. No order as to costs.
(A.S.) Appeals dismissed
PLJ 2007 SC 1021
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Hamid Ali Mirza, JJ.
MUHAMMAD AFZAL, SUPDT. BOISE, LAHORE--Appellant
versus
BOARD OF INTERMEDIATE & SECONDARY EDUCATION, Lahore Through its Secretary--Respondent
Civil Appeal No. 1659 of 2006, decided on 1.3.2007.
(On appeal from the judgment of Lahore High Court, Lahore dated 19.7.2006, passed in WP No. 18294/04).
Statutory Body--
----Rules and Regulations--Applicability--Unless the rules and regulations of Provincial or Federal Government are specifically adopted by a statutory body controlled by such Government, the same cannot be automatically made applicable to employees of statutory body. [P. ] A
Board of Intermediate & Secondary Education Act, 1976--
----S. 12--Constitution of Pakistan, 1973, Art. 212(3)--Leave to appeal--Constitutional petition--Question of--Entitlement of--Grant of advance increment--Benefit of scheme--Ex-post facto permission--The right of education is an alienable right of every person and no one can be denied such right--Requirement of prior permission to appears in examination for official purposes, improvement in educational qualification, without permission of concerned authorities, may have no penal consequence to refuse the benefit of scheme of grant of advance increments to an employee who has improved his qualification during service--Held: Supreme Court has not been able to find out any justification for refusal of advance increments to the appellant and High Court virtually having recognized the right of appellant by making observation--Civil servant for grant of advance increments has acknowledged the right of appellant---Further held: Civil servant was entitled to grant of advance increments in terms of policy of Board and was wrongly denied such benefit--Appeal allowed. [P. 1024] B, C & D
Mr. Muhammad Zahid Abbasi, ASC for Appellant.
Ch. Muhammad Hussain, Adl. A.G. Pb. for Respondent (2).
Date of hearing: 1.3.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against judgment dated 19.7.2006 passed by learned Judge in Chambers of the Lahore High Court, Lahore, whereby Constitution Petition filed by the appellant challenging the decision of the Board of Intermediate and Secondary Education (hereinafter called `the Board') against the order of refusal of grant of advance increments in terms of the policy of the Board has been dismissed.
"The first essential fact is to determine whether there has been any binding regulation or order for obtaining prior permission of the competent authority in the Board for appearing in an examination as a private student while the other fact required to be ascertained is whether during the examination days the petitioner had obtained leave from the competent authority. In the circumstances, therefore, the Board itself will be a proper authority to go into these question and decide the matter. Accordingly, a copy of this writ petition shall be forwarded to Respondent No. 1 to be treated as an appeal against the order dated 20.6.2002 for decision in accordance with law in the light of observations made in this judgment. No order a to costs. Disposed of."
"The point taken by the learned counsel for the petitioner bears relevance to the guilt/responsibility of the petitioner for the charge of misconduct in the disciplinary proceedings taken, against him. But the said outcome of the enquiry proceedings has no impact on the petitioner's entitlement to advance increments. The grant of the later relief is dependent upon certain procedural prerequisites. The impugned order dated 28.2.2005 required the petitioner to obtain prior ex post facto permission for grant of advance increment. This condition is not a refusal to grant the relief prayed but is meant to be a procedural step to regularize the petitioner' case. The petitioner have neither satisfied the condition nor disclosed the same in this petition nor challenged the same. He is, accordingly, obligated to secure the said permission. The writ petition therefore has no merit for the relief prayed and the same is accordingly dismissed."
"After hearing the learned counsel for the parties, we grant leave to appeal to consider, inter-alia, the question whether the petitioner was entitled to the incentive of advance increments upon acquisition of higher academic qualifications of Intermediate, B.A. & M.A., as per policy of the respondent-Board. Since short points are involved, the office is directed to set down this appeal, on its present record, within a period of six months. However, the parties may file additional documents with the permission of the Court."
Learned counsel for the appellant with reference to the Policy on the subject, has contended that there was no need of prior permission of the competent authority to appear in the examination of Board and University to improve the qualification and appellant in his own right without causing any disturbance in his official assignment could appear in such examinations without formal permission of the department.
Learned counsel representing the Board, on the other hand, with reference to the letter dated 28.2.2005 of the Board, contended that if an employee appears in the examination, without the permission of competent authority, he cannot claim benefit of advance increments as of right and placing reliance on a letter dated 4.2.1963 of the Government of Punjab, submitted that such permission was necessary in contemplation of the instruction contained therein. The learned counsel without satisfying us that service rules and regulations of the Government of Punjab applicable to its employees unless adopted by the Board would applicable to the employees of Board submitted on the strength Section 12 of the Punjab Boards of Intermediate and Secondary Education Act, 1976, that since Government of Punjab is Controlling Authority of the Board, therefore, all service rules and Regulations applicable to the employees of the Government of Punjab would be impliedly applicable to the employees of the Board. We are afraid the argument has no substance. This is settled principle of law that unless the Rules and Regulations of the Provincial or Federal Government are specifically adopted by a statutory body controlled by such Government, the same cannot be automatically made applicable to employees of statutory body. Learned counsel for the respondent/Board has also not been able to satisfy us that the letter dated 28.2.2005 issued by the Board would have retrospective effect to deny the benefit already accrued in favour of the appellant under the policy of the Board for grant of advance increment to its employees on improvement of the qualification.
The right of education is an inalienable right of every person and no one can be denied such right, therefore, notwithstanding the requirement of prior permission to appear in the examination for official purposes, the improvement in the educational qualification, without permission of the concerned authorities, may have no penal consequence to refuse the benefit of the scheme of grant of advance increment to an employee who has improved his qualification during the service.
Having heard the learned counsel for the parties and perused the record, we have not been able to find out any justification for refusal of advance increments to the appellant and High Court virtually having recognized the right of appellant by making observation in the concluding para of the impugned judgment that the appellant should obtain ex post facto permission for grant of advance increment has acknowledged the right of the appellant.
In the light of foregoing reasons, we hold that subject to the fulfillment of criteria and other conditions if any, the appellant was entitled to the grant of advance increment in terms of the policy of Board and was wrongly denied the said benefit. This appeal is accordingly allowed with no order as to costs.
(N.F). Appeal allowed.
PLJ 2007 SC 1025
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
Raja SHAMSHAD HUSSAIN--Petitioner
versus
GULRAIZ AKHTAR, etc.--Respondents
Crl. P. Nos. 199 of 2006, decided on 29.3.2007.
(On appeal from the judgment dated 27.7.2006 passed by Lahore High Court, Lahore in Crl. A. No. 316/2003).
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 426(1-A) & 497--Suspension of sentence--Discretionary power--Question of--Court may or may not suspend the sentence, is to be passed then the reasons be given for that, unlike Section 426(1-A) where it is not a discretion of the Court but grant of bail is mandatory and for its refusal the reasons be given, reflecting that grant of bail is a rule while refusal is an exception in the case covered by sub-section (1-A) that in case of the suspension of sentence the reasons will have to be recorded. [P. 1028] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 34 & 109--Criminal Procedure Code, (V of 1898), Ss. 426 & 497--Constitution of pakistan, 1973, Art. 185(3)--Suspension of sentence--Leave to appeal--Tentative assessment of material evidence--Rule of consistency--Discretionary powers--Rule of consistency is also available to the respondent as the bail which has already been granted to co-accused on similar grounds and which has been upheld by Supreme Court also entitle him to grant of bail--Discretionary power bestowed on it to be exercised in favour of respondent and for which due compliance of the statutory provisions have been made by giving reasons--The view taken by High Court was found to be a proper exercise of the Court's discretion u/S. 426 Cr.P.C. which does not deserve interference--Held: Supreme Court does not interfere in a case of bail, unless circumstances are altogether of exceptional character and the refusal might entail risk of grave illegality or clear abuse of process or some gross act of injuries e.g. victimization--Order of grant of bail ought not be interfered--No justification to interfere with the order of the High Court--Leave declined. [P. 1030] C, D & E
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 426(1) & 497--Suspension of sentence--Grant of bail--Reasonable grounds--Tentative assessment--Existence and non-existence of the reasonable grounds for believing that person is guilty of the offence and the scope of further inquiry are the criteria/fullmarks and for arriving at such conclusion the tentative assessment and not the minute or detailed assessment of the evidence has been made permissible--Only the tentative assessment of the material available evidence and of the judgments has been made permissible and the detailed appraisal of evidence was held to be avoided--Suspension of sentences and grant of bail u/S. 426 Cr.P.C. are not wider than the power to release a person on bail u/S. 497 Cr.P.C. [P. 1029] B
1971 SCMR 657; 2006 SCMR 1225; 1969 SCMR 151; PLD 2002 SC 845; PLD 2006 SC 483; 1978 SCMR 149; 1979 SCMR 270 &
1968 SCMR 1063 ref.
Dr. Babar Awan, ASC for Petitioner (in Crl. P. No. 199/2006).
Sardar M. Latif Khan Khosa, ASC and Ch. Akhtar Ali, AOR for Respondent No. 1 (in Crl. P. No. 199/2006).
Ms. Yasmeen Sehgal, DPG, Punjab for Respondent No. 2 (in Crl. P. No. 199/2006).
Ms. Yasmeen Sehgal, DPG, Punjab for Petitioner (in Crl. P. No. 652-L/2006).
Sardar M. Latif Khan Khosa, ASC and Ch. Akhtar Ali, AOR for Respondent (in Crl. P. No. 652-L/2006).
Date of hearing: 29.3.2007.
Order
Mian Shakirullah Jan, J.--The respondent/convict, who, alongwith other co-convict, after being convicted by the trial Court under Section 302/34/109 PPC has succeeded in getting the suspension of his sentence and release on bail, during the pendency of appeal, from the High Court through the impugned order, the complainant and the State both aggrieved of the order, filed two separate criminal petitions vide Crl. M.A. No. 199/2006 and Crl. P. No. 652-L/2006 for setting aside the order of the High Court, with the following brief facts.
The complainant Raja Muhammad Hussain lodged a report with the police alleging therein that on the day of occurrence i.e., on 07.03.2002 while he alongwith his deceased brother Raja Haji Muhammad Riaz were sitting on their tube-well and talking to each other, two accused Naseer Ahmad and Muhammad Younas Shah duly armed with .7mm Rifles came there and Muhammad Younas Shah after raising a Lalkara that Haji Muhammad Riaz be taught a lesson for litigation fired at the deceased who luckiy escaped, then Naseer Ahmad accused fired at the deceased which hit him. The motive was stated to be previous litigation with the accused. After the registration of the case, during the investigation, a supplementary statement of the complainant was recorded where he also charged the present petitioner alongwith his brother Shamas Tabraiz and mother Mehr-un-Nisa, widow, for hatching conspiracy for the murder of the deceased and Section 109 was also added for the alleged abetment on the part of petitioner and his brother and mother. In this respect, statement of the two PWs i.e., Muhammad Ishaq PW-7 and Qamar Zaman PW-8, were also recorded wherein they have alleged that they on 20.01.2003 while they were going across the Bethak of the petitioner heard their voices and the name of Haji Muhammad Riaz (deceased) which made them conscious and they have also overheard the alleged conspiracy plan by the three accused. The trial of the four accused i.e., Mst. Mehr-un-Nisa, Naseer Ahmad, Muhammad Younas Shah and the present petitioner was held while Shamas Tabraiz was declared as absconder. At the conclusion of the trial the learned trial Court convicted all the four accused including two for conspiracy for the murder of a single deceased and Mst. Mehr-un-Nisa was sentenced to imprisonment for life while the three accused were sentenced to death, in addition to the compensation of Rs. 50,000/- each- to be paid to the legal heirs of the deceased and Rs. 50,000/- each to be paid to the complainant for mental anguish and psychological damage.
During the pendency of their appeals before the High Court, Mst. Mehr-un-Nisa succeeded in getting sentence suspended and her release on bail from the High Court, which order was maintained by this Court and same is the case of the petitioner (of getting bail) and which order is now under challenge before us.
The learned counsel for the petitioner has contended that the High Court has proceeded on wrong premises by holding that the PW-7 & 8, who are witnesses of the conspiracy, are both relative of the complainant party and in this respect he has referred the statement of PW-7 that he has not been cross-examined in order to elicit his so called relationship. On the legal parlance he has contended that in case of death sentence the suspension of sentence is uncalled for and which is also the result of deep appreciation of the evidence which has been disapproved by the superior Courts and in this respect he has cited the cases of Muhammad Nawaz v. Muhammad Nawaz alias Naji and others (1997 SCMR 1521), Farhat Azeem v. Waheed Rasul and others (PLD 2000 SC 18), Allah Ditta Khan v. The State (PLD 2002 SC 845), Muhammad Saleem and another v. The State (PLD 2006 SC 483).
The learned D.P.G appearing in Crl. P. No. 652-L/2006 while addressing the Court has confined her arguments only to the observations made in the order regarding the merits of the case by stating that the said observations may be directed to be ignored at the time of decision of the main appeal and she did not press the setting aside of the order and canceling the order of suspension and grant of bail to the respondent. The learned counsel for the respondent While supporting the impugned order has contended that the grounds which weighed with the learned High Court are not the one which can be said as deep appreciation of the evidence rather it is a tentative assessment.
We have attended to the rival contentions of the learned counsel for the petitioner/complainant and the learned counsel of the respondent and also the D.P.G who, as already stated, is not for setting aside of the order and cancellation of the bail, except the prayer, which has already been noted above, with regard not to take into consideration the observations of the Court on merits of the case at the time of final decision of appeal. We have perused the impugned order.
Section 426(1) Cr.P.C. empowering the Court with a discretionary power in the matter of suspension of sentence, the Court may or may not suspend the sentence, however, if an order favourable to the convict, by suspending his sentence, is to be passed then the reasons be given for that, unlike Section 426(1-A) where it is not a discretion of the Court but the grant of bail is mandatory and for its refusal the reasons be given, reflecting that grant of bail is a rule while refusal is an exception in the case covered by sub-section (1-A). Whereas under sub-section (1) it has been made obligatory that in case of the suspension of sentence the reasons will have to be recorded. The two provisions, one is under sub-section (1) and the other is under sub-section (1-A) of Section 426, are unlike and in contrast to each other as in the former it is the discretion of the Court and in case of grant of bail the reasons will have to be recorded while in the latter it has been made obligatory that the sentence shall be suspended with a further provision that in case of refusal the reasons will have to be recorded. Section 426(1) though has made essential the recording of reasons in case of suspension of sentence but has not prescribed any guideline or the manner in which such a discretion is to be exercised as how and what would be the criteria for the recording of the reasons. Since these provisions, under Section 426(1) are analogous to the one contained in Section 497 Cr.P.C as in both the cases the sentence or detention is to be suspended pending hearing of the appeal/trial and the convict or the dentinue is to be released on bail with only difference that in the former case the person is a convict one, already found guilty, while in the latter he has been charged only and to face trial and is still to be proved guilty. It would be
appropriate, in the absence of any guideline, to follow the one provided under Section 497 Cr.P.C on the principle that where a statute lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court as held in the case of Maqsood v. Ali Muhammad (1971 SCMR 657) and which principle, as later on, was re-affirmed by this Court in the case of Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others (2006 SCMR 1225). In Section 497 Cr.P.C., the existence and non-existence of the reasonable grounds for believing that the person is guilty of the offence and the scope of further inquiry are the criteria/hallmarks and for arriving at such conclusion the tentative assessment and not the minute or detailed assessment of the evidence has been made permissible the principle laid down by this Court and re-affirming repeatedly. Similarly, the same guidelines have been laid down by the superior Courts that in case of suspension of sentence, only the tentative assessment of the material available evidence and of the judgments has been made permissible and the detailed appraisal of evidence was held to be avoided as held by this Court in the cases of Allah Ditta Khan (supra) and Farhat Azeem (supra). However, the principles laid down by this Court in the aforesaid judgments qua following the guidelines prescribed under Section 497 Cr.P.C while deciding application under Section 426(1) Cr.P.C but without being controlled by the aforesaid Section i.e. 497 Cr.P.C as held in the case of The State v. Shah Sawar (1969 SCMR 151) and such powers i.e., the suspension of sentences and grant of bail under Section 426 Cr.P.C are not wider than the power to release a person on bail under Section 497 Cr.P.C as held in the case of Bahar Khan v. The State (1969 SCMR 81) but rather narrower.
Following the aforesaid principles, as laid down by this Court, i.e., the tentative assessment of the material available on the record including the judgment and the evidence is to be made and not their examination in detail for which purpose an overall view of the facts and circumstances to be taken. A balance to be struck and a line of distinction be drawn in making tentative assessment and detailed scrutiny of the evidence e.g., by looking at the judgment and by taking a broad view of the judgment and to analyze as to whether the conviction has been passed on the appreciation and on the basis of evidence which is not contrary to the principles laid down by the superior Courts and one can prudently be of the view that such conclusion ought not to have been arrived at. The most relevant factor for the exercise of power of suspending the sentence is the decree of probability; the appeal stands off being finally allowed. The decree of probability has to be determined on the basis of prima facie satisfaction.
The next question would be that the Court at the time of hearing of the appeal would be influenced by such like observations which may sometimes be made by a superior Court on reaching the matter there. It is for that Court not to be influenced by such like observations as that are to be taken as tentative and only for the limited purpose of deciding the question at that time pending before the Court for suspension of sentence and there may be every possibility that sometimes because of lack of proper assistance both on factual side as well as on the legal plane, as the matter may not be taken so serious because of its interim nature. The Court at the time of deciding the appeal may ignore such observations or even may not at all advert to them.
In the instant case while applying the test as laid down by this Court in the afore referred judgments, an additional factor of the rule of consistency is also available to the respondent as the bail which has already been granted to the co-convict Mst. Mehr-un-Nisa almost on similar grounds and which has been upheld by this Court also entitle him to the grant of bail.
We are of the view that a broad view of the judgment and, also to some extent, of the evidence has been taken and which prima facie, tentatively lead the Court to a conclusion that the discretionary power bestowed on it to be exercised in favour of the respondent and for which due compliance of the statutory provisions have been made by giving reasons. The view taken by the High Court was found to be a proper exercise of the Court's discretion under Section 426 Cr.P.C which does not deserve interference as has been done in the cases of Abdul Ghaffar v. Anwarul Hassan etc. (1978 SCMR 149) and Faqir Mohammad v. Akbar etc. (1979 SCMR 270) and particularly when it is an order of setting aside of the order of suspension of sentence and cancellation of bail. The principle is that the Court does not interfere in a case of bail unless circumstances are altogether of exceptional character and the refusal might entail risk of grave illegality or clear abuse of process or some gross act of injustice e.g., victimization. The order of grant of bail ought not to be interfered with lightly as held in the case of Sardari and another v. The State (1968 SCMR 1063).
In view of the above discussion, we see no justification to interfere with the order of the High Court. Resultantly, these petitions are dismissed, leave declined.
(A.S.) Leave declined
PLJ 2007 SC 1031
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
MUHAMMAD KHAN etc.--Appellants
versus
PROVINCE OF PUNJAB, etc.--Respondents
Civil Appeal No. 1878 of 2001, decided on 28.2.2007.
(On appeal from the judgment/Order dated 12.1.2000 of the Lahore High Court, Lahore, passed in RSA No. 19 of 1996)
Colonization of Government Land (Punjab) Act, 1912 (V of 1912)--
----Ss. 10 & 36--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Proprietary rights--Jurisdiction of civil Court--Allotment of land under Grow More Food Scheme--Appreciation legal and factual aspect of controversy--Question of--Determination--Whether land in-question could have been cancelled prior to expiry of five year--Scope of--Auction on tender to public-at-large--Entitlement--Civil Court had the jurisdiction to decided the controversy--All the allottees under the Grow More Food Scheme were entitled to acquire the proprietary rights irrespective of the date of allotment and date of termination of lease--Stipulated period of five years was not completed--Physical possession of land was handed over to the appellants in March 1957 and period of five years would be completed after Rabi 1962 and thus the land in-question by no stretch of imagination could have been resumed and included in the scheme of schedule to be given through auction on tender to public-at-large because it was not available for such question--Appeal accepted. [Pp. 1035 & 1037] A & B
PLJ 1992 SC 49; 1985 SCMR 817; PLD 1980 SCmr 139; PLD 1983 Lah. 294; PLD 1954 Lah. 253 & PLD 1958 SC 104 ref.
Ch. Muhammad Ashraf, ASC for Appellants.
Mrs. Afshan Ghazanfar, AAG for Respondents 1 to 2.
Respondents No. 3 in person.
Mr. Nazir Ahmed Bhutta, ASC for Respondents 4 to 9.
Date of hearing: 28.2.2007.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 12.1.2000 whereby RSA preferred on behalf of appellants has been dismissed.
"The land in dispute was allotted to the petitioner under Grow More Food Scheme admittedly on 14-12-1956. The possession was delivered to them in pursuance of the said allotment in March, 1957 as per findings recorded by the trial Court in the judgment dated 29-11-1987 through which their suit was decreed.
According to the policy decision of the Punjab Government, the land of the such allottees whose lease had expired on or before Rabi 1962 was to be resumed and included in the scheme of schedule of tender to be given through auction on tender to public-at-large.
The land of the petitioners was resumed under the said policy decision aggrieved of which they brought a suit before the Civil Court which was decreed through judgment dated 29-11-1987 by the trial Court by recording finding that the possession having been delivered to the petitioners in March, 1957, therefore, as per terms of Section 10 of Colonization of Government Lands Act, their tenancy would be deemed to have started from the said date and if counted from the said date, period of five years would go beyond Rabi 1962, as such, the said policy decision was wrongly applied to this case and the orders of the authority of resumption of the land and inclusion of the same in the scheme of tender were void abinitio.
In appeal, however, the appellate Court dismissed the suit of the petitioners by acceptance of appeal on technical ground that jurisdiction of the Civil Court in such matters was barred by virtue of Section 36 of the said Act. It was affirmed by the learned Judge of the High Court through the impugned judgment dated 12-1-2000 against which leave sought.
Learned Judge of the High Court in the impugned judgment has, however observe that in case an order of the statutory authority was void abinitio, mala fide or against law, the Jurisdiction of the Civil Court would not be barred. At the same time, it appears to have altogether been overlooked by the First Appellant Court and also the High Court that the case of the petitioners was and it was proved through evidence as per findings of the trial Court that possession of the land was delivered in March, 1957 and as per terms of Section 10 of the Act, the tenancy would be deemed to have started from the said date, as such, period of five years would not expire in Rabi 1962 but would go beyond the same which has not been attended to. This jurisdictional fact being absent from the case which is sine qua non for excising power by the concerned authorities to resume the land under the said policy decision and inclusion of the same in the scheme of schedule of tender, therefore, the trial Court according to learned counsel for the petitioner rightly decreed the suit by holding that the act of the concerned authorities was void ab initio and lacked power which has not been taken into consideration by the First Appellate Court and the learned Judge of the High Court as the decision of the said two Courts are based on extraneous matters and the petitioners have been deprived of their valuable right under the law. In support of his connections, he relies upon Muhammad Rafiq and others versus Hashmat Ali and others (PLJ 1992 SC 49) and Muhammad Shafi verses Member, Board of Revenue and others (1985 SCMR 817). He also argued that subsequent to the said policy decision, however, the Government changed its policy and issued another policy decision that in case of allottees under the Grow More Food Scheme, proprietary rights could be give to them irrespective of date of commencement or expiry of their lease.
We have also heard learned counsel for the respondents.
The above contention, inter-alia, raised by the learned counsel for the petitioner require examination, therefore, we grant leave to consider the same.
Till the disposal of the appeal, possession of the petitioners over the land in dispute shall not be disturbed who shall continue paying Government dues.
Ch. Muhammad Ashraf, learned ASC entered appearance on behalf of appellants and contended that the evidence which has come on record has not been appreciated in its true perspective by the learned single Judge of Lahore High Court in chambers as well as by the learned appellate Court which resulted in serious miscarriage of justice. It is argued that determination of the learned appellate Court, upheld by the learned single Judge of Lahore High Court has no nexus whatsoever with the evidence which has come on record. It is also contended that the legal aspects of the controversy could not be appreciated in its true perspective and the learned High Court has erred while holding that Civil Court has no jurisdiction to dilate upon the controversy which is not in consonance with the dictum laid down by this Court on various occasions. It is urged with vehemence that the appellants are admittedly allottees of the land under Grow More Food Scheme and their period of five years lease was expired after Rabi 1962 and as such they are entitled to acquire the proprietary rights pursuant to the policy framed by the Government of Punjab which aspect of the matter went unnoticed by the learned Courts below causing grave prejudice against the appellants. It is next contended that the instructions dated 26.4.1971 issued by the Government of Punjab have been misinterpreted and misconstrued whereby all allottees of the land were eligible to acquire proprietary rights under the Grow More Food Scheme irrespective of the fact that the land was allotted in their favour or otherwise. It is further argued that the learned trial Court after having gone through the entire record and evidence determined that the allotment made in favour of appellants was legal and valid under the Grow More Food Scheme which entitled them to acquire the proprietary rights of the land in question in view of the provisions as contemplated in Section 42 of the Specific Relief Act 1877 but the learned appellate Court as well as learned single Judge in chambers have reversed the findings of learned trial Court without assigning any cogent reasoning. It is lastly argued that the District Collector has resumed the land allotted in favour of the appellants without affording proper opportunity of hearing and thus the exercise of authority by the District Collector was arbitrary and fanciful which could have been looked into by the learned Civil Court and there would be no bar of jurisdiction in such like eventualities.
Ms. Afshan Ghazanfar, learned Assistant Advocate General entered appearance on behalf of Province of Punjab and strenuously controverted the view point as canvassed at bar by the learned ASC on behalf of appellants and supported the judgment impugned for the reasons enumerated therein with the further submission that no order was passed by the learned District Collector in black and white and therefore learned Civil Court could not have exercised jurisdiction in view of the bar as contemplated under Section 36 of the Colonization of Government Land (Punjab) Act (V of 1912). It is next contended that the appellants were not entitled for proprietary rights as stipulated period i.e. five years of their lease was expired prior to Rabi 1962 and the land in-question could have been resumed and allotted by the authority concerned. It is next contended that the appellant had no locus standi to initiate the proceedings against the Government of Punjab being lessee for a stipulated period and limited purpose having no legal right whatsoever to claim the proprietary rights of the land in-question.
The entire record has been examined with the eminent assistance of learned counsel. We have perused the judgment of learned trial and appellate Courts as well as the judgment impugned. There is no denying the fact that the land in-question was allotted in favour of appellants by means of order dated 14.12.1956 under the Grow More Food Scheme and the physical possession was delivered in March 1957. The pivotal question which needs determination would be as to whether the land in-question could have been cancelled prior to the expiry of five years stipulated period pursuant to the provisions as contemplated in Section 10 of the Colonization of Government Land (Punjab) Act (V of 1912) because the policy framed by the Government made it abundant clear that the land of such allottees whose lease had expired on or before Rabi 1962 was to be resumed and included in the scheme of schedule of tender to be given through auction on tender to public-at-large. As mentioned earlier the physical possession of the land in-question was handed over to the appellants in March 1957 and the period of five years would be completed after Rabi 1962 and thus the land in-question by no stretch of imagination could have been resumed and included in the scheme of schedule of tender to be given through auction on tender to public-at-large because it was not available for such auction. It is worth mentioning that the said policy decision was abandoned and it was decided by the Government of Punjab by means of instructions dated 8.8.1962, 22.10.1962 and 26.4.1971 that all the allottees under the Grow More Food Scheme are eligible to acquire proprietary rights irrespective of the date of allotment and date of termination of lease. Ms. Afshan Ghazanfar, learned Assistant Advocate General was asked pointedly that as to why the proprietary rights should not be conferred upon the appellants, but no satisfactory answer could be given except that the claim of appellants could not have been dilated upon and decided by the Civil Court in view of the bar of jurisdiction as contemplated under Section 36 of the Colonization of Government Land (Punjab) Act (V of 1912) and besides that the five years lease period was expired prior to Rabi 1965 and thus the re-allotment of the land in-question to private respondents cannot be termed as mala fides hence the Civil Court had no jurisdiction. The above contention of learned Assistant Advocate General seems to have been made in oblivion of the fact that the order passed by District Collector qua resumption of land was ab initio void and hence no embargo can be imposed on the jurisdiction of Civil Court. It is well settled by now that "a purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to detennine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any fact he will have to ascertain whether the requisite circumstances exist for otherwise be cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which be can pass an order and in that case he will act in a quasi-judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts .... So far as special judicial tribunals are concerned they are given jurisdiction to determine certain fact but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. It is possible, of course, that special tribunal may be made the judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words. However, with respect to mala fides, the jurisdiction of Civil Court can never the taken away for a mala fide act is in its very nature an illegal and void act and the Civil Court can always pronounce an act to be mala fide and therefore void." (Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698). While examining a similar proposition it was held by this Court in case Abdul Rab v. Wali Muhammad (PLD 1980 SCMR 139) that "the Colonization Officers have no independent jurisdiction of their own and in cases of this type, they are bound to settle land on persons concerned in accordance with the statements and conditions or the scheme promulgated by the Government on the subject. These "statements and conditions" or the scheme constitute a law on the subject and if Colonization Officers violate that law in the garb of putting in unwarranted interpretation or construction of the same, they act in excess of their power and authority Civil Court will always have jurisdiction to strike down their orders. The proposition is well settled but if authority be needed reference may be made to Thakur and another v. Bengal Duars Bank Ltd. (1) Karim Dad v. Arif Ali and another (2) and Jiwana v. Mst. Sahibi (3)."
The provisions as contemplated under Section 36 of the Colonization of Government Land (Punjab) Act (V of 1912) were examined in case Anjuman Talim-ul-Islam (Regd.) Sheikhupura v. Province of West Pakistan (PLD 1983 Lahore 294) wherein it was held as follows:--
"11. The learned counsel for the appellant also challenged the view taken by the two Courts below that the Civil Court had not jurisdiction in the matter. It is to be noted that the ouster of the jurisdiction of Civil Court is not to be presumed or readily admitted, there is a plethora of case-law laying down that despite a clear ouster of jurisdiction of a Civil Court in a particular law, there are situations in which the jurisdiction can be exercised. One of such important cases is of Aslam Zia(4). It was held in Karim Dad v. Arif Ali etc. (5) that Section 36 of the Colonization of Government Lands Act would oust the jurisdiction only where the authorities concerned acted within power or the four corners of their jurisdiction and not where their acts are ultra vires, without jurisdiction, void or in excess of their jurisdiction. (4) PLD 1958 SC 101, (5) PLD 1978 Lah. 679.
Reference be also made to Jewana v. Mst. Sakhi (1) and Government of Punjab v. Harbhagwan and another (2), laying down that Section 36 did not oust the jurisdiction of the Civil Courts in certain cases. The same view was taken in the case of Sardar Habibullah also as referred to in para. 15 below. Thus if it is shown that the order passed cannot be accommodated with in the ambit of power of a particular authority, the Civil Court would intervene Similarly, the Civil Court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the Civil Court could only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor mala fides. (1) PLD 1954 Lah. 253, (2) 1940 PLR 529." (Aslam Zia PLD 1958 SC 104, Karim Dad v. Arif Ali etc. PLD 1978 Lah. 679; Jewana v. Mst. Saki PLD 1954 Lah. 253 and Government of Punjab v. Harbhagwan and another 1940 PLR 529).
The provisions of Section 36 of the Colonization of Government Land (Punjab) Act (V of 1912) were also examined in case Jiwana v. Sahbi (PLD 1954 Lah. 253) with the following observations:
"The Civil Courts would ordinarily have jurisdictions to decide whether or not the act purporting to have been done in the exercise of powers conferred by Act V of 1912 could be validly done under the act and on the language of Section 36 of the Act it cannot be held that jurisdiction had been taken away from the Civil Courts by that section. Nor does Section 36 of Act V of 1912 divest the Civil Courts of jurisdiction to adjudicate what legal effect the order of a Revenue Officer validly passed under Act V of 1912 will have on the rights of the parties before it."
(A.S.) Appeal accepted
PLJ 2007 SC 1038
[Appellate Jurisdiction]
Present: Rana Bhagwandas, HACJ; Tassaduq Hussain Jillani & Ghulam Rabbani, JJ.
SHAHBAZ MASIH--Appellant
versus
STATE--Respondent
Crl. A. No. 279 of 2002, decided on 7.5.2007.
(On appeal against the judgment dated 25.10.2001 passed by the Lahore High Court, Lahore in Crl. A. No. 81-J/99 and M.R. 294-I/99).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--Plenary power to summon a person to give evidence as witness--Essential--Court can examine any person in attendance though not called as a witness. [Pp. 1041 & 1042] A
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 265-F, 161 & 164--Whether a Court can summon and examine as witness--In pursuance of S. 265-F Cr.P.C. Court summon and examine any person as a witness when his statement u/S. 161 or S. 164 Cr.P.C. has not been recorded and his name does not appear in calendar of witnesses. [P. 1042] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-F--Object of--Where accused does not plead guilty or he is not convicted on his plea the Court shall issue summons to those persons whom the public prosecutor or complainant consider to be acquainted with the facts of the case and be able to give evidence for prosecution so that their evidence is taken by the Court. [P. 1043] C
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 161 & 265-F--Quality of evidence of eye-witnesses--Violation of law--Validity--Neither copy of statement of PW was supplied to accused nor name of such witness was shown in calendar of the witnesses, which fact was not controverted--As an injured he was named in FIR which fact appeared in evidence as well--The injured was examined by Court as a witness during course of trial, therefore, no violation of law seems to have taken place--Nothing was brought to notice to hold that defence has raised any objection at the time of recording testimony of such witness, rather he was subjected to lengthy cross-examination, therefore, it cannot be said that accused was prejudiced in his defence. [Pp. 1043 & 1044] D
Eye-witness--
----Appreciation of evidence--Poles apart--On the main part of incident, such as firing of assailants resulting in loss of precious life of a police personnel on one hand and injury to an other, evidence of both eye-witnesses is poles apart. [P. 1044] E
Witness--
----Identification of assailant--Incident took place at night hours--Appreciation of evidence--No source of light--Question of--Whether it could be possible for PW to identify the assailants at the time of incident to let his companions know their names--Incident took place at about 10.30 p.m.--Neither PW nor the other eye-witness stated that there was enough light to make it possible to identify the assailants, rather, PW admitted in his cross-examination. [P. 1044] F
PLJ 1982 FSC 17; PLJ 2005 Cr.C. Pesh. 119 ref.
Mr. Javed Aziz Sindhu, ASC for Appellant.
Ch. Munir Sadiq, Deputy Prosecutor General, Punjab for Respondent.
Date of hearing: 7.5.2007.
Order
Ghulam Rabbani, J.--This Criminal Appeal with leave of the Court is directed against the judgement dated 25.10.2001 of a Division Bench of Lahore High Court, Lahore, whereby the Jail Appeal preferred by appellant was dismissed, the death sentence awarded to him under Section 302 PPC by the Judge, Special Court No.2 constituted under Anti-Terrorism Act, 1997, Gujranwala Division Gujranwala, was confirmed and the Murder Reference was answered in the affirmative.
Shahbaz Masih, appellant and Nazar Ahmed the other convict were tried for offences punishable under Sections 302, 324, 353 and 392 read with Section 34 PPC. The allegations, in nutshell, were that on 19.4.1994 at about 10.30 p.m. both of them, together, appeared in village Channi Virk, raised alarm (Larkana) to teach the police party of 25 police personnel a lesson for having raided the den of Narcotic Dealers. Appellant was alleged to have fired from his .222 bore rifle causing injuries to Ejaz Ahmad (deceased LHC No. 183) and P.W. Muhammad Asif, a Foot-constable and the other convict was alleged to have also picked up the service rifle of injured LHC Ejaz Ahmad and made their escape good on a mare. Later, both the injured were removed to hospital where injured Ejaz Ahmed succumbed to his injuries and died.
After conclusion of the trial appellant was convicted under Section 302/34 PPC and sentenced to suffer death for causing murder of Ejaz Ahmad constable. He was also convicted under Section 324/34 PPC for committing murderous assault on Muhammad Asif HC and sentenced to undergo R.I. for 10 years with fine of Rs. 10,000/-, in default whereof to undergo R.I. for one year more. Nazar Ahmad was convicted under Section 302/34 PPC and sentenced to suffer life imprisonment. He was further convicted under Section 392/34 PPC for taking away service rifle of Ejaz Ahmad deceased and sentenced to undergo R.I. for 10 years with fine of Rs.10,000/-, in default whereof to undergo R.I. for 1 year more. The sentences so awarded were ordered to run concurrent. Both the convicts challenged their convictions and sentences by way of Criminal Appeal No.81-J/99. A Murder Reference No.294-I/99 for confirmation of the death sentence was also filed.
Learned Division Bench of Lahore High Court dismissed the above Criminal Appeal of Appellant, upheld the decision of learned Judge, Special Court No.II, Anti-Terrorism Act, 1997, Gujranwala and answered the Murder Reference in affirmative vide impugned judgement. Feeling aggrieved appellant filed Jail Petition before this Court, in which, leave was granted vide order dated 8.7.2002 in the following terms:--
"Petitioner has been convicted u/S. 302/34 PPC for the murder of Ejaz Ahmed. The incident took place at 10.30 p.m. in the dark night. Riaz Ali Shah who was complainant of the case himself investigated the case. During the trial of the case, a statement allegedly made by the deceased u/S. 161 Cr.P.C. on the day of occurrence was also brought on the record whereas during the investigation, according to learned counsel, it was never produced. PW 13 Muhammad Asif though was injured at the spot but he was not shown as one of the witnesses in the challan. According to evidence of PW 13, the police party was armed with weapons but no one tried to fire at the accused to apprehend them. According to evidence of PW 13, Riaz Ali Shah fired from his Kalashinkov at the accused when they were running away on a mare. Riaz Ali Shah admitted that he fired at the accused but it did not hit because it was dark night. PW 13 admitted in his statement that he did not know the present petitioner prior to the occurrence and that his name was told to him by Riaz Ali Shah and Sultan.
The petitioner alongwith others was arrested after about one month of the date of occurrence. No identification parade was conducted. "
In the instant case, prosecution examined complainant Riaz Ali Shah, Inspector as P.W.9 and Muhammad Asif, H.C. as PW-13, both as eye-witnesses. P.W. Muhammad Asif was not shown in the calendar of the police report. Mr. Javed Aziz Sindhu, ASC, learned counsel for appellant, therefore, took a preliminary objection that the said witness could not be examined to corroborate the solitary evidence of other eye-witness Riaz Ali Shah since neither copy of his 161 Cr.P.C. statement was supplied to the appellant nor he was named in the calendar of the witnesses. Mr. Sindhu, next, argued that the evidence of both the eye-witnesses inspired no confidence the same being replete with material contradictions and that the prosecution story, as set up, was unbelievable. He emphasized that prosecution had failed to prove the case against both the convicts beyond any shadow of doubt, therefore, they were entitled to acquittal.
On the other hand, Mr. Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab appearing for the State expressed that a Court of criminal jurisdiction enjoyed plenary powers to summon and record testimony of any person acquainted with the facts of prosecution case and able to give evidence. In that, he added that even a person whose statement under Section 161 or 164 Cr.P.C. was not recorded and the calendar of witnesses; as well, did not bear his name, could be summoned by Court and his evidence recorded within terms of Section 265-F Cr.P.C. According to Mr. Ch. Munir the examination of PW-13 Muhammad Asif, was neither violative of the law nor it caused any prejudice to the case of appellant. He placed reliance on case of Muhammad Hussain versus the State (PLJ 1982 FSC 17) and the case of Waris Khan and others versus the State and others (PLJ 2005 Cr.C. (Peshawar) 119), He supported the impugned judgement and stated that both the convicts were rightly awarded the sentences.
We have given due attention to the oral submissions of both the learned counsel and with their assistance we have gone through the material available on record. The contention of learned Deputy Prosecutor General that a Court of criminal jurisdiction enjoys plenary power to summon a person to give evidence as witness is undeniable. Court enjoys full powers to summon and examine any person as a witness at any stage of trial; rather it is imperative for the Court within terms of Section 540 Cr.P.C. to summon and examine a person when evidence of such person appears to the Court essential to do the just decision of the case. Also, the Court can examine any person in attendance though not called as a witness. The underlying object, always, is to reach truth. However, the question in this case which requires our attention is whether a Court can, in pursuance of Section 265-F Cr.P.C.; summon and examine any person as a witness when his statement under Section 161 Cr.P.C or under Section 164 Cr.P.C. has not been recorded and his name does not appear in the calendar of witnesses. Contention of learned Deputy Prosecutor General is that the Court can do that within terms of said section which is part of scheme relating to trials before the High Court and the Courts of Sessions, (Chapter XXII-A) introduced by Law Reforms Ordinance, 1972 (XII of 1972). Therefore, to ascertain true import and purport of this provision of law, it will be advantageous to read the same conjointly with other relevant provision namely Sections 265-C, 265-D and Section 265-E provided in the chapter.
Sub-section (1) of Section 265-C envisages that in all cases instituted upon police report, copies of documents, namely; (a) the first information report; (b) the police report; (c) the statements of all witnesses recorded under Sections 161 and 164, and (d) the inspection note recorded by an investigating officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any, shall be supplied free of cost to the accused not later than seven days before the commencement of the trial; provided that, if any part of a statement recorded under Section 161 or Section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused. Sub-section (2) of the said section, which, relates to cases instituted upon complaint in writing, inter-alia, provides that the complainant shall state in the petition of complaint the substance of accusation, the names of his witnesses and the gist of evidence which he is likely to adduce at the trial, etc. and that the copies of complaint with documents and the statements under Section 200 or 202 shall be supplied free of cost to accused not later then seven days before the commencement of the trial. The next immediate provisions appearing in this chapter are Sections 265-D and 265-E Cr.P.C., which, respectively, relate to framing of charge and recording of plea. After that comes Section 265-F Cr.P.C., sub-section (1) whereof, envisages that if the accused does not plead guilty or the Court does not convict him on his plea, the Court shall proceed to hear the complaint if any) and take all such evidence as may be produced in support of the prosecution; provided the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. Sub-section (2) of the said section provides that the Court shall ascertain from the public prosecutor or, as the case may be, from the complainant the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. Sub-section (3) of said section, envisages that the Court may refuse to summon such witness, if it is of the opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Then sub-section (4) provides that when the examination of the witnesses for prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. Thus, reading of above provision of law, as a whole, reflects that the object of Section 265-F appears to be that where accused does not plead guilty or he is not convicted on his plea the Court shall issue summons to those persons whom the public prosecutor or complainant consider to be acquainted with the facts of the case and be able to give evidence for prosecution so that their evidence is taken by the Court. Nothing is provided in the said section that it shall be at the discretion of public prosecutor or the complainant, as the case may be, to name any such person whose statement under Section 161 Cr.P.C, or 164 Cr.P.C. has not been recorded and whose name does not appear in the calendar of witnesses. Had it been so, the very purpose of Section 265-C Cr.P.C. requiring obligatory supply of documents mentioned therein, well in advance, apparently with no purpose other than to enable the accused to know the prosecution case and meet the charges, if framed, would lapse into unconscionable consequences.
Now, we come to the case of Muhammad Hussain and the case of Waris Khan and others (supra) cited by learned Deputy Prosecutor General. In the first mentioned case the question of applicability of Section 265-F Cr.P.C. was not considered. In the other case, Court had examined a witness whose 161 Cr.P.C. statement was not recorded. Learned single Judge of Peshawar High Court held that Section 265-F Cr.P.C. caters for such a situation where the Court may ascertain from the complainant the name of any person likely to be acquainted with the facts of case and be able to give evidence for prosecution. With profound respects, having expressed on the point in the foregoing para, we do not find ourselves inclined to subscribe to the above view.
Before, we touch upon the quality of evidence of eye-witnesses namely P.W. Riaz Ali Shah, Inspector and P.W. Muhammad Asif, H.C., it may be stated that neither Copy of 161 Cr.P.C. statement of PW (Muhammad Asif, HC) was supplied to the appellant nor name of this witness was shown in the calendar of witnesses, which fact was not controverted. Be that as it may, the fact remains that as an injured he was named in the F.I.R. which fact appeared in the evidence, as well. He was examined by the Court as a witness during the course of trial, therefore, no violation of law seems to have taken place. Nothing was brought to our notice to hold that the defence had raised any objection at the time of recording testimony of this witness; rather he was subjected to lengthy cross-examination, therefore, it cannot be said that the appellant was prejudiced, in his defence.
In the above scenario of the case, we have carefully scanned the evidence of both the P.Ws. in order to appreciate its intrinsic value. P.W. Riaz Ali Shah stated in his evidence that the assailants fired while riding on a mare, whereas P.W. Muhammad Asif stated that both the assailants dismounted, fired at the raiding party and left the place on the same mare. This witness stated in his evidence that Riaz Ali Shah, Inspector fired from his Kalashinkov towards the assailants while P.W. Riaz Ali Shah controverted this statement by stating in his evidence that the accused decamped, therefore, he could not fire at the assailants due to darkness. There was a huge number of Police personnel available at the place of incident. Admittedly, they were armed with a variety of weapons but none of them is stated to have returned the fires of assailants. This conduct seems to be against normal human behaviour, moreso, of well-trained men, conscious of the fact that two of them were gunned down by the assailants taking away their Service Rifle. Besides, P.W. Muhammad Asif stated in his deposition that the names of appellant and other convict were disclosed to raiding party by P.W. Riaz Ali Shah and Ch. Sultan of Channi Virk; no such statement was made by the other witness examined by prosecution.
To sum up, from above narration, it is quite evident that on the main part of incident, such as firing of assailants resulting in loss of precious life of a police personnel on one hand and injury to an other, evidence of both the eye-witnesses is poles apart.
Beside the above, on the point whether it could be possible for PW Riaz Ali Shah to identify the assailants at the time of incident to let his companions know their names, it may be stated that the prosecution case, as set up, was that the incident took place at about 10.30. p.m. However, neither PW Riaz Ali Shah nor the other eye-witness stated that there was enough light to make it possible to identify the assailants; rather, P.W. Riaz Ali Shah admitted in his cross-examination that he had not mentioned the source of light in Exh. P.H. In fact there was darkness as would be evident from other statement of this witness, in which, he stated that he could not fire at the accused (assailants) due to darkness meaning thereby that the assailants were not visible. The same being so it was quite obvious that there was remote possibility for PW Riaz Ali Shah to have identified the assailants muchless disclosing their names to his companions.
Evidence of P.W. Muhammad Asif reflects that one Ch. Sultan of Channi Virk was present at the spot at the time of incident. He was the only person other than police party available at material time, however, prosecution preferred not to examine this witness. The presumption would be that the prosecution was fearful that he would not support its case, if examined. In the circumstances, we feel no hesitation to agree with Mr. Sindhu, learned counsel for appellant that prosecution failed to prove the case against the appellant and the co-convict beyond any shadow of doubt.
Consequently, by our short order, we allowed this appeal, judgements of trial Court as well as that of High Court were set aside and the appellant Shahbaz Masih was acquitted of the charge. He was ordered to be released unless to be detained for any other cause. Co-convict Nazar Ahmad, who though, had not filed any appeal against his conviction and sentences, was held entitled to similar treatment.
Above are the reasons for our short order.
(A.S.) Appeal allowed
PLJ 2007 SC 1045
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed & Hamid Ali Mirza, JJ.
REHMAT DIN and others--Petitioners
versus
MIRZA NASIR ABBAS and others--Respondents
C.M.A. No. 683 of 2007 in C.A. No. 2568 of 2001, decided on 8.5.2007.
(On appeal from the judgment dated 15.11.2000 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Civil Revision No. 37-D of 1988).
Condonation of delay--
----Principle--Condonation of delay is discretion of the Court to condone or not to condone the delay after its satisfaction that there was sufficient cause for condonation of delay. [P. 1048] A
Equity--
----Principle--Duty and obligation--It is duty and obligation of the Court to exercise its discretion keeping in view the principle of equity and fairplay in judicial manner and has no power to exercise discretion arbitrary. [P. 1048] B
Limitation--
----Principle--Object of law of limitation is to help the vigilant and not to the indolent. [P. 1048] C
Interpretation of law--
----Law of limitation--Expiry of limitation--Barred by 621 days--Maxim--Dismissal of appeal--Source of knowledge--Courts had been lenient and had been condoning some negligence i.e. negligence to the extent to which it is regarded as human but gross negligence had never been condoned but Courts had been strict in demanding proof of sufficient cause for every day which has expired after the period of limitation--By flux of time respondents had acquired vested rights in view of dismissal of their appeal for non-prosecution--Petitioners failed to explain delay of each day--Law of limitation is required to be construed strictly, coupled with the maxim that "each day of delay has to be explained by the party concerned where long periods of delay were not explained--Application dismissed as time barred.
[Pp. 1048 & 1049] D
PLJ 1981 SC 268.
Maxim--
----`Delay defeats equities'--Words of Lord Camdan--Court of equity, has always refused its aid to state demands, where a party has slept upon his rights and acquiesced for a great length of time. [P. 1049] E
Mr. Muhammad Younis Bhatti, ASC for Petitioners.
Mr. Abdul Baseer Qureshi, ASC for Respondents.
Date of hearing: 8.5.2007.
Judgment
Ch. Ijaz Ahmed, J.--Brief facts out of which the present C.M.A. arises are that petitioners filed suit for declaration against the respondents in the Court of Senior Civil Judge, Islamabad. Respondents filed written statement controverting allegations leveled in the plaint. Out of the pleadings of the parties the trial Court framed eight issues. The learned trial Court decreed the suit vide judgment and decree dated 15-5-1986. Respondents being aggrieved filed appeal against the petitioners in the Court of Additional District Judge, Islamabad, who accepted the same vide judgment and decree dated 29-11-1987. Petitioners being aggrieved filed Civil Revision No. 37-D/1988 in the Lahore High Court, Rawalpindi Bench, Rawalpindi. The learned High Court dismissed the same vide judgment dated 15-11-2000. Petitioners being aggrieved filed C.P. No. 761/2001 before this Court and leave was granted. Out of which C.A. No. 2568/2001 has arisen. During the pendency of the appeal respondents filed C.M.A. No. 1720/2002 with the prayer for the dismissal of the appeal on the ground that petitioners have filed appeal/petition against Respondent Nos. 1 & 2 Mirza Nasir Abbas and Mst. Maryam Begum. Respondent No. 1 Mirza Nasir Abbas had died on 12-10-1992 whereas Respondent No.2 Mst. Maryam Begum died on 10-10-1998. Therefore, petitioners have filed appeal against dead persons which is incompetent and not maintainable. Respondents filed the said application on 29-7-2002 and notice was also sent to the petitioners by the Advocate-on-Record of the respondents as is evident from page 6 of paper book of C.M.A. No. 1720/2002. The said appeal was fixed before this Court on 8-6-2005 which was dismissed for non prosecution in presence of Mr. Abdul Baseer Qureshi, ASC and Mr. Ch. Akhtar Ali, AOR for the respondents. The petitioners have filed C.M.A. No. 683/2007 for restoration of the said appeal on 21-3-2007. The application is barred by 621 days.
The learned counsel of the petitioners submits that Mr. Anwar H. Mir, AOR of the petitioners expired about 3 years ago. The said appeal was fixed for hearing on 8-6-2005 but the petitioners were not informed nor learned counsel for the petitioners was informed about the date of hearing as learned Advocate-on-Record has already expired. Petitioners came to know about the dismissal of the appeal on 6-3-2007 and filed present application for restoration within time from the date of knowledge. He further submits that on account of sad demise of Mr. Anwar Mir, AOR due to this, their Advocate did not receive information about the fixation of the appeal on the said date. He further maintains that valuable rights have accrued to the petitioners in view of the leave granting order dated 22-11-2001.
The learned counsel of the respondents submits that cause list dated 8-6-2005 has clearly shown the name of the counsel of the petitioners, namely, Mr. Muhammad Munir Peracha and Anwar H.Mir, AOR. He further urges that petitioners had not mentioned source of information qua their knowledge that they had got information about the dismissal of their appeal for non prosecution on 8-6-2005 on 6.3.2007. He further urges that valuable rights had accrued to the respondents in view of the order dated 8-6-2005 by flux of time. He further maintains that appeal was liable to be dismissed as the petitioners had filed petition/appeal against the dead persons. Respondents have filed C.M.A. No. 1720/2002 for dismissal of the appeal on the said ground but petitioners have failed to file any reply to the application till date.
We have given our anxious consideration to the submissions made by the learned counsel of the parties and have perused the record. It is an admitted fact that respondents have filed aforesaid application for dismissal of the appeal as the petitioners have filed appeal against Respondent Nos. 1 and 2 who had already died before filing of petition/appeal before this Court. Petitioners have not filed any application for rectification of the same. There are ample authorities to show that there can be no petition/appeal against the dead persons as it would be nullity. See Pratap Chand v. Krishna Devi (AIR 1988 Dehli 267). It is pertinent to mention here that petitioners have filed petition/appeal against five respondents out of which two died before filing of petition/appeal before this Court. Their names could be struck off under Order I, Rule 10(2) CPC. It is settled law that condonation of delay is discretion of the Court to condone or not to condone the delay after its satisfaction that there was sufficient cause for condonation of delay. The aforesaid facts qua application of the respondents are only mentioned to exercise discretion for condoning delay. It is duty and obligation of the Court to exercise its discretion keeping in view the principle of equity and fairplay in judicial manner and has no power to exercise discretion arbitrary. See Kanshi Ram's case (AIR 1932 Lah. 183), Kishan Chand's case (AIR 1942 Lah. 94), Arura's case (AIR 1947 Lah. 76) and Badri Prasad's case (1933 All. 294). It is settled law that object of law of limitation is to help the vigilant and not to the indolent. It is pertinent to mention here that petitioners have not mentioned in their application source of knowledge qua the dismissal of their appeal for nor prosecution by this Court. This fact brings the case in the area that the petitioners have concealed the material facts from this Court which are sufficient not to exercise equitable jurisdiction/discretion in their favour. Petitioners' allegation that they were all along unaware of the dismissal of their appeal about 621 days did not fortify any circumstance of the case in hand as mentioned above. Petitioners have not mentioned source of knowledge qua dismissal of their appeal on 8.6.2005. It is no doubt that the Courts had been lenient and had been condoning some negligence i.e., negligence to the extent to which it is regarded as human but gross negligence had never been condoned but Courts had always been strict in demanding proof of sufficient cause for every day which has expired after the period of limitation. This can be ascertained only from the contents of application. Petitioners did not mention the source of information qua their knowledge with regard to the dismissal of their appeal on 8-6-2005. By flux of time respondents have acquired vested rights in view of dismissal of their appeal for non-prosecution as mentioned above. The same is barred by 621 days. The name of their counsel was also mentioned in the cause list of the said date. Leave was granted on 22-11-2001. Respondents have filed CMA No. 1720/2002 for dismissal of appeal for filing the same against the dead persons. Petitioners have not filed reply to the said application. It appears that the petitioners have not contacted their counsel during this period till the dismissal of their appeal for non prosecution on 8-6-2005. In case all the facts are put in juxta-position even then petitioners failed to explain delay of each day. We have given due weight to the affidavit of counsel of the petitioners inspite of that we are constrained not to exercise discretion in favour of the petitioners in view of the aforesaid circumstances and conduct of the petitioners. Law of limitation is required to be construed strictly, coupled with the maxim as mentioned above that each day of delay has to be explained by the party concerned where long periods of delay were not explained, therefore, application merits dismissal as time barred. Petitioners came to know about dismissal through friend three months latter. No ground to condone of delay of 84 days. See Sher Muhammad's case (PLJ 1981 SC 268). Even if an important point is involved in a case that would not, in any way, allow the Court to use its discretion in an arbitrary way to over ride the provisions of the Limitation Act and the Supreme Court Rules. Therefore, we are not inclined to condone the delay as respondents have accrued vested rights by flux of time. Expiry of limitation vests a person with a valuable right. It cannot be taken away by condonation of delay. It is a well known maxim `Delay defeats equities' and the words of Lord Camdan, a Court of equity "has always refused its aid to stale demands, where a party has slept upon his rights and acquiesced for a great length of time".
In view of what has been discussed above we find no merits in this C.M.A. which is dismissed as time barred.
(A.S.) Application dismissed
PLJ 2007 SC 1049
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Falak Sher, JJ.
MUHAMMAD AKRAM--Petitioner
versus
STATE--Respondent
Jail Petition No. 206 of 2005, decided on 22.5.2007.
(On appeal from the judgment dated 26.4.2005 of the Lahore High Court, Lahore passed in Cr. A. No. 125 of 2004).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Huge quantity of charas--Recovery of--Report of chemical examiner was positive--Held: Prosecution had proved the case against petitioner/accused without any iota of doubt--A huge quantity of charas was recovered from accused and report of chemical examiner was also found in positive--Witnesses had deposed against accused and their testimonies remained unshattered despite lengthy cross-examination--Counsel could not point out any misreading or non-reading of evidence warranting interference by Supreme Court--Leave refused. [P. 1053] A
Sardar Muhammad Siddique Khan, ASC for Petitioner.
Ms. Nahida Mehboob Ellahi, DAG, Ms. Afshan Ghazanfar, AAG Punjab and Ch. Munir Sadiq, DPG Punjab for State.
Date of hearing: 22.5.2007.
Order
Abdul Hameed Dogar, J.--Petitioner through this jail petition has challenged the judgment dated 26.4.2005 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 125 of 2004 filed by him was dismissed.
The facts in brief as narrated by complainant Muzaffar Hussain, ASI in FIR No. 158 of 2001 dated 21.8.2001 at Police Station Lahori Gate, Multan registered under Section 9-C of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as the `the Act') are that on 21.8.2001 he was on patrolling duty along with Ghulam Sarwar, ASI, Muhammad Ramzan, ASI and other police officials and when reached near Alrehman Motors Khanewal Road, Multan, a spy information was received that petitioner Muhammad Akram was selling Narcotics in front of his house situated in Street No. 12 Sarai Wazir Khan. On this he along with other police officials conducted raid and apprehended the petitioner who was holding a white cloth bag. On search 13 bags each weighing 1 kilogram of charas were recovered. 10 grams from each bag were separated and sealed into parcel for chemical examination and a case under Section 9-C of the Act was registered against petitioner. After completion of investigation petitioner was sent up to face trial.
Prosecution in order to prove its case examined Abdul Ghafoor (PW-1), Allah Ditta (PW-2), Muhammad Ramzan, ASI (PW-3), Ghulam Sarwar, ASI (PW-4) and Muzaffar Hussain, ASI (PW-5).
In his statement recorded under Section 342 Cr.P.C. petitioner denied the charge and pleaded false implication. He neither opted to record statement on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in his defence.
On the conclusion of trial petitioner was convicted and sentenced under Section 9-C of the Act to suffer life imprisonment with fine of Rs. 100,000/- or in default thereof to further undergo RI for one year. However, benefit of Section 382-B Cr.P.C. was extended in his favour.
Feeling aggrieved petitioner filed Criminal Appeal No. 125 of 2004 before learned Lahore High Court, Lahore which was dismissed vide impugned judgment.
This petition is barred by 5 days, but being criminal matter and sent through jail, the delay is condoned.
We have heard Sardar Muhammad Siddique Khan, learned counsel for the petitioner, Ms. Nahida Mehboob Ellahi, learned DAG, Ms. Afshan Ghazanfar, learned AAG Punjab and Ch. Munir Sadiq, learned DPG Punjab at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioner vehemently contended that in the instant case raid was conducted by an Assistant Sub Inspector of Police (hereinafter referred to as "ASI") in violation of provisions of Section 21 of the Act whereby an officer not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or Provincial Government, could enter into any building, place, premises and seize such narcotics drugs. He further contended that after the registration of the case, the above defect was not removed rather the investigation was conducted by another ASI, thus entire proceedings stands vitiated. In support of his contention he relied upon the case reported as Raees Khan Vs. The State (2005 P.Cr.L.J. 76) and State through AG Sindh Vs. Hemjoo (2003 SCMR 881)
On the other hand, learned counsel appearing on behalf of State supported the impugned judgment and contended that petitioner was standing in front of his house and the raiding party did not enter the house. She further contended that Section 21 of the Act itself authorizes the police officer in exceptional cases to proceed and conduct the raid without the warrants. According to her the complainant proceeded on spy information and if he had waited for obtaining the warrants the petitioner would have left the place and no purpose could have been achieved, as such an ASI was justified in searching the accused outside the house without warrants.
Since in this case raid was conducted by an ASI as such it would be appropriate to examine as to whether an ASI can conduct raid, which as argued above, if so conducted, would be in violation of provisions of Section 21 of the Act. Therefore, it would be appropriate to reproduce Section 21 of the Act which reads as under:--
"21. Power of entry, search, seizure and arrest without warrant.--(1) Where an officer, not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to by any person is of opinion that any narcotics, drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept and concealed in any building, place, premises or conveyance, and a warrant of search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may--
(a) enter into any such building, place, premises or conveyance;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotics drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search, and, if he thinks proper, arrest any person who he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under sub-section (1), the officer referred to in the sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.
On bare perusal of above provisions of law, it is clear that Section 21 of the Act is not applicable in the facts and circumstances of the case in hand for the reason that complainant Muzaffar Hussain, ASI who was on patrolling duty along with other police officials received information that petitioner was selling narcotics in Street No. 12 situated in Sarai Wazir Khan in front of his house. Whereas the requirements of provisions of Section 21 of the Act are that an officer not below the rank of Sub-Inspector can enter, search and seize any narcotics drug, psychotropic substance or controlled substance kept or concealed in any building, place, premises of conveyance without any warrant, if he is of the opinion that said information is credible. While in the present case raid was conducted and search of petitioner was made in a street which is thoroughfare and is a public place. Public place as defined in explanation of Section 22 of the Act include any public conveyance, hotel, shop or any other place contended for use by, or accessible to the public. The word public place has also been defined in Prohibition (Enforcement of Hadd) Order, 1979 as under:--
"Public Place" means a street, road, thoroughfare, park, garden, or other place to which the public have free access and includes a hotel, restaurant, motel, mess and club, but does not include the residential room of a hotel in the occupation of some person."
The requirement to obtain search warrant can be dispensed with in cases where a quick action is required to be taken and it would be difficult to obtain search warrant where due to paucity of time the apprehension of narcotics being removed or culprits having chance to escape are eminent. If said ASI had gone for obtaining search warrant there was likelihood of petitioner having escaped away and was thus justified in conducting raid, search and seizure of huge quantity of narcotics without warrant. This Court in the case of Karl John Joseph Vs. The State (PLD 2004 SC 394) held that requirement of search warrant could be dispensed with if the same could not be possibly obtained from the Court before conducting the search. It was also held in the case of Fida Jan Vs. The State (2001 SCMR 36) that provisions of Section 20 of the Act being directory in nature and non-compliance thereof cannot be considered a strong ground for making the trial of the accused bad in the eye of law.
The facts in the case of State through AG Sindh referred supra are distinguishable as in that case raid was conducted by an Excise Inspector on receipt of information inside the house without fulfilling the requirements of Section 21 of the Act though he could conveniently obtain the search warrant from the Special Court.
The case of Raees Khan referred supra will also not support the petitioner as in that case raid was conducted by Inspector without search warrants inside the house without giving reasons and grounds for such action in writing either in the FIR itself or in the case diary and such an omission makes departure from the established procedure prescribed for the same.
In his statement recorded under Section 342 Cr.P.C. though petitioner pleaded false implication but no evidence was produced to substantiate his stance.
The prosecution has proved the case against petitioner without any iota of doubt. A huge quantity of charas was recovered from him and the report of Chemical Examiner is also found in positive. The witnesses have deposed against petitioner and their testimonies remained unshattered despite lengthy cross-examination. Learned counsel though argued at length, yet could not point out any misreading or non-reading of evidence warranting interference by this Court. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
A
(A.S.) Leave refused.
PLJ 2007 SC 1054
[Review Jurisdiction]
Present: Muhammad Nawaz Abbasi, Saiyed Saeed Ashhad & Raja Fayyaz Ahmed, JJ.
Br. JEHANZAIB RAHIM--Petitioner
versus
Dr. SHAUKAT PERVEZ and others--Respondents
C.R.P. No. 46 of 2007, in C.A. No. 241 of 2005, decided on 4.4.2007.
(On review from the judgment dated 21.12.2006 passed by Supreme Court of Pakistan in C.A. No. 241 of 2005).
Condonation of delay--
----Principle--Delay of each day must be satisfactorily explained and the ground on the basis of which condonation is sought must be recognized in law a valid ground and sufficient cause for condonation of delay. [P. 1057] C
Review--
----Principle--Case cannot be reopened on merits in review and the rules do not permit the review petitioner to himself address the Court if he was being represented by the counsel. [P. 1057] E
Supreme Court Rules, 1980--
----O. XXVI, R. 8--Constitution of Pakistan, 1973, Art. 188--Review petition--Dismissed--Time barred--No sufficient or valid cause for condonation of delay of 51 days--Review petition had been filed with delay of 51 days and the condonation had been sought on the ground that petitioner having hope of justice from the Bench of the Supreme Court which had decided the main appeal did not earlier file the review petition for the reason that under Order XXVI Rule 8 of Supreme Court Rules, the review petition was to be placed before the same Bench which finally decided the case or at least one of the judges of the said Bench--Validity--Author judge ceased to function but second member of the Bench was functioning and was also available to be--If the petitioner was not satisfied with the statement made by his counsel before the Court or had any reservation against any member of the Bench, he after filing the review petition within the prescribed time provided in the rules, could conveniently raise objection to the independence of the Bench for the purpose of hearing the review--Petitioner did not apply for the certified copy of the judgment within the limitation for filing the review petition rather he applied for copy after the expiry of limitation to file the review, which was prepared and petitioner having collected the same and filed the review petition with a delay of 51 days--Held: Petitioner having not applied for the copy of the judgment within the limitation for filing the review petition had not been able to explain the delay and further reason advanced by him for not making an application for a copy of the judgment to file the review petition within limitation, was not rooted in any disability--Review petition was dismissed as barred by time. [Pp. 1056, 1057 & 1058] A, B, D & F
Mr. S. Zafar Abbas Zaidi, ASC with Petitioners in person.
Nemo for Respondents.
Date of hearing: 4.4.2007.
Order
Muhammad Nawaz Abbasi, J.--This petition under Article 188 of the Constitution read with Order XXVI Rule 1 of the Supreme Court Rules, 1980 has been filed seeking review of the judgment dated 21.12.2006 rendered by this Court in CA No. 241 of 2005.
This Court in similar situation in Sh. Anwar-ul-Haq Vs. Miss Surraya Perveen and 2 others (1971 SC 171) entertained review petition and allowed the advocate who assisted the senior counsel in the main case as his associate to argue the review and we following the same principle, allow Mr. Zafar Abbas Zaidi, learned ASC, to argue this review petition.
"STATEMENT OF SYED REHMAN, ASC
I Said Rehman, ASC am agreed with the proposition of this Honourable Court, that the title noted cases may be sent back to the Court of learned Senior Civil Judge, Peshawar for issuance succession certificate to the real L.Rs of Dr. Fazle Rahim within a period of three months from today.
It may be mentioned here, that in CR No. 942 of 2004 (page 32 of the paper book) filed by contesting respondents name of Jamila Wazir has been mentioned as the LRs of Dr. Fazle Rahim deceased.
STATEMENT OF SYED IFTIKHAR HUSSAIN GILLANI, ASC
We agree that the case be remanded back to the Court of learned Senior Civil Judge, Peshawar for determination of the legal heirs after recording evidence on the issues already framed."
This review petition has been filed with a delay of 51 days and the condonation of delay has been sought on the ground that the petitioner having no hope of justice from the Bench of the Supreme Court which had decided the main appeal did not earlier file the review petition for the reason that under Order XXVI, Rule 8 of ibid Rules, the review petition is to be placed before the same Bench which finally decided the case or at least one of the Judges of the said Bench is the Member of the Bench before which review petition is to be fixed and since in the present case, Chief Justice of Pakistan was the author of the judgment under review who has ceased to function due to the filing of Reference against him under Article 209 of the Constitution on 9.3.2007 by the President of Pakistan, therefore, the petitioner in the changed circumstances having considered appropriate to avail the remedy of review, filed the review petition.
We are afraid, the petitioner has alleged personal bias against the second member of the Bench which decided the appeal and according to the Rule 8 of Order XXVI of Supreme Court Rules, 1980, in absence of author Judge, the other Judge of the Bench is included in the Bench hearing the review. In the present case the author judge ceased to function but the second member of the Bench is functioning and is also available to be included in the Bench for the purpose of review in terms of Rule 8 ibid, therefore, the ground taken for condonation of delay is unfounded both in facts as well as in law. The judgment under review was a consent judgment which was rendered on 21.12.2006 on the basis of statement made by the learned counsel for the parties and if the petitioner was not satisfied with the statement made by his counsel before the Court or had any reservation against any member of the Bench, he after filing the review petition within the prescribed time provided in the rules, could conveniently raise objection to the independence of the Bench for the purpose of hearing the review petition by a Bench other than the Bench or the Judges who heard the appeal but the petitioner did not take any step to file the review petition till the filing of the Reference by the President against the Chief Justice of Pakistan so much so he did not apply for the certified copy of the judgment within the limitation for filing the review petition rather he applied for the copy on 3.2.2007 i.e. much after the expiry of limitation to file the review, which was prepared on 6.3.2007 and petitioner having collected the same on 12.3.2007 filed the review petition with a delay of 51 days. This is settled law that delay of each day must be satisfactorily explained and the ground on the basis of which condonation is sought must be recognized in law a valid ground and sufficient cause for condonation of delay. The petitioner having not applied for the copy of the judgment within the limitation for filing the review petition has not been able to explain the delay and further the reason advanced by him for not making an application for a copy of the judgment to file the review petition within limitation, was not rooted in any personal disability, therefore, the same cannot be considered a valid ground or a sufficient cause for condonation of delay. We having considered the ground taken by the petitioner in the miscellaneous application moved by him for condonation of delay, have found that the apprehension in his mind that he would not get fair treatment and justice from the Bench which heard the appeal, did not file the review petition prior to the date of Reference filed by the President against the Chief Justice of Pakistan, who was author of the judgment under review and preferred to avail the remedy in the changed circumstances with the expectation of a favourable decision, was unfounded as the other member of the Bench is functioning, therefore, the ground urged on behalf of the petitioner in the review petition would not fall within the ambit of Supreme Court Rules to be considered a valid ground for condonation of delay and review of the judgment. This may be added that the other member of Bench which decided the appeal, has disassociated himself vide order dated 16.3.2007, from the Bench before which this review petition was fixed.
The learned counsel for the petitioner having wrong notion of the rules to maintain the review petition without offering satisfactory explanation of delay of 51 days, has tried to convince us that the question of limitation in the given circumstances, may not have much importance and the Court in the discretionary jurisdiction, has ample power to condone the delay for the purpose of decision of review petition on merits. The petitioner due to his own negligence and choice, did not file the review petition within time and after expiry of limitation on the basis of self-created ground of bias of the Bench has sought interference of this Court in the consent judgment in review jurisdiction. The scope of review is limited and unless very strong ground is shown for interference, the review is not entertained and the delay of even one day cannot be condoned without a sufficient cause.
The petitioner present in Court, on the conclusion of the argument of his learned counsel, made an attempt to address the Court and add his own arguments in support of this petition. This is settled law that the case cannot be reopened on merits in review and the rules also do not permit the review petitioner to himself address the Court if he was being represented by the counsel.
In view of the foregoing reasons and peculiar circumstances of the present case, we do not find any valid ground or sufficient cause for condonation of delay of 51 days in filing this review petition against a consent judgment and consequently, the same is dismissed as barred by time.
(A.S.) Petition dismissed
PLJ 2007 SC 1058
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
Mst. TAZEEM BEGUM--Appellant
versus
JAHANDAD and others--Respondents
Crl. A. No. 95 of 2001, decided on 18.5.2007.
(On appeal from the judgment dated 5.4.2000 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl. A. No. 83.1999).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 337, 148 & 149--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Acquittal of respondent in murder case--Challenge to--Delay of 21 hours--Benefit of doubt--Validity--Delay of 21 hours despite the fact that all the injured persons including the deceased had reached the hospital after a few hours of the occurrence--Delay in lodging FIR, the presence of PW in the hospital who without disclosure of his injuries to Dr. at the time when he had taken deceased to the hospital, then in injured condition, the absence of any external injury on the chest or trunk of the body of the deceased and the story given by the accused of the episode explaining to certain extent injuries sustained by the deceased by falling from the tractor trolley, coupled with the statement of the Medical Officer in cross-examination about the cause of injury--Held: Possibility of consultation and deliberation on the part of complainant party qua the involvement of the accused could not be excluded and or which ground the other two co-accused had already been acquitted by the trial Court i.e. the deliberations, consultations and benefit of doubt and against whom no appeal has been filed either by the complainant party or by state--Acquitting the accused could not be said to be perverse and the reasons were not fanciful, capricious, speculative and artificial and in the absence of holding the order of acquittal as such--Appeal dismissed. [P. 1063] A
PLD 1985 SC 11; 2004 SCMR 1209 and 2006 SCMR 1466 ref.
Ch. Afrasiab Khan, ASC and Ch. Akhtar Ali, AOR for Appellant.
Mr. S.M. Ishaq Khan, Sr. ASC for Respondent No. 1.
Nemo for Respondents No. 2-3.
Ms. Yasmeen Sehgal, D.P.G. for Respondent No. 4.
Date of hearing: 19.4.2007.
Judgment
Mian Shakirullah Jan, J.--The order of acquittal of the respondent passed by the High Court in a murder case was challenged by the complainant party through a petition for leave to appeal, whereby leave was granted in order to examine the aforesaid order of acquittal in view of the evidence available on record including that of the injured persons.
"The case for prosecution as per FIR Ex. PD registered at the instance of Fida Hussain brother of deceased Muhammad Iqbal, who also himself expired later on and his signature and handwriting has been proved on FIR Ex.PD by his son Imtiaz Hussain PW-11, and unfolded at the time of trail, is that Manzoor Hussain PW-6, Manzar Hussain PW-7, Muhammad Iqbal deceased Saghir Ahmad and Shakir Hussain (PWs given up) went on 27.6.1996 from village Turkwal to village Dhanda on a tractor trolley to collect a `kicker' tree which Manzoor Hussain PW-6 had purchased a day before. Muhammad Iqbal, Manzar Hussain PW-7 and Shakir Hussain PW given up, were associated with him by Manzoor Hussain PW-6 as labourer. At about 7.30 p.m., when they returned from village Dhanda to go to village Turlwal after loading the wood on tractor trolley and they passed the tractor trolley from the land of Jahandad accused, Jahandad, Sadiq and Muhammad Ashraf accused persons sons of Ghulam Nabi alongwith two others whose names and addresses were not known, residents of Dhoke Gangal Dakhli Dhanda, were present in the land. Jahandad accused made the tractor trolley to stop and started abusing that why they had passed the tractor trolley from his peanuts crops. Manzoor Hussain etc. beseeched them but Jahandad etc. were in immense anger. They got alighted Manzoor Hussain, Manzar Hussain, Shakir Hussain and Muhammad Iqbal from tractor trolley. Jahandad and Muhammad Ashraf dealt soti blows on Muhammad Iqbal deceased on his left buttock, left knee and left arm. Muhammad Iqbal deceased fell down. Jahandad and two other un-identified persons inflicted blows on the chest of Muhammad Iqbal deceased who went unconscious. Muhammad Sadiq accused dealt two soti blows on right knee and left shoulder of Manzoor Hussain PW-6 whereas Muhammad Ashraf accused dealt on the right wrist and right elbow the stick blows. The PWs beseeched the accused persons to let them take Muhammad Iqbal for treatment but they threatened them and they ran away and came to their village Turkwal where they assembled a jirga of PWS Altaf, PW-9 Muhammad Khan, PW-10 Noor Hussain and others. PW-8 to PW-10 and other PWs given up after consulting one another went to the village Dhanda to the accused persons and they were successful to convince the accused person to hand over Muhammad Iqbal to them who was unconscious, for medical treatment and brought into village Turkwal where they handed him over to Manzoor Hussain PW-6 and Altaf PW-8 who took him to Civil Hospital, Rawalpindi where Muhammad Iqbal was medically examined, however, later on he was succumbed to injuries."
All the five accused, including the three brothers, were tried by Additional Sessions Judge, Rawalpindi for offence under Sections 148, 302, 337 and 149 PPC, out of whom the two accused Abdul Majeed @ Abdul and Ansar Khan were acquitted while the other two accused Muhammad Sadiq and Muhammad Ashraf were found guilty under Section 337 PPC and each of them was sentenced to one year R.I and a Daman of Rs. 5,000/- while Jahandad accused was found guilty under Section 302 PPC for the murder of the deceased Muhammad Iqbal and was sentenced to death with a compensation of Rs. 50,000/- to be paid to the legal heirs of the deceased under Section 544-A Cr P.C. All the three convicts filed an appeal before the High Court against their convictions and sentences. The appeal filed by Muhammad Ashraf and Muhammad Sadiq was not pressed on the ground that they had already undergone the sentence while the appeal filed by Jahandad was accepted and he was acquitted and against that order the instant appeal, by leave of the Court, has been filed.
The learned counsel for the appellant has contended that there is overwhelming evidence against Jahandad respondent, consisting of the statements of the two injured PWs i.e., Manzoor Hussain and Manzar Hussain, in addition to the other circumstantial evidence and the acquittal of the respondent Jahandad was unjustified and he is liable to the punishment already awarded to him by the trial Court and which sentence needs restoration.
On the other hand, the learned counsel for the respondent while highlighting various lacunae and discrepancies contended that the impugned judgment of the High Court while acquitting the accused respondent is unexceptionable and is based on sound reasons and the judgment cannot be termed as perverse, fanciful or artificial to justify interference.
Fida Hussain, the lodger of the FIR, was not an eyewitness of the occurrence and he was informed later on when the deceased, then injured, was taken to the hospital, and where in the hospital the entire episode was disclosed to him by Manzoor Hussain. He also did not appear in the Court as a witness as he had already expired. The name of Shakir Hussain finds its mention in the FIR but he had not been produced as a witness in the Court. It is only the two witnesses Manzoor Hussain and Manzar Hussain, witnesses of the occurrence, who have statedly sustained injuries during the occurrence and who appeared in the Court as PW 6 and PW7. The two witnesses sustained injuries at the hands of Muhammad Sadiq and Muhammad Ashraf by giving them soti blows. Jahandad and two unknown persons were charged for giving stick blows to the deceased Muhammad Iqbal at left buttock, left knee and left arm and they were also charged for giving kicks and fist blows on the chest of deceased.
According to the medical evidence, the deceased had:--
"(1) Two lacerated skin deep 2x1 c.m and 1x1.5 c.m on dorsal aspect of left foot.
(2) Abrasion 1x1 c.m on left knee.
(3) Abrasion 2x2.5 c.m on left outer aspect of left hip joint. "
There is no mention of any external injury on the chest or trunk of the body, however, on dissection (internal examination) it was found that:--
Ribs 2nd to 8th on right side and 2nd and 3rd on left side were fractured. Plaura and both lungs were ruptured. Rest of organs were healthy. Right side of heart contain little blood.
"In the cross examination it was stated by him (the Medical Officer) that:--
"It is correct that there was no external injury on the person of the deceased Muhammad Iqbal on lungs; volunteers on opening thorax there was a fracture of a rib. The injury of thorax could be result of accident in more probability. It could be the result of the hitting of some heavy machinery but not with bicycle etc. "
According to Dr. Muhammad Ashraf, M.O.D., PW12, he has examined Muhammad Iqbal deceased, then injured, on 28.06.1996 at 6.20 a.m, brought by Manzoor Hussain. According to this witness he had not seen any visual injury on Manzoor Hussain PW6. The respondent has also been examined under Section 342 Cr.P.C and to a question as to why he has been charged and what is his statement; he stated that:--
"I have been falsely implicated. The PWs are related inter se. In fact the deceased Muhammad Iqbal fell down from the tractor trolley and received injuries in result whereof I brought a cot from my Dhoke and placed him on the same and directed his companions to arrange for his transportation to the hospital. On arrival of his relatives, the deceased was removed to the hospital on the same cot. No injury was caused on the person of deceased by me or the co-accused. The co-accused were not present at the spot and they reached after half an hour of the incident. The PWs Manzoor Hussain and Manzar Hussain were not injured at the spot. Their injuries were maneuvered later on in order to make them eye witnesses. The deceased was proceeding on a tractor trolley to collect the timber wood when he passed from the land of my brother Muhammad Yasin, I stopped him and told him to go back. They requested to allow them and promised not to return from this route. I was in my house located in the Dhoke and saw that the tractor trolley is enroute to the peanut crop land. I with a raised voice asked them as to why they are passing the tractor trolley from the land on which they sped up the tractor trolley and the deceased fell down due to over speeding and received injuries as such. I and my co-accused had no motive to cause the death of deceased Muhammad Iqbal who was a `Kammi' of the village. I and my co-accused had no enmity with him. There was no reason to cause injuries on his person. "
A
(A.S.) Appeal dismissed
PLJ 2007 SC 1064
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
CHIEF ADMINISTRATOR AUQAF, PUNJAB--Petitioner
versus
HAJI MUHAMMAD ASHRAF (decd.) thr. LRs--Respondents
Civil Petition No. 3725-L of 2002, decided on 5.4.2007.
(On appeal from the judgment dated 26.8.2002 of the Lahore High Court, Lahore passed in FAO No. 109/86).
West Pakistan Waqf Properties Ordinance, 1961 (XXVIII of 1961)--
----S. 7--Auqaf (Federal Central) Act, 1976, S. 11--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Entitlement to recover rent--Notification--Property of vender was taken over by petitioner--Amended by another notification--Challenge to--Principles of limitation--Petition filed by respondents was within time--Notification was published on 12.3.1978 and respondents applied for the copy of notification on 30.3.1978 which was supplied on the same day--Respondents filed application u/S. 11 of the Auqaf (Federal Central) Act, 1976 on 9.4.1978 as such the same was within time--Objection of maintainability of the suit being barred by time--Contention--Super structure on the plot in-question cannot be treated as waqf property as the structure was raised to the knowledge of the petitioner and the amended notification was issued with malafide had there exists no ground to hold that super structure on the land was Waqf Property--Admittedly--Notification was published on 12.3.1978 and respondents challenged the same on 9.4.1978--An officer of Printing Corporation of Pakistan, who stated that the reasons for delay in the publication of the notification was that the Corporation was called upon by the Federal Government to publish the gazette pertaining to the elections--Validity--Petition was within time--Petition had failed to rebut the plea of respondent about ignorance of nature land or that it was ever used for any waqf purposes--Held: Disputed land was waqf but structures were not waqf and Auqaf department was entitled to recover rent from disputed land which was waqf property. [Pp. 1066 & 1067] A, B & C
1993 SCMR 643; PLD 1971 SC 376.
Mr. Riaz Kiyani, ASC for Petitioner.
Mr. Ashtaq Ausaf Ali, ASC for Respondents.
Date of hearing: 5.4.2007.
Judgment
Abdul Hameed Dogar, J.--This petition is filed by petitioner Chief Administrator Auqaf Punjab against the judgment dated 26.8.2002 passed by learned Judge in Chambers of Lahore High Court, Lahore whereby FAO No. 109 filed by him was dismissed, however, he was held entitled to recover ground rent regarding the said Waqf land underneath the shops and to take other steps in accordance with law.
Briefly, stated facts giving rise to the filing of instant petition are that land measuring 2 kanals 7 marlas and 3 sq.ft was purchased by Haji Muhammad Ashraf predecessor-in-interest of respondents, his father and brothers from Dewan Ghulam Qutubuddin vide registered sale-deed dated 15.4.1961 for a consideration of Rs. 80,000/- which was incorporated in the revenue record vide Mutation No. 534 attested on 18.6.1961, thereafter under private partition effected vide Mutation No. 1642 attested on 20.9.1963 the disputed land came to the share of Haji Muhammad Ashraf predecessor in interests of respondents where he constructed 72 shops after the sanction of Municipal Committee. The property of the above said vendor was taken over by the petitioner vide notification dated 17.1.1960 which was amended by notification dated 8.9.1969, yet another notification was issued on 17.12.1969, all these notifications were challenged by vendor Dewan Ghulam Qutubuddin but without any success. Later on vide notification dated 19.9.1972 published in the Gazette dated 28.9.1972 Teh Zamini rights were taken over by the petitioner as a Waqf property belonging to the shrine of Hazrat, Baba Farid Sahib of Pakpattan Sharif. This notification was challenged by respondents through application under Section 7 of the West Pakistan Waqf Properties Ordinance, 1961 which was dismissed by learned District Judge, Sahiwal on 18.5.1977. This order was challenged by respondents before learned Lahore High Court through FAO No. 136/77 and during pendency of appeal it was ordered that respondents are entitled to receive rent from their tenants subject to deposit of Teh Zamini rent with the petitioner. In the meanwhile another notification dated 15.10.1977 was issued whereby the structure was also taken over by the petitioner. This notification was published in the Gazette of Pakistan Extra-ordinary on 12.3.1978. Thereafter FAO No. 136/77 was withdrawn and application under Section 11 of the Auqaf (Federal Control) Act, 1976 was filed on 10.4.1978 before learned District Judge, Sahiwal. Wherein petitioner filed written statement raising objection to the maintainability of the suit being barred by time and that the matter of the land underneath the structure stood decided. The learned trial Court allowed the application of respondents vide judgment dated 05.4.1982. Feeling aggrieved petitioner filed FAO No. 109 of 1986 before learned Lahore High Court, Lahore which was dismissed vide impugned judgment as stated above.
We have heard M/s Riaz Kiyani, learned ASC for the petitioner and Ashtar Ausaf Ali, learned ASC for the respondents at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioners vehemently contended that learned High Court has not appreciated the facts of the case in its true perspective which resulted in miscarriage of justice. He further contended that petition filed by respondents was barred by time. According to him, notification in dispute was published on 15.10.1977 whereas the petition was filed on 9.4.1978 beyond the period of 30 days as such was hit by the principles of limitation. He further contended that through notification dated 19.9.1972 Teh Zamini rights' and through amended notification dated 15.10.1977 the land under the shops along with complete structure raised on the land was taken over by the petitioner. He contended that since a building exists on the land before its purchase by the respondents which was demolished and the amount spent in raising structure on the property belonging to another cannot subsequently accrue any right or title on the same.
On the other hand learned counsel appearing for respondents controverted the above contentions and supported the impugned judgment. He contended that the petition filed by respondents before learned District Judge, Sahiwal was within time. He contended that notification was published on 12.3.1978 and respondents applied for the copy of notification on 30.3.1978 which was supplied on the same day. Then he filed application under Section 11 of the Auqaf (Federal Control) Act, 1976 before Additional Sessions Judge, Sahiwal on 9.4.1978, as such the same was within time. He further contended that super structure on the plot in question cannot be treated as Waqf property as the structure was raised to the knowledge of the petitioner and the amended notification was issued with mala fide and there exists no ground to hold that super structure on the land was waqf property. In support of his contentions he placed reliance on the case of Chief Administrator of Auqaf, Punjab, Lahore Vs. Mian Ghulam Fareed and others (1993 SCMR 643) and Haji Ghulam Rasool and others Vs. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 376).
Admittedly notification dated 15.10.1977 was published on 12.3.1978 and respondents challenged the same on 9.4.1978. Mr. Muhammad Siddique, an officer of Printing Corporation of Pakistan who appeared as PW-1 stated the reasons for delay in the publication of the notification was that the Corporation was called upon by the Federal Government to publish the Gazette pertaining to the elections. PW-2 Akbar Ali, Record Keeper of petitioner stated that the notification was received on 18.3.1978. In view of this fact of the matter it was held that the petition was within time. According to the revenue record the disputed land was in the ownership of Dewan Ghulam Qutabuddin or in the earlier records of his father which was purchased by the respondents. Petitioner has failed to rebut the plea of the respondent about ignorance of nature of land or that it was ever used for any waqf purposes. It was held in the case of Haji Ghulam Rasool and others referred supra that the structures are not waqf properties while the other immovable properties were such properties. It was also held in the case of Mian Ghulam Fareed (supra) that disputed land was waqf but structures thereupon were not waqf and Auqaf department was entitled to recover rent from disputed land which was waqf property. In view of above, we are of the view that the impugned judgment is well in accordance with law and does not warrants interference by this Court. Accordingly, the petition being devoid of force is dismissed and leave to appeal refuse.
(A.S.) Leave refused.
PLJ 2007 SC 1067
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Ch., HCJ, Mian Shakirullah Jan & Saiyed Saeed Ashhad, JJ.
SAFEER TRAVELS (Pvt.) Ltd.--Appellant
versus
MUHAMMAD KHALID SHAFI (decd.) through L.Rs.--Respondents
Civil Appeal No. 985 of 2006, decided on 23.1.2007.
(On appeal from the judgment dated 29.4.2006 passed by High Court of Sindh, Karachi, in C.P. No. S-15/2006).
Sindh Rented Promises Ordinance, 1979 (XVII of 1979)--
----Ss. 15(2) & 16(1)--Civil Procedure Code, (V of 1908) S. 12(2)--Constitution of Pakistan 1973, Art. 185--Ejectment application--Delay in deposit of monthly rent--Defence was struck off--Statutory remedy--Application u/S. 12(2) CPC was dismissed--Assailed--Constitutional petition was accepted--Challenge to--Controversy--Delay was due to Sunday holiday and due to rush in the bank--Representative of the appellant waited in the row for deposit of rent but could not succeed due to rush and long queue of customers before bank--Rent was delayed for one day due to the reasons that representative of appellants who was given rent amount by appellant for deposit in bank failed to deposit the rent amount due to hospitalization of his mother and rent was paid on next date--Such reasons advanced by the appellant for delay in deposited of rent for two months did not find favour with High Court and while accepting the writ petition filed by respondent landlord, the order of a appellate forum was set aside and that of the Rent Controller was restored--Delay in obtaining permission of Court for making the deposit with State Bank was thus due entirely to his own carelessness and was not due to unavoidable cause. [Pp. 1070 & 1072] A & C
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 16(2)--Scope--Strike off--Defence--Once the default has been committed, Rent Controller has got no discretion and has been left with no option but to strike off the defence of the tenant. [P. 1070] B
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Jurisdiction--Default u/S. 13 (6) is of peculiar nature and the Rent Controller has no discretion to condone it, as distinguishable from the default in payment and rent relatable to other provisions of Section 13 of Ordinance, 1959--Delay was due to the compelling or unavoidable/beyond control circumstances, was not accepted and findings of High Court were not interfered--Once a default is established the Rent Controller has no jurisdiction not to pass an order for striking off of defence unless a type of exception visualized in the case namely, a situation beyond control is established by the tenant or certain payment from tenant side--Contention--Tenant after having succeeded on merits, defence should not have been struck off on account of failure to obey the order of Rent Controller passed u/S. 13 (6) of the Ordinance, 1959.
[P. 1074] D & E
Constitutional jurisdiction--
----High Court in its constitutional jurisdiction can interfere with the judgment and order of the Appellate Court, if the view taken by the Appellate Court was not only contrary to the established principles of law, but also contrary to evidence on record or had flouted the provisions of statutes or failed to follow the law. [P. 1078] F
2000 SCMR 1328; 2001 SCMR 605; 2001 SCMR 2020; 2004 SCMR 1453; 1985 SCMR 1972; 1987 SCMR 1174; 2001 SCMR 338 &
1988 SCMR 401 ref.
Mr. Fazle Ghani Khan, Sr. ASC and Mr. M. S. Khattak, AOR for Appellant.
Mr. Nasrullah Awan, ASC for Respondent.
Date of hearing: 23.1.2007.
Judgment
Mian Shakirullah Jan, J.--During the pendency of an ejectment/eviction application filed by the respondent/landlord under Section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the `Ordinance, 79') on the ground of default, the respondent filed an application under Section 16(1) of the Ordinance praying therein for striking of the defence of the appellant/tenant on the ground that he has not complied with the order of the Court with regard to the (i) deposit of the rent for the month of May, 2001 and (ii) with a delay in the deposit of monthly rent for the months of November and December, 2002 with a further prayer that he may be put into possession of the premises. The learned Rent Controller found that the appellant has not deposited the rent for the month of May, 2001 and has also made a delay of one day in each of the two months of November and December, 2002 in depositing of the rent and his defence was struck off by passing an order on 01.11.2004. The respondent instead of availing a statutory remedy, by filing an appeal before the appellate forum, has filed an application under Section 12(2) of the CPC before the Rent Controller challenging the order of striking of defence passed by the Rent Controller, which was dismissed on 29.04.2005. After the dismissal of his application under Section 12(2) of the CPC, the appellant then filed an appeal before the Additional District Judge. The appellate Court accepted the appeal, set aside both the orders dated 01.11.2004 passed on the application of the respondent filed under Section 16(2) of the Ordinance and the order of dismissal of application under Section 12(2) CPC and the case was sent back to the learned Rent Controller to decide the application of ejectment on merits. This order was challenged by the respondent before the High Court in Constitution Petition which was accepted and the order of the appellate Court was set aside and that of the Rent Controller was restored and it is now this order which has been challenged through the instant appeal, by leave of the Court.
The learned counsel for the appellant has contended that the same Rent Controller in respect of the similar properties in the same premises between the same parties and on the same day with similar circumstances has dismissed the application of the respondent landlord by condoning the delay with a warning to the appellant to be careful in future by depositing the rent in time, but in the instant case altogether a different order was passed by accepting the application of the respondent landlord and passing an ejectment order. He has also referred to an earlier similar order passed by the Rent Controller in the instant case which order of ejectment for the delay in depositing of the rent was set aside by this Court in C.P. No. 1171/2003 (Safeer Travels (Pvt) Ltd. through its Chief Executive Safeerul Islam v. Muhammad Khalid Shafi (deceased) through L.Rs), the copy of the judgment has been placed on file. He has also contended that in any case the delay of one day of each month of November and December, 2002 was not a wilful and negligent default but on account of inevitable circumstances which have been explained by the appellant. On the other hand, the learned counsel for the respondent, while supporting the impugned judgment of the High Court, has vehemently contended that the facts of the cited cases which were quite independent cases are different from the instant one and even the case decided by this Court in the earlier round of litigation on similar plea was also different and having distinguishing features, are of no help to the appellant.
We have gone through the record of the case, the impugned judgments and that of the Courts below. Though there is a controversy with regard to the payment of the rent for the month of May, 2001 as on one hand there is a report of the COC (Clerk of Court) with regard to the non depositing of the rent for the said month but on the other hand the appellant had produced receipts bearing the date of 10.05.2001 before the Courts below which was not believed by the High Court. However, the default for the month of November and December, 2005 by one day each has been admitted but on the pretext, by explaining, that the delay relating to the month of November, 2002 as given in the judgment of the appellate forum was "due to reasons that 9th November was Iqbal Day as holiday and 10th November was Sunday holiday and due to rush in the bank the representative of the appellant waited in the row for deposit of rent for the above months but could not succeed due to rush and long queue of customers before the bank". The rent for the month of December, 2002 was delayed for one day due to the reasons that the representative of the appellant, who was given rent amount on 09.12.2002 by the appellant for deposit in the bank failed to deposit the same due to hospitalization of his mother and the rent was paid on 11.12.2002 instead of 10.12.2002. The aforesaid reasons advanced by the appellant for the delay in deposit of the rent for two months did not find favour with the High Court and while accepting the writ petition filed by the respondent landlord, the order of the appellate forum was set aside and that of the Rent Controller was restored.
By going through the relevant provisions of the Ordinance contained in Section 16(2), it is quite evident that once the default has been committed, the Rent Controller has got no discretion and has been left with no option but to strike off the defence of the tenant, which Section 16(2) reads as under:--
"16(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under sub-section (1) his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf."
Since the word shall' has made it obligatory for the
Court that in case of default, the defence will have to be struck off. Similar mandatory provisions, with a little variation, are also found in other rent laws i.e., Section 13(6) of the West Pakistan
(Punjab/NWFP) Urban Rent Restriction Ordinance, 1959 (hereinafter referred asOrdinance, 59') and Section 17(9) of the Cantonment Rent Restriction Act, 1963
(hereinafter to be referred to as 'Act, 63'). However, such stringent conditions have been relaxed under certain circumstances by the superior Courts in some cases. This question relating to the mandatory nature and the circumstances under which it can be excused has come under consideration before this Court time and again after the enforcement of the Ordinance, 59 of which one of the illustrious judgment, first of its kind on the subject, was given by this Court in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967
SC 530), which has laid down the principle while interpreting the said provisions. In this case the tenant has committed default by not depositing both the arrears and the rent for the month of February before the 5th as directed by the Rent Controller but instead deposited it on the 6th as the 4th was a public holiday and which could have been deposited on the 5th, the next day of the due date. The learned High Court while interpreting the word default was of the view that the legislature has intentionally employed the word default' instead of,not complied with' the order of the Rent Controller, as to give an edge to the tenant that if the non-compliance of the order as occurred on account of unavoidable circumstances, which is beyond his control for example while he on his way for deposit of the rent met an accident. However, such a circumstance was not found in the case and the order of striking off defence passed by the Rent Controller was upheld. It was ruled that:--
"Having regard to the language of Section 13(6), West Pakistan Urban Rent Restriction Ordinance, 1959, one finds it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this sub-section is not so much to afford the landlord an expeditious method of realizing the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions therefore purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law.
But this does not mean that the Court is powerless to give a correct meaning to the word "default" used in this sub-section. It will still be necessary for the Court to decide in each case as to whether there has, in fact, been a default.
Non-compliance which is avoidable cannot possibly be excused. The most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is, in no way, responsible.
The word `default', it is urged, necessarily implies an element of negligence and it is pointed out that even in Stroud's Judicial Dictionary it has been recognized that the word default "would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force over which he had no control, such as stress of weather or unless hindered by the plaintiff's non-performance of some condition precedent, or unless there has been a waiver of performance." This, it is submitted, clearly indicates that it is a purely relative term just like negligence."
The above principle laid down qua the mandatory nature of the Court's order and the circumstance under which and to the extent which can be condoned, has been followed by a number of judgments, in some, by making a direct reference to it, some of them are referred herein below.
In the case of Muhammad Jan v. Khadim Hussain (1973 SCMR 243), the deposit of the rent was made on the day following the last date and the plea was taken that the default was due to the fact that by the time the petitioner got the necessary permission from the Rent Controller to deposit the rent in the State Bank of Pakistan and when he reached the bank, the banking hours had expired and the bank was not prepared to accept the deposit on that day. It was found that the Court hours commenced from 7:30 a.m. and the petitioner reached the Court at about 10 or 11 a.m. It was held that the delay in obtaining the permission of the Court for making the deposit with the State Bank was thus due entirely to his own carelessness and was not due to unavoidable cause. He could well have avoided the default if he had come early and obtained the permission of the Court in time to enable him to make the deposit with the State Bank. His failure to do so entirely to his own negligence and, therefore, it was held that he cannot claim to come within the principle laid down by this Court in the case of Ghulam Muhammad Khan Lundkhor (supra).
In the case of Ghulam Ahmad Pirzada v. Additional District Judge, Lahore and 2 others (1982 SCMR 616), the plea of the tenant that the delay of only one day in each of a few months due to misunderstanding on the part of the petitioner who thought that he was required to deposit the rent on the 15th of each month, not accepted and the order of striking off defence was upheld.
In the case of Abdul Qayyum Paracha v. Ghulam Hussain and others (1985 SCMR 580), it was held that in case of default in the payment of the arrears of rent or the future rent, the Rent Controller is empowered to strike off defence and ordered his ejectment without taking any further proceeding in the case.
In the case of Fazalur Rahman v. Mst. Sarwari Begum and others (1986 SCMR 1156), the delay of one day as the, directions were for the deposit of the rent before the 5th of next month was not complied with and it was deposited, instead, on 5th of the month and which delay was not condoned and it was observed that:--
"3. The learned Rent Controller was competent to strike off the defence of the appellant as there was no other option left for him. Appellant himself took the risk of depositing the rent on the last date and urged that the Clerk of the learned Court, who prepared deposit challans, was not present and, therefore, the rent could not be deposited in time. We are not impressed with this argument. The appellant himself took the risk of depositing the rent on the last date and the consequence thereof should also be borne by him. Appeal is, therefore, dismissed with no order as to costs."
In the case of Province of Punjab and others v. Muhammad Jalil-ur-Rehman (1986 SCMR 1705), the plea of the learned counsel for the petitioner that the Rent Controller should have extended the time for deposit of the rent as the departmental representative got delayed in making deposit on account of departmental procedure, was not accepted by observing that unless the reasons for non-deposit shows objective unavoidability, the Rent Controller had no power to ignore the delay in making the deposit under Section 13(6) of the Ordinance.
In the case of Muhammad Yousaf v. Muhammad Bashir and others (1990 SCMR 557), the contention of the learned counsel for the petitioner/tenant was that it was a delay only of one day, the High Court should not have taken a strict view of the so called default as the petitioner was compelled by the circumstances (illness of his father) in his failure to make deposit on due date and that in any case it was not a case of several defaults spread over a period of time, the defence could not be struck off, was repelled by this Court and it was held that the default under Section 13(6) is of peculiar nature and the Rent Controller has no discretion to condone it, as distinguishable from the default in payment and rent relatable to other provisions of Section 13. The plea of the appellant that the delay was due to the compelling and/or unavoidable/beyond control circumstances, was not accepted and the findings of the High Court were not interfered.
In the case of Muhammad Amin v. Ghulam Nabi and 2 others (PLD 1990 SC 1201), this Court while dealing with the proposition in question has held that once a default is established the Rent Controller has no jurisdiction not to pass an order for striking off of defence unless a type of exception visualized in the case namely, a situation beyond control is established by the tenant or certain payment from the tenant side. The contention of the learned counsel for the tenant that the tenant after having succeeded on merits, the defence should not have been struck off on account of failure to obey the order of the learned Rent Controller passed under Section 13(6) of the Ordinance, 59, was repelled while referring to a judgment of this Court in the case of Ghulam Muhammad Khan Lundkhor (supra).
In the case of Syed Muhammad Zaman v. Abdul Khaliq (1991 SCMR 1982), a review petition was filed for review of the judgment in which the contention of the petitioner was not accepted with regard to the striking of defence by the Rent Controller under Section 13(6) of the Ordinance, 59, on the ground of not complying with the order of the Court by not making the deposit in time. By laying emphasis on the fact that the petitioner failed to explain the delay and seek the condonation, but instead he left it to be pointed out by the respondent/landlord and came out with an explanation and documentation about three months after the default had been committed. It was held that once it was found that a default had been committed, the Rent Controller had no discretion in the matter but had to strike off the defence.
In the case of Misbahullah Khan v. Mst. Memoona Taskinuddin (1995 SCMR 287), this Court while interpreting the scope of Section 17 of the Act, has held that tentative rent order can be passed by the Rent Controller even if ground of default is not alleged for seeking eviction.
In the case of Asif Chughtai v. Mrs. Zile Huma and others (1995 SCMR 741), pertaining to Section 13(6) of the Ordinance, 59, it was held that the petitioner having failed to deposit the arrears of rent and future rent as directed on 9-3-1993, by the learned Rent Controller, even till today, cannot successfully seek interference in the order of his ejectment passed in consequence thereof, from the premises in question.
In the case of Zikar Muhammad v. Mrs. Arifa Sabir and another (2000 SCMR 1328), when no good cause or reasonable explanation for delay/negligence in payment of rent by the tenant was offered, the order of the Rent Controller of striking off defence was upheld.
In the case of The State Life Insurance Corporation of Pakistan v. Kotri Textiles Mills (Pvt) Ltd (2001 SCMR 605), on which a heavy reliance was placed by the learned counsel for the appellant, a delay of one day in depositing the rent in compliance of the order of the Rent Controller under Section 16(2) of the Ordinance, 79 was condoned by the High Court and which order was upheld by this Court but under different circumstances. In that case the Rent Controller directed the tenant to deposit the arrears of rent in the sum of Rs. 7,290/- with the Naazir of the Court before the 25th of the same month. Since the order was not complied with by the tenant and instead he moved an application for extension of time and deposit the rent as ordered on the very next day. The Rent Controller struck off the defence of the tenant. The matter went before the High Court and the learned High Court accepted the plea of the tenant by observing that the facts on record admittedly indicate that the amount of arrears was deposited on 26.05.1991 with a delay of only one day with a plea of the tenant that his counsel had left for abroad and the entire record was held by him. It was observed:--
"No doubt a party can be made to suffer for negligence of counsel, but generally Court has also to examine conduct of the party and where a party is not at all fault and not guilty of any carelessness or negligence in view of special circumstances of case and to save party from great injustice or hardship Court may not penalize party for negligence of his counsel."
The appellant filed an appeal, by leave of the Court, before this Court, which was dismissed. It was observed that the tenant before the expiry of the stipulated period has moved an application for extension of time mentioned therein the reasons for not complying with the order within time, and those may be the one referred to by the High Court and noted above, as by that time no violation has been committed by the tenant, therefore, it was incumbent upon the Controller to have considered the request of the respondent for extension of time sympathetically and in exercise of its inherent jurisdiction and in the larger interest of justice the application may have been allowed because the respondent had approached the Rent Controller well in time before the deadline fixed by it and this conduct of the tenant goes to prove his bonafide and interest to comply with the order, which bonafide also gets confirmation from his conduct by depositing the rent on the following day. It is not the case where the tenant after non-compliance of the order of deposit of arrears of rent had kept silent unless the landlord had not prayed for striking off his defence due to non-depositing of rent which case is distinguishable from the one where the tenant himself approached the Court for extension of the period. This case is distinguishable from the one in hand and also it is in line with the observation made, in this respect, in the case of Muhammad Zaman (supra) i.e., qua the distinguishing features of the two types of cases.
In the case of Khawaja Muhammad Mughees v. Mrs. Sughra Dadi (2001 SCMR 2020) even one day delay in depositing of the arrears of rent with a plea that the last date was a gazetted holiday, which was not found correct, so not condoned.
In the case of M. H. Mussadaq v. Muhammad Zafar Iqbal and another (2004 SCMR 1453), it was held that:--
"10. According to sub-section (9) of Section 17 of the Act, if the tenant fails to deposit the amount of rent before specified date, or, as the case may be before 5th of the month, his defence shall be struck off. On its bare perusal, it is manifest that the above provisions are mandatory in nature and even one day's delay in making the deposit would be default within its meaning and Rent Controller has no power to extend time and condoned the same."
Reliance was also placed on the cases of Misbahullah Khan (supra) and Province of Punjab and others (supra).
In the case of Asif Chughtai (supra) the tenant, after passing of the order by the Rent Controller under Section 13(6) of the Ordinance, 59 for the deposit of rent, has moved an application for the extension of time which was not accepted and on appeal the District Judge while accepting the appeal set aside the order of the Rent Controller and the case was remanded to him but the High Court in the exercise of its Constitutional Jurisdiction while allowing the petition set aside the order of the appellate forum and restored that of the Rent Controller, which judgment of the High Court was maintained by this Court.
In the case of Zikar Muhammad (supra) when there is no good cause or reasonable explanation for delay/negligence in payment of rent by the tenant, the defence could rightly be struck off.
Learned counsel for the appellant has contended that the conclusion arrived at by the appellate Court, a statutory forum, having exclusive and final jurisdiction to correct the error made by the forums below that is the Rent Controller and interference by the High Court in its Constitutional Jurisdiction was not justified.
We examined the judgments of all the three forums below and particularly that of the appellate Court and in order to see if there is any flaw or illegality in the judgment which justified the upsetting of the finding of the appellate Court by the High Court.
The Rent Controller passed the order of striking off defence of the appellant on 01.11.2004 and the appellant did not file an appeal against the aforesaid order, but rather opted to file an application under Section 12(2) CPC before the Rent Controller, which was adjudicated upon and ultimately the same was dismissed on 29.04.2005 by holding that "Since the ingredients of Section 12(2) CPC has not been established in the present application. Moreover the order was passed on merits after considering all the material available on record, the opponent have remedy of appeal, therefore, present application merits no consideration, same stands dismissed with no order as to costs." The appellant challenged the aforesaid order before the District Judge in appeal, however, in the prayer clause a prayer for setting aside of the previous order of striking off defence dated 01.11.2004 was also made. The learned appellate Court while disposing of the appeal did not accept the plea of the appellant qua the maintainability of application under Section 12(2) CPC and upheld the order of the Rent Controller by reproducing the following relevant para of the order of the Rent Controller:--
"Since the ingredients of Section 12(2) CPC has not been established in the press application. Moreover the order was passed on merits after considering all the material available on record, the opponent have remedy of appeal, therefore, present application merits no consideration, same stands dismissed, with no order as to costs."
The learned appellate Court then proceeded as follows:--
"The appellant in the entire appeal utterly failed to pin point the essential ingredients of Section 12(2) CPC as to establish his case and in the impugned order dated 29.4.2004 the learned III Sr. Civil Judge has rightly observed at page 2 as under:
"In the affidavit, the opponent have not taken, the plea that fraud is made or there is any mis-representation of facts. Neither the jurisdiction of this Court is touched in the affidavit. Therefore, the requirements of Section 12(2) CPC is not established."
And the appeal against the order dated 29.04.2005 was dismissed:--
"As in the appeal no fraud and mis-representation has been raised, the appeal filed by the appellant against the impugned order dated 29.4.2004 deserves to be dismissed in limine."
After observing, as noted above, then the appellate Court proceeded to discuss the default which resulted in the striking off defence, and while making comparison with a similar case on which the defence was not struck off by the Rent Controller, and also making a reference to a former such like application whereby this Court allowed the deposit of rent, allowed the appeal and set aside both the orders dated 29.04.2005 and 01.11.2004 and remanded the case back to the trial Court with directions to decide the impugned rent case on merits. The decision in another case with a different conclusion by the Rent Controller, which is not valid, cannot be made the basis for arriving at a similar conclusion in the instant case as in this case the decision will be made keeping in view the facts and circumstances of the case and also the legal provisions irrespective of the decision by the same Rent Controller in a similar case with a different decision. In the light of arguments of learned counsel for the appellant, we have also perused the judgment of this Court in the earlier round of litigation and found that the delay was condoned for sufficient and good reasons as the last day i.e., 10.12.1999 was the first day of Ramadan, which was declared to be a bank holiday for the purpose of deduction of Zakat and 10.01.2000 was Eid holiday.
The perusal of the judgment of the appellate Court indicates that on one hand, as noted above, it arrived at a conclusion that no fraud or mis-representation has been raised and the appeal against the impugned order dated 29.04.2005 was dismissed, but on the other hand at the end while accepting the appeal both the orders dated 29.04.2005 and 01.11.2004 were set aside. The judgment of the appellate Court is not clear and ambiguous one and also has proceeded on wrong premises. The orders passed by the Rent Controller are in consonance with the law and their setting aside was not proper and legal.
This Court, on several occasions, has held that the High Court in its constitutional jurisdiction can interfere with the judgment and order of the appellate Court if the view taken by the appellate Court was not only contrary to the established principles of law, but also contrary to evidence on record or had flouted the provisions of statutes or failed to follow the law relating thereto as held in the case of Lal Din Masih v. Mst. Sakina Jan and another (1985 SCMR 1972).
The High Court in its Constitutional Jurisdiction will not only to see that the inferior tribunals keep within their jurisdiction but also to see that they observed law, as held in the case of Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973 SC 24).
In the case of Messrs A.C.E. Enterprises through Khalid Pervez v. Additional District Judge, Lahore and others (1987 SCMR 1174), this Court while dismissing the petition filed against the judgment of the High Court whereby in its constitutional jurisdiction it has set aside the order of the appellate forum, it was observed that where the forums below fail to act in accordance with the enunciation of law made by the superior Courts, such an error can be corrected in the exercise of writ jurisdiction. Reliance was placed on the case of Muhammad Sharif v. Muhammad Afzal Sohail (PLD 1981 SC 246).
In the case of Muhammad Hayat v. Sh. Bashir Ahmed and others (1988 SCMR 193), this Court, in a rent case, the plea raised that findings of the appellate Court were final and could not be interfered within writ jurisdiction, repelled and it was held that the appellate Court having misread evidence on record, his findings which were based on misreading of evidence, stood vitiated and such order, held, was not immune from interference in writ jurisdiction.
In the case of Abdul Hamid v. Ghulam Rasul and others (1988 SCMR 401), when the findings of the District Judge in a rent appeal were found conjectural, based on misreading of record and on evidence taken out of context, by the High Court, were set aside by the High Court in constitutional jurisdiction, and it was held by this Court that the High Court was justified in circumstances in interfering with the appellate order.
In the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCMR 338), it was observed that where the District Court, which is the appellate Court, and it reversed the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with such finding by issuing writ of certiorari to correct the wrong committed by the appellate authority and the High Court can justifiably exercise its Constitutional Jurisdiction as the same is supervisory as well as in aid to subserve the cause of justice and to correct a wrong wherever the Court finds to have been committed being contrary to evidence and the law on the subject.
For what has been discussed above and while maintaining the judgment of the High Court vide which the judgment/order of the Additional District Judge was set aside and that of the Rent Controller was restored, the appeal is dismissed with no order as to costs.
(N.F.) Appeal dismissed
PLJ 2007 SC 1080
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Muhammad Nawaz Abbasi, JJ.
Malik WAZIR, etc.--Appellants
versus
SHAFIQ AHMED, etc.--Respondents
Civil Appeal No. 1286 of 2001, decided on 23.1.2007.
(On appeal from the judgment dated 28.3.2000 passed by Peshawar High Court, Peshawar, in W.P. 1307/1995).
(i) Constitution of Pakistan, 1973--
----Art. 185(3)--Land Reforms Regulations, 1972 (MLR 15)--Para 24--Leave to appeal--Question of--Whether Chief Land Commissioner had jurisdiction to declare gift in-question invalid--Determination--Forbade alienation by sale, gift--No person owing more than area of subsistence holding but less than an economic holding would alienate by sale, mortgage, gift--Held: No restriction upon a person owning more than an economic holding to alienate his entire holding and a person owing more than subsistance holding to alienate his entire holding--Chief Land Commissioner had no power to exercise the power conferred upon him under Para 24 of MLR 115.
[Pp. 1082 & 1083] A & C
(ii) Land Reforms Regulation, 1972 (MLR-115)--
----Scope--Forbade the alienation--Validity--MLR-15 had already been declared un-Islamic. [P. 1083] B
Sheikh Wazir Muhammad, ASC/AOR for Appellants.
Mr. Saeed Baig, ASC for Respondent No. 1.
Ex-parte for Respondents No. 2-4.
Date of hearing: 23.1.2007.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 28.3.2000 whereby the Writ Petition preferred on behalf of respondents has been accepted.
"The point for determination in this case is as to whether the judgment of Shariat Appellant Bench of this Court reported as Muhammad Anwar versus Govt. of Pakistan (1994 SCMR 899) made applicable w.e.f. 28-2-94, can nullify the effect of gift dated 6.11.72. In other words whether the judgment referred to above would have retrospective application. Leave is granted to consider the above point".
"24. Restriction on alienation of holdings.--(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding:
Provided that such a person may alienate his entire holding.
(2) No person owning an economic holding should be allowed to alienate by sale, mortgagee, gift or otherwise any portion of his holdings:
Provided that such a person may alienate his entire holding.
(3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area of subsistence holding:
Provided that such a person may alienate his entire holding.
(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding:
Provided that he may alienate the entire holding or in the case of holding which is less than a subsistence holding, he may alienate any part of his holding by way of gift to any of his presumptive heirs or exchange with, or mortgage or otherwise alienate to, other powers or landless tenants of the same village, deh or mauza.
(5) Any alienation made in contravention of the provisions of this paragraphs shall be void.
(6) Nothing in this paragraphs shall apply to:--
(a) land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notices may be evicted under the orders of the Deputy Commissioner;
(b) mortgages of land, without possession, in favour of Government or an institution owned, managed or controlled by Government;
(c) cultivating lease of any part of his holding by a land-owner for a period not exceeding ten years;
(d) the holder of a pre-emption decree in respect of an area less than a subsistence holding;
(e) any land or part of any land situated within the jurisdiction of a Municipality, a Cantonment Board or an Improvement Trust and included in a House Building Scheme prepared or approved by such body; or
(f) the alienation of land in districts of Campbellpur, Rawalpindi and Jhelum in favour of a person certified by the Deputy Commissioner concerned to have been displaced from the Hazara District or Mardan District in consequence of the construction of the Trabela Dam."
A bare reading of para-24 of MLR 115 reveals that it has been couched in a simple and plain language. "Provisions of paragraph 24 of Land Reforms Regulation, 1972 (M.L.R. 115) forbade the alienation by sale, gift or otherwise of any portion of the holding of a person which might reduce the size of his holding to an area below the limit of an economic holding and also forbade a person owning an economic holding to alienate by sale, mortgage, gift or otherwise any part of his holding. It further provided that no person owning more than the area of a subsistence holding but less than an economic holding would alienate by sale, mortgage, gift or otherwise any portion of his holding which might reduce the size of his holding to an area less than the area of subsistence holding. Paragraph 24 placed no restriction upon a person owning more than an economic holding to alienate his entire holding and a person owning more than a subsistence holding to alienate his entire holding." (Zafar Iqbal v. Bashir Ahmed PLD 1989 Lahore 152). The provisions as contained in para-24 and discussed above being not in consonance rather in violation of Verses 7,29 & 32 of Surat Al-Nisa, Verse 188 of Al Baqarah, have rightly been declared as unlslamic.
Now here at this juncture the question arises as to whether all the above powers as conferred upon the Chief Land Commissioner could have been exercised after the target date i.e. 28.2.1994 as mentioned in Muhammad Anwar's case (supra) whereby Para-24 of MLR 115 was declared as un-Islamic, the answer would surely be in negative. A similar proposition was examined in case Sardar Ali v. Muhammad Ali (PLD 1988 SC 287), Sajwara v. Federal Government of Pakistan (PLD 1989 F.S.C 80), Muhammad Yousaf v. Government of Pakistan (PLD 1991 SC 760), Abdur Rehman v. Muhammad Akram (1999 SCMR 100) and Sirajuddin v. Member Federal Land Commission (PLD 1996 Lahore 243) and the consensus seems to be that target date is to be followed. The learned Chief Land Commissioner had admittedly passed the order dated 18.5.1995 when para-24 of MLR 115 had already been declared un-Islamic and 28.2.1994 was fixed as target date i.e. date of implementation/application of said judgment. The only inescapable conclusion would be that the Chief Land Commissioner had no power on 28.5.1995 to exercise the powers conferred upon him under para-24 of MLR 115. The order dated 18.5.1995 passed by learned Chief Land Commissioner is not in consonance with the dictum laid down by this Court in Muhammad Anwar's case (supra) and, therefore, being unlawful it has rightly been set aside. The appeal being devoid of merit is dismissed.
(R.A.) Appeal dismissed
PLJ 2007 SC 1083
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
FEDERATION OF PAKISTAN through Secy. Establishment and others--Petitioners
versus
IDREES-UL-HASSAN USMANI--Respondent
Civil Petition No. 232 of 2007, decided on 26.3.2007.
(On appeal from the judgment dated 20.12.2006 passed by Federal Service Tribunal, Karachi, in Appeal No. 211(K)CS/2004).
Civil Servants Act, 1973--
----S. 6--Constitution of Pakistan, 1973, Art. 212--Leave to appeal--Service matter--Passing of departmental examination twice is not only illegal but highly unjustified--Miscarriage of justice--Civil servant joined National Saving Organization--Gradually promoted subject to passing departmental examination--Civil Servant passed examination during probation period--Civil Servant was reverted--Assailed--Appeal was failed--Civil servant was exonerated from the charge--Awarded Selection Grade--Moveover--Civil servant was again promoted subject to passing departmental examination--Civil Servant had already passed--Forced to appear for departmental examination--Show-cause notice--Reply was not satisfactory--Penalty of reversion--Appeal was accepted by Federal Service Tribunal--Assailed--Validity--Question of--Civil servant was bound to pass department examination twice--Held: Case of Civil Servant was surely on better footings and imposition of condition for passing the departmental examination again is not only illegal but highly unjustified--No question of law of public importance is involved which is sine qua non for invocation of provisions as contained in Art. 212 of Constitution of Pakistan--Leave refused.
[P. 1086] A
Ms. Naheeda Mehboob Elahi, DAG and Mr. M.S. Khattak, AOR for Petitioners
Nemo for Respondent.
Date of hearing: 26.3.2007.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is preferred under article 212 of the Constitution of Islamic Republic of Pakistan on behalf of Federation of Pakistan through Secretary Establishment, against the judgment dated 20.12.2006 whereby the appeal preferred on behalf of respondent has been accepted.
Precisely stated that facts of the case are that the respondent "joined National Saving Organization in the capacity of National Saving Officer (B-11 in 1973) and gradually promoted to the post of Assistant Director (B-17) as per Notification dated 12.09.1984 subject to passing departmental examination. The appellant passed such departmental examination during probation period, however, during probation period appellant was reverted to the post of National Saving Officer vide order dated 10.09.1986, without assigning any reason, against which appellant preferred Appeal No. 7(K)(CS)/1987 before this Tribunal, but could not succeed as the reversion order was passed during probation period without stigma. Appellant was then proceeded against departmentally on petty charges of over payment of Rs. 2400/- for the period of last twelve years at different National Saving Centres, vide charge sheet dated 22.02.1987. The said proceedings remained pending for quite long period of 8 years and finally appellant was exonerated from the charge vide order dated 31.05.1995. Thereafter appellant was awarded Selection Grade-17 (w.e.f. 13.06.1995) vide Notification dated 12.09.1996. He was also granted move-over from B-16 to B-17 w.e.f. 01.12.1993 vide letter dated 28.02.1998. He was, however, not considered for regular promotion to the post of Assistant Director (B-17) because of pendency of departmental proceedings. After more than 14 years, appellant was again considered and found fit for promotion and thus promoted to the post of Assistant Director (B-17) vide Notification dated 19.09.2000 but again the promotion was made subject to passing departmental examination, which in fact, appellant had already cleared and passed. Appellant while on probation was granted move-over from. B-17 to B-18 w.e.f. 01.12.1998 vide letter/order dated 01.02.2002. Appellant was, however, forced to appear and pass/clear the departmental examination, which he had already passed and cleared in 1986. On 18.09.2002 Appellant's promotion period was also over, but suddenly he was served with a show-cause notice dated 07.08.2003 (i.e. much after the expiry of probation period) alleging that appellant failed to pass/clear departmental examination, which the appellant replied on 30.08.2003 explaining each and every detail and stated that since he had already passed/cleared the departmental examination, therefore, he was not required to pass/clear the same once again. His reply was not found satisfactory and ultimately by order dated 25.05.2004 he was awarded penalty of reversion from the post of Assistant Director (B-17) to that of National Saving Officer (B-17)." Being aggrieved a departmental appeal was preferred but without any response. The respondent ultimately approached the Federal Service Tribunal by means of appeal Bearing No. 211(K)(CS)/2004 which has been accepted, hence this petition.
Ms. Naheeda Mehboob Elahi, learned Deputy Attorney General entered appearance on behalf of petitioner and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspectives which resulted in serious miscarriage of justice. It is contended vehemently that the provisions as contained in Section 6 of the Civil Servants Act, 1973 read with Finance Division Notification No. SRO-1271(1)/90 have been misconstrued and misinterpreted.
We have carefully examined the view point as canvassed at bar by the learned Deputy Attorney General and perused the judgment impugned carefully. It is an admitted feature of the case that various employees were granted exemption from passing the departmental examination by the Competent Authority and learned Deputy Attorney General could offer no plausible justification for such exemption. It is worth mentioning that the respondent was promoted to the post of Assistant Director (B-17) subject to passing departmental examination during the probation period which was undisputedly passed by the respondent. It is not understandable that how this condition was re-imposed in notification dated 19.9.2000 whereby the respondent was promoted to the post of Assistant Director. The learned Deputy Attorney General was asked pointedly that under which provision of law the respondent was bound to pass departmental examination twice but no satisfactory answer could be given and reference was made to the provisions as contained in Section 6 of the Civil Servants Act, 1973 and SRO-1271(1)/90 which cannot be made applicable in this case as no condition for passing the departmental examination twice has been laid down either in Section 6 of the Civil Servants Act, 1973 or SRO-1271(1)/90. It is to be noted that a few blue eyed chaps have been exempted from passing the departmental examination who were subsequently promoted as conceded by the learned Standing counsel before the learned Federal Service Tribunal. The case of respondent was surely on better footings and thus the imposition of condition for passing the departmental examination again is not only illegal but highly unjustified. Besides that no question of law of public importance is involved which is sine qua non for invocation of the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan. All the contentions raised on behalf of petitioner have been dealt with in a comprehensive manner in the judgment impugned which being well based hardly warrants interference. The petition being devoid of merit is dismissed and leave refused.
(R.A.) Leave refused
PLJ 2007 SC 1086
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Falak Sher, JJ.
CH. WARIS ALI--Petitioner
versus
STATE--Respondent
Crl. P. No. 151 of 2007, decided on 4.6.2007.
(On appeal from the order dated 19.4.2007 of the Lahore High Court, Lahore passed in Crl. M. No. 2706-B/07).
(i) Bail before Arrest--
----Bail before arrest can be granted when the arrest of accused is eminent with ulterior motive malafide or is due to false implication apparent on the face of record. [P. 1088] A
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860) Ss.452, 506, 324, 337-H (ii), 148 & 149--Bail before arrest was refused--Prayer for--Aerial firing with intention to vacate disputed plot--Accused ran away from the spot leaving behind rifle--Bail before arrest was dismissed by Courts below--Assailed--Specific role of aerial firing--Recovery of licensed rifle--Held: Accused has been named in FIR and specific role of aerial firing has been attributed to him--Recovery of licensed rifle of accused from the place of occurrence shows his involvement in his offence--Accused was found involved in commission of offence by investigating officers--Bail dismissed. [P. 1088] B
Sardar Latif Khan Khosa, ASC and Ch. Akhtar Ali, AOR for Petitioners.
Mr. Arshad Ali Ch., AOR/ASC for Complainant.
Date of hearing: 4.6.2007.
Order
Abdul Hameed Dogar, J.--Petitioner through this petition seeks pre-arrest bail in case FIR No. 32/07 registered with Police Station Sarai Moghal, Kasur under Sections 452, 506, 324, 337-H(ii), 148 & 149 PPC.
The prosecution story as narrated by complainant Muhammad Luqman in the FIR is that petitioner alongwith other co-accused after reaching in the house of complainant made aerial firing with intention to vacate the disputed plot about which litigation was pending before the competent Court. On the intervention of the villagers the petitioner ran away from the spot leaving behind rifle, which was produced before the police.
Petitioner applied for bail before arrest before learned Additional Sessions Judge, Pattoki which was dismissed on 6.4.2007. Feeling aggrieved, he approached the learned High Court through Crl. Mic. No. 2706-B of 2007 which was also dismissed by a learned Judge in Chambers of Lahore High Court, Lahore vide impugned order.
We have heard Sardar Latif Khan Khosa, learned counsel for the petitioner and Mr.Arshad Ali Ch., learned counsel for the complainant at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioner vehemently contended that learned Judge in Chambers of the Lahore High Court, Lahore has failed to appreciate the facts and law of the case in its true perspective and has drawn wrong conclusion due to which gross mis-carriage of justice has taken place in the case. According to him, petitioner has been falsely involved in this case due to mala fide of the complainant party in collusion with the local police. He further contended that two co-accused namely, Muhammad Siddique and Majeed who were named in the FIR have been declared innocent during the investigation as they were not present at the place of occurrence thus the entire case of the complainant has become doubtful and the case is of further inquiry. He next contended that on 28.1.2007 petitioner alongwith Mahmood Ahmad and Arif went to the house of Muhammad Sididque and on their return they were stopped by the complainant party who took the petitioner into the baithak of Muhammad Luqman and manhandled him beside his rifle, mobile phone and cash were snatched. The matter was reported to the police but the FIR was not lodged due to mala fide intention. Learned counsel for the petitioner contended that petitioner approached the learned High Court through Writ Petition No. 1242/Q of 2007 for quashment of FIR which was disposed of on 20.2.2007 with the direction to the SP(Investigation) to record his version mentioned above, but all in vain. He further contended that recovery of licensed rifle from petitioner has been planted as the date of recovery memo of rifle has been changed, as such petitioner is entitled to the grant of bail before arrest.
On the other hand learned counsel for the complainant supported the impugned order and contended that petitioner was named in the FIR. He was found guilty during the course of investigation thus he is not entitled to the concession of bail before arrest.
We have gone through the impugned order and are of the view that the same is unexceptionable and does not call for interference. It is the settled principle of law that bail before arrest can be granted when the arrest of accused is eminent, with ulterior motive, mala fide or is due to false implication apparent on the face of record. Examining the case of respondent on the above touchstone, we are persuaded to agree, that petitioner has failed to point out any mala fide or ulterior motive on the part of the complainant. He has been named in the FIR and specific role of aerial firing has been attributed to him. The recovery of licensed rifle of petitioner from the place of incident shows his involvement in the offence. The petitioner was found involved in the commission of offence by two Investigating Officers. Accordingly, the petition being devoid of any substance stands dismissed and leave to appeal refused. The order dated 29.5.2007 whereby petitioner was granted ad-interim pre-arrest bail by this Court is recalled.
The above reasonings are tentative in nature and confined only to the extent of matter qua cancellation of pre-arrest bail. The same will not influence the trial of the petitioner, which is yet to commence.
(R.A.) Leave refused
PLJ 2007 SC 1089
[Appellate Jurisdiction]
Present: Javed Iqbal & Ch. Ijaz Ahmed, JJ.
ASIM KHAN and others--Petitioners
versus
ZAHIR SHAH and others--Respondents
Civil Petition No. 747-P of 2006, decided on 30.4.2007.
(On appeal from the judgment/order dated 11.10.2006 passed by the Peshawar High Court Peshawar, in W.P. No. 254 of 2006).
Biase--
----Service matter--Withdrawing appointment letters--Influence of politicians--Order of withdrawing appointment letters of civil servants merely on the ground that civil servants have secured their appointment under the influence of politicians and order was passed without proper enquiry in accordance with law. [P. 1093] E
2001 SCMR 1128 & 1986 MLD 2429.
Interpretation of Statute--
----Principle of natural justice must be read in each and every statute unless and until the same is excluded from the wording of the statute. [P. 1092] B
PLD 1964 SC 410 and PLD 1961 SC 537, rel.
Jurisdiction--
----Principle of law--Constitutional jurisdiction is equitable jurisdiction.
[P. 1093] F
Principle of Law--
----Creation of classification among domiciled candidates has declared unreasonable and discriminating by Supreme Court in various pronouncements. [P. 1093] D
1981 SCMR 1002 & AIR 1955 SC 334, rel.
Service Matter--
----Appointment as PTC teacher--Recommendation of the departmental selection committee--Verification of testimonials domicile certificate--Appointment letter--Allowed to resume charge--Withdrawn appointment letter--Violation of principle of natural justice--Constitutional petition was accepted--Asailed--Validity--Petitioners have failed to point out any documentary evidence qua notice to civil servant before withdrawing their appointment letter--Held: Vested rights accrued to civil servants could not be taken back or withdrawn without fulfilling the requirement of principle of natural justice--Further held: Concerned authority has passed impugned order of withdrawing the appointments of civil servants in violation of principle of natural justice. [P. 1092] A & C
1983 SCMR 1208 & PLD 1987 SC 304.
PLD 1973 SC 236 and PLD 1989 SC 166.
Mr. M. Zahoor Qureshi, ASC/AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 30.4.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present petition arises are that Respondent No. 1 Zahir Shah and 11 others were appointed as PTC teachers by Respondent No. 13 vide its order dated 21.11.2005 on the recommendation of the departmental selection Committee in accordance with the rules and regulations of the petitioners department. After initial verification of their testimonials including domicile certificates from the concerned quarters, respondents 1 to 12 were allowed to resume charge of their posts at the respective places. Respondents had submitted their arrival reports to the competent authority in terms of their appointment letters. Respondent No. 13 subsequently had withdrawn their appointment letters vide its orders dated 23-2-2006 on the ground that they were holding domiciles of category B, a term of first impression without serving any show-cause notice and in violation of principle of natural justice. Respondents No. 1 to 12 being aggrieved filed Constitution Petition No. 254 of 2006 in the Peshawar High Court on 28-2-2006. The learned High Court accepted their Constitution petition vide impugned judgment dated 11-10-2006. Hence the present petition.
Learned counsel of the petitioners submits that competent authority had withdrawn their domiciles in accordance with law after providing proper hearing to the respondents in accordance with law. Respondent No. 13 thereafter had withdrawn their appointments in terms of the order of the competent authority as the respondents did not have valid domicile certificates qua category A which they had submitted alongwith their applications and subsequent orders of the competent authority as mentioned above describing them holders of category B domiciles is the result of third degree method adopted by Respondent No. 13 under the influence of some influential persons whose relatives could not succeed in the test and interview held for the posts. He further submits that learned High Court has erred in law to entertain the constitution petition under Article 199 of the Constitution of Pakistan 1973 in presence of alternative remedy available to the Respondent Nos. 1 to 12 under the relevant law before the higher authority. Therefore impugned judgment of the High Court is not sustainable in the eye of law.
We have given our anxious consideration to contentions of the learned counsel of the petitioners and perused the record. It is better and appropriate to reproduce grounds E & F of the Constitution Petition and reply of the Respondents No. 13/14 in written statement to the grounds E & F:--
Relevant grounds of E&F of the Constitution Petition:
"E. That Respondent No. 1 has no legal justification to deprive petitioners of their employment which they got on merit after observing codal formalities and the same was acted upon and carried into effect and vested rights accrued in their favour which could not be taken away under the principle of locus poenitentiae.
F. That the petitioners have been condemned unheard and the impugned order has been passed at their back without providing them a fair opportunity of defense, personal hearing and Notice. Thus the impugned order is unlawful, mala fide and of no legal effect, being violative of principle of natural justice.
Reply ground (e) in written statement:
c. Incorrect, because the petitioners were asked by the APA and inquiry Committee which has constituted by PA to clarify their position but they failed to do so. "
It is pertinent to mention here that present Respondent Nos. 13 & 14 (Respondents No. 1 & 2 in the writ petition) have not given reply to the ground F as evident from page 52 of paper book. The learned counsel of the petitioners have failed to point out any documentary evidence qua the notice issued by the Respondent No. 13 to the Respondents Nos. 1 to 12 before withdrawing their appointment letters vide order dated 23.2.2006. It is an admitted fact that respondents 1 to 12 secured their appointment qua the posts in question as PTC teachers after the recommendations of the departmental selection committee duly constituted by the competent authority. Therefore, respondents 1 to 12 had secured vested rights as law laid down by this Court in Army Welfare's case (1992 SCMR 1652). It is a settled principle of law that vested rights accrued to the Respondents No. 1 to 12 could not be taken back or withdrawn without fulfilling the requirement of principle of natural justice. As the impugned order passed by Respondent No. 13 by withdrawing their appointment letters in violation of principle of natural justice, therefore, learned High Court was justified to accept their Constitution Petition. It is settled principle of law that principle of natural justice must be read in each and every statute unless and until the same is excluded from the wording of the statute itself as law laid down by this Court in Fazlur Rahman's case (PLD 1964 SC 410) and Farid sons' case (PLD 1961 SC 537). Respondent No. 13 has passed the impugned order of withdrawing the appointments of Respondents 1 to 12 in violation of principle of natural justice. Therefore impugned order before the High Court was hit by principle of natural justice and was without lawful authority as law laid by this Court in various pronouncements. Reference can be made to the following judgments:--
Zakir Ahmed's case (PLD 1965 SC 90)
Pakistan and others v. Public at large and others (PLD 1987 SC 304)
Pakistan Chrome Mines's case (1983 SCMR 1208)
The aforesaid proposition of law is also supported by the following judgments:--
Ahmad Hassan's case (PLD 1992 Pesh. 1)
Khan Bahadur's case (1992 CLC 395)
Farrah Deedar's case (1986 MLD 2429)
Shushma's case (1992 CLC 895)
The second contention of the learned counsel of the petitioners that the learned High Court has erred in law to entertain the constitution petition under Article 199 of the Constitution in presence of alternative remedy has also no force in view of the law laid down by this Court in the following judgments:--
Murree Brewery' s case (PLD 1972 SC 279)
Messrs Pak-Saudi Fertilizer Ltd.'s case (2001 SCMR 777)
Hudaibia Textile Mills' case (2001 SCMR 209).
It is settled principle of law that creation of classification among domiciled candidates has declared unreasonable and discriminating by this Court in various pronouncements. See Rifat Parveen's case (1981 SCMR 1002) and D.P, Joshi's case (AIR 1955 SC 334) It is an admitted fact that Respondent No. 13 had passed the impugned order of withdrawing appointment letters of Respondents 1 to 12 merely on the ground that Respondent No. 1 & 12 have secured their appointment under the influence of politicians and impugned order was passed as mentioned above without holding proper enquiry in accordance with law. Therefore the impugned order of the Respondent No. 13 is without lawful authority as law laid down by this Court in Gohar Masood's case (2001 SCMR 1128) and Farah Deedar's case (1986 MLD 2429).
(R.A.) Leave refused.
PLJ 2007 SC 1093
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Faqir Muhammad Khokhar, JJ.
SUNRISE TEXTILES LIMITED through Ex-Managing Directors and others--Petitioners
versus
CRESCENT COMMERCIAL BANK LIMITED, LAHORE
and others--Respondents
Civil Petition No. 401 of 2007, decided on 7.5.2007.
(On appeal from judgment dated 12.4.2007 of the Lahore High Court, Lahore, passed in W.P. No. 418 of 2005).
National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--
----Ss. 31-D, 5(r) & 25(A)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Suit for recovery was decreed by Banking Court--Reference--Cognizance of the offence--Application to take benefit for settlement of its outstanding liability--Reference was declared without lawful authority--Writ petition was dismissed--Assailed--Validity--Question of--Whether a wilful default was or was not committed--Jurisdiction domain of Accountability Court--Determination on the basis of evidence--Scope of--Application of the provision of S. 25-A of NAB Ordinance would in first instance be examined by Accountability Court--Scope of Circular No. 29 seems to have been properly dealt with by High Court in view the peculiar facts and circumstances of the case--Supreme Court would not like to pre-empt the functions of Accountability Court without any jurisdictional defect having been found-liability of debtor had not yet been determined by any Court nor the prosecution in terms of S. 5(r) and 31-D of Ordinance, 1999 was pending--Held: High Court did not warrant interference by Supreme Court--Leave refused.
[P. 1095] A & B
PLD 2004 Kar. 638; PLD 2005 SC 323.
Mr. Tariq Mehmood, ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 7.5.2007.
Judgment
Faqir Muhammad Khokhar, J.--The Respondent No. 1, a Commercial Bank Ltd., instituted a recovery suit C.O.S. No. 4 of 2000, which was decreed, by the Banking Court, in the sum of
Rs. 292,433,417.40, vide judgment dated 16.1.2001. The petitioners filed R.F.A. No. 153 of 2001 there-against in the Lahore High Court, Lahore, which was stated to be pending. The petitioner-company was also wound up by the High Court on 3.7.1997, and the winding up was upheld by this Court. In the meant time, the Governor, State Bank of Pakistan, the Respondent No. 2, filed a Reference under the provisions of Section 31-D of the National Accountability Bureau Ordinance No. XVIII of 1999 in which the Accountability Court, had taken cognizance of the offence. The petitioners also moved an application to take the benefit under Circular No.29 issued by the State Bank of Pakistan for the settlement of its outstanding liability. They filed Writ Petition No.418 of 2005 in the Lahore High Court, Lahore for declaring the Reference under Section 31-D of the Ordinance to be without lawful authority and also sought a direction to the Respondents No. l, 2 and 5 to decide their application under Circular No.29. A learned Division Bench of the High Court dismissed their aforesaid Writ Petition vide impugned judgment dated 12.4.2007.
The learned counsel vehemently argued that the Disputes Resolution Committee constituted by the State Bank of Pakistan under Circular No.29 was under a legal obligation to decide the application of the petitioners on merits and that the Committee ought not have refused to entertain the application on the ground that the petitioner-company had been wound up. The Circular No. 12 of 2004 dated 26.4.2004 issued by the State Bank of Pakistan did not nullify the operation of Circular No.29. It was next contended that prosecution under Section 31-D of the Ordinance could not be launched unless the petitioners were adjudged finally, by the civil or Banking Court, to be the willful defaulters of the bank loan or the financial facility. Reliance was placed on the case of Asim Textiles Ltd. and others versus The National Accountability Bureau and others (PLD 2004 Karachi 638).
We have heard the learned counsel at length and have also perused the available record. Admittedly, the Banking Court has already decreed the suit of the Respondent No. l, a banking company, to the tune of Rs. 292,433,714.40. The petitioner-company was wound up way back in the year 1997. The Accountability Court has also taken cognizance of the alleged offence of willful default. As held by this Court in the case of Mrs. Shahida Faisal versus The Federation of Pakistan and others (PLD 2005 SC 323), ordinarily, the question as to whether a willful default was or was not committed, squarely fell within the jurisdictional domain of the Accountability Court, which was required to be determined on the basis of evidence. The application of the provisions of Section 25-A of the Ordinance would, in the first instance, be examined by the Accountability Court. The scope of Circular No.29 seems to have been properly dealt with by the High Court keeping in view the peculiar facts and circumstances of the present case. We would not like to pre-empt the functions of the Accountability Court without any jurisdictional defect having been found. Reference may usefully be made to the case of Manzar Oayyum versus the State (PLD 2006 SC 343), in which a similar view was taken. The reference to Asim Textile Mills Ltd. (supra), was in-apt as in that case a show-cause notice had been issued by the National Accountability Bureau when the liability of the debtor had not yet been determined by any Court nor the prosecution in terms of Sections 5(r) and 31-D of the Ordinance was pending before any Accountability Court. In our view, the impugned judgment of the High Court does not warrant interference by this Court. Even otherwise, this is not a fit case for grant of leave to appeal.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.
(R.A.) Leave refused
PLJ 2007 SC 1096
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
NOOR MUHAMMAD--Petitioner
versus
CHIEF ENGINEER WORKS & SERVICES DEPARTMENT NWFP, PESHAWAR and 3 others--Respondents
Civil Petition No. 642-P of 2004, decided on 8.5.2007.
(On appeal from the judgment dated 1.7.2004 of the Peshawar High Court, Peshawar in Writ Petition No. 393 of 2004)
Constitution of Pakistan, 1973--
----Art. 185(3)--Rejection of bid--Auction/public notice of bid--Quantity of iron steel would be auctioned--Petitioner participated in auction and offered the highest bid--Deposited down payment--Bid was rejected--Writ Petition--Bid was lower than reserved price--Petition was dismissed--Assailed--Validity--Competent authority has the right to reject the bid without assigning any reason--It cannot be forced to respondent to accept the bid of the petitioner which is lower than the reserved price--There is no provision in the auction/publicity bid notice that while cancelling the bid the petitioner will be given opportunity for hearing by competent authority--Leave refused.
[P. 1097] A
Mr. Muhammad Jamil Khan, ASC for Petitioner.
Respondents not represented.
Date of hearing: 8.5.2007.
Judgment
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 1.7.2004 of a learned Division Bench of the Peshawar High Court, Peshawar, whereby Writ Petition No. 393 of 2004 filed by him was dismissed in limine.
Rs. 14,000/- per ton. He deposited Rs. 10,00,000/- as 25% down payment. But on 20.12.2003 the department informed petitioner that his bid has been rejected. Feeling aggrieved, petitioner filed writ petition before the learned High Court. The respondents filed their comments stating therein that reserved rate was Rs.18000/- per ton set as by the department whereas the petitioner's bid was lower than the reserved price, therefore, the Department would not accept the same under the rule and that acceptance of bid of the petitioner would have been objected by the auditors. The learned High Court dismissed the writ petition vide impugned judgment as stated above.
We have heard Mr. Muhammad Jamil Khan, learned ASC for the petitioner at length and have gone through the record and the proceedings of the case in minute particulars.
Mr. Muhammad Jamil Khan, learned ASC for the petitioner has argued that the petitioner's bid being highest should have been accepted. He argued that the order dated 20.12.2003 regarding rejection of the bid of the petitioner is illegal, unconstitutional and based on malafide and of no legal effect. According to him the bid offered by the petitioner is much higher than stipulated cost of the steel put for auction and therefore, there was no legal or factual justification for rejection of the bid offered by the petitioner to the department and the amount of Rs. 10,00,000/- 25% of the bid money deposited by the petitioner was returned by the department after more than one year without any justification. He contended that no valid reason has been assigned by the respondent for not accepting the highest bid offered by the petitioner. He further contended that no opportunity of hearing was provided to the petitioner by the respondent before cancellation of his highest bid.
It has been specifically mentioned in the auction/publicity notice of the bid that the competent authority has the right to reject the bid without assigning any reason, therefore, it cannot be forced to the respondent to accept the bid of the petitioner which is lower than the reserved price. There is also no provision in the auction/publicity bid notice that while cancelling the bid the petitioner will be given opportunity for hearing by the competent authority.
For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and does not warrant any interference by this Court.
Accordingly, petition being devoid of force is dismissed and leave to appeal refused.
(R.A.) Leave refused
PLJ 2007 SC 1098
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ.
MUHAMMAD OVAIS and another--Petitioners
versus
FEDERATION OF PAKISTAN through Ministry of Works and Housing Pakistan Secretariat, Islamabad and others--Respondents
Civil Petition No. 285 of 2007, decided on 23.4.2007.
(On appeal from the judgment dated 8.3.2007 of the High Court of Sindh, Karachi passed in Civil Petition No. D-1126/2006).
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 1(2)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Pronounce judgment in open Court--Violation of--No judgment in eyes of law--After hearing the case, the Court shall pronounce judgment in the open Court either at once or on some future date not exceeding thirty days for which due notice shall be given to the parties or their Advocates. [P. 1100] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 30--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Judgment when and where pronounced--Unreasonable delay--Remanded--Applicability--Judgment pronounced eight months after hearing of arguments was held to be unreasonably delayed and the case was remanded to High Court, for rehearing and re-deciding the matter--Held: Delay in pronouncement of judgment is not expected to be unreasonable either in exercise of original or in appellate jurisdiction--Case was remanded to High Court.
[P. 1100] B & C
PLD 2002 SC 823; 1996 SCMR 669.
Mr. Abid S. Zuberi, ASC with Mr. M. S. Khatak, AOR for Petitioners.
Mr. Salim, S.O. Housing & Works for the Respondent No. 1.
Mr. Arshad Ali Ch. AOR/ASC and Mr. Shahid Jamil, Additional Controller (Legal) for Respondent No. 3.
Mr. Badar Alam, ASC for Respondent No. 4.
Mr. M. Ali Mazhar, ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent No. 5.
Syed Iqbal Haider, ASC with Ch. Muhammad Akram, AOR for Respondent Nos. 9 & 10.
Nemo for Respondents Nos. 2 & 6 to 8.
Date of hearing: 20.4.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Muhammad Ovais and another seek leave to appeal from the judgment dated 8.3.2007 of learned High Court of Sindh Karachi, whereby, on acceptance of a Constitution Petition filed by the Respondents No. 9 and 10, the construction of a multi storied commercial building executed by the petitioners was declared unlawful and violative of the provisions of Regulations 1979 and Sindh Town Planning Act.
A building with a basement, ground floor and upper six floors under the name and style "Sana Heights" is being constructed by the petitioners on Plot No. 44-A/1 measuring 555.55 sq.yds. in Muhammad All Jauhar Memorial Cooperative Housing Society Karachi. Originally the plot numbered as 44-A measured 2000 sq.yds. It was bifurcated into 44-A and 44-A/l measuring 1444.45 and 555.55 sq.yds. respectively. After such bifurcation, Ministry of Works Islamabad, on the basis of NOC dated 1.2.1991 issued by the then Karachi Development Authority, allowed its conversion from residential into commercial plot.
Aggrieved of both, the bifurcation as well as the commercialization, Mr. Zahid Saeed and Mr. Humayoon Qureshi filed a writ petition aforesaid, challenging both the events.
We have heard the arguments on either side at length. First and the foremost objection taken by the learned counsel for the petitioners is, that the arguments concerning impugned judgment were addressed before the High Court on 16.5.2006, 18.5.2006 and 19.5.2006, whereafter, judgment was reserved but subsequently announced on 8.3.2007 i.e. after the passage of ten months. That, being violative of Order XX, Rule 1 CPC, it was no judgment in the eye of law. The point being seriously raised and contested, deserves prior attention.
The proceedings initiated before the High Court involved assertion and enforcement of a civil right and hence would be considered as civil proceedings. Regardless of whether the jurisdiction exercised by the High Court was original, appellate or constitutional, once the proceedings before it are of civil nature, the provisions of the Code of Civil Procedure shall apply unless any provisions is specifically excepted. There cannot be two opinions about it and the matter stood settled long ago by a larger bench of this Court in Hussain Bakhsh's case (PLD 1970 SC 1).
With regard to the writing of judgment, the directions can be found under Order XX, Rule 1(2) of the CPC. It lays down imperatively that, after the case had been heard, the Court shall pronounce judgment in the open Court either at once or on some future date not exceeding thirty days, for which due notice shall be given to the parties or their Advocates. The Code applies to the High Court as well but if its application is relaxed in the exercise of constitutional jurisdiction, one can conclude that the judgment be pronounced on some future date, to be reasonably calculated. Though, strictly speaking, departure form thirty days is not justified otherwise. Abdul Aziz, CJ in Pathana Vs. Mst. Khandal (PLD 1952 Baghdad-ul-Jadid 38) had observed that a judgment, with reference to Order XX, Rule 1 CPC, delivered after five months of hearing arguments is tantamount to delivering judgment without hearing the parties. A full bench of this Court in Syed Iftikhar-ud-din Haidar Gardezi Vs Central Bank of India Limited (1996 SCMR 669) has maintained that the term "future date" cannot be determined by a Court unreasonably. This was with reference to Order XLI, Rule 30 CPC. In the case aforesaid, a judgment pronounced eight months after hearing of arguments was held to be unreasonably delayed and the case was remanded to the High Court for rehearing and re-deciding the matter. We have given our anxious consideration to the law involved and also the principle of propriety and hold that when the delay in pronouncement of judgment is not expected to be unreasonable either in the exercise of original or in appellate jurisdiction, why it should be so allowed and interpreted in case of Constitutional jurisdiction, especially, when Code of Civil Procedure is held applicable.
Learned counsel for the respondents placed reliance on Juma Khan Vs. Mst. Bibi Zenaba (PLD 2002 SC 823) where it is held that, if no prejudice has been caused to a party by reason of delay in pronouncement of judgment, the rule should be interpreted as merely directory and not mandatory. This has certain distinguishing features. Had the full bench judgment of this Court in Syed Iftikhar-ud-din Haidar Gardezi's case (supra) been cited before the learned Division Bench, it would have certainly preferred to follow the same.
Even if, we go to the condition of prejudice caused to a party by delayed pronouncement of judgment, though not provided in law, yet the decision would depend upon the facts and circumstances of each case. It is only adhered to for the sake of argument; whereas the verdict in (1996 SCMR 669) is to prevail any way. The unreasonable delay of ten months in the instant case in pronouncement of judgment by the learned High Court has caused prejudice as well. In the lengthy arguments addressed before us on merits, we were referred to a bulk of documentary evidence going to the very route of the case which was never found mentioned in the impugned judgment of the High Court. This omission seems to be caused only and only due to the delay of ten months in question.
Consequently, this petition after conversion into appeal is accepted, the impugned judgment dated 8.3.2007 is set aside and the case is remanded to learned High Court of Sindh Karachi for rehearing and re-deciding the case in accordance with law, within one month. For a period of one month, no construction shall be done on the spot.
(R.A.) Case remanded.
PLJ 2007 SC 1101
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Nasir-ul-Mulk, JJ.
INAYAT--Appellant
versus
NADAR KHAN--Respondent
Civil Appeal No. 30 of 2004, decided on 17.1.2007.
(On appeal from the judgment of Lahore High Court, Lahore dated 8.12.2003 passed in Civil Revision No. 372 of 2000).
(i) Constitution of Pakistan, 1973--
----Art. 185(2)--Direct appeal--Concurrent findings--Question of performance of talabs in suit of pre-emption--Reversed--Assailed--Right of pre-emption--Requirement of talab-i-muwathibat--Notice of Talb-e-Ishhad--Whether Talab-i-Muwathibat was or was not performed--Determination--Revisional jurisdiction--Validity--Pre-emptor immediately on coming to know about the sale, announced for exercise of the right of pre-emption and mere fact that in plaint instead of giving time of making talab-i-muwathibat--Not sufficient to negate the claim of pre-emptor of making jumping demand for exercise of right of pre-emption--High Court having misread the evidence, reversed the concurrent finding of two Courts on the question of performance of talab-i-muwathibat in revisional jurisdiction--Held: High Court was not correct in reversing the concurrent findings of two Courts on the mixed question of law and fact in revisional jurisdiction through reappraised of evidence--Appeal allowed. [Pp. 1103 & 1104] A, B & D
(ii) Revisional jurisdiction--
----Scope of--Interference in revisional jurisdiction in concurrent finding of fact even if erroneous on a question of fact or mixed question of law and facts through reappraisal of evidence is beyond the scope of Supreme Court. [P. 1103] C
Mr. Hifz-ur-Rehman, ASC and Mehr Khan, AOR for Appellant.
Mr. M. Rafiq Warriach, ASC for Respondent.
Date of hearing: 17.1.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This direct appeal under Article 185 (2) (d) of the Constitution of Islamic Republic of Pakistan has been preferred against the judgment dated 8.12.2003 passed by the Lahore High Court, Lahore, in Civil Revision No. 372 of 2000 whereby the concurrent findings of two Courts on the question of performance of talabs in a suit for pre-emption, have been reversed and the decree passed in the suit has been set aside.
The essential facts leading to the filing of instant appeal are that Nadar Khan, respondent herein, filed a suit for pre-emption against the petitioner in respect of sale of land measuring 10 kanals 15 marlas situated in seeray Tehsil Phalia district Mandi Bahauddin, which took place on 13.12.1994. The pre-emptor, as per averments of the plaint, claimed that he having come to know about the sale at 7 p.m. on 20.2.1995 through Muhammad Yar, announced for exercising the right of pre-emption and having fulfilled the requirement of Talab-i-Muwathibat, sent notice of Talb-e-Ishhad to the vendee on 26.2.1995. The suit was contested by the vendee and learned trial Judge in the light of pleadings of the parties and evidence led by them, decreed the suit vide judgment dated 5.11.1996. The decree was further maintained by the learned Additional District Judge vide judgment dated 10.2.2000 passed in appeal filed by the appellant which was set aside by the High Court in revisional jurisdiction by reversing the concurrent findings of the two Courts on the question of performance of talab-i-muwathibat and dismissed the suit.
The contentious issue before us in the present appeal is whether talab-i-muwathibat was or was not performed by the pre-emptor in accordance with the requirement of law. Learned counsel for the appellant has contended that the pre-emptor immediately on coming to know about the transaction of sale there and then, opted for exercise of right of pre-emption in presence of witnesses and mere fact that in the plaint the time of making talab-i-muwathibat was mentioned as 7.00 p.m. whereas the pre-emptor as well as the witnesses in their statements before the Court have stated that talab-i-muwathibat was made at maghrabwala, would have no material effect to be considered a valid ground to defeat the suit. Learned counsel for the respondent, on the other hand, has argued that requirement of the law is that pre-emptor must make a jumping demand for exercise of right of preemption on coming to know about the sale but in the present case, there is material contradiction in the statements of the pre-emptor and witnesses in respect of the time of making talab-i-muwathibat given in the plaint which would lead to an inference that pre-emptor has not fulfilled the requirement of talab-i-muwathibat in the spirit of law and thus the High Court has rightly non-suited the pre-emptor.
Having heard the learned counsel for the parties and perused the record with their help, we are not persuaded to agree with the conclusion drawn by the High Court. There is ample evidence on record to show that the pre-emptor immediately on coming to know about the sale, announced for exercise of the right of pre-emption and mere fact that in the plaint instead of giving time of making talab-i-muwathibat `maghrabwala' it was mentioned 7 p.m., would not be sufficient to negate the claim of pre-emptor of making jumping demand for exercise of right of pre-emption Maghrabwala in general terms is not confined only to the maghrab prayer time rather it continues till start of Ishawala and thus the difference of time, pointed out by the learned Judge in the High Court would be of no significance, to non suit the pre-emptor. The careful examination of evidence would show that High Court having misread the evidence, reversed the concurrent finding of two Courts on the question of performance of talab-i-muwathibat in revisional jurisdiction. This is settled principle of law that interference in the revisional jurisdiction in the concurrent finding of fact even if erroneous on a question of fact or mixed question of law and facts through reappraisal of evidence is beyond the scope of this jurisdiction. The High Court in the present case, having misconception of the factual position regarding the time of performance of talab-i-muwathibat, while traveling on wrong premises, has drawn the conclusion contrary to law and facts of the case.
We having heard the learned counsel for the parties and perused the record with their assistance, have not been able to find out any defect of misreading or non-reading of evidence or any other legal or factual infirmity in the conclusion of the evidence drawn by the Court of first instance and the appellate Court to justify interference of the High Court in revisional jurisdiction.
In the light of forgoing reasons we are constrained to hold that High Court was not correct in reversing the concurrent findings of the two Court on the mixed question of law and fact in revisional jurisdiction through reappraisal of evidence and consequently, we while setting aside the judgment of the High Court restore that of the judgment and decree passed by the trial Court and affirmed by the appellate Court. This appeal is accordingly allowed with no orders as to costs.
(R.A.) Appeal allowed.
PLJ 2007 SC 1104
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Ch. Ijaz Ahmed, JJ.
THAL INDUSTRIES CORPORATION LIMITED (LAYYAH SUGAR MILLS) through its Legal Manager--Petitioner
versus
GOVT. OF PUNJAB through Chief Secretary Punjab
and others--Respondents
Civil Petition No. 1085 of 2006, decided on 9.2.2007.
(On appeal from the judgment dated 10.10.2006 passed by Lahore High Court, Multan Bench in WP 3415/2006).
Constitution of Pakistan, 1973--
----Art. 18--Right of business--Every person has right of setting up lawful trade and business and subject to law Government cannot restrict the establishment of industry in private or public sector rather government is under legal obligation not to allow any person or group of person to create monopoly in a particular trade or business.
[P. 1108] A
Punjab Industrial (Control of Establishment and Enlargement) Ordinance, 1973--
----Ss. 3 & 11--Constitution of Pakistan, 1973 Arts. 18--Serious business crises--Notification--No industry in the Province can be established without prior permission--Seeking declaration--Violation of policy of Government for establishment of industries was dismissed--Notification issued by Government of Punjab u/S. 11 of Ordinance, 1973 read with directive of Chief Minister under reference would show that except the industries mention in Ordinance, 1973 all other industries have been exempted from purview of Section 3 of Ordinance--Government of Punjab allowed the establishment of new sugar mills upto the capacity and also fixed such production capacity of existing sugar mills in Punjab. [P. 1109] B
Constitution of Pakistan, 1973--
----Art. 184(3)--Constitutional jurisdiction--Lawful business--A person aggrieved of an action of public functionaries, can invoke the extraordinary constitutional jurisdiction of High Court for interference and simultaneously jurisdiction of Supreme Court can be invoked in a matter of public importance involving enforcement of fundamental rights but the constitutional jurisdiction of the superior Courts cannot be invoked and exercised in aid of injustice or to restrain a person from doing the lawful business of his choice in accordance with law and Constitution. [Pp. 1110 & 1111] D
Constitution of Pakistan, 1973--
----Art. 185(3)--Punjab Industries (Control of Establishment and Enlargement) Ordinance, 1963, Ss. 3 & 11--Establishment of Sugar Mills--Leave to appeal--Insufficient ground--Lawful business--Shortage of raw-material in a particular area is not a valid ground to restrain a person from his Constitutional right of doing business and trade in a particular area--Held: Petitioner can competently maintained the writ petition challenge the setting up a new sugar mills or establishment of industry is against the public interest and policy of law--Constitutional mandate is that neither any restriction can be placed on setting up of a lawful business or trade nor any person in private sector can be allowed to create monopoly in such trade or business--Government of Punjab having conceded right of private respondent for setting up of sugar mills, has raised a serious objection to the locus standi of the petitioner to challenge the establishment of Sugar mills--Appeal dismissed.
[P. 1110 & 1111] C & E
Mr. M. Akram Sheikh, Sr. ASC for Petitioner.
Mr. Nasir Saeed Sheikh, (Court Call) for Respondents.
Mr. Khadim Hussain Qaiser, Adl. AG, Mr. Ahmed Ali, DOE & IP, Mr. Irfan on behalf of Secy Agriculture and Mr. Mehmood Ajmal, A.D. (Industries) for Respondents No. 1-9.
Raja Abdul Ghafoor, ASC for Respondent 10.
Mr. Wasim Sajjad, Sr. ASC, Mr. Idrees Ashraf, ASC and Malik M. Rafiq Rajwana, ASC for Respondent No. 11.
Date of hearing: 9.2.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 10.10.2006 passed by a learned Judge in chamber of Lahore High Court, Multan
Bench, whereby the constitution petition filed by the Thal Industries
Corporation Limited (Layyah Sugar Mills), hereinafter to be called the petitioner' seeking declaration that installation of Tandianwala Sugar Mills
Limited (hereinafter calledthe private respondent') was in violation of the
Policy of the Government of Punjab for establishment of industries in Punjab was dismissed.
"It has been brought to the notice of Chief Minister, Punjab that certain existing as well as upcoming sugar mills which are yet to commence production have either increased or are likely to increase their crushing capacity illegally in spite of the glut of sugar in the country. It is likely to cause a significant loss to the national economy. Different farmers/organizations have also been agitating this issue through the media.
It has been pointed out that the increase in the crushing capacity will have a negative bearing on the cotton crop which feeds the vibrant and expanding textile sector constituting the bulk of Pakistan's exports. Moreover, sugarcane is more water intensive compared to other crops. The recent water shortages experienced by the country due to prolonged drought require a drastic change in cropping patterns by encouraging crops which consume less water. The expansion of crushing capacity is also likely to exacerbate the grievances of sugarcane growers who are already facing problems in the clearance of their dues.
The establishment of industries in Punjab is regulated under the Punjab Industries (Control of Establishment and Enlargement) Act, 1963. Section 3 of the Act ibid stipulates that no person shall establish or cause to be established industrial undertaking or enlarge or cause to be enlarged any existing industrial undertaking except with the prior permission in writing of the Government. Section 4 provides for a check on unauthorized establishment or enlargement of industrial undertakings. Section 8 provides for penalty for contravention. Section 11 empowers the Government for granting exemption from one or any of the provisions of the act ibid through a notification. Moreover, with the approval of the Governor and in consultation with the concerned stakeholders including Chambers of Commerce and relevant Associations, Government of the Punjab vide IM&M Departments, notification dated September 30, 2002 revised the Location Policy whereby no new sugar mills could be set up and no existing sugar mill enlarged in the districts of Multan, Sahiwal, Vehari, Khanewal Pakputan, Lodhran, Bahawalpur, R.Y.Khan Bahawalnagar, D.G. Khan, Rajanpur, Layyah, Muzaffargrah and Okara. This was meant to protect the restricted area from intrusion of crops other than cotton in order to ensure that adequate quantities of cotton continue to be available for the textile sector.
The Chief Minister has, therefore directed that unauthorized expansion of crushing capacity of sugar mills both existing as well as upcoming needs to be checked strictly in the national interest. He has further directed that Industries Department may initiate a detailed survey to detect sugar mills flouting the relevant laws/rules. Till the completion of the survey, an immediate ban may be imposed by the Department on setting up of new sugar mills and expansion of crushing capacity of existing sugar mills. The Chief Minister has desired that the ban may be strictly enforced across the board and instructions to this effect may also be issued to all banks accordingly.
A compliance report may be submitted for information/orders of the Chief Minister within one month."
Mr. Khadim Hussain Qaiser, learned Additional Advocate-General, Punjab, and Mr. Waseem Sajjad, Sr. ASC, counsel for the private respondent, strongly opposed this petition with the assertion that the notification dated 17.9.2002 issued by the Government of Punjab in exercise of the power conferred upon it under Section 3 of the Ordinance was operative for all intents and purposes and the directive of the Chief Minister may not have the effect of undoing this notification. They have strenuously argued that neither the Governor nor the Chief Minister has placed any restriction on the construction of Tandiyala Sugar Mills, which was almost complete when the directive of the Chief Minister was issued and in any case the respondent in his own right with the permission of Government has set up the sugar mills quite in accordance with law. The learned counsel urged that petitioner has no locus standi to file the writ petition and raise objection to the establishment of the sugar mills of the private respondent established in District Muzzafargarh and has submitted that the petitioner has neither come to the Court with clean hands nor he has filed the writ petition in good faith rather the motive for invoking the jurisdiction of the High Court was to have the monopoly in the production of sugar in the area.
Learned Deputy Attorney General, has argued that under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, every person has the right of setting up lawful trade and business and subject to law, the Government cannot restrict the establishment of the industry in the private or public sector rather Government is under the legal obligation not to allow any person or group of person to create monopoly in a particular trade or business.
Mr. Waseem Sajjad, learned Senior ASC, representing the Respondent No. 11 with reference to the correspondence of the said respondent with the Government of Punjab and Municipal Committee, Muzafargarh, has submitted that the private respondent has established the sugar mills with huge investment with the permission of Government of Punjab and it was almost at the stage of commencement of the production when the directive of the Chief Minister was issued which may not be applicable to the industrial unit already in the process of setting up. Learned counsel added that no objection to the construction of sugar mills was raised by any agency of the Federal or Provincial Government at any stage before or after the issue of directive in question and emphasized that the petitioner due to the business rivalry with the ulterior motive to create monopoly in the production of sugar in the area has filed the writ petition in bad faith, without any locus standi and unnecessarily has dragged the respondents in litigation at the cost of public time and exchequer.
The examination of relevant provisions in the Ordinance and the notification dated 26.10.1986 issued by the Government of Punjab under Section 11 of the Ordinance read with directive of the Chief Minister under reference would show that except the industries mention therein all other industries have been exempted from the purview of Section 3 of the Ordinance. The Government of Punjab vide notification dated 15.7.2005 in supersession of the notification dated 12.10.2004 allowed the establishment of new sugar mills upto the capacity of 16000 TCD and also fixed the same production capacity of existing sugar mills in Punjab. Section 3 of the Ordinance and the notification dated 15.7.2005 and dated 26.10.1986 are reproduced hereunder for better appreciation of the contentions raised in the present petition.
Section 3 of the Ordinance:
"3. No person shall establish or cause to be established any industrial undertaking or enlarge or cause to be enlarged any existing industrial undertaking except with the previous permission in writing of the Government.
Provided that the application of any person for the grant of such permission shall not be rejected.
(a) without giving such person an opportunity of showing cause against it; or
(b) unless the Government is satisfied, on the basis of information available to it and after making such inquiry as it may deem fit, that the grant of permission to such person will be prejudicial to the national interest, or injurious to the health of or a source of nuisance for, the residents of the local area in which the industrial undertaking is proposed to be set up or, as the case may be, industrial undertaking which is proposed to be enlarged is situated."
Notification dated 15.7.2005:
"GOVERNMENT OF THE PUNJAB
INUDSTRIES DEPARTMENT
Dated Lahore, the 15th July, 2005
NOTIFICATION
No. AEA-III-3-5/2003. In exercise of the powers conferred upon him under Section 11 read with Section 3 of the Punjab Industries (Control on Establishment & Enlargement) Act, 1963, he Governor of the Punjab is pleased to order that in suppression of Notification No. AEA-III-3-5/2003, dated 12.10.2004 notified in the Punjab Weekly Gazette October 20, 2004 the following amendments shall be made in the Government of the Punjab, Industries Department Notification No. AEA-III-3-9/91 dated 17.9.2002, with immediate effect:
AMENDMENT
For Clause 3, the following shall be substituted:
(i) The establishment of new sugar mills upto the capacity of 16,000 TCD is allowed in the Province.
(ii) The Sugar Mills are not allowed to enlarge existing capacity over 16,000 TCD.
SECRETARY
INDUSTRIES DEPARTMENT"
Having considered the matter in the light of the legal position referred above, we are of the view that learned Judge of the High Court in chamber has rightly held that directive of the Chief Minister contained in letter dated 23.11.2005, by virtue of which operation of the notification of the Governor was suspended, has no retrospective effect to affect the setting up of the sugar mills by private respondent, the construction of which was started with the permission of the Government of Punjab much before the issue of the said directive.
Keeping in view the apprehension of the petitioner that in consequence to the setting up of new sugar mills in District Muzaffargarh, the production of the petitioner's mills would be affected due to the scarcity and shortage of sugar cane, the essential question for determination would be with regard to the legal right and locus standi of the petitioner to raise objection to the setting up of the respondent's sugar mills subject to the public interest and policy the establishment of lawful trade and business is a constitutional right and in the normal circumstances, the restriction on the establishment of industry, may not be justified, therefore, the Committee constituted by the Chief Minister to frame the policy for establishment of the industry in the Province of Punjab would have no nexus with the industries already in operation or under the process of setting up. The shortage of raw-material in a particular area also is not a valid ground to restrain a person from his constitutional right of doing business and trade in a particular area. This is settled law that a person aggrieved of an action of public functionaries, can invoke the extraordinary constitutional jurisdiction of the High Court for interference and simultaneously the jurisdiction of this Court under Article 184 (3) can be invoked in a matter of public importance involving enforcement of the fundamental rights but the, constitutional jurisdiction of the superior Courts cannot be invoked and exercised in aid of injustice or to restrain a person from doing the lawful business of his choice in accordance with law and Constitution.
Learned counsel for the petitioner has not been able to satisfy us that the petitioner can competently maintain the writ petition to challenge the setting up a new sugar mills in the area of District Muzaffargarh or the establishment of the industry is against the public interest and policy of law. The constitutional mandate is that neither any restriction can be placed on the setting up of a lawful business or trade nor any person in the private sector can be allowed to create monopoly in such trade or business. The Government of Punjab having conceded the right of private respondent for setting up of sugar mills, has raised a serious objection to the locus standi of the petitioner to challenge the establishment of the sugar mills in District Muzaffargarh.
In the light of forgoing discussion and the law on the subject we have not been able to find out any substance in this petition calling for interference of this Court in the judgment of the High Court and the same is accordingly dismissed. Leave is refused.
(N.F.) Leave refused
PLJ 2007 SC 1111
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Nasir-ul-Mulk, JJ.
SAAD SALAM ANSARI--Appellant
versus
CHIEF JUSTICE OF SINDH HIGH COURT KARACHI through its Registrar--Respondent
Civil Appeal No. 1071 of 2006, decided on 18.1.2007.
(On appeal from the judgment of Sindh Subordinate Judiciary Service Tribunal, dated 31.5.2006 passed in Service Appeal No. 7/2003).
Sindh Civil Servants (Efficiency & Discipline) Rules, 1973--
----R. 4(1)(b)(iii)--Sindh Service Tribunals Act, 1973, S. 3-B--Constitution of Pakistan, 1973, Art. 212--Leave to appeal--Removal from service--Major penalty--Determination--Question of--Charge of misconduct--Charge could not be established without recording evidence and providing a proper opportunity to the civil servant to cross examine the witnesses and also produce evidence in defence, dispensation of regular inquiry is not justified except in extraordinary circumstances--Factual controversy regarding knowledge of order of High Court could not be ascertained without recording statements of concerned officials of Court or tenant or his counsel, as case may be with right of cross examination to appellant and thus in absence of such an evidence, knowledge of the order of High Court could not be attributed to the appellant--Law is that except in special circumstances, in departmental proceedings procedure of regular inquiry should be followed to prove the charge of misconduct which may have the consequence of major penalty of dismissal or removal from service and such an inquiry may not be dispensed with in normal circumstances--Held: Removal of civil servant from service, passed by the competent authority, is set aside and he is reinstated in service with observation that competent authority, if so desires, hold a proper inquiry against civil servant within four months and pass appropriate order in accordance with law--Civil servant shall be deemed to have been reinstated in service with all back benefits--Appeal allowed. [Pp. 1119 & 1120] A, B, C & D
Dr. Muhammad Farogh Naseem, ASC for Appellant.
Mr. Masood A. Noorani, Adl. AG Sindh for Respondent.
Date of hearing 18.1.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 3.5.2006 passed by Sindh Subordinate Judiciary Service Tribunal (hereinafter to be called "the Tribunal") established under Section 3-B of Sindh Service Tribunals Act, 1973, whereby the appeal filed by the appellant against his removal from service under Rule 4(1)(b)(iii) of Sindh Civil Servants (Efficiency & Discipline) Rules, 1973, (hereinafter to be referred as `the Rules'), was dismissed.
"You, Mr. Saad Salam Ansari, Senior Civil Judge, Karachi, South are hereby informed that on the ground mentioned hereunder, it is proposed to take disciplinary action against you for gross misconduct and inefficiency and to impose on you major penalty of dismissal from service prescribed under Rule 4(l)(b)(iv) of the Sindh Civil Servants (Efficiency & Disciplinary) Rules, 1973.
GROUNDS
That one Muhammad Imlak s/o Muhammad Sultan r/o Karachi has complained that he was the tenant of one Mst. Afshan who had filed Rent Case No. 1645/1998 in the Court of IX-Senior Civil Judge/Rent Controller, Karachi-South, presided over by you, which was decided against the complainant, who being the aggrieved party filed First Rent Appeal Bearing No. 48/2001 which was pending adjudication. The landlady Mst. Afshan and others also filed an Execution Application No. 31/2001 before your Court, but no notice was served upon the complainant/respondent. In the meantime, the High Court called the R & Ps of the case vide letter dated 15.2.2001 but you deliberately did not comply with the directives of the High Court and passed collusive and mala fide ejectment order, adopting fully unfair attitude towards the tenant Muhammad Imlak giving undue favour to the landlady.
That your above conduct relating to the case file/Record and Proceedings amounts defiance of the order of High Court calling for the R & Ps till the eviction orders.
That an explanation in this respect furnished by you was totally un-satisfactory.
That your above stated acts, prima-facie, amount to gross misconduct and inefficiency warranting penalties prescribed under Rule 4 (1) of Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
And since it has been decided that it is not necessary to have an Enquiry conducted through an Enquiry Officer or Enquiry Committee and action of dismissal from service has been proposed under Rule 5(3) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
You are, hereby called upon to show cause in writing within a fortnight from the receipt of this Notice, as to why action mentioned above should not be taken against you on the above said grounds.
You may, however, state whether you wish to be heard in person."
"You, Mr, Saad Salam Ansari, Senior Civil Judge, Karachi South, are hereby informed that on the grounds mentioned hereunder, it is proposed to take disciplinary action against you for gross inefficiency and to impose on you one or more penalties prescribed under Rule 4(1) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
GROUNDS
That the report made against you by the District & Sessions Judge, Karachi (South) shows that you illegally admitted the Civil Suit No. 30/2001 (Muhammad Amjad V/s Khalid & Brothers and Trading Corporation of Pakistan (Pvt) Ltd) despite clear position shown in the plaint itself that it was far beyond you pecuniary jurisdiction.
That you not only entertained a suit beyond your pecuniary jurisdiction but also granted an ad-interim order against the Defendant No. 2 Trading Corporation of Pakistan (which is a government owned Corporation) despite the fact that it was evident from the plaint that no privity of contract as existed between the plaintiff and the said Corporation.
That the above order not only reflects gross inefficiency but also prima-facie indicates that it was passed with corrupt and mala fide motives.
That the above stated acts prima-facie amount to inefficient and misconduct calling for penalties prescribed under Rule 4(1) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973 and since it has been decided that it is not necessary to have an enquiry conducted by an Enquiry Officer.
You are, hereby called upon to show-cause in writing within fortnight from the receipt of this notice, as to why one or more penalties prescribed under Rule 4(1) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973 may not be imposed on you.
You may, however, state whether you wish to be heard in person."
"Petitioner--Judicial Officer seeks leave to appeal against Judgment dated 31.5.2006 of the Sindh Service Tribunal for Subordinate Judiciary dismissing his appeal against departmental order of removal from service passed by learned Chief Justice of the Sindh High Court.
Petitioner while serving as Senior Civil Judge, Karachi South, was proceeded against on the charge of misconduct for having acted dishonestly and recklessly while deciding an execution application arising out of an ejectment order and for passing an order of status quo in a civil suit against the Trading Corporation of Pakistan which was ultimately recalled and plaint returned for want of jurisdiction. He replied to the two show-cause notices and explained his conduct justifying having acted fairly and bona fide in the exercise of his jurisdiction. His explanation however, did not find favour with the authorities whereupon after dispensing with regular enquiry into the allegations against him he was issued with second show-cause notices culminating in the order of his removal from service. The petitioner invoked the jurisdiction of Service Tribunal constituted for subordinate Judiciary but without any success, hence this petition for leave to appeal.
We have heard Mr. Muhammad Farogh Naseem, learned ASC for the petitioner at some length and gone through the record.
It is, inter alia contended that the petitioner having acted in his judicial capacity, there was no justification for proceeding against him departmentally and taking exception to the impugned orders passed by him bona fide and in good faith; that the allegations leveled against the petitioner imputing acts of recklessness and lack of integrity necessarily called for a regular enquiry which was dispensed with at the time of issuing of first show-cause notice without recording any reason and disclosing any justification for adopting a summary procedure.
After hearing learned counsel, we are inclined to grant leave to consider, inter-alia, the questions whether the conduct and performance of the petitioner was such which warranted major penalty of removal from service without holding a regular enquiry into the allegations against him. Order accordingly.
Record of the rent case as well as civil suit dealt with by the petitioner shall be summoned through the High Court at the stage of hearing of appeal which may be made ready at an early date."
The main question requiring determination in the present appeal would be as to whether in the light of nature of allegation and charge of misconduct, the dispensation of regular inquiry was justified and summary procedure adopted for the conclusion of the departmental proceedings against the appellant was in consonance to the spirit of law.
Learned counsel for the appellant has contended that no evidence, oral or documentary, was brought on record in support of charge of misconduct or inefficiency against the appellant and he was also not provided a fair opportunity to rebut the allegation on the basis of which he was held guilty of misconduct. The conclusion of the authorized officer that the judicial orders passed by the appellant in the execution petition as well as in the civil suit were tainted with ulterior motive and extraneous consideration or that he exercised judicial powers in a reckless manner was not based on any evidence rather the authorized officer having formed a negative opinion regarding the integrity of the appellant on the basis of fake allegation, raised a presumption of guilt. The learned counsel added that nothing was brought on record to prove that appellant having knowledge of the order of the High Court of calling the record of the ejectment petition, proceeded in the execution petition with undue haste for ulterior motives and similarly, despite having no jurisdiction, entertained civil suit and passed an interim order in it for extraneous consideration.
The learned counsel asserted that except in the extraordinary and exceptional circumstances, the dispensation of the regular inquiry in a case involving factual controversy would amount to withhold the right of fair opportunity of a person to rebut the charges and argued that the jurisdictional defect or error in exercise of the judicial power by a Court or Tribunal may not constitute misconduct or an act of inefficiency. The order of calling of the record by the High Court in the rent case would not ipso facto restrain the Rent Controller from proceeding in the execution petition and similarly, the judicial order passed in the civil suit under the impression that suit was triable by the Court, was not a valid ground to proceed against the appellant for the charge of misconduct and in any case the order passed in the civil suit was vacated on the disposal of the application moved by the defendants for rejection of the plaint in which plaint was returned for presentation before the proper forum. The learned counsel emphasized that the circumstances leading to the passing of the above orders would not suggest any element of mala fide or ulterior motive to constitute an act of misconduct, therefore, there was no justification to proceed against the appellant under the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973. Learned counsel while concluding his arguments submitted that be that as it may, in the light of the nature of allegation, the removal of the appellant from service without regular inquiry was in utter disregard to the concept of fair treatment before the law.
Learned counsel for the respondent on the other hand, having taken us to the order of dispensation of regular inquiry passed by the authorized officer, argued that in the light of nature of allegation, the authorized officer having formed an opinion on the basis of judicial record that no other evidence was required to prove the charge of misconduct, proceeded to dispense with the regular inquiry and recommended for the removal of the appellant from service. The learned counsel submitted that authorized officer having found the reply of the appellant to the show-cause notices not satisfactory and also taking into consideration his admission of the charges during the personal hearing, held him guilty and the competent authority, on the basis of recommendations of authorized officer, passed the final order of his removal from service quite in accordance with law. Learned counsel argued that the manner in which the appellant proceeded with the case and passed the order in the execution petition as well as in the civil suit being not expected by a judicial officer, would lead to a strong inference that he in discharge of his judicial functions, acted in a reckless manner, for ulterior motive and extraneous considerations. The last submission of the learned counsel was that the authorized officer was not required to give reason for the exercise of his discretionary powers under Rule 5 of the ibid rules for dispensation of the regular inquiry and the objection of the appellant in this behalf was without any foundation.
The expression `misconduct' has been defined in Rule 2(4) of Sindh Civil Servants (Efficiency & Discipline) Rules, 1973, as under:--
"misconduct" means conduct prejudicial to good order of service discipline on contrary to the West Pakistan Government Servants (Conduct) Rules, 1966 or unbecoming of an officer and a gentleman includes, any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servant;"
In the light of the definition of misconduct and the nature of the charge of misconduct against the appellant, we having considered the contentions raised by the learned counsel for the parties and also perused the record with their assistance deem it proper to reproduce Rule 5 of the ibid Rule for better appreciation of the proposition involved in the present case.
"5. Inquiry Procedure. The following procedure shall be observed when a civil servant is proceeded against under these rules :--
(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(2) The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in Rule 6 shall apply.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer of Inquiry Committee, he shall--
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of action; and
(b) given him a reasonable opportunity of showing cause against that action :
Provided that, no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(4) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any the authorised officer shall determine whether the charge has been proved and--
(a) if it is proposed to impose a minor penalty, he shall pass orders accordingly;
(b) if it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served, on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendation regarding the penalty to be imposed, and the authority shall pass such orders as it may deem proper;
(5) The orders passed by the authority will be communicated to the accused or notified in the official Gazette by the authorised officer or the department concerned.
(6) If two or more civil servants are proceeded against jointly, the authority or authorised officer in respect of the senior most civil servant amongst them shall be the authority or authorised officer, as the case may be, in respect of all such civil servants."
This is correct that authorised officer had to decide that which of the two procedures provided in the rules, was to be adopted and if he is in favour of adopting the summary procedure, he must have exercised this discretion with extra care so that no prejudice is caused to the civil servant facing departmental proceeding for the charge of misconduct. The decision regarding dispensation of regular inquiry always depends on the nature of charge and circumstances of the each case. This is settled law that in a case in which charge could not be established without recording evidence and providing a proper opportunity to the civil servant to cross-examine the witnesses and also produce evidence in defence, the dispensation of regular inquiry is not justified except in extraordinary circumstances.
"Indeed the charges which required evidence for their proof certainly necessitated holding of a regular inquiry, nevertheless, if the allegations are apparent on the face of record then we are afraid in every case the command of holding regular inquiry could not be enforced."
(N.F.) Appeal allowed.